[Federal Register Volume 76, Number 217 (Wednesday, November 9, 2011)]
[Rules and Regulations]
[Pages 69802-69867]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-28175]



[[Page 69801]]

Vol. 76

Wednesday,

No. 217

November 9, 2011

Part II





Department of Transportation





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Federal Railroad Administration





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49 CFR Part 242





Conductor Certification; Final Rule

  Federal Register / Vol. 76 , No. 217 / Wednesday, November 9, 2011 / 
Rules and Regulations  

[[Page 69802]]


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DEPARTMENT OF TRANSPORTATION

Federal Railroad Administration

49 CFR Part 242

[Docket No. FRA-2009-0035; Notice No. 2]
2130-AC08


Conductor Certification

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

ACTION: Final rule.

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SUMMARY: FRA is prescribing regulations for certification of 
conductors, as required by the Rail Safety Improvement Act of 2008. 
This rule requires railroads to have a formal program for certifying 
conductors. As part of that program, railroads are 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 issuing 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 rule 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: Effective Date: The rule is effective January 1, 2012.

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, 
RRS-1, Mail Stop 25, 1200 New Jersey Avenue SE., Washington, DC 20590 
(telephone: (202) 493-6350); Joseph D. Riley, Railroad Safety 
Specialist (OP)-Operating Crew Certification, U.S. Department of 
Transportation, Federal Railroad Administration, Mail Stop-25, Room 
W38-323, 1200 New Jersey Avenue SE., Washington, DC 20590 (telephone: 
(202) 493-6318); 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 Sec.  402 of the Rail Safety Improvement Act of 2008, 
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 (AAPRCO);
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);
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

[[Page 69803]]

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 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 effectively addressed concerns with regard 
to the certification of conductors. FRA 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.
    Based on the recommendations of the RSAC, FRA published a Notice of 
Proposed Rulemaking (NPRM) in the Federal Register on November 10, 
2010. See 75 FR 69166. In the NPRM, FRA solicited public comment on the 
proposed rule and notified the public of its option to request a public 
hearing on the NPRM. In addition, FRA also invited comment on a number 
of specific issues related to the proposed requirements for the purpose 
of developing the final rule.
    In response to the NPRM, FRA received written comments from AAR, 
Amsted Rail, Amtrak, APTA, ASLRRA, BLET, NYMTA, SEPTA, and UTU.\1\ FRA 
then met with the Working Group on May 12, 2011 to discuss the 
comments. Minutes of that meeting are part of the docket in this 
proceeding and are available for public inspection.
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    \1\ BLET and UTU submitted joint comments. Accordingly, those 
comments will be referred to as BLET/UTU comments.
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    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

[[Page 69804]]

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 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. 
Therefore, FRA expects the Working Group to continue meeting after 
publication of this final rule and to provide recommendations that 
address 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 potential 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 and Plans 
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 rule may be necessary to conform to the 
final requirements of the training regulation.

IV. General Summary of the Comments

    As noted above, FRA received written comments on the NPRM from 
various interested parties. Following the submission of those comments, 
FRA convened the Working Group to consider and discuss the comments. As 
a result, certain of those comments have been superseded by changes 
made in the rule text from the NPRM to this final rule, and they should 
not necessarily be understood to reflect the positions of the 
commenters with respect to the requirements of the final rule. FRA is 
summarizing the comments received and is responding to them in this 
document so that FRA's positions are clearly understood.

A. Definitions

1. Substance Abuse Professional (SAP)
    FRA solicited comments whether a SAP should owe a duty to both the 
employee being evaluated and the railroad. FRA noted that in the NPRM, 
the duty owed by a SAP did not parallel the duty owed by a ``medical 
examiner.'' BLET/UTU commented that a SAP should owe a duty to both the 
employee and the railroad and that the definition should be revised 
accordingly.
    After reviewing the comment regarding SAPs and the comments 
regarding the drug and alcohol rules proposed in the NPRM, FRA finds 
that the definition and use of the term ``SAP'' in the NPRM appears to 
be causing confusion within the industry and may interfere with DOT's 
drug and alcohol rules contained in parts 40 and 219. Under DOT's 
alcohol and drug rules, a SAP is only used when referencing the 
counseling requirements that follow a Federal drug or alcohol violation 
(e.g., a part 219 violation). In the NPRM, however, a SAP is required 
both for evaluations stemming from Federal violations and evaluations 
stemming from incidents that are not the result of a Federal violation 
(e.g., motor vehicle alcohol or drug incidents indentified pursuant to 
Sec.  242.111). Moreover, the definition of SAP in the NPRM goes beyond 
the definition of the term in part 40, which does not reference duties 
owed by a SAP.
    To avoid interfering with the established rules and definitions 
contained in DOT's drug and alcohol regulations and to avoid confusion 
in the industry regarding what is required for Federal and non-Federal 
violations; FRA is making three changes to the regulation proposed in 
the NPRM. First, FRA is deleting the reference to a duty in the 
definition of SAP. Second, the term SAP in part 242 will only be used 
in connection with counseling requirements stemming from a Federal 
violation. For example, the term SAP will be used in Sec.  242.115(f) 
which discusses the follow-up that must occur after a part 219 
violation, but the term will not be used in Sec.  242.111 which 
concerns evaluations stemming from motor vehicle alcohol or drug 
incidents. Third, for those sections of part 242 which address drug and 
alcohol evaluation requirements not involving a Federal violation, the 
term SAP will be replaced with the term ``Drug and Alcohol Counselor'' 
(DAC).\2\ As used in the final rule, a DAC will be required to meet the 
exact same qualifications as a SAP. FRA believes these changes will 
avoid interfering with parts 40 and 219 while requiring the same 
qualification and credentialing requirements for persons evaluating 
substance abuse disorders as that proposed in the NPRM.
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    \2\ With respect to employee self-referrals under Sec.  
242.115(d), FRA acknowledges that the plain language of 49 CFR 
219.403(b)(4) requires a SAP recommendation for the return to 
service of an employee who has entered a voluntary self-referral 
program. However, FRA has indicated that either a SAP or an Employee 
Assistance Program (EAP) Counselor may perform the assessment and 
provide any necessary recommendations for the return to service of 
an employee who has entered a voluntary self-referral program. See 
Part 219 Alcohol/Drug Program Compliance Manual at http://www.fra.dot.gov/downloads/safety/ADComplianceMan.pdf. Moreover, 
Sec.  240.119(e) references an EAP in connection with voluntary 
self-referrals for locomotive engineers. Accordingly, in this final 
rule, the term DAC will be used with respect to employee self-
referrals rather than SAP.
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2. Medical Examiner
    BLET/UTU commented that the proposed definition of ``medical 
examiner'' should be amended to explicitly state that a medical 
examiner owes a duty to the employee and the railroad. FRA believes 
that this revision is unnecessary given the plain language of the 
regulation and the statement provided in the NPRM preamble addressing 
this issue. As FRA stated in the NPRM (75 FR 69166, 69170 (Nov. 10, 
2010)) and in the section-by-section analysis to this final rule:

    Under this rule, the medical examiner owes 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 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 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.
3. Job Aid
    SEPTA raised a concern with FRA's proposed definition of ``job 
aid.'' According to SEPTA, job aids provide information or guidance on 
how to perform a multitude of tasks, and railroads must have the 
flexibility to determine the scope of their use. SEPTA asserts that the 
specific reference to ``physical characteristics'' in the definition of 
``job aid'' is unduly prescriptive and creates the potential for 
misinterpretations and erroneous limitations on the use of such tools. 
Based on that reading, SEPTA expressed concern that the proposed 
definition could be considered a prohibition on railroads from using a 
job aid for

[[Page 69805]]

anything other than physical characteristics familiarization.
    FRA believes that the commenter is applying the term ``job aid,'' 
as used in part 242, beyond its intended scope. The term only applies 
to specific information that would be provided in specific situations 
(i.e., information regarding other than main track physical 
characteristics that is required to be provided only in situations 
where a conductor lacks territorial qualification on other than main 
track physical characteristics and it is not practicable for the 
conductor to be assisted by a conductor who meets the territorial 
qualification requirements). As defined, the term ``job aid'' would not 
prohibit additional information from being included in a job aid. 
Moreover, the use of the term ``job aid'' in this rule is not intended 
to prohibit the use of information or guidance which is not covered by 
the term's definition, regardless of whether the information or 
guidance is called a job aid. Because FRA does not believe that the 
proposed definition could be considered a prohibition on a railroad 
using a job aid for anything other than physical characteristics 
familiarization, FRA has adopted the proposed definition in this final 
rule.
4. On-the-Job Training
    SEPTA commented that the proposed definition of ``on-the-job 
training'' should be replaced by a definition of that term as developed 
by the RSAC Training Standards and Plans Working Group. At the Working 
Group meetings, FRA informed the Working Group that it would conform to 
the requirements developed by the Training Standards and Plans Working 
Group where appropriate. The proposed definition in the NPRM mirrored 
the definition developed by the Training Standards and Plans Working 
Group except the Training Standards definition included ``on-the-job 
training'' components in the regulatory text rather than in the 
definition as provided in the NPRM. In this final rule, FRA has adopted 
the more concise definition of ``on-the-job training'' developed by 
Training Standards and Plans Working Group and has moved the components 
to the regulatory text. See 49 CFR 242.119(d)(2).
5. Conductor
    SEPTA commented that the definition of ``conductor'' should be 
revised to read: ``Conductor means the crewmember in charge of a train 
or yard crew as defined in part 218 of this chapter, when the train or 
yard crew consists of more than one crew member.'' The definition of 
conductor was the subject of lengthy discussions during the Working 
Group meetings and the recommendation of the Working Group was adopted 
in the NPRM. The NPRM is focused on the functions that a person 
performs and not on the person's job title. SEPTA's definition, 
however, would diverge significantly from the approach taken in the 
NPRM. For example, by SEPTA's definition, a one-person remote control 
operator job would not have a conductor but a two-person job would. 
Thus, SEPTA's definition would mean that a remote control operator in a 
one-person job would not have engaged in a revocable event for any 49 
CFR part 218, subpart F violation. FRA believes that such a loophole in 
the regulation could lead to a less safe working environment for 
railroad employees.
    The definition of ``conductor'' is a fundamental element of the 
conductor certification regulation and FRA does not discern any safety-
related reason to modify it. Accordingly, FRA has adopted the 
definition, as proposed in the NPRM, in this final rule.
6. Ineligible and Ineligibility
    SEPTA commented that the use of the terms ``ineligible'' and 
``ineligibility'' should be limited to two situations: (1) Initial 
certification, where an individual is being considered for 
certification but may not qualify for certification at that time; and 
(2) recertification, where an individual is currently certified and due 
for recertification, but certain circumstances outside the scope of 
``prohibited conduct'' would prohibit recertification until the 
situation is resolved.
    As used in the NPRM, the terms ``ineligible'' and ``ineligibility'' 
are catch-all terms that not only encompass revocation and denial of 
certification (including the two situations highlighted by SEPTA) but 
also cover other situations. For example, a certified conductor may 
voluntarily refer him or herself for substance abuse counseling or 
treatment under 242.115(d). If the conductor refuses to complete a 
course of action recommended under the provisions of 49 CFR 219.403, 
that would not be an operating rule or procedure, or type of alcohol or 
drug violation that would require revocation (nor would it constitute a 
denial of certification situation). Rather the conductor would simply 
remain ``ineligible'' until a railroad determined that the person no 
longer had a substance abuse disorder, or the person re-entered a 
substance abuse program and it had been determined under the provisions 
of 49 CFR 219.403 that the person could safely return to duty under 
certain conditions. Thus, to capture all situations where a conductor 
may be legally disqualified from serving as a conductor, FRA believes 
it is useful to define and use the terms ``ineligible'' and 
``ineligibility.''
    BLET/UTU commented that the definition of ``ineligible'' and 
``ineligibility'' should be revised to state that a period of 
ineligibility ``shall begin only after a person has been afforded the 
applicable due process established by either Sec.  242.109(e), Sec.  
242.115(f) or Subpart E and shall end when the condition or conditions 
contained therein are met.'' FRA believes that BLET/UTU's proposal 
could have an adverse impact on railroad safety because the proposal 
could potentially allow a conductor, involved in a revocable event, to 
continue to serve as a conductor until the railroad concludes its 
hearing and issues a decision. Accordingly, FRA declines to implement 
the proposal and determines that the definition of ``ineligible'' and 
``ineligibility'' as proposed in the NPRM will be adopted in this final 
rule.
7. Qualified Instructor
    SEPTA commented that the definition of ``qualified instructor'' 
should be replaced with the definition of ``designated instructor'' 
developed by the RSAC Training Standards and Plans Working Group. In 
the alternative, SEPTA commented that: FRA needs to provide references 
validating the correlation of 12 months of experience with 
instructional competency, craft qualifications or subject matter 
expertise; and define or clarify whether the term ``train service'' is 
limited to certified conductors or whether the term also includes 
engineers, brakeman, assistant conductors, etc.
    The definition of ``designated instructor'' developed by the RSAC 
Training Standards and Plans Working Group refers to:

    A person designated as such by an employer, training 
organization, or learning institution, who has demonstrated, 
pursuant to the training program submitted by the employer, training 
organization, or learning institution, an adequate knowledge of the 
subject matter under instruction and, where applicable, has the 
necessary experience to effectively provide formal training.

    Although this final rule generally conforms to the provisions and 
terms developed by the Training Standards and Plans Working Group, FRA 
believes that it is appropriate to go beyond those requirements with 
respect to definition of a ``qualified instructor.'' The definitions of 
``qualified instructor'' in the NPRM and ``designated instructor''

[[Page 69806]]

developed by the Training Standards and Plans Working Group are similar 
to one another with two exceptions. Unlike ``designated instructor,'' 
the definition of ``qualified instructor'' requires the instructor to 
be a certified conductor, and in the case of a railroad that has 
designated employee representation, to be designated by the railroad 
with concurrence of the designated employee representative or have a 
minimum of 12 months service working as a train service employee. As 
stated in the NPRM, these additional requirements were 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). FRA 
believes that the requirements will help contribute to a better 
trained, and thus safer, workforce. Accordingly, FRA declines to modify 
the definition of ``qualified instructor'' to the definition of 
``designated instructor'' that was developed by the RSAC Training 
Standards and Plans Working Group.
    SEPTA's comment demonstrates the need to clarify the meaning of the 
term ``train service employee.'' For purposes of the definition of 
``qualified instructor'' in this final rule, FRA intends for the term 
``train service employee'' to include those persons that have 
traditionally been known as certified engineers, conductors, brakemen, 
yard helpers, and yardmen. The minimum of 12 months service working as 
a train service employee may be at any time during that person's 
career.

B. Waivers

    FRA solicited comments whether Sec.  242.9 of the NPRM dealing with 
waivers should be removed as unnecessary in light of the fact that 49 
CFR part 211 addresses the waiver process. While all three commenters 
on this section; SEPTA, AAR and BLET/UTU, agreed that the waiver 
process was covered by part 211, AAR and SEPTA indicated that they were 
indifferent to the elimination of Sec.  242.9. However, UTU/BLET 
suggested that it may be helpful to laypeople, who may not be aware of 
the contents of 49 CFR part 211, to retain the reference to the waiver 
process in Sec.  242.9. FRA agrees that Sec.  242.9 may be helpful to 
some people and therefore, has retained that section in this final 
rule.

C. Certification Program

    FRA solicited comments as to whether the amount of time proposed 
for implementing a conductor certification program (based on the dates 
provided) is appropriate. FRA did not receive any written comments on 
this issue but did receive feedback during the May 12, 2011 Working 
Group meeting regarding an extension of the effective date of the rule. 
However, FRA believes its proposed approach is reasonable and thus, the 
time periods proposed in the NPRM will be adopted in this final rule.

D. Schedule of Implementation

    AAR seeks confirmation that: ``Any employee can be designated as a 
conductor under the grandfather provision through June 1, 2012. Any 
employee designated as a conductor under the grandfather provision can 
serve as a conductor until June 1, 2015, without being tested and 
evaluated pursuant to subpart B and issued a certificate pursuant to 
section 242.207.'' AAR's summary of the designation provisions in Sec.  
242.105 is not entirely accurate. With respect to the time period for 
designating conductors, only persons authorized by a railroad to 
perform the duties of conductor between January 1, 2012 and June 1, 
2012 for Class I and II railroads and January 1, 2012 and October 1, 
2012 for Class III railroads, will be designated as conductors. With 
respect to the time period a person designated as a conductor may serve 
without being tested and evaluated, a person designated as a conductor 
pursuant to Sec.  242.105 may not serve as a conductor after June 1, 
2015 for Class I and II railroads and October 1, 2015 for Class III 
railroads without being tested and evaluated pursuant to Subpart B. 
However, after March 1, 2012, each railroad must issue a certificate 
that complies with Sec.  242.207 to each person that it designates. 
Moreover, subject to the provisions of Sec.  242.105(c)(1)-(3), a 
railroad may test and evaluate its designated conductors under subpart 
B before the 36-month designation period has expired. Railroads should 
note that they may not test and evaluate a designated conductor or 
conductor candidate under subpart B of this rule or revoke a 
conductor's certificate, including a designated conductor's 
certificate, until they have a certification program approved by the 
FRA pursuant to Sec.  242.103.

E. Prior Safety Conduct as a Motor Vehicle Operator

    SEPTA commented that additional language should be added to the 
regulation that specifies that a delay in receipt of the required 
driving records be due to acts or omissions by the driver licensing 
agency, and the 60-day extension is limited to those cases where delays 
are beyond the control of the individual. According to SEPTA, the 
absence of such language could force railroads to impose more severe 
time restrictions on the driving record information requirements, 
effectively penalizing the majority of employees for the sake of the 
few who attempt to beat the system and remain in a safety-critical 
environment while affected by an active substance abuse disorder. While 
FRA acknowledges SEPTA's concern, FRA has not seen any evidence that 
the submission of incorrect or misleading information to driver's 
license agencies is a common problem. If FRA finds such evidence, FRA 
will consider amending part 242 to address the issue. Interested 
parties should note that any person who knowingly and willfully 
falsifies a record or report required by part 242 may be subject to 
criminal penalties. See Sec.  242.11.
    BLET/UTU commented that they expect that, in the application of 
proposed Sec.  242.111(f) which addresses petitions to the waive motor 
vehicle check requirements, the Railroad Safety Board would require a 
notarized declaration, affidavit or some other form of sworn statement 
that no Sec.  242.111(n) incident has occurred within the preceding 36 
months as a condition precedent for granting the waiver petition. Based 
on that expectation, BLET/UTU suggested that such a requirement could 
be written directly into the rule, thereby relieving the Railroad 
Safety Board of the burden of having to handle these matters. FRA 
declines to adopt this suggestion as FRA cannot speak to what the 
Railroad Safety Board may require with respect to a waiver of certain 
requirements of Sec.  242.111. Moreover, it is beyond the scope of this 
rulemaking to remove a railroad's right to petition the Railroad Safety 
Board for a waiver of the FRA's regulatory requirements.
    AAR commented that a paragraph (o)(5) should be added to Sec.  
242.111 that would permit railroads to offer the assistance of a 
licensed counselor, social worker, or psychologist with expertise in 
the assessment of people with substance abuse disorders as an 
alternative to a SAP. According to AAR, the employee could use a SAP if 
the employee so desired, but the railroad

[[Page 69807]]

would be able to offer the employee a choice.
    Pursuant to Sec.  242.111 of the NPRM, railroad employees would be 
evaluated for substance abuse disorders by a person (i.e., a Drug and 
Alcohol Counselor who meets the credentialing and qualification 
requirements of a SAP) with more stringent credentialing and knowledge 
requirements than an EAP Counselor (currently used in part 240) or the 
type of person proposed by AAR. FRA believes that requiring more 
stringent credentialing and knowledge requirements will improve 
employee confidence in the evaluation process. Moreover, AAR's proposal 
could open up the possibility of harassment and intimidation of an 
employee who does not choose to be evaluated by a person who has less 
stringent credentialing and knowledge requirements than a SAP. 
Accordingly, FRA declines to adopt the paragraph proposed by AAR.
    AAR commented that it appears that FRA intends for DOT's 
requirement for direct observation of urine collection to apply to 
follow-up testing required as a result of motor vehicle alcohol and 
drug violations. AAR would agree with that position and suggested that 
FRA should make clear, both in this regulation and Part 240, that where 
follow-up testing is required by federal rules, all federal testing 
requirements, including direct observation, apply.
    It is not FRA's intention for DOT's requirement for direct 
observation of urine collection to apply to follow-up testing required 
as a result of motor vehicle alcohol and drug violations. A motor 
vehicle alcohol/drug incident requiring follow-up testing is not a 
Federal part 219 violation. As such, this incident does not meet the 
criteria justifying direct observation as provided by 49 CFR 40.67. 
Interested parties should note, however, that direct observation of 
urine collection for follow-up testing may be recommended by a Drug and 
Alcohol Counselor as necessary.

