(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 (5)
or (e)(12) may not work as a locomotive engineer during the period of
revocation. However, a person who holds a current conductor and
locomotive engineer certificate and who has had his or her conductor
certification revoked under Sec.  242.407 for a violation of Sec.
242.403(e)(6) through (11) may work as a locomotive engineer during the
period of revocation.
    (1) For purposes of determining the period for which a person may
not work as a certified locomotive engineer due to a revocation of his
or her conductor certification, only violations of Sec.  242.403(e)(1)
through (5) or (e)(12) will be counted. Thus, a person who holds a
current conductor and locomotive engineer certificate and who has had
his or her conductor certification revoked three times in less than 36
months for two violations of Sec.  242.403(e)(6) and one violation of
Sec.  242.403(e)(1) would have his or her conductor certificate revoked
for 1 year, but would not be permitted to work as a locomotive engineer
for one month (i.e., the period of revocation for one violation of
Sec.  242.403(e)(1)).
    (i) A person who holds a current conductor and locomotive engineer
certificate and who has had his or her locomotive engineer
certification revoked under Sec.  240.307 of this chapter may not work
as a conductor during the period of revocation.
    (j) A person who has had his or her locomotive engineer
certification revoked under Sec.  240.307 of this chapter may not
obtain a conductor certificate pursuant to this part during the period
of revocation.
    (k) A person who had his or her conductor certification revoked
under Sec.  242.407 for violations of Sec.  242.403(e)(1) through (5)
or (e)(12) may not obtain a locomotive engineer certificate pursuant to
part 240 of this chapter during the period of revocation.
    (l) A railroad that denies a person conductor certification or
recertification under Sec.  242.401 shall not, solely on the basis of
that denial, deny or revoke that person's locomotive engineer
certification or recertification.
    (m) A railroad that denies a person locomotive engineer
certification or recertification under Sec.  240.219 of this chapter
shall not, solely on the basis of that denial, deny or revoke that
person's conductor certification or recertification.
    (n) In lieu of issuing multiple certificates, a railroad may issue
one certificate to a person who is certified to perform multiple types
of conductor service or is certified as a conductor and a locomotive
engineer. The certificate must comply with Sec.  240.223 of this
chapter and Sec.  242.207.
    (o) A person who holds a current conductor and locomotive engineer
certificate and who is involved in a revocable event under Sec.
242.407 or Sec.  240.307 of this chapter may only have one certificate
revoked for that event. The determination by the railroad as to which
certificate to revoke for the revocable event must be based on the work
the person was performing at the time the event occurred.

Sec.  242.215  Railroad oversight responsibilities.

    (a) No later than March 31 of each year (beginning in calendar year
2013), each Class I railroad (including the National Railroad Passenger
Corporation and a railroad providing commuter service) and each Class
II railroad shall conduct a formal annual review and analysis
concerning the administration of its program for responding to detected
instances of poor safety conduct by certified conductors during the
prior calendar year.
    (b) Each review and analysis shall involve:
    (1) The number and nature of the instances of detected poor safety
conduct including the nature of the remedial action taken in response
thereto;
    (2) The number and nature of FRA reported train accidents
attributed to poor safety performance by conductors;
    (3) The number and type of operational monitoring test failures
recorded by railroad officers who meet the requirements of Sec.
217.9(b)(1) of this chapter; and
    (4) If the railroad conducts joint operations with another
railroad, the number of conductors employed by the other railroad(s)
which: were involved in events described in this paragraph and were
determined to be certified and to have possessed the necessary
territorial qualifications for joint operations purposes by the
controlling railroad.
    (c) Based on that review and analysis, each railroad shall
determine what action(s) it will take to improve the safety of railroad
operations to reduce or eliminate future incidents of that nature.
    (d) If requested in writing by FRA, the railroad shall provide a
report of the findings and conclusions reached during such annual
review and analysis effort.
    (e) For reporting purposes, information about the nature of
detected poor safety conduct shall be capable of segregation for study
and evaluation purposes into the following categories:
    (1) Incidents involving noncompliance with part 218 of this
chapter;
    (2) Incidents involving noncompliance with part 219 of this
chapter;
    (3) Incidents involving noncompliance with the procedures for the
safe use of train or engine brakes when the procedures are required for
compliance with the Class I, Class IA, Class II, Class III, or transfer
train brake test provisions of part 232 of this chapter or when the
procedures are required for compliance with the Class 1, Class 1A,
Class II, or running brake test provisions of part 238 of this chapter;
    (4) Incidents involving noncompliance with the railroad's operating
rules involving operation of a locomotive or train to operate at a
speed that exceeds the maximum authorized limit;
    (5) Incidents involving noncompliance with the railroad's operating
rules resulting in operation of a locomotive or train past any signal,
excluding a hand or a radio signal indication or a switch, that
requires a complete stop before passing it;
    (6) Incidents involving noncompliance with the provisions of
restricted speed, and the operational equivalent thereof, that must be
reported under the provisions of part 225 of this chapter;
    (7) Incidents involving occupying main track or a segment of main
track without proper authority or permission; and
    (8) Incidents involving the failure to comply with prohibitions
against tampering with locomotive mounted safety devices, or knowingly
operating or permitting to be operated a train with an unauthorized or
disabled safety device in the controlling locomotive.
    (f) For reporting purposes, an instance of poor safety conduct
involving a person who holds both conductor certification pursuant to
this part and locomotive engineer certification pursuant to part 240 of
this chapter need only be reported once (either under 49 CFR 240.309 of
this chapter or this section). The determination as to where to report
the instance of poor safety conduct should be based on the work the
person was performing at the time the conduct occurred.
    (g) For reporting purposes each category of detected poor safety
conduct identified in paragraph (b) of this section shall be capable of
being annotated to reflect the following:

    (1) The nature of the remedial action taken and the number of
events subdivided so as to reflect which of the following actions was
selected:
    (i) Imposition of informal discipline;
    (ii) Imposition of formal discipline;
    (iii) Provision of informal training; or
    (iv) Provision of formal training; and
    (2) If the nature of the remedial action taken was formal
discipline, the number of events further subdivided so as to reflect
which of the following punishments was imposed by the railroad:
    (i) The person was withheld from service;
    (ii) The person was dismissed from employment or
    (iii) The person was issued demerits. If more than one form of
punishment was imposed only that punishment deemed the most severe
shall be shown.
    (h) For reporting purposes each category of detected poor safety
conduct identified in paragraph (b) of this section which resulted in
the imposition of formal or informal discipline shall be annotated to
reflect the following:
    (1) The number of instances in which the railroad's internal
appeals process reduced the punishment initially imposed at the
conclusion of its hearing; and
    (2) The number of instances in which the punishment imposed by the
railroad was reduced by any of the following entities: The National
Railroad Adjustment Board, a Public Law Board, a Special Board of
Adjustment or other body for the resolution of disputes duly
constituted under the provisions of the Railway Labor Act.
    (i) For reporting purposes, each category of detected poor safety
conduct identified in paragraph (b) of this section shall be capable of
being annotated to reflect the following:
    (1) The total number of incidents in that category;
    (2) The number of incidents within that total which reflect
incidents requiring an FRA accident/incident report under part 225 of
this chapter; and
    (3) The number of incidents within that total which were detected
as a result of a scheduled operational monitoring effort.

Subpart D--Territorial Qualification and Joint Operations

Sec.  242.301  Requirements for territorial qualification.

