in 49 CFR part 220 (``Restrictions on Railroad Operating Employees' Use
of Cellular Telephones and Other Electronic Devices'') should
constitute a revocable event for conductors and locomotive engineers.
In the NPRM for 49 CFR part 220 (75 FR 27672, 27678 (May 18, 2010)),
FRA noted that it was ``considering amending 49 CFR part 240 * * * to
add violations of this subpart as a basis for revoking a locomotive
engineer's certification'' and requested comments on the issue.
However, since the issue deals with revocation of certification, FRA
believes that the issue is more appropriately addressed in the
conductor and locomotive engineer rules. Comments regarding whether FRA
should use its other enforcement tools (e.g., monetary civil penalty
against an individual, disqualification of an individual from
performing safety-sensitive service, etc.) instead of mandating
revocation would be particularly helpful as would comments describing
how a railroad would acquire the necessary evidence to revoke a
conductor's and/or locomotive engineer's certification for violation of
49 CFR part 220.
    Paragraph (e)(13) of this section, which does not have a
counterpart in part 240, would prohibit a railroad from denying or
revoking an employee's certification based upon additional conditions
or operational restrictions imposed pursuant to Sec.  242.107(d). Thus,
a railroad could not revoke a conductor's certificate for an alleged
violation of a railroad rule or practice that was more stringent than
the condition or restrictions required by this proposed part. In the
future, FRA expects to review whether a similar provision should also
apply to locomotive engineers.
    Paragraph (f) of this section proposes that if a single incident
contravenes more than one operating rule or practice listed in
paragraph (e) of this section, that event would be treated as a single
violation. Moreover, paragraph (f) proposes that a conductor may have
his or her certification revoked for violations that occur during
properly conducted operational compliance tests. However, violations
that occur during an improperly conducted operational compliance test
would not be considered for revocation purposes.
Section 242.405 Periods of Ineligibility\14\
---------------------------------------------------------------------------

    \14\ When considered by the Working Group and full RSAC, the
title of this section was ``Periods of revocation.'' FRA has
modified that title to describe more clearly what the section would
cover.
---------------------------------------------------------------------------

    This proposed section, derived from Sec.  240.117, describes how a
railroad would determine the period of ineligibility (e.g., for
revocation or denial of certification) that a conductor or conductor
candidate would have to undergo. With respect to revocation, this
section proposes that once a railroad has determined that a conductor
has failed to comply with its safety rule concerning one or more events
listed in Sec.  242.403(e), two consequences would occur. First, the
railroad would be required to revoke the

conductor's certification for a period of time provided in this
section. Second, that revocation would initiate a period during which
the conductor would be subject to an increasingly more severe response
if additional revocable events occur in the next 24 to 36 months.
    Except for incidents occurring on other than main track where
restricted speed or the operational equivalent is in effect, the
standard periods of revocation proposed in this section track the
periods provided in part 240: 1 event = revocation for 30 days; 2
events within 24 months of each other = 6 months; 3 events within 36
months of each other = 1 year; and 4 events within 36 months of each
other = 3 years. This section notes, however, that violations of Sec.
219.101 (Alcohol & Drugs) could result in different periods of
ineligibility and in those cases, the longest period of revocation
would control. FRA has included a table in Appendix E to this proposed
rule which provides the revocation periods in a spreadsheet-style form.
The table should be useful in determining the correct period of
revocation.
    The period of revocation in both part 240 and this proposed rule is
based on a floating window. Hence, under this proposed rule and part
240, if a second offense occurs 25 months after the first offense, the
revocation period would be the same as a first offense; however, if a
third offense occurs within 36 months of the first offense, the
revocation period would be one year. The anomaly will be that a
person's certificate could be revoked twice for one month under
paragraph (a)(3)(ii) of this section but that the third incident could
result in a one year revocation under paragraph (a)(3)(iv) of this
section without the benefit of the interim six month revocation period
under paragraph (a)(3)(iii).
    This section also contains two provisions which would reduce the
period of ineligibility if certain criteria are met. The first
provision, which is contained in paragraph (a)(3)(i) of this section,
proposes that ``on other than main track where restricted speed or the
operational equivalent thereof is in effect,'' the periods of
revocation for violations of certain provisions of Sec.  242.403(e)
shall be reduced by one half provided that another revocable event has
not occurred within the previous 12 months. That provision, which does
not have an equivalent provision in part 240, recognizes that some
violations which occur on other than main track where slower speeds are
in effect may pose less of a danger to safety than violations that
occur on main track and thus a reduced period of revocation is
warranted. The second provision, which may reduce the period of
ineligibility if certain criteria are met, is contained in paragraph
(c) of this section.\15\ That provision, which parallels Sec.
240.117(h), proposes that a person whose conductor certification is
denied or revoked would be eligible for grant or reinstatement of the
certificate prior to the expiration of the initial period of revocation
if, among other things, at least one half of the initial period of
ineligibility has elapsed.
---------------------------------------------------------------------------

