[Federal Register Volume 75, Number 217 (Wednesday, November 10, 2010)]
[Proposed Rules]
[Pages 69166-69219]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-27642]
[[Page 69165]]
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Part II
Department of Transportation
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Federal Railroad Administration
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49 CFR Part 242
Conductor Certification; Proposed Rule
Federal Register / Vol. 75, No. 217 / Wednesday, November 10, 2010 /
Proposed Rules
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DEPARTMENT OF TRANSPORTATION
Federal Railroad Administration
49 CFR Part 242
[Docket No. FRA-2009-0035, Notice No. 1]
RIN 2130-AC08
Conductor Certification
AGENCY: Federal Railroad Administration (FRA), Department of
Transportation (DOT).
ACTION: Notice of proposed rulemaking (NPRM).
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SUMMARY: FRA proposes to prescribe regulations for certification of
conductors, as required by the Rail Safety Improvement Act of 2008. The
proposed rule would require railroads to have a formal program for
certifying conductors. As part of that program, railroads would be
required to have a formal process for training prospective conductors
and determining that all persons are competent before permitting them
to serve as a conductor. FRA is proposing this regulation to ensure
that only those persons who meet minimum Federal safety standards serve
as conductors, to reduce the rate and number of accidents and
incidents, and to improve railroad safety. Although this NPRM does not
propose any specific amendments to the regulation governing locomotive
engineer certification, it does highlight areas in that regulation that
may require conforming changes.
DATES: Written Comments: Written comments on the proposed rule must be
received by January 10, 2011. Comments received after that date will be
considered to the extent possible without incurring additional expense
or delay. FRA anticipates being able to determine these matters without
a public hearing. However, if prior to December 10, 2010, FRA receives
a specific request for a public hearing accompanied by a showing that
the party is unable to adequately present his or her position by
written statement, a hearing will be scheduled and FRA will publish a
supplemental notice in the Federal Register to inform interested
parties of the date, time, and location of any such hearing.
ADDRESSES: You may submit comments identified by the docket number FRA-
2009-0035 by any one of the following methods:
Fax: 1-202-493-2251;
Mail: U.S. Department of Transportation, Docket
Operations, M-30, West Building Ground Floor, Room W12-140, 1200 New
Jersey Avenue, SE., Washington, DC 20590;
Hand Delivery: U.S. Department of Transportation, Docket
Operations, West Building Ground Floor, Room W12-140, 1200 New Jersey
Avenue, SE., Washington, DC 20590, between 9 a.m. and 5 p.m., Monday
through Friday, except Federal holidays; or
Electronically through the Federal eRulemaking Portal,
http://www.regulations.gov. Follow the online instructions for
submitting comments.
Instructions: All submissions must include the agency name, docket
name and docket number or Regulatory Identification Number (RIN) for
this rulemaking (2130-AC08). Note that all comments received will be
posted without change to http://www.regulations.gov, including any
personal information provided. Please see the Privacy Act heading in
the SUPPLEMENTARY INFORMATION section of this document for Privacy Act
information related to any submitted comments or materials.
Docket: For access to the docket to read background documents or
comments received, go to http://www.regulations.gov at any time or to
U.S. Department of Transportation, Docket Operations, M-30, West
Building Ground Floor, Room W12-140, 1200 New Jersey Avenue, SE.,
Washington, DC, between 9 a.m. and 5 p.m., Monday through Friday,
except Federal holidays.
FOR FURTHER INFORMATION CONTACT: Mark H. McKeon, Special Assistant to
the Associate Administrator for Railroad Safety/Chief Safety Officer,
U.S. Department of Transportation, Federal Railroad Administration,
Mail Stop 25, West Building 3rd Floor West, Room W35-334, 1200 New
Jersey Avenue, SE., Washington, DC 20590 (telephone: 202-493-6350); or
John Seguin, Trial Attorney, U.S. Department of Transportation, Federal
Railroad Administration, Office of Chief Counsel, RCC-10, Mail Stop 10,
West Building 3rd Floor, Room W31-217, 1200 New Jersey Avenue, SE.,
Washington, DC 20590 (telephone: 202-493-6045).
SUPPLEMENTARY INFORMATION:
I. Statutory Background
Pursuant to the Rail Safety Improvement Act of 2008 Sec. 402,
Public Law 110-432, 122 Stat. 4884, (Oct. 16, 2008) (codified at 49
U.S.C. 20163) (hereinafter ``RSIA'') Congress required the Secretary of
Transportation (Secretary) to prescribe regulations to establish a
program requiring the certification of train conductors. The Secretary
delegated this authority to the Federal Railroad Administrator. 49 CFR
1.49(oo).
Section 20163(a) of 49 U.S.C. (Section 402 of the RSIA) provides
that:
The Secretary of Transportation shall prescribe regulations to
establish a program requiring the certification of train conductors.
In prescribing such regulations, the Secretary shall require that
train conductors be trained, in accordance with the training
standards developed pursuant to section 20162.
Section 20163(b) provides that ``[i]n developing the regulations
required by subsection (a), the Secretary may consider the requirements
of section 20135(b) through (e).'' The requirements in 49 U.S.C. 20135
concern the certification of locomotive engineers.
Section 20162(a)(2) of 49 U.S.C. (Section 401 of the RSIA) provides
that:
``(a) IN GENERAL.--The Secretary of Transportation shall, not
later than 1 year after the date of enactment of the Rail Safety
Improvement Act of 2008, establish--
* * *
(2) a requirement that railroad carriers, contractors, and
subcontractors develop and submit training and qualification plans
to the Secretary for approval, including training programs and
information deemed necessary by the Secretary to ensure that all
safety-related railroad employees receive appropriate training in a
timely manner. * * *''
Section 20162(b) of 49 U.S.C. provides that ``[t]he Secretary shall
review and approve the plans required under subsection (a)(2) utilizing
an approval process required for programs to certify the qualification
of locomotive engineers pursuant to part 240 of title 49, Code of
Federal Regulations.''
II. RSAC Overview
In March 1996, FRA established the Railroad Safety Advisory
Committee (RSAC), which provides a forum for collaborative rulemaking
and program development. RSAC includes representatives from all of the
agency's major stakeholder groups, including railroads, labor
organizations, suppliers and manufacturers, and other interested
parties. A list of RSAC members follows:
American Association of Private Railroad Car Owners (AARPCO);
American Association of State Highway & Transportation Officials
(AASHTO);
American Chemistry Council;
American Petroleum Institute;
American Public Transportation Association (APTA);
American Short Line and Regional Railroad Association (ASLRRA);
American Train Dispatchers Association (ATDA);
Association of American Railroads (AAR);
Association of Railway Museums (ARM);
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Association of State Rail Safety Managers (ASRSM);
Brotherhood of Locomotive Engineers and Trainmen (BLET);
Brotherhood of Maintenance of Way Employes Division (BMWED);
Brotherhood of Railroad Signalmen (BRS);
Chlorine Institute;
Federal Transit Administration (FTA);*
Fertilizer Institute;
High Speed Ground Transportation Association (HSGTA);
Institute of Makers of Explosives;
International Association of Machinists and Aerospace Workers;
International Brotherhood of Electrical Workers (IBEW);
Labor Council for Latin American Advancement (LCLAA);*
League of Railway Industry Women;*
National Association of Railroad Passengers (NARP);
National Association of Railway Business Women;*
National Conference of Firemen & Oilers;
National Railroad Construction and Maintenance Association;
National Railroad Passenger Corporation (Amtrak);
National Transportation Safety Board (NTSB);*
Railway Supply Institute (RSI);
Safe Travel America (STA);
Secretaria de Comunicaciones y Transporte;*
Sheet Metal Workers International Association (SMWIA);
Tourist Railway Association Inc.;
Transport Canada;*
Transport Workers Union of America (TWU);
Transportation Communications International Union/BRC (TCIU/BRC);
Transportation Security Administration (TSA); and
United Transportation Union (UTU).
*Indicates associate, non-voting membership.
When appropriate, FRA assigns a task to RSAC, and after
consideration and debate, RSAC may accept or reject the task. If
accepted, RSAC establishes a working group that possesses the
appropriate expertise and representation of interests to develop
recommendations to FRA for action on the task. These recommendations
are developed by consensus. The working group may establish one or more
task forces or other subgroups to develop facts and options on a
particular aspect of a given task. The task force, or other subgroup,
reports to the working group. If a working group comes to consensus on
recommendations for action, the package is presented to RSAC for a
vote. If the proposal is accepted by a simple majority of RSAC, the
proposal is formally recommended to FRA. FRA then determines what
action to take on the recommendation. Because FRA staff play an active
role at the working group level in discussing the issues and options
and in drafting the language of the consensus proposal, and because the
RSAC recommendation constitutes the consensus of some of the industry's
leading experts on a given subject, FRA is often favorably inclined
toward the RSAC recommendation. However, FRA is in no way bound to
follow the recommendation and the agency exercises its independent
judgment on whether the recommended rule achieves the agency's
regulatory goals, is soundly supported, and is in accordance with
applicable policy and legal requirements. Often, FRA varies in some
respects from the RSAC recommendation in developing the actual
regulatory proposal or final rule. Any such variations would be noted
and explained in the rulemaking document issued by FRA. If the working
group or RSAC is unable to reach consensus on recommendations for
action, FRA resolves the issue(s) through traditional rulemaking
proceedings or other action.
III. RSAC Conductor Certification Working Group
On December 10, 2008, the RSAC accepted a task (No. 08-07) entitled
``Conductor Certification.'' The purpose of this task was defined as
follows: ``To develop regulations for certification of railroad
conductors, as required by the Rail Safety Improvement Act of 2008
(Act), and to consider any appropriate related amendments to existing
regulations.'' The task called for the RSAC Conductor Certification
Working Group (Working Group) to perform the following:
Review safety data bearing on opportunities for reducing
risk associated with the duties performed by freight and passenger
conductors.
Assist FRA in developing regulations responsive to the
legislative mandate.
Consider any revisions to 49 CFR Part 240 appropriate to
conform and update the certification programs for locomotive engineers
and conductors.
The task also listed issues requiring specific report:
What requirements for training and experience are
appropriate?
What classifications of conductors should be recognized?
To what extent do existing requirements and procedures for
certification of locomotive engineers provide a model for conductor
certification?
To what extent should unsafe conduct occurring while a
locomotive engineer affect certification status as a conductor, and
vice versa?
Starting with the locomotive engineer certification model,
what opportunities are available for simplifying appeals from
decertification decisions of the railroads?
The Working Group was formed from interested organizations that are
members of the RSAC. In addition to FRA, the following organizations
contributed members:
AAR, including members from BNSF Railway Company (BNSF), Canadian
National Railway (CN), Canadian Pacific Railway (CP), CSX
Transportation, Inc. (CSX), Iowa Interstate Railroad, LTD, Kansas City
Southern Railway (KCS), Northeast Illinois Regional Commuter Railroad
Corporation (METRA), Norfolk Southern Railway Company (NS), and Union
Pacific Railroad (UP);
The National Railroad Passenger Corporation (Amtrak);
APTA, including members from Long Island Rail Road (LIRR), Metro-
North Railroad (MNCW), Southeastern Pennsylvania Transportation
Authority (SEPTA), Southern California Regional Rail Authority
(Metrolink), and Transit Solutions Group (TSG);
ASLRRA, including members from Anacostia Rail Holdings (ARH),
Genesee & Wyoming Inc. (GNWR), Omnitrax Inc. (Omnitrax), Rio Grande
Pacific Corporation (RGP), and WATCO Companies, Inc. (WATCO);
BLET;
National Railroad Construction & Maintenance Association, including
members from Herzog Transit Services (Herzog);
NTSB;
TWU; and
UTU.
DOT's John A. Volpe National Transportation Systems Center (Volpe
Center) also contributed members to the Working Group.
The Working Group convened 6 times on the following dates and
locations:
July 21-23, 2009 in Washington, DC;
August 25-27, 2009 in Overland Park, KS;
September 15-17, 2009 in Colorado Springs, CO;
October 20-22, 2009 in Arlington, VA;
November 17-19, 2009 in Scottsdale, AZ; and
December 16-18, 2009 in Washington, DC.
To aid the Working Group in its development of recommendations for
certification of conductors, FRA prepared draft regulatory text, which
it distributed prior to the July meeting. The draft text closely
followed 49 CFR part 240 which governs the qualification and
certification of locomotive engineers.
During each meeting, Working Group members made recommendations
regarding changes and additions to the draft text. Following each
meeting, FRA
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considered all of the recommendations and revised the draft text
accordingly. Minutes of each of these meetings are part of the docket
in this proceeding and are available for public inspection.
Having worked closely with the RSAC in developing its
recommendations, FRA believes that the RSAC has effectively addressed
concerns with regard to the certification of conductors. FRA has
greatly benefited from the open, informed exchange of information
during the meetings. The Working Group reached consensus on all of its
recommended regulatory provisions. On March 18, 2010, the Working Group
presented its recommendations to the full RSAC for concurrence. All of
the members of the full RSAC in attendance at the March meeting
accepted the regulatory recommendations submitted by the Working Group.
Thus, the Working Group's recommendations became the full RSAC's
recommendations to FRA.
As contemplated by the Working Group's task statement, the
promulgation of the conductor certification regulation opens up
consideration of conforming changes to 49 CFR part 240, ``Qualification
and certification of locomotive engineers.'' Such changes could include
amending the program submission process, adding 49 CFR 218, subpart F
violations as revocable offenses, and handling engineer and conductor
petitions for review with a single FRA board. Although FRA intended for
the Working Group to consider changes to part 240 during its July-
December meetings, the Working Group was unable to undertake that task.
Moreover, members of the Working Group felt that it would be more
efficient to discuss changes to part 240 after the conductor
certification regulation is finalized and comments are received.
Therefore, FRA expects the Working Group to continue meeting after
publication of this NPRM and to provide recommendations that address
both the comments to this NPRM and conforming changes to part 240.
In addition to the conductor certification Working Group,
interested parties should also be aware that other RSAC working groups
are currently meeting to discuss potential FRA regulations which may
impact the conductor certification regulation. The Medical Standards
for Safety-Critical Personnel Working Group (RSAC Task No.: 06-03), for
example, is developing recommendations for a FRA medical standards
regulation. That regulation, if promulgated, could supersede some of
the medically-related requirements in the conductor certification
regulation. Further, the Training Standards Working Group (RSAC Task
No.: 10-01) is developing recommendations for a FRA training
regulation. While FRA does not expect that such a training regulation
would supersede the training requirements in the conductor
certification regulation, FRA does not know at this time what the final
training regulation will provide. Some modification of the training
requirements in this proposed part (e.g., removal of the task analysis
requirement) may be necessary to conform to the final requirements of
the training regulation.
IV. Section-by-Section Analysis
Subpart A--General
Subpart A of the proposal contains the general provisions of the
rule, including a formal statement of the rule's purpose and scope. The
subpart also provides that this proposed rule would not constrain a
railroad's ability to prescribe additional or more stringent
requirements for its conductors that are not inconsistent with this
proposed rule.
Section 242.1 Purpose and Scope
This section, derived from 49 CFR 240.1, provides that the proposed
rule prescribes minimum standards for the eligibility, training,
testing, certification and monitoring of persons who serve as
``conductors.'' This section indicates that the purpose of the proposed
rule is to ensure that only those persons who meet minimum Federal
safety standards serve as conductors, to reduce the rate and number of
accidents and incidents, and to improve railroad safety.\1\
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\1\ Paragraph (a) of this section has been slightly modified
from the version voted on by the Working Group and full RSAC. The
modification is meant to clarify that only those persons that meet
the minimum safety standards in this proposed rule would be
permitted to serve as conductors.
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Despite the fact that a person may have a job classification title
other than that of conductor, the conductor certification requirements
of this proposed rule would apply to that person if he or she meets the
definition of conductor. That definition (and who would be covered by
the definition) is discussed in more detail in the section analysis for
proposed Sec. 242.7 below.
Section 242.3 Application and Responsibility for Compliance
This section is derived, essentially verbatim, from 49 CFR 240.3.
The section provides that the proposed rule would apply to all
railroads with two exclusions. The first exclusion addresses several
types of operations that occur on tracks that are not part of the
general railroad system. This exclusion would encompass operations
commonly described as tourist, scenic, or excursion service to the
extent that they occur on tracks that are not part of the general
railroad system. This exclusion also addresses operations that occur
within the confines of industrial installations commonly referred to as
``plant railroads'' and typified by operations such as those in steel
mills that do not go beyond the plant's boundaries and that do not
involve the switching of rail cars for entities other than themselves.
The second exclusion covers rapid transit operations in an urban
area that are not connected to the general system. It should be noted,
however, that some rapid transit type operations, given their links to
the general system, are within FRA's jurisdiction and FRA specifically
intends to have this proposed rule apply to those rapid transit type
operations. This proposed rule is not intended to have any effect on
FRA's jurisdiction. Since this proposed rule is intended to apply to
the same railroads covered by part 240, one should refer to the
preamble discussions of 49 CFR 240.3 in 64 FR 60966, 60974 (Nov. 8,
1999), 63 FR 50626, 50636-50637 (Sept. 22, 1998), and 56 FR 28228,
28240 (June 19, 1991) for a more detailed analysis of the applicability
of this proposed rule.
Section 242.5 Effect and Construction
This section addresses several legal issues.\2\ Paragraph (a)
addresses the relationship of this proposed rule to preexisting legal
relationships. Paragraph (b) states that FRA does not intend to alter
the authority of a railroad to initiate disciplinary sanctions against
its employees by issuance of this proposed rule.
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\2\ This section has been modified from the version of the
section voted on by the Working Group and full RSAC, including the
removal of paragraphs (a) and (b). Those paragraphs addressed
preemption of State law which FRA now believes would be unnecessary
because 49 U.S.C. 20106 and other Federal railroad safety statutes
sufficiently address the preemptive effect of FRA's regulations.
Providing a separate Federal regulatory provision concerning the
regulation's preemptive effect would be duplicative and unnecessary.
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Paragraph (c) of this section addresses the issue of ``flowback.''
The term flowback has been used in the industry to describe a situation
where an employee leaves his or her current position to return to a
previously held position or craft. An example of flowback occurs when a
person who holds the position of a conductor subsequently qualifies for
the position of locomotive engineer, and at some later point in time
the person finds it necessary or preferable to revert back to a
conductor position. The reasons for
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reverting back to the previous craft may derive from personal choice or
a less voluntary nature; e.g., downsizing.
Many collective bargaining agreements address the issue of
flowback. As a general matter, FRA does not intend to create or
prohibit the right to flowback or take a position on whether flowback
is desirable. However, paragraph (c) of this section must be read in
conjunction with Sec. 242.213, which limits flowback in certain
situations.\3\ As described in the section analysis for that section
below, a person who holds a conductor and locomotive engineer
certificate and who has had his or her locomotive engineer certificate
revoked could not work as a conductor during the period of revocation.
In addition, a person who holds a conductor and locomotive engineer
certificate and who has had his or her conductor certification revoked
for certain violations could not work as a locomotive engineer during
the period of revocation.
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\3\ The reference to Sec. 242.213 in Sec. 242.5(c) was not
considered by the Working Group or the full RSAC, but was added by
FRA to clarify this proposed rule's position on flowback.
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Paragraph (d) of this section addresses employee rights. The intent
of the proposed rule is to explicitly preserve any remedy already
available to the person and not to create any new entitlements. FRA
expects that employees would benefit from this paragraph by referring
to it should a railroad use this regulation as an inappropriate
explanation for ignoring an employee's rights or remedies. A railroad
must consider whether any procedural rights or remedies available to
the employee would be inconsistent with this part.
Section 242.7 Definitions
This section contains the definitions that FRA proposes to employ
in this rule. Most of the definitions are taken essentially verbatim
from 49 CFR part 240 and have been thoroughly analyzed in that
rulemaking. Parties seeking a detailed analysis of those definitions
should refer to the part 240 rulemaking documents. See, 54 FR 50890
(Dec. 11, 1989), 56 FR 28228 (June 19, 1991), 58 FR 18982 (Apr. 9,
1993), 60 FR 53133 (Oct. 12, 1995), 63 FR 50626 (Sept. 22, 1998), 73 FR
80349 (Dec. 31, 2008), and 74 FR 68173 (Dec. 23, 2009). Some of the
definitions in this proposed rule, however, are not found in part 240
or have been substantively modified from their use in part 240. Those
definitions are analyzed below.
As mentioned above, potential rulemakings involving medical
standards and 49 CFR part 219 (Control of Alcohol and Drug Use) may
impact many of the definitions in part 240 and proposed part 242. For
example, definitions relating to medical standards (e.g., ``medical
examiner'') and drug and alcohol control (e.g., ``substance abuse
disorder'') in parts 240 and 242 may be superseded by definitions
provided in those rulemakings. However, until those rulemakings are
promulgated, the definitions in parts 240 and 242 will control.
Conductor
Although the RSIA requires FRA to establish a program for the
certification of conductors, the Act does not define the term
``conductor.'' Without guidance from the Act, FRA proposes, and RSAC
recommended, that the definition of ``conductor'' be based on the
generally understood responsibilities of that position, similar to Part
240's approach to defining locomotive engineer. This proposed rule
defines conductor as ``the crewmember in charge of a train or yard crew
as defined in part 218 of this chapter.'' Part 218 defines ``train or
yard crew'' as:
``one or more railroad employees assigned a controlling
locomotive, under the charge and control of one crew member; called
to perform service covered by Section 2 of the Hours of Service Act;
involved with the train or yard movement of railroad rolling
equipment they are to work with as an operating crew; reporting and
working together as a unit that remains in close contact if more
than one employee; and subject to the railroad operating rules and
program of operational tests and inspections required in Sec. Sec.
217.9 and 217.11 of this chapter.''
As the use of the singular form of ``crewmember'' suggests, FRA's
proposed definition mandates that only one person could be in charge of
the train or yard crew and that person would be deemed the conductor
for purposes of this proposed regulation only. Moreover, in some
circumstances, a locomotive engineer, including a remote control
operator, would be required to be certified as both a locomotive
engineer under 49 CFR part 240 and as a conductor under this proposed
rule. See proposed 49 CFR 242.213(d) and (e). All other train or yard
crew members (e.g., assistant conductors, brakemen, hostlers, trainmen,
switchmen, utility persons, flagmen, yard helpers, and others who might
have different job titles but perform similar duties and are not in
charge of a train or yard crew) do not fall within the definition of
``conductor'' for purposes of this proposed rule.
Ineligible or Ineligibility \4\
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\4\ The definition of this term was not considered by the
Working Group or the full RSAC. However, the use of term in part 240
has generated some confusion and, therefore, FRA hopes to avoid any
confusion in this proposed rule by defining the term.
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The term ``ineligible'' or ``ineligibility,'' which is not used in
part 240, means that a person is legally disqualified from serving as a
certified conductor. The term is broadly defined to cover a number of
circumstances in which a person may not serve as a certified conductor.
Revocation of certification pursuant to Sec. 242.407 and denial of
certification pursuant to Sec. 242.401 are two examples in which a
person would be ineligible to serve as a conductor. A period of
ineligibility may end when a condition or conditions are met--for
example, when a person meets the conditions to serve as a conductor
following an alcohol or drug violation pursuant to proposed Sec.
242.115.
Job Aid
The term ``job aid,'' which is not used in part 240, is defined as
information regarding other than main track physical characteristics
that supplements the operating instructions of the territory over which
the locomotive or train movement will occur. The terms ``main track''
and ``physical characteristics'' are discussed below.
The term ``job aid'' is broadly defined in this proposed rule. A
job aid would consist of information that could be obtained from a
variety of sources, including but not limited to, training on the
territory pursuant to proposed Sec. 242.119, maps, charts or visual
aids of the territory, or a person or persons to contact who are
qualified on the territory and who can describe the physical
characteristics of the territory. While each railroad would have
flexibility in how it conveys the information in a job aid to a
conductor, the job aid would, at a minimum have to cover the
characteristics of the territory over which the locomotive or train
movement will occur including: permanent close clearances, location of
permanent derails and switches, assigned radio frequencies in use and
special instructions required for movement, if any, and railroad-
identified unique operating conditions.
Pursuant to proposed Sec. 242.121(c)(4)(v), each railroad would be
required to test conductors and conductor candidates on the use of any
job aid that a railroad could provide a conductor. Proposed Sec.
242.301(d) describes the conditions under which a railroad should
provide a conductor with a job aid.
[[Page 69170]]
Main Track
The term ``main track'' is defined as a track upon which the
operation of trains is governed by one or more of the following methods
of operation: timetable; mandatory directive; signal indication;
positive train control as defined in 49 CFR part 236; or any form of
absolute or manual block system. That definition mirrors the definition
of ``main track'' in 49 CFR part 240, but also includes a reference to
positive train control.
Medical Examiner
The term ``medical examiner'' is defined as a person licensed as a
doctor of medicine or doctor of osteopathy. A medical examiner could be
a qualified full-time salaried employee of a railroad, a qualified
practitioner who contracts with the railroad on a fee-for-service or
other basis, or a qualified practitioner designated by the railroad to
perform functions in connection with medical evaluations of employees.
As used in this proposed rule, the medical examiner would owe a duty to
make an honest and fully informed evaluation of the condition of an
employee.
The only difference between the definition of medical examiner in
this proposed rule and the definition in 49 CFR part 240 is that under
part 240, the medical examiner owes ``a duty to the railroad.'' In this
proposed rule, however, the words ``to the railroad'' have been
deleted. This change was made to address a concern of some Working
Group members that a medical examiner should not owe a duty to just the
railroad but rather should owe a duty to both the railroad and the
employee being evaluated.
On-the-Job Training
The term ``on-the-job training,'' which is not defined in part 240,
means job training that occurs in the work place (i.e., the employee
learns the job while doing the job). In this proposed rule, the ``on-
the-job training'' portion of the training program (see proposed Sec.
242.119) would be required to be based on a model generally accepted by
the educational community, and must consist of three key components:
(1) A brief statement describing the tasks and related steps the
employee must be able to perform; (2) a statement of the conditions
(i.e., tools, equipment, documentation, briefings, demonstrations, and
practice) necessary for learning transfer; and (3) a statement of the
standards by which proficiency can be measured through a combination of
task/step accuracy, completeness, and repetition.
Passenger Conductor
The term ``passenger conductor'' is defined as a conductor who has
also received emergency preparedness (EPREP) training under 49 CFR part
239. Interested parties should note that nothing in this proposed rule
requires a conductor for private/non-revenue movements (e.g., business
car specials) to have the EPREP training. This position is consistent
with 49 CFR 239.3(b).
Physical Characteristics
The term ``physical characteristics,'' which is not defined in part
240, means the actual track profile of and physical location for points
within a specific yard or route that affect the movement of a
locomotive or train. ``Physical characteristics'' include both main
track physical characteristics (the term ``main track'' is analyzed
above) and other than main track physical characteristics. Examples of
physical characteristics could include permanent close clearances,
location of permanent derails and switches, and grade.
Qualified
The term ``qualified'' is defined as a person who has successfully
completed all instruction, training and examination programs required
by the employer, and the applicable parts of this chapter and therefore
could reasonably be expected to be proficient on all safety related
tasks the person is assigned to perform. The definition of
``qualified'' in this proposed rule differs from its definition in part
240 in that part 240's definition focuses on a person's knowledge
whereas the definition in this proposed rule focuses not only on
knowledge but also on whether the person could reasonably be expected
to be proficient at performing all assigned tasks. The revision to the
definition of ``qualified'' is an attempt to ensure that a railroad's
instruction and training program not only provide knowledge of how to
perform a task but also the ability to proficiently perform the task.
Qualified Instructor
The term ``qualified instructor,'' which is derived from the
definition of ``instructor engineer'' in part 240, means a person who
has demonstrated, pursuant to the railroad's written program, an
adequate knowledge of the subjects under instruction and, where
applicable, has the necessary operating experience to effectively
instruct in the field. A qualified instructor would be required to have
the following qualifications:
(1) Is a certified conductor under this part; and
(2) Has been selected as such by a designated railroad officer, in
concurrence with the designated employee representative, where present;
or
(3) In absence of concurrence provided in paragraph (2) of this
definition, has a minimum of 12 months service working as a train
service employee.
If a railroad does not have designated employee representation, then a
person employed by the railroad need not comply with items (2) or (3)
of this definition to be a ``qualified instructor.''
Items (2) and (3), while not found in part 240's definition of
``instructor engineer,'' are included here to address the concerns of
some Working Group members that employees, through their
representatives, should have input in the selection of instructors who
might be viewed as inexperienced (i.e., a person with less than 12
months service working as a train service employee).
Remote Control Operator
The term ``remote control operator'' (RCO) means a certified
locomotive engineer, as defined in Sec. 240.7 of this chapter,
certified by a railroad to operate remote control locomotives pursuant
to Sec. 240.107 of this chapter. Although this term is not defined in
part 240, FRA intends for the term to have the same meaning in this
proposed rule as it does in part 240. FRA defines the term in this
proposed rule to avoid any confusion as to who this proposed rule is
referring to when it references a remote control operator.
The definition of RCO recommended by the Working Group used the
word ``trained'' instead of ``certified.'' FRA, however, believes the
definition in this proposed part should to be consistent with the
definition of RCO in 49 CFR 218.93. Thus, FRA replaced the word
``trained'' with ``certified'' in this proposed rule to parallel 49 CFR
218.93.
Substance Abuse Disorder
The term ``substance abuse disorder'' refers to a psychological or
physical dependence on alcohol or a drug or another identifiable and
treatable mental or physical disorder involving the abuse of alcohol or
drugs as a primary manifestation. A substance abuse disorder is
``active'' within the meaning of this proposed rule if the person (1)
is currently using alcohol or other drugs, except under medical
supervision consistent with the restrictions described in Sec. 219.103
of this chapter or (2) has failed to successfully complete primary
treatment or successfully participate in
[[Page 69171]]
aftercare as directed by a Substance Abuse Professional (SAP).
The definition of substance abuse disorder in this proposed rule is
the same as the definition in part 240 except in two respects. First,
part 240's definition refers to an ``EAP Counselor'' rather than a SAP.
Since SAPs have more stringent credential, knowledge, training, and
continuing education requirements than EAPs, SAPs may be better
qualified to direct a person's treatment or aftercare. Second, part 240
uses the phrase ``is currently using alcohol and other drugs'' when
describing active substance abuse disorders. The proposed rule would
revise that phrase to read ``is currently using alcohol or other
drugs.'' FRA is proposing the revision to clarify its intent that a
person with an active substance abuse disorder could be using alcohol
or other drugs.
The proposed definition for ``substance abuse disorder'' is similar
to the language employed to govern disposition of employees referred to
an employee assistance program under the ``co-worker report'' (bypass)
provision of the alcohol/drug regulations. It describes the condition
of chemical dependency, as determined by an appropriate professional.
Reference is made to other disorders involving abuse of alcohol and
other drugs (i.e., ``another identifiable and treatable mental or
physical disorder involving the abuse of alcohol or drugs as a primary
manifestation'') to avoid disputes concerning diagnoses of
``underlying'' problems. The crux of the definition is that a person
making uncontrolled use of alcohol or drugs is not a suitable candidate
for the highly sensitive duties entrusted to a conductor. Since
chemical dependency typically involves or has the potential for poly-
drug abuse, the appropriate long-term therapy is abstinence from
alcohol and all other drugs, except those taken under medical
supervision.
The proposed definition explains that the disorder would be
considered ``active'' within the meaning of the rule if the person is
not currently abstaining from use of alcohol and drugs (except under
medical supervision consistent with FRA's alcohol/drug regulations) or
has not participated in treatment as required. FRA is aware that many
individuals abuse alcohol and drugs, with consequent ill-effects on
their health and potential implications for fitness, without fitting
within common definitions of chemical dependency. However, degrees of
abuse are difficult to define; and significant disagreements prevail
with regard to appropriate therapeutic responses. Accordingly, FRA has
not required withholding of certification for patterns of abuse that
fall short of chemical dependency. At the same time, FRA does not
intend to convey that the concept of chemical dependency need meet the
most rigid test used in any particular segment of the health care or
mental health communities. The critical point here with respect to
safety is that conductors not be in the grip of uncontrolled abuse
patterns that, if addressed through treatment and permanent abstinence,
could be put behind them.
Substance Abuse Professional (SAP)
The term ``Substance Abuse Professional'' (SAP)\5\ means a person
who meets the qualifications of a SAP, as provided in 49 CFR Part 40.
Pursuant to this proposed rule, the SAP would owe a duty to the
railroad to make an honest and fully informed evaluation of the
condition and progress of an employee. FRA notes that the duty owed by
a SAP does not parallel the duty owed by a ``medical examiner'' (see
above) in the proposed rule recommend by the full RSAC. As currently
written, a medical examiner would owe a duty to both the railroad and
the employee being evaluated while a SAP would owe a duty only to the
railroad. FRA welcomes comments as to whether a SAP should owe a duty
to both the employee being evaluated and the railroad (i.e., whether
the words ``to the railroad'' should be deleted from the definition of
SAP).
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\5\ The draft recommended by the Working Group and the full RSAC
used the term ``Substance Abuse Profession.'' That was a clerical
error on FRA's part and the term has been corrected in this NPRM to
read ``Substance Abuse Professional.''
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Territorial Qualifications
The term ``territorial qualifications'' means possessing the
necessary knowledge concerning a railroad's operating rules and
timetable special instructions including familiarity with applicable
main track and other than main track physical characteristics of the
territory over which the locomotive or train movement will occur.
Although not defined in part 240, the term is derived from part 240's
requirement that, with certain exceptions, a locomotive engineer may
not operate a locomotive over a territory unless the engineer is
``qualified on the physical characteristics of the territory.'' See 49
CFR 240.231. Pursuant to Sec. 242.301 of this proposed rule, a person
could not serve as a conductor unless the person was certified and
possessed the necessary territorial qualifications for the applicable
territory.
Section 242.9 Waivers
This section tracks the regulatory language in 49 CFR 240.9 and
provides the proposed requirements for a person seeking a waiver of any
section of this proposed rule. After review, however, FRA believes this
section is unnecessary because 49 CFR part 211 sufficiently addresses
the waiver process. FRA welcomes comments as to whether this proposed
section should be removed.
Section 242.11 Penalties and Consequences for Noncompliance
This section tracks the regulatory language in 49 CFR 240.11 and
provides minimum and maximum civil penalty amounts determined in
accordance with the Federal Civil Penalties Inflation Adjustment Act of
1990, Public Law 101-410 Stat. 890, 28 U.S.C. 2461 note, as amended by
the Debt Collection Improvement Act of 1996 Public Law 104-134, April
26, 1996, and the RSIA.
Section 242.13 Information Collection Requirements
This section lists the sections of the proposed rule which contain
information collection requirements.
Subpart B--Program and Eligibility Requirements
This subpart contains the basic elements of the conductor
certification program required by this proposed rule. Based on the
RSIA's requirement for ``certification'' of conductors and FRA's
experience with certification of locomotive engineers, this rulemaking
proposes to adopt a certification system (i.e., FRA sets eligibility
criteria but leaves it to the railroads to evaluate candidates by those
standards) rather than a traditional licensing system (i.e., a
government agency sets eligibility criteria and evaluates candidates).
As with part 240, this proposed rule affords railroads considerable
discretion in the daily administration of their certification programs.
Section 242.101 Certification Program Required
This section proposes to require railroads to have a written
program composed of six elements, each of which comports with specific
provisions relating to that element.\6\ To give the railroads time to
put their conductor programs into place and to accommodate the fact
that many
[[Page 69172]]
railroads perform training and certification of locomotive engineers at
the beginning of each calendar year, FRA is proposing to make January
1, 2012, the effective date of the final rule. FRA is proposing that
date based on FRA's anticipation that the Final Rule will be published
in early 2011. The rest of the dates proposed in this rule (e.g., dates
by which each railroad must grandfather its eligible conductors in
Sec. 242.105) are based on the proposed effective date of January 1,
2012. Interested parties should note that FRA cannot guarantee any of
the dates proposed in this NPRM. The dates have been included merely to
generate discussion regarding the amount of time needed to implement a
conductor certification program once a Final Rule has been published.
FRA welcomes comments on the dates proposed in this NPRM.
---------------------------------------------------------------------------
\6\ FRA deleted paragraphs (a) and (b) of this section from the
version considered by the Working Group and full RSAC. FRA believes
those paragraphs are superfluous in light of the proposed dates
provided in other sections of the NPRM regarding submission and
approval of railroad programs.
---------------------------------------------------------------------------
Section 242.103 Approval of Design of Individual Railroad Programs by
FRA
This section proposes to require each railroad to submit its
certification program to FRA for approval in accordance with a schedule
to be provided in the final rule. The proposed schedule for submissions
in paragraph (a) would require Class I railroads, Amtrak, the commuter
railroads, and Class II railroads to submit their programs at an
earlier date than the Class III railroads or others not classified
elsewhere.\7\ The format and contents of the submission are discussed
at length in appendix B to this proposed rule.