    (a) Except as provided in paragraph (c), (d), or (e) of this
section, a railroad, including a railroad that employs conductors
working in joint operations territory, shall not permit or require a
person to serve as a conductor unless that railroad determines that the
person is certified as a conductor and possesses the necessary
territorial qualifications for the applicable territory pursuant to
Sec.  242.119.
    (b) Each person who is called to serve as a conductor shall:
    (1) Meet the territorial qualification requirements on the segment
of track upon which he or she will serve as a conductor; and
    (2) Immediately notify the railroad upon which he or she is
employed if he or she does not meet the required territorial
qualifications.
    (c) Except as provided in paragraph (e) of this section, if a
conductor lacks territorial qualification on main track physical
characteristics required by paragraph (a) of this section, he or she
shall be assisted by a person who meets the territorial qualification
requirements for main track physical characteristics.
    (1) For a conductor who has never been qualified on main track
physical characteristics of the territory over which he or she is to
serve as a conductor, the assistant shall be a person who is certified
as a conductor, meets the territorial qualification requirements for
main track physical characteristics, and is not an assigned crew
member.
    (2) For a conductor who was previously qualified on main track
physical characteristics of the territory over which he or she is to
serve as a conductor, but whose qualification has expired, the
assistant may be any person, including an assigned crewmember other
than the locomotive engineer so long as serving as the assistant would
not conflict with that crewmember's other safety sensitive duties, who
meets the territorial qualification requirements for main track
physical characteristics.
    (d) If a conductor lacks territorial qualification on other than
main track physical characteristics required by paragraph (a) of this
section, where practicable, he or she shall be assisted by a person who
is a certified conductor and meets the territorial qualification
requirements for other than main track physical characteristics. Where
not practicable, the conductor shall be provided an appropriate up-to-
date job aid.
    (e) An assistant is not required if the movement is on a section of
main track with an average grade of less than 1% over 3 continuous
miles, and
    (1) The maximum distance the locomotive or train will be operated
does not exceed one mile; or
    (2) The maximum authorized speed for any operation on the track
does not exceed 20 miles per hour; or
    (3) Operations are conducted under operating rules that require
every locomotive and train to proceed at a speed that permits stopping
within one half the range of vision of the locomotive engineer.

Subpart E--Denial and Revocation of Certification

Sec.  242.401  Denial of certification.

    (a) A railroad shall notify a candidate for certification or
recertification of information known to the railroad that forms the
basis for denying the person certification and provide the person a
reasonable opportunity to explain or rebut that adverse information in
writing prior to denying certification. A railroad shall provide the
conductor candidate with any written documents or records, including
written statements, related to failure to meet a requirement of this
part which support its pending denial decision.
    (b) This section does not require further opportunity to comment if
the railroad's denial is based solely on factors addressed by
Sec. Sec.  242.111, 242.115, or 242.403 and the opportunity to comment
afforded by Sec.  242.109 has been provided.
    (c) If a railroad denies a person certification or recertification,
it shall notify the person of the adverse decision and explain, in
writing, the basis for its denial decision. The basis for a railroad's
denial decision shall address any explanation or rebuttal information
that the conductor candidate may have provided in writing pursuant to
paragraph (a) of this section. The document explaining the basis for
the denial shall be served on the person within 10 days after the
railroad's decision and shall give the date of the decision.
    (d) A railroad shall not deny the person's certification for
failing to comply with a railroad operating rule or practice which
constitutes a violation under Sec.  242.403(e)(1) through (11) of this
part if sufficient evidence exists to establish that an intervening
cause prevented or materially impaired the conductor's ability to
comply with that railroad operating rule or practice.

Sec.  242.403  Criteria for revoking certification.

    (a) Each railroad shall adopt and comply with a program which meets
the requirements of this section. When any person including, but not
limited to, each railroad, railroad officer, supervisor, and employee
violates any

requirement of a program which complies with the requirements of this
section, that person shall be considered to have violated the
requirements of this section.
    (b) It shall be unlawful to fail to comply with any of the railroad
rules and practices described in paragraph (e) of this section.
    (c)(1) A certified conductor who has demonstrated a failure to
comply with railroad rules and practices described in paragraph (e) of
this section shall have his or her certification revoked.
    (2) A certified conductor who is monitoring, piloting, or
instructing a conductor and fails to take appropriate action to prevent
a violation of paragraph (e) of this section shall have his or her
certification revoked. Appropriate action does not mean that a
supervisor, pilot, or instructor must prevent a violation from
occurring at all costs; the duty may be met by warning the conductor or
the engineer, as appropriate, of a potential or foreseeable violation.
    (3) A certified conductor who is called by a railroad to perform
the duty of a train crew member other than that of conductor or
locomotive engineer shall not have his or her certification revoked
based on actions taken or not taken while performing that duty.
    (d) Limitations on consideration of prior operating rule compliance
data: In determining whether a person may be or remain certified as a
conductor, a railroad shall consider as operating rule compliance data
only conduct described in paragraphs (e)(1) through (e)(11) of this
section that occurred within a period of 36 consecutive months prior to
the determination. A review of an existing certification shall be
initiated promptly upon the occurrence and documentation of any conduct
described in this section.
    (e) A railroad shall only consider violations of its operating
rules and practices that involve:
    (1) Failure to take appropriate action to prevent the locomotive
engineer of the train the conductor is assigned to from failing to
control a locomotive or train in accordance with a signal indication,
excluding a hand or a radio signal indication or a switch, that
requires a complete stop before passing it, when the conductor is
located in the operating cab, or otherwise has knowledge of the signal
indication. Appropriate action does not mean that a conductor must
prevent a violation from occurring at all costs; the duty may be met by
warning an engineer of a potential or foreseeable violation.
    (2) Failure to take appropriate action to prevent the locomotive
engineer of the train the conductor is assigned to from failing to
adhere to the following limitations concerning train speed:
    (i) When the conductor is located in the operating cab and the
speed at which the train was operated exceeds the maximum authorized
limit by at least 10 miles per hour. Where restricted speed is in
effect, railroads shall consider only those violations of the
conditional clause of restricted speed rules (i.e., the clause that
requires stopping within one half of the locomotive engineer's range of
vision), or the operational equivalent thereof, which cause reportable
accidents or incidents under part 225 of this chapter, except for
accidents and incidents that are classified as ``covered data'' under
Sec.  225.5 of this chapter. Appropriate action does not mean that a
conductor must prevent a violation from occurring at all costs; the
duty may be met by warning an engineer of a potential or foreseeable
violation.
    (ii) When not in the operating cab, the conductor is deemed to have
taken appropriate action when in compliance with all applicable
Railroad Operating Rules and Special Instructions.
    (3) Failure to perform or have knowledge that a required brake test
was performed pursuant to the Class I, Class IA, Class II, Class III,
or transfer train brake test provisions of part 232 of this chapter or
the Class 1, Class 1A, Class II, or running brake test provisions of
part 238 of this chapter.
    (4) Failure to take appropriate action to prevent the locomotive
engineer of the train the conductor is assigned to from occupying main
track or a segment of main track without proper authority or
permission. Appropriate action does not mean that a conductor must
prevent a violation from occurring at all costs; the duty may be met by
warning an engineer of a potential or foreseeable violation.
    (5) Failure to comply with prohibitions against tampering with
locomotive mounted safety devices; knowingly fail to take appropriate
action to prevent the locomotive engineer of the train the conductor is
assigned to from failing to comply with prohibitions against tampering
with locomotive mounted safety devices; or knowingly fail to take
appropriate action to prevent the locomotive engineer of the train the
conductor is assigned to from operating or permitting to be operated a
train with an unauthorized disabled safety device in the controlling
locomotive. (See 49 CFR part 218, subpart D and appendix C to part
218);
    (6) Failure to comply with the provisions of Sec.  218.99 of this
chapter (Shoving or pushing movements). Railroads shall only consider
those violations of Sec.  218.99 of this chapter which cause reportable
accidents or incidents under part 225 of this chapter, except for
accidents and incidents that are classified as ``covered data'' under
Sec.  225.5 of this chapter.
    (7) Failure to comply with the provisions of Sec.  218.101 of this
chapter (Leaving rolling and on-track maintenance-of-way equipment in
the clear). Railroads shall only consider those violations of Sec.
218.101 of this chapter which cause reportable accidents or incidents
under part 225 of this chapter, except for accidents and incidents that
are classified as ``covered data'' under Sec.  225.5 of this chapter.
    (8) Failure to comply with the provisions of Sec.  218.103 of this
chapter (Hand-operated switches, including crossover switches).
Railroads shall only consider those violations of Sec.  218.103 of this
chapter which cause reportable accidents or incidents under part 225 of
this chapter, except for accidents and incidents that are classified as
``covered data'' under Sec.  225.5 of this chapter.
    (9) Failure to comply with the provisions of Sec.  218.105 of this
chapter (Additional operational requirements for hand-operated main
track switches). Railroads shall only consider those violations of
Sec.  218.105 of this chapter which cause reportable accidents or
incidents under part 225 of this chapter, except for accidents and
incidents that are classified as ``covered data'' under Sec.  225.5 of
this chapter.
    (10) Failure to comply with the provisions of Sec.  218.107 of this
chapter (Additional operational requirements for hand-operated
crossover switches). Railroads shall only consider those violations of
Sec.  218.107 of this chapter which cause reportable accidents or
incidents under part 225 of this chapter, except for accidents and
incidents that are classified as ``covered data'' under Sec.  225.5 of
this chapter.
    (11) Failure to comply with the provisions of Sec.  218.109 of this
chapter (Hand-operated fixed derails). Railroads shall only consider
those violations of Sec.  218.109 of this chapter which cause
reportable accidents or incidents under part 225 of this chapter,
except for accidents and incidents that are classified as ``covered
data'' under Sec.  225.5 of this chapter.
    (12) Failure to comply with Sec.  219.101 of this chapter; however
such incidents shall be considered as a violation only for the purposes
of Sec.  242.405(a)(2) and (3).
    (f)(1) If in any single incident the person's conduct contravened
more than one operating rule or practice, that

