[Code of Federal Regulations]
[Title 49, Volume 4]
[Revised as of October 1, 2003]
From the U.S. Government Printing Office via GPO Access
[CITE: 49CFR240.117]

[Page 631-634]
 
                        TITLE 49--TRANSPORTATION
 
       CHAPTER II--FEDERAL RAILROAD ADMINISTRATION, DEPARTMENT OF 
                             TRANSPORTATION
 
PART 240--QUALIFICATION AND CERTIFICATION OF LOCOMOTIVE ENGINEERS--Table of Contents
 
       Subpart B--Component Elements of the Certification Process
 
Sec. 240.117  Criteria for consideration of operating rules compliance data.

    (a) Each railroad's program shall include criteria and procedures 
for implementing this section.
    (b) A person who has demonstrated a failure to comply, as described 
in paragraph (e) of this section, with railroad rules and practices for 
the safe operation of trains shall not be currently certified as a 
locomotive engineer.
    (c)(1) A certified engineer who has demonstrated a failure to 
comply, as described in paragraph (e) of this section, with railroad 
rules and practices for the safe operation of trains shall have his or 
her certification revoked.
    (2) A Designated Supervisor of Locomotive Engineers, a certified 
locomotive engineer pilot or an instructor engineer who is monitoring, 
piloting or instructing a locomotive engineer and

[[Page 632]]

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 an engineer of a potential or foreseeable violation. A 
Designated Supervisor of Locomotive Engineers will not be held culpable 
under this section when this monitoring event is conducted as part of 
the railroad's operational compliance tests as defined in Secs. 217.9 
and 240.303 of this chapter.
    (3) A person who is a certified locomotive engineer but is called by 
a railroad to perform the duty of a train crew member other than that of 
locomotive engineer, and is performing such other duty, 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. Except as provided for in paragraph (i) of this section, in 
determining whether a person may be or remain certified as a locomotive 
engineer, a railroad shall consider as operating rule compliance data 
only conduct described in paragraphs (e)(1) through (e)(5) of this 
section that occurred within a period of 36 consecutive months prior to 
the determination. A review of an existing certification shall be 
initiated promptly upon the occurrence and documentation of any conduct 
described in this section.
    (e) A railroad shall only consider violations of its operating rules 
and practices that involve:
    (1) Failure to 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;
    (2) Failure to adhere to limitations concerning train speed when 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 (i.e., employee injury/illness cases 
reportable exclusively because a physician or other licensed health care 
professional either made a one-time topical application of a 
prescription-strength medication to the employee's injury or made a 
written recommendation that the employee: Take one or more days away 
from work when the employee instead reports to work (or would have 
reported had he or she been scheduled) and takes no days away from work 
in connection with the injury or illness; work restricted duty for one 
or more days when the employee instead works unrestricted (or would have 
worked unrestricted had he or she been scheduled) and takes no other 
days of restricted work activity in connection with the injury or 
illness; or take over-the-counter medication at a dosage equal to or 
greater than the minimum prescription strength, whether or not the 
employee actually takes the medication, as instances of failure to 
adhere to this section;
    (3) Failure to adhere to procedures for the safe use of train or 
engine brakes when the procedures are required for compliance with the 
initial terminal, intermediate terminal, or transfer train and yard test 
provisions of 49 CFR part 232 or when the procedures are required for 
compliance with the class 1, class 1A, class II, or running brake test 
provisions of 49 CFR part 238;
    (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, or knowingly 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) Incidents of noncompliance with Sec. 219.101 of this chapter; 
however such