F. Substance Abuse

    BLET/UTU commented that the guidance provided in the NPRM 
concerning circumstances which may indicate the need for a SAP 
evaluation (i.e., ``declining job performance, extreme mood swings, 
[and] irregular attendance'') should be removed from the preamble. 
BLET/UTU assert that the circumstances identified are ambiguous and/or 
subjective concepts which could be exploited by the railroads. FRA 
acknowledges that there could be legitimate reasons why someone might 
exhibit some or all of the conditions identified in the preamble to the 
NPRM. However, those conditions, to the extent not immediately 
explicable, may also indicate a need for an evaluation. The purpose of 
the preamble language is not to require (and does not require) the 
railroads to order an evaluation anytime a listed condition is 
exhibited. Rather, FRA is simply providing guidance as to conditions 
that may, given the context, call for an evaluation under internal 
railroad policies. Moreover, FRA remains vigilant of harassment and 
intimidation and will take appropriate action where such conduct is 
discovered. Accordingly, the guidance in the NPRM has been carried over 
into the final rule.
    BLET/UTU commented that Sec.  242.115(e) of the NPRM contains 
several references to the certification consequence for an employee who 
``refuses or fails'' to provide a breath or body fluid sample. BLET/UTU 
disagrees that a failure to provide a breath or body fluid sample 
should trigger a revocation consequence. According to BLET/UTU, there 
are legitimate medical reasons why a person may be unable to provide a 
breath or body fluid sample citing 49 CFR 40, subpart I which provides 
the medical conditions under which an individual's failure to provide 
an sufficient sample is not deemed a refusal. In addition, BLET/UTU 
notes that subpart G of part 219 excuses a covered employee from 
compliance with the requirement to participate in random drug and 
alcohol testing ``in the case of a documented medical or family 
emergency.'' See 49 CFR 219.603 and 219.609. BLET/UTU understands the 
reference to part 219 in proposed section 242.115(e)(2) as 
incorporating the exceptions set forth in subpart G, and requests that 
the section-by-section analysis for the Final Rule clarify that their 
understanding is correct.
    FRA confirms that the exceptions in part 40, subpart I, and part 
219, subpart G, are included in this final rule's use of the word 
``refuses.'' In other words, there is no ``refusal'' if the failure to 
provide a sufficient sample was the result of a legitimate medical 
explanation under part 40 or if it was a random test and the employee 
had a documented medical or family emergency under part 219. Further, 
to clarify the issue, FRA has removed the words ``or fails'' in the 
final rule. Use of the word ``refuses'' rather than the phrase 
``refuses or fails'' more accurately tracks the provisions of parts 40 
and 219.

G. Vision and Hearing Acuity

    BLET/UTU commented that proposed Sec.  242.117(k) should be amended 
to address concerns that if it is discovered after an incident that a 
conductor's vision or hearing acuity had deteriorated below the 
standard set forth in the NPRM, that conductor, even though he or she 
may not have been aware of the deterioration, may be subjected to 
penalties or enforcement actions for failing to notify the railroad of 
the deterioration prior to the incident. FRA understands BLET/UTU's 
concern and believes it is obvious that a conductor could not have 
enforcement action taken against them for failing to notify the 
railroad of a condition he or she was not aware existed. That is why 
the preamble discussion of this section in the NPRM noted that the 
paragraph at issue ``would address the issue of how soon after learning 
of a deterioration * * * a conductor would have to notify the railroad 
of the deterioration.'' 75 FR 69166, 69176 (Nov. 10, 2010) (emphasis 
added). Because the proposed regulation would not permit enforcement 
action against a conductor for failing to notify a railroad when they 
are not aware that their vision or hearing acuity had deteriorated 
below the standard set forth in the regulation, FRA declines to adopt 
BLET/UTU's proposed amendment.

H. Training

    FRA solicited comments whether to require each railroad to provide 
for the continuing education of certified conductors in Sec.  
242.119(o). Since FRA did not receive any comments on this issue and 
because FRA sees no reason to change its approach, the proposed 
continuing education requirement contained in the NPRM (see 75 FR 
69166, 69176-69177, 69204-69205 (Nov. 10, 2010)) will be adopted in 
this final rule.
    NYMTA, SEPTA and AAR commented that the proposed language in Sec.  
242.119(d)(1) specifying the development of a task analysis should be 
removed. In the Working Group meetings and the preamble to the NPRM, 
FRA indicated that, to the extent possible and appropriate, it would 
conform the training requirements in part 242 to the training 
requirements being developed by the RSAC Training Standards and Plans 
Working Group. Because the RSAC recommendation from the Training 
Standards and Plans Working Group did not require a task analysis and 
FRA believes that the more comprehensive on-the-job training 
requirement included in the final rule (see section-by-section analysis 
of 242.119 below) adequately substitutes for a task analysis 
requirement, FRA has removed the proposed task analysis requirement 
from the final rule.

[[Page 69808]]

    NYMTA, SEPTA and AAR commented that FRA should remove paragraphs 
(l) and (m) in proposed Sec.  242.119 of the NPRM. Those paragraphs 
proposed to require railroads to perform initial instructional 
briefings with their conductors. In the Working Group meetings and the 
preamble to the NPRM, FRA indicated that, to the extent possible and 
appropriate, it would conform the training requirements in part 242 to 
the training requirements being developed by the RSAC Training 
Standards and Plans Working Group. Because the RSAC recommendation from 
the Training Standards and Plans Working Group did not require initial 
instructional briefings and FRA believes that the initial training 
program requirements included in the final rule (see section-by-section 
analysis of 242.119 below) adequately cover the requirements in the 
proposed paragraphs at issue, FRA has removed paragraphs (l) and (m) in 
proposed Sec.  242.119 of the NPRM from the final rule.
    BLET/UTU commented that Sec.  242.119(n), providing an exception to 
the initial briefing requirements of Sec.  242.119(l) and (m) should be 
deleted and replaced in its entirety with the following: ``Initial 
training shall be conducted in accordance with the requirements of Part 
243.'' Since FRA has not even issued a NPRM relating to part 243, FRA 
cannot use BLET/UTU's proposed language. However, since the RSAC 
Training Standards and Plans Working Group's recommendation to FRA does 
not require initial instructional briefings and FRA believes that the 
initial training program requirements included in the final rule (see 
section-by-section analysis of 242.119 below) adequately cover the 
substance of proposed paragraph (n), FRA has removed paragraph (n) in 
proposed Sec.  242.119 of the NPRM from the final rule.

I. Knowledge Testing

    SEPTA commented that proposed Sec.  242.121(c)(4)(v), which 
requires testing on use of job aids, should be deleted since this 
section includes requirements for an examination on operating rules and 
timetable instructions which would presumably demonstrate an 
individual's ability to use those documents. FRA believes it is an 
important safety measure to ensure that conductors be able to use any 
job aid, as defined by this part, that they may be given. Moreover, FRA 
does not believe that testing on operating rules and timetable 
instructions would necessarily demonstrate an individual's ability to 
use a job aid. Accordingly, FRA declines to delete Sec.  
242.121(c)(4)(v) as proposed in the NPRM.
    BLET/UTU commented that Sec.  242.121(c)(6) of the NPRM, which 
would have required knowledge testing to be 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, should be deleted. While one would expect a conductor to 
refer to his or her written rules and instructions whenever there is 
any uncertainty about what is required by a particular rule, 
instruction or practice, FRA believes that some rules are so 
fundamental to railroad safety, such as compliance with stop signals, 
that a conductor would be expected to know the rule without referring 
to reference materials. Accordingly, FRA declines to delete Sec.  
242.121(c)(6) as proposed in the NPRM.

J. Monitoring Operational Performance

    NYMTA seeks confirmation that: ``Training may be used as a 
substitute to satisfy the annual unannounced test for persons certified 
as passenger conductors pursuant to Sec.  242.107(b)(2) who do not 
require compliance with Part 218, subpart F, except under emergency 
circumstances.'' FRA confirms that training may be used as a substitute 
pursuant to Sec.  242.123(d)(2)(i).
    SEPTA and NYMTA commented that it is not feasible to test each of 
its certified conductors on one or more of the provisions in 49 CFR 
218.99-218.109 because the majority of passenger conductors do not have 
the opportunity to perform part 218 tasks on a regular basis. SEPTA 
recommends revising Sec.  242.123(d)(2)(i) to allow annual training to 
substitute for annual test for all passenger conductors. FRA declines 
to adopt NYMTA and SEPTA's comments in this final rule. FRA believes 
that Sec.  242.123(d)(2)(i) addresses SEPTA and NYMTA's concerns about 
passenger conductors who rarely engage in activities covered by part 
218, subpart F. FRA expects that most passenger conductors will never 
have to engage in activities covered by part 218, subpart F (which is 
what FRA means by the phrase ``compliance with part 218, subpart F'') 
except in emergency circumstances. Accordingly, FRA expects that most 
passenger conductors will be permitted to be given annual training in 
lieu of an unannounced compliance test.
    While not revising Sec.  242.123(d)(2)(i) based on the comment, FRA 
is revising the paragraph to clarify its intent. FRA intended for Sec.  
242.123(d)(2)(i) to state that the annual training exception only 
applies to part 218, subpart F, testing and that a railroad will still 
have to test on Sec.  217.9. The final rule has been revised 
accordingly.
    SEPTA and NYMTA commented that the time limit proposed in Sec.  
242.123(b)(1) and (f) for testing conductors who are returning to 
service should be extended from 30 days to 60 days. They contend that 
this will provide for increased quality observations thereby allowing 
the manager extra opportunities to observe the employee on different 
job assignments. As provided in the preamble to the NPRM, proposed 
paragraphs (b)(1) and (f) address the problem 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. Unlike part 
240, which requires railroads to seek a waiver from FRA's Safety Board 
for engineers that they are unable to annually test, the proposed 
paragraphs would not require railroads to give an unannounced 
compliance test to conductors who are not performing service requiring 
certification. Moreover, the railroads are given approximately a month 
to test those conductors returning to service.
    BLET/UTU commented that the rule should make it clear that the 
employee may work for the 30 days pending the unannounced test and 
thus, asserted that 242.123(f) should be amended as follows: ``However, 
when the certified conductor returns to a service that requires 
certification pursuant to this part, that certified conductor shall not 
be deemed ineligible but must be tested pursuant to this section within 
30 days of his or her return.'' (emphasis added). FRA declines to adopt 
the revisions suggested in the comment. Just as with locomotive 
engineers under part 240, a failure to conduct an unannounced test does 
not affect a conductor's certification (i.e., a railroad's failure to 
give the test to a person would not render that person ineligible to 
serve as a conductor). However, that does not mean the person would not 
be ineligible for another reason. For example, a conductor who is 
determined to have an active substance abuse disorder would be 
ineligible to serve as a conductor regardless of whether the conductor 
had received an unannounced compliance test within 30 days of his or 
her return to conductor service. Since the BLET/UTU's proposed revision 
could be read to prevent a railroad from deeming a person ineligible 
for any reason upon that person's return to conductor service, FRA 
declines to adopt the revision.

[[Page 69809]]

K. Time Limitations for Certification

    BLET/UTU commented that the conductor certification rules should be 
consistent with the potential medical standards that are being 
considered by FRA. It is FRA's expectation that where possible and 
appropriate, part 242 will be consistent with any potential medical 
standards rulemaking.

L. Certificate Components

    FRA solicited comments whether to require a conductor's certificate 
to include a physical description or photograph of the conductor. As 
stated in the NPRM, locomotive engineer certificates are required to 
include a physical description or photograph of the engineer pursuant 
to part 240. Moreover, FRA believes that this 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. Since FRA did not receive any 
comments on this issue and because FRA believes it will assist in 
monitoring railroad compliance with certification of conductors, the 
proposed physical description or photograph requirement in the NPRM 
will be adopted in this final rule.

M. Multiple Certifications

    In the NPRM, FRA solicited comments regarding whether to add a 
provision to Sec.  242.213 that would require railroads to make the 
determination as to which certification to revoke, where a person who 
is serving as both the conductor and the engineer is involved in a 
revocable event, based on the work the person was performing at the 
time the conduct occurred. FRA noted that such a determination would be 
similar to the one made under 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 
or what is traditionally considered a locomotive engineer's job 
function. BLET/UTU supported the addition of the provision, while AAR 
commented that a railroad should be able to revoke both certificates.
    FRA has included the additional provision in Sec.  242.213 of this 
final rule. FRA believes that the provision is necessary to bring 
additional continuity to the revocation process. Moreover, this type of 
determination is not new to the railroads as they already make similar 
determinations under part 225 and agreed to the inclusion of similar 
language in Sec.  242.215(f) of the NPRM. FRA does not believe it is 
necessary to revoke both certificates in such situations because a 
person certified as a conductor and an engineer will not be permitted 
to serve in either position if one of the certificates has been revoked 
for anything other than a part 218, subpart F, violation. With respect 
to part 218, subpart F violations, AAR's comment is not feasible since 
part 240 does not currently permit a person certified as an engineer to 
have his or her engineer certification revoked for a violation of part 
218, subpart F.
    Amtrak, SEPTA, and NYMTA commented on Sec.  242.213's proposed 
requirement that a locomotive engineer, including a RCO, who is 
operating without an assigned certified conductor must be certified as 
both a locomotive engineer and a conductor or be accompanied by a 
certified conductor who will attach to the crew ``in a manner similar 
to that of an independent assignment.'' Amtrak, SEPTA, and NYMTA's 
comments asserted that that requirement should be amended to provide 
exceptions for passenger railroads and train operations in certain 
areas and contexts.
    Amtrak, SEPTA, and NYMTA's comments concern the very definition of 
a conductor. That definition was the subject of lengthy discussions 
during the Working Group meetings and the recommendation of the Working 
Group was adopted in the NPRM. The definition is a fundamental element 
of the conductor certification regulation and FRA does not discern any 
safety-related reason to modify it. Moreover, an exception is built 
into the final rule which address some of the concerns raised in the 
comments. For example, if a 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 without the locomotive engineer 
being a certified conductor to the first location where the conductor 
can be replaced without incurring undue delay. Interested parties 
should also note that movement of a locomotive within the confines of a 
locomotive repair or servicing area or movement of a locomotive less 
than 100 feet for inspection or maintenance purposes would not require 
a certified conductor. Accordingly, Amtrak, SEPTA, and NYMTA's comments 
have not been adopted in this final rule.
    BLET/UTU commented that Sec.  242.213(h)(1) should be amended to 
make clear that when both an engineer and conductor certification are 
revoked for different lengths of time, the revocation periods shall run 
concurrently. BLET/UTU recommended amending Sec.  242.213(h)(1) to read 
as follows:

    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 the first 
month of that revocation period (i.e., the period of revocation for 
one violation of Sec.  242.403(e)(1)).

(emphasis added).
    FRA declines to adopt BLET/UTU's amendment. Section 242.213(h) and 
the chart in Appendix E already make clear that the period a person 
cannot not work as an engineer occurs during the period that the 
conductor certification is revoked (i.e., concurrently). Moreover, FRA 
cannot say that the person in the example given in Sec.  242.213(h)(1) 
would not be permitted to work as an engineer for the first month of 
the one year revocation period because the example does not provide the 
exact order of the revocations. Nonetheless, it is FRA's intent that 
the period a conductor could not work as an engineer would occur at the 
beginning of the revocation period. Thus, a person who holds a current 
conductor and locomotive engineer certificate and who has had his or 
her conductor certification revoked twice within 24 months--first for a 
violation of Sec.  242.403(e)(6) and second for a violation of Sec.  
242.403(e)(1)--would have his or her conductor certificate revoked for 
6 months, but would not be permitted to work as a locomotive engineer 
for the first month of that 6-month revocation period (i.e., the period 
of revocation for one violation of Sec.  242.403(e)(1)).

N. Territorial Qualification

    BLET/UTU commented that the provision proposed in Sec.  242.301(c) 
should be amended to state that a person who assists a conductor 
lacking territorial qualification on main track physical 
characteristics may not be an assigned crew member. In support of its 
comment, the BLET/UTU notes that under part 240, a pilot who assists a 
locomotive engineer lacking qualifications on the physical 
characteristics of a territory may not be an assigned crew member. As 
proposed in the NPRM, Sec.  242.301(c) would permit the locomotive 
engineer of a train, who is also certified as a conductor and

[[Page 69810]]

qualified on the physical characteristics of the territory, to assist 
the assigned conductor if the conductor lacks qualification on the 
physical characteristics. BLET/UTU asserts that could lead to a 
situation in which an engineer would be required to simultaneously 
perform the safety-critical responsibilities of two people, including 
some that may be performed in two different physical locations. AAR 
opposed BLET/UTU's amendment. According to AAR, the proposed amendment 
ignores the distinction between an engineer's duties and a conductor's 
duties and that for a move requiring the engineer to assist the 
conductor, the engineer can conduct a job safety briefing that provides 
the conductor with any information necessary to allow a safe move. In 
addition, AAR asserts that the lack of need for a non-crew member pilot 
is supported by the fact that job aids may be used on other than main 
track where it is not practicable to provide an assistant--``whether an 
engineer is providing necessary information pertaining to the territory 
or the conductor is using a job aid, the conductor will have sufficient 
information available to allow for safe operation of the train.''
    Based on the comments received and after further review of the 
issue, FRA has revised the requirements in Sec.  242.301 regarding when 
a conductor lacking territorial qualification on main track physical 
characteristics must be assisted by a person who meets those 
qualifications. The revisions, derived in large part from the pilot 
requirements for locomotive engineers in part 240, provide differing 
requirements depending on whether a conductor has never been qualified 
on main track physical characteristics of the territory over which he 
or she is to serve as a conductor or whether the conductor was 
previously qualified on main track physical characteristics of the 
territory over which he or she is to serve as a conductor, but whose 
qualification has expired.
    For a conductor who has never been qualified on main track physical 
characteristics of the territory over which he or she is to serve as a 
conductor, the final rule requires that the assistant must be a person 
who is certified as a conductor, meets the territorial qualification 
requirements for main track physical characteristics, and is not an 
assigned crew member. For a conductor who was previously qualified on 
main track physical characteristics of the territory over which he or 
she is to serve as a conductor, but whose qualification has expired, 
the Final Rule allows the assistant to be any person, including an 
assigned crewmember other than the locomotive engineer so long as 
serving as the assistant would not conflict with that crewmember's 
other safety sensitive duties, who meets the territorial qualification 
requirements for main track physical characteristics.
    In addition to the revisions as to when an assistant is required on 
main track, the Final Rule includes exceptions as to when an assistant 
is not required on main track. Those exceptions, which are derived from 
49 CFR 240.231(c), apply to movements on a section of main track with 
an average grade of less than 1% over 3 continuous miles and: (1) The 
maximum distance the locomotive or train will be operated does not 
exceed one mile; or (2) the maximum authorized speed for any operation 
on the track does not exceed 20 miles per hour; or (3) operations are 
conducted under operating rules that require every locomotive and train 
to proceed at a speed that permits stopping within one half the range 
of vision of the locomotive engineer.
    FRA believes that these changes will serve the interests of safety, 
address the concerns of the BLET/UTU, provide flexibility for the 
railroads in handling situations which require an assistant, and make 
this Final Rule more consistent with the main track pilot requirements 
in part 240.
    The BLET/UTU also commented that the proposed job aid provision in 
Sec.  242.301(d) should be mandatory and suggested that the last 
sentence of that section should read: ``Where not practicable, the 
conductor shall be provided an accurate job aid prior to entering the 
track.'' It was FRA's intent that the job aid provision of Sec.  
242.301(d) be mandatory and it has been revised accordingly in this 
final rule. FRA declines to adopt the additional suggested revisions as 
it believes that the phrase ``appropriate up-to-date'' used in the NPRM 
encompasses the suggested term ``accurate'' and the ``prior to entering 
the track'' language is unnecessary because a conductor who lacks 
territorial qualification on a segment of track will not be permitted 
to enter that track until they are, where practicable, assisted by a 
certified conductor who is qualified or provided an appropriate up-to-
date job aid.