event shall be treated as a single violation for the purposes of this
section.
    (2) A violation of one or more operating rules or practices
described in paragraphs (e)(1) through (11) of this section that occurs
during a properly conducted operational compliance test subject to the
provisions of this chapter shall be counted in determining the periods
of ineligibility described in Sec.  242.405.
    (3) An operational test that is not conducted in compliance with
this part, a railroad's operating rules, or a railroad's program under
Sec.  217.9 of this chapter, will not be considered a legitimate test
of operational skill or knowledge, and will not be considered for
certification, recertification or revocation purposes.
    (4) A railroad shall not be permitted to deny or revoke an
employee's certification based upon additional conditions or
operational restrictions imposed pursuant to Sec.  242.107(d).

Sec.  242.405  Periods of ineligibility.

    (a) A period of ineligibility described in this paragraph shall:
    (1) Begin, for a person not currently certified, on the date of the
railroad's written determination that the most recent incident has
occurred; or
    (2) Begin, for a person currently certified, on the date of the
railroad's notification to the person that recertification has been
denied or certification has been revoked; and
    (3) Be determined according to the following standards:
    (i) On other than main track where restricted speed or the
operational equivalent thereof is in effect, the period of revocation
for a violation of Sec.  242.403(e)(6) through (8), (10), or (11) shall
be reduced by one half provided that another revocable event has not
occurred within the previous 12 months.
    (ii) In the case of a single incident involving violation of one or
more of the operating rules or practices described in Sec.
242.403(e)(1) through (11), the person shall have his or her
certificate revoked for a period of 30 calendar days.
    (iii) In the case of two separate incidents involving a violation
of one or more of the operating rules or practices described in Sec.
242.403(e)(1) through (11), that occurred within 24 months of each
other, the person shall have his or her certificate revoked for a
period of six months.
    (iv) In the case of three separate incidents involving violations
of one or more of the operating rules or practices, described in Sec.
242.403(e)(1) through (12), that occurred within 36 months of each
other, the person shall have his or her certificate revoked for a
period of one year.
    (v) In the case of four separate incidents involving violations of
one or more of the operating rules or practices, described in Sec.
242.403(e)(1) through (12), that occurred within 36 months of each
other, the person shall have his or her certificate revoked for a
period of three years.
    (vi) Where, based on the occurrence of violations described in
Sec.  242.403(e)(12), different periods of ineligibility may result
under the provisions of this section and Sec.  242.115, the longest
period of revocation shall control.
    (b) Any or all periods of revocation provided in paragraph (a) of
this section may consist of training.
    (c) Reduction in period of ineligibility: A person whose
certification is denied or revoked shall be eligible for grant or
reinstatement of the certificate prior to the expiration of the initial
period of ineligibility only if:
    (1) The denial or revocation of certification in accordance with
the provisions of paragraph (a)(3) of this section is for a period of
one year or less;
    (2) Certification is denied or revoked for reasons other than
noncompliance with Sec.  219.101 of this chapter;
    (3) The person is evaluated by a railroad officer and determined to
have received adequate remedial training;
    (4) The person successfully completes any mandatory program of
training or retraining, if that is determined to be necessary by the
railroad prior to return to service; and
    (5) At least one half the pertinent period of ineligibility
specified in paragraph (a)(3) of this section has elapsed.

Sec.  242.407  Process for revoking certification.

    (a) Except as provided for in Sec.  242.115(g), a railroad that
certifies or recertifies a person as a conductor and, during the period
that certification is valid, acquires reliable information regarding
violation(s) of Sec.  242.403(e) or Sec.  242.115(e) of this chapter
shall revoke the person's conductor certificate.
    (b) Pending a revocation determination under this section, the
railroad shall:
    (1) Upon receipt of reliable information regarding violation(s) of
Sec.  242.403(e) or Sec.  242.115(e) of this chapter, immediately
suspend the person's certificate;
    (2) Prior to or upon suspending the person's certificate, provide
notice of the reason for the suspension, the pending revocation, and an
opportunity for a hearing before a presiding officer other than the
investigating officer. The notice may initially be given either orally
or in writing. If given orally, it must be confirmed in writing and the
written confirmation must be made promptly. Written confirmation which
conforms to the notification provisions of an applicable collective
bargaining agreement shall be deemed to satisfy the written
confirmation requirements of this section. In the absence of an
applicable collective bargaining agreement provision, the written
confirmation must be made within 96 hours.
    (3) Convene the hearing within the deadline prescribed by either
paragraph (c)(1) of this section or the applicable collective
bargaining agreement as permitted under paragraph (d) of this section;
    (4) No later than the convening of the hearing and notwithstanding
the terms of an applicable collective bargaining agreement, the
railroad convening the hearing shall provide the person with a copy of
the written information and list of witnesses the railroad will present
at the hearing. If requested, a recess to the start of the hearing will
be granted if that information is not provided until just prior to the
convening of the hearing. If the information was provided through
statements of an employee of the convening railroad, the railroad will
make that employee available for examination during the hearing
required by paragraph (b)(3) of this section. Examination may be
telephonic where it is impractical to provide the witness at the
hearing.
    (5) Determine, on the record of the hearing, whether the person no
longer meets the certification requirements of this part stating
explicitly the basis for the conclusion reached;
    (6) When appropriate, impose the pertinent period of revocation
provided for in Sec.  242.405 or Sec.  242.115; and
    (7) Retain the record of the hearing for 3 years after the date the
decision is rendered.
    (c) Except as provided for in paragraphs (d), (f), (i), and (j) of
this section, a hearing required by this section shall be conducted in
accordance with the following procedures:
    (1) The hearing shall be convened within 10 days of the date the
certificate is suspended unless the conductor requests or consents to
delay in the start of the hearing.
    (2) The hearing shall be conducted by a presiding officer, who can
be any proficient person authorized by the railroad other than the
investigating officer.