---------------------------------------------------------------------------
\7\ FRA has made some modifications to paragraph (a) of this
section from the version considered by the Working Group and full
RSAC. FRA believes those modifications are necessary to ensure a
sensible schedule and future implementation of the conductor
certification regulation.
---------------------------------------------------------------------------
Unlike part 240, this proposed rule would require railroads to
serve a copy of their submissions, resubmissions and material
modifications on the president of each labor organization that
represents the railroad's certified conductors. Within 45 days of the
filing of any of those submissions with FRA, any designated
representative of certified conductors could submit comments on the
railroad's submissions to FRA. Although FRA, and not the commenters,
would determine whether a railroad's submission was approved, FRA
expects that comments would be useful in determining whether the
railroad's program conforms to the criteria set forth in this proposed
rule.
This section also proposes to require each railroad to indicate how
it intends to acquire future conductors. If a railroad accepts the
responsibility for training a previously uncertified person to become a
conductor, the railroad must explain its training regimen for such
trainees, including provisions for relying on an outside training
organization to provide the actual training.
The proposed rule provides 30 days for FRA review and approval of
railroad programs. FRA is proceeding in this manner because most
railroads have existing programs, including locomotive engineer
certification programs, intended to accomplish a similar goal that can
be easily modified. The quality of such programs is generally good and
the problems that may be encountered would not likely involve basic
design flaws and generally would not surface until FRA has had time to
observe the actual administration of the program. In screening all
submissions FRA should be able to quickly detect any substantial
deficiencies. Given the quality of existing programs, FRA sees little
value in delaying implementation of the programs for time-consuming
agency review. FRA may, of course, disapprove any program during the
review cycle or at a later date. FRA will explain any deficiencies in
writing. This section proposes to require a timely railroad response to
an FRA disapproval action as a railroad will have no more than 30 days
to revise and resubmit its program.
Section 242.105 Schedule for Implementation
This section contains the timetable for implementation of the
proposed rule. Paragraphs (a) and (b) of this section would require
that railroads, in writing, designate as certified conductors all
persons authorized by the railroad to perform the duties of a conductor
as of the effective date of the final rule, or authorized between the
effective date of the final rule and dates specified in paragraph (d)
or (f) of this section, and to issue a certificate to each person it
designates. The mandatory designation requirement of this section is
included to address the concerns of some Working Group members that
railroads should not be given the discretion to engage in disparate
treatment of its employees (i.e., designate and provide a certificate
to some people who are authorized to perform the duties of a conductor
as of the effective date of the final rule but not others).
Paragraph (c) of this section would require each railroad to make
formal determinations concerning those employees it has
``grandfathered'' (i.e., designated as conductors) within 36 months of
the date for compliance by its class of railroad. Pursuant to that
paragraph, a grandfathered conductor could serve as a conductor for up
to 36 months from the date of compliance for the railroad (i.e., the
date specified in paragraph (d) or (e) of this section). At the end of
the 36 months, however, the grandfathered conductor could no longer
serve as a conductor unless he or she successfully completed the tests
and evaluations provided in subpart B of this proposed rule (i.e., the
full certification process).
In order to test and evaluate all of its grandfathered conductors
by the end of the 36-month period, a large railroad would likely have
to begin that process well in advance of the end of the 36 months. For
example, paragraph (c), which is derived from part 240's grandfathering
provision, would permit a railroad to test and evaluate one-third of
its grandfathered conductors within 12 months of the railroad's date of
compliance; another one-third within 24 months of its date of
compliance; and the final one-third within 36 months of its date of
compliance.
Some of the Working Group members raised concerns about
grandfathered conductors who would be eligible to retire within 36
months of the date for compliance by their class of railroad.
Specifically, some members did not believe it was an efficient use of
resources to perform the full certification process on a grandfathered
conductor who was going to retire before the end of the 36-month
grandfathering period. To address those concerns, subparagraph (c)(1)
provides that a grandfathered conductor, who is eligible to receive a
retirement pension in accordance with the terms of an applicable
agreement or with the terms of the Railroad Retirement Act (45 U.S.C.
231) within 36-months prior to the date they would be required to be
tested and evaluated under subpart B of this proposed rule, may
request, in writing, that the railroad not perform the full
certification process on that grandfathered conductor until 36 months
from the date of required testing and evaluation.
Paragraph (c)(2) provides that, upon receipt of that written
request, a railroad may wait to perform the full certification process
on the person making the request until the end of the 36-month
grandfathering period. Thus, paragraphs (c)(1) and (c)(2) would allow
grandfathered conductors to serve as conductors for the full 36-month
grandfathering period and then retire before being subjected to the
full certification process.
While it is in the railroads' interest not to perform the full
certification process for a person who is going to retire once the
grandfathering period
[[Page 69173]]
expires and thus in their interest to grant as many requests as
possible, it may not be feasible to accommodate every request that is
made. If, for example, a significant number of grandfathered conductors
on a railroad properly request that the railroad wait to recertify them
at the end of the grandfathering period, but then do not, in fact,
retire by the expiration of the 36-month grandfathering period, the
railroad might not be able to certify everyone in time and would risk
violating this proposed rule. In recognition of that risk and the need
to give the railroads some flexibility to comply with the proposed
rule, paragraph (c)(2) also provides that a railroad that grants any
request must grant the request of all eligible persons ``to every
extent possible.''
In addition, paragraph (c)(3) provides that a grandfathered
conductor who is also subject to recertification under part 240 may not
make a request under subparagraph (c)(1) of this section. That
provision recognizes that railroads would likely want to have
concurrent certification processes for certifying a person who will be
both a certified locomotive engineer and a conductor and thus it would
not be appropriate, in that instance, for a grandfathered conductor who
is already subject to recertification under part 240 to make a request
to delay the full conductor certification process.
Paragraphs (d), (e), and (f) provide that after specified dates, no
railroad could certify or recertify a person as a conductor and no
person could serve as a conductor unless that person had been tested
and evaluated in accordance with the procedures provided in subpart B
of the proposed rule and issued a certificate.
Section 242.107 Types of Service
This section proposes to create two types of conductor service:
Conductor and passenger conductor. As indicated in the definition
section of this proposed rule, a ``passenger conductor'' is a
``conductor'' who has also received emergency preparedness training
under 49 CFR part 239.
Paragraph (c) of this section, derived from 49 CFR 240.107(e),
proposes to prohibit a railroad from reclassifying the certification of
any type of certified conductor to a different type of conductor
certification during the period in which the certification is otherwise
valid except when a conductor completes 49 CFR part 239 emergency
training and is certified as a passenger conductor. For example, this
proposed rule would prohibit a railroad from requiring a passenger
conductor to exchange his or her passenger conductor certificate for a
conductor certificate during the period in which the passenger
conductor certificate is otherwise valid.
While this proposed rule would prohibit the practice of
reclassification, it would not prevent the railroads from pursuing
other measures to ensure the safe performance of conductor service. For
example, the proposed rule would not prevent a railroad from placing
restrictions on a certificate pursuant to paragraph (d) of this
section. It should be noted, however, that while paragraph (d) would
permit a railroad to place restrictions on a certificate, any
restrictions would be applied and reviewed in accordance with internal
railroad rules, procedures and processes. Proposed part 242 would not
govern the issuance or review of restrictions as that would be a matter
handled under a railroad's internal discipline system or collective
bargaining agreement. See Sec. 242.5(a), (b), and (d).
Section 242.109 Determinations Required for Certification and
Recertification
This section lists the proposed determinations required for
evaluating a candidate's eligibility to be certified or recertified.
Since motor vehicle data is required to be sent to the railroad rather
than to the candidate, paragraphs (d) and (e) of this section would
require a railroad to provide a candidate for certification or
recertification an opportunity to review and comment on any record
which contains adverse information. This review would avoid the
potential for reliance on records that were somehow erroneously
associated with a candidate.
Section 242.111 Prior Safety Conduct As Motor Vehicle Operator
This section, derived from 49 CFR 240.111 and 240.115, provides the
proposed requirements and procedures that a railroad would have to
follow when evaluating a conductor or conductor candidate's prior
conduct as a motor vehicle operator. Although some members of the
Working Group suggested that information regarding the prior safety
conduct as a motor vehicle operator was unnecessary in determining
whether a person should be certified as a conductor, FRA believes that
the prior safety conduct of a motor vehicle operator is one indicator
of that person's drug and/or alcohol use and therefore an important
piece of information for a railroad to consider.
Pursuant to this section, each person seeking certification or
recertification as a conductor would have to request in writing that
the chief of each driver licensing agency that issued him or her a
driver's license within the preceding five years provide a copy of the
person's driving record to the railroad. Unlike part 240, this proposed
rule would not require individuals to also request motor vehicle
operator information from the National Driver Registry (NDR). It is
FRA's understanding that, based on the NDR statute and regulation (see
49 U.S.C. chapter 303 and 23 CFR 1327), railroads are prohibited from
running NDR checks or requesting NDR information from individuals
seeking employment as certified conductors.\8\
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\8\ As an alternative to the NDR, some members of the Working
Group suggested that motor vehicle operator information could be
obtained from the National Crime Information Center (NCIC) run by
the Federal Bureau of Investigation. However, FRA does believe the
NCIC is an appropriate option since the information provided by the
NCIC cannot be limited to just motor vehicle data.
---------------------------------------------------------------------------
During the Working Group meetings, members of the Working Group
raised concerns about conductor candidates who had properly requested
motor vehicle operator information but were unable to be certified or
recertified as conductors because of a delay or mix-up by a driver
licensing agency in sending the required information to the railroad.
To address that concern, paragraphs (c) and (d) of this section would
require a railroad to certify or recertify a person for 60 days if the
person: (1) Requested the required information at least 60 days prior
to the date of the decision to certify or recertify; and (2) otherwise
meets the eligibility requirements provided in Sec. 242.109 of this
proposed rule. If a railroad certifies or recertifies a person for 60
days pursuant to paragraphs (c) or (d) but is unable to obtain and
evaluate the required information during those 60 days, the person
would be ineligible to perform as a conductor until the information can
be evaluated. However, if a person is simply unable to obtain the
required information, that person or the certifying or recertifying
railroad could petition for a waiver from FRA (see 49 CFR part 211).
During the pendency of the waiver request, a railroad would have to
certify or recertify a person if the person otherwise meets the
eligibility requirements of Sec. 242.109 of this proposed rule.
Paragraph (l) of this section would require certified conductors or
persons seeking initial certification to notify the employing railroad
of motor vehicle incidents described in paragraph (n) of this section
within 48 hours of the conviction or completed state action to cancel,
revoke, suspend, or deny a
[[Page 69174]]
motor vehicle driver's license. The paragraph also provides that, for
purposes of conductor certification, a railroad could not have a more
restrictive company rule requiring an employee to report a conviction
or completed state action to cancel, revoke, or deny a motor vehicle
drivers license in less than 48 hours.
The reasoning behind paragraph (l) involves several intertwined
objectives. As a matter of fairness, a railroad should not revoke,
deny, or otherwise make a person ineligible for certification until
that person had received due process from the state agency taking the
action against the motor vehicle license. Otherwise, action pursuant to
this part might be deemed premature since the American judicial system
is based on the concept of a person being innocent until proven guilty.
Further, by not requiring reporting until 48 hours after the completed
state action, the proposed rule would have the practical effect of
ensuring that a required referral to a SAP under paragraph (o) of this
section would not occur prematurely. Interested parties should note
however, that paragraph (l) would not prevent an eligible person from
choosing to voluntarily self-refer pursuant to Sec. 242.115(d)(3). Nor
would it prevent the railroad from referring the person to a SAP
pursuant to Sec. 240.115 if other information exists that identifies
the person as possibly having a substance abuse disorder. Further, the
restriction would apply only to actions taken against a person's
certificate and would have no effect on a person's right to be employed
by that railroad.
As mentioned above, paragraph (o) of this section would require
that if such a motor vehicle incident described in paragraph (n) is
identified, the railroad would be required to provide the data to its
SAP along with ``any information concerning the person's railroad
service record.'' Furthermore, the person would have to be referred for
evaluation to determine if the person had an active substance abuse
disorder. If the person has such a disorder, the person could not be
currently certified. Alternatively, even if the person is evaluated as
not currently affected by an active substance abuse disorder, the
railroad would be required, on recommendation of the SAP, to condition
certification upon participation in any needed aftercare and/or follow-
up testing for alcohol or drugs, or both. The intent of this provision
is to use motor vehicle records to expose conductors or conductor
candidates who may have active substance abuse disorders and make sure
they are referred for evaluation and any necessary treatment before
allowing them to perform safety sensitive service.
Section 242.113 Prior Safety Conduct as an Employee of a Different
Railroad
This section of the proposed rule, which is derived from 49 CFR
240.113 and 240.205, proposes a process for requesting information
regarding the candidate's prior safety conduct, if any, as an employee
of a different railroad.
Section 242.115 Substance Abuse Disorders and Alcohol Drug Rules
Compliance
This proposed section, which is derived from 49 CFR 240.119 and
240.205, would address two separate dimensions of the alcohol/drug
problem in relation to conductors--(1) active substance abuse disorders
and (2) specific alcohol/drug regulatory violations. This section and
Sec. 242.111 address certain situations in which inquiry must be made
into the possibility that the individual has an active substance abuse
disorder if the individual is to obtain or retain a certificate. The
fact that specific instances are cited in this section would not
exclude the general duty of the railroad to take reasonable and
proportional action in other appropriate cases. Declining job
performance, extreme mood swings, irregular attendance and other
indicators may, to the extent not immediately explicable, indicate the
need for a SAP evaluation.
Paragraph (a) would require each railroad to address both
dimensions of this issue in its program. Paragraphs (b) and (c) would
require each railroad to determine that a person initially certifying
or a conductor recertifying meets the eligibility requirements of this
section. Additionally, each railroad would be required to retain the
documents used to make that determination.
Paragraph (d) provides that a person with an active substance abuse
disorder could not be currently certified as a conductor. This means
that appropriate action would have to be taken with respect to a
certificate (whether denial or suspension) whenever the existence of an
active substance abuse disorder comes to the official attention of the
railroad, with the exception discussed below. Paragraph (d) would also
provide a mechanism for an employee to voluntarily self-refer for
substance abuse counseling or treatment.
Paragraph (e) would address conduct constituting a violation of
Sec. 219.101 or Sec. 219.102 of the alcohol/drug regulations. Section
219.101 prohibits any employee from going or remaining on duty in
covered service while using, possessing, or being under the influence
of or impaired by alcohol or a controlled substance or with a blood
alcohol concentration of .04% or more. This is conduct that
specifically and directly threatens safety in a way that is wholly
unacceptable, regardless of its genesis and regardless of whether it
has occurred previously. In its more extreme forms, such conduct is
punishable as a felony under the criminal laws of the United States (18
U.S.C. 341 et seq.) and a number of states.
Section 219.102 prohibits use of a controlled substance by a
covered employee, at any time, on or off duty, except under the
exception for approved medical use. Abuse of marijuana, cocaine,
amphetamines, and other controlled substances poses unacceptable risks
to safety. However, where on-the-job use, possession, or impairment is
not established, as is most often the case where urinalysis is the
means of detection (e.g., through a random drug test which can detect
drugs remaining in the system for some period after actual use), this
violation is marginally less serious than a Sec. 219.101 violation.
Under the alcohol/drug regulations, whenever a violation of Sec.
219.101 or Sec. 219.102 is established based on authorized or mandated
chemical testing, the employee must be removed from service and may not
return until after a SAP evaluation, any needed treatment, or a
negative return-to-duty test, and is subject to follow-up testing
(Sec. 219.104). This structure suggests an absolute minimum for action
when a conductor is determined to have violated one of these
prohibitions. Considering the need both for general and specific
deterrence with respect to future unsafe conduct, additional action
should be premised on the severity of the violation and whether the
same individual has prior violations.
One key consideration in evaluating this conduct and appropriate
responses is the duration of retrospective review. This proposed rule
would require railroads to consider conduct that occurred within the
period of 60 consecutive months prior to the review. This is the same
period proposed in this rule as the maximum period of ineligibility for
certification following repeated alcohol/drug violations and is the
same period used in part 240.
Use of a 5-year cycle reflects anecdotal experience in the railroad
industry indicating that conduct committed as much as 5 years before
may tend to predict future alcohol or drug abuse behavior (and
recognizes the reality that most individual violations are probably not
detected). It also
[[Page 69175]]
reflects a certain confidence in the resilience of human nature--i.e.,
a reasonable expectation that the person who remains in compliance for
that period of time will not again be found in violation. Of course,
railroads would retain the flexibility to consider prior conduct
(including conduct more than 5 years prior) in determining whom they
will hire as conductors.
Interested parties should note that conduct violative of the FRA
proscriptions against alcohol and drugs need not occur while the person
is serving in the capacity of a conductor in order to be considered.
For instance, an employee who violated Sec. 219.101 while working as a
brakeman and then sought conductor certification six months later
(under the provision described below) would not be currently eligible
for certification. The same is true under part 240--an employee who
violates Sec. 219.101 while working as a brakeman and then seeks
locomotive engineer certification six months later would not be
eligible for certification at that time. The railroad's responsibility
would not be limited to periodic recertification. This proposed rule
would prompt a review of certification status for any conduct in
violation of Sec. 219.101 or Sec. 219.102.
The proposed rule requires a determination of ineligibility for a
period of 9 months for an initial violation of Sec. 219.101. This
parallels the 9-month disqualification in Sec. 240.119(c)(4)(iii) and
for a refusal to cooperate in post-accident or random testing. FRA does
not believe that a conductor should be able to seek the shelter of a
collective bargaining agreement or more lenient company policy in the
case of a clear on-the-job violation, insofar as Federal eligibility to
serve as a conductor is concerned. Specifying a period of ineligibility
would serve the interest of deterrence while giving further
encouragement to co-workers to deal with the problem before it is
detected by management.
In order to preserve and encourage co-worker referrals, the 9-month
period would be waived only in the case of a qualifying co-worker
report (see Sec. 219.405). FRA believes that this distinction in
treatment is warranted as a strong inducement to participation because
co-worker referral programs help identify troubled employees prior to
those employees getting into accidents. A strong inducement to refer a
co-worker is a worthy goal if it may contribute to a reduction in
accidents and incidents. Although we do not know how many actual co-
worker reports may be generated, the intended result would be served if
an atmosphere of intolerance for drug abusing behavior is reinforced in
the workplace and violators know that they may be turned in by their
colleagues if they report for duty impaired.
In the case of a second violation of Sec. 219.101, the conductor
would be ineligible for a period of 5 years. Given railroad employment
practices and commitment to alcohol/drug compliance, it is likely, of
course, that any individual so situated may also be permanently
dismissed from employment. However, it is important that the employing
railroad also follow through and revoke the certificate under this rule
so that the conductor could not go to work for another railroad within
the 5-year period using the unexpired certificate issued by the first
railroad as the basis for certification. These proposed sanctions
mirror the sanctions in Sec. 240.119.
Under this proposed rule, one violation of Sec. 219.102 within the
5-year window would require only temporary suspension and the minimum
response described in Sec. 242.115(f) (referral for evaluation,
treatment as necessary, negative return-to-duty test, and appropriate
follow-up). This parallels the approach in part 240 and reflects FRA's
wish not to undercut the therapeutic approach to drug abuse employed by
many railroads. This approach would permit first-time positive drug
tests to be handled in a non-punitive manner that concentrates on
remediation of any underlying substance abuse problem and avoids the
adversarial process associated with investigations, grievances and
arbitrations under the Railway Labor Act and collective bargaining
agreements. A second violation of Sec. 219.102 would subject the
employee to a mandatory 2-year period of ineligibility. A third
violation within 5 years would lead to a 5-year period of
ineligibility. This proposed rule would also address violations of
Sec. Sec. 219.101 and 219.102 in combination. A person violating Sec.
219.101 after a prior Sec. 219.102 violation would be ineligible for 3
years; and the same would be true for the reverse sequence.
Refusals and failures to participate in chemical tests would be
treated as if the test were positive. A refusal or failure to provide a
breath or body fluid sample for testing under the requirements of 49
CFR part 219 when instructed to do so by a railroad representative
shall be treated, for purposes of ineligibility under this section, in
the same manner as a violation of: (1) Sec. 219.101, in the case of a
refusal or failure to provide a breath sample (49 CFR subpart D), or a
blood specimen for mandatory post-accident toxicological testing (49
CFR subpart C)); or (2) Sec. 219.102, in the case of a refusal or
failure to provide a urine specimen for testing.
Interested parties should note that if a person, covered by 49 CFR
part 219, refuses to provide a breath or a body fluid specimen or
specimens when required to by the railroad under a mandatory provision
of 49 CFR part 219, then the railroad, apart from any action it would
take under proposed part 242, is required to remove that person from
covered service and disqualify that person from working in covered
service for 9 months. See, 49 CFR 219.104 and 219.107; see also, 49 CFR
Sec. 219 subpart H and 49 CFR 40.191 and 40.261.
Proposed Sec. 242.115(f) would prescribe the conditions under
which employees may be certified or recertified after a determination
that the certification should be denied, suspended, or revoked, due to
a violation of Sec. 219.101 or Sec. 219.102 of the alcohol/drug
regulations. These conditions mirror the conditions in Sec. 240.119(d)
and closely parallel the return-to-duty provisions of the alcohol/drug
rule. Interested parties should note that the proposed regulation would
not require compensation of the employee for the time spent in this
testing, which is a condition precedent to retention of the
certificate; but the issue of compensation would ultimately be resolved
by reference to the collective bargaining agreement or other terms and
conditions of employment under the Railway Labor Act. Moreover, a
railroad that intends to withdraw its conditional certification would
have to afford the conductor the hearing procedures provided by Sec.
242.407 if the conductor did not waive his or her right to the hearing.
Proposed paragraph (g) would ensure that a conductor, like any
other covered employee, could self-refer for treatment under the
alcohol/drug rule (Sec. 219.403) before being detected in violation of
alcohol/drug prohibitions and would be entitled to confidential
handling of that referral and subsequent treatment. This means that a
railroad would not normally receive notice of any substance abuse
disorder identified by the SAP. However, the paragraph would also
require that the railroad policy must (rather than may) provide that
confidentiality is waived if the conductor fails to participate
successfully in treatment as directed by the SAP, to the extent that
the railroad must receive notice that the employee has an active
substance abuse disorder so that appropriate certificate action can be
taken. The effect of this provision is
[[Page 69176]]
that the certification status of a conductor who seeks help and
cooperates in treatment would not be affected, unless the conductor
fails to follow through.
Section 242.117 Vision and Hearing Acuity
This section contains proposed requirements for visual and hearing
acuity testing that a railroad must incorporate in its conductor
certification program. The proposed visual requirements are the same as
those provided in 49 CFR 240.121. The testing procedures and standards
for the proposed hearing requirements, however, are more stringent than
those contained in 49 CFR 240.121 and were derived from the procedures
and standards provided in 49 CFR part 227.
Although some individuals may not be able to meet the threshold
acuity levels in this proposed rule, they may be able to compensate in
other ways that will permit them to function at an appropriately safe
level despite their physical limitations. Paragraph (j) of this section
would permit a railroad to have procedures whereby doctors can evaluate
such individuals and make discrete determinations about each person's
ability to compensate for his or her physical limitations. If the
railroad's medical examiner concluded that an individual had
compensated for his or her limitations and could safely serve as a
conductor on that railroad, the railroad could certify that person
under this proposed regulation once the railroad possessed the medical
examiner's professional medical opinion to that effect.
Paragraph (k) of this proposed section, would address the issue of
how soon after learning of a deterioration of his or her best
correctable vision or hearing a certified conductor would have to
notify the railroad of the deterioration. FRA is concerned with the
safe performance of conductor service, not whether a person can notify
a railroad within a set time frame. Thus, FRA proposes, and the RSAC
recommended, to require notification ``prior to any subsequent
performance as a conductor.'' Certified conductors should note that
willful noncompliance with this requirement could result in enforcement
action.
As mentioned above it is possible that a regulation recommended by
the Medical Standards Working Group and adopted by FRA could supersede
the hearing and vision standards and requirements in this proposed
rule.
Section 242.119 Training
This section, in compliance with the training requirements of the
RSIA, proposes to require railroads to provide initial and periodic
training of conductors. That training would be necessary to ensure
conductors have the knowledge, skills, and abilities necessary to
competently and safely perform all of the safety-related duties
mandated by Federal laws, regulations, and orders.
Paragraph (c) of this proposed section would require railroads to
document a conductor's knowledge of, and ability to comply with,
Federal railroad safety laws and regulations, and railroad rules used
to implement them. In addition, that paragraph would require railroads
to document that a conductor demonstrated that he or she is qualified
on the physical characteristics of the railroad, or its pertinent
segments, over which that person will perform service. This section
would require railroads to review and modify their training program
whenever new safety-related railroad laws, regulations, technologies,
procedures, or equipment are introduced into the workplace.
Under this section, railroads would have latitude to design and
develop the training and delivery methods they will employ; but
paragraphs (d), (e), and (f) provide proposed requirements for
railroads that elect to train a previously untrained person to be a
conductor. Pursuant to paragraph (d),\9\ a railroad that makes this
election would be required to perform a task analysis in order to
ensure completeness when developing training courses for both initial
and periodic training courses, and on-the-job training standards for
new conductors. Subparagraph (d)(1) of this section would permit a
railroad to demonstrate that a task analysis, or portions of a task
analysis, was performed for a program developed prior to the effective
date of the regulation.
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\9\ Subparagraphs (d)(1) and (d)(2) have been modified somewhat
from the language recommended by the RSAC to clarify the scope of
what the training plan and curriculum need to cover.
---------------------------------------------------------------------------
In the context of this proposed rule, a task analysis is the
analysis of how conductor tasks are accomplished, including a detailed
description of both manual and mental activities, durations, frequency,
allocation, complexity, environmental conditions, necessary clothing
and equipment, and any other unique factors involved in or required for
one or more people to perform a given task. A task analysis is
typically performed by a group of subject matter experts (SMEs) and a
skilled educational specialist. In some cases, SMEs are also skilled as
educational specialists. This group of SMEs should develop task lists,
then the subtasks and steps. A task does not always have subtasks, but
unless it is very simple, it will always have steps. The ``natural''
progression would be for the employer(s) to develop their learning
objectives and on-the-job standards from this list. For purposes of
this proposed rule, railroads should review all of the Federal
requirements (such as 49 CFR Part 215 Appendix D, 49 CFR Part 218, 49
CFR Part 219 Subpart D, 49 CFR Parts 220, 232, and 241, hazardous
materials handling and documentation requirements, etc.) when
developing their task list in order to ensure the task analysis is
complete from an FRA perspective. FRA intends to review the railroad
task analyses with its own SMEs.
Paragraphs (g), (h), (i), (j), and (k) of this section contain the
proposed requirements with respect to acquiring familiarity with the
physical characteristics of a territory. Except for the requirements in
paragraphs (j) and (k), the requirements parallel those in part 240.
Paragraphs (j) and (k) of this section would require railroads to
designate in their programs the time period in which a conductor must
be absent from a territory or yard, before requalification on physical
characteristics is required and the procedures used to qualify or
requalify a person on the physical characteristics.
Paragraphs (l) and (m) would require railroads to perform initial
instructional briefings to ensure that each of its conductors have
knowledge of the Federal railroad safety laws, regulations, and orders
that relate to the safety-related tasks the employees are assigned to
perform. The purpose of the proposed instructional briefing requirement
is to ensure accountability for both railroads and conductors. For many
years, FRA has encountered situations in which railroad employees have
been non-compliant with Federal requirements, but FRA was unable to
determine whether one of the root causes of the non-compliance was
inadequate training. FRA intends to remedy this issue by requiring
railroads to perform these instructional briefings. FRA would also
expect railroads to provide this information to new employees as part
of their formal training program. In paragraph (n) of this section, FRA
proposes to permit each railroad to demonstrate that it has met the
requirements of paragraphs (l) and (m) through prior training records.
Paragraph (o) would require each railroad to provide for the
continuing education of certified conductors to ensure that each
conductor maintains the necessary knowledge concerning
[[Page 69177]]
railroad safety and operating rules and compliance with all applicable
Federal regulations, including, but not limited to, hazardous
materials, passenger train emergency preparedness, brake system safety
standards, pre-departure inspection procedures, and passenger equipment
safety standards, and physical characteristics of a territory. This
proposed paragraph, which is derived from 49 CFR 240.123(b), was
included in several drafts reviewed by the Working Group but was not in
the draft voted on by the Working Group or full RSAC. FRA has included
it in this NPRM because we suspect that it was inadvertently omitted
and believe that continuing education is critical for conductors. FRA
welcomes comments on this paragraph.
Section 242.121 Knowledge Testing
This section, derived from 49 CFR 240.125 and 240.209, would
require railroads to provide for the initial and periodic testing of
conductors. That testing would have to effectively examine and measure
a conductor's knowledge of five subject areas: Safety and operating
rules; timetable instructions; compliance with all applicable Federal
regulations; the physical characteristics of the territory on which a
person will be or is currently serving as a conductor; and the use of
any job aid that a railroad may provide a conductor.
Under this section, railroads would have discretion to design the
tests that will be employed; for most railroads that will entail some
modification of their existing ``book of rules'' examination to include
new subject areas. This section does not specify things like the number
of questions to be asked or the passing score to be obtained. However,
it does propose that the test not be conducted with open reference
books unless use of such materials is part of a test objective and the
test be in written or electronic form. Moreover, since the testing
effort selected by the railroad must be submitted to FRA for approval,
the exercise of the discretion being afforded railroads by this section
would be monitored by FRA. To address a concern of some of the members
of the Working Group that persons being tested were unable to obtain
clarification of test questions by someone who possessed knowledge of a
relevant territory, paragraph (e) of this proposed section would
require railroads to provide the person(s) being tested with an
opportunity to consult with a supervisory employee, who possesses
territorial qualifications for the territory, to explain a question.
Section 242.123 Monitoring Operational Performance
This proposed section, derived from 49 CFR 240.129 and 240.303,
contains the proposed requirements for conducting unannounced
compliance tests.
Paragraph (b) of this section would require each railroad to have a
program to monitor the conduct of its conductors by performing
unannounced operating rules compliance tests.
Paragraph (c) provides that each conductor would have to be given
at least one unannounced compliance test in each calendar year by a
railroad officer who meets the requirements of 49 CFR 217.9(b)(1).
Paragraph (d) provides the operational tests that conductors and
passenger conductors would have to be tested on. That paragraph would
also allow passenger conductors who do not require compliance with 49
CFR 218 subpart F, except under emergency circumstances, to meet the
annual, unannounced test requirement with annual training.
Paragraph (e) of this section would require railroads to indicate
the types of actions they will take in the event they find deficiencies
with a conductor's performance during an unannounced compliance test.
FRA believes it is up to each railroad to decide the appropriate action
to take in light of various factors, including collective bargaining
agreements. Further, FRA believes that the vast majority of railroads
have adequate policies to deal with deficiencies with a conductor's
performance and have handled them appropriately for many years.
To avoid restricting the options available to the railroads and
employee representatives to develop processes for handling test
failures, FRA designed this proposal to be as flexible as possible.
There are a variety of actions and approaches that a railroad could
take in response to a test failure and FRA does not want to stifle a
railroad's ability to adopt an approach that is best for its
organization. Some of the actions railroads could consider include:
develop and provide formal remedial training for conductors who fail
tests or have deficiencies in their performance; automatically download
event recorder data, if relevant, upon a test failure or deficient
performance in order to preserve evidence of the failure/deficiency;
and require two supervisors to accompany a retest. Each railroad could
also consider implementing a formal procedure whereby a conductor is
given the opportunity to explain, in writing, the factors that he or
she believes caused their test failure or performance deficiencies.
This explanation may allow a railroad to determine what areas of
training to focus on or perhaps discover that the reason for the
failure/deficiency was due to something other than a lack of skills.
FRA believes there are numerous other approaches that could and should
be considered and evaluated by railroads and their employees. FRA
realizes that a railroad's list of actions it will take in response to
a test failure or deficient performance could be expansive given the
various circumstances that could contribute to a test failure or
deficient performance.
Paragraphs (b) and (f) of this section recognize that some
certified conductors may not be performing a service that requires
conductor certification and thus a railroad may not be able to provide
those conductors with the annual, unannounced compliance test. For
example a certified conductor may be on furlough, in military service,
off with an extended illness, or working in another service. Unlike
part 240, which requires railroads to seek a waiver from FRA's Safety
Board for engineers it is unable to annually test, this proposed
section would not require railroads to give an unannounced compliance
test to conductors who are not performing service requiring
certification. However, when the certified conductor returns to
certified service, he or she would have to be tested within 30 days of
their return. Moreover, the railroad would have to retain a written
record documenting certain dates regarding a conductor's service.
Section 242.125 Certification Determinations Made by Other Railroads
This section, derived from 49 CFR 240.225, provides the proposed
requirements that would apply when a certified or previously certified
conductor is about to begin service for a different railroad. The
section would permit the hiring railroad to rely on determinations made
by another railroad concerning a person's certification. However, the
section would require a railroad's certification program to address how
the railroad will administer the training of previously uncertified
conductors with extensive operating experience or previously certified
conductors who have had their certification expire. In both these
instances, FRA is providing a railroad with the opportunity to shorten
the on-the-job training that might be required if a person is treated
as having no operational experience. If a railroad's certification
program fails to
[[Page 69178]]
specify how to train a previously certified engineer hired from another
railroad, then the railroad would have to require the newly hired
conductor to take the hiring railroad's entire training program.
Section 242.127 Reliance on Qualification Requirements of Other
Countries
This section, derived from 49 CFR 240.227, proposes to provide
Canadian railroads that operate in the United States and U.S. railroads
that conduct joint operations with Canadian railroads the option to
rely on the system of conductor certification established by the
Canadian Government as long as the conductor is employed by a Canadian
railroad.
Subpart C--Administration of the Certification Program
Section 242.201 Time Limitations for Certification
This section, derived from 49 CFR 240.217, contains various time
constraints that FRA proposes to preclude railroads from relying on
stale information when evaluating a candidate for certification or
recertification. Although some members of the Working Group advocating
for extending the certification period from 3 years to 5 years, FRA
could not discern the safety justification for doing so. FRA has,
however, extended the period provided in 49 CFR 240.217(a)(2) upon
which a railroad could rely on a visual and hearing acuity examination
from 366 days to 450 days. The 450 days corresponds to the requirement
in 49 CFR 227.109 that railroads must offer employees included in a
hearing conservation program a hearing test at an interval not to
exceed 450 days.
Section 242.203 Retaining Information Supporting Determinations
This section, derived from 49 CFR 240.215, contains the proposed
record keeping requirements for railroads that certify conductors.
While both 49 CFR 240.215 and this section permit railroads to retain
records electronically, paragraph (g) of this section proposes more
specific requirements regarding the electronic storage system used to
retain the records than those found in Sec. 240.215. In that
paragraph, FRA proposes minimum standards for electronic record-keeping
provisions that a railroad would have to utilize to maintain the
records required by this section electronically.
FRA recognizes the growing prevalence of electronic records, and
acknowledges the unique challenges that electronic transmission,
storage, and retrieval of records can present. FRA also recognizes the
need to maintain the integrity and security of records stored
electronically. Thus, FRA believes that more specific requirements for
electronic storage systems than those found in Sec. 240.215 are
needed. Further, to allow for future advances in technology, FRA is
proposing electronic record storage provisions in paragraph (g) that
are technology-neutral.
Section 242.205 Identification of Certified Persons and Record Keeping
This proposed section, derived from 49 CFR 240.221, would require
each railroad to maintain a list of its certified conductors. Although
derived from Sec. 240.221, this section also contains some significant
differences. Unlike Sec. 240.221(c) which requires the railroad
responsible for controlling joint operations territory to maintain a
list of all engineers certified to operate in the joint operations,
paragraph (b) of this section would require the railroad who employs
conductors working in joint operations territory to maintain the list.
With respect to engineers, FRA has found that, under actual
industry practices, the controlling railroad seldom qualifies foreign
engineers over its trackage. Rather, the controlling railroad usually
qualifies the employing railroad's designated supervisor of locomotive
engineers (DSLEs) on its territory and allows those DSLEs to qualify
their own engineers on the controlling railroad's trackage. Considering
that practice, the employing railroad would be better able to maintain
the list of conductors it qualifies on the controlling railroad.
Additionally, the employing railroad has more of an interest in keeping
track of its conductors that are qualified on the controlling railroad.
Should an employing railroad order a crew for a train that will operate
over the controlling railroad, and the crew is not qualified, the train
would have to stop at the controlling railroad. Moreover, it is much
easier for the employing railroad to keep the list updated as it
qualifies conductors or it removes conductors who have lost
qualification because of time limitations. This section also differs
from Sec. 240.221 in that this section would make it unlawful for a
railroad to knowingly or an individual to willfully make a false entry
on the list or to falsify the list. Similar language is found in Sec.
240.215(i) but not in Sec. 240.221.