O. Denial of Certification

    In the NPRM, FRA solicited comments on whether to add two 
provisions to Sec.  242.401. See 75 FR 69166, 69181 (Nov. 10, 2010). 
The first provision proposed to add the following sentence to paragraph 
(a) of that section: ``The railroad shall provide the conductor 
candidate with any written documents or records, including written 
statements, which support its pending denial decision.'' The second 
provision proposed to add 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.'' AAR commented that they oppose the first proposal 
because the supporting documentation could include privileged documents 
and documents that will be used in litigation.
    As stated in the NPRM, the intent of the first proposed provision 
is to 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 rule. Denial 
decisions are not accompanied by a hearing transcript and often contain 
little or no documentary record. The issue that FRA is trying to 
address is the situation where a conductor candidate does not get 
enough information regarding a denial decision to draft an appropriate 
rebuttal. FRA wants to avoid the delay and cost of a conductor 
candidate having to petition the Operating Crew Review Board (OCRB) to 
obtain the documents they need to rebut the denial decision. If 
conductor candidates are provided better information upfront, FRA 
expects that fewer petitions will be filed with the OCRB. FRA is not 
requiring documentation regarding employment or personal issues but 
rather is only interested in documents related to a failure to meet a 
requirement of part 242. For example, FRA would expect that locomotive 
download printouts, Form Bs, and/or transcripts of railroad 
communications that support the pending denial decision would be 
provided to the conductor candidate. Under this final rule, the OCRB 
already has the authority to order a railroad to produce those types of 
documents and FRA would not expect that they would be privileged. 
Accordingly, FRA is adopting the first proposal, with some 
modification, in this final rule.
    Since FRA did not receive any comments objecting to the second 
proposed provision and FRA sees no reason to change its approach, the 
second proposed provision will also be adopted in this final rule.
    In the NPRM, FRA also asked whether the intervening cause exception 
in proposed paragraph (d) of Sec.  242.401 should be modified to 
include

[[Page 69811]]

certification and recertification requirements in addition to the 
revocable events in Sec.  242.403. FRA provided an example of how 
paragraph (d) could be modified: ``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.'' 
See 75 FR 69166, 69181 (Nov. 10, 2010). AAR commented that they did not 
understand what FRA was trying to do and stated that FRA appeared to be 
contemplating that there could be an intervening event on which to base 
denial of certification independent of the events listed in Sec.  
242.403. BLET/UTU agreed that Sec.  242.401(d) should be modified as 
proposed by FRA.
    Contrary to AAR's comment, FRA is not suggesting that an 
intervening cause could serve as a basis for denial. Rather, FRA's 
proposal provides that an intervening cause could serve as a basis for 
not denying certification. At the May 12th Working Group meeting, AAR 
stated that they were opposed to extending the intervening cause 
provision to denials of certification. At that meeting, a member of the 
Working Group expressed concern that under the proposal, a conductor 
candidate who was not able to hold themselves up on the side of a car 
which in turn led to a violation of Sec.  242.403(e)(1) through (e)(11) 
could assert an intervening cause argument.
    Because the proposed modification appears to have caused confusion, 
could lead to unintended consequences, and merely clarifies FRA's 
existing authority, FRA has decided not to modify Sec.  242.401(d) as 
proposed in the NPRM. Rather, FRA has clarified paragraph (d) in this 
final rule to reflect more accurately what was said in the NPRM. 
Interested parties should note, however, that like the LERB under part 
240, the OCRB has the authority, if petitioned, to review the basis for 
denial of certification or recertification by the railroad to determine 
if substantial evidence supports the decision.

P. Criteria for Revoking Certification

    In the NPRM, FRA solicited comments 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 particular, FRA asked whether it should use its other 
enforcement tools (e.g., monetary civil penalty for individual 
liability, disqualification, etc.) instead of mandating revocation and 
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. AAR and SEPTA commented that a violation of part 220 
should constitute a revocable event and AAR stated that it would expect 
that FRA would provide assistance and support, as necessary, including 
the invocation of its subpoena power when appropriate.
    BLET/UTU commented that they are opposed to including a violation 
of part 220 as a revocable event under part 240 and 242 because: FRA's 
data shows that cell phone violations are qualitatively different than 
a violation of the cardinal sins; there is no indication that there is 
a pattern of cell phone violations requiring the imposition of 
revocation; there are numerous questions regarding FRA's data are 
unanswered; and FRA currently has sufficient tools at its disposal 
(e.g., subpoenas, individual liability, etc.) to detect and punish 
violations. Alternatively, BLET/UTU commented that if FRA makes it a 
revocable offense, then the regulation should state that revocation is 
appropriate only when an electronic device is improperly used while 
performing safety related duties and the use contributed to an event 
identified in Sec.  219.201.
    At this time, FRA had decided not to include part 220 violations as 
revocable events in this final rule. FRA already has a new regulation, 
49 CFR part 220, to address cell phone use and believes that time 
should be allowed to study what impact that regulation has on the 
improper use of electronic devices on the railroads. In addition, FRA 
has numerous enforcement tools against individuals available to address 
misuse of electronic devices--warning letters, civil penalties, 
disqualifications, etc. Moreover, requiring revocation for part 220 
violations would be incredibly difficult for railroads to enforce and 
apply. FRA cannot legally use its subpoena powers to gather information 
for a railroad which is what AAR expects to happen. Therefore, FRA 
expects that most cases would simply be one person's statement versus 
another.
    Railroads appear to have rules and policies in place to address the 
misuse of electronic devices. A survey of Class I railroads indicates 
that they generally have rules and policies in effect that are more 
comprehensive than the federal minimums contained in part 220. 
Discipline for non-compliance is typically governed by the specific 
nature of the offense and the discipline record of the employee and 
ranges from coaching or counseling to dismissal.
    Although FRA is not including part 220 violations as revocable 
events, FRA will continue to monitor the use of electronic devices and, 
if necessary, will consider amending the regulations to include misuse 
of such as a revocable event.
    Moreover, FRA expects to use its disqualification authority under 
part 211 in instances where improper use of electronic devices is found 
under part 220. FRA will be taking a zero tolerance view of such 
violations and, in addition to its civil penalty authority against a 
railroad, will also utilize its disqualification authority against an 
individual employee to the extent practicable in any such instance of 
misuse by an employee.
    NYMTA and SEPTA commented that a conductor who is called to perform 
the duty of a train crew member other than that of conductor or 
locomotive engineer should have his or her certification revoked based 
on actions taken or not taken while performing that duty. That 
suggestion, however, runs counter to Sec.  242.403(c)(3), and what was 
agreed to by the Working Group. Paragraph (c)(3) of section 242.403 
states that 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.'' FRA 
believes that the paragraph explains the status quo and conforms to the 
approach taken in part 240 for locomotive engineers. See 240.117(c)(3). 
FRA also expects that the paragraph will help keep down the number of 
railroad hearings and petitions to FRA for review pursuant to the 
dispute resolution process. Accordingly, FRA has adopted the paragraph 
in this final rule.
    BLET/UTU commented that the explanation of the phrase ``appropriate 
action'' in Sec.  242.403(c)(2) and 242.403(e)(2)(i) should be amended 
to state that ``the duty is met'' (rather than ``the duty may be met'') 
by warning the conductor or engineer of a potential or foreseeable 
violation. FRA declines to adopt that change due to the fact that 
``appropriate action'' depends on the situation. For example, if a 
conductor provides a warning with plenty of distance, then the 
conductor has likely met his or her duty. However, the conductor of a 
train who provides a warning for the first time one second

[[Page 69812]]

before the train passes a stop signal that the conductor was aware of 3 
miles back, likely has not met his or her duty.

Q. Periods of Ineligibility

    NYMTA and SEPTA commented regarding proposed Sec.  242.405(a)(3)(i) 
which provides that 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 if another revocable 
event has not occurred within the previous 12 months. NYMTA commented 
that FRA should leave the ability to assess the appropriate discipline 
for speeding violations on other-than-main-track with the controlling 
railroad. SEPTA commented that proposed Sec.  242.405(a)(3)(i) should 
be eliminated because all violations should be treated consistently 
regardless of where they occur.
    As explained in the NPRM, Sec.  242.405(a)(3)(i) recognizes that 
some violations which occur on other than main track where slower 
speeds are in effect are likely to pose less of a danger to safety than 
violations that occur on main track and thus, a reduced period of 
revocation is warranted. Nothing in the comments submitted has altered 
FRA's view on this and therefore, FRA has adopted the provision as 
proposed in this final rule.
    SEPTA commented that the title of the Sec.  242.405 should be 
changed to ``Periods of Revocation or Denial of Certification'' 
consistent with their comment regarding the definition of 
``ineligible'' and ``ineligibility.'' FRA declines to adopt SEPTA's 
comment for the reasons it declined to adopt their comment regarding 
the definition of ``ineligible'' and ``ineligibility.'' See the 
discussion of the definition of ``ineligible'' and ``ineligibility'' in 
the General Summary of the Comments to this final rule.
    In its comments, ASLRRA recommended an alternative procedure for 
Class III railroads to address a situation where disqualification of a 
conductor would result in a disruption to service because there is no 
other available certified conductor as a replacement. In that 
situation, ASLRRA suggested that a decertified conductor on a Class III 
railroad, who had never previously been decertified, would be required 
to undergo remedial training and testing, but would be allowed to 
continue functioning for that railroad as a conductor under specific 
restrictions to match the event triggering the decertification. FRA 
declines to adopt the alternative procedure for Class III railroads 
because: (1) The procedure would result in disparate treatment of 
conductors across the three classes of railroads (i.e., a conductor for 
a Class I railroad would not be permitted to serve as a conductor 
following a decertifiable event whereas a conductor on a Class III 
railroad, who was involved in the same type of decertifiable event, may 
be permitted to serve as a conductor); (2) there is no less a safety 
risk if a person is a conductor for a Class III railroad as opposed to 
a conductor for a Class I or Class II railroad; and (3) the procedure 
appears to leave open the possibility that a conductor involved in a 
revocable event on a Class III railroad could immediately go to work 
for a Class I railroad due to the fact that restrictions were placed on 
the conductor's certificate rather than having the certificate revoked.

R. Process for Revoking Certification

    FRA solicited comments regarding its understanding of proposed 
Sec.  242.407(b)(4) in the NPRM. Pursuant to that proposed section, a 
railroad would, among other things, provide a conductor subject to a 
railroad revocation hearing with a list of witnesses the railroad will 
present at the hearing. The NPRM noted that 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), the railroad would not 
have to call every witness it puts on the list. See 75 FR 69166, 69184 
(Nov. 10, 2010). Since FRA did not receive any comments regarding its 
understanding and FRA has not discovered anything to change its 
understanding, FRA adopts its understanding as part of the final rule.
    BLET/UTU commented that the phrase ``just prior'' in proposed Sec.  
242.407(b)(4) is ambiguous and should be changed to a definitive time 
(i.e., 48 hours) and that telephonic testimony should be limited to 
general subject matter testimony. FRA acknowledges ``just prior'' is 
somewhat ambiguous but railroads need some flexibility with the timing 
since railroads do not always have a copy of the written information 
nor do they know exactly who will serve as a witness 48 hours in 
advance. Although FRA declines to adopt the comment, FRA notes that a 
party to a railroad hearing may ask for a recess if they do not believe 
they have had sufficient time to prepare their case. Moreover, the 
OCRB, if petitioned, can consider the time a party had to prepare his 
or her defense in determining whether an appropriate defense was 
possible.
    BLET/UTU's comment regarding telephonic testimony would narrow the 
scope of proposed Sec.  242.407(b)(4) in a manner not agreed to by the 
Working Group or intended by FRA. The intent of that section as 
proposed in the NPRM was to allow a railroad to telephonically examine 
an employee of the railroad whose statements, regardless of subject 
matter, formed the information that the railroad would be presenting at 
the hearing if it is impracticable to provide the employee at the 
hearing. The section was narrowly tailored to not only acknowledge that 
it is important for a conductor at a railroad hearing to be provided 
with the information that the railroad will present prior to the 
convening of the hearing but also to acknowledge that in some cases it 
is impractical to provide a witness at the hearing. To retain that 
balance, FRA is adopting Sec.  242.407(b)(4) as proposed in the NPRM.
    BLET/UTU commented that the examples provided in the preamble to 
illustrate the term ``minimal nature'' as used in proposed Sec.  
242.407(i)(2) should be modified because they are not realistic. 
Although FRA declines to modify the examples provided in the NPRM, 
additional examples have been added to the section-by-section analysis 
of Sec.  242.407 in this final rule.
    FRA solicited comments on whether a railroad decision issued 
pursuant to proposed Sec.  242.407(c) should include the following: (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. AAR commented that there is no need for the 
third proposal. According to AAR, at least one railroad's labor 
agreement provides that a specific rule violation shall not be cited in 
the initial charge letter and many other railroads have long-standing 
practices that are similar. A comment from a Working Group member also 
indicated that the rule cited would have to be changed if evidence 
developed at a railroad hearing required it. Thus, in that instance, 
the railroad would need the flexibility to cite a rule not cited in the 
written notice of suspension. AAR also commented that the fourth 
proposal is unnecessary.
    As stated in the preamble to the NPRM, FRA proposed the language to

[[Page 69813]]

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 OCRB to 
have a more detailed understanding of the case if asked to review the 
revocation decision pursuant to subpart E of this rule. Moreover, the 
service proposal would help eliminate disputes as to when the conductor 
was notified of the railroad decision. FRA understands that a railroad 
may, under certain circumstances, need to change the rule being cited. 
Accordingly, FRA has adopted the first, second and fourth but not the 
third proposal in this final rule. However, FRA is concerned about 
conductors preparing their defense for the railroad hearing based on 
the rule cited in the written notice of suspension only to have the 
railroad change the rule cited during the hearing or in the decision. 
Railroads must take actions to avoid this and should grant a recess, if 
appropriate, to allow a conductor to prepare a defense to the violation 
being cited. Railroads should also note that the OCRB may grant a 
petition on review if the OCRB finds that citing a different violation 
caused the petitioner substantial harm.
    BLET/UTU commented that FRA must provide immunity from civil 
enforcement for a railroad that makes a good faith determination 
pursuant to Sec.  242.407(k) that a conductor's certification should 
not be suspended. FRA understands BLET/UTU concerns and has 
strengthened the preamble language in this final rule to address those 
concerns.

S. Review Board

    BLET/UTU commented that the OCRB should be comprised of at least 
three members and that one of the members should be an attorney. As 
stated in the NPRM, the creation of the OCRB will require issuance of 
an internal FRA order. The make-up of the OCRB will be determined in 
that Order. However, FRA expects that the OCRB will mirror the make-up 
of the Locomotive Engineer Review Board (LERB) which is currently used 
by FRA to adjudicate disputes under part 240. FRA expects that a FRA 
attorney will serve as counsel to the OCRB just as they do to the LERB.

T. Appeals Process

    FRA solicited comments whether to add a provision to proposed Sec.  
242.503(b) providing 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.'' See 75 FR 
69166, 69185 (Nov. 10, 2010). AAR supported the provision. BLET/UTU 
commented that FRA should add a requirement for the railroad to notify 
conductors in writing of their right to acquire the litigation package 
from the laboratories, MRO, and other service agents and that it be 
disclosed to the conductor on the record of revocation hearings 
conducted in compliance with Sec.  242.407(b)(4) for charges of 
violating Sec.  242.403(e)(12). BLET/UTU suggested that, at a minimum, 
the notification should contain the exact language contained in 49 CFR 
40.329.
    Because the OCRB may not need the information listed in 49 CFR 
40.329 in all cases and because there may be some cost associated with 
obtaining the information, FRA is adopting a modified version of the 
proposal for this final rule which clarifies that petitioners will be 
responsible for obtaining the information listed in 49 CFR 40.329 if 
requested by the OCRB. Thus, it will not be mandatory for a petitioner 
to submit the information listed in 49 CFR 40.329 to the OCRB in all 
cases involving a violation of Sec.  242.403(e)(12) and FRA expects 
that, in those cases where the OCRB does want information listed in 49 
CFR 40.329, the OCRB will explain to the petitioner what information it 
is looking to obtain from the petitioner and how the petitioner can get 
it. Consequently, FRA declines to adopt BLET/UTU's additional 
requirement.
    BLET/UTU submitted numerous comments regarding changes they wanted 
to see made to the appeals process contained in proposed Sec. Sec.  
242.501, 503, 505, 507, 509 and 511. According to BLET/UTU the changes 
``will create a more expeditious process to resolve disputes that may 
arise from the conductor certification rules.'' The suggested changes 
include eliminating the opportunity for parties to appeal FRA decisions 
to the Administrator, incorporating the Administrative Hearing Officer 
level of appeal into the OCRB process, requiring the OCRB to grant a 
decision if any procedural error by the railroad is shown, adding an 
attorney as a member to the OCRB and making the OCRB decision final 
agency action.
    FRA declines to adopt BLET/UTU's proposed revisions to the appeals 
process. The proposed appeals process was thoroughly discussed during 
the Working Group meetings and most of BLET/UTU's suggestions were 
rejected at those meetings. As explained to the Working Group, due 
process requirements and issues concerning trials de novo necessitate 
that FRA retain the OCRB and AHO as distinct levels of review.
    Contrary to BLET/UTU's claims, FRA believes that BLET/UTU's 
suggested revisions would actually increase the amount of time and cost 
it takes to resolve the average case on appeal to the FRA. Under the 
BLET/UTU proposal, FRA expects a significant increase in the number of 
cases/issues handled by the AHO and the federal courts. For example, 
under the BLET/UTU proposal, it appears that a decision by the OCRB to 
deny a petition as untimely would be appealed to Federal court as that 
decision would constitute final agency action and the opportunity to 
appeal the decision to the Administrator, as provided for in the NPRM, 
would be eliminated. As a result, cases would take much longer to 
resolve and would involve increased costs for all parties involved. 
Moreover, the BLET/UTU proposal advocates for extending the time for 
filing a petition of review with the FRA from 4 months as provided in 
the NPRM to 6 months. That extension would only add to the time 
required for a case to be resolved by FRA following a railroad's 
decision to deny or revoke certification.
    Although FRA is not adopting BLET/UTU's proposals, FRA is taking 
steps to make the appeals process more efficient. Over the past two 
years, the average length of time for the AHO to render a decision in a 
locomotive engineer case under part 240 has dropped by 6 months due in 
part to the fact that the AHO is no longer allowing parties to hold 
cases in abeyance. FRA expects that the AHO will not hold conductor 
cases in abeyance thereby eliminating one of the main obstacles in 
achieving faster case processing times. In addition, FRA has revised 
the requirements proposed in the NPRM to require petitions to be 
submitted to the Docket Clerk of DOT rather than FRA's Docket Clerk. 
With that change, the process for submitting petitions to the OCRB will 
parallel the process for requesting an administrative hearing under 
part 240 and Sec.  242.507. FRA believes this change will make the 
process more efficient as DOT Dockets is better equipped to process, 
scan, and store these types of filings.

[[Page 69814]]

U. Civil Penalty Schedule

    In the NPRM, FRA noted that Appendix A to the final rule would 
contain a penalty schedule similar to that FRA has issued for all of 
its existing rules and that such schedules are statements of policy and 
therefore not subject to notice and comment requirements. Nevertheless, 
interested parties were welcomed to submit their views on what 
penalties may be appropriate. BLET/UTU submitted comments which were 
considered in developing the penalty schedule found in Appendix A to 
this final rule.

V. Procedures for Submission of Programs

    FRA solicited comments whether to require each railroad to provide 
its program submission required under Sec.  242.101 and 242.103 
electronically. Since FRA did not receive any comments on this issue 
and because FRA believes that such an option will allow FRA to review 
submissions more efficiently and eliminate the need to store hardcopies 
of the numerous submissions, FRA has included such an option in 
Appendix B to this final rule.