    (3) The presiding officer will exercise the powers necessary to
regulate the conduct of the hearing for the purpose of achieving a
prompt and fair determination of all material issues in controversy.
    (4) The presiding officer shall convene and preside over the
hearing.
    (5) Testimony by witnesses at the hearing shall be recorded
verbatim.
    (6) All relevant and probative evidence shall be received unless
the presiding officer determines the evidence to be unduly repetitive
or so extensive and lacking in relevancy that its admission would
impair the prompt, orderly, and fair resolution of the proceeding.
    (7) The presiding officer may:
    (i) Adopt any needed procedures for the submission of evidence in
written form;
    (ii) Examine witnesses at the hearing;
    (iii) Convene, recess, adjourn or otherwise regulate the course of
the hearing; and
    (iv) Take any other action authorized by or consistent with the
provisions of this part and permitted by law that may expedite the
hearing or aid in the disposition of the proceeding.
    (8) Parties may appear and be heard on their own behalf or through
designated representatives. Parties may offer relevant evidence
including testimony and may conduct such examination of witnesses as
may be required for a full disclosure of the relevant facts.
    (9) The record in the proceeding shall be closed at the conclusion
of the hearing unless the presiding officer allows additional time for
the submission of information. In such instances the record shall be
left open for such time as the presiding officer grants for that
purpose.
    (10) No later than 10 days after the close of the record, a
railroad official, other than the investigating officer, shall prepare
and sign a written decision in the proceeding.
    (11) The decision shall:
    (i) Contain the findings of fact as well as the basis therefor,
concerning all material issues of fact presented on the record and
citations to all applicable railroad rules and practices;
    (ii) State whether the railroad official found that a revocable
event occurred and the applicable period of revocation with a citation
to 49 CFR 242.405 (Periods of revocation); and
    (iii) Be served on the employee and the employee's representative,
if any, with the railroad to retain proof of that service.
    (12) The railroad shall have the burden of proving that the
conductor's conduct was not in compliance with the applicable railroad
operating rule or practice or part 219 of this chapter.
    (d) A hearing required by this section which is conducted in a
manner that conforms procedurally to the applicable collective
bargaining agreement shall be deemed to satisfy the procedural
requirements of this section.
    (e) A hearing required under this section may be consolidated with
any disciplinary or other hearing arising from the same facts, but in
all instances a railroad official, other than the investigating
officer, shall make separate findings as to the revocation required
under this section.
    (f) A person may waive the right to the hearing provided under this
section. That waiver shall:
    (1) Be made in writing;
    (2) Reflect the fact that the person has knowledge and
understanding of these rights and voluntarily surrenders them; and
    (3) Be signed by the person making the waiver.
    (g) A railroad that has relied on the certification by another
railroad under the provisions of Sec.  242.127 or Sec.  242.301, shall
revoke its certification if, during the period that certification is
valid, the railroad acquires information which convinces it that
another railroad has revoked its certification in accordance with the
provisions of this section. The requirement to provide a hearing under
this section is satisfied when any single railroad holds a hearing and
no additional hearing is required prior to a revocation by more than
one railroad arising from the same facts.
    (h) The period of certificate suspension prior to the commencement
of a hearing required under this section shall be credited towards
satisfying any applicable revocation period imposed in accordance with
the provisions of Sec.  242.405.
    (i) A railroad:
    (1) Shall not revoke the person's certification as provided for in
paragraph (a) of this section if sufficient evidence exists to
establish that an intervening cause prevented or materially impaired
the conductor's ability to comply with the railroad operating rule or
practice which constitutes a violation under Sec.  242.403(e)(1)
through (e)(11); or
    (2) May decide not to revoke the person's certification as provided
for in paragraph (a) of this section if sufficient evidence exists to
establish that the violation of Sec.  242.403(e)(1) through (11) was of
a minimal nature and had no direct or potential effect on rail safety.
    (j) The railroad shall place the relevant information in the
records maintained in compliance with Sec.  242.215 for Class I
(including the National Railroad Passenger Corporation) and Class II
railroads, and Sec.  242.203 for Class III railroads if sufficient
evidence meeting the criteria provided in paragraph (i) of this
section, becomes available either:
    (1) Prior to a railroad's action to suspend the certificate as
provided for in paragraph (b)(1) of this section; or
    (2) Prior to the convening of the hearing provided for in this
section;
    (k) Provided that the railroad makes a good faith determination
after a reasonable inquiry that the course of conduct provided for in
paragraph (i) of this section is appropriate, the railroad which does
not suspend a conductor's certification, as provided for in paragraph
(b) of this section, is not in violation of paragraph (a) of this
section.

Subpart F--Dispute Resolution Procedures

Sec.  242.501  Review board established.

    (a) Any person who has been denied certification, denied
recertification, or has had his or her certification revoked and
believes that a railroad incorrectly determined that he or she failed
to meet the certification requirements of this regulation when making
the decision to deny or revoke certification, may petition the Federal
Railroad Administrator to review the railroad's decision.
    (b) The Administrator has delegated initial responsibility for
adjudicating such disputes to the Operating Crew Review Board.
    (c) The Operating Crew Review Board shall be composed of employees
of the Federal Railroad Administration selected by the Administrator.

Sec.  242.503  Petition requirements.