    \15\ Following the Working Group meetings, FRA changed the word
``revocation'' in the beginning of paragraph (c) to the word
``ineligibility'' to accurately reflect the scope of that paragraph.
---------------------------------------------------------------------------

    In certain instances, both proposed provisions may apply to a
conductor who has had his or her certification revoked. For example, if
a conductor's certification is revoked for a violation of proposed
Sec.  242.403(e)(6) which occurred on other than main track where
restricted speed is in effect and it is the only revocation that the
conductor has ever had, then, under Sec.  242.405(a)(3)(i), the
revocation period would be 15 days. Moreover, if the conductor meets
the criteria in Sec.  242.405(c), then the conductor would be eligible
for reinstatement of his or her certificate in 8 days.\16\
---------------------------------------------------------------------------

    \16\ If, as in the example, the revocation calculation results
in any fraction of a day (e.g., 7.5 days), then round the number up.
Thus, the conductor in the example would be eligible for
reinstatement in 8 days.
---------------------------------------------------------------------------

    Paragraph (b) of this section proposes that all periods of
revocation may consist of training. While that provision is not
explicitly stated in part 240, it is certainly not prohibited and is
included in this proposed rule to make the rule clear.
Section 242.407 Process for Revoking Certification
    This proposed section, derived from 49 CFR 240.307, provides the
procedures a railroad would have to follow if it acquires reliable
information regarding a conductor's violation of Sec.  242.115(e) or
Sec.  242.403(e).
    Paragraph (b)(1) of this section provides that upon receipt of
reliable information regarding a violation of Sec.  242.403(e), a
railroad would have to suspend the person's certificate. Paragraph
(b)(2) provides that prior to or upon suspending the person's
certificate, the railroad would have to provide either oral or written
notice of the reason for the suspension, the pending revocation, and an
opportunity for a hearing. If the initial notice was verbal, then the
notice would have to be promptly confirmed in writing. The amount of
time the railroad has to confirm the notice in writing would depend on
whether or not a collective bargaining agreement is applicable. In the
absence of such an agreement, a railroad would have 96 hours to provide
this important information. Interested parties should note that if a
notice of suspension is amended after a hearing is convened and/or does
not contain citations to all railroad rules and practices that may
apply to a potentially revocable event, the Operating Crew Review
Board, if asked to review the revocation decision, might subsequently
find that that constituted procedural error pursuant to Sec.  242.505.
    Paragraphs (b)(3)-(b)(7) and paragraphs (c), (d), (e), and (f) of
this section provide the proposed requirements and procedures for
conducting or waiving a railroad hearing regarding the alleged
revocable event. Except for paragraph (b)(4), discussed below, those
proposed requirements mirror the hearing requirements in part 240.
    Although the requirements in paragraph (c) regarding the written
decision issued in a railroad hearing track the requirements in part
240, FRA is considering modifying those requirements to ensure that
clearer and more detailed decisions are issued. Clearer and more
detailed decisions would allow a conductor to understand exactly why
his or her certification was revoked and would allow the Operating Crew
Review Board to have a more detailed understanding of the case if it is
asked to review the revocation decision pursuant to subpart E of this
proposed rule. Specifically, FRA is considering requiring the decision
to: (1) State whether the railroad official found that a revocable
event occurred and the applicable period of revocation with a citation
to 49 CFR 242.405 (Periods of revocation); (2) contain an explanation
of the factual findings and citations to all applicable railroad rules
and practices; (3) not cite a railroad rule or practice that was not
cited in the written notice of suspension; and (4) be served on the
employee and the employee's representative, if any, with the railroad
to retain proof of that service. FRA welcomes comments on those
proposals.
    Pursuant to paragraph (b)(4) of this section, no later than the
convening of a hearing, the railroad convening the hearing would have
to provide the person with a copy of the written information and list
of witnesses the railroad would present at the hearing. If requested, a
recess to the start of the hearing would be granted if the copy of the
written information list of witnesses is not provided until just prior
to the