W. Vision Color Tests

    In the NPRM, FRA solicited comments regarding which vision color 
tests should be included in Appendix D to this rule. Since FRA did not 
receive any comments on this issue and because any changes to the list 
of vision color tests would appear to fall within the purview of the 
medical standards working group, the proposed vision color tests 
contained in the NPRM will be adopted in this final rule.

V. Section-by-Section Analysis

Subpart A--General

    Subpart A of the rule contains the general provisions of the rule, 
including a formal statement of the rule's purpose and scope. The 
subpart also provides that this rule does not constrain a railroad's 
ability to prescribe additional or more stringent requirements for its 
conductors that are not inconsistent with this rule.
Section 242.1 Purpose and Scope
    This section, derived from 49 CFR 240.1, 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 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.
    Despite the fact that a person may have a job classification title 
other than that of conductor, the conductor certification requirements 
of this rule apply to that person if he or she meets the definition of 
conductor. The definition of ``conductor'' and an explanation of who is 
covered by the definition is discussed in more detail in the section 
analysis for Sec.  242.7 below.
Section 242.3 Application and Responsibility for Compliance
    This section is derived from 49 CFR 240.3. The section provides 
that the rule applies to all railroads with three exclusions. The first 
two exclusions address several types of operations that occur on tracks 
that are not part of the general railroad system. These exclusions 
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. These exclusions also address 
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. In other regulations, FRA did not 
define plant railroad because it was assumed that FRA's jurisdictional 
policy statement provided sufficient clarification. In 2010, FRA became 
aware of certain operations that called themselves plant railroads but 
that were exceeding the limitations required to maintain plant railroad 
status in accordance with FRA's policy statement. FRA would like to 
avoid any confusion as to what it means to be a plant railroad by 
defining the term in this final rule, thereby saving interested persons 
the effort necessary to cross-reference FRA's jurisdictional policy 
statement. A further discussion of what is meant by the term ``plant 
railroad'' is offered in the section-by-section analysis for section 
242.7.
    FRA also excludes ``tourist, scenic, historic, and excursion 
operations that are not part of the general railroad system of 
transportation'' (as defined in Sec.  242.7) from compliance with this 
rule. In section 242.7, FRA defines these operations as ``a tourist, 
scenic, historic, or excursion operation conducted only on track used 
exclusively for that purpose (i.e., there is no freight, intercity 
passenger, or commuter passenger railroad operation on the track).'' 
Excluding these types of operations from this rule is consistent with 
FRA's jurisdictional policy that already excludes these operations from 
all but a limited number of Federal safety laws, regulations, and 
orders.
    The third 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 rule apply to those rapid transit type operations. 
This rule is not intended to have any effect on FRA's jurisdiction. 
Since this 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 rule.
Section 242.5 Effect and Construction
    This section addresses several legal issues. Paragraph (a) 
addresses the relationship of this 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 rule.
    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 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. 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

[[Page 69815]]

locomotive engineer during the period of revocation.
    Paragraph (d) of this section addresses employee rights. The intent 
of the 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 employs 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 
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 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 proposed, 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 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 
definition mandates that only one person can be in charge of the train 
or yard crew and that person is deemed the conductor for purposes of 
this regulation only. Moreover, in some circumstances, a locomotive 
engineer, including a remote control operator, will be required to be 
certified as both a locomotive engineer under 49 CFR part 240 and as a 
conductor under this rule. See 49 CFR 242.213(d). 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 rule.
Drug and Alcohol Counselor
    The term ``drug and alcohol counselor'' means a person who meets 
the credentialing and qualification requirements of a ``Substance Abuse 
Professional'' (SAP), as provided in 49 CFR part 40.
Ineligible or Ineligibility
    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 will 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 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 rule. A job aid 
consists of information that can be obtained from a variety of sources, 
including but not limited to, 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. While each 
railroad will have flexibility in how it conveys the information in a 
job aid to a conductor, the job aid will, 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 Sec.  242.121(c)(4)(v), each railroad will be required 
to test conductors and conductor candidates on the use of any job aid 
that a railroad could provide a conductor. Section 242.301(d) describes 
the conditions under which a railroad shall provide a conductor with a 
job aid.
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 may 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. 
Under this rule, the medical examiner owes 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

[[Page 69816]]

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 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 workplace, i.e., the employee 
learns the job while doing the job.
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 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.
Plant Railroad
    FRA includes a definition of plant railroad in this final rule to 
aid in the understanding of the application of this part pursuant to 
Sec.  242.3. The definition coincides with FRA's longstanding 
explanation of how the agency will not exercise its jurisdiction over a 
plant railroad that does not operate on the general system and does not 
move cars for other entities. See 49 CFR 209, app. A.
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 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 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 update 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 is 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).
Railroad Rolling Stock
    The term ``railroad rolling stock'' means on-track equipment that 
is either a ``railroad freight car'' (as defined in Sec.  215.5 of this 
chapter) or a ``passenger car'' (as defined in Sec.  238.5 of this 
chapter). The term matches the definition of ``railroad rolling stock'' 
in the NPRM and part 240 except that the word ``railroad'' has been 
added to the term ``freight car'' to mirror the defined term 
(``railroad freight car'') in Sec.  215.5 of this chapter.
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 
rule as it does in part 240. FRA defines the term in this rule to avoid 
any confusion as to who this rule is referring to when it references a 
remote control operator.
Substance Abuse Disorder \3\
    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. FRA intends for this definition to 
include drug and alcohol users who engage in abuse patterns which 
result in ongoing safety risks and violations of FRA drug and alcohol 
prohibitions. These types of substance abusers may demonstrate 
compulsive, excessive, or self-damaging use of drugs or alcohol such as 
may manifest as a DUI or DWI, a violation of FRA drug or alcohol 
prohibitions, substance-related accidents or incidents, or substance-
related behavior which has resulted in a significant safety breach 
while under the influence or impaired (including hangover effect). 
Often these patterns of abuse may eventually result in dependence, 
physiological injury, or psychological harm, but are not necessarily 
defined by a diagnosis offered by a health care professional.
---------------------------------------------------------------------------

    \3\ The section-by-section analysis of the term ``substance 
abuse disorder'' in the NPRM has been revised in this final rule to 
reflect more accurately the approach taken by FRA to substance abuse 
disorders in parts 219 and 240.
---------------------------------------------------------------------------

    A substance abuse disorder is ``active'' within the meaning of this 
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 
aftercare as directed by a Substance Abuse Professional (SAP) or Drug 
and Alcohol Counselor (DAC).
    The definition of substance abuse disorder in this 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 or DAC. 
Since SAPs and DACs often have more stringent credential, knowledge, 
training, and

[[Page 69817]]

continuing education requirements relating to substance abuse than 
EAPs, SAPs and DACs 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 rule revises that phrase to read ``is currently using 
alcohol or other drugs.'' FRA made that revision to clarify its intent 
that a person with an active substance abuse disorder could be using 
alcohol or other drugs.
    The 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 substance abuse or chemical dependency which requires intervention 
and/or treatment as determined by an appropriate professional. FRA's 
intent is that a person with uncontrolled use of alcohol or drugs is 
not a suitable candidate for the highly sensitive duties entrusted to a 
conductor.
    The definition explains that the disorder is 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), has failed 
to successfully participate in aftercare as directed by a SAP or DAC, 
or has failed to successfully complete the assigned course of 
education, counseling, or 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. 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) means a person who 
meets the qualifications of a SAP, as provided in 49 CFR part 40. To 
avoid interfering with the established rules and definitions in DOT's 
drug and alcohol regulations, the reference to a duty found in the 
NPRM's definition of SAP has been deleted.
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 rule, a person, with 
certain exceptions, could not serve as a conductor unless the person 
was certified and possessed the necessary territorial qualifications 
for the applicable territory.
Tourist, Scenic, Historic, or Excursion Operations That Are Not Part of 
the General Railroad System of Transportation
    The final rule offers a definition for the phrase ``tourist, 
scenic, historic, or excursion operations that are not part of the 
general railroad system of transportation'' in order to explain the 
plain meaning of that phrase as used in the section. See Sec.  242.3. 
The phrase means a tourist, scenic, historic, or excursion operation 
conducted only on track used exclusively for that purpose (i.e., there 
is no freight, intercity passenger, or commuter passenger railroad 
operation on the track). If there is any freight, intercity passenger, 
or commuter passenger railroad operation on the track, the track would 
be considered part of the general system. See 49 CFR part 209, app. A. 
In the analysis for the applicability section, there is an explanation 
for why FRA is proposing not to exercise its jurisdiction over these 
types of railroad operations.
Section 242.9 Waivers
    This section tracks the regulatory language in 49 CFR 240.9 and 
provides the requirements for a person seeking a waiver of any section 
of this rule.
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 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 rule. Based on the RSIA's 
requirement for ``certification'' of conductors and FRA's experience 
with certification of locomotive engineers, this rulemaking adopts 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 
rule affords railroads considerable discretion in the daily 
administration of their certification programs.
Section 242.101 Certification Program Required
    This section requires railroads to have a written program composed 
of six elements, each of which comports with specific provisions 
relating to that element. The effective date of the final rule is 
January 1, 2012. The rest of the dates provided in this rule (e.g., 
dates by which each railroad must designate its eligible conductors in 
Sec.  242.105) are based on that effective date.
Section 242.103 Approval of Design of Individual Railroad Programs by 
FRA
    This section requires each railroad to submit its certification 
program to FRA for approval in accordance with the schedule provided in 
the final rule. The schedule for submissions in paragraph (a) requires 
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. The format and 
contents of the submission are discussed at length in appendix B to 
this rule.
    Unlike part 240, this rule requires 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, will determine whether a 
railroad's submission is approved, FRA

[[Page 69818]]

expects that comments will be useful in determining whether the 
railroad's program conforms to the criteria set forth in this rule.
    This section also requires each railroad to indicate how it intends 
to employ 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 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 requires 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.
    Paragraph (g)(2) of this section, which has been modified from the 
NPRM, provides that if the Administrator informs a railroad of 
deficiencies in its program 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 so long as the railroad has 
complied with the requirements for resubmitting a program that was 
deemed deficient.
Section 242.105 Schedule for Implementation
    This section contains the timetable for implementation of the rule. 
Paragraphs (a) and (b) of this section 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 potentially 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 requires each railroad to make formal 
determinations concerning those employees it has designated as 
conductors within 36 months of the date for compliance by its class of 
railroad. Pursuant to this paragraph, a designated conductor may 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 designated 
conductor can no longer serve as a conductor unless he or she 
successfully completes the tests and evaluations provided in subpart B 
of this rule (i.e., the full certification process). Railroads should 
note that they may not test and evaluate a designated conductor or 
conductor candidate under subpart B of this rule until they have a 
certification program approved by the FRA pursuant to Sec.  242.103.
    In order to test and evaluate all of its designated conductors by 
the end of the 36-month period, a large railroad will 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 designation 
provision, would permit a railroad to test and evaluate one third of 
its designated 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 designated 
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 designated conductor who was going to 
retire before the end of the 36-month designation period. To address 
those concerns, paragraph (c)(1) provides that a designated 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 
rule, may request, in writing, that the railroad not perform the full 
certification process on that designated 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 
designation period. Thus, paragraphs (c)(1) and (c)(2) allow designated 
conductors to serve as conductors for the full 36-month designation 
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 
designation period 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 
designated conductors on a railroad properly request that the railroad 
wait to recertify them at the end of the designation period, but then 
do not, in fact, retire by the expiration of the 36-month designation 
period, the railroad might not be able to certify everyone in time and 
would risk violating this final rule. In recognition of that risk and 
the need to give the railroads some flexibility to comply with the 
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 designated conductor 
who is also subject to recertification under part 240 may not make a 
request under paragraph (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 designated 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 may certify or recertify a person as a conductor and no person 
may serve as a conductor unless that person had been tested and 
evaluated in accordance with the procedures provided in subpart B of 
the rule and issued a certificate. Interested parties should note that 
the

[[Page 69819]]

month provided in paragraph (e) has changed from September 2012 (as 
provided in the NPRM) to October 2012 so that Class III railroads would 
have approximately the same amount of time (i.e., two months) as Class 
I, II, and commuter railroads between submission of the program to FRA 
and the time for having an approved program in place.
Section 242.107 Types of Service
    This section creates two types of conductor service: conductor and 
passenger conductor. As indicated in the definition section of this 
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), 
prohibits 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 rule prohibits 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 rule prohibits the practice of reclassification, it does 
not prevent the railroads from pursuing other measures to ensure the 
safe performance of conductor service. For example, the rule does 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) permits a railroad to place restrictions on a 
certificate, any restrictions would be applied and reviewed in 
accordance with internal railroad rules, procedures and processes. Part 
242 does 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 determinations required for evaluating a 
candidate's eligibility to be certified or recertified. The reference 
to Sec.  242.403 in paragraph (a) of this section is to ensure that 
railroads determine that a candidate is not currently ineligible to 
hold a certification due to a revocation addressed in subpart E of this 
rule.
    Paragraph (b)(1) has been modified to clarify the intent of that 
section. FRA deleted references to ``railroad employment'' records and 
``railroad safety conduct'' since the paragraph also applies to non-
railroad conduct such as motor vehicle operation. Interested parties 
should note that despite the provisions in Sec. Sec.  242.111 and 
242.115 requiring a review of safety conduct information from the 
preceding 5 years, paragraph (b)(1) of this section does not permit a 
railroad to consider information concerning safety conduct that 
occurred prior to the effective date of this final rule. Although that 
paragraph may result in an evaluation of less than 5-years's worth of 
information for some conductors, it is included in part 242 for the 
reasons the provision was also included in the part 240 rulemaking. See 
56 FR 28228, 28242 (June 19, 1991).
    Since motor vehicle data is required to be sent to the railroad 
rather than to the candidate, paragraphs (d) and (e) of this section 
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 will avoid the 
potential for reliance on records that were somehow erroneously 
associated with a candidate.
    Paragraph (g) of this section provides flexibility to railroads and 
conductors or conductor candidates in obtaining the information 
required by Sec. Sec.  242.111 and 242.113. For example, paragraph (g) 
would permit a conductor and a railroad to enter into an agreement 
allowing a railroad to request the conductor's service record from a 
previous employing railroad pursuant to Sec.  242.113(c).
Section 242.111 Prior Safety Conduct as Motor Vehicle Operator
    This section, derived from 49 CFR 240.111 and 240.115, provides the 
requirements and procedures that a railroad must 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 must 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 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 part 1327), railroads are prohibited from running NDR 
checks or requesting NDR information from individuals seeking 
employment as certified conductors.
    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 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 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 is 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 final rule.
    Paragraph (l) of this section requires 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 motor vehicle driver's license. The 
paragraph also provides that, for purposes of conductor certification, 
a railroad cannot 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.

[[Page 69820]]

    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 criminal justice 
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 rule will have the practical effect of 
ensuring that a required referral to a DAC under paragraph (o) of this 
section would not occur prematurely. Interested parties should note 
however, that paragraph (l) does not prevent an eligible person from 
choosing to voluntarily self-refer pursuant to Sec.  242.115(d)(3). Nor 
does it prevent the railroad from referring the person for an 
evaluation under an internal railroad policy if other information 
exists that identifies the person as possibly having a substance abuse 
disorder. Further, the restriction applies only to actions taken 
against a person's certificate and does not effect on a person's right 
to be employed by that railroad.
    As mentioned above, paragraph (o) of this section provides that if 
such a motor vehicle incident described in paragraph (n) is identified, 
the railroad is required to provide the data to its DAC 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, if recommended by a DAC, 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. Interested parties should note that 
any testing performed as a result of a DAC's recommendation under 
paragraph (o) will be done under company authority, not Federal, 
although the testing will still be required to comply with the 
``technical standards'' of part 219, subpart H, and part 40.
    Paragraph (o)(5) has been added to the final rule to clarify that a 
failure to cooperate in the DAC evaluation will result in the person 
being ineligible to perform as a conductor until such time as the 
person cooperates in the evaluation.
Section 242.113 Prior Safety Conduct as an Employee of a Different 
Railroad
    This section of the rule, which is derived from 49 CFR 240.113 and 
240.205, provides 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 section, which is derived from 49 CFR 240.119 and 240.205, 
addresses 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 an evaluation under internal railroad policies.
    FRA acknowledges that there could be legitimate reasons why someone 
might exhibit some or all of the conditions identified above. However, 
those conditions, to the extent not immediately explicable, may also 
indicate a need for an evaluation. The purpose of identifying 
conditions is not to require (and does not require) the railroads to 
order an evaluation anytime a listed condition is exhibited. Rather, 
FRA is simply providing guidance as to conditions that may, given the 
context, call for an evaluation under internal railroad policies. 
Moreover, FRA remains vigilant of harassment and intimidation and will 
take appropriate action where such conduct is discovered.
    Paragraph (a) requires each railroad to address both dimensions of 
this issue in its program. Paragraphs (b) and (c) require each railroad 
to determine that a person initially certifying or a conductor 
recertifying meets the eligibility requirements of this section. 
Additionally, each railroad is required to retain the documents used to 
make that determination.
    Paragraph (d) provides that a person with an active substance abuse 
disorder cannot be currently certified as a conductor. This means that 
appropriate action must 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) also provides a mechanism 
for an employee to voluntarily self-refer for substance abuse 
counseling or treatment.
    Paragraph (e) addresses 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 on 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. An employee may also not use 
alcohol either within four hours of reporting for covered service or 
after receiving notice to report for covered service, whichever is 
lesser. 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.
    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 (as 
required by 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

[[Page 69821]]

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 rule requires 
railroads to consider conduct that occurred within the period of 60 
consecutive months prior to the review. This is the same period 
provided 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 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 
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 rule requires a 
review of certification status for any conduct in violation of Sec.  
219.101 or Sec.  219.102.
    The 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). 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 serves 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 can only 
be waived 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 and incidents. A strong inducement to refer a 
co-worker is a worthy goal if it may contribute to a reduction in 
accidents and incidents. Although FRA does not know how many actual co-
worker reports may be generated, the intended result would be served if 
an atmosphere of intolerance for drug and/or alcohol abusing behavior 
is reinforced in the workplace and violators know that they may be 
reported 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 sanctions mirror the 
sanctions in Sec.  240.119.
    Under this 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 taken in part 240 and reflects FRA's wish 
not to undercut the therapeutic approach to drug abuse employed by many 
railroads. This approach permits 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 rule also addresses 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 to participate in chemical tests are treated as if the 
test were positive. A refusal 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 are 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 to provide a breath sample, 
or a blood specimen for mandatory post-accident toxicological testing; 
or (2) Sec.  219.102, in the case of a refusal to provide a urine 
specimen for testing. Interested parties should note that 49 CFR 40, 
subpart I, provides the medical conditions under which an individual`s 
failure to provide an sufficient sample is not deemed a refusal. 
Moreover, subpart G of FRA`s Control of Alcohol and Drug Use Regulation 
excuses a covered employee from compliance with the requirement to 
participate in random drug and alcohol testing ``in the case of a 
documented medical or family emergency.'' See 49 CFR 219.603 and 
219.609. Those provisions are incorporated into this rule's use of the 
word ``refuses.''
    Interested parties should also 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 takes 
under 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 part 219 
subpart H and 49 CFR 40.191 and 40.261. Paragraph 242.115(e)(4(iv)(B) 
has been modified in this final rule by removing the subpart citations 
and adding the phrase ``for alcohol testing.'' Those modifications are 
simple clarifications to conform the final rule to the provisions of 
part 219.
    Paragraph (f) prescribes 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 are derived from the conditions in Sec.  
240.119(d) and closely parallel the return-to-duty provisions of the 
alcohol/drug rule. Interested parties should note

[[Page 69822]]

that 242.115(f)(1)(iii) has been clarified in this final rule with 
respect to alcohol concentration to more accurately reflect the 
provisions of FRA's alcohol/drug rule. Interested parties should also 
note that the regulation does 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 must afford the conductor the hearing 
procedures provided by Sec.  242.407 if the conductor does not waive 
his or her right to the hearing.
    Paragraph (g) ensures that a conductor, like any other covered 
employee, can 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 from the DAC of any substance abuse disorder 
identified as a result of a voluntary self-referral under 49 CFR 
219.403. However, the paragraph also requires 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 DAC pursuant to 49 CFR 219.403, 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 that the certification status of a 
conductor who seeks help and cooperates in treatment will not be 
affected, unless the conductor fails to follow through.
Section 242.117 Vision and Hearing Acuity
    This section contains the requirements for visual and hearing 
acuity testing that a railroad must incorporate in its conductor 
certification program. The visual requirements are the same as those 
provided in 49 CFR 240.121. Although the testing procedures and 
standards for the hearing requirements 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, the criteria that must be met to 
pass the hearing test is identical to the criteria in part 240.
    Paragraph (f), is intended to address, among other things, 
situations in which a conductor's certificate states that he or she is 
required to use a corrective device, such as glasses, but the conductor 
then undergoes a corrective procedure, such as laser eye surgery, which 
eliminates the need for the corrective device. If that conductor wants 
to serve as a conductor without using the corrective device listed on 
the card, then, following the corrective procedure, he or she should 
obtain a written determination from the railroad's medical examiner 
that the conductor can safely perform without using the corrective 
device. In addition, the certificate should be updated to reflect that 
the conductor is no longer required to use the corrective device while 
serving as a conductor.
    Although some individuals may not be able to meet the threshold 
acuity levels in this 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 
permits 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 regulation once the railroad possesses the medical 
examiner's professional medical opinion to that effect.
    Paragraph (k) of this section addresses 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, paragraph (k) requires 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 contain 
requirements that supersede the hearing and vision standards and 
requirements in this rule.
Section 242.119 Training
    This section, in compliance with the training requirements of the 
RSIA, requires railroads to provide initial and periodic training of 
conductors. That training is necessary to ensure the 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 section requires 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 requires 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 also requires 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 have latitude to design and develop 
the training and delivery methods they will employ; but paragraphs (d), 
(e), and (f) provide requirements for railroads that elect to train a 
previously untrained person to be a conductor. Pursuant to paragraph 
(d), a railroad that makes this election would be required to determine 
how training must be structured, developed, and delivered, including an 
appropriate combination of classroom, simulator, computer-based, 
correspondence, on-the-job training, or other formal training.
    Paragraphs (g), (h), (i), (j), and (k) of this section contain the 
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 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.
    Paragraph (l) requires each railroad to 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. This paragraph is derived from 
49 CFR 240.123(b).