    (a) To obtain review of a railroad's decision to deny
certification, deny recertification, or revoke certification, a person
shall file a petition for review that complies with this section.
    (b) Each petition shall:
    (1) Be in writing;
    (2) Be filed with the Docket Clerk, U.S. Department of
Transportation, Docket Operations (M-30), West Building Ground Floor,
Room W12-140, 1200 New Jersey Avenue SE., Washington, DC 20590. The
form of such request may be in written or electronic form consistent
with the standards and requirements established by the Federal Docket
Management System and posted on its Web site at http://www.regulations.gov.
    (3) Contain all available information that the person thinks
supports the

person's belief that the railroad acted improperly, including:
    (i) The petitioner's full name;
    (ii) The petitioner's current mailing address;
    (iii) The petitioner's daytime telephone number;
    (iv) The petitioner's email address (if available);
    (v) The name and address of the railroad; and
    (vi) The facts that the petitioner believes constitute the improper
action by the railroad, specifying the locations, dates, and identities
of all persons who were present or involved in the railroad's actions
(to the degree known by the petitioner);
    (4) Explain the nature of the remedial action sought;
    (5) Be supplemented by a copy of all written documents in the
petitioner's possession or reasonably available to the petitioner that
document that railroad's decision; and
    (6) Be filed in a timely manner.
    (7) Be supplemented, if requested by the Operating Crew Review
Board, with a copy of the information under 49 CFR 40.329 that
laboratories, medical review officers, and other service agents are
required to release to employees. The petitioner must provide written
explanation in response to an Operating Crew Review Board request if
written documents that should be reasonably available to the petitioner
are not supplied.
    (c) A petition seeking review of a railroad's decision to deny
certification or recertification or revoke certification in accordance
with the procedures required by Sec.  242.407 filed with FRA more than
120 days after the date the railroad's denial or revocation decision
was served on the petitioner will be denied as untimely except that the
Operating Crew Review Board for cause shown may extend the petition
filing period at any time in its discretion:
    (1) Provided the request for extension is filed before the
expiration of the period provided in this paragraph; or
    (2) Provided that the failure to timely file was the result of
excusable neglect.
    (d) A party aggrieved by a Board decision to deny a petition as
untimely or not in compliance with the requirements of this section may
file an appeal with the Administrator in accordance with Sec.  242.511.

Sec.  242.505  Processing certification review petitions.

    (a) Each petition shall be acknowledged in writing by FRA. The
acknowledgment shall contain the docket number assigned to the petition
and a statement of FRA's intention that the Board will attempt to
render a decision on this petition within 180 days from the date that
the railroad's response is received or from the date upon which the
railroad's response period has lapsed pursuant to paragraph (c) of this
section.
    (b) Upon receipt of the petition, FRA will notify the railroad that
it has received the petition and where the petition may be accessed.
    (c) Within 60 days from the date of the notification provided in
paragraph (b) of this section, the railroad may submit to FRA any
information that the railroad considers pertinent to the petition. Late
filings will only be considered to the extent practicable.
    (d) A railroad that submits such information shall:
    (1) Identify the petitioner by name and the docket number of the
review proceeding and provide the railroad's email address (if
available);
    (2) Serve a copy of the information being submitted to FRA to the
petitioner and petitioner's representative, if any; and
    (3) File the information with the Docket Clerk, U.S. Department of
Transportation, Docket Operations (M-30), West Building Ground Floor,
Room W12-140, 1200 New Jersey Avenue SE., Washington, DC 20590. The
form of such information may be in written or electronic form
consistent with the standards and requirements established by the
Federal Docket Management System and posted on its Web site at http://www.regulations.gov.
    (e) Each petition will then be referred to the Operating Crew
Review Board for a decision.
    (f) Based on the record, the Board shall have the authority to
grant, deny, dismiss or remand the petition.
    (g) If the Board finds that there is insufficient basis for
granting or denying the petition, the Board shall issue an order
affording the parties an opportunity to provide additional information
or argument consistent with its findings.
    (h) Standard of review for factual issues: When considering factual
issues, the Board will determine whether there is substantial evidence
to support the railroad's decision, and a negative finding is grounds
for granting the petition.
    (i) Standard of review for procedural issues: When considering
procedural issues, the Board will determine whether substantial harm
was caused the petitioner by virtue of the failure to adhere to the
dictated procedures for making the railroad's decision. A finding of
substantial harm is grounds for reversing the railroad's decision. To
establish grounds upon which the Board may grant relief, Petitioner
must show:
    (1) That procedural error occurred, and
    (2) The procedural error caused substantial harm.
    (j) Standard of review for legal issues: Pursuant to its reviewing
role, the Board will consider whether the railroad's legal
interpretations are correct based on a de novo review.
    (k) The Board will determine whether the denial or revocation of
certification or recertification was improper under this regulation
(i.e., based on an incorrect determination that the person failed to
meet the certification requirements of this regulation) and grant or
deny the petition accordingly. The Board will not otherwise consider
the propriety of a railroad's decision, i.e., it will not consider
whether the railroad properly applied its own more stringent
requirements.
    (l) The Board's written decision shall be served on the petitioner,
including the petitioner's representative, if any, and the railroad.

Sec.  242.507  Request for a hearing.

    (a) If adversely affected by the Operating Crew Review Board's
decision, either the petitioner before the Board or the railroad
involved shall have a right to an administrative proceeding as
prescribed by Sec.  242.509.
    (b) To exercise that right, the adversely affected party shall,
within 20 days of service of the Board's decision on that party, file a
written request with the Docket Clerk, U.S. Department of
Transportation, Docket Operations (M-30), West Building Ground Floor,
Room W12-140, 1200 New Jersey Avenue SE., Washington, DC 20590. The
form of such request may be in written or electronic form consistent
with the standards and requirements established by the Federal Docket
Management System and posted on its Web site at http://www.regulations.gov.
    (c) If a party fails to request a hearing within the period
provided in paragraph (b) of this section, the Operating Crew Review
Board's decision will constitute final agency action.
    (d) If a party elects to request a hearing, that person shall
submit a written request to the Docket Clerk containing the following:
    (1) The name, address, telephone number, and email address (if
available) of the respondent and the requesting party's designated
representative, if any;
    (2) The specific factual issues, industry rules, regulations, or
laws that the requesting party alleges need to be examined in
connection with the certification decision in question; and

    (3) The signature of the requesting party or the requesting party's
representative, if any.
    (e) Upon receipt of a hearing request complying with paragraph (d)
of this section, FRA shall arrange for the appointment of a presiding
officer who shall schedule the hearing for the earliest practicable
date.

Sec.  242.509  Hearings.