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incidents shall be considered as a violation only for the purposes of 
paragraphs (g)(2) and (3) of this section;
    (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 paragraph (e)(1) through (e)(5) 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 paragraph (g) of this section.
    (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.
    (g) 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) In the case of a single incident involving violation of one or 
more of the operating rules or practices described in paragraphs (e)(1) 
through (e)(5) of this section, the person shall have his or her 
certificate revoked for a period of one month.
    (ii) In the case of two separate incidents involving a violation of 
one or more of the operating rules or practices described in paragraphs 
(e)(1) through (e)(5) of this section, that occurred within 24 months of 
each other, the person shall have his or her certificate revoked for a 
period of six months.
    (iii) In the case of three separate incidents involving violations 
of one or more of the operating rules or practices, described in 
paragraphs (e)(1) through (e)(6) of this section, that occurred within 
36 months of each other, the person shall have his or her certificate 
revoked for a period of one year.
    (iv) In the case of four separate incidents involving violations of 
one or more of the operating rules or practices, described in paragraphs 
(e)(1) through (e)(6) of this section, that occurred within 36 months of 
each other, the person shall have his or her certificate revoked for a 
period of three years.
    (v) Where, based on the occurrence of violations described in 
paragraph (e)(6) of this section, different periods of ineligibility may 
result under the provisions of this section and Sec. 240.119, the 
longest period of revocation shall control.
    (4) Be reduced to the shorter periods of ineligibility imposed by 
paragraphs (g)(1) through (3) of this section as amended, and effective 
January 7, 2000 if the incident:
    (i) Occurred prior to January 7, 2000; and
    (ii) Involved violations described in paragraphs (e)(1) through 
(e)(5) of this section; and
    (iii) Did not occur within 60 months of a prior violation as 
described in paragraph (e)(6) of this section.
    (h) Future eligibility to hold certificate. A person whose 
certification has been denied or revoked shall be eligible for grant or 
reinstatement of the certificate prior to the expiration of the initial 
period of revocation only if:
    (1) The denial or revocation of certification in accordance with the 
provisions of paragraph (g)(3) of this section is for a period of one 
year or less;
    (2) Certification was denied or revoked for reasons other than 
noncompliance with Sec. 219.101 of this chapter;
    (3) The person has been evaluated by a Designated Supervisor of 
Locomotive Engineers and determined to have received adequate remedial 
training;
    (4) The person has successfully completed any mandatory program of 
training or retraining, if that was 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 (g)(3) of this section has elapsed.

[[Page 634]]

    (i) In no event shall incidents that meet the criteria of paragraphs 
(i)(1) through (4) of this section be considered as prior incidents for 
the purposes of paragraph (g)(3) of this section even though such 
incidents could have been or were validly determined to be violations at 
the time they occurred. Incidents that shall not be considered under 
paragraph (g)(3) of this section are those that:
    (1) Occurred prior to May 10, 1993;
    (2) Involved violations of one or more of the following operating 
rules or practices:
    (i) Failure to control a locomotive or train in accordance with a 
signal indication;
    (ii) Failure to adhere to limitations concerning train speed;
    (iii) Failure to adhere to procedures for the safe use of train or 
engine brakes; or
    (iv) Entering track segment without proper authority;
    (3) Were or could have been found to be violations under this 
section contained in the 49 CFR, parts 200 to 399, edition revised as of 
October 1, 1992; and
    (4) Would not be a violation of paragraph (e) of this section.
    (j) In no event shall incidents that meet the criteria of paragraphs 
(j)(1) through (2) of this section be considered as prior incidents for 
the purposes of paragraph (g)(3) of this section even though such 
incidents could have been or were validly determined to be violations at 
the time they occurred. Incidents that shall not be considered under 
paragraph (g)(3) of this section are those that:
    (1) Occurred prior to January 7, 2000;
    (2) Involved violations of one or more of the following operating 
rules or practices:
    (i) Failure to control a locomotive or train in accordance with a 
signal indication that requires a complete stop before passing it;
    (ii) Failure to adhere to limitations concerning train speed when 
the speed at which the train was operated exceeds the maximum authorized 
limit by at least 10 miles per hour or by more than one half of the 
authorized speed, whichever is less;
    (3) Were or could have been found to be violations under this 
section contained in the 49 CFR, parts 200 to 399, edition revised as of 
October 1, 1999; and
    (4) Would not be a violation of paragraph (e) of this section.

[64 FR 60990, Nov. 8, 1999, as amended at 68 FR 10139, Mar. 3, 2003]