[[Page 69823]]

    As mentioned above it is possible that a regulation recommended by 
the Training Standards and Plans Working Group and adopted by FRA might 
include different or additional training requirements than those found 
in this rule. To the extent possible and appropriate, FRA conformed the 
training requirements in this rule to the recommendations developed by 
Training Standards and Plans Working Group. However, FRA does not know 
at this time what the final training regulation will provide. 
Therefore, some modification of the training requirements in this rule 
may be necessary to conform to the final requirements of any training 
regulation.
Section 242.121 Knowledge Testing
    This section, derived from 49 CFR 240.125 and 240.209, requires 
railroads to provide for the initial and periodic testing of 
conductors. That testing will 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 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 require that the test not be conducted with open reference 
books unless use of such materials is part of a test objective and that 
the test be in written or electronic form. Interested parties should 
note that a railroad may not give an all open book exam. Some portion 
of the test must be closed book. 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 will 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 section requires 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 section, derived from 49 CFR 240.129 and 240.303, contains the 
requirements for conducting unannounced compliance tests.
    Paragraph (b) of this section requires each railroad to have a 
program to monitor the conduct of its conductors by performing 
unannounced operating rules compliance tests. The paragraph also 
provides procedures to address the testing of certified conductors who 
are not performing a service that requires certification under this 
part. FRA understands that railroads may not be able to provide those 
conductors with the annual, unannounced compliance test. Unlike part 
240, which requires railroads to seek a waiver from FRA's Safety Board 
for engineers their unable to annually test, this paragraph does not 
require railroads to give an unannounced compliance test to conductors 
who are not performing service requiring certification. Moreover, the 
railroads are given approximately a month to test those conductors 
returning to service.
    Paragraph (c) provides that each conductor must 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 must be tested on. That paragraph also allows 
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. Interested parties 
should note that this paragraph has been revised from the NPRM to 
clarify that the annual training exception in paragraph (d)(2)(i) only 
applies to part 218 subpart F testing and that a railroad will still 
have to test on Sec.  217.9.
    Paragraph (e) of this section requires 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 regulation 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 section 
does 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 conductor service, he 
or she will have to be tested within 30 days of their return. Moreover, 
the railroad will have to retain a written record documenting certain 
dates regarding a conductor's service.

[[Page 69824]]

Section 242.125 Certification Determinations Made by Other Railroads
    This section, derived from 49 CFR 240.225, provides the 
requirements that apply when a certified or previously certified 
conductor is about to begin service for a different railroad. The 
section permits the hiring railroad to rely on determinations made by 
another railroad concerning a person's certification. However, the 
section requires 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 specify how to train a previously certified engineer 
hired from another railroad, then the railroad must 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, provides 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 preclude railroads from relying on stale information 
when evaluating a candidate for certification or recertification. 
Although some members of the Working Group advocated 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 Sec.  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 Sec.  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 record 
keeping requirements for railroads that certify conductors. While both 
Sec.  240.215 and this section permit railroads to retain records 
electronically, paragraph (g) of this section provides more specific 
requirements regarding the electronic storage system used to retain the 
records than those found in Sec.  240.215. In paragraph (g), FRA 
provides minimum standards for electronic record-keeping provisions 
that a railroad will 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, the electronic record storage provisions in paragraph (g) 
are technology-neutral.
Section 242.205 Identification of Certified Persons and Record Keeping
    This section, derived from 49 CFR 240.221, requires 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 requires the railroad that 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 makes 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 provides 
more specific requirements regarding the electronic storage system used 
to retain the records than those found in Sec.  240.215(f) and does 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 section, derived from 49 CFR 240.223, contains the 
requirements for the certificate that each conductor must carry. To 
address the privacy concerns of some Working Group members, FRA's 
requirements for what must be on the certificate slightly differ from 
the certificate requirements in part 240. While Sec.  240.223(a)(3) 
requires locomotive engineer certificates to include the full date of 
birth, Sec.  242.207(a)(3) requires conductor certificates to include 
only the year of birth. 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 Sec.  242.213(n), a single certificate issued to 
a person that is certified as both a conductor and a locomotive 
engineer will 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), requires 
conductors to: Have their certificates in their possession while on 
duty as a conductor; display their certificates when requested to do so 
by FRA representatives, State inspectors authorized under 49 CFR part 
212, and certain railroad officers; and notify a railroad if he or she 
is called to serve as

[[Page 69825]]

a conductor in a service that would cause them to exceed their 
certificate limits. Although State inspectors authorized under 49 CFR 
part 212 could be considered ``FRA representatives,'' they are 
mentioned separately in this section to ensure that there would be no 
dispute regarding their authority.
Section 242.211 Replacement of Certificates
    This section, derived from 49 CFR 240.301, requires 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 
provides 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 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 permits railroads to issue 
temporary replacement certificates. The paragraph describes what the 
certificate must contain and who can authorize the temporary 
replacement. The temporary replacement certificate may be delivered 
electronically (e.g., faxed, emailed, etc.) and may be valid for no 
more than 30 days.
Section 242.213 Multiple Certifications
    This section permits a person to hold certification for multiple 
types of conductor service and/or certification for both conductor and 
locomotive engineer service. A railroad only needs to issue one 
certificate to a person with multiple certifications. However, a 
certificate issued to a person certified as a conductor and locomotive 
engineer will not only have to comply with Sec.  242.207 but also with 
Sec.  240.223. To the extent possible, a railroad that issues multiple 
certificates to a person will 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 requires 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 or 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 or 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 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 Sec.  242.213 (``Multiple certifications'') on the issue of crew 
consist. It is FRA's intent that this conductor certification 
regulation, including Sec.  242.213, be neutral on the crew consist 
issue. Nothing in 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, Sec.  242.213(o) requires 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 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.). Interested parties should note however, the preamble 
discussion of Sec.  242.403(f) which discusses situations in which 
multiple revocable events occur within a single tour of duty.
    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 must 
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 cannot 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 
cannot 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) cannot 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) can work as an engineer 
during the period of revocation. To aid interested parties, FRA has 
included a table in Appendix E to this rule which explains, in a 
spreadsheet-style form, when a person certified as both an engineer and 
conductor will be permitted to work following a certification 
revocation.
    Currently under part 240, an engineer cannot have his or her 
certificate 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 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 provides 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

[[Page 69826]]

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 prohibits 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) is 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 shall not, solely on the basis of the denial, 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, requires 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 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 requires 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 eight 
distinct kinds of events that involve poor safety conduct by 
conductors. For each event, the railroad shall indicate what response 
it took to that situation. The railroad will 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 
requiring a railroad to furnish this data or its analysis of the data 
to FRA. Instead, FRA is requiring 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 need only 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 will be based on 
the work the person was performing at the time the conduct occurred. 
This determination is 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.).
    Paragraph (g)(2) has been modified slightly from the NPRM to 
acknowledge that punishments may not always be imposed by a hearing 
officer. Accordingly, FRA has replaced the specific term ``hearing 
officer'' with the more general term ``railroad.''
    Paragraph (i)(2) has been modified slightly from the NPRM to 
clarify what accident/incident report FRA is referring to in that 
paragraph. Further the paragraph that was labeled as ``(ii) 
[Reserved]'' has been removed as unnecessary.

Subpart D--Territorial Qualification and Joint Operations

Section 242.301 Requirements for Territorial Qualification
    This 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 three circumstances, a railroad, 
including a railroad that employs conductors working in joint 
operations territory, cannot 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.
    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 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 required by 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 realignment will lead to a sharing of the burden among a 
controlling railroad, an employing railroad and an employing railroad's 
conductor. Although a controlling railroad is obligated to make sure 
the person is qualified, paragraph (a) requires that an employing 
railroad make these same determinations before calling a person to 
serve in joint operations. Paragraph (b) of this section requires 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 rule.
    Paragraph (c), which as discussed in the preamble above, has been 
modified from the NPRM. The paragraph provides requirements for 
situations where a conductor lacks territorial qualification on main 
track physical characteristics. It provides differing requirements 
depending on whether a conductor has never been qualified on main track 
physical characteristics of the territory over which he or she is to 
serve as a conductor or whether the conductor was previously qualified 
on main track physical characteristics of the territory over which he 
or she is to serve as a conductor, but whose qualification has expired. 
For a conductor who has never been qualified on main track physical 
characteristics of the territory over which he or she is to serve as a 
conductor, paragraph (c)(1) of this final rule requires that the 
assistant must be a person who is certified as a conductor, meets the 
territorial qualification requirements for main track physical 
characteristics, and is not an assigned crew member. For a conductor 
who was previously qualified on main track physical characteristics of 
the territory over which he or she is to serve as a conductor, but 
whose qualification has expired, paragraph (c)(2) of this Final Rule 
allows the assistant to be any person, including an assigned crewmember 
other than the locomotive engineer so long as serving as the assistant 
would not conflict with that crewmember's other safety sensitive 
duties, who meets the territorial

[[Page 69827]]

qualification requirements for main track physical characteristics.
    Paragraph (d) provide requirements for situations where a conductor 
lacks territorial qualification on other than main track physical 
characteristics. On other than main track, the conductor, where 
practicable, must 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 must be provided with an appropriate, up-to-date job aid. Two 
points should be made about the other than main track requirements in 
paragraph (d) of this section. First, the person assisting the 
conductor may 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 requirements of Sec.  242.301(d) to 
apply to sidings.
    Paragraph (e), which was not included in the NPRM, provides 
exceptions as to when an assistant is not required on main track. Those 
exceptions, which are derived from 49 CFR 240.231(c), apply to 
movements on a section of main track with an average grade of less than 
1% over 3 continuous miles and: (1) The maximum distance the locomotive 
or train will be operated does not exceed one mile; or (2) the maximum 
authorized speed for any operation on the track does not exceed 20 
miles per hour; or (3) operations are conducted under operating rules 
that require every locomotive and train to proceed at a speed that 
permits stopping within one half the range of vision of the locomotive 
engineer.

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 rule is predicated principally on the theory that 
decisions to deny certification or recertification will come at the 
conclusion of a prescribed evaluation process which will be conducted 
in accordance with the provisions set forth in this subpart. Thus, this 
rule and part 240 contain specific procedures designed to assure that a 
person, in jeopardy of being denied certification or recertification, 
will 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 rule contemplates that decisions 
to revoke certification will 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 will come only after a certified conductor 
had been afforded an opportunity for an investigatory hearing at which 
the presiding officer will determine whether there is 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 will 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 is 
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 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, provides minimum 
procedures that must be accorded to a certification candidate before a 
railroad denies the candidate certification or recertification. The 
requirements in this section parallel the key 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 also includes some additional provisions in paragraphs 
(a), (c), and (d) not found in Sec.  240.219 which FRA believes will 
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 rule. 
Paragraph (a) of this section requires a railroad to provide the 
conductor candidate with any written documents or records, including 
written statements, related to a failure to meet a requirement of this 
part which support its pending denial decision. Paragraph (c) of this 
section requires 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 rule 
internally consistent but will help FRA in determining whether a 
petition seeking review of a denial decision is filed within 120 days 
of the date the denial is served on the petitioner (see Sec.  
242.503(c)). Paragraph (c) also requires that 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.
    Paragraph (d) of this section, which is also not included in Sec.  
240.219, prohibits 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) is derived from the intervening cause exception for 
revocation in Sec.  242.407(i)(1).
Section 242.403 Criteria for Revoking Certification
    This section, derived from 49 CFR 240.117 and 240.305, provides the 
circumstances under which a conductor may have his or her certification 
revoked. In addition, paragraph (b) of this section makes 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) is 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. Railroads 
should note that they may not revoke a conductor's certificate, 
including a designated conductor's certificate, until they have a 
certification program approved by the FRA pursuant to Sec.  242.103.
    Paragraph (c)(1) of this section provides 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) provides 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

[[Page 69828]]

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'' is also used in 
paragraph (e) of this section as well as Sec.  240.117(c)(2).
    Paragraph (c)(3) provides 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 does not 
apply to violations of paragraph (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) provides that the time frame for considering 
operating rule compliance only applies 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 will be 
dictated by Sec.  242.115 and not limited to the 36-month period 
prescribed in this paragraph. This rule requires 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) provides the 12 types 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 paragraphs 
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 
paragraphs, ``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.
    The language of paragraph (e)(4) has been modified from the version 
proposed in the NPRM. In this final rule, paragraph (e)(4) requires a 
conductor to take ``appropriate action'' to prevent an engineer from 
occupying main track or a segment of main track without proper 
authority or permission. As explained in that paragraph, ``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.
    As written in the NPRM, paragraph (e)(4), a conductor could have 
had his or her certification revoked for occupying main track or a 
segment of main track without proper authority or permission even if 
the conductor repeatedly warned the engineer about the potential 
violation. FRA does not believe that was the intent of paragraph (e)(4) 
and thus, FRA has modified the paragraph in this final rule. Interested 
parties should note that with respect to paragraph (e)(4), a conductor 
will be considered to have failed to take appropriate action to prevent 
an engineer from occupying main track or a segment of main track 
without proper authority or permission if the conductor fails to warn 
the engineer 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) through (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 proposed, 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.\4\ 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 
percent 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 injuries, and 
$104,855,224 in damages.
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    \4\ 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.
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    Paragraph (f) of this section provides that if a single incident 
contravenes more than one operating rule or practice listed in 
paragraph (e) of this section, that event is to be treated as a single 
violation. A single incident is a unique identifiable occurrence caused 
by an error of a conductor and/or engineer. It is possible for a person 
to be involved in more than one single incident during a tour of duty 
if the incidents are separated by time, distance or circumstance. If, 
for example a person, who is certified as both an engineer and a 
conductor and is serving as a lone engineer, violates a stop signal 
rule and in so doing, enters main track without authority, that person 
could only be charged as an engineer with one rule violation. However, 
if that same person fails to properly secure a switch after operating 
the switch in violation of Sec.  218.103(b)(8) and then violates a stop 
signal rule, that would be considered two separate incidents and thus 
the person's conductor certification could be revoked for the part 218 
violation and the person's engineer certification could be revoked for 
the stop signal violation.
    Paragraph (f) also provides that a conductor may have his or her 
certification revoked for violations that occur during properly 
conducted operational compliance tests. However, FRA notes that 
violations that occur during an improperly conducted operational 
compliance test will not be considered for revocation purposes.
    Paragraph (f)(4) of this section was previously paragraph (e)(13) 
in the NPRM. Since the paragraph does not deal with a revocable event 
like paragraphs (e)(1) through (e)(12), FRA moved it to paragraph (f) 
to avoid confusion. Paragraph (f)(4), which does not have a counterpart 
in part 240,

[[Page 69829]]

prohibits 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 is more stringent than the condition 
or restrictions required by this part. In the future, FRA expects to 
review whether a similar provision should also apply to locomotive 
engineers.
Section 242.405 Periods of Ineligibility
    This section, derived from Sec.  240.117, describes how a railroad 
will determine the period of ineligibility (e.g., for revocation or 
denial of certification) that a conductor or conductor candidate will 
have to undergo. With respect to revocation, this section provides that 
once a railroad determines that a conductor has failed to comply with 
its safety rule concerning one or more events listed in Sec.  
242.403(e), two consequences will occur. First, the railroad is 
required to revoke the conductor's certification for a period of time 
provided in this section. Second, that revocation will initiate a 
period during which the conductor will be subject to an increasingly 
more severe action 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 provided in this section track the 
periods provided in part 240: 1 event = revocation for 30 days; 2 
events within 24 months of each other = revocation for 6 months; 3 
events within 36 months of each other = revocation for 1 year; and 4 
events within 36 months of each other = revocation for 3 years. This 
section notes, however, that violations of Sec.  219.101 could result 
in different periods of ineligibility and in those cases, the longest 
period of revocation will control. FRA has included a table in Appendix 
E to this rule which provides the revocation periods in a spreadsheet-
style form. The table should be useful to regulated entities in 
determining the correct period of revocation.
    The period of revocation in both part 240 and this rule is based on 
a floating window. Hence, under this 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 will reduce the 
period of ineligibility if certain criteria are met. The first 
provision, which is contained in paragraph (a)(3)(i) of this section, 
provides 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) \5\ 
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. That provision, which parallels Sec.  240.117(h), 
provides that a person whose conductor certification is denied or 
revoked will 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.
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    \5\ The provisions are Sec.  242.403(e)(6) through (e)(8), 
(e)(10), and (e)(11). Section 242.403(e)(9) is not included in the 
list because the reduction provided for in Sec.  242.403(a)(3)(i) 
only applies on other than main track where restricted speed or the 
operational equivalent thereof is in effect. Section 242.403(e)(9), 
however, addresses violations of Sec.  218.105 which only applies to 
main track switches.
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    In certain instances, both 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 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.\6\
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    \6\ 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 provides 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 rule to make FRA's intent clear.
Section 242.407 Process for Revoking Certification
    This section, derived from 49 CFR 240.307, provides the procedures 
a railroad must 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 must suspend the person's certificate. Paragraph (b)(2) 
provides that prior to or upon suspending the person's certificate, the 
railroad will 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 will 
have to be promptly confirmed in writing. The amount of time the 
railroad has to confirm the notice in writing will depend on whether or 
not a collective bargaining agreement is in effect and applicable. In 
the absence of such an agreement, a railroad will 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 this constitutes procedural error pursuant to Sec.  242.505.
    Paragraphs (b)(3)-(b)(7) and paragraphs (c), (d), (e), and (f) of 
this section provide the requirements and procedures for conducting or 
waiving a railroad hearing regarding the alleged revocable event. 
Except for paragraphs (b)(4) and (c)(11), discussed below, those 
requirements mirror the hearing requirements currently contained in 
part 240.
    Pursuant to paragraph (b)(4) of this section, no later than the 
convening of a hearing, the railroad convening the hearing must 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 shall be granted if the copy of the written 
information and list of witnesses is not provided until just prior to 
the convening of the hearing. If the information that led to the 
suspension of a conductor's certificate pursuant to paragraph (b)(1)