    (a) An administrative hearing for a conductor certification
petition shall be conducted by a presiding officer, who can be any
person authorized by the Administrator, including an administrative law
judge.
    (b) The presiding officer may exercise the powers of the
Administrator to regulate the conduct of the hearing for the purpose of
achieving a prompt and fair determination of all material issues in
controversy.
    (c) The presiding officer shall convene and preside over the
hearing. The hearing shall be a de novo hearing to find the relevant
facts and determine the correct application of this part to those
facts. The presiding officer may determine that there is no genuine
issue covering some or all material facts and limit evidentiary
proceedings to any issues of material fact as to which there is a
genuine dispute.
    (d) The presiding officer may authorize discovery of the types and
quantities which in the presiding officer's discretion will contribute
to a fair hearing without unduly burdening the parties. The presiding
officer may impose appropriate non-monetary sanctions, including
limitations as to the presentation of evidence and issues, for any
party's willful failure or refusal to comply with approved discovery
requests.
    (e) Every petition, motion, response, or other authorized or
required document shall be signed by the party filing the same, or by a
duly authorized officer or representative of record, or by any other
person. If signed by such other person, the reason therefor must be
stated and the power of attorney or other authority authorizing such
other person to subscribe the document must be filed with the document.
The signature of the person subscribing any document constitutes a
certification that he or she has read the document; that to the best of
his or her knowledge, information and belief every statement contained
in the document is true and no such statements are misleading; and that
it is not interposed for delay or to be vexatious.
    (f) After the request for a hearing is filed, all documents filed
or served upon one party must be served upon all parties. Each party
may designate a person upon whom service is to be made when not
specified by law, regulation, or directive of the presiding officer. If
a party does not designate a person upon whom service is to be made,
then service may be made upon any person having subscribed to a
submission of the party being served, unless otherwise specified by
law, regulation, or directive of the presiding officer. Proof of
service shall accompany all documents when they are tendered for
filing.
    (g) If any document initiating, filed, or served in, a proceeding
is not in substantial compliance with the applicable law, regulation,
or directive of the presiding officer, the presiding officer may strike
or dismiss all or part of such document, or require its amendment.
    (h) Any party to a proceeding may appear and be heard in person or
by an authorized representative.
    (i) Any person testifying at a hearing or deposition may be
accompanied, represented, and advised by an attorney or other
representative, and may be examined by that person.
    (j) Any party may request to consolidate or separate the hearing of
two or more petitions by motion to the presiding officer, when they
arise from the same or similar facts or when the matters are for any
reason deemed more efficiently heard together.
    (k) Except as provided in Sec.  242.507(c) and paragraph (u)(4) of
this section, whenever a party has the right or is required to take
action within a period prescribed by this part, or by law, regulation,
or directive of the presiding officer, the presiding officer may extend
such period, with or without notice, for good cause, provided another
party is not substantially prejudiced by such extension. A request to
extend a period which has already expired may be denied as untimely.
    (l) An application to the presiding officer for an order or ruling
not otherwise specifically provided for in this part shall be by
motion. The motion shall be filed with the presiding officer and, if
written, served upon all parties. All motions, unless made during the
hearing, shall be written. Motions made during hearings may be made
orally on the record, except that the presiding officer may direct that
any oral motion be reduced to writing. Any motion shall state with
particularity the grounds therefor and the relief or order sought, and
shall be accompanied by any affidavits or other evidence desired to be
relied upon which is not already part of the record. Any matter
submitted in response to a written motion must be filed and served
within fourteen (14) days of the motion, or within such other period as
directed by the presiding officer.
    (m) Testimony by witnesses at the hearing shall be given under oath
and the hearing shall be recorded verbatim. The presiding officer shall
give the parties to the proceeding adequate opportunity during the
course of the hearing for the presentation of arguments in support of
or in opposition to motions, and objections and exceptions to rulings
of the presiding officer. The presiding officer may permit oral
argument on any issues for which the presiding officer deems it
appropriate and beneficial. Any evidence or argument received or
proffered orally shall be transcribed and made a part of the record.
Any physical evidence or written argument received or proffered shall
be made a part of the record, except that the presiding officer may
authorize the substitution of copies, photographs, or descriptions,
when deemed to be appropriate.
    (n) The presiding officer shall employ the Federal Rules of
Evidence for United States Courts and Magistrates as general guidelines
for the introduction of evidence. Notwithstanding paragraph (m) of this
section, all relevant and probative evidence shall be received unless
the presiding officer determines the evidence to be unduly repetitive
or so extensive and lacking in relevancy that its admission would
impair the prompt, orderly, and fair resolution of the proceeding.
    (o) The presiding officer may:
    (1) Administer oaths and affirmations;
    (2) Issue subpoenas as provided for in Sec.  209.7 of this chapter;
    (3) Adopt any needed procedures for the submission of evidence in
written form;
    (4) Examine witnesses at the hearing;
    (5) Convene, recess, adjourn or otherwise regulate the course of
the hearing; and
    (6) Take any other action authorized by or consistent with the
provisions of this part and permitted by law that may expedite the
hearing or aid in the disposition of the proceeding.
    (p) The petitioner before the Operating Crew Review Board, the
railroad involved in taking the certification action, and FRA shall be
parties at the hearing. All parties may participate in the hearing and
may appear and be heard on their own behalf or through designated
representatives. All parties may offer relevant evidence, including
testimony, and may conduct such cross-examination of witnesses as may
be required to make a record of the relevant facts.

    (q) The party requesting the administrative hearing shall be the
``hearing petitioner.'' The hearing petitioner shall have the burden of
proving its case by a preponderance of the evidence. Hence, if the
hearing petitioner is the railroad involved in taking the certification
action, that railroad will have the burden of proving that its decision
to deny certification, deny recertification, or revoke certification
was correct. Conversely, if the petitioner before the Operating Crew
Review Board is the hearing petitioner, that person will have the
burden of proving that the railroad's decision to deny certification,
deny recertification, or revoke certification was incorrect. The party
who is not the hearing petitioner will be a respondent.
    (r) FRA will be a mandatory party to the administrative hearing. At
the start of each proceeding, FRA will be a respondent.
    (s) The record in the proceeding shall be closed at the conclusion
of the evidentiary hearing unless the presiding officer allows
additional time for the submission of additional evidence. In such
instances the record shall be left open for such time as the presiding
officer grants for that purpose.
    (t) At the close of the record, the presiding officer shall prepare
a written decision in the proceeding.
    (u) The decision:
    (1) Shall contain the findings of fact and conclusions of law, as
well as the basis for each concerning all material issues of fact or
law presented on the record;
    (2) Shall be served on the hearing petitioner and all other parties
to the proceeding;
    (3) Shall not become final for 35 days after issuance;
    (4) Constitutes final agency action unless an aggrieved party files
an appeal within 35 days after issuance; and
    (5) Is not precedential.

Sec.  242.511  Appeals.

    (a) Any party aggrieved by the presiding officer's decision may
file an appeal. The appeal must be filed within 35 days of issuance of
the decision with the Federal Railroad Administrator, 1200 New Jersey
Avenue SE., Washington, DC 20590 and with the Docket Clerk, U.S.
Department of Transportation, Docket Operations (M-30), West Building
Ground Floor, Room W12-140, 1200 New Jersey Avenue SE., Washington, DC
20590. A copy of the appeal shall be served on each party. The appeal
shall set forth objections to the presiding officer's decision,
supported by reference to applicable laws and regulations and with
specific reference to the record. If no appeal is timely filed, the
presiding officer's decision constitutes final agency action.
    (b) A party may file a reply to the appeal within 25 days of
service of the appeal. The reply shall be supported by reference to
applicable laws and regulations and with specific reference to the
record, if the party relies on evidence contained in the record.
    (c) The Administrator may extend the period for filing an appeal or
a response for good cause shown, provided that the written request for
extension is served before expiration of the applicable period provided
in this section.
    (d) The Administrator has sole discretion to permit oral argument
on the appeal. On the Administrator's own initiative or written motion
by any party, the Administrator may grant the parties an opportunity
for oral argument.
    (e) The Administrator may remand, vacate, affirm, reverse, alter or
modify the decision of the presiding officer and the Administrator's
decision constitutes final agency action except where the terms of the
Administrator's decision (for example, remanding a case to the
presiding officer) show that the parties' administrative remedies have
not been exhausted.
    (f) An appeal from an Operating Crew Review Board decision pursuant
to Sec.  242.503(d) must be filed within 35 days of issuance of the
decision with the Federal Railroad Administrator, 1200 New Jersey
Avenue SE., Washington, DC 20590 and with the Docket Clerk, U.S.
Department of Transportation, Docket Operations (M-30), West Building
Ground Floor, Room W12-140, 1200 New Jersey Avenue SE., Washington, DC
20590. A copy of the appeal shall be served on each party. The
Administrator may affirm or vacate the Board's decision, and may remand
the petition to the Board for further proceedings. An Administrator's
decision to affirm the Board's decision constitutes final agency
action.