While both Sec. 240.221 and this section permit railroads to
retain records electronically, paragraph (e) of this section proposes
more specific requirements regarding the electronic storage system used
to retain the records than those found in Sec. 240.215(f) and would
not require a railroad to obtain FRA approval to maintain the records
electronically. The electronic storage requirements in paragraph (e) of
this section track those in Sec. 242.203(g).
Section 242.207 Certificate Components
This proposed section, derived from 49 CFR 240.223, contains the
proposed requirements for the certificate that each conductor must
carry. To address the privacy concerns of some Working Group members,
FRA's proposal for what must be on the certificate slightly differs
from the certificate requirements in Part 240. While Sec.
240.223(a)(3) requires locomotive engineer certificates to include
``the person's name, date of birth and employee identification number,
and either a physical description or photograph of the person,''
proposed Sec. 242.207(a)(3) would require conductor certificates to
include ``the person's name, employee identification number, and either
the year of birth or photograph of the person.'' \10\
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\10\ FRA has made two clarifying changes to the language of
Sec. 242.207(a)(3) that were not considered by the Working Group or
the full RSAC: (1) The words ``either the'' were added between
``and'' and ``year''; and (2) the word ``the'' was added between
``of'' and ``person.''
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As currently written, this proposed section would not require a
conductor's certificate to include a physical description or photograph
of the conductor as is required in part 240. FRA is considering
requiring a conductor's certificate to include a physical description
or photograph of the conductor. FRA believes that requirement would
enable FRA inspectors, railroad officers, and police officers to
quickly verify that the person in possession of the certificate is in
fact the person listed on the certificate. FRA welcomes comments on
that proposal.
While FRA expects that, in the future, Sec. 240.223(a)(3) will be
amended to conform to Sec. 242.207(a)(3), FRA notes that pursuant to
proposed Sec. 242.213(n), a single certificate issued to a person that
is certified as both a conductor and a locomotive engineer would have
to comply, for now, with Sec. 242.207 and Sec. 240.223.
Section 242.209 Maintenance of the Certificate
This section, derived from 49 CFR 240.305(b), (c) and (e), proposes
to require conductors to: Have their certificates in their possession
while on duty as a conductor; display their
[[Page 69179]]
certificates when requested to do so by FRA representatives, State
inspectors authorized under 49 CFR 212, and certain railroad officers;
and notify a railroad if he or she is called to serve as a conductor in
a service that would cause them to exceed their certificate limits.
Although State inspectors authorized under 49 CFR 212 could be
considered ``FRA representatives,'' they were mentioned separately in
this section to ensure that there would be no dispute regarding their
authority.
Section 242.211 Replacement of Certificates
This proposed section, derived from 49 CFR 240.301, would require
railroads to have a system for the prompt replacement of certificates
when necessary. Unlike Sec. 240.301, which does not address the
question of who will bear the cost of a replacement certificate, this
section proposes that certificates will be replaced by the railroad at
no cost to the conductor. While FRA expected that the railroad would
bear the cost for a replacement locomotive engineer certificate under
part 240, a few Working Group members indicated that some locomotive
engineers had been charged (or asked by a railroad to pay) for
replacement certificates. The provision in this proposed part clarifies
that the railroad would bear the cost of replacement certificates.
To address the concerns of some Working Group members that a full
replacement certificate can take some time to generate and provide to a
conductor, paragraph (b) of this section proposes to permit railroads
to issue temporary replacement certificates. The paragraph describes
what the certificate would have to contain and who could authorize the
temporary replacement. The temporary replacement certificate could be
delivered electronically (e.g., faxed, e-mailed, etc.) and would be
valid for no more than 30 days.
Section 242.213 Multiple Certifications
This proposed section would permit a person to hold certification
for multiple types of conductor service and/or certification for both
conductor and locomotive engineer service. A railroad would only need
to issue one certificate to a person with multiple certifications.
However, a certificate issued to a person certified as a conductor and
locomotive engineer would not only have to comply with proposed Sec.
242.207 but also with Sec. 240.223. To the extent possible, a railroad
that issued multiple certificates to a person would have to coordinate
the expiration date of those certificates.
With the exception of a situation in which a conductor is removed
from a train for a medical, police, or other such emergency, this
section would require that a locomotive engineer, including a RCO, who
is operating without an assigned certified conductor to either be: (1)
Certified as both a locomotive engineer and a conductor; or (2)
accompanied by a certified conductor who will attach to the crew ``in a
manner similar to that of an independent assignment.'' Since a lone
engineer/RCO would be serving as and performing duties as both
locomotive engineer and conductor, FRA believes, and the Working Group
and full RSAC voted to recommend, that the engineer/RCO must hold dual
certification or be accompanied by a certified conductor. The language
concerning how an accompanying conductor would attach to the crew
conveys FRA's intent that this proposed regulation be neutral on the
issue of crew consist (i.e., how many crewmembers must be on a train).
During the RSAC process, representatives of FRA, the railroads, and
labor engaged in extensive discussions regarding the potential effect
of proposed 49 CFR 242.213 (``Multiple certifications'') on the issue
of crew consist. It is FRA's intent that this proposed conductor
certification regulation, including section 242.213, be neutral on the
crew consist issue. Nothing in the proposed part 242 should be read as
FRA's endorsement of any particular crew consist arrangement.
In instances where a person, who is serving as both the conductor
and the engineer (i.e., a lone engineer or RCO), is involved in a
revocable event, railroads may be faced with determining which
certification to revoke. For example, a railroad that finds that a RCO,
who is certified both as an engineer and as a conductor but who was not
accompanied by a certified conductor, has failed to comply with
prohibitions against tampering with a locomotive mounted safety device
would have to determine whether to revoke the person's conductor
certification pursuant to Sec. 242.403(e)(5) or the person's
locomotive engineer certification pursuant to Sec. 240.117(e)(5). To
address that situation, FRA is considering adding a provision to this
proposed section which would require railroads to make the
determination as to which certification to revoke based on the work the
person was performing at the time the conduct occurred. This
determination would be similar to the determination made under the
reporting requirements in this proposed rule (Sec. 242.215(f)) and
under part 225 in which railroads determine whether an accident was
caused by poorly performing what is traditionally considered a
conductor's job function (e.g., switch handling, derail handling, etc.)
or whether it was caused by poorly performing what is traditionally
considered a locomotive engineer's job function (e.g., operation of the
locomotive, braking, etc.). FRA welcomes comments on that proposed
provision.
This section also addresses the consequences of certification
denial or revocation for a conductor who is certified to perform
multiple types of conductor service or both conductor and locomotive
engineer service. A person who holds a current conductor and/or
locomotive engineer certificate from more than one railroad would have
to immediately notify the other certifying railroad(s) if he or she is
denied engineer or conductor recertification or has his or her
conductor or engineer certification revoked by another railroad.
Pursuant to this section, a person certified to perform multiple
types of conductor service and who has had any of those certifications
revoked would not be permitted to perform any type of conductor service
during the period of revocation. Likewise, a person who holds a
conductor and locomotive engineer certificate and has his or her
engineer certificate revoked would not be permitted to work as a
conductor during the period of revocation. Similarly, a person who
holds a conductor and engineer certificate and has his or her conductor
certification revoked for violation of Sec. Sec. 242.403(e)(1)-(e)(5)
or (e)(12) would not be permitted to work as an engineer during the
period of revocation. However, a person who holds a conductor and
engineer certificate and has his or her conductor certification revoked
for a violation of Sec. Sec. 242.403(e)(6)-(e)(11) (i.e., violations
involving provisions of part 218, subpart F) would be permitted to work
as an engineer during the period of revocation. To aid interested
parties, FRA has included a table in Appendix E \11\ to this proposed
rule which explains, in a spreadsheet-style form, when a person
certified as both an engineer and conductor would be permitted to work
following a certification revocation.
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\11\ Appendix E was not considered by the Working Group or the
full RSAC. It was added by FRA to assist interested parties in
determining the application of revocable events.
---------------------------------------------------------------------------
Currently under part 240, an engineer cannot have his or her
certificate
[[Page 69180]]
revoked for violations of part 218, subpart F. While part 240 may be
amended in the future to include part 218, subpart F violations as
revocable events, this proposed rule recognizes that it would be unfair
to prohibit a person from working as an engineer for a violation that
currently would not result in the revocation of his or her engineer
certificate. This section also proposes that, in determining the period
in which a person may not work as a locomotive engineer due to a
revocation of his or her conductor certification, only violations of
Sec. Sec. 242.403(e)(1)-(e)(5) or (e)(12) may be counted. To assist
railroads in determining the correct period, paragraph (h)(1) of this
section provides a hypothetical scenario and an explanation of how the
period would be calculated.
To avoid treating a person who only holds one certification
differently than a person who holds multiple certifications, this
section would prohibit a person who has had his or her locomotive
engineer certification revoked from obtaining a conductor certificate
during the revocation. Likewise, a person who has had his or her
conductor certification revoked for violations of Sec. Sec.
242.403(e)(1)-(e)(5) or (e)(12) would be prohibited from obtaining a
locomotive engineer certificate during the period of revocation. With
respect to denial of certification or recertification, this section
provides that a railroad that denies a person locomotive engineer
certification or recertification would not be permitted, solely on the
basis of the denial, to deny or revoke that person's conductor
certification or recertification and vice versa.
Section 242.215 Railroad Oversight Responsibilities
This section, derived from 49 CFR 240.309, proposes to require
Class I (including the National Railroad Passenger Corporation and a
railroad providing commuter service) and Class II railroads to conduct
an annual review and analysis of its program for responding to detected
instances of poor safety conduct by certified conductors. FRA has
formulated the information collection requirements of this proposed
section to ensure that railroads collect data on conductor safety
behavior and feed that information into its operational monitoring
efforts, thereby enhancing safety.
This section would require Class I (including the National Railroad
Passenger Corporation and a railroad providing commuter service) and II
railroads to have an internal auditing plan to keep track of 8 distinct
kinds of events that involve poor safety conduct by conductors. For
each event, the railroad would have to indicate what response it took
to that situation. The railroad would evaluate this information,
together with data showing the results of annual operational testing
and the causation of FRA reportable train accidents, to determine what
additional or different efforts, if any, are needed to improve the
safety performance of that railroad's certified conductors. FRA is not
proposing to require that a railroad furnish this data or its analysis
of the data to FRA. Instead, FRA is proposing to require that the
railroad be prepared to submit such information when requested.
For purposes of the reporting requirement in this section, an
instance of poor safety conduct involving a person who holds both a
conductor and engineer certification would only have to be reported
once (i.e., either under 49 CFR 240.309 or this section). The
determination as to where to report the instance of poor safety conduct
would be based on the work the person was performing at the time the
conduct occurred. This determination would be similar to the
determination made under part 225 in which railroads determine whether
an accident was caused by poorly performing what is traditionally
considered a conductor's job function (e.g., switch handling, derail
handling, etc.) or whether it was caused by poorly performing what is
traditionally considered a locomotive engineer's job function (e.g.,
operation of the locomotive, braking, etc.).
Subpart D--Territorial Qualification and Joint Operations
Section 242.301 Requirements for Territorial Qualification
This proposed section, derived from 49 CFR 240.229 and 240.231,
explains the requirements for territorial qualification. Paragraph (a)
of this section provides that, except for two circumstances,\12\ a
railroad, including a railroad that employs conductors working in joint
operations territory, could not permit or require a person to serve as
a conductor unless that railroad determines that the person is a
certified conductor and possesses the necessary territorial
qualifications.
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\12\ The phrase ``[e]xcept as provided in paragraph (c) or (d)
of this section'' in paragraph (a) was not considered by the Working
Group or the full RSAC, but has been added to clarify the section.
---------------------------------------------------------------------------
Paragraph (a) reflects the Working Group and full RSAC
recommendation to realign the burden for determining which party is
responsible for allowing an unqualified person to operate in joint
operations. While part 240 puts the burden on the controlling railroad,
this proposed rule puts the burden on the employing railroad. This
change is based on the experiences of the Working Group members who
believe that an inordinate amount of the liability currently rests with
the controlling railroad. The perceived unfairness rests on the fact
that it is not always feasible for the controlling railroad to make all
of the determinations proposed in Sec. 242.119. The employing railroad
may provide the controlling railroad with a long list of hundreds or
thousands of locomotive engineers that it deems eligible for joint
operations; following up on a long, and ever changing list is made much
more difficult since a controlling railroad would not control the
personnel files of the conductors on this list.
The proposed realignment would lead to a sharing of the burden
among a controlling railroad, an employing railroad and an employing
railroad's conductor. Although a controlling railroad would be
obligated to make sure the person is qualified, paragraph (a) would
require that an employing railroad make these same determinations
before calling a person to serve in joint operations. Paragraph (b) of
this section would require a conductor to notify a railroad when the
person is being asked to exceed his or her territorial qualifications.
That paragraph parallels Sec. 242.209(b) of this proposed rule.
Paragraphs (c) and (d) propose requirements for situations where a
conductor lacks territorial qualification on main track and other than
main track physical characteristics. On main track, the conductor would
have to be assisted by a person who is (1) a certified conductor or
certified locomotive engineer and (2) meets the territorial
qualification requirements for the main track physical characteristics.
On other than main track, the conductor, where practicable, would have
to be assisted by a person who is a certified conductor and meets the
territorial qualification requirements for other than main track
physical characteristics. Where not practicable, the conductor would
have to be provided with an appropriate, up-to-date job aid. Two points
should be made about the other than main track proposal in paragraph
(d) of this section. First, the person assisting the conductor could be
the locomotive engineer as long as the engineer is also a certified
conductor and meets the territorial qualification requirements for the
other than main track physical characteristics. Second, FRA does not
intend for the
[[Page 69181]]
proposed requirements of Sec. 242.301(d) to apply to sidings.
Subpart E--Denial and Revocation of Certification
This subpart parallels part 240's approach to adverse decisions
concerning certification (i.e., decisions to deny certification or
recertification and revoke certification). With respect to denials, the
approach of this proposed rule is predicated principally on the theory
that decisions to deny certification or recertification would come at
the conclusion of a prescribed evaluation process which would be
conducted in accordance with the provisions set forth in this subpart.
Thus, this proposed rule and part 240 contain specific procedures
designed to assure that a person, in jeopardy of being denied
certification or recertification, would be given a reasonable
opportunity to explore and respond to the negative information that
might serve as the basis for being denied certification or
recertification.
When considering revocation, this proposed rule contemplates that
decisions to revoke certification would only occur for the reasons
specified in this subpart. Since revocation decisions by their very
nature involve a clear potential for factual disagreement, this subpart
is structured to ensure that such decisions would come only after a
certified conductor had been afforded an opportunity for an
investigatory hearing at which the presiding officer would determine
whether there was sufficient evidence to establish that the conductor's
conduct warranted revocation of his or her certification.
This subpart also includes the concept of certificate suspension.
Certificate suspension would be employed in instances where there is
reason to think the certificate should be revoked or made conditional
but time is needed to resolve the situation. Certificate suspension
would be applicable in instances where a person is awaiting an
investigatory hearing to determine whether that person violated certain
provisions of FRA's alcohol and drug control rules or engaged in
operational misconduct and situations in which the person is being
evaluated or treated for an active substance abuse disorder.
While this proposed subpart follows part 240's approach to adverse
decisions concerning certification, it does include some modifications
to the processes in part 240. Those modifications are discussed below.
Section 242.401 Denial of Certification
This section, derived from 49 CFR 240.219, proposes minimum
procedures that must be accorded to a certification candidate before a
railroad denies the candidate certification or recertification. Except
for two changes, the provisions in this section mirror the provisions
in Sec. 240.219 including: Providing a certification candidate with a
reasonable opportunity to explain or rebut adverse information; and
notifying a candidate of an adverse decision and providing a written
explanation of the basis for its decision within 10 days.
This section differs from Sec. 240.219 in two ways. First, this
section would require that a written explanation of an adverse decision
be ``served'' on a certification candidate (see definition of service
in Sec. 242.7). Use of the defined term, rather than part 240's more
general phrase ``mailed or delivered,'' not only makes this proposed
rule internally consistent but would likely help FRA in determining
whether a petition seeking review of a denial decision was filed within
120 days of the date the denial was served on the petitioner (see Sec.
242.503(c)). Second, paragraph (d) of this section, which is not
included in Sec. 240.219, would prohibit a railroad from denying
certification based on a failure to comply with Sec. 242.403(e)(1)-
(11) if sufficient evidence exists to establish that an intervening
cause prevented or materially impaired the conductor's ability to
comply with those sections. Paragraph (d) parallels the intervening
cause exception for revocation in Sec. 242.407(i)(1). FRA welcomes
comments on whether the intervening cause exception in paragraph (d)
should be modified to include certification and recertification
requirements in addition to the revocable events in Sec. 242.403. For
example, paragraph (d) could be modified to read as follows: A railroad
shall not determine that a person failed to meet the eligibility
requirements of this part and shall not deny the person's certification
if sufficient evidence exists to establish that an intervening cause
prevented or materially impaired the conductor's ability to comply with
the railroad operating rule or practice or certification or
recertification requirement which forms the basis for denying the
person certification or recertification.
As a supplement to this proposed section, FRA is considering
whether to add two provisions which FRA believes would improve the
transparency of the certification denial process and improve FRA's
ability to adjudicate petitions seeking review of a railroad's denial
decision pursuant to subpart E of this proposed rule. One of the
challenges that FRA faces when reviewing denial decisions in the
locomotive engineer context is that, unlike revocation decisions which
are usually accompanied by a documentary record and transcript
generated at a railroad hearing, no such hearing is required for denial
decisions and often there is little or no documentary record.
To overcome that challenge, FRA is considering two additional
provisions. First, FRA is considering adding the following sentence to
paragraph (a) of this section: The railroad shall provide the conductor
candidate with any written documents or records, including written
statements, which support its pending denial decision. Second, FRA is
considering adding the following sentence to paragraph (c) of this
section: The basis for a railroad's denial decision shall address any
explanation or rebuttal information that the conductor candidate may
have provided in writing pursuant to paragraph (a) of this section. FRA
welcomes comments on those proposed provisions.
Section 242.403 Criteria for Revoking Certification
This section, derived from 49 CFR 240.117 and 240.305, proposes the
circumstances under which a conductor may have his or her certification
revoked. In addition, paragraph (b) of this section would make it
unlawful to fail to comply with any of the events listed in paragraph
(e) of this section (i.e., events which would require a railroad to
initiate revocation action). Paragraph (b) would be needed so that FRA
could initiate enforcement action. For example, FRA might want to
initiate enforcement action in the event that a railroad fails to
initiate revocation action or a person is not a certified conductor
under this part.
Paragraph (c)(1) of this section proposes that a certified
conductor who fails to comply with the events listed in paragraph (e)
of this section would have his or her conductor certification revoked.
Paragraph (c)(2) proposes that a certified conductor, who is
monitoring, piloting, or instructing a conductor, could have his or her
certification revoked if he or she fails to take ``appropriate action''
to prevent a violation of paragraph (e) of this section. As explained
in paragraph (c)(2), ``appropriate action'' does not mean that a
supervisor, pilot, or instructor must prevent a violation from
occurring at all costs, but rather the duty may be met by warning the
conductor or engineer, as appropriate, of a potential or foreseeable
violation. The term ``appropriate action''
[[Page 69182]]
is also used in paragraph (e) of this section as well as 49 CFR
240.117(c)(2).
Paragraph (c)(3) proposes that a person who is a certified
conductor but is called by a railroad to perform the duty of a train
crew member other than that of conductor or locomotive engineer would
not have his or her certification revoked based on actions taken or not
taken while performing that duty. For example, a person who is called
to be the crew's brakeman and who does not serve as a conductor or
locomotive engineer during that tour of duty could not have his or her
certification revoked for a violation listed in paragraph (e) of this
section. Interested parties should note that the exemption would not
apply to violations of Sec. 242.403(e)(12) so that conductors working
in other capacities who violate certain alcohol and drug rules would
have their certification revoked for the appropriate period pursuant to
Sec. Sec. 242.403 and 242.115.
Paragraph (d) proposes that the time frame for considering
operating rule compliance would only apply to conduct described in
paragraphs (e)(1) through (e)(11) of this section and not paragraph
(e)(12). When alcohol and drug violations are at issue, the window in
which prior operating rule misconduct will be evaluated would be
dictated by Sec. 242.115 and not limited to the 36 month period
prescribed in this paragraph. This proposed rule would require that
certification reviews consider alcohol and drug misconduct that
occurred within a period of 60 consecutive months prior to the review
pursuant to Sec. 242.115(e).
Paragraph (e) proposes 12 kinds of rule infractions that could
result in certification revocation. The infractions listed in
paragraphs (e)(1)-(e)(5) and (e)(12) derive from the revocable events
provided in 49 CFR 240.117(e) but have been modified to account for a
conductor's duties. For example, paragraphs (e)(1) and (e)(2) recognize
that a conductor does not operate the train and thus those
subparagraphs would only require a conductor to take ``appropriate
action'' to prevent an engineer from failing to control a locomotive or
train in accordance with a signal or to adhere to speed limitations. As
explained in those subparagraphs, ``appropriate action'' does not mean
that a conductor must prevent a violation from occurring at all costs;
but rather the duty may be met by warning the engineer of a potential
or foreseeable violation. Moreover, paragraph (e)(2) recognizes that a
conductor who is not in the operating cab should not be held to held to
the same responsibility with respect to monitoring train speed as a
conductor who is located in the operating cab.
Interested parties should note that with respect to paragraph
(e)(4), a conductor would be considered to have occupied main track or
a segment of main track without proper authority or permission if the
conductor failed to stop and protect/flag a crossing on main track when
required to do so pursuant to a railroad operating rule or practice,
including a mandatory directive.
The infractions listed in paragraphs (e)(6)-(e)(11) of this section
describe violations of part 218, subpart F which are not listed as
revocable events in part 240. For the reasons listed below, FRA
proposes, and the RSAC recommended, that violations of part 218,
subpart F should be revocable events for conductors. In the future, FRA
expects to review whether those violations should also be revocable
events for locomotive engineers. Subpart F of part 218 requires that
each railroad have in effect certain operating rules concerning shoving
or pushing movements, equipment left out to foul a track, switches, and
derails.\13\ The operating rules identified in part 218, subpart F are
not only considered core competencies for conductors but are also
designed to address the most frequently caused human factor accidents.
Human factors are the leading cause of train accidents, accounting for
38 percent of the total in 2005. Human factors also contribute to
employee injuries. Subpart F violations account for approximately 43%
of all human factor caused accidents. From 2005-2009, there were
approximately 2,227 accidents due to Subpart F violations. Those
accidents resulted in approximately 13 fatalities, 363 injured, and
$104,855,224 in damages.
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\13\ For a detailed analysis of part 218, interested parties
should review the notice of proposed rulemaking (71 FR 60372 (Oct.
12, 2006)), the final rule (73 FR 8442 (Feb. 13, 2008)), and the
response to petitions for reconsideration (73 FR 33888 (June 16,
2008)) issued in that rulemaking.
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In addition to the 12 kinds of revocable events proposed in this
NPRM, FRA welcomes comments as to whether a violation of the final rule
in 49 CFR part 220 (``Restrictions on Railroad Operating Employees' Use
of Cellular Telephones and Other Electronic Devices'') should
constitute a revocable event for conductors and locomotive engineers.
In the NPRM for 49 CFR part 220 (75 FR 27672, 27678 (May 18, 2010)),
FRA noted that it was ``considering amending 49 CFR part 240 * * * to
add violations of this subpart as a basis for revoking a locomotive
engineer's certification'' and requested comments on the issue.
However, since the issue deals with revocation of certification, FRA
believes that the issue is more appropriately addressed in the
conductor and locomotive engineer rules. Comments regarding whether FRA
should use its other enforcement tools (e.g., monetary civil penalty
against an individual, disqualification of an individual from
performing safety-sensitive service, etc.) instead of mandating
revocation would be particularly helpful as would comments describing
how a railroad would acquire the necessary evidence to revoke a
conductor's and/or locomotive engineer's certification for violation of
49 CFR part 220.
Paragraph (e)(13) of this section, which does not have a
counterpart in part 240, would prohibit a railroad from denying or
revoking an employee's certification based upon additional conditions
or operational restrictions imposed pursuant to Sec. 242.107(d). Thus,
a railroad could not revoke a conductor's certificate for an alleged
violation of a railroad rule or practice that was more stringent than
the condition or restrictions required by this proposed part. In the
future, FRA expects to review whether a similar provision should also
apply to locomotive engineers.
Paragraph (f) of this section proposes that if a single incident
contravenes more than one operating rule or practice listed in
paragraph (e) of this section, that event would be treated as a single
violation. Moreover, paragraph (f) proposes that a conductor may have
his or her certification revoked for violations that occur during
properly conducted operational compliance tests. However, violations
that occur during an improperly conducted operational compliance test
would not be considered for revocation purposes.
Section 242.405 Periods of Ineligibility\14\
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\14\ When considered by the Working Group and full RSAC, the
title of this section was ``Periods of revocation.'' FRA has
modified that title to describe more clearly what the section would
cover.
---------------------------------------------------------------------------
This proposed section, derived from Sec. 240.117, describes how a
railroad would determine the period of ineligibility (e.g., for
revocation or denial of certification) that a conductor or conductor
candidate would have to undergo. With respect to revocation, this
section proposes that once a railroad has determined that a conductor
has failed to comply with its safety rule concerning one or more events
listed in Sec. 242.403(e), two consequences would occur. First, the
railroad would be required to revoke the
[[Page 69183]]
conductor's certification for a period of time provided in this
section. Second, that revocation would initiate a period during which
the conductor would be subject to an increasingly more severe response
if additional revocable events occur in the next 24 to 36 months.
Except for incidents occurring on other than main track where
restricted speed or the operational equivalent is in effect, the
standard periods of revocation proposed in this section track the
periods provided in part 240: 1 event = revocation for 30 days; 2
events within 24 months of each other = 6 months; 3 events within 36
months of each other = 1 year; and 4 events within 36 months of each
other = 3 years. This section notes, however, that violations of Sec.
219.101 (Alcohol & Drugs) could result in different periods of
ineligibility and in those cases, the longest period of revocation
would control. FRA has included a table in Appendix E to this proposed
rule which provides the revocation periods in a spreadsheet-style form.
The table should be useful in determining the correct period of
revocation.
The period of revocation in both part 240 and this proposed rule is
based on a floating window. Hence, under this proposed rule and part
240, if a second offense occurs 25 months after the first offense, the
revocation period would be the same as a first offense; however, if a
third offense occurs within 36 months of the first offense, the
revocation period would be one year. The anomaly will be that a
person's certificate could be revoked twice for one month under
paragraph (a)(3)(ii) of this section but that the third incident could
result in a one year revocation under paragraph (a)(3)(iv) of this
section without the benefit of the interim six month revocation period
under paragraph (a)(3)(iii).
This section also contains two provisions which would reduce the
period of ineligibility if certain criteria are met. The first
provision, which is contained in paragraph (a)(3)(i) of this section,
proposes that ``on other than main track where restricted speed or the
operational equivalent thereof is in effect,'' the periods of
revocation for violations of certain provisions of Sec. 242.403(e)
shall be reduced by one half provided that another revocable event has
not occurred within the previous 12 months. That provision, which does
not have an equivalent provision in part 240, recognizes that some
violations which occur on other than main track where slower speeds are
in effect may pose less of a danger to safety than violations that
occur on main track and thus a reduced period of revocation is
warranted. The second provision, which may reduce the period of
ineligibility if certain criteria are met, is contained in paragraph
(c) of this section.\15\ That provision, which parallels Sec.
240.117(h), proposes that a person whose conductor certification is
denied or revoked would be eligible for grant or reinstatement of the
certificate prior to the expiration of the initial period of revocation
if, among other things, at least one half of the initial period of
ineligibility has elapsed.
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\15\ Following the Working Group meetings, FRA changed the word
``revocation'' in the beginning of paragraph (c) to the word
``ineligibility'' to accurately reflect the scope of that paragraph.
---------------------------------------------------------------------------
In certain instances, both proposed provisions may apply to a
conductor who has had his or her certification revoked. For example, if
a conductor's certification is revoked for a violation of proposed
Sec. 242.403(e)(6) which occurred on other than main track where
restricted speed is in effect and it is the only revocation that the
conductor has ever had, then, under Sec. 242.405(a)(3)(i), the
revocation period would be 15 days. Moreover, if the conductor meets
the criteria in Sec. 242.405(c), then the conductor would be eligible
for reinstatement of his or her certificate in 8 days.\16\
---------------------------------------------------------------------------
\16\ If, as in the example, the revocation calculation results
in any fraction of a day (e.g., 7.5 days), then round the number up.
Thus, the conductor in the example would be eligible for
reinstatement in 8 days.
---------------------------------------------------------------------------
Paragraph (b) of this section proposes that all periods of
revocation may consist of training. While that provision is not
explicitly stated in part 240, it is certainly not prohibited and is
included in this proposed rule to make the rule clear.
Section 242.407 Process for Revoking Certification
This proposed section, derived from 49 CFR 240.307, provides the
procedures a railroad would have to follow if it acquires reliable
information regarding a conductor's violation of Sec. 242.115(e) or
Sec. 242.403(e).
Paragraph (b)(1) of this section provides that upon receipt of
reliable information regarding a violation of Sec. 242.403(e), a
railroad would have to suspend the person's certificate. Paragraph
(b)(2) provides that prior to or upon suspending the person's
certificate, the railroad would have to provide either oral or written
notice of the reason for the suspension, the pending revocation, and an
opportunity for a hearing. If the initial notice was verbal, then the
notice would have to be promptly confirmed in writing. The amount of
time the railroad has to confirm the notice in writing would depend on
whether or not a collective bargaining agreement is applicable. In the
absence of such an agreement, a railroad would have 96 hours to provide
this important information. Interested parties should note that if a
notice of suspension is amended after a hearing is convened and/or does
not contain citations to all railroad rules and practices that may
apply to a potentially revocable event, the Operating Crew Review
Board, if asked to review the revocation decision, might subsequently
find that that constituted procedural error pursuant to Sec. 242.505.
Paragraphs (b)(3)-(b)(7) and paragraphs (c), (d), (e), and (f) of
this section provide the proposed requirements and procedures for
conducting or waiving a railroad hearing regarding the alleged
revocable event. Except for paragraph (b)(4), discussed below, those
proposed requirements mirror the hearing requirements in part 240.
Although the requirements in paragraph (c) regarding the written
decision issued in a railroad hearing track the requirements in part
240, FRA is considering modifying those requirements to ensure that
clearer and more detailed decisions are issued. Clearer and more
detailed decisions would allow a conductor to understand exactly why
his or her certification was revoked and would allow the Operating Crew
Review Board to have a more detailed understanding of the case if it is
asked to review the revocation decision pursuant to subpart E of this
proposed rule. Specifically, FRA is considering requiring the decision
to: (1) State whether the railroad official found that a revocable
event occurred and the applicable period of revocation with a citation
to 49 CFR 242.405 (Periods of revocation); (2) contain an explanation
of the factual findings and citations to all applicable railroad rules
and practices; (3) not cite a railroad rule or practice that was not
cited in the written notice of suspension; and (4) be served on the
employee and the employee's representative, if any, with the railroad
to retain proof of that service. FRA welcomes comments on those
proposals.
Pursuant to paragraph (b)(4) of this section, no later than the
convening of a hearing, the railroad convening the hearing would have
to provide the person with a copy of the written information and list
of witnesses the railroad would present at the hearing. If requested, a
recess to the start of the hearing would be granted if the copy of the
written information list of witnesses is not provided until just prior
to the
[[Page 69184]]
convening of the hearing. If the information that led to the suspension
of a conductor's certificate pursuant to Sec. 242.407(b)(1) was
provided through statements of an employee of the convening railroad,
the railroad would have to make that employee available for examination
during the hearing. Examination may be telephonic where it is
impractical to provide the witness at the hearing.
The provisions in paragraph (b)(4) of this section were added to
address the concerns of some members of the Working Group that
engineers were not being provided with information and/or witnesses
necessary to defend themselves at the hearing under part 240.
Interested parties should note that even if a railroad conducts a
hearing pursuant to the procedures in an applicable collective
bargaining agreement pursuant to paragraph (d) of this section, the
railroad would still have to comply with the provisions of paragraph
(b)(4). It is FRA's understanding that, except for an employee of the
convening railroad whose statements led to a suspension under Sec.
242.407(b)(1), a railroad would not, in fact, be required to call to
testify every witness that it includes on the list provided pursuant to
paragraph (b)(4). If, for example, a railroad believes that it has
provided sufficient evidence during a hearing to prove its case and
that calling a witness on its list to testify would be unduly
repetitive, then the railroad would not be obligated to call that
witness. Of course, the opposing party could request that the witness
be produced to testify but the hearing officer would have the authority
pursuant to Sec. 242.407(c)(6) to determine whether the witness'
testimony would be unduly repetitive or so extensive and lacking in
relevancy that its admission would impair the prompt, orderly, and fair
resolution of the proceeding. FRA welcomes comments on its
understanding of paragraph (b)(4).
Paragraph (g) would require a railroad to revoke an employee's
conductor certification if it discovers that another railroad has
revoked that person's conductor certification. The hearing requirement
in this proposed rule is satisfied when any single railroad holds a
revocation hearing.
Paragraph (h) would credit the period of certificate suspension
prior to the commencement of a hearing required under this section
towards satisfying any applicable revocation period imposed in
accordance with the provisions of proposed Sec. 242.405.
Paragraph (i) proposes two specific defenses for railroad
supervisors and hearing officers to consider when deciding whether to
suspend or revoke a person's certificate due to an alleged revocable
event. Pursuant to paragraph (i), either defense would have to be
proven by sufficient evidence.
Paragraph (i)(1) of this section proposes that a person's
certificate would not be revoked when there is sufficient evidence of
an intervening cause that prevented or materially impaired the person's
ability to comply. For example, a railroad should consider assertions
that a conductor in the operating cab failed to take appropriate action
to prevent the engineer from failing to control the locomotive in
accordance with a signal indication that requires a complete stop
before passing it because of defective equipment. Similar to the
defense of defective equipment, the actions of other people could
sometimes be an intervening cause. For instance, a dispatcher or a
train crew member could relay incorrect information to the conductor
who reasonably relied on it in making a prohibited train movement.
Conductors and railroad managers need to note that not all
equipment failures or errors caused by others would serve to absolve
the person from certification action under this proposed rule. The
factual issues of each circumstance would have to be analyzed on a
case-by-case basis. For example, a broken speedometer would not be an
intervening factor in a violation of Sec. 242.403(e)(3) (failure to
perform certain required brake tests).
Paragraph (i)(2) of this section proposes to provide a railroad
with the discretion necessary to decide not to revoke a conductor's
certification for an event that violates Sec. 242.403(e)(1) through
(e)(11) under certain limited circumstances. However, that subparagraph
does not permit a railroad to use its discretion to dismiss violations
indiscriminately. That is, FRA would only permit railroads to excuse
violations when two criteria are met. First, the violation would have
to be of a minimal nature; for example, on high speed track at the
bottom of a steep grade, the engineer makes clear to the conductor, who
is in the cab, that the engineer knows the correct speed limit without
the conductor saying anything about speed, but the front of the lead
unit in a four unit consist hauling 100 cars enters a speed restriction
at 10 miles per hour over speed while the third unit and the balance of
the train enters the speed restriction at the proper speed, and
maintains that speed for the remainder of the train. If more of the
locomotive or train consist enters the speed restriction in violation,
a railroad that is willing to consider mitigating circumstances would
need to consider whether the violation was truly of a minimal nature.
In contrast, a violation could not be considered of a minimal
nature if a conductor fundamentally violated the operating rules. For
example, if a conductor failed to perform or have knowledge that a
required brake test was performed, even if the train was only traveling
a short distance, then the event could not be considered of a minimal
nature. In situations where the proposed rule had been fundamentally
violated, a railroad would not have the discretion to excuse the
violation.
Second, for paragraph (i)(2) to apply, sufficient evidence would
have to be presented to prove that the violation did not have either a
direct or potential effect on rail safety. That defense would certainly
not apply to a violation that actually caused a collision or injury
because that would be a direct effect on rail safety. It would also not
apply to a violation that, given the factual circumstances surrounding
the violation, could have resulted in a collision or injury because
that would be a potential effect on rail safety. For instance, an
example used to illustrate the term ``minimal nature'' described a
situation involving a train that had the first two locomotives enter a
speed restriction too fast, yet the balance of the train was in
compliance with the speed restriction; since the train in that example
would not be endangering other trains because it had the authority to
travel on that track at a particular speed, there would be no direct or
potential effect on rail safety caused by that violation.
In contrast, if a train failed to stop short of a banner, which was
acting as a signal requiring a complete stop before passing it, during
a locomotive engineer efficiency test, that striking of a banner might
have no direct effect on rail safety but it has a potential effect
since a banner would be simulating a railroad car or another train.