[[Page 69830]]

of this section is provided through statements of an employee of the 
convening railroad, the railroad must 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 will 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 paragraph 
(b)(1) of this section, a railroad will 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 will 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 paragraph (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.
    While paragraph (c)(1) provides a conductor with significant input 
into when the hearing is held, that paragraph must read in conjunction 
with paragraph (c)(3) which provides the presiding officer with the 
powers necessary to regulate the conduct of the hearing. Thus, a 
presiding officer would be permitted to deny excessive hearing request 
delays by the conductor. Moreover, a presiding officer could find 
implied consent to postpone a hearing where a conductor's witnesses are 
not available within 10 days of the date the certificate is suspended. 
However, interested parties should note that the OCRB may grant a 
petition on review if the OCRB finds that the hearing schedule caused 
the petitioner substantial harm.
    Paragraph (c)(11) contains requirements regarding the written 
decision issued in a railroad hearing beyond those contained in part 
240. Specifically, the final rule requires 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 Sec.  242.405 
(Periods of revocation); (2) contain an explanation of the factual 
findings and citations to all applicable railroad rules and practices; 
and (3) be served on the employee and the employee's representative, if 
any, with the railroad to retain proof of that service. FRA believes 
these additional requirements will ensure that clearer and more 
detailed decisions are issued. In turn, clearer and more detailed 
decisions will allow a conductor to understand exactly why his or her 
certification was revoked and will 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 rule.
    Paragraph (g) requires 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 rule 
is satisfied when any single railroad holds a revocation hearing.
    Paragraph (h) credits 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 Sec.  242.405.
    Paragraph (i) provides 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 will have to be proven 
by sufficient evidence. Paragraph (i)(1) of this section provides that 
a person's certificate will 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 causing a prohibited train movement. 
Conductors and railroad managers should note that not all equipment 
failures or errors caused by others will serve to absolve the person 
from certification action under this rule. The factual issues of each 
circumstance will 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 provides 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. FRA promulgated the 
discretionary provision allowing a railroad to decide not to revoke 
when the incident ``was of a minimal nature and had no direct or 
potential effect on rail safety'' with the express understanding that 
some railroads would exercise the discretion and others would not. The 
decision of whether an incident meets that criteria may often be 
subject to different interpretations. For that reason, FRA is requiring 
that for each instance that a railroad chooses to exercise this 
discretion, the railroad must record its actions. See 49 CFR 
242.407(j). Unless a railroad fails to record its actions or acts in 
bad faith, FRA will not take enforcement action even if FRA believes 
the railroad could have revoked the certification.
    Paragraph (i)(2) does not permit a railroad to use its discretion 
to dismiss violations indiscriminately. FRA will 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 communicates to the 
conductor, who is in the cab, that the engineer knows the correct speed 
limit on a portion of restricted track without requiring the conductor 
to say 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 until the entire train clears the speed restriction. If a 
railroad is willing to consider mitigating circumstances, it would need 
to consider whether the violation was truly of a minimal nature. Other 
suggestions of the types of incidents that a railroad may find to be of 
a minimal nature under certain circumstances include:

[[Page 69831]]

     A train is required to reduce speed past a signal and most 
of the train gets by the signal at a faster speed but the back of the 
train does get below 10 MPH above the maximum authorized speed;
     During an unannounced operating rules compliance test, a 
train gets by a flag, banner, lantern or other non-fixed stop signal 
that requires a complete stop before passing it for a short distance. 
The test is conducted according to the railroad's 49 CFR 217.9 
operational testing program with sufficient safeguards in place. 
Although a violation occurred, it may be deemed minimal in nature since 
there may be no direct or potential effect on rail safety; or
     A train occupies main track or a segment of main track 
without authority but the lack of authority or mistake is corrected by 
the crewmembers and no actual harm is caused by the mistake. For 
example, the conductor contacts the dispatcher to roll up or obtain new 
authority. During the radio conversation, the wrong milepost or train 
number is given and the train is no longer on track for which it 
previously had authority. After that radio conversation, the crew 
realizes the error and successfully contacts the dispatcher to correct 
it.
    In contrast, a violation could not be considered of a minimal 
nature if a conductor fundamentally violates the operating rules. For 
example, if a conductor fails 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 may not be considered of a minimal 
nature. In situations where the 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 must 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. An example illustrating the 
term ``minimal nature'' involves a situation where a train has the 
first two locomotives enter a speed restriction too fast, yet the 
balance of the train is in compliance with the speed restriction. The 
train in this example is not endangering other trains because it had 
the authority to travel on that track at a particular speed. Thus, the 
railroad could find that there was no direct or potential effect on 
rail safety caused by the violation.
    In contrast, if a train fails to stop short of a banner, which is 
acting as a signal requiring a complete stop before passing it, during 
a locomotive engineer efficiency test, the passing of a banner might 
have no direct effect on rail safety but it has a potential effect 
since a banner is 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 touches a banner so that the locomotive or train does 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 does 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 was another 
train. Although it is arguable that if the banner were a person the 
touching could be fatal, FRA is willing 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 is 
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 requires 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) requires 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) requires 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 will have immunity from 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 could be 
subject to civil penalty enforcement under this rule. In addition, even 
if a railroad does not take what FRA considers appropriate revocation 
action, FRA could still take enforcement action against an individual 
responsible for the non-compliance by assessing a civil penalty against 
the individual or issuing an order prohibiting an individual from 
performing safety-sensitive functions in the rail industry for a 
specified period pursuant to 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 provided in 
this subpart essentially follows the appeals process in part 240, some 
important modifications have been made. Those modifications are 
discussed below.
Section 242.501 Review Board Established
    This section, derived from 49 CFR 240.401, provides that a person 
who is denied certification or recertification or has his or her 
conductor certification revoked may petition FRA to review the 
railroad's decision. Pursuant to this section, FRA delegates initial 
responsibility for adjudicating such disputes to an internal FRA 
Operating Crew Review Board (OCRB). Although creation of the OCRB will 
require issuance of an internal FRA order, FRA

[[Page 69832]]

expects that the OCRB will mirror the make-up of the Locomotive 
Engineer Review Board (LERB), which is currently used by FRA to 
adjudicate disputes under part 240.\7\ As mentioned above, FRA expects 
that, if and when conforming changes are made to part 240, all 
references to the LERB in part 240 will be changed to the OCRB and the 
OCRB will handle both conductor and locomotive engineer disputes.
---------------------------------------------------------------------------

    \7\ The number of board members will be provided by FRA order.
---------------------------------------------------------------------------

Section 242.503 Petition Requirements
    This section, derived from 49 CFR 240.403, provides the 
requirements for obtaining FRA review of a railroad's decision to deny 
certification, deny recertification, or revoke certification. The 
requirements contained in paragraphs (a) through (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 paragraph (b) of this section is the person 
who had his or her certificate revoked, not an employee representative 
who may respond on 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 email address (if available) in the petition.
    Paragraph (b)(2) revises the requirements proposed in the NPRM and 
differs from Sec.  240.403 in that petitions will be submitted to the 
Docket Clerk of DOT rather than FRA's Docket Clerk. With this change, 
the process for submitting petitions to the OCRB will parallel the 
process for requesting an administrative hearing under part 240 and 
Sec.  242.507. FRA believes this change will make the process more 
efficient as DOT Dockets is better equipped to process, scan and store 
these types of filings. In addition, filings in OCRB proceedings will 
become more accessible because they will be posted on 
www.regulations.gov. Interested parties should note that anyone is able 
to search the electronic form of all filings received into any of DOT's 
dockets by the name of the individual submitting the filing (or signing 
the filing, if submitted on behalf of an association, business, labor 
union, etc.). You may review DOT's complete Privacy Act Statement 
published in the Federal Register on April 11, 2000 (Volume 65, Number 
70, Pages 19477-78), or you may visit http://www.regulations.gov/#!privacyNotice.
    Paragraph (b)(3) requires petitioners to provide certain 
information, including an email address if available. Petitioners 
should note that if FRA receives an email address, it expects to 
conduct any or all correspondence regarding the petition or case by 
email.
    Paragraph (b)(5) of this section requires 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. Paragraph (b)(7) of 
this section which provides that, if requested by the OCRB, a 
petitioner must supplement the petition with ``a copy of the 
information under 49 CFR 40.329 that laboratories, medical review 
officers, and other service agents are required to release to 
employees.'' That paragraph also provides that a petitioner must 
provide a written explanation in response to an OCRB request if written 
documents that should be reasonably available to the petitioner are not 
supplied. The requirements in paragraph (b)(7) were added to clarify a 
petitioner's responsibilities, if requested by the OCRB, with respect 
to a petition 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.
    Paragraph (c) of this section gives 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 can exercise its discretion 
under this rule only for ``cause shown,'' a party will have to 
demonstrate some justification for the OCRB 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 
requires a demonstration of good faith on the part of the party seeking 
an extension of time and some reasonable basis for noncompliance within 
the time frame specified in the rules. Absent a showing along these 
lines, relief will 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 may be appealed directly to the 
Administrator. Ordinarily, an appeal to the Administrator can occur 
only after a case has been heard by FRA's hearing officer.
    One difference between this 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 section, however, provides that a 
petition seeking review of a revocation or denial decision will have to 
be filed with FRA within 120 days of the date the decision was served 
on the petitioner. Another difference between this section and Sec.  
240.403 is that, under this section, the OCRB's discretion to consider 
untimely filed petitions is now extended to petitions seeking review of 
a railroad's decision to deny certification or recertification.
Section 242.505 Processing Certification Review Petitions
    This section, derived from 49 CFR 240.405, details how petitions 
for review will be handled by FRA. Upon receipt of the petition, FRA 
will provide the person written acknowledgement of the filing. The 
railroad will then have 60 days from its date of receipt to respond, if 
it desires to comment on the matter. If the railroad comments on the 
matter, any material will have to be submitted in writing and a copy 
served on the petitioner and petitioner's representative, if any. As 
discussed in the section-by-section analysis of Sec.  242.503, OCRB 
petitions will be accessible on www.regulations.gov. Therefore, FRA 
will no longer automatically provide copies of the petitions to 
railroads. The railroads will be responsible for accessing the 
petitions online.
    Paragraph (d)(1) has been revised from the NPRM to require 
railroads to provide FRA with an email address if available. Railroads 
should note that if FRA receives an email address, it expects to 
conduct any and all correspondence regarding a petition or case by 
email.
    Paragraph (d)(3) has revised the requirements proposed in the NPRM 
and differs from Sec.  240.405 in that railroad responses to a petition 
will be submitted to the Docket Clerk of DOT rather than FRA's Docket 
Clerk. FRA believes this change will make the process more efficient as 
DOT Dockets is better equipped to process, scan and store these types 
of filings. In addition, filings in OCRB proceedings will become more 
accessible because they will be posted on www.regulations.gov. 
Interested parties should note that anyone is able to search the 
electronic form of all filings received into any of DOT's dockets by 
the name of the individual submitting the filing (or signing the 
filing, if submitted on behalf of an association, business, labor 
union, etc.). You may review DOT's complete Privacy Act Statement 
published in the

[[Page 69833]]

Federal Register on April 11, 2000 (Volume 65, Number 70, Pages 19477-
78), or you may visit http://www.regulations.gov/#!privacyNotice.
    Based on the written record, FRA staff will analyze the railroad 
decision and make a recommendation to the OCRB. The ORCB will determine 
whether the denial or revocation of certification was improper under 
the regulation. As indicated in paragraph (a), it will 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 
will 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 will be the same under Sec.  
240.405 and this section, this section, unlike Sec.  240.405, includes, 
in paragraphs (f)-(j), the process and standards of review that the 
OCRB will utilize when considering a petition. Those standards are the 
same standards used by the LERB to review locomotive engineer 
petitions. The standards were added to this rule to address a concern 
of some members of the Working Group that railroads and petitioners did 
not know what standard of review the OCRB would use in considering 
petitions.
    Like the LERB, the OCRB will only determine whether a railroad's 
decision was based on an incorrect determination. If a railroad 
conducted hearing was so unfair that it causes a petitioner substantial 
harm, the OCRB could grant the petition; however, the OCRB's review is 
not intended to correct all procedural wrongs committed by a railroad. 
Also like the LERB, the decision-making power of the OCRB is limited to 
approving the railroad decision, overturning the railroad decision, or 
returning the case to the railroad for additional fact finding. The 
OCRB is not empowered to mitigate the consequences of a railroad 
decision, if the decision was valid under this regulation. The OCRB is 
only empowered to make determinations concerning qualifications under 
this regulation. The contractual consequences, if any, of these 
determinations would have to be resolved under dispute resolution 
mechanisms that do not directly involve FRA. For example, FRA cannot 
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 rule 
necessarily requires 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 
finds that a person, who holds both a conductor and engineer 
certification, violates 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 requires the OCRB's written decision 
to be served on the petitioner, including the petitioner's 
representative, if any, and the railroad. Moreover, the 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 will have the 
opportunity to request an administrative proceeding as prescribed in 
Sec.  242.509. In addition, this section details the 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 will lose the 
right to further administrative review and the OCRB's decision will 
constitute final agency action.
    As noted in paragraph (e) of this section, FRA will not schedule 
hearings or set an agenda for the proceeding. FRA will merely arrange 
for the appointment of a presiding officer and it will be the presiding 
officer's duty to schedule a hearing for the earliest practicable date.
Section 242.509 Hearings
    This section, which parallels 49 CFR 240.409, describes the 
authority of the presiding officer to conduct an administrative hearing 
and the procedures by which the administrative hearing will be 
governed. Like Sec.  240.409, the proceeding provided by this section 
will afford an aggrieved party a de novo hearing at which the relevant 
facts will be adduced and the correct application of this part will be 
determined.
    In instances when the issues are purely legal, or when only limited 
factual matters are necessary to determine issues, paragraph (c) of 
this section provides that the presiding officer may determine the 
issues following an evidentiary hearing only on the disputed factual 
issues, if any. The presiding officer can therefore grant full or 
partial summary judgment.
    Paragraph (d) of this section provides that the presiding officer 
may authorize discovery. It also authorizes the presiding officer to 
sanction willful noncompliance with permissible discovery requests. 
Paragraph (e) requires that documents in the nature of pleadings be 
signed. This signature will constitute a certification of factual and 
legal good faith. Paragraph (f) provides the 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 
will have the authority to control the proceeding so that an efficient 
and fair hearing will result.
    Paragraph (h) states the right of each party to appear and be 
represented. Paragraph (i) protects witnesses by ensuring their right 
of representation and their right to have their representative question 
them. Paragraph (j) allows 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 
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) establishes a motion as the appropriate method for 
requesting action by the presiding officer. This paragraph also 
provides the form of motions and the response period for written 
motions.
    Paragraph (m) provides rules for the mode of hearing and record

[[Page 69834]]

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) directs 
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) provides additional powers the presiding officer may exercise 
during the proceedings.
    Paragraph (p) provides 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) 
requires the party requesting the hearing to carry the burden of proof. 
The actions of the conductor and the railroad will 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 will have if they 
were the hearing petitioner is articulated in paragraph (q).
    Paragraph (r) provides that FRA will be a mandatory party in the 
proceeding. In all proceedings, FRA will 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 can 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 will have to be careful to avoid 
ethical dilemmas that might arise due to FRA's ability to realign 
itself.
    Paragraphs (s) through (u) provide the presiding officer with 
authority to close the record and issue a decision.
Section 242.511 Appeals
    This section, derived from 49 CFR 240.411, permits any party 
aggrieved by the presiding officer's decision to file an appeal with 
the FRA Administrator. Paragraph (a) provides that if no appeal is 
timely filed, the presiding officer's decision will constitute final 
agency action.
    Paragraphs (b) through (f) allow for a reply to the appeal and 
describe 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 rule so that parties understand that a remand, or other 
intermediate decision, will 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 has included four appendices with this rule. Appendix A 
contains a civil penalty schedule similar to those that FRA has issued 
for all of its existing rules.
    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 requiring railroad submissions to be 
made on a Federally mandated form. Instead, FRA is prescribing only 
minimal constraints on the organization and manner of presenting 
information. FRA requires that the submission be divided into six 
sections. FRA requires 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 Appendix B is derived from Appendix B to part 
240, one major difference is that Appendix B of part 242 makes clear 
that, pursuant to Sec.  242.103, a railroad must serve a copy of its 
submission on the president of each labor organization that represents 
the railroad's employees subject to part 242.
    Appendix B provides the railroads with the option to file their 
program submissions electronically. FRA intends to create a secure 
document submission site and will need basic information from each 
company before setting up the user's account. In order to provide 
secure access, information regarding the points of contact is required. 
It is anticipated that FRA will be able to approve or disapprove all or 
part of a program and generate automated notifications by email to a 
railroad's points of contact. Thus, FRA wants each point of contact to 
understand that by providing any email addresses, the railroad is 
consenting to receive approval and disapproval notices from FRA by 
email. Railroads that allow notice from FRA by email would gain the 
benefit of receiving such notices quickly and efficiently.
    Those railroads that choose to submit printed materials to FRA must 
deliver them directly to the specified address. Some railroads may 
choose to deliver a CD, DVD, or other electronic storage format to FRA 
rather than requesting access to upload the documents directly to the 
secure electronic database. Although that will be an acceptable method 
of submission, FRA would encourage each railroad to utilize the 
electronic submission capabilities of the system. Of course, if FRA 
does not have the capability to read the type of electronic storage 
format sent, FRA can reject the submission.
    FRA may be able to develop its secure document submission site so 
that confidential materials are identified and not shared with the 
general public. However, FRA does not expect the information in a 
program to be of such a confidential or proprietary nature, 
particularly since each railroad is required to share the program 
submission, resubmission, or material modification with the president 
of each labor organization that represents the railroad's certified 
conductors. See 242.103(c). Accordingly, FRA does not at this time 
believe it is necessary to develop a document submission system which 
addresses confidential materials at this time.
    Appendix C, derived from Appendix C to part 240, provides a 
narrative discussion of the procedures that a person seeking 
certification or recertification will have to follow to furnish a 
railroad with information concerning his or her motor vehicle driving 
record.
    Appendix D, derived from Appendix F to part 240, provides a 
narrative discussion of the procedures that a railroad is required to 
employ in administering the vision and hearing requirements of Sec.  
242.117. The main issue addressed in this 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.
    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.

