[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.
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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