Meanwhile, there would be a difference between passing a banner versus
making an incidental touching of the banner. If a locomotive or train
barely touched a banner so that the locomotive or train did not run
over the banner, break the banner, or cause the banner to fall down,
that incidental touching could be considered a minimal nature violation
that did not have any direct or potential effect on rail safety. This
is because such an incidental touching is not likely to cause damage to
equipment or injuries to crew members even if the banner were another
train. Although it is arguable that if the banner were a person the
touching could be fatal, FRA is willing
[[Page 69185]]
to allow railroads the discretion to consider this type of scenario in
the context of excusing a violation pursuant to paragraph (i)(2); of
course, if the banner was in fact a person in the manner described in
the example, the railroad would not have the discretion to apply
paragraph (i)(2).
Similarly, if a train has received oral and written authority to
occupy a segment of main track, the oral authority refers to the
correct train number but refers to the wrong locomotive because someone
transposed the numbers, the conductor's violation in not catching this
error before entering the track without proper authority could be
considered of a minimal nature with no direct or potential effect on
rail safety. Since the railroad would be aware of the whereabouts of
this train, the additional risk to safety of this paperwork mistake may
practically be zero. Under the same scenario, where there are no other
trains or equipment operating within the designated limits, there may
be no potential effect on rail safety as well as no direct effect.
Paragraph (j) of this section proposes to require railroads to keep
records of those violations in which they must not or elect not to
revoke a conductor's certificate pursuant to paragraph (i) of this
section. Paragraph (j)(1) would require railroads to keep records even
when they decide not to suspend a conductor's certificate due to a
determination pursuant to paragraph (i). Paragraph (j)(2) would require
railroads to keep records even when they make their determination prior
to the convening of the hearing held pursuant to Sec. 242.407.
Paragraph (k) addresses concerns that problems could arise if FRA
disagrees with a railroad's decision not to suspend a conductor's
certificate for an alleged misconduct event pursuant to Sec.
242.403(e). As long as a railroad makes a good faith determination
after a reasonable inquiry, the railroad should have a defense to civil
enforcement for making what the agency believes to be an incorrect
determination. However, railroads should note that if they do not
conduct a reasonable inquiry or act in good faith, they would be
subject to civil penalty enforcement under this proposed rule. In
addition, even if a railroad does not take what FRA considers
appropriate revocation action, FRA could still take enforcement action
against a person responsible for the non-compliance by assessing a
civil penalty pursuant to Sec. 242.403 of this proposed rule or
issuing an order prohibiting an individual from performing safety-
sensitive functions in the rail industry for a specified period
pursuant to 49 CFR part 209, subpart D.
Subpart F--Dispute Resolution Procedures
This subpart details the opportunities and procedures for a person
to appeal a decision by a railroad to deny certification or
recertification or to revoke a conductor's certification. As stated in
the RSAC Task Statement, one of the issues requiring specific report
from the Working Group was ``[s]tarting with the locomotive engineer
certification model, what opportunities are available for simplifying
appeals from decertification decisions of the railroads?'' Since its
first meeting in July of 2009, the Working Group devoted a considerable
amount of time to researching, discussing and proposing ideas to
simplify the appeals process. While the appeals process proposed in
this subpart, which received unanimous consent by the Working Group and
was recommended by the full RSAC, essentially follows the appeals
process in part 240, some important modifications are proposed. Those
proposed modifications are discussed below.
Section 242.501 Review Board Established
This section, derived from 49 CFR 240.401, provides that a person
who has been denied certification or recertification or has had his or
her conductor certification revoked could petition FRA to review the
railroad's decision. Pursuant to this section, FRA proposes to delegate
initial responsibility for adjudicating such disputes to an Operating
Crew Review Board (OCRB). Although creation of the OCRB would require
issuance of an internal FRA order, FRA expects that the OCRB would
mirror the make-up of the Locomotive Engineer Review Board (LERB),
which is currently used by FRA to adjudicate disputes under part
240.\17\ As mentioned above, FRA expects that, if and when conforming
changes are made to part 240, all references to the LERB in part 240
would be changed to the OCRB and the OCRB would handle both conductor
and locomotive engineer disputes.
Section 242.503 Petition Requirements
---------------------------------------------------------------------------
\17\ In a modification to the regulatory text considered by the
Working Group and the full RSAC, FRA has removed a reference to a
minimum number of OCRB members in paragraph (c) of this section. The
number of board members will be provided by FRA order.
---------------------------------------------------------------------------
This section, derived from 49 CFR 240.403, provides the proposed
requirements for obtaining FRA review of a railroad's decision to deny
certification, deny recertification, or revoke certification. Those
requirements contained in paragraphs (a)-(c) include the need to seek
review in a timely fashion once the adverse decision is rendered by the
railroad. Interested parties should note that the ``petitioner''
referred to in paragraph (b) of this section is the person who had his
or her certificate revoked, not an employee representative who may
respond on the petitioner's behalf. If the petitioner is represented by
someone, the petitioner is encouraged to also provide the
representative's name, mailing address, daytime telephone number, and
e-mail address (if available) in the petition.
As currently proposed, paragraph (b)(5) of this section would
require a petitioner to supplement his or her petition with ``a copy of
all written documents in the petitioner's possession or reasonably
available to the petitioner that document'' the railroad's decision. In
an effort to clarify that requirement with respect to petitions seeking
review of a railroad decision which is based on a failure to comply
with any drug or alcohol related rules or a return-to-service
agreement, FRA is considering adding a provision to paragraph (b) of
this section which would provide that: ``If the petitioner is
requesting review of a railroad decision which is based on a failure to
comply with any drug or alcohol related rules or a return-to-service
agreement, then the petitioner shall supplement his or her petition
with all relevant written documents, including the information under 49
CFR 40.329 that laboratories, medical review officers, and other
service agents are required to release to employees. The petitioner
should provide written explanation in the petition if written documents
that should be reasonably available to the petitioner are not
supplied.'' FRA welcomes comments on that proposed provision.
Paragraph (c) of this section proposes to give the OCRB discretion
to grant a request for additional time that is made prior to the
expiration of the period originally prescribed. As the OCRB could
exercise its discretion under this proposed rule only for ``cause
shown,'' a party would have to demonstrate some justification for the
Board to grant an extension of time. Similarly, if the deadline in
paragraph (c) is completely missed, the movant, under paragraph (c)(2),
would have to allege facts constituting ``excusable neglect'' and the
mere assertion of excusable neglect, unsupported by facts, would be
insufficient. Excusable neglect would require a demonstration of good
faith on
[[Page 69186]]
the part of the party seeking an extension of time and some reasonable
basis for noncompliance within the time specified in the rules. Absent
a showing along these lines, relief would be denied.
Paragraph (d) of this section explains that a decision by the OCRB
to deny a petition for untimeliness or lack of compliance with the
requirements of Sec. 242.503 could be appealed directly to the
Administrator. Ordinarily, an appeal to the Administrator could occur
only after a case has been heard by FRA's hearing officer.
One difference between this proposed section and Sec. 240.403 is
the time by which a petition seeking review of a railroad's decision
would have to be filed. Part 240 contains different times depending on
whether a person is seeking review of a revocation decision (120 days)
or a denial decision (180 days). This proposed section, however,
provides that a petition seeking review of a revocation or denial
decision would have to be filed with FRA within 120 days of the date
the decision was served on the petitioner. Another difference between
this proposed section and Sec. 240.403 is that, under this section,
the OCRB's discretion to consider untimely filed petitions would now be
extended to petitions seeking review of a railroad's decision to deny
certification or recertification.
Section 242.505 Processing Certification Review Petitions
This proposed section, derived from 49 CFR 240.405, details how
petitions for review would be handled by FRA. Upon receipt of the
petition, FRA proposes to provide the person written acknowledgement of
the filing and provide a copy of the filing to the railroad. The
railroad would then have 60 days from its date of receipt to respond,
if it desires to comment on the matter. If the railroad commented on
the matter, any material would have to be submitted in writing and a
copy served on the petitioner and petitioner's representative, if
any.\18\
---------------------------------------------------------------------------
\18\ The proposed rule considered by the Working Group and full
RSAC would have required the railroad to ``provide'' a copy of the
information to the petitioner. To clarify the obligation of the
railroad, FRA has changed the word ``provide'' to ``serve'' and
added that petitioner's representative, if any, also be served.
---------------------------------------------------------------------------
Based on the written record, FRA staff would analyze the railroad
decision and make a recommendation to the OCRB. The OCRB would
determine whether the denial or revocation of certification was
improper under the regulation. As indicated in paragraph (a), it would
be FRA's goal to issue OCRB decisions within 180 days from the date FRA
has received all the information from the parties. FRA's ability to
achieve that goal would depend on the number of petitions filed and
agency resources available to handle those petitions in any given
period. Further, that goal will depend on whether FRA receives all
available evidence. If the petition and/or railroad's response do not
contain all available evidence, including but not limited to, the
complete hearing transcript with exhibits and color copies of all
photographic evidence (if available), then it is FRA's intention that
the OCRB will render a decision within 180 days from the date that all
available evidence is received.
While the handling of petitions by FRA would be the same under
Sec. 240.405 and this proposed section, this section, unlike Sec.
240.405, includes, in paragraphs (f)-(j), the proposed process and
standards of review that the OCRB would utilize when considering a
petition. Those standards are the same standards used by the LERB to
review locomotive engineer petitions.\19\ The standards were added to
this proposed rule to address a concern of some members of the Working
Group that railroads and petitioners would not know what standard of
review the OCRB would use in considering petitions.
---------------------------------------------------------------------------
\19\ FRA has made some modifications to paragraphs (f)-(j) from
the draft recommended by the Working Group and full RSAC. The
modifications are necessary to clarify the authority of the OCRB and
the standards of review the OCRB would utilize.
---------------------------------------------------------------------------
Like the LERB, the OCRB would only determine whether a railroad's
decision was based on an incorrect determination. If a railroad
conducted hearing was so unfair that it caused a petitioner substantial
harm, the OCRB could grant the petition; however, the OCRB's review
would not be intended to correct all procedural wrongs committed by the
railroad. Also like the LERB, the decision-making power of the OCRB
would be limited to approving the railroad decision, overturning the
railroad decision, or returning the case to the railroad for additional
fact finding. The OCRB would not be empowered to mitigate the
consequences of a railroad decision, if that decision was valid under
this proposed regulation. The OCRB would only be empowered to make
determinations concerning qualifications under this regulation. The
contractual consequences, if any, of those determinations would have to
be resolved under dispute resolution mechanisms that do not directly
involve FRA. For example, FRA could not order a railroad to alter its
seniority rosters or make an award of back pay to accommodate a finding
that a railroad wrongfully denied certification.
Interested parties should note that promulgation of this proposed
rule, as currently written, would necessarily require the OCRB and LERB
to determine whether a railroad revoked the correct certificate of a
person who holds both an engineer and conductor certification. For
example, in a case in which a railroad found that a person who holds
both a conductor and engineer certification violated a railroad rule
involving a failure to comply with the provisions of 49 CFR 218.99
(i.e., a part 218, subpart F violation) but revoked that person's
engineer certification, the OCRB, if petitioned, would have to find
that the revocation decision was improper because, currently, an
engineer cannot have his or her part 240 certification revoked for
violations of part 218, subpart F.
Paragraph (l) of this section would require the OCRB's written
decision to be served on the petitioner, including the petitioner's
representative, if any, and the railroad. That paragraph has been
modified from the paragraph considered by the Working Group and the
full RSAC to require that the decision be served on the parties, not
just provided to them. Moreover, the modified paragraph does not
contain a requirement that every decision include findings of fact
which may not be appropriate or relevant to some decisions.
Section 242.507 Request for a Hearing
This section, which parallels 49 CFR 240.407, provides that a party
who has been adversely affected by an OCRB decision would have the
opportunity to request an administrative proceeding as prescribed in
proposed Sec. 242.509. In addition, this section details the proposed
requirements for requesting such a proceeding.
Paragraph (c) of this section provides that a party who fails to
request an administrative hearing in a timely fashion would lose the
right to further administrative review since the OCRB's decision would
constitute final agency action.
As noted in paragraph (e) of this section, FRA would not schedule
hearings or set an agenda for the proceeding. FRA would merely arrange
for the appointment of a presiding officer and it would be the
presiding officer's duty to schedule a hearing for the earliest
practicable date.
[[Page 69187]]
Section 242.509 Hearings
This section, which parallels 49 CFR 240.409, describes the
proposed authority of the presiding officer to conduct an
administrative hearing and the procedures by which the administrative
hearing would be governed. Like Sec. 240.409, the proceeding provided
by this section would afford an aggrieved party a de novo hearing at
which the relevant facts would be adduced and the correct application
of this proposed part would be applied.
In instances when the issues are purely legal, or when only limited
factual matters are necessary to determine issues, paragraph (c) of
this section proposes that the presiding officer could determine the
issues following an evidentiary hearing only on the disputed factual
issues, if any. The presiding officer could therefore grant full or
partial summary judgment.
Paragraph (d) of this section proposes that the presiding officer
may authorize discovery. It also proposes to authorize the presiding
officer to sanction willful noncompliance with permissible discovery
requests. Paragraph (e) would require that documents in the nature of
pleadings be signed. This signature would constitute a certification of
factual and legal good faith. Paragraph (f) proposes a requirement for
service and for certificates of service. The presiding officer's
authority to address noncompliance with a law or directive is expressed
in paragraph (g). This provision is intended to ensure that the
presiding officer would have the authority to control the proceeding so
that an efficient and fair hearing would result.
Paragraph (h) states the right of each party to appear and be
represented. Paragraph (i) would protect witnesses by ensuring their
right of representation and their right to have their representative
question them. Paragraph (j) would allow any party to request
consolidation or separation of hearings of two or more petitions when
to do so would be appropriate under established jurisprudential
standards. This option is intended to allow more efficient
determination of petitions in cases where a joint hearing would be
advantageous.
Under paragraph (k), the presiding officer could, with certain
exceptions, extend periods for action required in the proceedings,
provided substantial prejudice would not result to a party. The
proposed authority to deny a request for extension submitted after the
expiration of the period involved shows the preference for use of this
authority as a tool to alleviate unforeseen or unnecessary burdens, and
not as a remedy for inexcusable neglect.
Paragraph (l) would establish a motion as the appropriate method
for requesting action by the presiding officer. That paragraph would
also provide the form of motions and the response period for written
motions.
Paragraph (m) would provide rules for the mode of hearing and
record maintenance, including requirements for sworn testimony,
verbatim record (including oral testimony and argument), and inclusion
of evidence or substitutes therefor in the record. Paragraph (n) would
direct the presiding officer to employ specific rules of evidence as
guidelines for the introduction of evidence and permits the presiding
officer to determine what evidence may be received. Further, paragraph
(o) proposes additional powers the presiding officer may exercise
during the proceedings.
Paragraph (p) would provide that the petitioner before the OCRB,
the railroad that took the certification action at issue, and the FRA
are mandatory parties to the administrative proceeding. Paragraph (q)
would require the party requesting the hearing to carry the burden of
proof. The actions of the conductor and the railroad would be at issue
in the hearing--not the actions of the OCRB. Thus, it is appropriate
that the conductor and the railroad fill the roles of petitioner and
respondent for the hearing. In addition, the burden each party would
have if they were the hearing petitioner is articulated in paragraph
(q).
Paragraph (r) would provide that FRA would be a mandatory party in
the proceeding. In all proceedings, FRA would initially be considered a
respondent. If, based on evidence acquired after the filing of a
petition for hearing, FRA were to conclude that the public interest in
safety was more closely aligned with the position of the petitioner
than the respondent, FRA could request that the hearing officer
exercise his or her inherent authority to realign parties for good
cause shown. However, FRA anticipates that such a situation would occur
rarely, if ever. Since FRA could realign itself, FRA wants to caution
future parties that FRA represents the interests of the government;
hence, parties and their representatives would have to be careful to
avoid ethical dilemmas that might arise due to FRA's ability to realign
itself.
Paragraphs (s)-(u) would provide the providing officer with
authority to close the record and issue a decision.
Section 242.511 Appeals
This section, derived from 49 CFR 240.411, proposes to permit any
party aggrieved by the presiding officer's decision to file an appeal
with the FRA Administrator. Paragraph (a) proposes that if no appeal is
timely filed, the presiding officer's decision would constitute final
agency action.
Paragraphs (b)-(f) would allow for a reply to the appeal and
described the Administrator's authority to conduct the proceedings.
Interested parties should note that the phrase ``except where the terms
of the Administrator's decision (for example, remanding a case to the
presiding officer) show that the parties' administrative remedies have
not been exhausted'' in paragraph (e) of this section is included in
this proposed rule so that parties would understand that a remand, or
other intermediate decision, would not constitute final agency action.
The inclusion of this phrase is made in deference to those parties that
are not represented by an attorney or who might otherwise be confused
as to whether any action taken by the Administrator should be
considered final agency action.
Appendices
FRA proposes to include at least four appendices to this rule. In
the final rule, Appendix A will contain a penalty schedule similar to
that FRA has issued for all of its existing rules. Because such penalty
schedules are statements of policy, notice and comment are not required
prior to their issuance. See 5 U.S.C. 553(b)(3)(A). Nevertheless
interested parties are welcome to submit their views on what penalties
may be appropriate.
Proposed Appendix B provides both the organizational requirements
and a narrative description of the submission required under Sec. Sec.
242.101 and 242.103. FRA is not proposing to require that railroad
submissions be made on a Federally mandated form. Instead, FRA is
prescribing only minimal constraints on the organization and manner of
presenting information. FRA would require that the submission be
divided into six sections. FRA would require that each section deal
with a different subject matter and that the railroad identify the
appropriate person to be contacted in the event FRA needs to discuss
some aspect of the railroad's program. While proposed Appendix B is
derived from Appendix B to part 240, one major difference is that
proposed Appendix B proposes to require that, pursuant to Sec.
242.103, a railroad must serve a copy of its submission on the
president of each labor organization that
[[Page 69188]]
represents the railroad's employees subject to part 242.
Interested parties should note that FRA is considering the
possibility of requiring each railroad to provide its submission
electronically. Such a requirement would likely allow FRA to review
submissions more efficiently and eliminate the need to store hardcopies
of the numerous submissions. FRA welcomes comments on this
consideration.
Proposed Appendix C, derived from Appendix C to part 240, provides
a narrative discussion of the procedures that a person seeking
certification or recertification would have to follow to furnish a
railroad with information concerning his or her motor vehicle driving
record.
Proposed Appendix D, derived from Appendix F to part 240, provides
a narrative discussion of the procedures that a railroad would be
required to employ in administering the vision and hearing requirements
of Sec. 242.117. The main issue addressed in this proposed Appendix is
the acceptable test methods for determining whether a person has the
ability to recognize and distinguish among the colors used as signals
in the railroad industry.
Subsequent to the July-December Working Group meetings, FRA was
notified that an additional color vision test (Richmond--HRR (4th
edition)) could be added to the list of acceptable tests contained in
Appendix F to part 240 and that some of the listed tests are no longer
in print. While updating the list would appear to fall within the
purview of the medical standards working group, FRA would welcome
comments on which vision color tests should be included both in
Appendix F to part 240 and in Appendix C to this proposed rule.
Proposed Appendix E provides a table describing the application of
revocable events. The table lists: The revocation periods; whether a
person would be eligible for a reduction of the revocation period; and
whether a person who is certified as both a conductor and an engineer
could work in either position following a certification revocation.
V. Regulatory Impact and Notices
1. Executive Order 12866 and DOT Regulatory Policies and Procedures
This proposed rule has been evaluated in accordance with existing
policies and procedures, and determined to be non-significant under
both Executive Order 12866 and DOT policies and procedures. See 44 FR
11034 (February 26, 1979). FRA has prepared and placed in Docket No.
FRA-2009-0035 a regulatory evaluation addressing the economic impact of
this proposed rule. Document inspection and copying facilities are
available at the DOT Central Docket Management Facility located in Room
W12-140 on the Ground level of the West Building, 1200 New Jersey
Avenue, SE., Washington, DC 20590. Docket material is also available
for inspection electronically through the Federal eRulemaking Portal at
http://www.regulations.gov. Photocopies may also be obtained by
submitting a written request to the FRA Docket Clerk at the Office of
Chief Counsel, RCC-10, Mail Stop 10, Federal Railroad Administration,
1200 New Jersey Avenue, SE., Washington, DC 20590; please refer to
Docket No. FRA-2009-0035.
As part of the regulatory impact analysis, FRA has assessed
quantitative measurements of the cost streams expected to result from
the adoption of this proposed rule. For the twenty-year period
analyzed, the estimated quantified cost that would be imposed on
industry totals $83.5 million with a present value (PV, 7%) of $42.2
million. In addition, FRA would incur administrative costs totaling
about $15.2 million, with a PV of $7.6 million. Although there are
numerous costs or burdens in this proposed rule, the requirements that
are expected to impose the largest burdens relate to the initial and
periodic training, knowledge testing, and operational testing. In
addition, the dispute resolution process associated with the denial and
revocation of conductor certification would be a new requirement that
would impose burdens on the railroad industry and FRA.
As part of the regulatory impact analysis, FRA has explained what
the likely benefits for this proposed rule would be, and provided
numerical assessments of the potential value of such benefits. The
proposed rulemaking is expected to improve railroad safety by ensuring
that all trains have certified and trained conductors. Thus, in
general, the proposed rule should decrease train accidents and
incidents and associated casualties and damages. FRA also anticipates
that this proposed regulation will decrease switching operation
casualties and human factor-caused train crew injuries. FRA believes
the value of the anticipated safety benefits will meet or exceed the
cost of implementing the proposed rule.
The table below presents the cost associated with implementation of
the proposed rule.
[[Page 69189]]
[GRAPHIC] [TIFF OMITTED] TP10NO10.000
2. Regulatory Flexibility Act and Executive Order 13272; Initial
Regulatory Flexibility Assessment
The Regulatory Flexibility Act (5 U.S.C. 601 et seq.) and Executive
Order 13272 require a review of proposed and final rules to assess
their impacts on small entities. An agency must prepare an initial
regulatory flexibility analysis (IRFA) unless it determines and
certifies that a rule, if promulgated, would not have a significant
impact on a substantial number of small entities. FRA has not
determined whether this proposed rule would have a significant economic
impact on a substantial number of small entities. Therefore, FRA is
publishing this IRFA to aid the public in commenting on the potential
small business impacts of the requirements in this NPRM. FRA invites
all interested parties to submit data and information regarding the
potential economic impact that would result from adoption of the
proposals in this NPRM. FRA will consider all comments received in the
public comment process when making a determination.
Based on information currently available, FRA estimates that about
8 percent of the total railroad cost associated with implementing the
proposed rule would be borne by small entities. Based on very
conservative assumptions, FRA estimates that the cost for this proposed
regulation could be as high as $83.5 million for the railroad industry.
In addition, also based on conservative assumptions, FRA would incur
costs that could total as much as $15.2 million. FRA also estimates
that small railroads comprise over 90 percent of the number of entities
impacted directly by this proposed regulation. Small railroads
generally have fewer conductors and operate over smaller territories
allowing them to meet the proposed requirements at lower overall cost
as well as lower cost per conductor. Thus, although a substantial
number of small entities would likely be impacted, the economic impact
on them would likely not be significant. This IRFA is not intended to
be a stand-alone document. In order to get a better understanding of
the total costs for the railroad industry, which forms the base for the
estimates in this IRFA, or more cost detail on any specific
requirement, please see the Regulatory Impact Analysis (RIA) that FRA
has placed in the docket for this rulemaking.
In accordance with the Regulatory Flexibility Act, an IRFA must
contain:
(1) A description of the reasons why action by the agency is being
considered;
(2) A succinct statement of the objectives of, and the legal basis
for, the proposed rule;
(3) A description of, and where feasible, an estimate of the number
of small entities to which the proposed rule will apply;
[[Page 69190]]
(4) A description of the projected reporting, recordkeeping and
other compliance requirements of the proposed rule, including an
estimate of the classes of small entities that will be subject to the
requirement and the type of professional skills necessary for
preparation of the report or record;
(5) An identification, to the extent practicable, of all relevant
Federal rules that may duplicate, overlap, or conflict with the
proposed rule; and
(6) A description of any significant alternatives to the proposed
rule that accomplish the stated objectives of applicable statutes and
which minimize any significant economic impact of the proposed rule on
small entities. 5 U.S.C. 603(b), (c).
1. Reasons for Considering Agency Action
The purpose of this rulemaking is to enhance the safety of railroad
operations by ensuring that only those persons who meet minimum Federal
safety standards serve as conductors, to reduce the rate and number of
accidents and incidents, and to improve railroad safety.
2. A Succinct Statement of the Objectives of, and Legal Basis for, the
Proposed Rule
FRA's proposed regulation for conductor certification is intended,
inter alia, to ensure that only those persons who meet minimum Federal
safety standards serve as train conductors, and it accomplishes this by
establishing Federal requirements for railroads to have conductor
certification programs. These programs must meet or exceed FRA's
minimum standards for the eligibility, training, testing,
certification, and monitoring of persons who serve as conductors.
Included in the eligibility determination for new or recertifying
conductors are vision and hearing acuity tests. In addition, a railroad
must consider prior conduct as a motor vehicle operator; substance
abuse, alcohol, and drug rules compliance; and prior safety conduct at
a different railroad, if applicable. FRA's proposed regulation would
also prescribe minimum standards for the revocation of certification
and the dispute resolution procedures for appealing certification
denial or revocation.
As discussed in Section IV of the Supplementary Information portion
to the preamble, the proposed rule would require railroads to have a
formal program for certifying conductors. FRA is proposing this
regulation to ensure that only those persons who meet minimum Federal
safety standards serve as conductors, to reduce the rate and number of
accidents and incidents, and to improve railroad safety. FRA is also
issuing this proposed rule to promulgate minimum training and
certification standards for train conductors as mandated by RSIA
Section 402, Public Law 110-432 (October 16, 2008) (codified at 9
U.S.C. 20157).
3. A Description of, and Where Feasible, an Estimate of the Number of
Small Entities to Which the Proposed Rule Would Apply
The ``universe'' of the entities to be considered generally
includes only those small entities that are reasonably expected to be
directly regulated by this action. For this proposed rulemaking there
is one type of small entity that is potentially affected by this
rulemaking: Small railroads.
FRA estimates that approximately 5 contractors will be developing
conductor certification programs and contracting conductors to
railroads. The cost associated with certifying conductors is a cost
that these contractors will pass on to the railroads contracting their
services.
``Small entity'' is defined in 5 U.S.C. 601 as having the same
meaning as ``small business concern'' under Section 3 of the Small
Business Act. This includes any small business concern that is
independently owned and operated, and is not dominant in its field of
operation. Section 601(4) includes nonprofit enterprises that are
independently owned and operated, and are not dominant in their field
of operations within the definition of ``small entities.''
Additionally, 5 U.S.C. 601(5) defines ``small entities'' as governments
of cities, counties, towns, townships, villages, school districts, or
special districts with populations less than 50,000.
The U.S. Small Business Administration (SBA) stipulates ``size
standards'' for small entities. It provides that the largest a for-
profit railroad business firm may be (and still classify as a ``small
entity'') is 1,500 employees for ``line-haul operating'' railroads, and
500 employees for ``shortline operating'' railroads.\20\
---------------------------------------------------------------------------
\20\ ``Table of Size Standards,'' U.S. Small Business
Administration, January 31, 1996, Title 13 CFR Part 121. See also
NAICS Codes 482111 and 482112.
---------------------------------------------------------------------------
Federal agencies may adopt their own size standards for small
entities in consultation with SBA and in conjunction with public
comment. Pursuant to the authority provided to it by SBA, FRA has
published a final policy, which formally establishes small entities as
railroads that meet the line haulage revenue requirements of a Class
III railroad.\21\ Currently, the revenue requirements are $20 million
or less in annual operating revenue, adjusted annually for inflation.
The $20 million limit (adjusted annually for inflation) is based on the
Surface Transportation Board's threshold of a Class III railroad
carrier, which is adjusted by applying the railroad revenue deflator
adjustment.\22\ The same dollar limit on revenues is established to
determine whether a railroad shipper or contractor is a small entity.
Governments of cities, counties, towns, townships, villages, school
districts, or special districts with populations less than 50,000 are
also considered small entities under FRA's policy. FRA is proposing to
use this definition for this rulemaking. Any comments received
pertinent to its use will be addressed in the final rule.
---------------------------------------------------------------------------
\21\ See 68 FR 24891 (May 9, 2003).
\22\ For further information on the calculation of the specific
dollar limit, please see 49 CFR part 1201.
---------------------------------------------------------------------------
Small Railroads:
There are approximately 682 railroads meeting the definition of
``small entity'' as described above. FRA estimates that approximately
627 of these small entities would be impacted by this proposed rule.
FRA estimates that approximately 55 of the 682 small railroads would
not be impacted because they would be exempt from the proposed rule.
Note, however, that approximately 125 of the small railroads that would
be impacted are subsidiaries of large shortline holding companies with
the expertise and resources comparable to larger railroads. Many small
railroads that would be impacted by this rulemaking are members of the
American Shortline and Regional Railroad Association (ASLRRA), which
actively participated in the development of this regulatory proposal.
It is very likely that the ASLRRA will develop a generic conductor
certification program for their members to use. FRA would assist with
this effort.
Small railroads would be required to have written programs for
certifying conductors in accordance with the proposed regulation. Given
the nature of how most small railroads operate and the fact that they
operate fewer types and numbers of trains than larger railroads this
proposed regulation should be less burdensome. Thus, given the more
limited territory, equipment types, number of conductors and/or the
commodities transported by small railroads relative to Class II and
Class I railroads, implementing and maintaining a program for the
certification of conductors would be significantly less burdensome for
small railroads both overall and on a per conductor basis. While FRA
does
[[Page 69191]]
recognize that some small railroads do not currently have formal
conductor training and certification programs, FRA believes that most
small railroads currently have informal programs with the necessary
elements of a formal program. FRA requests information regarding the
number and type of Class III railroads that do not have formal
conductor training and certification programs as well as the number of
conductors employed by such railroads.
In general, the proposed rule would likely burden all small
railroads that are not exempt from its scope or application. However,
it would not significantly burden many, if any, of these entities. More
details on the cost burdens for small railroads are provided below. FRA
invites commenters to submit information that might assist us in
assessing the cost impacts on small railroads of the proposals during
the comment process of the NPRM.
4. A Description of the Projected Reporting, Recordkeeping, and Other
Compliance Requirements of the Rule, Including an Estimate of the
Classes of Small Entities That Will Be Subject to the Requirement and
the Type of Professional Skills Necessary for Preparation of the Report
or Record
The impact of this rulemaking would come from its numerous proposed
requirements. However, many of the estimated burdens are for small
paperwork burdens or for processes and procedures that would not impact
small railroads and their conductors as frequently or significantly as
Class I and II railroads and the conductors they employ. As discussed
above, in general the burdens on small railroads should be lower per
train mile than those on Class I and II railroads both for overall
programs and per conductor.
Small railroads employ less than 10 percent of the employees in the
railroad industry. In fact the percentage of employees is probably
closer to 7 or 8 percent. Thus, since most of the requirements in this
proposed regulation are assessed per conductor, the burden for each
railroad would be driven mainly by the number of conductors it employs.
In general, small railroads have fewer conductors and would not train
or certify as many conductors as the large railroads. Small railroads
would also not need to certify any conductors for remote control
locomotives (RCL) purposes, since they do not use RCLs. In addition,
the size of the territory and level of joint operations is likely to be
less for smaller railroads making the burden per conductor lower.
This proposed regulation has many requirements which are organized
by subparts. There are numerous burdens from this proposed regulation
that are noted in the RIA for railroads. This IRFA will discuss a
majority of these burdens and their pertinence to small railroads
below.
FRA's RIA estimates the total burden for this proposed rule to be
$83.5 million (non-discounted) for the first 20 years of the rule. As
detailed in the assessments below, FRA estimates that $6.7 million of
this burden would be borne by small railroads.
(a) Subpart A--General:
The requirements in Subpart A do not impose any direct burdens on
small railroads.
(b) Subpart B--Program and Eligibility Requirements:
This subpart of the proposed rule contains the basic elements of
the proposed conductor certification program that would impose the
majority of the new burden for creating and implementing such programs.
The ASLRRA has indicated that it plans to develop a generic program and
template to facilitate compliance with this federal regulation and FRA
would gladly collaborate in this effort. FRA anticipates that almost
all of the small railroads in need of a program will take the shortline
generic plan and tailor it for their operations. As more fully
discussed in the RIA, FRA estimates that these programs can be
developed at an average cost of $700 per small railroad.\23\ FRA
estimates, that in total, small railroads will be burdened with
approximately $473,000 to develop conductor certification programs. FRA
estimates that it would cost the entire railroad industry about
$918,000 to develop programs.
---------------------------------------------------------------------------
\23\ Calculation: (1 small RR) * [(1 exec hours) * ($125) + (2
admin hours) * ($21) + (12 RR staff hours) * ($42.05) + (0.5 Senior
RR staff hours) * ($75)] = $709.
---------------------------------------------------------------------------
The proposed requirements for a training program and periodic
training for recertification, i.e., Section 242.119, are among the most
significant costs for the entire railroad industry imposed by this
proposal. Railroads generally already have formal or informal training
programs and many offer some degree of periodic training. FRA estimates
that further developing the training programs and providing the
periodic training would cost the railroad industry approximately $28
million (not discounted) over the 20-year analysis in FRA's RIA. Based
on experience and discussions at RSAC working group meetings, FRA knows
that most small railroads are currently providing training to their
conductors and that most of that training is on-the-job training. FRA
estimates that more formalized training will have to be added to the
training programs for small railroads. FRA estimates that the small
railroads will incur almost $2.5 million of this cost, making the per
railroad average approximately $4,000.
Proposed Section 242.121 requires railroads provide initial and
periodic testing of conductors. That testing would have to effectively
examine and measure a conductor's knowledge of five subject areas:
Safety and operating rules; timetable instructions; compliance with all
applicable Federal regulations; the physical characteristics of the
territory on which a person will be or is currently serving as a
conductor; and the use of any job aid that a railroad may provide a
conductor. FRA's RIA has estimated that this would cost the industry
$7.4 million (not discounted) over the 20-year analysis for the entire
industry. Since small railroads represent approximately 7 to 8 percent
of the employees in the railroad industry, FRA estimates that small
railroads will incur approximately $554,000 of this cost.
Proposed Section 242.123 requires railroads to conduct unannounced
compliance tests and inspections. The proposed rule would require each
railroad to have a program to monitor the conduct of its conductors by
performing unannounced operating rules compliance tests. FRA's RIA has
estimated that this would cost the industry $7.7 million (not
discounted) over the 20-year analysis. Since small railroads represent
approximately 7 to 8 percent of the employees in the railroad industry,
FRA estimates that small railroads will incur approximately $577,000 of
this cost.
Other proposed requirements in this subpart that would impact small
railroads include: Prior safety conduct as a motor vehicle operator,
Section 242.111; substance abuse disorders and alcohol drug rules
compliance, Section 242.115; vision and hearing acuity testing, Section
242.117; and certification determinations made by other railroads,
Section 242.125.
The total (non-discounted) cost for this subpart is $50.6 million.
FRA estimates the estimated cost for small railroads is about $4.6
million (not discounted) over the first twenty-years.
(c) Subpart C--Administration of the Certificate Program:
This subpart of the proposed rule covers the requirements for
administering a certification program. Most of the requirements in this
subpart are basic requirements necessary for having the certificate
program, except the proposed requirements in Section 242.215. That
section proposes to
[[Page 69192]]
require only Class I, Class II and all passenger railroads to conduct
an annual review and analysis of their programs. Thus, small railroads
will incur no burden from that proposed requirement.
The total (non-discounted) cost for this Subpart C is $7.4 million.
However, FRA estimates that less 6 percent of this will be borne by
small railroads given that they would not be subject to the annual
review and analysis requirements. Thus, the estimated cost for small
railroads is about $448,000 (non-discounted) over the first twenty-
years.
(d) Subpart D--Territorial Qualification and Joint Operations:
This subpart of the proposed rule covers the requirements for
territorial qualification and joint operations. FRA estimates that
approximately 320 railroads operate over joint territory. FRA further
estimates that approximately 2 percent of all of the conductors
industry-wide will be qualified for joint territory. However, the
primary burden from this subpart is related to the qualification of new
conductors. In general, small railroads do not have as high a turnover
rate for employees and therefore should not have as many new conductors
each year. The total (non-discounted) cost for this subpart is $17.1
million. Since small railroads represent approximately 7 to 8 percent
of the employees in the railroad industry, FRA estimates that the cost
for small railroads is about $1,281,000 over the first twenty-years.
(e) Subpart E--Denial and Revocation of Certification:
This subpart of the proposed rule covers the denial and revocation
of conductor certifications. The estimated burdens in this subpart are
related to the paperwork involved in the denial of certification, which
often occurs when hearing, vision or knowledge tests are failed. The
majority of the burdens for this subpart are associated with the
process for revocation (Section 242.407). The total (non-discounted)
cost for this subpart is $4.1 million. Since small railroads represent
approximately 7 to 8 percent of the employees in the railroad industry,
FRA estimates the cost for small railroads is about $303,000 (not
discounted) over the first twenty-years.