[[Page 69835]]

VI. Regulatory Impact and Notices

A. Executive Order 12866 and DOT Regulatory Policies and Procedures

    This final 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 the docket a 
regulatory impact analysis addressing the economic impact of this final 
rule.
    As part of the regulatory impact analysis, FRA has assessed 
quantitative measurements of the cost streams expected to result from 
the adoption of this final rule. For the twenty-year period analyzed, 
the estimated quantified cost imposed on industry totals $86.3 million 
with a present value (PV, 7%) of $43.2 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 
final 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 final rule would be, and provided 
numerical assessments of the potential value of such benefits. The 
final rule is expected to improve railroad safety by ensuring that all 
trains have certified and trained conductors. Thus, in general, the 
final rule should decrease train accidents and incidents and associated 
casualties and damages. FRA also anticipates that this 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 final rule.
    The table below presents the cost associated with implementation of 
the final rule.
[GRAPHIC] [TIFF OMITTED] TR09NO11.000


[[Page 69836]]



B. Regulatory Flexibility Act and Executive Order 13272

    To ensure potential impacts of rules on small entities are properly 
considered, FRA developed this final rule in accordance with Executive 
Order 13272 (``Proper Consideration of Small Entities in Agency 
Rulemaking'') and DOT's procedures and policies to promote compliance 
with the Regulatory Flexibility Act (5 U.S.C. 601 et seq.).
    The Regulatory Flexibility Act requires an agency to review 
regulations to assess their impact on small entities. An agency must 
conduct a regulatory flexibility analysis unless it determines and 
certifies that a rule is not expected to have a significant impact on a 
substantial number of small entities.
    As discussed earlier, FRA has initiated this rulemaking as a 
requirement of the Rail Safety Improvement Act of 2008. This final rule 
enhances 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.
    Pursuant to the Regulatory Flexibility Act (5 U.S.C. 605(b)), FRA 
certifies that this final rule would not have a significant impact on a 
substantial number of small entities. Although a substantial number of 
small railroads would be affected by this final rule, few, if any, 
would be significantly impacted. FRA invited all interested parties to 
submit data and information regarding the potential economic impact 
that would result from the adoption of the final rule. FRA received one 
comment pertinent to this (see below) and considered it in making the 
determination for certification of this final rule.
1. Description of Regulated Entities and Impacts
    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 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.
    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. 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. 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 proposed using 
this definition for this rulemaking in the proposed rule. No comments 
were received pertinent to its use.
2. 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 final rule. FRA 
estimates that approximately 55 of the 682 small railroads would not be 
impacted because they would be exempt from the final 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 will 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 action. 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 will be required to have written programs for 
certifying conductors in accordance with this 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 
regulation should be less burdensome for small railroads than larger 
railroads. 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 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 
requested 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 the Notice of Proposed Rulemaking (NPRM) and Initial Regulatory 
Flexibility Assessment (IRFA). However, FRA did not receive comments 
specific to that request.
    In general, this final rule will likely burden all small railroads 
that are not exempt from its scope or application. However, it would 
significantly burden few if any, of these entities. FRA invited 
commenters to submit information that might assist us in assessing the 
cost impacts on small railroads in the NPRM. However, FRA only received 
comments from one commenter addressing the cost to small railroads. The 
ASLRRA noted in its comments of January 10, 2011, that it was working 
to generate data and if and when it was available, would post it to the 
docket. FRA has received no additional data on this issue.
    FRA disagrees with ASLRRA's cost assessment in their comments. In 
general, it should be noted that the final

[[Page 69837]]

rule is not a ``stand alone'' regulation. It is conjoined with numerous 
existing regulations, such as parts 217 and 218. However, the shortline 
railroads have been responsible for complying with the Locomotive 
Engineering Certification Regulation (49 CFR part 240) for over 20 
years. Many of the compliance requirements in this final rule are 
identical or very similar to part 240. Thus, these railroads likely 
already have assigned personnel and filing procedures in place to 
comply with this final rule. Since this final rule requires three of 
the four certification components required by part 240 (hearing and 
visual acuity, motor vehicle operator history check, and knowledge 
test), the shortline railroads would only need to satisfy these 
requirements once for individuals who will work as both a conductor and 
an engineer. FRA believes that many of the Train and Engine employees 
on shortlines will be dual certified. Thus, these employees can work 
either a conductor's position or an engineer's position as service 
demands.
    The ASLRRA commented that the proposed rule will also impose 
significant new costs on small railroads. In addition, ASLRRA noted 
that ``appropriate and ongoing training is [the] centerpiece of the 
proposed conductor certification rules, and certification itself is a 
reflection that the conductor has been properly trained and has 
demonstrated the ability to apply that training in the safe performance 
of job duties.'' However, FRA notes that the conductor training 
required by this final rule should not be new to shortlines. Most, if 
not all, shortlines currently afford training to employees who fill a 
conductor's position. A majority of this training has been in the form 
of on-the-job (OJT) training followed by formal or informal classroom 
training on safety and operating rules. Historically, OJT is peer 
training provided by a qualified, per this rulemaking, certified 
employee. Hence, there is no major change to existing practices or 
additional cost, excluding the time required to compile a list of 
qualified instructors. In addition, the final rule has placed a greater 
emphasis on OJT and removed the task analysis requirement in the 
training section. Thus, the training provided by most small railroads 
would not change much if any under the final rule. It will likely be 
more formalized and ensure that conductors receive appropriate training 
in all areas of responsibility. Thus, the additional cost for training 
should not be significant. FRA has met with and will continue to work 
with ASLRRA to develop a generic conductor certification program that 
can be used for small railroads. This should help to reduce the cost of 
conductor certification programs and the cost of training development 
for small railroads. As noted above, this final rule is complementary 
with several other FRA regulations. It is conjoined with Section 217.9, 
Subpart F of Part 218, Section 238.109, and Section 239.101(a)(2). 
Thus, there will be cost savings due to the fact that some of its 
requirements are current burdens under other federal regulations.
    The ASLRRA's comments noted that ``one training cost for some small 
railroads which FRA has completely dismissed is the cost of training 
Remote Control Operators (RCO's).'' It should be noted that RCO 
operation is a practice that provides value based on the reduction of 
train crew numbers. ASLRRA is correct that FRA dismissed the costs 
related to the RCO in the Initial Regulatory Flexibility Assessment 
(IRFA) and the Regulatory Impact Assessment (RIA) to the NPRM. FRA's 
IRFA and RIA dismissed such costs for all railroads, including small 
railroads, due to the fact that there are no FRA regulations requiring 
the use of remote controlled locomotives (RCL). The use of RCL by any 
railroad is a choice and usually a business decision. Training for RCO 
is covered in part 240. Multiple certifications are addressed in this 
final rule and the only difference regarding the locomotive engineer 
training and the conductor training are the additional modules that 
cover Subpart F of part 218, and part 239.
    The ASLRRA also noted concern over the economic impact of 
decertifying a conductor on a small railroad with limited personnel. 
While FRA recognizes ASLRRA's concerns, FRA notes that small railroads 
have successfully dealt with a similar issue under part 240 for many 
years without excessive financial burdens being incurred. Further, FRA 
notes that there is a significant safety concern involved with treating 
a conductor for a small railroad differently than a conductor for a 
large railroad with respect to certificate revocation. Such treatment 
would result in the disparate treatment of conductors across the three 
classes of railroads (i.e., a conductor for a Class I railroad would 
not be permitted to serve as a conductor following a decertifiable 
event whereas a conductor on a Class III railroad, who was involved in 
the same type of decertifiable event, may be permitted to serve as a 
conductor) even thought there is no less a safety risk if a person is a 
conductor for a Class III railroad as opposed to a conductor for a 
Class I or Class II railroad. Moreover, treating small railroads 
differently in this instance would leave open the possibility that a 
conductor involved in a revocable event on a Class III railroad could 
immediately go to work for a Class I railroad due to the fact that 
restrictions were placed on the conductor's certificate rather than 
having the certificate revoked.
3. Economic Impacts on Small Entities (Railroads)
    This certification 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 these estimates or more cost detail 
on any specific requirement, a review of FRA's RIA is recommended. FRA 
has placed a copy of the RIA in the docket for this rulemaking.
    Based on information currently available, FRA estimates that about 
8 percent of the total railroad cost associated with implementing the 
final rule will be borne by small entities. FRA has estimated the total 
cost for this regulation to be $86.3 million for the railroad industry. 
FRA estimates that $6.4 million of this burden will be borne by small 
railroads. In addition, FRA will incur costs totaling approximately 
$15.2 million. FRA also estimates that small railroads comprise over 90 
percent of the number of entities impacted directly by this regulation. 
Small railroads generally have fewer conductors and operate over 
smaller territories allowing them to meet the requirements at lower 
overall cost as well as lower cost per conductor. Thus, although a 
substantial number of small entities will likely be impacted, the 
economic impact on them will likely not be significant.
4. Significant Economic Impact Criteria
    Previously, FRA sampled small railroad and found that revenue 
averaged approximately $4.7 million (not discounted) in 2006. One 
percent of average annual revenue per small railroad is $47,000. FRA 
estimates that the average small railroad will spend less than $11,000 
over 20 years to comply with the additional requirements of this final 
rule. Based on this, FRA concludes that the expected burden of this 
final rule will not have a significant impact on the competitive 
position of small entities, or on the small entity segment of the 
railroad industry as a whole.
5. Substantial Number Criteria
    This final rule will likely burden all small railroads that are not 
exempt from its scope or application. Thus, as noted

[[Page 69838]]

above this rule will impact a substantial number of small railroads.
6. Certification
    Pursuant to the Regulatory Flexibility Act (5 U.S.C. 605(b)), FRA 
certifies that this final rule will not have a significant impact on a 
substantial number of small entities. Although a substantial number of 
small railroads will be affected by this final rule, none of these 
entities will be significantly impacted.

C. Paperwork Reduction Act

    The information collection requirements in this final rule are 
being 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:

----------------------------------------------------------------------------------------------------------------
                                                            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.......          16,799
 Program: Written Program for                                                Hrs./15.5 hrs......
 Certifying Conductors.
Approval of Design of Programs:
    --Certification Programs for   6 railroads........  6 new prog.........  15.5 hours.........              93
     New 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        677 railroads......  3 programs.........  2 hours............               6
     Programs Still Not
     Conforming and Then
     Resubmitted.
    --Certification Programs       677 railroads......  50 programs........  2 hours............             100
     Materially Modified After
     Initial FRA Approval.
    --Materially Modified          677 railroads......  3 programs.........  2 hours............               6
     Programs Disapproved by FRA
     & Then Revised.
    --Revised programs             677 railroads......  1 program..........  2 hours............               2
     Disapproved 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     677 railroads......  16,200 certif......  1 hour.............          16,200
     each year).
    --Designation of Certified     677 railroads......  5,400 design.......  5 minutes..........             450
     Conductors (Class II and III
     Railroads).
    --Issued Certificates (1/3     677 railroads......  1,800 certif.......  1 hour.............           1,800
     each year).
    --Requests for Delayed         677 railroads......  5,000 request......  30 minutes.........           2,500
     Certification.
    --Testing/Evaluation to        677 railroads......  1,000 tests........  560 hours..........         560,000
     Certify Persons.
    --Testing/Evaluation to        627 railroads......  100 tests..........  400 hours..........          40,000
     Certify Conductors (Class
     III).
242.107--Types of Service--        677 railroads......  25 conductor Tests/  8 hours............             200
 Reclassification to Diff. Type                          Evaluations.
 of Cert.
242.109--Opportunity by RRs for    677 Railroads......  200 records + 200    30 minutes + 10                 133
 Certification Candidates to                             comment.             minutes.
 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    677 Railroads......  75 certific........  10 minutes.........              13
     60 Days.
    --Recertification for 60 Days  677 Railroads......  125 recertif.......  10 minutes.........              21
    --Driver Info. Not Provided    677 Railroads......  25 requests........  2 hours............              50
     and 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        54,000 Conductors/   2 notification.....  10 minutes.........             .33
     Persons of Never Having a      Persons.
     License.
    --Report of Motor Vehicle      54,000 Conductors..  200 reports........  10 minutes.........              33
     Incidents.
    --Evaluation of Driving        54,000 conductors..  18,000 eval........  15 minutes.........           4,500
     Record.
    --DAC Referral by RR After     677 Railroads......  180 referrals......  5 minutes..........              15
     Report of Driving Drug/
     Alcohol Incident.
    --DAC 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 DAC.
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            54,000 conductors..  18,000               2 minutes..........             600
     Eligibility Reqmnt.                                 determination.

[[Page 69839]]

 
    --Written Documents from DAC   677 railroads......  400 docs...........  30 minutes.........             200
     Person Not Affected by a
     Disorder.
    --Self-Referral by Conductors  54,000 conductors..  10 self-referrals..  10 minutes.........               2
     for 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.
    --Written Determination That   677 railroads......  150 determin.......  60 minutes.........             150
     Most 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         677 railroads......  18,000 deter.......  20 minutes.........           6,000
     Standards Met.
    --Determination Hearing Stds.  677 railroads......  18,000 deter.......  20 minutes.........           6,000
     Met.
    --Additional Gap Hearing       677 railroads......  200 deter..........  20 minutes.........              67
     Tests.
    --Medical Examiner             677 railroads......  18,000 certif......  2 hours............          36,000
     Certificate 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 request + 100    60 minutes + 2                  300
     Evaluation for New                                  Evals.               hours.
     Determination.
    --Request for Second Retest    677 railroads......  25 requests + 25     60 minutes + 2                   75
     and Another Medical                                 Evals..              hours.
     Evaluation.
    --Copies of part 242 Provided  677 railroads......  677 copies.........  60 minutes.........             677
     to RR Medical Examiners.
    --Consultations by Medical     677 railroads......  100 consults + 100   2 hours + 10                    217
     Examiners with Railroad                             certif.              minutes.
     Officer 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       677 railroads......  678 Program........  36 hours/70 hrs/3             3,751
     Program.                                                                 hrs.
    --Modification to Training     677 railroads......  678 Program........  12 hrs/20 hrs/30                 34
     Program.                                                                 min.
    --Completion of Training       54,000 Conductors..  18,000 Docs/18,000   1 hour/560 hours...      10,098,000
     Program by Conductors/                              Cond.
     Persons + Documents.
    --Modification of Training     677 railroads......  30 programs........  4 hours............             120
     Program Due to New Laws/
     Regulations.
    --Consultation with            677 railroads......  1,000 consult......  15 minutes.........             250
     Supervisory Employee During
     Written Test.
    --Familiarization Training     677 railroads......  10 trained           8 hours............              80
     Upon Transfer of RR                                 Conductors.
     Ownership.
    --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       677 railroads......  18,000 tests +       10 minutes + 5                4,500
     Tests and Records.                                  18,000 recd.         minutes.
    --Return to Service That       677 railroads......  1,000 tests + 1,000  10 minutes + 5                  250
     Requires Unannounced                                records.             minutes.
     Compliance Test/Record.
242.125/127--Certificate
 Determination by Other Railroads/
 Other Country:
    --Determination Made by RR     677 railroads......  100 determin.......  30 minutes.........              50
     Relying on Another RR's
     Certification.
    --Determination by Another     677 railroads......  200 determin.......  30 minutes.........             100
     Country.
242.203--Retaining Information     677 railroads......  18,000 recds.......  15 minutes.........           4,500
 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           677 railroads......  2,000 request/       2 minutes..........              67
     Certificate.                                        displays.
    --Notification That Request    677 railroads......  1,000 notif........  10 minutes.........             167
     to Serve Exceeds
     Certification.
242.211--Replacement of            677 railroads......  500 certific.......  5 minutes..........              42
 Certificates.
242.213--Multiple Certificates:
    --Notification to Engineer     677 railroads......  5 notification.....  10 minutes.........               1
     That No Conductor Is On
     Train.

[[Page 69840]]

 
    --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...........           1,760
     Administration of
     Certification Program.
    --Report of Findings by RR to  677 railroads......  36 reports.........  4 hours............             144
     FRA.
242.301--Determinations--Territor  320 railroads......  1,080 Deter........  15 minutes.........             270
 ial Qualification and Joint
 Operations.
    --Notification by Persons Who  320 railroads......  500 notific........  10 minutes.........              83
     Do Not Meet Territorial
     Qualification.
242.401--Notification to           677 railroads......  40 notific + 40      60 minutes/60                    80
 Candidate of Information That                           responses.           minutes.
 Forms Basis for Denying
 Certification and Candidate
 Response.
    --Written Notification of      677 railroads......  40 notific.........  60 minutes.........              40
     Denial of Certification.
242.403/405--Criteria for
 Revoking Certification: Periods
 of Ineligibility:
    --Review of Compliance         677 railroads......  950 reviews........  10 minutes.........             158
     Conduct.
    --Written Determination That   677 railroads......  950 determin.......  60 minutes.........             950
     the Most Recent Incident Has
     Occurred.
242.407--Process for Revoking
 Certification:
    --Revocation for Violations    677 railroads......  950 Revoked          8 hours............           7,600
     of 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.......  15 minutes.........             238
     Hearing Record.
    --Hearing Record.............  677 railroads......  950 records........  30 minutes.........             475
    --Written Decisions by RR      677 railroads......  950 decions........  2 hours............           1,900
     Official.
    --Service of Written Decision  677 railroads......  950 decisions + 950  10 minutes + 5                  238
     on Employee by RR + RR                              proofs.              minutes.
     Service Proof.
    --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             677 railroads......  100 updated records  1 hour.............             100
     Information in 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. For information or a copy of the 
paperwork package submitted to OMB, contact Mr. Robert Brogan at (202) 
493-6292 or Ms. Kimberly Toone at (202) 493-6132 or via email at the 
following addresses: [email protected]; [email protected].
    Organizations and individuals desiring to submit comments on the 
collection of information requirements should direct them to the Office 
of Management and Budget, Office of Information and Regulatory Affairs, 
725 17th St. NW., Washington, DC 20503, attn: FRA Desk Officer. 
Comments may also be sent via email to the Office of Management and 
Budget at the following address: [email protected].
    OMB is required to make a decision concerning the collection of 
information requirements contained in this final 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.
    FRA cannot 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 this final rule. The 
OMB control number, when assigned, will be announced by separate notice 
in the Federal Register.

D. 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 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 rule has been analyzed in accordance with the principles and 
criteria contained in Executive Order 13132. The rule will not have a 
substantial effect on the States or their political subdivisions; it 
will not impose any compliance costs; and it will not affect the 
relationships between the

[[Page 69841]]

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 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 rule in accordance with the 
principles and criteria contained in Executive Order 13132. As 
explained above, FRA has determined that this 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 rule is not required.

E. 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 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.

F. 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 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 rule is 
not a major Federal action significantly affecting the quality of the 
human environment.

G. 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 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.

H. 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 rule in accordance with Executive Order 
13211. FRA has determined that this rule is not likely to have a 
significant adverse effect on the supply, distribution, or use of 
energy. Consequently, FRA has determined that this rule is not a 
``significant energy action'' within the meaning of Executive Order 
13211.

I. Privacy Act

    Anyone is able to search the electronic form of all comments 
received into any of DOT's dockets 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 published in the Federal Register on 
April 11, 2000 (Volume 65, Number 70, Pages 19477-78), or you may visit 
http://www.regulations.gov/#!privacyNotice.

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 Rule

    For the reasons discussed in the preamble, FRA amends chapter II, 
subtitle B of title 49 of the Code of Federal Regulations by adding 
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.

[[Page 69842]]

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 recordkeeping.
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 Rrevocable 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) Railroads that operate only on track inside an installation 
that is not part of the general railroad system of transportation 
(i.e., plant railroads, as defined in Sec.  242.7);
    (2) Tourist, scenic, historic, or excursion operations that are not 
part of the general railroad system of transportation as defined in 
Sec.  242.7; or
    (3) 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.
    Drug and alcohol counselor (DAC) means a person who meets the 
credentialing and qualification requirements of a ``Substance Abuse 
Professional'' (SAP), as provided in 49 CFR part 40.
    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 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

[[Page 69843]]

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 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 
workplace, i.e., the employee learns the job while doing the job.
    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.
    Plant railroad means a plant or installation that owns or leases a 
locomotive, uses that locomotive to switch cars throughout the plant or 
installation, and is moving goods solely for use in the facility's own 
industrial processes. The plant or installation could include track 
immediately adjacent to the plant or installation if the plant railroad 
leases the track from the general system railroad and the lease 
provides for (and actual practice entails) the exclusive use of that 
trackage by the plant railroad and the general system railroad for 
purposes of moving only cars shipped to or from the plant. A plant or 
installation that operates a locomotive to switch or move cars for 
other entities, even if solely within the confines of the plant or 
installation, rather than for its own purposes or industrial processes, 
will not be considered a plant railroad because the performance of such 
activity makes the operation part of the general railroad system of 
transportation.
    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 
metropolitan or suburban area and commuter railroad service that was 
operated by the Consolidated Rail Corporation on January 1, 1979; and

[[Page 69844]]

    (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 
``railroad 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 DAC or 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.
    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.
    Tourist, scenic, historic, or excursion operations that are not 
part of the general railroad system of transportation means a tourist, 
scenic, historic, or excursion operation conducted only on track used 
exclusively for that purpose (i.e., there is no freight, intercity 
passenger, or commuter passenger railroad operation on the track).


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 are being 
reviewed by the Office of Management and Budget pursuant to the 
Paperwork Reduction Act of 1980 (44 U.S.C. 3501 et seq.) and have not 
yet been assigned an OMB control number.
    (b) The information collection requirements are found in the 
following sections: Sec. Sec.  242.9, 242.101, 242.103, 242.105, 
242.107, 242.109, 242.111, 242.113, 242.115, 242.117, 242.119, 242.121, 
242.123, 242.125, 242.127, 242.203, 242.205, 242.209, 242.211, 242.213, 
242.215, 242.301, 242.401, 242.403, 242.405, and 242.407.

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

[[Page 69845]]

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 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 its 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 so long as the railroad has complied with the requirements of 
paragraph (h) of this section.
    (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

[[Page 69846]]

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 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 October 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 prior safety conduct, a railroad 
shall not consider information concerning prior 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.  242.111 or Sec.  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.  242.111 or Sec.  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) of this section 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

[[Page 69847]]

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 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 DAC, 
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 DAC 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 DAC, condition certification upon 
participation in any needed aftercare and/or follow-up testing for 
alcohol or drugs deemed necessary by the DAC 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.
    (5) If the person fails to comply with the requirements of 
paragraph (o)(2) of this section, the person shall be ineligible to 
perform as a conductor until such time as the person complies with the 
requirements.