Appendix A to Part 242--Schedule of Civil Penalties

    A penalty may be assessed against an individual only for a
willful violation. The Administrator reserves the right to assess a
penalty of up to $100,000 for any violation where circumstances
warrant. See 49 CFR part 209, Appendix A.

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

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

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

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

    \1\ A penalty may be assessed against an individual only for a
willful violation. The Administrator reserves the right to assess a
penalty of up to $100,000 for any violation where circumstances
warrant. See 49 CFR part 209, appendix A.
---------------------------------------------------------------------------

Appendix B to Part 242--Procedures for Submission and Approval of
Conductor Certification Programs

    This appendix establishes procedures for the submission and
approval of a railroad's program concerning the training, testing,
and evaluating of persons seeking certification or recertification
as a conductor in accordance with the requirements of this part. It
also contains guidance on how FRA will exercise its review and
approval responsibilities.

Submission by a Railroad

    As provided for in Sec.  242.101, each railroad must have a
program for determining the certification of each person it permits
or requires to perform as a conductor or as a passenger conductor.
Each railroad must

submit its individual program to FRA for approval as provided for in
Sec.  242.103. Each program must be accompanied by a request for
approval organized in accordance with this appendix. Requests for
approval must contain appropriate references to the relevant portion
of the program being discussed. Requests should be submitted in
writing on standard sized paper (8\1/2\ x 11) and can be in letter
or narrative format. The railroad's submission shall be sent to the
Associate Administrator for Railroad Safety/Chief Safety Officer,
FRA. The mailing address for FRA is 1200 New Jersey Avenue SE.,
Washington, DC 20590. Simultaneous with its filing with the FRA,
each railroad must serve a copy of its submission on the president
of each labor organization that represents the railroad's employees
subject to this part.
    Each railroad is authorized to file by electronic means any
program submissions required under this part. Prior to any person
submitting a railroad's first program submission electronically, the
person shall provide the Associate Administrator with the following
information in writing:
    (1) The name of the railroad;
    (2) The names of two individuals, including job titles, who will
be the railroad's points of contact and will be the only individuals
allowed access to FRA's secure document submission site;
    (3) The mailing addresses for the railroad's points of contact;
    (4) The railroad's system or main headquarters address located
in the United States;
    (5) The email addresses for the railroad's points of contact;
and
    (6) The daytime telephone numbers for the railroad's points of
contact.
    A request for electronic submission or FRA review of written
materials shall be addressed to the Associate Administrator for
Railroad Safety/Chief Safety Officer, Federal Railroad
Administration, 1200 New Jersey Avenue SE., Washington, DC 20590.
Upon receipt of a request for electronic submission that contains
the information listed above, FRA will then contact the requestor
with instructions for electronically submitting its program.
    A railroad that electronically submits an initial program or new
portions or revisions to an approved program required by this part
shall be considered to have provided its consent to receive approval
or disapproval notices from FRA by email. FRA may electronically
store any materials required by this part regardless of whether the
railroad that submits the materials does so by delivering the
written materials to the Associate Administrator and opts not to
submit the materials electronically. A railroad that opts not to
submit the materials required by this part electronically, but
provides one or more email addresses in its submission, shall be
considered to have provided its consent to receive approval or
disapproval notices from FRA by email or mail.

Organization of the Submission

    Each request should be organized to present the required
information in the following standardized manner. Each section must
begin by giving the name, title, telephone number, and mailing
address of the person to be contacted concerning the matters
addressed by that section. If a person is identified in a prior
section, it is sufficient to merely repeat the person's name in a
subsequent section.

Section 1 of the Submission: General Information and Elections

    The first section of the request must contain the name of the
railroad, the person to be contacted concerning the request
(including the person's name, title, telephone number, and mailing
address) and a statement electing either to accept responsibility
for educating previously untrained persons to be certified
conductors or recertify only conductors previously certified by
other railroads. See Sec.  242.103(b).
    If a railroad elects not to provide initial conductor training,
the railroad is obligated to state so in its submission. A railroad
that makes this election will be limited to recertifying persons
initially certified by another railroad. A railroad that makes this
election can rescind it by obtaining FRA approval of a modification
of its program. See Sec.  242.103(f).
    If a railroad elects to accept responsibility for training
persons not previously trained to be conductors, the railroad is
obligated to submit information on how such persons will be trained
but has no duty to actually conduct such training. A railroad that
elects to accept the responsibility for the training of such persons
may authorize another railroad or a non-railroad entity to perform
the actual training effort. The electing railroad remains
responsible for assuring that such other training providers adhere
to the training program the railroad submits. This section must also
state which types of service the railroad will employ. See Sec.
242.107.

Section 2 of the Submission: Training Persons Previously Certified

    The second section of the request must contain information
concerning the railroad's program for training previously certified
conductors. As provided for in Sec.  242.119(l) each railroad must
have a program for the ongoing education of its conductors to assure
that they maintain the necessary knowledge concerning operating
rules and practices, familiarity with physical characteristics, and
relevant Federal safety rules.
    Section 242.119(l) provides a railroad latitude to select the
specific subject matter to be covered, duration of the training,
method of presenting the information, and the frequency with which
the training will be provided. The railroad must describe in this
section how it will use that latitude to assure that its conductors
remain knowledgeable concerning the safe discharge of their
responsibilities so as to comply with the performance standard set
forth in Sec.  242.119(l). This section must contain sufficient
detail to permit effective evaluation of the railroad's training
program in terms of the subject matter covered, the frequency and
duration of the training sessions, the training environment employed
(for example, use of classroom, use of computer based training, use
of film or slide presentations, and use of on-job-training) and
which aspects of the program are voluntary or mandatory.
    Time and circumstances have the capacity to diminish both
abstract knowledge and the proper application of that knowledge to
discrete events. Time and circumstances also have the capacity to
alter the value of previously obtained knowledge and the application
of that knowledge. In formulating how it will use the discretion
being afforded, each railroad must design its program to address
both loss of retention of knowledge and changed circumstances, and
this section of the submission to FRA must address these matters.
    For example, conductors need to have their fundamental knowledge
of operating rules and procedures refreshed periodically. Each
railroad needs to advise FRA how that need is satisfied in terms of
the interval between attendance at such training, the nature of the
training being provided, and methods for conducting the training. A
matter of particular concern to FRA is how each railroad acts to
assure that conductors remain knowledgeable about the territory over
which a conductor is authorized to perform but from which the
conductor has been absent. The railroad must have a plan for the
familiarization training that addresses the question of how long a
person can be absent before needing more education and, once that
threshold is reached, how the person will acquire the needed
education. Similarly, the program must address how the railroad
responds to changes such as the introduction of new technology, new
operating rule books, or significant changes in operations including
alteration in the territory conductors are authorized to work over.

Section 3 of the Submission: Testing and Evaluating Persons Previously
Certified

    The third section of the request must contain information
concerning the railroad's program for testing and evaluating
previously certified conductors. As provided for in Sec.  242.121,
each railroad must have a program for the ongoing testing and
evaluating of its conductors to assure that they have the necessary
knowledge and skills concerning operating rules and practices,
familiarity with physical characteristics of the territory, and
relevant Federal safety rules. Similarly, each railroad must have a
program for ongoing testing and evaluating to assure that its
conductors have the necessary vision and hearing acuity as provided
for in Sec.  242.117.
    Section 242.121 requires that a railroad rely on written
procedures for determining that each person can demonstrate his or
her knowledge of the railroad's rules and practices and skill at
applying those rules and practices for the safe performance as a
conductor. Section 242.121 directs that, when seeking a
demonstration of the person's knowledge, a railroad must employ a
written test that contains objective questions and answers and
covers the following subject matters: (i) Safety and operating
rules; (ii) timetable instructions; (iii) physical characteristics
of the territory; and (iv) compliance with all applicable Federal
regulations. The test must accurately measure the person's knowledge
of all of these areas.