(f) Subpart F--Dispute Resolution Procedures:
This subpart of the proposed rule primarily deals with the dispute
resolution procedures, and the procedures for a person to appeal a
decision by a railroad to deny certification or recertification or to
revoke a conductor's certification. The estimated burdens in this
subpart are related to appeals to FRA's Review Board, requests for
administrative hearings, and appeals to FRA's Administrator. Based on
past experience with locomotive engineer appeals, administrative
hearings, etc., FRA does not anticipate many of the cases related to
this subpart to be from employees of small railroads. The total (non-
discounted) cost for this subpart is $19.4 million. However, most of
the costs for the requirements in this section are for government
resources. FRA estimates that the non-government share of this
Subpart's cost is $4.4 million. FRA estimates that less than 2 percent
of the non-government cost will be borne by small railroads. Thus, the
estimated cost for small railroads is about $88,000 (non-discounted)
over the first twenty-years.
5. An Identification, to the Extent Practicable, of All Relevant
Federal Rules That May Duplicate, Overlap, or Conflict With the
Proposed Rule
FRA is not aware of any relevant federal rules that may duplicate,
overlap, or conflict with the proposed rule. Some of the requirements
proposed in this NPRM are identical or very similar to the requirements
in 49 CFR Part 240 for the certification of locomotive engineers,
however actions taken to comply with requirements in Part 240 that are
identical or very similar to those in Part 242 could be used to fulfill
the requirements in Part 242, or vice versa, without incurring any
additional burden.
6. A Description of Any Significant Alternatives to the Proposed Rule
That Accomplish the Stated Objectives of Applicable Statutes and Which
Minimize Any Significant Economic Impact of the Proposed Rule on Small
Entities
FRA formed an RSAC working group to develop recommendations for
conductor certification regulations in December 2008. The RSAC Working
Group met for six, multi-day meetings over a period of several months.
After a series of detailed discussions, the RSAC Working Group achieved
consensus on a draft proposed rule in January 2010. The full RSAC
approved and recommended its consensus on March 18, 2010.
In Section 242.3 of the proposed regulation there is an exclusion
for operations that occur on track that is not part of the general
railroad system, which generally encompasses operations commonly
described as tourist, scenic or excursion service to the extent that
they occur on track that is not part of the general railroad system.
FRA estimates that this would exclude approximately 55 small and very
small railroads from the requirements of this proposed regulation.
FRA's proposal would minimize the impact to small railroads by
delaying the implementation of the recertification process for the
Class III railroads by 12 months. Thus, small railroads will have more
time to implement most of the requirements of this proposed regulation
than Class I and Class II freight railroads and passenger railroads.
FRA is not aware of any significant alternatives to the proposed
rule that would accomplish the stated objectives of RSIA that would
minimize the economic impact of the proposed rule on small entities.
The process by which this proposed rule was developed provided
outreach to small entities. As noted above in this IRFA, this rule was
developed in consultation with industry representatives via RSAC, which
includes small railroad representatives. The RSAC Conductor
Certification Working Group came to consensus on a majority of this
proposed regulation in January 2010 and the Full RSAC approved the
draft proposed rule in March 2010. Small railroad representatives
participated in all meetings of the Working Group and raised issues of
concern to small railroads. If requested, FRA may hold a public
hearing. After the comment period for this NPRM closes, FRA expects to
reconvene the Working Group to review the comments to the docket. At
that meeting FRA expects that comments will be reviewed and considered
by the Working Group, including any raised concerning impacts on small
entities and this IRFA.
3. Paperwork Reduction Act
The information collection requirements in this proposed rule have
been submitted for approval to the Office of Management and Budget
(OMB) under the Paperwork Reduction Act of 1995, 44 U.S.C. 3501 et seq.
The sections that contain the new information collection requirements
are duly designated, and the estimated time to fulfill each requirement
is as follows:
[[Page 69193]]
----------------------------------------------------------------------------------------------------------------
Total annual Average time per Total annual
CFR Section/Subject Respondent universe responses response burden hours
----------------------------------------------------------------------------------------------------------------
242.9--Waivers--Petitions........ 677 railroads...... 10 petitions....... 3 hours............ 30
242.101/103--Certification 677 railroads...... 678 programs....... 160 hrs./581 hrs./ 16,799
Program: Written Program for 15.5 hrs.
Certifying Conductors.
Approval of Design of Programs
--Certification Programs for New 6 railroads........ 6 new prog......... 15.5 hours......... 93
RRs.
--Conductor Certification 677 railroads...... 200 copies......... 15 minutes......... 50
Submission Copies to Rail Labor
Organizations.
--Affirmative Statements that 677 railroads...... 200 statements..... 15 minutes......... 50
Copies of Submissions Sent to
RLOs.
--Certified Comments on 677 railroads...... 35 comments........ 4 hours............ 140
Submissions.
--Certification Programs 677 railroads...... 10 programs........ 4 hours............ 40
Disapproved by FRA and then
Revised.
--Revised Certification Programs 677 railroads...... 3 programs......... 2 hours............ 6
Still Not Conforming and then
Resubmitted.
--Certification Programs 677 railroads...... 50 programs........ 2 hours............ 100
Materially Modified After
Initial FRA Approval.
--Materially Modified Programs 677 railroads...... 3 programs......... 2 hours............ 6
Disapproved by FRA & Then
Revised.
--Revised programs Disapproved 677 railroads...... 1 program.......... 2 hours............ 2
and Then Resubmitted.
242.105--Implementation Schedule
--Designation of Certified 677 railroads...... 48,600 designations 5 minutes.......... 4,050
Conductors (Class I Railroads).
--Issued Certificates (\1/3\ each 677 railroads...... 16,200 certif...... 1 hour............. 16,200
year).
--Designation of Certified 677 railroads...... 5,400 design....... 5 minutes.......... 450
Conductors (Class II and III
Railroads).
--Issued Certificates (\1/3\ each 677 railroads...... 1,800 certif....... 1 hour............. 1,800
year).
--Requests for Delayed 677 railroads...... 5,000 request...... 30 minutes......... 2,500
Certification.
--Testing/Evaluation to Certify 677 railroads...... 1,000 tests........ 560 hours.......... 560,000
Persons.
--Testing/Evaluation to Certify 627 railroads...... 100 tests.......... 400 hours.......... 40,000
Conductors (Class III).
242.107--Types of Service
--Reclassification to Diff. Type 677 railroads...... 25 conductor Tests/ 8 hours............ 200
of Cert.. Evaluations.
242.109--Opportunity by RRs for 677 Railroads...... 50 comments........ 1 hour............. 50
Certification Candidates to
Review and Comment on Prior
Safety Record.
242.111--Prior Safety Conduct As
Motor Vehicle Operator
--Eligibility Determinations..... 677 Railroads...... 1,100 dtrmin....... 10 minutes......... 183
--Initial Certification for 60 677 Railroads...... 75 certific........ 10 minutes......... 13
Days.
--Recertification for 60 Days.... 677 Railroads...... 125 recertif....... 10 minutes......... 21
--Driver Info. Not Provided and 677 Railroads...... 25 requests........ 2 hours............ 50
Request for Waiver by Persons/RR.
--Request to Obtain Driver's 54,000 Conductors/ 18,000 req......... 15 minutes......... 4,500
License Information From Persons.
Licensing Agency.
--Requests for Additional 54,000 Conductors/ 25 requests........ 10 minutes......... 4
Information From Licensing Persons.
Agency.
--Notification to RR by Persons 54,000 Conductors/ 2 notification..... 10 minutes......... .33
of Never Having a License. Persons.
--Report of Motor Vehicle 54,000 Conductors.. 200 reports........ 10 minutes......... 33
Incidents.
--Evaluation of Driving Record... 54,000 Conductors.. 18,000 eval........ 10 minutes......... 3,000
--SAP Referral by RR After Report 677 Railroads...... 180 referrals...... 5 minutes.......... 15
of Driving Drug/Alcohol Incident.
--SAP Request and Supply by 677 Railroads...... 5 requests/Records. 30 minutes......... 3
Persons of Prior Counseling or
Treatment.
--Conditional Certifications 677 Railroads...... 50 certificat...... 4 hours............ 200
Recommended by SAP.
242.113--Prior Safety Conduct As 54,000 conductors.. 360 requests/360 15 minutes + 30 270
Employee of a Different Railroad. records. minutes.
242.115--Substance Abuse
Disorders and Alcohol Drug Rules
Compliance
--Meeting Section's Eligibility 54,000 conductors.. 18,000 2 minutes.......... 600
Reqmnt. determinations.
--Written Documents from SAP 677 railroads...... 400 docs........... 30 minutes......... 200
Person Not Affected by a
Disorder.
--Self-Referral by Conductors for 54,000 conductors.. 10 self-referrals.. 10 minutes......... 2
Substance Abuse Counseling.
--Certification Reviews for 677 railroads...... 18,000 reviews..... 10 minutes......... 3,000
Occurrence/Documentation of
Prior Alcohol/Drug Conduct by
Persons/Conductors.
[[Page 69194]]
--Written Determination That Most 677 railroads...... 150 determin....... 60 minutes......... 150
Recent Incident Has Occurred.
--Notification to Person That 677 railroads...... 150 notific........ 10 minutes......... 25
Recertification Has Been Denied.
--Persons/Conductors Waiving 54,000 conductors.. 100 waivers........ 10 minutes......... 17
Investigation.
242.117-- Vision and Hearing
Acuity
--Determination Vision Standards 677 railroads...... 18,000 deter....... 20 minutes......... 6,000
Met.
--Determination Hearing Stds. Met 677 railroads...... 18,000 deter....... 20 minutes......... 6,000
--Medical Examiner Certificate 677 railroads...... 18,000 certif...... 2 hours............ 36,000
That Person Has Been Examined/
Passed test.
--Document Standards Met with 677 railroads...... 50 document........ 30 minutes......... 25
Conditions.
--Document Standards Not Met..... 677 railroads...... 25 document........ 30 minutes......... 13
--Notation Person Needs 677 railroads...... 10,000 notes....... 10 minutes......... 1,667
Corrective Device (Glasses/
Hearing Aid).
--Request for Further Medical 677 railroads...... 100 requests + 100 60 minutes + 2 300
Evaluation for New Determination. Evals. hours.
--Request for Second Retest and 677 railroads...... 25 requests + 25 60 minutes + 2 75
Another Medical Evaluation. Evals. hours.
--Copies of Part 242 Provided to 677 railroads...... 677 copies......... 60 minutes......... 677
RR Medical Examiners.
--Consultations by Medical 677 railroads...... 100 consults + 100 2 hours + 10 217
Examiners with Railroad Officer certif. minutes.
and Issue of Conditional
Certification.
--Notification by Certified 677 railroads...... 10 notific......... 10 minutes......... 2
Conductor of Deterioration of
Vision/Hearing.
242.119--Training
--Completion of Training Program. 677 railroads...... 678 Programs....... 37 hours/70 hrs/3 3,801
hrs.
--Completion of Training Program 54,000 Conductors.. 18,000 Docs/18,000 1 hour/560 hours... 10,098,000
by Conductors/Persons + Cond.
Documents.
--Training Task Analysis for RRs 677 railroads...... 677 analyses....... 12 hours/20 hrs./20 829
Training Persons Previously min.
Untrained.
--Modification of Training 677 railroads...... 30 programs........ 4 hours............ 120
Program Due to New Laws/
Regulations.
--Consultation with Supervisory 677 railroads...... 1,000 consult...... 15 minutes......... 250
Employee During Written Test.
--Familiarization Training Upon 677 railroads...... 10 trained 8 hours............ 80
Transfer of RR Ownership. Conductors.
--Instructional Briefings on 677 railroads...... 54,000 briefs...... 8 hours............ 432,000
Federal RR Safety Laws/
Regulations.
--Records of Instructional 677 railroads...... 54,000 record...... 10 minutes......... 9,000
Briefings.
--Continuing Education of 677 railroads...... 18,000 cont. 8 hours............ 144,000
Conductors. trained cond.
242.121--Knowledge Testing
--Determining Eligibility........ 677 railroads...... 18,000 deter....... 30 minutes......... 9,000
--Retests/Re-Examinations........ 677 railroads...... 500 Retests........ 8 hours............ 4,000
242.123--Monitoring Operational
Performance
--Unannounced Compliance Tests 677 railroads...... 18,000 tests + 2 hours + 10 39,000
and Records. 18,000 recd. minutes.
--Return to Service That Requires 677 railroads...... 1,000 tests + 1,000 2 hours + 10 2,167
Unannounced Compliance Test/ records. minutes.
Record.
242.125/127--Certificate
Determination by Other Railroads/
Other Country
--Determination Made by RR 677 railroads...... 100 determin....... 8.5 hours.......... 850
Relying on Another RR's
Certification.
--Determination by Another 677 railroads...... 200 determin....... 1 hour............. 200
Country.
242.203--Retaining Information 677 railroads...... 18,000 recds....... 5 minutes.......... 1,500
Supporting Determination--
Records.
--Amended Electronic Records..... 677 railroads...... 20 records......... 60 minutes......... 20
242.205--List of Certified 677 railroads...... 625 lists.......... 60 minutes......... 625
Conductors Working in Joint
Territory.
242.209-- Maintenance of
Certificates
--Request to Display Certificate. 677 railroads...... 2,000 request/ 2 minutes.......... 67
displays.
--Notification That Request to 677 railroads...... 1,000 notif........ 10 minutes......... 167
Serve Exceeds Certification.
242.211--Replacement of 677 railroads...... 500 certific....... 5 minutes.......... 42
Certificates.
242.213--Multiple Certificates
--Notification to Engineer That 677 railroads...... 5 notification..... 10 minutes......... 1
No Conductor Is On Train.
[[Page 69195]]
--Notification of Denial of 677 railroads...... 10 notific......... 10 minutes......... 2
Certification by Individuals
Holding Multiple Certifications.
242.215--RR Oversight
Responsibility
--RR Review and Analysis of 677 railroads...... 44 reviews/Analyses 40 hours/1 hour.... 1,760
Administration of Certification
Program.
--Report of Findings by RR to FRA 677 railroads...... 36 reports......... 4 hours............ 144
242.301--Determinations--Territor 320 railroads...... 1,080 Deter........ 15 minutes......... 270
ial Qualification and Joint
Operations.
--Notification by Persons Who Do 320 railroads...... 500 Notific........ 10 minutes......... 83
Not Meet Territorial
Qualification.
242.401--Notification to 677 railroads...... 40 notific. + 30 60 minutes/60 70
Candidate of Information That responses. minutes.
Forms Basis for Denying
Certification and Candidate
Response.
--Written Notification of Denial 677 railroads...... 40 notific......... 60 minutes......... 40
of Certification.
242.403/405--Criteria for
Revoking Certification; Periods
of Ineligibility
--Review of Compliance Conduct... 677 railroads...... 950 reviews........ 10 minutes......... 158
--Written Determination That the 677 railroads...... 950 determin....... 60 minutes......... 950
Most Recent Incident Has
Occurred.
242.407--Process for Revoking
Certification
--Revocation for Violations of 677 railroads...... 950 Revoked 8 hours............ 7,600
Section 242.115(e). Certificates.
--Immediate Suspension of 677 railroads...... 950 suspend 1 hour............. 950
Certificate. Certificate.
--Determinations Based on RR 677 railroads...... 950 determin....... 1 hour............. 950
Hearing Record.
--Hearing Record................. 677 railroads...... 950 records........ 30 minutes......... 475
--Written Decisions by RR 677 railroads...... 950 decisions...... 1 hour............. 950
Official.
--Written Waiver of Right to 54,000 Conductors.. 425 waivers........ 10 minutes......... 71
Hearing.
--Revocation of Certification 677 railroads...... 15 revoked 10 minutes......... 3
Based on Information That Certifications.
Another Railroad Has Done So.
--Placing Relevant Information in 677 railroads...... 100 updated records 1 hour............. 100
Record Prior to Suspending
Certification/Convening Hearing.
----------------------------------------------------------------------------------------------------------------
All estimates include the time for reviewing instructions;
searching existing data sources; gathering or maintaining the needed
data; and reviewing the information. Pursuant to 44 U.S.C.
3506(c)(2)(B), FRA solicits comments concerning: Whether these
information collection requirements are necessary for the proper
performance of the functions of FRA, including whether the information
has practical utility; the accuracy of FRA's estimates of the burden of
the information collection requirements; the quality, utility, and
clarity of the information to be collected; and whether the burden of
collection of information on those who are to respond, including
through the use of automated collection techniques or other forms of
information technology, may be minimized. For information or a copy of
the paperwork package submitted to OMB, contact Mr. Robert Brogan,
Information Clearance Officer, at 202-493-6292, or Ms. Nakia Jackson at
202-493-6073.
Organizations and individuals desiring to submit comments on the
collection of information requirements should direct them to Mr. Robert
Brogan or Ms. Nakia Jackson, Federal Railroad Administration, 1200 New
Jersey Avenue, SE., 3rd Floor, Washington, DC 20590. Comments may also
be submitted via e-mail to Mr. Brogan or Ms. Jackson at the following
address: [email protected]; [email protected].
OMB is required to make a decision concerning the collection of
information requirements contained in this proposed rule between 30 and
60 days after publication of this document in the Federal Register.
Therefore, a comment to OMB is best assured of having its full effect
if OMB receives it within 30 days of publication. The final rule will
respond to any OMB or public comments on the information collection
requirements contained in this proposal.
FRA is not authorized to impose a penalty on persons for violating
information collection requirements which do not display a current OMB
control number, if required. FRA intends to obtain current OMB control
numbers for any new information collection requirements resulting from
this rulemaking action prior to the effective date of the final rule.
The OMB control number, when assigned, will be announced by separate
notice in the Federal Register.
4. Federalism Implications
Executive Order 13132, ``Federalism'' (64 FR 43255, Aug. 10, 1999),
requires FRA to develop an accountable process to ensure ``meaningful
and timely input by State and local officials in the development of
regulatory policies that have federalism implications.'' ``Policies
that have federalism implications'' are defined in the Executive Order
to include regulations that have ``substantial direct effects on the
States, on the relationship between the national government and the
States, or on the distribution of power and responsibilities among the
various levels of government.'' Under Executive Order 13132, the agency
may not issue a regulation with federalism implications that imposes
substantial direct compliance costs and that is not required by
statute, unless the Federal government provides the funds
[[Page 69196]]
necessary to pay the direct compliance costs incurred by State and
local governments, the agency consults with State and local
governments, or the agency consults with State and local government
officials early in the process of developing the regulation. Where a
regulation has federalism implications and preempts State law, the
agency seeks to consult with State and local officials in the process
of developing the regulation.
This NPRM has been analyzed in accordance with the principles and
criteria contained in Executive Order 13132. This proposed rule would
not have a substantial effect on the States or their political
subdivisions; it would not impose any compliance costs; and it would
not affect the relationships between the Federal government and the
States or their political subdivisions, or the distribution of power
and responsibilities among the various levels of government. Therefore,
the consultation and funding requirements of Executive Order 13132 do
not apply.
However, this proposed rule could have preemptive effect by
operation of law under certain provisions of the Federal railroad
safety statutes, specifically the former Federal Railroad Safety Act of
1970, repealed and recodified at 49 U.S.C. 20106. Section 20106
provides that States may not adopt or continue in effect any law,
regulation, or order related to railroad safety or security that covers
the subject matter of a regulation prescribed or order issued by the
Secretary of Transportation (with respect to railroad safety matters)
or the Secretary of Homeland Security (with respect to railroad
security matters), except when the State law, regulation, or order
qualifies under the ``essentially local safety or security hazard''
exception to section 20106.
In sum, FRA has analyzed this proposed rule in accordance with the
principles and criteria contained in Executive Order 13132. As
explained above, FRA has determined that this proposed rule has no
federalism implications, other than the possible preemption of State
laws under Federal railroad safety statutes, specifically 49 U.S.C.
20106. Accordingly, FRA has determined that preparation of a federalism
summary impact statement for this proposed rule is not required.
5. International Trade Impact Assessment
The Trade Agreement Act of 1979 prohibits Federal agencies from
engaging in any standards or related activities that create unnecessary
obstacles to the foreign commerce of the United States. Legitimate
domestic objectives, such as safety, are not considered unnecessary
obstacles. The statute also requires consideration of international
standards and where appropriate, that they be the basis for U.S.
standards.
This proposed rulemaking is purely domestic in nature and is not
expected to affect trade opportunities for U.S. firms doing business
overseas or for foreign firms doing business in the United States.
6. Environmental Impact
FRA has evaluated this rule in accordance with its ``Procedures for
Considering Environmental Impacts'' (FRA's Procedures) (64 FR 28545,
May 26, 1999) as required by the National Environmental Policy Act (42
U.S.C. 4321 et seq.), other environmental statutes, Executive Orders,
and related regulatory requirements. FRA has determined that this
proposed rule is not a major FRA action (requiring the preparation of
an environmental impact statement or environmental assessment) because
it is categorically excluded from detailed environmental review
pursuant to section 4(c)(20) of FRA's Procedures. See 64 FR 28547 (May
26, 1999).
In accordance with section 4(c) and (e) of FRA's Procedures, the
agency has further concluded that no extraordinary circumstances exist
with respect to this regulation that might trigger the need for a more
detailed environmental review. As a result, FRA finds that this
proposed rule is not a major Federal action significantly affecting the
quality of the human environment.
7. Unfunded Mandates Reform Act of 1995
Pursuant to Section 201 of the Unfunded Mandates Reform Act of 1995
(Pub. L. 104-4, 2 U.S.C. 1531), each Federal agency ``shall, unless
otherwise prohibited by law, assess the effects of Federal regulatory
actions on State, local, and tribal governments, and the private sector
(other than to the extent that such regulations incorporate
requirements specifically set forth in law).'' Section 202 of the Act
(2 U.S.C. 1532) further requires that ``before promulgating any general
notice of proposed rulemaking that is likely to result in the
promulgation of any rule that includes any Federal mandate that may
result in expenditure by State, local, and tribal governments, in the
aggregate, or by the private sector, of $140,800,000 or more in any one
year, and before promulgating any final rule for which a general notice
of proposed rulemaking was published, the agency shall prepare a
written statement'' detailing the effect on State, local, and tribal
governments and the private sector. The proposed rule will not result
in the expenditure, in the aggregate, of $140,800,000 or more in any
one year, and thus preparation of such a statement is not required.
8. Energy Impact
Executive Order 13211 requires Federal agencies to prepare a
Statement of Energy Effects for any ``significant energy action.'' 66
FR 28355 (May 22, 2001). Under the Executive Order, a ``significant
energy action'' is defined as any action by an agency (normally
published in the Federal Register) that promulgates or is expected to
lead to the promulgation of a final rule or regulation, including
notices of inquiry, advance notices of proposed rulemaking, and notices
of proposed rulemaking: (1)(i) That is a significant regulatory action
under Executive Order 12866 or any successor order, and (ii) is likely
to have a significant adverse effect on the supply, distribution, or
use of energy; or (2) that is designated by the Administrator of the
Office of Information and Regulatory Affairs as a significant energy
action. FRA has evaluated this NPRM in accordance with Executive Order
13211. FRA has determined that this NPRM is not likely to have a
significant adverse effect on the supply, distribution, or use of
energy. Consequently, FRA has determined that this NPRM is not a
``significant energy action'' within the meaning of Executive Order
13211.
9. Privacy Act
FRA wishes to inform all potential commenters that anyone is able
to search the electronic form of all comments received into any agency
docket by the name of the individual submitting the comment (or signing
the comment, if submitted on behalf of an association, business, labor
union, etc.). You may review DOT's complete Privacy Act Statement in
the Federal Register published on April 11, 2000 (65 FR 19477-78) or
you may visit http://www.regulations.gov/search/footer/privacyanduse.jsp.
List of Subjects in 49 CFR Part 242
Administrative practice and procedure, Conductor, Penalties,
Railroad employees, Railroad operating procedures, Railroad safety,
Reporting and recordkeeping requirements.
The Proposed Rule
For the reasons discussed in the preamble, FRA proposes to amend
chapter II, subtitle B of title 49 of the Code of Federal Regulations
as follows:
[[Page 69197]]
1. Add a new part 242 to read as follows:
PART 242--QUALIFICATION AND CERTIFICATION OF CONDUCTORS
Subpart A--General
Sec.
242.1 Purpose and scope.
242.3 Application and responsibility for compliance.
242.5 Effect and construction.
242.7 Definitions.
242.9 Waivers.
242.11 Penalties and consequences for noncompliance.
242.13 Information collection requirements.
Subpart B--Program and Eligibility Requirements
242.101 Certification program required.
242.103 Approval of design of individual railroad programs by FRA.
242.105 Schedule for implementation.
242.107 Types of service.
242.109 Determinations required for certification and
recertification.
242.111 Prior safety conduct as motor vehicle operator.
242.113 Prior safety conduct as an employee of a different railroad.
242.115 Substance abuse disorders and alcohol drug rules compliance.
242.117 Vision and hearing acuity.
242.119 Training.
242.121 Knowledge testing.
242.123 Monitoring operational performance.
242.125 Certification determinations made by other railroads.
242.127 Reliance on qualification requirements of other countries.
Subpart C--Administration of the Certification Program
242.201 Time limitations for certification.
242.203 Retaining information supporting determinations.
242.205 Identification of certified persons and record keeping.
242.207 Certificate components.
242.209 Maintenance of the certificate.
242.211 Replacement of certificates.
242.213 Multiple certifications.
242.215 Railroad oversight responsibilities.
Subpart D--Territorial Qualification and Joint Operations
242.301 Requirements for territorial qualification.
Subpart E--Denial and Revocation of Certification
242.401 Denial of certification.
242.403 Criteria for revoking certification.
242.405 Periods of ineligibility.
242.407 Process for revoking certification.
Subpart F--Dispute Resolution Procedures
242.501 Review board established.
242.503 Petition requirements.
242.505 Processing certification review petitions.
242.507 Request for a hearing.
242.509 Hearings.
242.511 Appeals.
APPENDIX A TO PART 242--SCHEDULE OF CIVIL PENALTIES
APPENDIX B TO PART 242--PROCEDURES FOR SUBMISSION AND APPROVAL OF
CONDUCTOR CERTIFICATION PROGRAMS
APPENDIX C TO PART 242--PROCEDURES FOR OBTAINING AND EVALUATING
MOTOR VEHICLE DRIVING RECORD DATA
APPENDIX D TO PART 242--MEDICAL STANDARDS GUIDELINES
APPENDIX E TO PART 242--APPLICATION OF REVOCABLE EVENTS
Authority: 49 U.S.C. 20103, 20107, 20135, 20138, 20162, 20163,
21301, 21304, 21311; 28 U.S.C. 2461, note; and 49 CFR 1.49.
Subpart A--General
Sec. 242.1 Purpose and scope.
(a) The purpose of this part is to ensure that only those persons
who meet minimum Federal safety standards serve as conductors, to
reduce the rate and number of accidents and incidents and to improve
railroad safety.
(b) This part prescribes minimum Federal safety standards for the
eligibility, training, testing, certification and monitoring of all
conductors to whom it applies. This part does not restrict a railroad
from adopting and enforcing additional or more stringent requirements
consistent with this part.
(c) The conductor certification requirements prescribed in this
part apply to any person who meets the definition of conductor
contained in Sec. 242.7, regardless of the fact that the person may
have a job classification title other than that of conductor.
Sec. 242.3 Application and responsibility for compliance.
(a) This part applies to all railroads, except:
(1) A railroad that operates only on track inside an installation
that is not part of the general railroad system of transportation; or
(2) Rapid transit operations in an urban area that are not
connected to the general railroad system of transportation.
(b) Although the duties imposed by this part are generally stated
in terms of the duty of a railroad, each person, including a contractor
for a railroad, who performs any function covered by this part, must
perform that function in accordance with this part.
Sec. 242.5 Effect and construction.
(a) FRA does not intend, by use of the term conductor in this part,
to alter the terms, conditions, or interpretation of existing
collective bargaining agreements that employ other job classification
titles when identifying a person who is the crew member in charge of a
movement that requires a locomotive engineer.
(b) FRA does not intend by issuance of these regulations to alter
the authority of a railroad to initiate disciplinary sanctions against
its employees, including managers and supervisors, in the normal and
customary manner, including those contained in its collective
bargaining agreements.
(c) Except as provided in Sec. 242.213, nothing in this part shall
be construed to create or prohibit an eligibility or entitlement to
employment in other service for the railroad as a result of denial,
suspension, or revocation of certification under this part.
(d) Nothing in this part shall be deemed to abridge any additional
procedural rights or remedies not inconsistent with this part that are
available to the employee under a collective bargaining agreement, the
Railway Labor Act, or (with respect to employment at will) at common
law with respect to removal from service or other adverse action taken
as a consequence of this part.
Sec. 242.7 Definitions.
As used in this part--
Administrator means the Administrator of the FRA or the
Administrator's delegate.
Alcohol means ethyl alcohol (ethanol) and includes use or
possession of any beverage, mixture, or preparation containing ethyl
alcohol.
Conductor means the crewmember in charge of a ``train or yard
crew'' as defined in part 218 of this chapter. See also the definition
of ``passenger conductor'' in this section.
Controlled substance has the meaning assigned by 21 U.S.C. 802 and
includes all substances listed on Schedules I through V as they may be
revised from time to time (21 CFR parts 1301-1316).
Drug means any substance (other than alcohol) that has known mind
or function-altering effects on a human subject, specifically including
any psychoactive substance and including, but not limited to,
controlled substances.
Dual purpose vehicle means a piece of on-track equipment that is
capable of moving railroad rolling stock and may also function as
roadway maintenance equipment.
File, filed and filing mean submission of a document under this
part on the date when the Docket Clerk receives it, or if sent by mail,
the date mailing was completed.
FRA means the Federal Railroad Administration.
FRA representative means the FRA Associate Administrator for
Railroad
[[Page 69198]]
Safety/Chief Safety Officer and the Associate Administrator's delegate,
including any safety inspector employed by the Federal Railroad
Administration and any qualified state railroad safety inspector acting
under part 212 of this chapter.
Ineligible or ineligibility means that a person is legally
disqualified from serving as a certified conductor. The term covers a
number of circumstances in which a person may not serve as a certified
conductor. Revocation of certification pursuant to Sec. 242.407 and
denial of certification pursuant to Sec. 242.401 are two examples in
which a person would be ineligible to serve as a conductor. A period of
ineligibility may end when a condition or conditions are met. For
example, when a person meets the conditions to serve as a conductor
following a alcohol or drug violation pursuant to Sec. 242.115.
Job aid means information regarding other than main track physical
characteristics that supplements the operating instructions of the
territory over which the locomotive or train movement will occur. See
definitions of ``main track'' and ``physical characteristics'' in this
section. A job aid may consist of training on the territory pursuant to
Sec. 242.119, maps, charts or visual aids of the territory, or a
person or persons to contact who are qualified on the territory and who
can describe the physical characteristics of the territory. At a
minimum, a job aid must cover characteristics of a territory including:
Permanent close clearances, location of permanent derails and switches,
assigned radio frequencies in use and special instructions required for
movement, if any, and railroad-identified unique operating conditions.
Joint operations means rail operations conducted by more than one
railroad on the same track regardless of whether such operations are
the result of--
(1) Contractual arrangement between the railroads,
(2) Order of a governmental agency or a court of law, or
(3) Any other legally binding directive.
Knowingly means having actual knowledge of the facts giving rise to
the violation or that a reasonable person acting in the circumstances,
exercising due care, would have had such knowledge.
Locomotive means a piece of on-track equipment (other than
specialized roadway maintenance equipment or a dual purpose vehicle
operating in accordance with Sec. 240.104(a)(2) of this chapter):
(1) With one or more propelling motors designed for moving other
equipment;
(2) With one or more propelling motors designed to carry freight or
passenger traffic or both; or
(3) Without propelling motors but with one or more control stands.
Locomotive engineer means any person who moves a locomotive or
group of locomotives regardless of whether they are coupled to other
rolling equipment except:
(1) A person who moves a locomotive or group of locomotives within
the confines of a locomotive repair or servicing area as provided for
in Sec. Sec. 218.5 and 218.29(a)(1) of this chapter; or
(2) A person who moves a locomotive or group of locomotives for
distances of less than 100 feet and this incidental movement of a
locomotive or locomotives is for inspection or maintenance purposes.
Locomotive engineer certificate means a certificate issued pursuant
to part 240 of this chapter.
Main track means a track upon which the operation of trains is
governed by one or more of the following methods of operation:
Timetable; mandatory directive; signal indication; positive train
control as defined in part 236 of this chapter; or any form of absolute
or manual block system.
Medical examiner means a person licensed as a doctor of medicine or
doctor of osteopathy. A medical examiner can be a qualified full-time
salaried employee of a railroad, a qualified practitioner who contracts
with the railroad on a fee-for-service or other basis, or a qualified
practitioner designated by the railroad to perform functions in
connection with medical evaluations of employees. As used in this rule,
the medical examiner owes a duty to make an honest and fully informed
evaluation of the condition of an employee.
On-the-job training means job training that occurs in the work
place (i.e., the employee learns the job while doing the job). In the
context of this part, the on-the-job training portion of the training
program must be based on a model generally accepted by the educational
community, and must consist of the following three key components:
(1) A brief statement describing the tasks and related steps the
employee must be able to perform;
(2) A statement of the conditions (i.e., tools, equipment,
documentation, briefings, demonstrations, and practice) necessary for
learning transfer; and
(3) A statement of the standards by which proficiency can be
measured through a combination of task/step accuracy, completeness, and
repetition.
Passenger conductor means a conductor who has also received
emergency preparedness training under part 239 of this chapter. See
also the definition of ``conductor'' in this section.
Person means an entity of any type covered under 1 U.S.C. 1,
including but not limited to the following: A railroad; a manager,
supervisor, official, or other employee or agent of a railroad; any
owner, manufacturer, lessor, or lessee of railroad equipment, track, or
facilities; any independent contractor providing goods or services to a
railroad; and any employee of such owner, manufacturer, lessor, lessee,
or independent contractor.
Physical characteristics means the actual track profile of and
physical location for points within a specific yard or route that
affect the movement of a locomotive or train. Physical characteristics
includes both main track physical characteristics (see definition of
``main track'' in this section) and other than main track physical
characteristics.
Qualified means a person who has successfully completed all
instruction, training and examination programs required by the
employer, and the applicable parts of this chapter and that the person
therefore may reasonably be expected to be proficient on all safety
related tasks the person is assigned to perform.
Qualified instructor means a person who has demonstrated, pursuant
to the railroad's written program, an adequate knowledge of the
subjects under instruction and, where applicable, has the necessary
operating experience to effectively instruct in the field, and has the
following qualifications:
(1) Is a certified conductor under this part; and
(2) Has been selected as such by a designated railroad officer, in
concurrence with the designated employee representative, where present;
or
(3) In absence of concurrence provided in paragraph (2) of this
definition, has a minimum of 12 months service working as a train
service employee. If a railroad does not have designated employee
representation, then a person employed by the railroad need not comply
with paragraphs (2) or (3) of this definition to be a qualified
instructor.
Railroad means any form of nonhighway ground transportation that
runs on rails or electromagnetic guideways and any entity providing
such transportation, including:
(1) Commuter or other short-haul railroad passenger service in a
[[Page 69199]]
metropolitan or suburban area and commuter railroad service that was
operated by the Consolidated Rail Corporation on January 1, 1979; and
(2) High speed ground transportation systems that connect
metropolitan areas, without regard to whether those systems use new
technologies not associated with traditional railroads; but does not
include rapid transit operations in an urban area that are not
connected to the general railroad system of transportation.
Railroad officer means any supervisory employee of a railroad.
Railroad rolling stock is on-track equipment that is either a
freight car (as defined in Sec. 215.5 of this chapter) or a passenger
car (as defined in Sec. 238.5 of this chapter).
Remote control operator (RCO) means a certified locomotive
engineer, as defined in Sec. 240.7 of this chapter, certified by a
railroad to operate remote control locomotives pursuant to Sec.
240.107 of this chapter.
Roadway maintenance equipment is on-track equipment powered by any
means of energy other than hand power which is used in conjunction with
maintenance, repair, construction or inspection of track, bridges,
roadway, signal, communications, or electric traction systems.
Serve or service, in the context of serving documents, has the
meaning given in Rule 5 of the Federal Rules of Civil Procedure as
amended. Similarly, the computation of time provisions in Rule 6 of the
Federal Rules of Civil Procedure as amended are also applicable in this
part. See also the definition of ``filing'' in this section.
Specialized roadway maintenance equipment is roadway maintenance
equipment that does not have the capability to move railroad rolling
stock. Any alteration of such equipment that enables it to move
railroad rolling stock will require that the equipment be treated as a
dual purpose vehicle.
Substance abuse disorder refers to a psychological or physical
dependence on alcohol or a drug, or another identifiable and treatable
mental or physical disorder involving the abuse of alcohol or drugs as
a primary manifestation. A substance abuse disorder is ``active''
within the meaning of this part if the person is currently using
alcohol or other drugs, except under medical supervision consistent
with the restrictions described in Sec. 219.103 of this chapter or has
failed to successfully complete primary treatment or successfully
participate in aftercare as directed by a SAP.