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.

[[Page 69848]]

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.
    (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 DAC 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.  219.101 or 
Sec.  219.102 of this chapter and any refusal 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 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 to 
provide a urine specimen for testing; or
    (B) Section 219.101 of this chapter, in the case of a refusal to 
provide a breath sample for alcohol testing or a blood specimen for 
mandatory post-accident toxicological testing.
    (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) In accordance with the testing procedures of subpart H of 
part 219 of this chapter, has had an alcohol test with an alcohol 
concentration of less than .02 and presented a urine sample that tested 
negative for controlled substances assayed.
    (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

[[Page 69849]]

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 or DAC 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.


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 the person 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.

[[Page 69850]]

    (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 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) Determine how training must be structured, developed, and 
delivered, including an appropriate combination of classroom, 
simulator, computer-based, correspondence, on-the-job training, or 
other formal training. The curriculum shall be designed to impart 
knowledge of, and ability to comply with applicable Federal railroad 
safety laws, regulations, and orders, as well as any relevant railroad 
rules and procedures promulgated to implement those applicable 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.
    (2) The on-the-job portion of the training program shall consist of 
the following three key components:
    (i) A brief statement describing the tasks and related steps the 
employee learning the job shall be able to perform;
    (ii) A statement of the conditions (e.g., prerequisites, tools, 
equipment, documentation, briefings, demonstrations, and practice) 
necessary for learning transfer; and
    (iii) A statement of the standards by which proficiency is measured 
through a combination of task/step accuracy, completeness, and 
repetition.
    (3) Prior to beginning the initial safety-related tasks associated 
with on-the-job exercises, employers shall make any relevant 
information or materials, such as operating rules, safety rules, or 
other rules available to employees involved for referencing.
    (4) The tasks and related steps associated with on-the-job 
exercises for a particular type of conductor service (e.g., passenger 
conductor) shall be maintained together in one manual, checklist, or 
similar document. This reference shall be made available to all 
employees involved in those on-the-job exercises.
    (5) 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.
    (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) 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:
    (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

[[Page 69851]]

    (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 the person's 
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, such 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 on the requirements of part 218, subpart F 
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 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:
    (a) The person is employed by the Canadian railroad; and
    (b) 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 
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

[[Page 69852]]

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 recordkeeping.

    (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.
    (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 this section in an electronic format provided that:
    (1) The railroad maintains an information technology security

[[Page 69853]]

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, the year of birth, and 
either a physical description 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:
    (1) Certified as both a locomotive engineer under part 240 of this 
chapter and as a conductor under this part; or
    (2) 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 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

[[Page 69854]]

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 (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 (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 (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 (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.
    (o) A person who holds a current conductor and locomotive engineer 
certificate and who is involved in a revocable event under Sec.  
242.407 or Sec.  240.307 of this chapter may only have one certificate 
revoked for that event. The determination by the railroad as to which 
certificate to revoke for the revocable event must be based on the work 
the person was performing at the time the event occurred.


Sec.  242.215  Railroad oversight responsibilities.

    (a) No later than March 31 of each year (beginning in calendar year 
2013), 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 section shall be capable of 
being annotated to reflect the following:

[[Page 69855]]

    (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 railroad:
    (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 under part 225 of 
this chapter; and
    (3) The number of incidents within that total which were detected 
as a result of a scheduled operational monitoring effort.

Subpart D--Territorial Qualification and Joint Operations


Sec.  242.301  Requirements for territorial qualification.

    (a) Except as provided in paragraph (c), (d), or (e) 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) Except as provided in paragraph (e) of this section, 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 meets the territorial qualification 
requirements for main track physical characteristics.
    (1) For a conductor who has never been qualified on main track 
physical characteristics of the territory over which he or she is to 
serve as a conductor, the assistant shall be a person who is certified 
as a conductor, meets the territorial qualification requirements for 
main track physical characteristics, and is not an assigned crew 
member.
    (2) For a conductor who was previously qualified on main track 
physical characteristics of the territory over which he or she is to 
serve as a conductor, but whose qualification has expired, the 
assistant may be any person, including an assigned crewmember other 
than the locomotive engineer so long as serving as the assistant would 
not conflict with that crewmember's other safety sensitive duties, who 
meets the territorial qualification requirements for 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 shall be provided an appropriate up-to-
date job aid.
    (e) An assistant is not required if the movement is on a section of 
main track with an average grade of less than 1% over 3 continuous 
miles, and
    (1) The maximum distance the locomotive or train will be operated 
does not exceed one mile; or
    (2) The maximum authorized speed for any operation on the track 
does not exceed 20 miles per hour; or
    (3) Operations are conducted under operating rules that require 
every locomotive and train to proceed at a speed that permits stopping 
within one half the range of vision of the locomotive engineer.

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. A railroad shall provide the 
conductor candidate with any written documents or records, including 
written statements, related to failure to meet a requirement of this 
part which support its pending denial decision.
    (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 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. 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 deny the person's certification for 
failing to comply with a railroad operating rule or practice which 
constitutes a violation under Sec.  242.403(e)(1) through (11) of this 
part if sufficient evidence exists to establish that an intervening 
cause prevented or materially impaired the conductor's ability to 
comply with that railroad operating rule or practice.


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

[[Page 69856]]

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.
    (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 the following 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) Failure to take appropriate action to prevent the locomotive 
engineer of the train the conductor is assigned to from occupying main 
track or a segment of main track without proper authority or 
permission. 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.
    (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).
    (f)(1) If in any single incident the person's conduct contravened 
more than one operating rule or practice, that

[[Page 69857]]

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 (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.
    (4) 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).


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 (8), (10), or (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 (11), the person shall have his or her 
certificate 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 (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 (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 (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.

[[Page 69858]]

    (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 the 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:
    (i) Contain the findings of fact as well as the basis therefor, 
concerning all material issues of fact presented on the record and 
citations to all applicable railroad rules and practices;
    (ii) 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); and
    (iii) Be served on the employee and the employee's representative, 
if any, with the railroad to retain proof of that service.
    (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 (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 filed 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.
    (3) Contain all available information that the person thinks 
supports the

[[Page 69859]]

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 email 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.
    (7) Be supplemented, if requested by the Operating Crew Review 
Board, with a copy of the information under 49 CFR 40.329 that 
laboratories, medical review officers, and other service agents are 
required to release to employees. The petitioner must provide written 
explanation in response to an Operating Crew Review Board request if 
written documents that should be reasonably available to the petitioner 
are not supplied.
    (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 attempt to 
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 where the petition may be accessed.
    (c) Within 60 days from the date of the notification provided in 
paragraph (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 and provide the railroad's email address (if 
available);
    (2) Serve a copy of the information being submitted to FRA to the 
petitioner and petitioner's representative, if any; and
    (3) File the information 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 information 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.
    (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

[[Page 69860]]

    (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.
    (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.

[[Page 69861]]

    (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 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.


         Appendix A to Part 242--Schedule of Civil Penalties \1\
------------------------------------------------------------------------
                                                              Willful
                 Section                     Violation       violation
------------------------------------------------------------------------
Subpart B--Program and Eligibility
 Requirements:
    242.101--Program failures:
        (a) Failure to have program.....         $10,000         $20,000
            (a)(1)-(6) Program that                2,500           5,000
             fails to address a subject.
    242.103--Program approval:
        (a)-(b) Failure to follow                  1,000           2,000
         Appendix B.....................
        (c) Failure to comply with                 1,000           2,000
         filing requirements............
        (h) to resubmit, when directed             1,000           2,000
         by FRA.........................
    242.105--Schedule for
     implementation:
        (a)-(b) Failure to designate               2,000           4,000
         conductors.....................
        (c) Allowing uncertified person            7,500          15,000
         to serve as conductor..........
        (d)-(e) Certifying without                 2,500           5,000
         complying with subpart B or
         failure to issue a certificate.
        (f) Serving as a conductor                 7,500          15,000
         without complying with subpart
         B or being issued a certificate
    242.107--Types of service:
        (a) Failure to designate types             2,000           4,000
         of service.....................
        (c) Reclassifying a certificate.           2,500           5,000
    242.109--Certification and
     recertification determinations:
        (a) Failure to determine in                2,500           5,000
         writing the requirements of
         (a)(1), (a)(2), (a)(3), and/or
         (a)(4).........................
        (b) Considering excluded data...           2,000           4,000
        (c) Failure to have required               1,000           2,000
         documents on file..............
        (d), (e) Failure to provide                2,000           4,000
         timely review opportunity......
    242.111--Motor vehicle operator
     records:
        (a) Failure to implement program           6,000  ..............
         meeting requirements...........

[[Page 69862]]

 
        (b) Failure to determine                   5,000           7,500
         eligibility requirements met...
        (c) Failure to initially certify           2,000           4,000
        (d) Failure to recertify........           2,000           4,000
        (e) Allowing person to serve as            7,500          15,000
         conductor before information is
         evaluated......................
        (f) Failure to certify or                  2,000           4,000
         certify during pendency of
         waiver request.................
        (g) Failure to take action to              1,000           2,000
         make information available.....
        (h), (i), (j) Failure to request           1,000           2,000
         record.........................
        (k) Failure to notify of absence           1,000           2,000
         of license.....................
        (l) Failure to report in timely            1,000           2,000
         manner or railroad taking
         certification action for not
         reporting earlier than 48 hours
        (m), (n) Considering excluded              2,000           4,000
         data...........................
        (o) Failure to:                   ..............  ..............
            (1) Consider data...........           6,000          10,000
            (3), (4) Properly act in               2,500           5,000
             response to data...........
    242.113--Prior safety conduct:
        (a) Failure to implement program           6,000  ..............
         meeting requirements...........
        (b) Failure to determine                   5,000           7,500
         eligibility requirements met...
        (c) Failure to request record or           2,000           2,000
         take required action...........
    242.115--Substance abuse/rules:
        (a) Failure to implement program           6,000  ..............
         meeting requirements...........
        (b) Failure to determine                   5,000           7,500
         eligibility requirements met...
        (c) Failure to have basis for              2,500           5,000
         taking action..................
        (d)-(g) Failure to comply with             2,500           5,000
         requirements...................
    242.117--Vision and hearing acuity:
        (a) Failure to implement program           6,000  ..............
         meeting requirements...........
        (b) Failure to determine                   5,000           7,500
         eligibility requirements met...
        (c) Failure to have basis for              1,000           2,000
         finding proper acuity..........
        (d) Acuity examination performed           1,000           2,000
         by unauthorized person.........
        (e) Failure to note need for               1,000           2,000
         device to achieve acuity.......
        (f) Failure to use device needed           1,000           2,000
         for proper acuity..............
        (h)-(j) Failure to comply with             2,500           5,000
         requirements...................
        (k) Failure of conductor to                2,500           5,000
         notify.........................
    242.119--Training:
        (a) Failure to implement program           6,000  ..............
         meeting requirements...........
        (b) Failure to determine                   5,000           7,500
         eligibility requirements met...
        (c) Failure to determine in                2,500           5,000
         writing the requirements of
         (c)(1), (c)(2), and/or (c)(3)..
        (d) Failure to:
            (1) Make determination,                2,500           5,000
             include proper curriculum,
             and/or document knowledge
             and ability................
            (2) Failure to include                 1,000           2,000
             component..................
            (3) Failure to make                    1,000           2,000
             information available......
            (4) Failure to maintain                1,000           2,000
             steps or tasks in one
             manual or make available...
            (5) Failure to review and              1,000           2,000
             modify training plan.......
        (e) Failure to require person to           2,500           5,000
         meet requirements..............
        (f) Failure to provide                     1,000           2,000
         opportunity to consult.........
        (g)-(k) Failure to have adequate           2,500           5,000
         procedures or include
         procedures in program..........
        (l) Failure to have adequate               2,500           5,000
         procedures for or provide
         continuing education...........
    242.121--Knowledge testing:
        (a) Failure to implement program           6,000  ..............
         meeting requirements...........
        (b) Failure to determine                   5,000           7,500
         eligibility requirements met...
        (c) Failure to have adequate               2,500           5,000
         procedures for testing
         knowledge......................
        (d) Failure to properly document           2,500           5,000
         testing........................
        (e) Failure to provide                     2,500           5,000
         opportunity to consult.........
        (f) Failure to document whether            2,500           5,000
         test was passed or failed......
        (g) Allowing person to serve as            2,500           5,000
         a conductor despite test
         failure........................
    242.123--Monitoring operational
     performance:
        (a)-(b) Failure to implement               6,000  ..............
         program meeting requirements...
        (c) Failure to test each                   2,500           5,000
         conductor annually.............
        (d) Failure to test properly....           2,500           5,000
        (e) Failure to indicate the                2,500           5,000
         action to be take..............
        (f) Failure to test within time            2,500           5,000
         limits.........................
    242.125--Reliance on determination
     of another:
        (a) Failure to address in                  5,000           7,500
         program or require newly hired
         conductor to take entire
         training program...............
        (b) Failure to make any required           2,500           5,000
         determinations.................
242.127--Relying on requirements of a
 country:
        (a)-(b) Failure to determine               2,500           5,000
         person employed and meets
         Canadian standards.............
Subpart C--Administration of the
 Certification Program:
    242.201--Time limitations:
        (a), (c), and (d) Exceeding time           2,000           4,000
         limit..........................
    242.203--Supporting information:
        (a), (c)-(e) Failure to have a             2,500           5,000
         record.........................
        (b) Failure to have a complete             2,000           4,000
         record.........................
        (f) Falsification of a record...             (-)          10,000

[[Page 69863]]

 
        (g) Failure to comply with                 2,000           4,000
         requirements if records
         maintained electronically......
    242.205--Identification of persons:
        (a)-(b) Failure to have a record           2,500           5,000
        (c) Failure to update or make a            2,000           4,000
         record available...............
        (d) Falsification of a record...             (-)          10,000
        (e) Failure to comply with                 2,000           4,000
         requirements if records
         maintained electronically......
    242.207--Certificate components:
        (a) Improper certificate........           1,000           2,000
        (b) Failure to designate those             1,000           2,000
         with signing authority.........
        (d) Falsification of a                       (-)          10,000
         certificate....................
    242.209--Maintenance of the
     certificate:
        (a) Failure of conductor to                1,000           2,000
         carry certificate or display
         certificate when requested.....
        (b) Failure of conductor to                4,000           8,000
         notify railroad of limitations
         or railroad requiring conductor
         to exceed limitations..........
    242.211--Replacement of
     certificates:
        (a) Failure to have a reasonably           2,000           4,000
         accessible system for
         certificate replacement........
        (b) Failure to comply with                 1,000           2,000
         requirements for temporary
         replacement certificates.......
    242.213--Multiple certifications:
        (d) Allowing an engineer to                7,500          15,000
         operate without a conductor
         where the engineer is not
         certified as a conductor or not
         accompanied by a certified
         conductor......................
        (e) Failure to comply with                 2,500           5,000
         emergency restrictions.........
        (f) Failure of conductor to                4,000           8,000
         notify railroad of denial or
         revocation.....................
        (g) Performing conductor service           7,500          15,000
         with a revoked conductor
         certificate....................
        (h), (k) Performing work as an             7,500          15,000
         engineer or obtaining an
         engineer certificate with a
         conductor certification revoked
         for a violation of
         242.403(e)(1)-(e)(5) or (e)(12)
        (i), (j) Performing work as a              7,500          15,000
         conductor or obtaining a
         conductor certificate with an
         engineer certification revoked
         under 240.307..................
        (l) Denying or revoking engineer           4,000           8,000
         certification or
         recertification based solely on
         the denial of conductor
         certification..................
        (m) Denying or revoking                    4,000           8,000
         conductor certification or
         recertification based solely on
         the denial of engineer
         certification..................
    242.215--Oversight responsibility:
        (a) Failure to perform annual              2,000           4,000
         review and analysis or perform
         on time........................
        (b)-(i) Incomplete or inaccurate           2,500           5,000
         report.........................
Subpart D--Territorial Qualification and
 Joint Operations
    242.301--Territorial qualification:
        (a) Allowing uncertified person            7,500          15,000
         or person not territorially
         qualified to serve as a
         conductor......................
        (b) Failure to notify railroad             4,000           8,000
         of lack of qualifications......
        (c) Failure to provide required            4,000           8,000
         assistance.....................
        (d) Failure to provide                     4,000           8,000
         assistance or up-to-date job
         aid............................
Subpart E--Denial and Revocation of
 Certification
    242.401--Denial of certification:
        (a) Failure to notify or provide           2,000           4,000
         opportunity for comment........
        (c) Failure to notify, provide             2,000           4,000
         data, or untimely notification.
    242.403--Revocation criteria:
        (a) Failure to implement program           6,000  ..............
         meeting requirements...........
        (b) Unlawful failure to comply             2,500           5,000
         with rules and practices.......
        (c) Failure to revoke                      2,500           5,000
         certification..................
        (d) Considering excluded data...           2,500           5,000
        (e) Considering unlisted                   2,500           5,000
         violations of operating rules
         and practices..................
        (f) Improperly counting or                 2,500           5,000
         considering violations.........
    242.405--Periods of ineligibility:
        (a)-(c) Imposition of incorrect            2,500           5,000
         period of ineligibility........
    242.407--Revocation of
     certification:
        (a) Failure to revoke                      7,500          15,000
         certification..................
        (b) Failure to suspend, notify,            2,500           5,000
         provide hearing opportunity, or
         improper procedures............
        (c)-(h) Failure of railroad to             2,500           5,000
         comply with hearing or waiver
         procedures.....................
        (j) Failure of railroad to make            1,000           2,000
         record.........................
        (k) Failure of railroad to                 5,000          10,000
         conduct reasonable inquiry or
         make good faith determination..
------------------------------------------------------------------------

     
---------------------------------------------------------------------------

    \1\ 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.
---------------------------------------------------------------------------

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

[[Page 69864]]

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.
    Each railroad is authorized to file by electronic means any 
program submissions required under this part. Prior to any person 
submitting a railroad's first program submission electronically, the 
person shall provide the Associate Administrator with the following 
information in writing:
    (1) The name of the railroad;
    (2) The names of two individuals, including job titles, who will 
be the railroad's points of contact and will be the only individuals 
allowed access to FRA's secure document submission site;
    (3) The mailing addresses for the railroad's points of contact;
    (4) The railroad's system or main headquarters address located 
in the United States;
    (5) The email addresses for the railroad's points of contact; 
and
    (6) The daytime telephone numbers for the railroad's points of 
contact.
    A request for electronic submission or FRA review of written 
materials shall be addressed to the Associate Administrator for 
Railroad Safety/Chief Safety Officer, Federal Railroad 
Administration, 1200 New Jersey Avenue SE., Washington, DC 20590. 
Upon receipt of a request for electronic submission that contains 
the information listed above, FRA will then contact the requestor 
with instructions for electronically submitting its program.
    A railroad that electronically submits an initial program or new 
portions or revisions to an approved program required by this part 
shall be considered to have provided its consent to receive approval 
or disapproval notices from FRA by email. FRA may electronically 
store any materials required by this part regardless of whether the 
railroad that submits the materials does so by delivering the 
written materials to the Associate Administrator and opts not to 
submit the materials electronically. A railroad that opts not to 
submit the materials required by this part electronically, but 
provides one or more email addresses in its submission, shall be 
considered to have provided its consent to receive approval or 
disapproval notices from FRA by email or mail.

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 provide initial conductor training, 
the railroad is obligated to state so in its submission. A railroad 
that makes this election will be limited to recertifying persons 
initially certified by another railroad. A railroad that makes this 
election can rescind it 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(l) 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(l) 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(l). 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, use of classroom, use of computer based training, use 
of film or slide presentations, and 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.
    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.

[[Page 69865]]

    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.

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

[[Page 69866]]

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 69867]]

[GRAPHIC] [TIFF OMITTED] TR09NO11.001


    Issued in Washington, DC, on October 26, 2011.
Joseph C. Szabo,
Administrator.
[FR Doc. 2011-28175 Filed 11-8-11; 8:45 am]
BILLING CODE 4910-06-P