    Section 242.121 provides a railroad latitude in selecting the
design of its own testing policies (including the number of
questions each test will contain, how each required subject matter
will be covered, weighting (if any) to be given to particular
subject matter responses, selection of passing scores, and the
manner of presenting the test information). The railroad must
describe in this section how it will use that latitude to assure
that its conductors will demonstrate their knowledge concerning the
safe discharge of their responsibilities so as to comply with the
performance standard set forth in Sec.  242.121.
    Section 242.117 provides a railroad latitude to rely on the
professional medical opinion of the railroad's medical examiner
concerning the ability of a person with substandard acuity to safely
perform as a conductor. The railroad must describe in this section
how it will assure that its medical examiner has sufficient
information concerning the railroad's operations to effectively form
appropriate conclusions about the ability of a particular individual
to safely perform as a conductor.

Section 4 of the Submission: Training, Testing, and Evaluating Persons
Not Previously Certified

    Unless a railroad has made an election not to accept
responsibility for conducting the initial training of persons to be
conductors, the fourth section of the request must contain
information concerning the railroad's program for educating,
testing, and evaluating persons not previously trained as
conductors. As provided for in Sec.  242.119(d), a railroad that is
issuing an initial certification to a person to be a conductor must
have a program for the training, testing, and evaluating of its
conductors to assure that they acquire the necessary knowledge and
skills concerning operating rules and practices, familiarity with
physical characteristics of the territory, and relevant Federal
safety rules.
    Section 242.119 establishes a performance standard and gives a
railroad latitude in selecting how it will meet that standard. A
railroad must describe in this section how it will use that latitude
to assure that its conductors will acquire sufficient knowledge and
skill and demonstrate their knowledge and skills concerning the safe
discharge of their responsibilities. This section must contain the
same level of detail concerning initial training programs as that
described for each of the components of the overall program
contained in sections 2 through 4 of this Appendix. A railroad that
plans to accept responsibility for the initial training of
conductors may authorize another railroad or a non-railroad entity
to perform the actual training effort. The authorizing railroad may
submit a training program developed by that authorized trainer but
the authorizing railroad remains responsible for assuring that such
other training providers adhere to the training program submitted.
Railroads that elect to rely on other entities, to conduct training
away from the railroad's own territory, must indicate how the
student will be provided with the required familiarization with the
physical characteristics for its territory.

Section 5 of the Submission: Monitoring Operational Performance by
Certified Conductors

    The fifth section of the request must contain information
concerning the railroad's program for monitoring the operation of
its certified conductors. As provided for in Sec.  242.123, each
railroad must have a program for the ongoing monitoring of its
conductors to assure that they perform in conformity with the
railroad's operating rules and practices and relevant Federal safety
rules.

Section 6 of the Submission: Procedures for Routine Administration of
the Conductor Certification Program

    The final section of the request must contain a summary of how
the railroad's program and procedures will implement the various
specific aspects of the regulatory provisions that relate to routine
administration of its certification program for conductors. At a
minimum this section needs to address the procedural aspects of the
rule's provisions identified in the following paragraph.
    Section 242.109 provides that each railroad must have procedures
for review and comment on adverse prior safety conduct, but allows
the railroad to devise its own system within generalized parameters.
Sections 242.111, 242.115 and 242.403 require a railroad to have
procedures for evaluating data concerning prior safety conduct as a
motor vehicle operator and as railroad workers, yet leave selection
of many details to the railroad. Sections 242.109, 242.201, and
242.401 place a duty on the railroad to make a series of
determinations but allow the railroad to select what procedures it
will employ to assure that all of the necessary determinations have
been made in a timely fashion; who will be authorized to conclude
that person will or will be not certified; and how it will
communicate adverse decisions. Documentation of the factual basis
the railroad relied on in making determinations under Sec. Sec.
242.109, 242.117, 242.119 and 242.121 is required, but these
sections permit the railroad to select the procedures it will employ
to accomplish compliance with these provisions. Sections 242.125 and
242.127 permit reliance on certification/qualification
determinations made by other entities and permit a railroad latitude
in selecting the procedures it will employ to assure compliance with
these provisions. Similarly, Sec.  242.301 permits the use of
railroad selected procedures to meet the requirements for
certification of conductors performing service in joint operations
territory. Sections 242.211 and 242.407 allow a railroad a certain
degree of discretion in complying with the requirements for
replacing lost certificates or the conduct of certification
revocation proceedings.
    This section of the request should outline in summary fashion
the manner in which the railroad will implement its program so as to
comply with the specific aspects of each of the rule's provisions
described in the preceding paragraph.

FRA Review

    The submissions made in conformity with this appendix will be
deemed approved within 30 days after the required filing date or the
actual filing date whichever is later. No formal approval document
will be issued by FRA. FRA has taken the responsibility for
notifying a railroad when it detects problems with the railroad's
program. FRA retains the right to disapprove a program that has
obtained approval due to the passage of time as provided for in
section Sec.  242.103.
    Rather than establish rigid requirements for each element of the
program, FRA has given railroads discretion to select the design of
their individual programs within a specified context for each
element. The rule, however, provides a good guide to the
considerations that should be addressed in designing a program that
will meet the performance standards of this rule.
    In reviewing program submissions, FRA will focus on the degree
to which a particular program deviates from the norms identified in
its rule. To the degree that a particular program submission
materially deviates from the norms set out in its rule, FRA's review
and approval process will be focused on determining the validity of
the reasoning relied on by a railroad for selecting its alternative
approach and the degree to which the alternative approach is likely
to be effective in producing conductors who have the knowledge and
ability to safely perform as conductors.

Appendix C to Part 242--Procedures for Obtaining and Evaluating Motor
Vehicle Driving Record Data

    The purpose of this appendix is to outline the procedures
available to individuals and railroads for complying with the
requirements of Sec. Sec.  242.109 and 242.111 of this part. Those
provisions require that railroads consider the motor vehicle driving
record of each person prior to issuing him or her certification or
recertification as a conductor.
    To fulfill that obligation, a railroad must review a
certification candidate's recent motor vehicle driving record.
Generally, that will be a single record on file with the state
agency that issued the candidate's current license. However, it can
include multiple records if the candidate has been issued a motor
vehicle driving license by more than one state agency or foreign
country.

Access to State Motor Vehicle Driving Record Data

    The right of railroad workers, their employers, or prospective
employers to have access to a state motor vehicle licensing agency's
data concerning an individual's driving record is controlled by
state law. Although many states have mechanisms through which
employers and prospective employers such as railroads can obtain
such data, there are some states in which privacy concerns make such
access very difficult or impossible. Since individuals generally are
entitled to obtain access to driving record data that will be relied
on by a state motor vehicle licensing agency when that agency is
taking action concerning their driving privileges, FRA places
responsibility on individuals, who want to serve as conductors to
request that their current state drivers

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.

[GRAPHIC] [TIFF OMITTED] TR09NO11.001

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