Substance Abuse Professional (SAP) means a person who meets the
qualifications of a substance abuse professional, as provided in part
40 of this title. As used in this rule, the SAP owes a duty to the
railroad to make an honest and fully informed evaluation of the
condition and progress of an employee.
Territorial qualifications means possessing the necessary knowledge
concerning a railroad's operating rules and timetable special
instructions including familiarity with applicable main track and other
than main track physical characteristics of the territory over which
the locomotive or train movement will occur.
Sec. 242.9 Waivers.
(a) A person subject to a requirement of this part may petition the
Administrator for a waiver of compliance with such requirement. The
filing of such a petition does not affect that person's responsibility
for compliance with that requirement while the petition is being
considered.
(b) Each petition for a waiver under this section must be filed in
the manner and contain the information required by part 211 of this
chapter.
(c) If the Administrator finds that a waiver of compliance is in
the public interest and is consistent with railroad safety, the
Administrator may grant the waiver subject to any conditions the
Administrator deems necessary.
Sec. 242.11 Penalties and consequences for noncompliance.
(a) A person who violates any requirement of this part or causes
the violation of any such requirement is subject to a civil penalty of
at least $650 and not more than $25,000 per violation, except that:
Penalties may be assessed against individuals only for willful
violations, and, where a grossly negligent violation or a pattern of
repeated violations has created an imminent hazard of death or injury
to persons, or has caused death or injury, a penalty not to exceed
$100,000 per violation may be assessed. Each day a violation continues
shall constitute a separate offense. See Appendix A to this part for a
statement of agency civil penalty policy.
(b) A person who violates any requirement of this part or causes
the violation of any such requirement may be subject to
disqualification from all safety-sensitive service in accordance with
part 209 of this chapter.
(c) A person who knowingly and willfully falsifies a record or
report required by this part may be subject to criminal penalties under
49 U.S.C. 21311.
(d) In addition to the enforcement methods referred to in
paragraphs (a), (b), and (c) of this section, FRA may also address
violations of this part by use of the emergency order, compliance
order, and/or injunctive provisions of the Federal rail safety laws.
Sec. 242.13 Information collection requirements.
(a) The information collection requirements of this Part were
reviewed by the Office of Management and Budget pursuant to the
Paperwork Reduction Act of 1980 (44 U.S.C. 3501 et seq.) and are
assigned OMB control number ------.
(b) The information collection requirements are found in the
following sections: (TO BE INSERTED IN FINAL RULE).
Subpart B--Program and Eligibility Requirements
Sec. 242.101 Certification program required.
(a) After the pertinent date specified in Sec. 242.105(d) or (e),
each railroad shall have a certification program approved in accordance
with Sec. 242.103 that includes:
(1) A designation of the types of service that it determines will
be used in compliance with the criteria established in Sec. 242.107;
(2) A procedure for evaluating prior safety conduct that complies
with the criteria established in Sec. 242.109;
(3) A procedure for evaluating visual and hearing acuity that
complies with the criteria established in Sec. 242.117;
(4) A procedure for training that complies with the criteria
established in Sec. 242.119;
(5) A procedure for knowledge testing that complies with the
criteria established in Sec. 242.121; and
(6) A procedure for monitoring operational performance that
complies with the criteria established in Sec. 242.123.
(b) Reserved.
Sec. 242.103 Approval of design of individual railroad programs by
FRA.
(a) Each railroad shall submit its written certification program
and request for approval in accordance with the procedures contained in
appendix B of this part according to the following schedule:
(1) A Class I railroad (including the National Railroad Passenger
Corporation), Class II railroad, or railroad providing commuter service
shall submit a program no later than March 30, 2012; and
(2) A Class III railroad (including a switching and terminal or
other railroad
[[Page 69200]]
not otherwise classified) shall submit a program no later than July 30,
2012.
(b) A railroad commencing operations after the pertinent date
specified in paragraph (a) of this section shall submit its written
certification program and request for approval in accordance with the
procedures contained in appendix B to this part at least 60 days prior
to commencing operations.
(c) Each railroad shall:
(1) Simultaneous with its filing with the FRA, serve a copy of the
submission filed pursuant to paragraph (a) or (b) of this section, a
resubmission filed pursuant to paragraph (h) of this section, or a
material modification filed pursuant to paragraph (i) of this section
on the president of each labor organization that represents the
railroad's employees subject to this part; and
(2) Include in their submission filed pursuant to paragraph (a) or
(b) of this section, a resubmission filed pursuant to paragraph (h) of
this section, or a material modification filed pursuant to paragraph
(i) of this section a statement affirming that the railroad has served
a copy on the president of each labor organization that represents the
railroad's employees subject to this part, together with a list of the
names and addresses of persons served.
(d) Not later than 45 days from the date of filing a submission
pursuant to paragraph (a) or (b) of this section, a resubmission
pursuant to paragraph (h) of this section, or a material modification
pursuant to paragraph (i) of this section, any designated
representative of railroad employees subject to this part may comment
on the submission, resubmission, or material modification:
(1) Each comment shall set forth specifically the basis upon which
it is made, and contain a concise statement of the interest of the
commenter in the proceeding;
(2) Each comment shall be submitted to the Associate Administrator
for Railroad Safety/Chief Safety Officer, FRA, 1200 New Jersey Avenue,
SE., Washington, DC 20590; and
(3) The commenter shall certify that a copy of the comment was
served on the railroad.
(e) The submission required by paragraph (a) or (b) of this section
shall state the railroad's election either:
(1) To accept responsibility for the training of conductors and
thereby obtain authority for that railroad to initially certify a
person as a conductor in an appropriate type of service; or
(2) To recertify only conductors previously certified by other
railroads.
(f) A railroad that elects to accept responsibility for the
training of conductors shall state in its submission whether it will
conduct the training program or employ a training program conducted by
some other entity on its behalf but adopted and ratified by that
railroad.
(g) A railroad's program is considered approved and may be
implemented 30 days after the required filing date (or the actual
filing date) unless the Administrator notifies the railroad in writing
that the program does not conform to the criteria set forth in this
part.
(1) If the Administrator determines that the program does not
conform, the Administrator will inform the railroad of the specific
deficiencies.
(2) If the Administrator informs the railroad of deficiencies more
than 30 days after the initial filing date, the original program may
remain in effect until 30 days after approval of the revised program is
received.
(h) A railroad shall resubmit its program within 30 days after the
date of such notice of deficiencies. A failure to resubmit the program
with the necessary revisions will be considered a failure to implement
a program under this part.
(1) The Administrator will inform the railroad in writing whether
its revised program conforms to this part.
(2) If the program does not conform, the railroad shall resubmit
its program.
(i) A railroad that intends to materially modify its program after
receiving initial FRA approval shall submit a description of how it
intends to modify the program in conformity with the specific
requirements of this part at least 60 days prior to implementing such a
change.
(1) A modification is material if it would affect the program's
conformance with this part.
(2) The modification submission shall contain a description that
conforms to the pertinent portion of the procedures contained in
appendix B of this part.
(3) The modification submission will be handled in accordance with
the procedures of paragraphs (g) and (h) of this section as though it
were a new program.
Sec. 242.105 Schedule for implementation.
(a) By March 1, 2012, each railroad shall:
(1) In writing, designate as certified conductors all persons
authorized by the railroad to perform the duties of a conductor as of
January 1, 2012; and
(2) Issue a certificate that complies with Sec. 242.207 to each
person that it designates.
(b) After March 1, 2012, each railroad shall:
(1) In writing, designate as a certified conductor any person who
has been authorized by the railroad to perform the duties of a
conductor between January 1, 2012 and the pertinent date in paragraph
(d) or (e) of this section; and
(2) Issue a certificate that complies with Sec. 242.207 to each
person that it designates.
(c) No railroad shall permit or require a person, designated as a
certified conductor under the provisions of paragraph (a) or (b) of
this section, to perform service as a certified conductor for more than
a 36-month period beginning on the pertinent date for compliance with
the mandatory procedures for testing and evaluation set forth in the
applicable provisions of paragraph (d) or (e) of this section unless
that person has been certified in accordance with procedures that
comply with subpart B of this part.
(1) Except as provided in paragraph (c)(3) of this section, a
person who has been designated as a certified conductor under the
provisions of paragraph (a) or (b) of this section and who is eligible
to receive a retirement pension in accordance with the terms of an
applicable agreement or in accordance with the terms of the Railroad
Retirement Act (45 U.S.C. 231) within 36 months from the pertinent date
for compliance with the mandatory procedures for testing and evaluation
set forth in the applicable provisions of paragraph (d) or (e) of this
section, may request, in writing, that a railroad not recertify that
person, pursuant to subpart B of this part, until 36 months from the
pertinent date for compliance with the mandatory procedures for testing
and evaluation set forth in the applicable provisions of paragraph (d)
or (e) of this section.
(2) Upon receipt of a written request pursuant to paragraph (c)(1)
of this section, a railroad may wait to recertify the person making the
request until the end of the 36-month period described in paragraph (c)
of this section. If a railroad grants any request, it must grant the
request of all eligible persons to every extent possible.
(3) A person who is subject to recertification under part 240 of
this chapter may not make a request pursuant to paragraph (c)(1) of
this section.
(d) After June 1, 2012, no Class I railroad (including the National
Railroad Passenger Corporation), Class II railroad, or railroad
providing commuter service shall initially certify or recertify a
person as a conductor
[[Page 69201]]
unless that person has been tested and evaluated in accordance with
procedures that comply with subpart B of this part and issued a
certificate that complies with Sec. 242.207.
(e) After September 1, 2012, no Class III railroad (including a
switching and terminal or other railroad not otherwise classified)
shall initially certify or recertify a person as a conductor unless
that person has been tested and evaluated in accordance with procedures
that comply with subpart B of this part and issued a certificate that
complies with Sec. 242.207.
(f) After the applicable dates specified in paragraphs (d) and (e)
of this section, no person shall serve as a conductor in any type of
service and no railroad shall require or permit any person to serve as
a conductor in any type of service unless that person has been tested
and evaluated in accordance with procedures that comply with subpart B
of this part and issued a certificate that complies with Sec. 242.207.
Sec. 242.107 Types of service.
(a) Each railroad's program shall state which of the two types of
service (conductor and passenger conductor), provided for in paragraph
(b) of this section, that it will cover.
(b) A railroad may issue certificates for either of the following
types of service:
(1) Conductor; and
(2) Passenger conductor.
(c) A railroad shall not reclassify the certification of any type
of certified conductor to a different type of conductor certification
during the period in which the certification is otherwise valid except
when a conductor completes the emergency training identified in part
239 of this chapter and is certified as a passenger conductor.
(d) Each railroad is authorized to impose additional conditions or
operational restrictions on the service a conductor may perform beyond
those identified in this section provided those conditions or
restrictions are not inconsistent with this part.
Sec. 242.109 Determinations required for certification and
recertification.
(a) After the pertinent date specified in Sec. 242.105(d) or (e),
each railroad, prior to initially certifying or recertifying any person
as a conductor, shall, in accordance with its FRA-approved program,
determine in writing that:
(1) The individual meets the eligibility requirements of Sec. Sec.
242.111, 242.113, 242.115 and 242.403; and
(2) The individual meets the vision and hearing acuity standards of
Sec. 242.117 (``Vision and hearing acuity'');
(3) The individual has the necessary knowledge, as demonstrated by
successfully completing a test that meets the requirements of Sec.
242.121 (``Knowledge testing''); and
(4) Where a person has not previously been certified, that the
person has completed a training program that meets the requirements of
Sec. 242.119 (``Training'').
(b) When evaluating a person's railroad employment record, a
railroad shall not consider information concerning prior railroad
safety conduct that:
(1) Occurred prior to the effective date of this rule; or
(2) Occurred at a time other than that specifically provided for in
Sec. Sec. 242.111, 242.115 or 242.403.
(c) In order to make the determination required under paragraph (a)
of this section, a railroad shall have on file documents pertinent to
those determinations.
(d) A railroad's program shall provide a candidate for
certification or recertification a reasonable opportunity to review and
comment in writing on any record which contains information concerning
the person's prior safety conduct, including information pertinent to
determinations required under Sec. 242.115, if the railroad believes
the record contains information that could be sufficient to render the
person ineligible for certification under this subpart.
(e) The opportunity for comment shall be afforded to the person
prior to the railroad's rendering its eligibility decision based on
that information. Any responsive comment furnished shall be retained by
the railroad in accordance with Sec. 242.203.
(f) The program shall include a method for a person to advise the
railroad that he or she has never been a railroad employee or obtained
a license to drive a motor vehicle. Nothing in this section shall be
construed as imposing a duty or requirement that a person have prior
railroad employment experience or obtain a motor vehicle driver's
license in order to become a certified conductor.
(g) Nothing in this section, Sec. Sec. 242.111 or 242.113 shall be
construed to prevent persons subject to this part from entering into an
agreement that results in a railroad's obtaining the information needed
for compliance with this subpart in a different manner than that
prescribed in Sec. Sec. 242.111 or 242.113.
Sec. 242.111 Prior safety conduct as motor vehicle operator.
(a) Each railroad shall adopt and comply with a program meeting the
requirements of this section. When any person (including, but not
limited to, each railroad, railroad officer, supervisor, and employee)
violates any requirement of a program which complies with the
requirements of this section, that person shall be considered to have
violated the requirements of this section.
(b) Except as provided in paragraphs (c), (d), (e) and (f) of this
section, after the pertinent date specified in Sec. 242.105(d) or (e),
each railroad, prior to initially certifying or recertifying any person
as a conductor for any type of service, shall determine that the person
meets the eligibility requirements of this section involving prior
conduct as a motor vehicle operator.
(c) A railroad shall initially certify a person as a conductor for
60 days if the person:
(1) Requested the information required by paragraph (h) of this
section at least 60 days prior to the date of the decision to certify
that person; and
(2) Otherwise meets the eligibility requirements provided in Sec.
242.109.
(d) A railroad shall recertify a person as a conductor for 60 days
from the expiration date of that person's certification if the person:
(1) Requested the information required by paragraph (h) of this
section at least 60 days prior to the date of the decision to recertify
that person; and
(2) Otherwise meets the eligibility requirements provided in Sec.
242.109.
(e) Except as provided in paragraph (f) of this section, if a
railroad who certified or recertified a person pursuant to paragraph
(c) or (d) of this section does not obtain and evaluate the information
required pursuant to paragraph (h) within 60 days of the pertinent
dates identified in paragraph (c) or (d) of this section, that person
will be ineligible to perform as a conductor until the information can
be evaluated.
(f) If a person requests the information required pursuant to
paragraph (h) of this section but is unable to obtain it, that person
or the railroad certifying or recertifying that person may petition for
a waiver of the requirements of paragraph (b) of this section in
accordance with the provisions of part 211 of this chapter. A railroad
shall certify or recertify a person during the pendency of the waiver
request if the person otherwise meets the eligibility requirements
provided in Sec. 242.109.
(g) Individual's duty. Except for persons designated as conductors
under Sec. 242.105 (a) or (b) or for persons
[[Page 69202]]
covered by Sec. 242.109(f), each person seeking certification or
recertification under this part shall, within 366 days preceding the
date of the railroad's decision on certification or recertification:
(1) Take the actions required by paragraphs (h) through (j) of this
section to make information concerning his or her driving record
available to the railroad that is considering such certification or
recertification; and
(2) Take any additional actions, including providing any necessary
consent required by State, Federal, or foreign law to make information
concerning his or her driving record available to that railroad.
(h) Each person seeking certification or recertification under this
part shall request, in writing, that the chief of each driver licensing
agency identified in paragraph (i) of this section provide a copy of
that agency's available information concerning his or her driving
record to the railroad that is considering such certification or
recertification.
(i) Each person shall request the information required under
paragraph (h) of this section from:
(1) The chief of the driver licensing agency of any jurisdiction,
including a state or foreign country, which last issued that person a
driver's license; and
(2) The chief of the driver licensing agency of any other
jurisdiction, including states or foreign countries, that issued or
reissued the person a driver's license within the preceding five years.
(j) If advised by the railroad that a driver licensing agency has
informed the railroad that additional information concerning that
person's driving history may exist in the files of a state agency or
foreign country not previously contacted in accordance with this
section, such person shall:
(1) Request in writing that the chief of the driver licensing
agency which compiled the information provide a copy of the available
information to the prospective certifying railroad; and
(2) Take any additional action required by State, Federal, or
foreign law to obtain that additional information.
(k) Any person who has never obtained a motor vehicle driving
license is not required to comply with the provisions of paragraph (h)
of this section but shall notify the railroad of that fact in
accordance with procedures of the railroad that comply with Sec.
242.109(f).
(l) Each certified conductor or person seeking initial
certification shall report motor vehicle incidents described in
paragraphs (n)(1) and (2) of this section to the employing railroad
within 48 hours of being convicted for, or completed state action to
cancel, revoke, suspend, or deny a motor vehicle drivers license for,
such violations. For purposes of this paragraph and paragraph (n) of
this section, ``state action'' means action of the jurisdiction that
has issued the motor vehicle driver's license, including a foreign
country. For the purposes of conductor certification, no railroad shall
require reporting earlier than 48 hours after the conviction, or
completed state action to cancel, revoke, or deny a motor vehicle
drivers license.
(m) Evaluation of record. When evaluating a person's motor vehicle
driving record, a railroad shall not consider information concerning
motor vehicle driving incidents that occurred:
(1) Prior to the effective date of this rule;
(2) More than 36 months before the month in which the railroad is
making its certification decision; or
(3) At a time other than that specifically provided for in
Sec. Sec. 242.111, 242.115, or 242.403.
(n) A railroad shall only consider information concerning the
following types of motor vehicle incidents:
(1) A conviction for, or completed state action to cancel, revoke,
suspend, or deny a motor vehicle drivers license for, operating a motor
vehicle while under the influence of or impaired by alcohol or a
controlled substance; or
(2) A conviction for, or completed state action to cancel, revoke,
suspend, or deny a motor vehicle driver's license for, refusal to
undergo such testing as is required by State or foreign law when a law
enforcement official seeks to determine whether a person is operating a
vehicle while under the influence of alcohol or a controlled substance.
(o) If such an incident is identified:
(1) The railroad shall provide the data to the railroad's SAP,
together with any information concerning the person's railroad service
record, and shall refer the person for evaluation to determine if the
person has an active substance abuse disorder;
(2) The person shall cooperate in the evaluation and shall provide
any requested records of prior counseling or treatment for review
exclusively by the SAP in the context of such evaluation; and
(3) If the person is evaluated as not currently affected by an
active substance abuse disorder, the subject data shall not be
considered further with respect to certification. However, the railroad
shall, on recommendation of the SAP, condition certification upon
participation in any needed aftercare and/or follow-up testing for
alcohol or drugs deemed necessary by the SAP consistent with the
technical standards specified in Sec. 242.115(f)(3).
(4) If the person is evaluated as currently affected by an active
substance abuse disorder, the provisions of Sec. 242.115(d) will
apply.
Sec. 242.113 Prior safety conduct as an employee of a different
railroad.
(a) Each railroad shall adopt and comply with a program which
complies with the requirements of this section. When any person
including, but not limited to, each railroad, railroad officer,
supervisor, and employee violates any requirement of a program which
complies with the requirements of this section, that person shall be
considered to have violated the requirements of this section.
(b) After the pertinent date specified in Sec. 242.105(d) or (e),
each railroad, prior to initially certifying or recertifying any person
as a conductor for any type of service, shall determine that the person
meets the eligibility requirements of this section.
(c) Except for persons designated as conductors under Sec.
242.105(a) or (b) or for persons covered by Sec. 242.109(f), each
person seeking certification or recertification under this part shall,
within 366 days preceding the date of the railroad's decision on
certification or recertification:
(1) Request, in writing, that the chief operating officer or other
appropriate person of the former employing railroad provide a copy of
that railroad's available information concerning his or her service
record pertaining to compliance or non-compliance with Sec. Sec.
242.111, 242.115 and 242.403 to the railroad that is considering such
certification or recertification; and
(2) Take any additional actions, including providing any necessary
consent required by State or Federal law to make information concerning
his or her service record available to that railroad.
Sec. 242.115 Substance abuse disorders and alcohol drug rules
compliance.
(a) Each railroad shall adopt and comply with a program which
complies with the requirements of this section. When any person
including, but not limited to, each railroad, railroad officer,
supervisor, and employee violates any requirement of a program which
complies with the requirements of this section, that person shall be
considered to have violated the requirements of this section.
[[Page 69203]]
(b) After the pertinent date specified in Sec. 242.105(d) or (e),
each railroad, prior to initially certifying or recertifying any person
as a conductor for any type of service, shall determine that the person
meets the eligibility requirements of this section.
(c) In order to make the determination required under paragraph (d)
of this section, a railroad shall have on file documents pertinent to
that determination, including a written document from its SAP which
states his or her professional opinion that the person has been
evaluated as not currently affected by a substance abuse disorder or
that the person has been evaluated as affected by an active substance
abuse disorder.
(d) Fitness requirement.
(1) A person who has an active substance abuse disorder shall be
denied certification or recertification as a conductor.
(2) Except as provided in paragraph (g) of this section, a
certified conductor who is determined to have an active substance abuse
disorder shall be ineligible to hold certification. Consistent with
other provisions of this part, certification may be reinstated as
provided in paragraph (f) of this section.
(3) In the case of a current employee of the railroad evaluated as
having an active substance abuse disorder (including a person
identified under the procedures of Sec. 242.111), the employee may, if
otherwise eligible, voluntarily self-refer for substance abuse
counseling or treatment under the policy required by Sec. 219.403 of
this chapter; and the railroad shall then treat the substance abuse
evaluation as confidential except with respect to ineligibility for
certification.
(e) Prior alcohol/drug conduct; Federal rule compliance.
(1) In determining whether a person may be or remain certified as a
conductor, a railroad shall consider conduct described in paragraph
(e)(2) of this section that occurred within a period of 60 consecutive
months prior to the review. A review of certification shall be
initiated promptly upon the occurrence and documentation of any
incident of conduct described in this paragraph.
(2) A railroad shall consider any violation of Sec. Sec. 219.101
or 219.102 of this chapter and any refusal or failure to provide a
breath or body fluid sample for testing under the requirements of part
219 of this chapter when instructed to do so by a railroad
representative.
(3) A period of ineligibility described in this section shall
begin:
(i) For a person not currently certified, on the date of the
railroad's written determination that the most recent incident has
occurred; or
(ii) For a person currently certified, on the date of the
railroad's notification to the person that recertification has been
denied or certification has been revoked; and
(4) The period of ineligibility described in this section shall be
determined in accordance with the following standards:
(i) In the case of a single violation of Sec. 219.102 of this
chapter, the person shall be ineligible to hold a certificate during
evaluation and any required primary treatment as described in paragraph
(f) of this section. In the case of two violations of Sec. 219.102 of
this chapter, the person shall be ineligible to hold a certificate for
a period of two years. In the case of more than two such violations,
the person shall be ineligible to hold a certificate for a period of
five years.
(ii) In the case of one violation of Sec. 219.102 of this chapter
and one violation of Sec. 219.101 of this chapter, the person shall be
ineligible to hold a certificate for a period of three years.
(iii) In the case of one violation of Sec. 219.101 of this
chapter, the person shall be ineligible to hold a certificate for a
period of 9 months (unless identification of the violation was through
a qualifying ``co-worker report'' as described in Sec. 219.405 of this
chapter and the conductor waives investigation, in which case the
certificate shall be deemed suspended during evaluation and any
required primary treatment as described in paragraph (f)). In the case
of two or more violations of Sec. 219.101 of this chapter, the person
shall be ineligible to hold a certificate for a period of five years.
(iv) A refusal or failure to provide a breath or body fluid sample
for testing under the requirements of part 219 of this chapter when
instructed to do so by a railroad representative shall be treated, for
purposes of ineligibility under this paragraph, in the same manner as a
violation of:
(A) Section 219.102 of this chapter, in the case of a refusal or
failure to provide a urine specimen for testing; or
(B) Section 219.101 of this chapter, in the case of a refusal or
failure to provide a breath sample (part 219, subpart D), or a blood
specimen for mandatory post-accident toxicological testing (part 219,
subpart C)).
(f) Future eligibility to hold certificate following alcohol/drug
violation. The following requirements apply to a person who has been
denied certification or who has had certification suspended or revoked
as a result of conduct described in paragraph (e) of this section:
(1) The person shall not be eligible for grant or reinstatement of
the certificate unless and until the person has:
(i) Been evaluated by a SAP to determine if the person currently
has an active substance abuse disorder;
(ii) Successfully completed any program of counseling or treatment
determined to be necessary by the SAP prior to return to service; and
(iii) Presented a urine sample for testing under subpart H of part
219 of this chapter that tested negative for controlled substances
assayed and has tested negative for alcohol.
(2) A conductor placed in service or returned to service under the
above-stated conditions shall continue in any program of counseling or
treatment deemed necessary by the SAP and shall be subject to a
reasonable program of follow-up alcohol and drug testing without prior
notice for a period of not more than 60 months following return to
service. Follow-up tests shall include not fewer than 6 alcohol tests
and 6 drug tests during the first 12 months following return to
service.
(3) Return-to-service and follow-up alcohol and drug tests shall be
performed consistent with the requirements of subpart H of part 219 of
this chapter.
(4) This paragraph does not create an entitlement to utilize the
services of a railroad SAP, to be afforded leave from employment for
counseling or treatment, or to employment as a conductor. Nor does it
restrict any discretion available to the railroad to take disciplinary
action based on conduct described herein.
(g) Confidentiality protected. Nothing in this part shall affect
the responsibility of the railroad under Sec. 219.403 of this chapter
(``Voluntary referral policy'') to treat voluntary referrals for
substance abuse counseling and treatment as confidential; and the
certification status of a conductor who is successfully assisted under
the procedures of that section shall not be adversely affected.
However, the railroad shall include in its voluntary referral policy
required to be issued pursuant to Sec. 219.403 of this chapter a
provision that, at least with respect to a certified conductor or a
candidate for certification, the policy of confidentiality is waived
(to the extent that the railroad shall receive from the SAP official
notice of the substance abuse disorder and shall suspend or revoke the
certification, as appropriate) if the person at any time refuses to
cooperate in a recommended course of counseling or treatment.
[[Page 69204]]
Sec. 242.117 Vision and hearing acuity.
(a) Each railroad shall adopt and comply with a program which
complies with the requirements of this section. When any person
including, but not limited to, each railroad, railroad officer,
supervisor, and employee violates any requirement of a program which
complies with the requirements of this section, that person shall be
considered to have violated the requirements of this section.
(b) After the pertinent date specified in Sec. 242.105(d) or (e),
each railroad, prior to initially certifying or recertifying any person
as a conductor for any class of service, shall determine that the
person meets the standards for visual acuity and hearing acuity
prescribed in this section.
(c) In order to make the determination required under paragraph (b)
of this section, a railroad shall have on file either:
(1) A medical examiner's certificate that the individual has been
medically examined and meets these acuity standards; or
(2) A written document from its medical examiner documenting his or
her professional opinion that the person does not meet one or both
acuity standards and stating the basis for his or her determination
that:
(i) The person can nevertheless be certified under certain
conditions; or
(ii) The person's acuity is such that he or she cannot safely
perform as a conductor even with conditions attached.
(d) Any examination required for compliance with this section shall
be performed by or under the supervision of a medical examiner or a
licensed physician's assistant such that:
(1) A licensed optometrist or a technician responsible to that
person may perform the portion of the examination that pertains to
visual acuity; and
(2) A licensed or certified audiologist or a technician responsible
to that person may perform the portion of the examination that pertains
to hearing acuity.
(e) If the examination required under this section discloses that
the person needs corrective lenses or a hearing aid, or both, either to
meet the threshold acuity levels established in this section or to meet
a lower threshold determined by the railroad's medical examiner to be
sufficient to perform as a conductor, that fact shall be noted on the
certificate issued in accordance with the provisions of this part.
(f) Any person with such a certificate notation shall use the
relevant corrective device(s) while performing as a conductor unless
the railroad's medical examiner subsequently determines in writing that
the person can safely perform without using the device.
(g) Fitness requirement. In order to be currently certified as a
conductor, except as permitted by paragraph (j) of this section, a
person's vision and hearing shall meet or exceed the standards
prescribed in this section and Appendix D to this part. It is
recommended that each test conducted pursuant to this section should be
performed according to any directions supplied by the manufacturer of
such test and any American National Standards Institute (ANSI)
standards that are applicable.
(h) Except as provided in paragraph (j) of this section, each
person shall have visual acuity that meets or exceeds the following
thresholds:
(1) For distant viewing, either:
(i) Distant visual acuity of at least 20/40 (Snellen) in each eye
without corrective lenses; or
(ii) Distant visual acuity separately corrected to at least 20/40
(Snellen) with corrective lenses and distant binocular acuity of at
least 20/40 (Snellen) in both eyes with or without corrective lenses;
(2) A field of vision of at least 70 degrees in the horizontal
meridian in each eye; and
(3) The ability to recognize and distinguish between the colors of
railroad signals as demonstrated by successfully completing one of the
tests in Appendix E to this part.
(i) Except as provided in paragraph (j) of this section, each
person shall have a hearing test or audiogram that shows the person's
hearing acuity meets or exceeds the following thresholds: the person
does not have an average hearing loss in the better ear greater than 40
decibels with or without use of a hearing aid, at 500 Hz, 1,000 Hz, and
2,000 Hz. The hearing test or audiogram shall meet the requirements of
one of the following:
(1) As required in 29 CFR 1910.95(h) (OSHA);
(2) As required in Sec. 227.111 of this chapter; or
(3) Conducted using an audiometer that meets the specifications of
and are maintained and used in accordance with ANSI S3.6-2004
``Specifications for Audiometers.''
(j) A person not meeting the thresholds in paragraphs (h) and (i)
of this section shall, upon request, be subject to further medical
evaluation by a railroad's medical examiner to determine that person's
ability to safely perform as a conductor. In accordance with the
guidance prescribed in Appendix D to this part, a person is entitled to
one retest without making any showing and to another retest if the
person provides evidence substantiating that circumstances have changed
since the last test to the extent that the person could now safely
perform as a conductor. The railroad shall provide its medical examiner
with a copy of this part, including all appendices. If, after
consultation with a railroad officer, the medical examiner concludes
that, despite not meeting the threshold(s) in paragraphs (h) and (i) of
this section, the person has the ability to safely perform as a
conductor, the person may be certified as a conductor and such
certification conditioned on any special restrictions the medical
examiner determines in writing to be necessary.
(k) As a condition of maintaining certification, each certified
conductor shall notify his or her employing railroad's medical
department or, if no such department exists, an appropriate railroad
official if the person's best correctable vision or hearing has
deteriorated to the extent that the person no longer meets one or more
of the prescribed vision or hearing standards or requirements of this
section. This notification is required prior to any subsequent
performance as a conductor.
Sec. 242.119 Training.
(a) Each railroad shall adopt and comply with a program that meets
the requirements of this section. When any person including, but not
limited to, each railroad, railroad officer, supervisor, and employee
violates any requirement of a program which complies with the
requirements of this section, that person shall be considered to have
violated the requirements of this section.
(b) After the pertinent date specified in Sec. 242.105(d) or (e),
each railroad, prior to the initial issuance of a certificate to any
person as a conductor, shall determine that the person has, in
accordance with the requirements of this section, the knowledge to
safely perform as a conductor in each type of service that the person
will be permitted to perform.
(c) In making this determination, a railroad shall have written
documentation showing that:
(1) The person completed a training program that complies with
paragraph (d) of this section;
(2) The person demonstrated his or her knowledge by achieving a
passing grade under the testing and evaluation procedures of that
training program; and
(3) The person demonstrated that he or she is qualified on the
physical
[[Page 69205]]
characteristics of the railroad, or its pertinent segments, over which
that person will perform service.
(d) A railroad that elects to train a previously untrained person
to be a conductor shall develop an initial training program which, at a
minimum, includes the following:
(1) Perform a task analysis or otherwise demonstrate that a task
analysis has been performed to identify safety-related tasks and steps
that must be performed proficiently. The demonstration of a task
analysis for an existing program (i.e., a program implemented prior to
the effective date of this part) can be based on the production of an
existing program with defined standards of sufficient detail to
indicate that an effective task analysis was performed. When new
safety-related railroad laws, regulations, orders, technologies,
procedures, or equipment are introduced into the workplace, the
railroad must review its training program and modify its training plan
accordingly.
(2) Determine how training must be structured, developed, and
delivered, including on-the-job training and any combination of
classroom, simulator, computer-based, or other formally structured
training designed to impart the knowledge, skills, and abilities
identified as necessary to perform each task. The curriculum shall
include knowledge of, and ability to comply with, Federal railroad
safety laws, regulations, and orders, as well as any railroad rules and
procedures promulgated to implement those Federal railroad safety laws,
regulations, and orders. This training shall document a person's
knowledge of, and ability to comply with, Federal railroad safety laws,
regulations, and orders, as well as railroad rules and procedures.
(e) Prior to a previously untrained person being certified as a
conductor, a railroad shall require the person to:
(1) Successfully complete the formal initial training program
developed pursuant to paragraph (d) of this section and any associated
examinations covering the skills and knowledge the person will need to
possess in order to perform the tasks necessary to be a conductor; and
(2) Demonstrate, to the satisfaction of the railroad with input
from a qualified instructor, on-the-job proficiency by successfully
completing the tasks necessary to be a conductor. However, a person may
perform such tasks under the direct onsite supervision of a person, who
has the necessary operating experience, as part of the on-the-job
training process prior to completing such training and passing the
field evaluation; and
(3) Demonstrate knowledge of the physical characteristics of any
assigned territory by successfully completing a test created by a
person qualified on the physical characteristics of the territory.
(f) If a railroad uses a written test for purposes of paragraph
(e)(3) of this section, the railroad must provide the person(s) being
tested with an opportunity to consult with a supervisory employee, who
possesses territorial qualifications for the territory, to explain a
question.
(g) A person may acquire familiarity with the physical
characteristics of a territory through the following methods:
(1) The methods used by a railroad for familiarizing its conductors
with new territory while starting up a new railroad;
(2) The methods used by a railroad for starting operations over
newly acquired rail lines; or
(3) The methods used by a railroad for reopening of a long unused
route.
(h) The methods listed in paragraph (g) of this section shall be
described in the railroad's conductor qualification program required
under this part and submitted according to the procedures described in
Appendix B to this part.
(i) If ownership of a railroad is being transferred from one
company to another, the conductor(s) of the acquiring company may
receive familiarization training from the selling company prior to the
acquiring railroad commencing operation.
(j) A railroad shall designate in its program required by this
section the time period in which a conductor must be absent from a
territory or yard, before requalification on physical characteristics
is required.
(k) A railroad's program shall include the procedures used to
qualify or requalify a person on the physical characteristics.
(l) Except as provided by paragraph (n) of this section, each
railroad shall, no later than (DATE 365 DAYS AFTER THE DATE OF
PUBLICATION OF THE FINAL RULE IN THE FEDERAL REGISTER), perform initial
instructional briefings to ensure that each of its conductors have
knowledge of the Federal railroad safety laws that relate to the
safety-related tasks the employees are assigned to perform.
(m) Initial instructional briefings required by this section must:
(1) Be delivered in a manner conducive to ensure learning transfer;
(2) Include in the briefing a written or electronic check-off list
containing the title and section or subpart of each applicable railroad
safety law, including, but limited to, regulations and orders, that the
conductor must comply with; and
(3) Require each conductor to complete an identical check-off list
during the instructional briefing, and to sign or electronically
validate the list at the conclusion of the briefing.
(n) Any railroad that has previously informed, briefed, or
instructed any of its existing conductors on the relevant Federal
railroad safety laws may choose not to perform the initial
instructional briefing required by paragraph (l) of this section, as
long as the railroad has retained a record containing the following
information concerning each such person:
(1) The name of the person;
(2) The name or a description of the training during which this
information was delivered;
(3) The date the training was completed; and
(4) The name of the railroad officer certifying the record(s).
(o) A railroad shall provide for the continuing education of
certified conductors to ensure that each conductor maintains the
necessary knowledge concerning railroad safety and operating rules and
compliance with all applicable Federal regulations, including, but not
limited to, hazardous materials, passenger train emergency
preparedness, brake system safety standards, pre-departure inspection
procedures, and passenger equipment safety standards, and physical
characteristics of a territory.
Sec. 242.121 Knowledge testing.
(a) Each railroad shall adopt and comply with a program that meets
the requirements of this section. When any person including, but not
limited to, each railroad, railroad officer, supervisor, and employee
violates any requirement of a program which complies with the
requirements of this section, that person shall be considered to have
violated the requirements of this section.
(b) After the pertinent date specified in Sec. 242.105(d) or (e),
each railroad, prior to initially certifying or recertifying any person
as a conductor for any type of service, shall determine that the person
has, in accordance with the requirements of this section, demonstrated
sufficient knowledge of the railroad's rules and practices for the safe
movement of trains.
