[Code of Federal Regulations]

[Title 49, Volume 4]

[Revised as of October 1, 2005]

From the U.S. Government Printing Office via GPO Access

[CITE: 49CFR240.117]



[Page 738-741]

 

                        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.



[[Page 739]]



    (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 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 Sec. Sec. 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



[[Page 740]]



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 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



[[Page 741]]



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.

    (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]