(c) In order to make the knowledge determination required by
paragraph (b) of this section, a railroad shall have procedures for
testing a person being evaluated for certification as a conductor that
shall be:
[[Page 69206]]
(1) Designed to examine a person's knowledge of the railroad's
operating rules and practices for the safe movement of trains;
(2) Objective in nature;
(3) Administered in written or electronic form;
(4) Cover the following subjects:
(i) Safety and operating rules;
(ii) Timetable instructions;
(iii) Compliance with all applicable Federal regulations;
(iv) Physical characteristics of the territory on which a person
will be or is currently serving as a conductor; and
(v) Use of any job aid that a railroad may provide a conductor;
(5) Sufficient to accurately measure the person's knowledge of the
covered subjects; and
(6) Conducted without open reference books or other materials
except to the degree the person is being tested on his or her ability
to use such reference books or materials.
(d) The conduct of the test shall be documented in writing and the
documentation shall contain sufficient information to identify the
relevant facts relied on for evaluation purposes.
(e) For purposes of paragraph (c) of this section, the railroad
must provide the person(s) being tested with an opportunity to consult
with a supervisory employee, who possesses territorial qualifications
for the territory, to explain a question.
(f) The documentation shall indicate whether the person passed or
failed the test.
(g) If a person fails to pass the test, no railroad shall permit or
require that person to function as a conductor prior to that person's
achieving a passing score during a reexamination of his or her
knowledge.
Sec. 242.123 Monitoring operational performance.
(a) Each railroad shall adopt and comply with a program that meets
the requirements of this section. When any person including, but not
limited to, each railroad, railroad officer, supervisor, and employee
violates any requirement of a program which complies with the
requirements of this section, that person shall be considered to have
violated the requirements of this section.
(b) Each railroad shall have a program to monitor the conduct of
its certified conductors by performing unannounced operating rules
compliance tests. The program shall include procedures to address the
testing of certified conductors who are not given an unannounced
compliance test in a calendar year pursuant to paragraph (f) of this
section. At a minimum, the procedures shall include the following:
(1) A requirement that an unannounced compliance test must be
conducted within 30 days of a return to conductor service; and
(2) The railroad must retain a written record indicating the date
that the conductor stopped performing service that requires
certification pursuant to this part, the date that the conductor
returned to performing service that requires certification pursuant to
this part, and the date that the unannounced compliance test was
performed.
(c) Except as provided in paragraph (f) of this section, each
conductor shall be given at least one unannounced compliance test in
each calendar year by a railroad officer who meets the requirements of
Sec. 217.9(b)(1) of this chapter.
(d) The unannounced test program shall:
(1) Test those persons certified as a conductor pursuant to Sec.
242.107(b)(1) for compliance with one or more operational tests in
accordance with the provisions of Sec. 217.9 of this chapter; and one
or more provisions of Sec. Sec. 218.99 through 218.109 of this
chapter; and
(2) Test those persons certified as a passenger conductor pursuant
to Sec. 242.107(b)(2) for compliance with one or more operational
tests in accordance with the provisions of Sec. 217.9 of this chapter.
(i) For persons certified as passenger conductors pursuant to Sec.
242.107(b)(2) who do not require compliance with part 218, subpart F of
this chapter except under emergency circumstances, the requirement for
an annual, unannounced test may be satisfied by annual training.
(ii) [Reserved]
(e) Each railroad's program shall indicate the action the railroad
will take in the event that it finds deficiencies with a conductor's
performance during an unannounced compliance test administered in
accordance with this section.
(f) A certified conductor who is not performing a service that
requires certification pursuant to this part need not be given an
unannounced compliance test. However, when the certified conductor
returns to a service that requires certification pursuant to this part,
that certified conductor must be tested pursuant to this section within
30 days of his or her return.
Sec. 242.125 Certification determinations made by other railroads.
(a) A railroad that is considering certification of a person as a
conductor may rely on determinations made by another railroad
concerning that person's certification. The railroad's certification
program shall address how the railroad will administer the training of
previously uncertified conductors with extensive operating experience
or previously certified conductors who have had their certification
expire. If a railroad's certification program fails to specify how it
will train a previously certified conductor hired from another
railroad, then the railroad shall require the newly hired conductor to
take the hiring railroad's entire training program.
(b) A railroad relying on another railroad's certification shall
determine that:
(1) The prior certification is still valid in accordance with the
provisions of Sec. Sec. 242.201 and 242.407;
(2) The prior certification was for the same type of service as the
certification being issued under this section;
(3) The person has received training on the physical
characteristics of the new territory in accordance with Sec. 242.119;
and
(4) The person has demonstrated the necessary knowledge concerning
the railroad's operating rules in accordance with Sec. 242.121.
Sec. 242.127 Reliance on qualification requirements of other
countries.
(a) A Canadian railroad that is required to comply with this
regulation or a railroad that conducts joint operations with a Canadian
railroad may certify that a person is eligible to be a conductor
provided it determines that:
(1) The person is employed by the Canadian railroad; and
(2) The person meets or exceeds the qualifications standards issued
by Transport Canada for such service.
Subpart C--Administration of the Certification Program
Sec. 242.201 Time limitations for certification.
(a) After the pertinent date in Sec. 242.105(d) or (e), a railroad
shall not certify or recertify a person as a conductor in any type of
service, if the railroad is making:
(1) A determination concerning eligibility under Sec. Sec.
242.111, 242.113, 242.115 and 242.403 and the eligibility data being
relied on was furnished more than 366 days before the date of the
railroad's certification decision;
(2) A determination concerning visual and hearing acuity and the
medical examination being relied on was conducted more than 450 days
before the date of the railroad's certification decision;
(3) A determination concerning demonstrated knowledge and the
[[Page 69207]]
knowledge examination being relied on was conducted more than 366 days
before the date of the railroad's certification decision; or
(4) A determination concerning demonstrated knowledge and the
knowledge examination being relied on was conducted more than 24 months
before the date of the railroad's recertification decision if the
railroad administers a knowledge testing program pursuant to Sec.
242.121 at intervals that do not exceed 24 months.
(b) The time limitations of paragraph (a) of this section do not
apply to a railroad that is making a certification decision in reliance
on determinations made by another railroad in accordance with paragraph
(c)(3) of this section, Sec. 242.125, or Sec. 242.127.
(c) No railroad shall:
(1) Permit or require a person, designated under Sec. 242.105(a)
or (b), to perform service as a certified conductor for more than the
36-month period beginning on the pertinent date for compliance with the
mandatory procedures for testing and evaluation set forth in the
applicable provisions of Sec. 242.105(d) or (e) unless that person has
been determined to be eligible in accordance with procedures that
comply with subpart B of this part.
(2) Certify a person as a conductor for an interval of more than 36
months; or
(3) Rely on a certification issued by another railroad that is more
than 36 months old.
(d) Except as provided for in Sec. 242.105 concerning initial
implementation of the program, a railroad shall issue each person
designated as a certified conductor a certificate that complies with
Sec. 242.207 no later than 30 days from the date of its decision to
certify or recertify that person.
Sec. 242.203 Retaining information supporting determinations.
(a) After the pertinent date in Sec. 242.105(d) or (e), a railroad
that issues, denies, or revokes a certificate after making the
determinations required under Sec. 242.109 shall maintain a record for
each certified conductor or applicant for certification that contains
the information the railroad relied on in making the determinations.
(b) A railroad shall retain the following information:
(1) Relevant data from the railroad's records concerning the
person's prior safety conduct;
(2) Relevant data furnished by another railroad;
(3) Relevant data furnished by a governmental agency concerning the
person's motor vehicle driving record;
(4) Relevant data furnished by the person seeking certification
concerning his or her eligibility;
(5) The relevant test results data concerning hearing and vision
acuity;
(6) If applicable, the relevant data concerning the professional
opinion of the railroad's medical examiner on the adequacy of the
person's hearing or vision acuity;
(7) Relevant data from the railroad's records concerning the
person's success or failure of the passage of knowledge test(s) under
Sec. 242.121;
(8) A sample copy of the written knowledge test or tests
administered; and
(9) The relevant data from the railroad's records concerning the
person's success or failure on unannounced operating rules compliance
tests the railroad performed to monitor the conductor's performance in
accordance with Sec. 242.123.
(c) If a railroad is relying on successful completion of an
approved training program conducted by another entity, the relying
railroad shall maintain a record for each certified conductor that
contains the relevant data furnished by the training entity concerning
the person's demonstration of knowledge and relied on by the railroad
in making its determinations.
(d) If a railroad is relying on a certification decision initially
made by another railroad, the relying railroad shall maintain a record
for each certified conductor that contains the relevant data furnished
by the other railroad which it relied on in making its determinations.
(e) All records required under this section shall be retained for a
period of six years from the date of the certification,
recertification, denial or revocation decision and shall be made
available to FRA representatives upon request during normal business
hours.
(f) It shall be unlawful for any railroad to knowingly or any
individual to willfully:
(1) Make, cause to be made, or participate in the making of a false
entry on the record(s) required by this section; or
(2) Otherwise falsify such records through material misstatement,
omission, or mutilation.
(g) Nothing in this section precludes a railroad from maintaining
the information required to be retained under this section in an
electronic format provided that:
(1) The railroad maintains an information technology security
program adequate to ensure the integrity of the electronic data storage
system, including the prevention of unauthorized access to the program
logic or individual records;
(2) The program and data storage system must be protected by a
security system that utilizes an employee identification number and
password, or a comparable method, to establish appropriate levels of
program access meeting all of the following standards:
(i) No two individuals have the same electronic identity; and
(ii) A record cannot be deleted or altered by any individual after
the record is certified by the employee who created the record;
(3) Any amendment to a record is either:
(i) Electronically stored apart from the record that it amends; or
(ii) Electronically attached to the record as information without
changing the original record;
(4) Each amendment to a record uniquely identifies the person
making the amendment;
(5) The system employed by the railroad for data storage permits
reasonable access and retrieval of the information in usable format
when requested to furnish data by FRA representatives; and
(6) Information retrieved from the system can be easily produced in
a printed format which can be readily provided to FRA representatives
in a timely manner and authenticated by a designated representative of
the railroad as a true and accurate copy of the railroad's records if
requested to do so by FRA representatives.
Sec. 242.205 Identification of certified persons and record keeping.
(a) After March 1, 2012, a railroad shall maintain a list
identifying each person designated as a certified conductor. That list
shall indicate the types of service the railroad determines each person
is authorized to perform and date of the railroad's certification
decision.
(b) If a railroad employs conductors working in joint operations
territory, the list shall include person(s) determined by that railroad
to be certified as conductor(s) and possessing the necessary
territorial qualifications for the applicable territory in accordance
with Sec. 242.301.
(c) The list required by paragraphs (a) and (b) of this section
shall:
(1) Be updated at least annually;
(2) Be available at the divisional or regional headquarters of the
railroad; and
(3) Be available for inspection or copying by FRA during regular
business hours.
[[Page 69208]]
(d) It shall be unlawful for any railroad to knowingly or any
individual to willfully:
(1) Make, cause to be made, or participate in the making of a false
entry on the list required by this section; or
(2) Otherwise falsify such list through material misstatement,
omission, or mutilation.
(e) Nothing in this section precludes a railroad from maintaining
the list required by this section in an electronic format provided
that:
(1) The railroad maintains an information technology security
program adequate to ensure the integrity of the electronic data storage
system, including the prevention of unauthorized access to the program
logic or the list;
(2) The program and data storage system must be protected by a
security system that utilizes an employee identification number and
password, or a comparable method, to establish appropriate levels of
program access meeting all of the following standards:
(i) No two individuals have the same electronic identity; and
(ii) An entry on the list cannot be deleted or altered by any
individual after the entry is certified by the employee who created the
entry;
(3) Any amendment to the list is either:
(i) Electronically stored apart from the entry on the list that it
amends; or
(ii) Electronically attached to the entry on the list as
information without changing the original entry;
(4) Each amendment to the list uniquely identifies the person
making the amendment;
(5) The system employed by the railroad for data storage permits
reasonable access and retrieval of the information in usable format
when requested to furnish data by FRA representatives; and
(6) Information retrieved from the system can be easily produced in
a printed format which can be readily provided to FRA representatives
in a timely manner and authenticated by a designated representative of
the railroad as a true and accurate copy of the railroad's records if
requested to do so by FRA representatives.
Sec. 242.207 Certificate components.
(a) At a minimum, each certificate issued in compliance with this
part shall:
(1) Identify the railroad or parent company that is issuing it;
(2) Indicate that the railroad, acting in conformity with this
part, has determined that the person to whom it is being issued has
been determined to be eligible to perform as a conductor or as a
passenger conductor;
(3) Identify the person to whom it is being issued (including the
person's name, employee identification number, and either the year of
birth or photograph of the person);
(4) Identify any conditions or limitations, including the type of
service or conditions to ameliorate vision or hearing acuity
deficiencies, that restrict the person's operational authority;
(5) Show the effective date of each certification held;
(6) Be signed by an individual designated in accordance with
paragraph (b) of this section; and
(7) Be of sufficiently small size to permit being carried in an
ordinary pocket wallet.
(b) Each railroad shall designate in writing any person that it
authorizes to sign the certificates described in this section. The
designation shall identify such persons by name or job title.
(c) Nothing in paragraph (a) of this section shall prohibit any
railroad from including additional information on the certificate or
supplementing the certificate through other documents.
(d) It shall be unlawful for any railroad to knowingly or any
individual to willfully:
(1) Make, cause to be made, or participate in the making of a false
entry on that certificate; or
(2) Otherwise falsify that certificate through material
misstatement, omission, or mutilation.
Sec. 242.209 Maintenance of the certificate.
(a) Each conductor who has received a certificate required under
this part shall:
(1) Have that certificate in his or her possession while on duty as
a conductor; and
(2) Display that certificate upon the receipt of a request to do so
from:
(i) A representative of the Federal Railroad Administration,
(ii) A State inspector authorized under part 212 of this chapter,
(iii) An officer of the issuing railroad, or
(iv) An officer of another railroad when serving as a conductor in
joint operations territory.
(b) Any conductor who is notified or called to serve as a conductor
and such service would cause the conductor to exceed certificate
limitations, set forth in accordance with subpart B of this part, shall
immediately notify the railroad that he or she is not authorized to
perform that anticipated service and it shall be unlawful for the
railroad to require such service.
(c) Nothing in this section shall be deemed to alter a certified
conductor's duty to comply with other provisions of this chapter
concerning railroad safety.
Sec. 242.211 Replacement of certificates.
(a) A railroad shall have a system for the prompt replacement of
lost, stolen or mutilated certificates at no cost to conductors. That
system shall be reasonably accessible to certified conductors in need
of a replacement certificate or temporary replacement certificate.
(b) At a minimum, a temporary replacement certificate must identify
the person to whom it is being issued (including the person's name,
identification number and year of birth); indicate the date of
issuance; and be authorized by a designated supervisor. Temporary
replacement certificates may be delivered electronically and are valid
for a period no greater than 30 days.
Sec. 242.213 Multiple certifications.
(a) A person may hold certification for multiple types of conductor
service.
(b) A person may hold both conductor and locomotive engineer
certification.
(c) A railroad that issues multiple certificates to a person,
shall, to the extent possible, coordinate the expiration date of those
certificates.
(d) Except as provided in paragraph (e) of this section, a
locomotive engineer, including a remote control operator, who is
operating a locomotive without an assigned certified conductor must
either be (i) certified as both a locomotive engineer under part 240 of
this chapter and as a conductor under this part or (ii) accompanied by
a person certified as a conductor under this part but who will be
attached to the crew in a manner similar to that of an independent
assignment.
(e) Passenger Railroad Operations. If the conductor is removed from
a train for a medical, police or other such emergency after the train
departs from an initial terminal, the train may proceed to the first
location where the conductor can be replaced without incurring undue
delay without the locomotive engineer being a certified conductor.
However, an assistant conductor or brakeman must be on the train and
the locomotive engineer must be informed that there is no certified
conductor on the train prior to any movement.
(f) During the duration of any certification interval, a person who
holds a current conductor and/or locomotive engineer certificate from
more than one railroad shall immediately notify the other certifying
railroad(s) if he or she is denied conductor or locomotive engineer
recertification under Sec. 242.401 or
[[Page 69209]]
Sec. 240.219 of this chapter or has his or her conductor or locomotive
engineer certification revoked under Sec. 242.407 or Sec. 240.307 of
this chapter by another railroad.
(g) A person who is certified to perform multiple types of
conductor service and who has had any of those certifications revoked
under Sec. 242.407 may not perform any type of conductor service
during the period of revocation.
(h) A person who holds a current conductor and locomotive engineer
certificate and who has had his or her conductor certification revoked
under Sec. 242.407 for a violation of Sec. 242.403(e)(1) through
(e)(5) or (e)(12) may not work as a locomotive engineer during the
period of revocation. However, a person who holds a current conductor
and locomotive engineer certificate and who has had his or her
conductor certification revoked under Sec. 242.407 for a violation of
Sec. 242.403(e)(6) through (e)(11) may work as a locomotive engineer
during the period of revocation.
(1) For purposes of determining the period for which a person may
not work as a certified locomotive engineer due to a revocation of his
or her conductor certification, only violations of Sec. 242.403(e)(1)
through (e)(5) or (e)(12) will be counted. Thus, a person who holds a
current conductor and locomotive engineer certificate and who has had
his or her conductor certification revoked three times in less than 36
months for two violations of Sec. 242.403(e)(6) and one violation of
Sec. 242.403(e)(1) would have his or her conductor certificate revoked
for 1 year, but would not be permitted to work as a locomotive engineer
for one month (i.e., the period of revocation for one violation of
Sec. 242.403(e)(1)).
(i) A person who holds a current conductor and locomotive engineer
certificate and who has had his or her locomotive engineer
certification revoked under Sec. 240.307 of this chapter may not work
as a conductor during the period of revocation.
(j) A person who has had his or her locomotive engineer
certification revoked under Sec. 240.307 of this chapter may not
obtain a conductor certificate pursuant to this part during the period
of revocation.
(k) A person who had his or her conductor certification revoked
under Sec. 242.407 for violations of Sec. 242.403(e)(1) through
(e)(5) or (e)(12) may not obtain a locomotive engineer certificate
pursuant to part 240 of this chapter during the period of revocation.
(l) A railroad that denies a person conductor certification or
recertification under Sec. 242.401 shall not, solely on the basis of
that denial, deny or revoke that person's locomotive engineer
certification or recertification.
(m) A railroad that denies a person locomotive engineer
certification or recertification under Sec. 240.219 of this chapter
shall not, solely on the basis of that denial, deny or revoke that
person's conductor certification or recertification.
(n) In lieu of issuing multiple certificates, a railroad may issue
one certificate to a person who is certified to perform multiple types
of conductor service or is certified as a conductor and a locomotive
engineer. The certificate must comply with Sec. 240.223 of this
chapter and Sec. 242.207.
Sec. 242.215 Railroad oversight responsibilities.
(a) No later than March 31 of each year (beginning in calendar year
(TO BE INSERTED IN FINAL RULE)), each Class I railroad (including the
National Railroad Passenger Corporation and a railroad providing
commuter service) and each Class II railroad shall conduct a formal
annual review and analysis concerning the administration of its program
for responding to detected instances of poor safety conduct by
certified conductors during the prior calendar year.
(b) Each review and analysis shall involve:
(1) The number and nature of the instances of detected poor safety
conduct including the nature of the remedial action taken in response
thereto;
(2) The number and nature of FRA reported train accidents
attributed to poor safety performance by conductors;
(3) The number and type of operational monitoring test failures
recorded by railroad officers who meet the requirements of Sec.
217.9(b)(1) of this chapter; and
(4) If the railroad conducts joint operations with another
railroad, the number of conductors employed by the other railroad(s)
which: were involved in events described in this paragraph and were
determined to be certified and to have possessed the necessary
territorial qualifications for joint operations purposes by the
controlling railroad.
(c) Based on that review and analysis, each railroad shall
determine what action(s) it will take to improve the safety of railroad
operations to reduce or eliminate future incidents of that nature.
(d) If requested in writing by FRA, the railroad shall provide a
report of the findings and conclusions reached during such annual
review and analysis effort.
(e) For reporting purposes, information about the nature of
detected poor safety conduct shall be capable of segregation for study
and evaluation purposes into the following categories:
(1) Incidents involving noncompliance with part 218 of this
chapter;
(2) Incidents involving noncompliance with part 219 of this
chapter;
(3) Incidents involving noncompliance with the procedures for the
safe use of train or engine brakes when the procedures are required for
compliance with the Class I, Class IA, Class II, Class III, or transfer
train brake test provisions of part 232 of this chapter or when the
procedures are required for compliance with the Class 1, Class 1A,
Class II, or running brake test provisions of part 238 of this chapter;
(4) Incidents involving noncompliance with the railroad's operating
rules involving operation of a locomotive or train to operate at a
speed that exceeds the maximum authorized limit;
(5) Incidents involving noncompliance with the railroad's operating
rules resulting in operation of a locomotive or train past any signal,
excluding a hand or a radio signal indication or a switch, that
requires a complete stop before passing it;
(6) Incidents involving noncompliance with the provisions of
restricted speed, and the operational equivalent thereof, that must be
reported under the provisions of part 225 of this chapter;
(7) Incidents involving occupying main track or a segment of main
track without proper authority or permission; and
(8) Incidents involving the failure to comply with prohibitions
against tampering with locomotive mounted safety devices, or knowingly
operating or permitting to be operated a train with an unauthorized or
disabled safety device in the controlling locomotive.
(f) For reporting purposes, an instance of poor safety conduct
involving a person who holds both conductor certification pursuant to
this part and locomotive engineer certification pursuant to part 240 of
this chapter need only be reported once (either under 49 CFR 240.309 of
this chapter or this section). The determination as to where to report
the instance of poor safety conduct should be based on the work the
person was performing at the time the conduct occurred.
(g) For reporting purposes each category of detected poor safety
conduct identified in paragraph (b) of this
[[Page 69210]]
section shall be capable of being annotated to reflect the following:
(1) The nature of the remedial action taken and the number of
events subdivided so as to reflect which of the following actions was
selected:
(i) Imposition of informal discipline;
(ii) Imposition of formal discipline;
(iii) Provision of informal training; or
(iv) Provision of formal training; and
(2) If the nature of the remedial action taken was formal
discipline, the number of events further subdivided so as to reflect
which of the following punishments was imposed by the hearing officer:
(i) The person was withheld from service;
(ii) The person was dismissed from employment or
(iii) The person was issued demerits. If more than one form of
punishment was imposed only that punishment deemed the most severe
shall be shown.
(h) For reporting purposes each category of detected poor safety
conduct identified in paragraph (b) of this section which resulted in
the imposition of formal or informal discipline shall be annotated to
reflect the following:
(1) The number of instances in which the railroad's internal
appeals process reduced the punishment initially imposed at the
conclusion of its hearing; and
(2) The number of instances in which the punishment imposed by the
railroad was reduced by any of the following entities: The National
Railroad Adjustment Board, a Public Law Board, a Special Board of
Adjustment or other body for the resolution of disputes duly
constituted under the provisions of the Railway Labor Act.
(i) For reporting purposes, each category of detected poor safety
conduct identified in paragraph (b) of this section shall be capable of
being annotated to reflect the following:
(1) The total number of incidents in that category;
(2) The number of incidents within that total which reflect
incidents requiring an FRA accident/incident report; and
(3) The number of incidents within that total which were detected
as a result of a scheduled operational monitoring effort.
(ii) [Reserved]
Subpart D--Territorial Qualification and Joint Operations
Sec. 242.301 Requirements for territorial qualification.
(a) Except as provided in paragraph (c) or (d) of this section, a
railroad, including a railroad that employs conductors working in joint
operations territory, shall not permit or require a person to serve as
a conductor unless that railroad determines that the person is
certified as a conductor and possesses the necessary territorial
qualifications for the applicable territory pursuant to Sec. 242.119.
(b) Each person who is called to serve as a conductor shall:
(1) Meet the territorial qualification requirements on the segment
of track upon which he or she will serve as a conductor; and
(2) Immediately notify the railroad upon which he or she is
employed if he or she does not meet the required territorial
qualifications.
(c) If a conductor lacks territorial qualification on main track
physical characteristics required by paragraph (a) of this section, he
or she shall be assisted by a person who is a certified conductor or
certified locomotive engineer and meets the territorial qualification
requirements for the main track physical characteristics.
(d) If a conductor lacks territorial qualification on other than
main track physical characteristics required by paragraph (a) of this
section, where practicable, he or she shall be assisted by a person who
is a certified conductor and meets the territorial qualification
requirements for other than main track physical characteristics. Where
not practicable, the conductor should be provided an appropriate up-to-
date job aid.
Subpart E--Denial and Revocation of Certification
Sec. 242.401 Denial of certification.
(a) A railroad shall notify a candidate for certification or
recertification of information known to the railroad that forms the
basis for denying the person certification and provide the person a
reasonable opportunity to explain or rebut that adverse information in
writing prior to denying certification.
(b) This section does not require further opportunity to comment if
the railroad's denial is based solely on factors addressed by
Sec. Sec. 242.111, 242.115, or 242.403 and the opportunity to comment
afforded by Sec. 242.109 has been provided.
(c) If a railroad denies a person certification or recertification,
it shall notify the person of the adverse decision and explain, in
writing, the basis for its denial decision. The document explaining the
basis for the denial shall be served on the person within 10 days after
the railroad's decision and shall give the date of the decision.
(d) A railroad shall not determine that a person failed to meet the
eligibility requirements of this part and shall not deny the person's
certification if sufficient evidence exists to establish that an
intervening cause prevented or materially impaired the conductor's
ability to comply with the railroad operating rule or practice which
constitutes a violation under Sec. 242.403(e)(1) through (e)(11) of
this part.
Sec. 242.403 Criteria for revoking certification.
(a) Each railroad shall adopt and comply with a program which meets
the requirements of this section. When any person including, but not
limited to, each railroad, railroad officer, supervisor, and employee
violates any requirement of a program which complies with the
requirements of this section, that person shall be considered to have
violated the requirements of this section.
(b) It shall be unlawful to fail to comply with any of the railroad
rules and practices described in paragraph (e) of this section.
(c)(1) A certified conductor who has demonstrated a failure to
comply with railroad rules and practices described in paragraph (e) of
this section shall have his or her certification revoked.
(2) A certified conductor who is monitoring, piloting, or
instructing a conductor and fails to take appropriate action to prevent
a violation of paragraph (e) of this section shall have his or her
certification revoked. Appropriate action does not mean that a
supervisor, pilot, or instructor must prevent a violation from
occurring at all costs; the duty may be met by warning the conductor or
the engineer, as appropriate, of a potential or foreseeable violation.
(3) A certified conductor who is called by a railroad to perform
the duty of a train crew member other than that of conductor or
locomotive engineer shall not have his or her certification revoked
based on actions taken or not taken while performing that duty.
(d) Limitations on consideration of prior operating rule compliance
data. In determining whether a person may be or remain certified as a
conductor, a railroad shall consider as operating rule compliance data
only conduct described in paragraphs (e)(1) through (e)(11) of this
section that occurred within a period of 36 consecutive months prior to
the determination. A review of an existing certification shall be
initiated promptly upon the occurrence and documentation of any conduct
described in this section.
[[Page 69211]]
(e) A railroad shall only consider violations of its operating
rules and practices that involve:
(1) Failure to take appropriate action to prevent the locomotive
engineer of the train the conductor is assigned to from failing to
control a locomotive or train in accordance with a signal indication,
excluding a hand or a radio signal indication or a switch, that
requires a complete stop before passing it, when the conductor is
located in the operating cab, or otherwise has knowledge of the signal
indication. Appropriate action does not mean that a conductor must
prevent a violation from occurring at all costs; the duty may be met by
warning an engineer of a potential or foreseeable violation.
(2) Failure to take appropriate action to prevent the locomotive
engineer of the train the conductor is assigned to from failing to
adhere to limitations concerning train speed:
(i) When the conductor is located in the operating cab and the
speed at which the train was operated exceeds the maximum authorized
limit by at least 10 miles per hour. Where restricted speed is in
effect, railroads shall consider only those violations of the
conditional clause of restricted speed rules (i.e., the clause that
requires stopping within one half of the locomotive engineer's range of
vision), or the operational equivalent thereof, which cause reportable
accidents or incidents under part 225 of this chapter, except for
accidents and incidents that are classified as ``covered data'' under
Sec. 225.5 of this chapter. Appropriate action does not mean that a
conductor must prevent a violation from occurring at all costs; the
duty may be met by warning an engineer of a potential or foreseeable
violation.
(ii) When not in the operating cab, the conductor is deemed to have
taken appropriate action when in compliance with all applicable
Railroad Operating Rules and Special Instructions.
(3) Failure to perform or have knowledge that a required brake test
was performed pursuant to the Class I, Class IA, Class II, Class III,
or transfer train brake test provisions of part 232 of this chapter or
the Class 1, Class 1A, Class II, or running brake test provisions of
part 238 of this chapter.
(4) Occupying main track or a segment of main track without proper
authority or permission.
(5) Failure to comply with prohibitions against tampering with
locomotive mounted safety devices; knowingly fail to take appropriate
action to prevent the locomotive engineer of the train the conductor is
assigned to from failing to comply with prohibitions against tampering
with locomotive mounted safety devices; or knowingly fail to take
appropriate action to prevent the locomotive engineer of the train the
conductor is assigned to from operating or permitting to be operated a
train with an unauthorized disabled safety device in the controlling
locomotive. (See 49 CFR part 218, subpart D and appendix C to part
218);
(6) Failure to comply with the provisions of Sec. 218.99 of this
chapter (Shoving or pushing movements). Railroads shall only consider
those violations of Sec. 218.99 of this chapter which cause reportable
accidents or incidents under part 225 of this chapter, except for
accidents and incidents that are classified as ``covered data'' under
Sec. 225.5 of this chapter.
(7) Failure to comply with the provisions of Sec. 218.101 of this
chapter (Leaving rolling and on-track maintenance-of-way equipment in
the clear). Railroads shall only consider those violations of Sec.
218.101 of this chapter which cause reportable accidents or incidents
under part 225 of this chapter, except for accidents and incidents that
are classified as ``covered data'' under Sec. 225.5 of this chapter.
(8) Failure to comply with the provisions of Sec. 218.103 of this
chapter (Hand-operated switches, including crossover switches).
Railroads shall only consider those violations of Sec. 218.103 of this
chapter which cause reportable accidents or incidents under part 225 of
this chapter, except for accidents and incidents that are classified as
``covered data'' under Sec. 225.5 of this chapter.
(9) Failure to comply with the provisions of Sec. 218.105 of this
chapter (Additional operational requirements for hand-operated main
track switches). Railroads shall only consider those violations of
Sec. 218.105 of this chapter which cause reportable accidents or
incidents under part 225 of this chapter, except for accidents and
incidents that are classified as ``covered data'' under Sec. 225.5 of
this chapter.
(10) Failure to comply with the provisions of Sec. 218.107 of this
chapter (Additional operational requirements for hand-operated
crossover switches). Railroads shall only consider those violations of
Sec. 218.107 of this chapter which cause reportable accidents or
incidents under part 225 of this chapter, except for accidents and
incidents that are classified as ``covered data'' under Sec. 225.5 of
this chapter.
(11) Failure to comply with the provisions of Sec. 218.109 of this
chapter (Hand-operated fixed derails). Railroads shall only consider
those violations of Sec. 218.109 of this chapter which cause
reportable accidents or incidents under part 225 of this chapter,
except for accidents and incidents that are classified as ``covered
data'' under Sec. 225.5 of this chapter.
(12) Failure to comply with Sec. 219.101 of this chapter; however
such incidents shall be considered as a violation only for the purposes
of Sec. 242.405(a)(2) and (3).
(13) A railroad shall not be permitted to deny or revoke an
employee's certification based upon additional conditions or
operational restrictions imposed pursuant to Sec. 242.107(d).
(f)(1) If in any single incident the person's conduct contravened
more than one operating rule or practice, that event shall be treated
as a single violation for the purposes of this section.
(2) A violation of one or more operating rules or practices
described in paragraphs (e)(1) through (e)(11) of this section that
occurs during a properly conducted operational compliance test subject
to the provisions of this chapter shall be counted in determining the
periods of ineligibility described in Sec. 242.405.
(3) An operational test that is not conducted in compliance with
this part, a railroad's operating rules, or a railroad's program under
Sec. 217.9 of this chapter, will not be considered a legitimate test
of operational skill or knowledge, and will not be considered for
certification, recertification or revocation purposes.
Sec. 242.405 Periods of ineligibility.
(a) A period of ineligibility described in this paragraph shall:
(1) Begin, for a person not currently certified, on the date of the
railroad's written determination that the most recent incident has
occurred; or
(2) Begin, for a person currently certified, on the date of the
railroad's notification to the person that recertification has been
denied or certification has been revoked; and
(3) Be determined according to the following standards:
(i) On other than main track where restricted speed or the
operational equivalent thereof is in effect, the period of revocation
for a violation of Sec. 242.403(e)(6) through (e)(8), (e)(10), or
(e)(11) shall be reduced by one half provided that another revocable
event has not occurred within the previous 12 months.
(ii) In the case of a single incident involving violation of one or
more of the operating rules or practices described in Sec.
242.403(e)(1) through (e)(11), the person shall have his or her
certificate
[[Page 69212]]
revoked for a period of 30 calendar days.
(iii) In the case of two separate incidents involving a violation
of one or more of the operating rules or practices described in Sec.
242.403(e)(1) through (e)(11), that occurred within 24 months of each
other, the person shall have his or her certificate revoked for a
period of six months.
(iv) In the case of three separate incidents involving violations
of one or more of the operating rules or practices, described in Sec.
242.403(e)(1) through (e)(12), that occurred within 36 months of each
other, the person shall have his or her certificate revoked for a
period of one year.
(v) In the case of four separate incidents involving violations of
one or more of the operating rules or practices, described in Sec.
242.403(e)(1) through (e)(12), that occurred within 36 months of each
other, the person shall have his or her certificate revoked for a
period of three years.
(vi) Where, based on the occurrence of violations described in
Sec. 242.403(e)(12), different periods of ineligibility may result
under the provisions of this section and Sec. 242.115, the longest
period of revocation shall control.
(b) Any or all periods of revocation provided in paragraph (a) of
this section may consist of training.
(c) Reduction in period of ineligibility. A person whose
certification is denied or revoked shall be eligible for grant or
reinstatement of the certificate prior to the expiration of the initial
period of ineligibility only if:
(1) The denial or revocation of certification in accordance with
the provisions of paragraph (a)(3) of this section is for a period of
one year or less;
(2) Certification is denied or revoked for reasons other than
noncompliance with Sec. 219.101 of this chapter;
(3) The person is evaluated by a railroad officer and determined to
have received adequate remedial training;
(4) The person successfully completes any mandatory program of
training or retraining, if that is determined to be necessary by the
railroad prior to return to service; and
(5) At least one half the pertinent period of ineligibility
specified in paragraph (a)(3) of this section has elapsed.
Sec. 242.407 Process for revoking certification.
(a) Except as provided for in Sec. 242.115(g), a railroad that
certifies or recertifies a person as a conductor and, during the period
that certification is valid, acquires reliable information regarding
violation(s) of Sec. 242.403(e) or Sec. 242.115(e) of this chapter
shall revoke the person's conductor certificate.
(b) Pending a revocation determination under this section, the
railroad shall:
(1) Upon receipt of reliable information regarding violation(s) of
Sec. 242.403(e) or Sec. 242.115(e) of this chapter, immediately
suspend the person's certificate;
(2) Prior to or upon suspending the person's certificate, provide
notice of the reason for the suspension, the pending revocation, and an
opportunity for a hearing before a presiding officer other than the
investigating officer. The notice may initially be given either orally
or in writing. If given orally, it must be confirmed in writing and the
written confirmation must be made promptly. Written confirmation which
conforms to the notification provisions of an applicable collective
bargaining agreement shall be deemed to satisfy the written
confirmation requirements of this section. In the absence of an
applicable collective bargaining agreement provision, the written
confirmation must be made within 96 hours.
(3) Convene the hearing within the deadline prescribed by either
paragraph (c)(1) of this section or the applicable collective
bargaining agreement as permitted under paragraph (d) of this section;
(4) No later than the convening of the hearing and notwithstanding
the terms of an applicable collective bargaining agreement, the
railroad convening the hearing shall provide the person with a copy of
the written information and list of witnesses the railroad will present
at the hearing. If requested, a recess to the start of the hearing will
be granted if that information is not provided until just prior to the
convening of the hearing. If the information was provided through
statements of an employee of the convening railroad, the railroad will
make that employee available for examination during the hearing
required by paragraph (b)(3) of this section. Examination may be
telephonic where it is impractical to provide the witness at the
hearing.
(5) Determine, on the record of the hearing, whether the person no
longer meets the certification requirements of this part stating
explicitly the basis for the conclusion reached;
(6) When appropriate, impose the pertinent period of revocation
provided for in Sec. 242.405 or Sec. 242.115; and
(7) Retain the record of the hearing for 3 years after the date the
decision is rendered.
(c) Except as provided for in paragraphs (d), (f), (i) and (j) of
this section, a hearing required by this section shall be conducted in
accordance with the following procedures:
(1) The hearing shall be convened within 10 days of the date the
certificate is suspended unless the conductor requests or consents to
delay in the start of the hearing.
(2) The hearing shall be conducted by a presiding officer, who can
be any proficient person authorized by the railroad other than the
investigating officer.
(3) The presiding officer will exercise the powers necessary to
regulate the conduct of the hearing for the purpose of achieving a
prompt and fair determination of all material issues in controversy.
(4) The presiding officer shall convene and preside over the
hearing.
(5) Testimony by witnesses at the hearing shall be recorded
verbatim.
(6) All relevant and probative evidence shall be received unless
the presiding officer determines the evidence to be unduly repetitive
or so extensive and lacking in relevancy that its admission would
impair the prompt, orderly, and fair resolution of the proceeding.
(7) The presiding officer may:
(i) Adopt any needed procedures for the submission of evidence in
written form;
(ii) Examine witnesses at the hearing;
(iii) Convene, recess, adjourn or otherwise regulate the course of
the hearing; and
(iv) Take any other action authorized by or consistent with the
provisions of this part and permitted by law that may expedite the
hearing or aid in the disposition of the proceeding.
(8) Parties may appear and be heard on their own behalf or through
designated representatives. Parties may offer relevant evidence
including testimony and may conduct such examination of witnesses as
may be required for a full disclosure of the relevant facts.
(9) The record in the proceeding shall be closed at conclusion of
the hearing unless the presiding officer allows additional time for the
submission of information. In such instances the record shall be left
open for such time as the presiding officer grants for that purpose.
(10) No later than 10 days after the close of the record, a
railroad official, other than the investigating officer, shall prepare
and sign a written decision in the proceeding.
(11) The decision shall:
[[Page 69213]]
(i) Contain the findings of fact as well as the basis therefor,
concerning all material issues of fact presented on the record; and
(ii) Be served on the employee.
(12) The railroad shall have the burden of proving that the
conductor's conduct was not in compliance with the applicable railroad
operating rule or practice or part 219 of this chapter.
(d) A hearing required by this section which is conducted in a
manner that conforms procedurally to the applicable collective
bargaining agreement shall be deemed to satisfy the procedural
requirements of this section.
(e) A hearing required under this section may be consolidated with
any disciplinary or other hearing arising from the same facts, but in
all instances a railroad official, other than the investigating
officer, shall make separate findings as to the revocation required
under this section.
(f) A person may waive the right to the hearing provided under this
section. That waiver shall:
(1) Be made in writing;
(2) Reflect the fact that the person has knowledge and
understanding of these rights and voluntarily surrenders them; and
(3) Be signed by the person making the waiver.
(g) A railroad that has relied on the certification by another
railroad under the provisions of Sec. 242.127 or Sec. 242.301, shall
revoke its certification if, during the period that certification is
valid, the railroad acquires information which convinces it that
another railroad has revoked its certification in accordance with the
provisions of this section. The requirement to provide a hearing under
this section is satisfied when any single railroad holds a hearing and
no additional hearing is required prior to a revocation by more than
one railroad arising from the same facts.
(h) The period of certificate suspension prior to the commencement
of a hearing required under this section shall be credited towards
satisfying any applicable revocation period imposed in accordance with
the provisions of Sec. 242.405.
(i) A railroad:
(1) Shall not revoke the person's certification as provided for in
paragraph (a) of this section if sufficient evidence exists to
establish that an intervening cause prevented or materially impaired
the conductor's ability to comply with the railroad operating rule or
practice which constitutes a violation under Sec. 242.403(e)(1)
through (e)(11); or
(2) May decide not to revoke the person's certification as provided
for in paragraph (a) of this section if sufficient evidence exists to
establish that the violation of Sec. 242.403(e)(1) through (e)(11) was
of a minimal nature and had no direct or potential effect on rail
safety.
(j) The railroad shall place the relevant information in the
records maintained in compliance with Sec. 242.215 for Class I
(including the National Railroad Passenger Corporation) and Class II
railroads, and Sec. 242.203 for Class III railroads if sufficient
evidence meeting the criteria provided in paragraph (i) of this
section, becomes available either:
(1) Prior to a railroad's action to suspend the certificate as
provided for in paragraph (b)(1) of this section; or
(2) Prior to the convening of the hearing provided for in this
section;
(k) Provided that the railroad makes a good faith determination
after a reasonable inquiry that the course of conduct provided for in
paragraph (i) of this section is appropriate, the railroad which does
not suspend a conductor's certification, as provided for in paragraph
(b) of this section, is not in violation of paragraph (a) of this
section.
Subpart F--Dispute Resolution Procedures
Sec. 242.501 Review board established.
(a) Any person who has been denied certification, denied
recertification, or has had his or her certification revoked and
believes that a railroad incorrectly determined that he or she failed
to meet the certification requirements of this regulation when making
the decision to deny or revoke certification, may petition the Federal
Railroad Administrator to review the railroad's decision.
(b) The Administrator has delegated initial responsibility for
adjudicating such disputes to the Operating Crew Review Board.
(c) The Operating Crew Review Board shall be composed of employees
of the Federal Railroad Administration selected by the Administrator.
Sec. 242.503 Petition requirements.
(a) To obtain review of a railroad's decision to deny
certification, deny recertification, or revoke certification, a person
shall file a petition for review that complies with this section.
(b) Each petition shall:
(1) Be in writing;
(2) Be submitted in triplicate to the Docket Clerk, Office of Chief
Counsel, Federal Railroad Administration, 1200 New Jersey Avenue, SE.,
Washington, DC 20590;
(3) Contain all available information that the person thinks
supports the person's belief that the railroad acted improperly,
including:
(i) The petitioner's full name;
(ii) The petitioner's current mailing address;
(iii) The petitioner's daytime telephone number;
(iv) The petitioner's e-mail address (if available);
(v) The name and address of the railroad; and
(vi) The facts that the petitioner believes constitute the improper
action by the railroad, specifying the locations, dates, and identities
of all persons who were present or involved in the railroad's actions
(to the degree known by the petitioner);
(4) Explain the nature of the remedial action sought;
(5) Be supplemented by a copy of all written documents in the
petitioner's possession or reasonably available to the petitioner that
document that railroad's decision; and
(6) Be filed in a timely manner.
(c) A petition seeking review of a railroad's decision to deny
certification or recertification or revoke certification in accordance
with the procedures required by Sec. 242.407 filed with FRA more than
120 days after the date the railroad's denial or revocation decision
was served on the petitioner will be denied as untimely except that the
Operating Crew Review Board for cause shown may extend the petition
filing period at any time in its discretion:
(1) Provided the request for extension is filed before the
expiration of the period provided in this paragraph; or
(2) Provided that the failure to timely file was the result of
excusable neglect.
(d) A party aggrieved by a Board decision to deny a petition as
untimely or not in compliance with the requirements of this section may
file an appeal with the Administrator in accordance with Sec. 242.511.
Sec. 242.505 Processing certification review petitions.
(a) Each petition shall be acknowledged in writing by FRA. The
acknowledgment shall contain the docket number assigned to the petition
and a statement of FRA's intention that the Board will render a
decision on this petition within 180 days from the date that the
railroad's response is received or from the date upon which the
railroad's response period has lapsed pursuant to paragraph (c) of this
section.
(b) Upon receipt of the petition, FRA will notify the railroad that
it has received the petition and provide the railroad with a copy of
the petition.
(c) Within 60 days from the date of the notification provided in
paragraph
[[Page 69214]]
(b) of this section, the railroad may submit to FRA any information
that the railroad considers pertinent to the petition. Late filings
will only be considered to the extent practicable.
(d) A railroad that submits such information shall:
(1) Identify the petitioner by name and the docket number of the
review proceeding;
(2) Serve copy of the information being submitted to FRA to the
petitioner and petitioner's representative, if any; and
(3) Submit the information in triplicate to the Docket Clerk,
Federal Railroad Administration, 1200 New Jersey Avenue, SE.,
Washington, DC 20590.
(e) Each petition will then be referred to the Operating Crew
Review Board for a decision.
(f) Based on the record, the Board shall have the authority to
grant, deny, dismiss or remand the petition.
(g) If the Board finds that there is insufficient basis for
granting or denying the petition, the Board shall issue an order
affording the parties an opportunity to provide additional information
or argument consistent with its findings.
(h) Standard of review for factual issues. When considering factual
issues, the Board will determine whether there is substantial evidence
to support the railroad's decision, and a negative finding is grounds
for granting the petition.
(i) Standard of review for procedural issues. When considering
procedural issues, the Board will determine whether substantial harm
was caused the petitioner by virtue of the failure to adhere to the
dictated procedures for making the railroad's decision. A finding of
substantial harm is grounds for reversing the railroad's decision. To
establish grounds upon which the Board may grant relief, Petitioner
must show:
(1) that procedural error occurred, and
(2) the procedural error caused substantial harm.
(j) Standard of review for legal issues. Pursuant to its reviewing
role, the Board will consider whether the railroad's legal
interpretations are correct based on a de novo review.
(k) The Board will determine whether the denial or revocation of
certification or recertification was improper under this regulation
(i.e., based on an incorrect determination that the person failed to
meet the certification requirements of this regulation) and grant or
deny the petition accordingly. The Board will not otherwise consider
the propriety of a railroad's decision, i.e., it will not consider
whether the railroad properly applied its own more stringent
requirements.
(l) The Board's written decision shall be served on the petitioner,
including the petitioner's representative, if any, and the railroad.
Sec. 242.507 Request for a hearing.
(a) If adversely affected by the Operating Crew Review Board's
decision, either the petitioner before the Board or the railroad
involved shall have a right to an administrative proceeding as
prescribed by Sec. 242.509.
(b) To exercise that right, the adversely affected party shall,
within 20 days of service of the Board's decision on that party, file a
written request with the Docket Clerk, U.S. Department of
Transportation, Docket Operations (M-30), West Building Ground Floor,
Room W12-140, 1200 New Jersey Avenue, SE., Washington, DC 20590. The
form of such request may be in written or electronic form consistent
with the standards and requirements established by the Federal Docket
Management System and posted on its Web site at http://www.regulations.gov.
(c) If a party fails to request a hearing within the period
provided in paragraph (b) of this section, the Operating Crew Review
Board's decision will constitute final agency action.
(d) If a party elects to request a hearing, that person shall
submit a written request to the Docket Clerk containing the following:
(1) The name, address, telephone number, and email address (if
available) of the respondent and the requesting party's designated
representative, if any;
(2) The specific factual issues, industry rules, regulations, or
laws that the requesting party alleges need to be examined in
connection with the certification decision in question; and
(3) The signature of the requesting party or the requesting party's
representative, if any.
(e) Upon receipt of a hearing request complying with paragraph (d)
of this section, FRA shall arrange for the appointment of a presiding
officer who shall schedule the hearing for the earliest practicable
date.
Sec. 242.509 Hearings.
(a) An administrative hearing for a conductor certification
petition shall be conducted by a presiding officer, who can be any
person authorized by the Administrator, including an administrative law
judge.
(b) The presiding officer may exercise the powers of the
Administrator to regulate the conduct of the hearing for the purpose of
achieving a prompt and fair determination of all material issues in
controversy.
(c) The presiding officer shall convene and preside over the
hearing. The hearing shall be a de novo hearing to find the relevant
facts and determine the correct application of this part to those
facts. The presiding officer may determine that there is no genuine
issue covering some or all material facts and limit evidentiary
proceedings to any issues of material fact as to which there is a
genuine dispute.
(d) The presiding officer may authorize discovery of the types and
quantities which in the presiding officer's discretion will contribute
to a fair hearing without unduly burdening the parties. The presiding
officer may impose appropriate non-monetary sanctions, including
limitations as to the presentation of evidence and issues, for any
party's willful failure or refusal to comply with approved discovery
requests.
(e) Every petition, motion, response, or other authorized or
required document shall be signed by the party filing the same, or by a
duly authorized officer or representative of record, or by any other
person. If signed by such other person, the reason therefor must be
stated and the power of attorney or other authority authorizing such
other person to subscribe the document must be filed with the document.
The signature of the person subscribing any document constitutes a
certification that he or she has read the document; that to the best of
his or her knowledge, information and belief every statement contained
in the document is true and no such statements are misleading; and that
it is not interposed for delay or to be vexatious.
(f) After the request for a hearing is filed, all documents filed
or served upon one party must be served upon all parties. Each party
may designate a person upon whom service is to be made when not
specified by law, regulation, or directive of the presiding officer. If
a party does not designate a person upon whom service is to be made,
then service may be made upon any person having subscribed to a
submission of the party being served, unless otherwise specified by
law, regulation, or directive of the presiding officer. Proof of
service shall accompany all documents when they are tendered for
filing.
(g) If any document initiating, filed, or served in, a proceeding
is not in substantial compliance with the applicable law, regulation,
or directive of the presiding officer, the presiding officer may strike
or dismiss all or part of such document, or require its amendment.
[[Page 69215]]
(h) Any party to a proceeding may appear and be heard in person or
by an authorized representative.
(i) Any person testifying at a hearing or deposition may be
accompanied, represented, and advised by an attorney or other
representative, and may be examined by that person.
(j) Any party may request to consolidate or separate the hearing of
two or more petitions by motion to the presiding officer, when they
arise from the same or similar facts or when the matters are for any
reason deemed more efficiently heard together.
(k) Except as provided in Sec. 242.507(c) and paragraph (u)(4) of
this section, whenever a party has the right or is required to take
action within a period prescribed by this part, or by law, regulation,
or directive of the presiding officer, the presiding officer may extend
such period, with or without notice, for good cause, provided another
party is not substantially prejudiced by such extension. A request to
extend a period which has already expired may be denied as untimely.
(l) An application to the presiding officer for an order or ruling
not otherwise specifically provided for in this part shall be by
motion. The motion shall be filed with the presiding officer and, if
written, served upon all parties. All motions, unless made during the
hearing, shall be written. Motions made during hearings may be made
orally on the record, except that the presiding officer may direct that
any oral motion be reduced to writing. Any motion shall state with
particularity the grounds therefor and the relief or order sought, and
shall be accompanied by any affidavits or other evidence desired to be
relied upon which is not already part of the record. Any matter
submitted in response to a written motion must be filed and served
within fourteen (14) days of the motion, or within such other period as
directed by the presiding officer.
(m) Testimony by witnesses at the hearing shall be given under oath
and the hearing shall be recorded verbatim. The presiding officer shall
give the parties to the proceeding adequate opportunity during the
course of the hearing for the presentation of arguments in support of
or in opposition to motions, and objections and exceptions to rulings
of the presiding officer. The presiding officer may permit oral
argument on any issues for which the presiding officer deems it
appropriate and beneficial. Any evidence or argument received or
proffered orally shall be transcribed and made a part of the record.
Any physical evidence or written argument received or proffered shall
be made a part of the record, except that the presiding officer may
authorize the substitution of copies, photographs, or descriptions,
when deemed to be appropriate.
(n) The presiding officer shall employ the Federal Rules of
Evidence for United States Courts and Magistrates as general guidelines
for the introduction of evidence. Notwithstanding paragraph (m) of this
section, all relevant and probative evidence shall be received unless
the presiding officer determines the evidence to be unduly repetitive
or so extensive and lacking in relevancy that its admission would
impair the prompt, orderly, and fair resolution of the proceeding.
(o) The presiding officer may:
(1) Administer oaths and affirmations;
(2) Issue subpoenas as provided for in Sec. 209.7 of this chapter;
(3) Adopt any needed procedures for the submission of evidence in
written form;
(4) Examine witnesses at the hearing;
(5) Convene, recess, adjourn or otherwise regulate the course of
the hearing; and
(6) Take any other action authorized by or consistent with the
provisions of this part and permitted by law that may expedite the
hearing or aid in the disposition of the proceeding.
(p) The petitioner before the Operating Crew Review Board, the
railroad involved in taking the certification action, and FRA shall be
parties at the hearing. All parties may participate in the hearing and
may appear and be heard on their own behalf or through designated
representatives. All parties may offer relevant evidence, including
testimony, and may conduct such cross-examination of witnesses as may
be required to make a record of the relevant facts.
(q) The party requesting the administrative hearing shall be the
``hearing petitioner.'' The hearing petitioner shall have the burden of
proving its case by a preponderance of the evidence. Hence, if the
hearing petitioner is the railroad involved in taking the certification
action, that railroad will have the burden of proving that its decision
to deny certification, deny recertification, or revoke certification
was correct. Conversely, if the petitioner before the Operating Crew
Review Board is the hearing petitioner, that person will have the
burden of proving that the railroad's decision to deny certification,
deny recertification, or revoke certification was incorrect. The party
who is not the hearing petitioner will be a respondent.
(r) FRA will be a mandatory party to the administrative hearing. At
the start of each proceeding, FRA will be a respondent.
(s) The record in the proceeding shall be closed at the conclusion
of the evidentiary hearing unless the presiding officer allows
additional time for the submission of additional evidence. In such
instances the record shall be left open for such time as the presiding
officer grants for that purpose.
(t) At the close of the record, the presiding officer shall prepare
a written decision in the proceeding.
(u) The decision:
(1) Shall contain the findings of fact and conclusions of law, as
well as the basis for each concerning all material issues of fact or
law presented on the record;
(2) Shall be served on the hearing petitioner and all other parties
to the proceeding;
(3) Shall not become final for 35 days after issuance;
(4) Constitutes final agency action unless an aggrieved party files
an appeal within 35 days after issuance; and
(5) Is not precedential.
Sec. 242.511 Appeals.
(a) Any party aggrieved by the presiding officer's decision may
file an appeal. The appeal must be filed within 35 days of issuance of
the decision with the Federal Railroad Administrator, 1200 New Jersey
Avenue, SE., Washington, DC 20590 and with the Docket Clerk, U.S.
Department of Transportation, Docket Operations (M-30), West Building
Ground Floor, Room W12-140, 1200 New Jersey Avenue, SE., Washington, DC
20590. A copy of the appeal shall be served on each party. The appeal
shall set forth objections to the presiding officer's decision,
supported by reference to applicable laws and regulations and with
specific reference to the record. If no appeal is timely filed, the
presiding officer's decision constitutes final agency action.
(b) A party may file a reply to the appeal within 25 days of
service of the appeal. The reply shall be supported by reference to
applicable laws and regulations and with specific reference to the
record, if the party relies on evidence contained in the record.
(c) The Administrator may extend the period for filing an appeal or
a response for good cause shown, provided that the written request for
extension is served before expiration of the applicable period provided
in this section.
(d) The Administrator has sole discretion to permit oral argument
on the appeal. On the Administrator's own initiative or written motion
by any party, the Administrator may grant the
[[Page 69216]]
parties an opportunity for oral argument.
(e) The Administrator may remand, vacate, affirm, reverse, alter or
modify the decision of the presiding officer and the Administrator's
decision constitutes final agency action except where the terms of the
Administrator's decision (for example, remanding a case to the
presiding officer) show that the parties' administrative remedies have
not been exhausted.
(f) An appeal from an Operating Crew Review Board decision pursuant
to Sec. 242.503(d) must be filed within 35 days of issuance of the
decision with the Federal Railroad Administrator, 1200 New Jersey
Avenue, SE., Washington, DC 20590 and with the Docket Clerk, U.S.
Department of Transportation, Docket Operations (M-30), West Building
Ground Floor, Room W12-140, 1200 New Jersey Avenue, SE., Washington, DC
20590. A copy of the appeal shall be served on each party. The
Administrator may affirm or vacate the Board's decision, and may remand
the petition to the Board for further proceedings. An Administrator's
decision to affirm the Board's decision constitutes final agency
action.
APPENDIX A TO PART 242--SCHEDULE OF CIVIL PENALTIES
A penalty may be assessed against an individual only for a
willful violation. The Administrator reserves the right to assess a
penalty of up to $100,000 for any violation where circumstances
warrant. See 49 CFR part 209, Appendix A.
(Penalty Schedule to be included in Final Rule).
APPENDIX B TO PART 242--PROCEDURES FOR SUBMISSION AND APPROVAL OF
CONDUCTOR CERTIFICATION PROGRAMS
This appendix establishes procedures for the submission and
approval of a railroad's program concerning the training, testing,
and evaluating of persons seeking certification or recertification
as a conductor in accordance with the requirements of this part. It
also contains guidance on how FRA will exercise its review and
approval responsibilities.
Submission by a Railroad
As provided for in Sec. 242.101, each railroad must have a
program for determining the certification of each person it permits
or requires to perform as a conductor or as a passenger conductor.
Each railroad must submit its individual program to FRA for approval
as provided for in Sec. 242.103. Each program must be accompanied
by a request for approval organized in accordance with this
appendix. Requests for approval must contain appropriate references
to the relevant portion of the program being discussed. Requests
should be submitted in writing on standard sized paper (8\1/2\ x 11)
and can be in letter or narrative format. The railroad's submission
shall be sent to the Associate Administrator for Railroad Safety/
Chief Safety Officer, FRA. The mailing address for FRA is 1200 New
Jersey Avenue, SE., Washington, DC 20590. Simultaneous with its
filing with the FRA, each railroad must serve a copy of its
submission on the president of each labor organization that
represents the railroad's employees subject to this part.
Organization of the Submission
Each request should be organized to present the required
information in the following standardized manner. Each section must
begin by giving the name, title, telephone number, and mailing
address of the person to be contacted concerning the matters
addressed by that section. If a person is identified in a prior
section, it is sufficient to merely repeat the person's name in a
subsequent section.
Section 1 of the Submission: General Information and Elections
The first section of the request must contain the name of the
railroad, the person to be contacted concerning the request
(including the person's name, title, telephone number, and mailing
address) and a statement electing either to accept responsibility
for educating previously untrained persons to be certified
conductors or recertify only conductors previously certified by
other railroads. See Sec. 242.103(b).
If a railroad elects not to conduct the training of persons not
previously trained to be a conductor, the railroad is not obligated
to submit information on how the previously untrained will be
trained. A railroad that makes this election will be limited to
recertifying persons initially certified by another railroad. A
railroad that initially elects not to accept responsibility for
training its own conductors can rescind its initial election by
obtaining FRA approval of a modification of its program. See Sec.
242.103(f).
If a railroad elects to accept responsibility for training
persons not previously trained to be conductors, the railroad is
obligated to submit information on how such persons will be trained
but has no duty to actually conduct such training. A railroad that
elects to accept the responsibility for the training of such persons
may authorize another railroad or a non-railroad entity to perform
the actual training effort. The electing railroad remains
responsible for assuring that such other training providers adhere
to the training program the railroad submits. This section must also
state which types of service the railroad will employ. See Sec.
242.107.
Section 2 of the Submission: Training Persons Previously Certified
The second section of the request must contain information
concerning the railroad's program for training previously certified
conductors. As provided for in Sec. 242.119(o) each railroad must
have a program for the ongoing education of its conductors to assure
that they maintain the necessary knowledge concerning operating
rules and practices, familiarity with physical characteristics, and
relevant Federal safety rules.
Section 242.119(o) provides a railroad latitude to select the
specific subject matter to be covered, duration of the training,
method of presenting the information, and the frequency with which
the training will be provided. The railroad must describe in this
section how it will use that latitude to assure that its conductors
remain knowledgeable concerning the safe discharge of their
responsibilities so as to comply with the performance standard set
forth in Sec. 242.119(o). This section must contain sufficient
detail to permit effective evaluation of the railroad's training
program in terms of the subject matter covered, the frequency and
duration of the training sessions, the training environment employed
(for example, and use of classroom, use of computer based training,
use of film or slide presentations, use of on-job-training) and
which aspects of the program are voluntary or mandatory.
Time and circumstances have the capacity to diminish both
abstract knowledge and the proper application of that knowledge to
discrete events. Time and circumstances also have the capacity to
alter the value of previously obtained knowledge and the application
of that knowledge. In formulating how it will use the discretion
being afforded, each railroad must design its program to address
both loss of retention of knowledge and changed circumstances, and
this section of the submission to FRA must address these matters.
For example, conductors need to have their fundamental knowledge
of operating rules and procedures refreshed periodically. Each
railroad needs to advise FRA how that need is satisfied in terms of
the interval between attendance at such training, the nature of the
training being provided, and methods for conducting the training. A
matter of particular concern to FRA is how each railroad acts to
assure that conductors remain knowledgeable about the territory over
which a conductor is authorized to perform but from which the
conductor has been absent. The railroad must have a plan for the
familiarization training that addresses the question of how long a
person can be absent before needing more education and, once that
threshold is reached, how the person will acquire the needed
education. Similarly, the program must address how the railroad
responds to changes such as the introduction of new technology, new
operating rule books, or significant changes in operations including
alteration in the territory conductors are authorized to work over.
Section 3 of the Submission: Testing and Evaluating Persons
Previously Certified
The third section of the request must contain information
concerning the railroad's program for testing and evaluating
previously certified conductors. As provided for in Sec. 242.121,
each railroad must have a program for the ongoing testing and
evaluating of its conductors to assure that they have the necessary
knowledge and skills concerning operating rules and practices,
familiarity with physical characteristics of the territory, and
relevant Federal safety rules. Similarly, each railroad must have a
program for ongoing testing and evaluating to assure that its
conductors have the necessary vision and hearing acuity as provided
for in Sec. 242.117.
[[Page 69217]]
Section 242.121 requires that a railroad rely on written
procedures for determining that each person can demonstrate his or
her knowledge of the railroad's rules and practices and skill at
applying those rules and practices for the safe performance as a
conductor. Section 242.121 directs that, when seeking a
demonstration of the person's knowledge, a railroad must employ a
written test that contains objective questions and answers and
covers the following subject matters: (i) Safety and operating
rules; (ii) timetable instructions; (iii) physical characteristics
of the territory; and (iv) compliance with all applicable Federal
regulations. The test must accurately measure the person's knowledge
of all of these areas.
Section 242.121 provides a railroad latitude in selecting the
design of its own testing policies (including the number of
questions each test will contain, how each required subject matter
will be covered, weighting (if any) to be given to particular
subject matter responses, selection of passing scores, and the
manner of presenting the test information). The railroad must
describe in this section how it will use that latitude to assure
that its conductors will demonstrate their knowledge concerning the
safe discharge of their responsibilities so as to comply with the
performance standard set forth in Sec. 242.121.
Section 242.117 provides a railroad latitude to rely on the
professional medical opinion of the railroad's medical examiner
concerning the ability of a person with substandard acuity to safely
perform as a conductor. The railroad must describe in this section
how it will assure that its medical examiner has sufficient
information concerning the railroad's operations to effectively form
appropriate conclusions about the ability of a particular individual
to safely perform as a conductor.
Section 4 of the Submission: Training, Testing, and Evaluating
Persons Not Previously Certified
Unless a railroad has made an election not to accept
responsibility for conducting the initial training of persons to be
conductors, the fourth section of the request must contain
information concerning the railroad's program for educating,
testing, and evaluating persons not previously trained as
conductors. As provided for in Sec. 242.119(d), a railroad that is
issuing an initial certification to a person to be a conductor must
have a program for the training, testing, and evaluating of its
conductors to assure that they acquire the necessary knowledge and
skills concerning operating rules and practices, familiarity with
physical characteristics of the territory, and relevant Federal
safety rules.
Section 242.119 establishes a performance standard and gives a
railroad latitude in selecting how it will meet that standard. A
railroad must describe in this section how it will use that latitude
to assure that its conductors will acquire sufficient knowledge and
skill and demonstrate their knowledge and skills concerning the safe
discharge of their responsibilities. This section must contain the
same level of detail concerning initial training programs as that
described for each of the components of the overall program
contained in sections 2 through 4 of this appendix. A railroad that
plans to accept responsibility for the initial training of
conductors may authorize another railroad or a non-railroad entity
to perform the actual training effort. The authorizing railroad may
submit a training program developed by that authorized trainer but
the authorizing railroad remains responsible for assuring that such
other training providers adhere to the training program submitted.
Railroads that elect to rely on other entities, to conduct training
away from the railroad's own territory, must indicate how the
student will be provided with the required familiarization with the
physical characteristics for its territory.
Section 5 of the Submission: Monitoring Operational Performance by
Certified Conductors
The fifth section of the request must contain information
concerning the railroad's program for monitoring the operation of
its certified conductors. As provided for in Sec. 242.123, each
railroad must have a program for the ongoing monitoring of its
conductors to assure that they perform in conformity with the
railroad's operating rules and practices and relevant Federal safety
rules.
Section 6 of the Submission: Procedures for Routine Administration
of the Conductor Certification Program
The final section of the request must contain a summary of how
the railroad's program and procedures will implement the various
specific aspects of the regulatory provisions that relate to routine
administration of its certification program for conductors. At a
minimum this section needs to address the procedural aspects of the
rule's provisions identified in the following paragraph.
Section 242.109 provides that each railroad must have procedures
for review and comment on adverse prior safety conduct, but allows
the railroad to devise its own system within generalized parameters.
Sections 242.111, 242.115 and 242.403 require a railroad to have
procedures for evaluating data concerning prior safety conduct as a
motor vehicle operator and as railroad workers, yet leave selection
of many details to the railroad. Sections 242.109, 242.201, and
242.401 place a duty on the railroad to make a series of
determinations but allow the railroad to select what procedures it
will employ to assure that all of the necessary determinations have
been made in a timely fashion; who will be authorized to conclude
that person will or will be not certified; and how it will
communicate adverse decisions. Documentation of the factual basis
the railroad relied on in making determinations under Sec. Sec.
242.109, 242.117, 242.119 and 242.121 is required, but these
sections permit the railroad to select the procedures it will employ
to accomplish compliance with these provisions. Sections 242.125 and
242.127 permit reliance on certification/qualification
determinations made by other entities and permit a railroad latitude
in selecting the procedures it will employ to assure compliance with
these provisions. Similarly, Sec. 242.301 permits the use of
railroad selected procedures to meet the requirements for
certification of conductors performing service in joint operations
territory. Sections 242.211 and 242.407 allow a railroad a certain
degree of discretion in complying with the requirements for
replacing lost certificates or the conduct of certification
revocation proceedings.
This section of the request should outline in summary fashion
the manner in which the railroad will implement its program so as to
comply with the specific aspects of each of the rule's provisions
described in the preceding paragraph.
FRA Review
The submissions made in conformity with this appendix will be
deemed approved within 30 days after the required filing date or the
actual filing date whichever is later. No formal approval document
will be issued by FRA. FRA has taken the responsibility for
notifying a railroad when it detects problems with the railroad's
program. FRA retains the right to disapprove a program that has
obtained approval due to the passage of time as provided for in
section Sec. 242.103.
Rather than establish rigid requirements for each element of the
program, FRA has given railroads discretion to select the design of
their individual programs within a specified context for each
element. The rule, however, provides a good guide to the
considerations that should be addressed in designing a program that
will meet the performance standards of this rule.
In reviewing program submissions, FRA will focus on the degree
to which a particular program deviates from the norms identified in
its rule. To the degree that a particular program submission
materially deviates from the norms set out in its rule, FRA's review
and approval process will be focused on determining the validity of
the reasoning relied on by a railroad for selecting its alternative
approach and the degree to which the alternative approach is likely
to be effective in producing conductors who have the knowledge and
ability to safely perform as conductors.
APPENDIX C TO PART 242--PROCEDURES FOR OBTAINING AND EVALUATING MOTOR
VEHICLE DRIVING RECORD DATA
The purpose of this appendix is to outline the procedures
available to individuals and railroads for complying with the
requirements of Sec. Sec. 242.109 and 242.111 of this part. Those
provisions require that railroads consider the motor vehicle driving
record of each person prior to issuing him or her certification or
recertification as a conductor.
To fulfill that obligation, a railroad must review a
certification candidate's recent motor vehicle driving record.
Generally, that will be a single record on file with the state
agency that issued the candidate's current license. However, it can
include multiple records if the candidate has been issued a motor
vehicle driving license by more than one state agency or foreign
country.
[[Page 69218]]
Access to State Motor Vehicle Driving Record Data
The right of railroad workers, their employers, or prospective
employers to have access to a state motor vehicle licensing agency's
data concerning an individual's driving record is controlled by
state law. Although many states have mechanisms through which
employers and prospective employers such as railroads can obtain
such data, there are some states in which privacy concerns make such
access very difficult or impossible. Since individuals generally are
entitled to obtain access to driving record data that will be relied
on by a state motor vehicle licensing agency when that agency is
taking action concerning their driving privileges, FRA places
responsibility on individuals, who want to serve as conductors to
request that their current state drivers licensing agency or
agencies furnish such data directly to the railroad considering
certifying them as a conductor. Depending on the procedures adopted
by a particular state agency, this will involve the candidate's
either sending the state agency a brief letter requesting such
action or executing a state agency form that accomplishes the same
effect. It will normally involve payment of a nominal fee
established by the state agency for such a records check. In rare
instances, when a certification candidate has been issued multiple
licenses, it may require more than a single request.
Once the railroad has obtained the motor vehicle driving
record(s), the railroad must afford the prospective conductor an
opportunity to review that record and respond in writing to its
contents in accordance with the provisions of Sec. 242.401. The
review opportunity must occur before the railroad evaluates that
record. The railroad's required evaluation and subsequent decision
making must be done in compliance with the provisions of this part.
APPENDIX D TO PART 242--MEDICAL STANDARDS GUIDELINES
(1) The purpose of this appendix is to provide greater guidance
on the procedures that should be employed in administering the
vision and hearing requirements of Sec. 242.117.
(2) In determining whether a person has the visual acuity that
meets or exceeds the requirements of this part, the following
testing protocols are deemed acceptable testing methods for
determining whether a person has the ability to recognize and
distinguish among the colors used as signals in the railroad
industry. The acceptable test methods are shown in the left hand
column and the criteria that should be employed to determine whether
a person has failed the particular testing protocol are shown in the
right hand column.
------------------------------------------------------------------------
Accepted tests Failure criteria
------------------------------------------------------------------------
Pseudoisochromatic Plate Tests
------------------------------------------------------------------------
American Optical Company 1965.......... 5 or more errors on plates 1-
15.
------------------------------------------------------------------------
AOC--Hardy-Rand-Ritter plates-second Any error on plates 1-6 (plates
edition. 1-4 are for demonstration--
test plate 1 is actually plate
5 in book).
Dvorine--Second edition................ 3 or more errors on plates 1-
15.
Ishihara (14 plate).................... 2 or more errors on plates 1-
11.
Ishihara (16 plate).................... 2 or more errors on plates 1-8.
Ishihara (24 plate).................... 3 or more errors on plates 1-
15.
Ishihara (38 plate).................... 4 or more errors on plates 1-
21.
Richmond Plates 1983................... 5 or more errors on plates 1-
15.
------------------------------------------------------------------------
Multifunction Vision Tester
------------------------------------------------------------------------
Keystone Orthoscope.................... Any error.
OPTEC 2000............................. Any error.
Titmus Vision Tester................... Any error.
Titmus II Vision Tester................ Any error.
------------------------------------------------------------------------
(3) In administering any of these protocols, the person
conducting the examination should be aware that railroad signals do
not always occur in the same sequence and that ``yellow signals'' do
not always appear to be the same. It is not acceptable to use
``yarn'' or other materials to conduct a simple test to determine
whether the certification candidate has the requisite vision. No
person shall be allowed to wear chromatic lenses during an initial
test of the person's color vision; the initial test is one conducted
in accordance with one of the accepted tests in the chart and Sec.
242.117(h)(3).
(4) An examinee who fails to meet the criteria in the chart, may
be further evaluated as determined by the railroad's medical
examiner. Ophthalmologic referral, field testing, or other practical
color testing may be utilized depending on the experience of the
examinee. The railroad's medical examiner will review all pertinent
information and, under some circumstances, may restrict an examinee
who does not meet the criteria for serving as a conductor at night,
during adverse weather conditions or under other circumstances. The
intent of Sec. 242.117(j) is not to provide an examinee with the
right to make an infinite number of requests for further evaluation,
but to provide an examinee with at least one opportunity to prove
that a hearing or vision test failure does not mean the examinee
cannot safely perform as a conductor. Appropriate further medical
evaluation could include providing another approved scientific
screening test or a field test. All railroads should retain the
discretion to limit the number of retests that an examinee can
request but any cap placed on the number of retests should not limit
retesting when changed circumstances would make such retesting
appropriate. Changed circumstances would most likely occur if the
examinee's medical condition has improved in some way or if
technology has advanced to the extent that it arguably could
compensate for a hearing or vision deficiency.
(5) Conductors who wear contact lenses should have good
tolerance to the lenses and should be instructed to have a pair of
corrective glasses available when on duty.
[[Page 69219]]
[GRAPHIC] [TIFF OMITTED] TP10NO10.001
Issued in Washington, DC, on October 8, 2010.
Karen J. Rae,
Deputy Administrator.
[FR Doc. 2010-27642 Filed 11-9-10; 8:45 am]
BILLING CODE 4910-06-P