convening of the hearing. If the information that led to the suspension
of a conductor's certificate pursuant to Sec.  242.407(b)(1) was
provided through statements of an employee of the convening railroad,
the railroad would have to make that employee available for examination
during the hearing. Examination may be telephonic where it is
impractical to provide the witness at the hearing.
    The provisions in paragraph (b)(4) of this section were added to
address the concerns of some members of the Working Group that
engineers were not being provided with information and/or witnesses
necessary to defend themselves at the hearing under part 240.
Interested parties should note that even if a railroad conducts a
hearing pursuant to the procedures in an applicable collective
bargaining agreement pursuant to paragraph (d) of this section, the
railroad would still have to comply with the provisions of paragraph
(b)(4). It is FRA's understanding that, except for an employee of the
convening railroad whose statements led to a suspension under Sec.
242.407(b)(1), a railroad would not, in fact, be required to call to
testify every witness that it includes on the list provided pursuant to
paragraph (b)(4). If, for example, a railroad believes that it has
provided sufficient evidence during a hearing to prove its case and
that calling a witness on its list to testify would be unduly
repetitive, then the railroad would not be obligated to call that
witness. Of course, the opposing party could request that the witness
be produced to testify but the hearing officer would have the authority
pursuant to Sec.  242.407(c)(6) to determine whether the witness'
testimony would be unduly repetitive or so extensive and lacking in
relevancy that its admission would impair the prompt, orderly, and fair
resolution of the proceeding. FRA welcomes comments on its
understanding of paragraph (b)(4).
    Paragraph (g) would require a railroad to revoke an employee's
conductor certification if it discovers that another railroad has
revoked that person's conductor certification. The hearing requirement
in this proposed rule is satisfied when any single railroad holds a
revocation hearing.
    Paragraph (h) would credit the period of certificate suspension
prior to the commencement of a hearing required under this section
towards satisfying any applicable revocation period imposed in
accordance with the provisions of proposed Sec.  242.405.
    Paragraph (i) proposes two specific defenses for railroad
supervisors and hearing officers to consider when deciding whether to
suspend or revoke a person's certificate due to an alleged revocable
event. Pursuant to paragraph (i), either defense would have to be
proven by sufficient evidence.
    Paragraph (i)(1) of this section proposes that a person's
certificate would not be revoked when there is sufficient evidence of
an intervening cause that prevented or materially impaired the person's
ability to comply. For example, a railroad should consider assertions
that a conductor in the operating cab failed to take appropriate action
to prevent the engineer from failing to control the locomotive in
accordance with a signal indication that requires a complete stop
before passing it because of defective equipment. Similar to the
defense of defective equipment, the actions of other people could
sometimes be an intervening cause. For instance, a dispatcher or a
train crew member could relay incorrect information to the conductor
who reasonably relied on it in making a prohibited train movement.
    Conductors and railroad managers need to note that not all
equipment failures or errors caused by others would serve to absolve
the person from certification action under this proposed rule. The
factual issues of each circumstance would have to be analyzed on a
case-by-case basis. For example, a broken speedometer would not be an
intervening factor in a violation of Sec.  242.403(e)(3) (failure to
perform certain required brake tests).
    Paragraph (i)(2) of this section proposes to provide a railroad
with the discretion necessary to decide not to revoke a conductor's
certification for an event that violates Sec.  242.403(e)(1) through
(e)(11) under certain limited circumstances. However, that subparagraph
does not permit a railroad to use its discretion to dismiss violations
indiscriminately. That is, FRA would only permit railroads to excuse
violations when two criteria are met. First, the violation would have
to be of a minimal nature; for example, on high speed track at the
bottom of a steep grade, the engineer makes clear to the conductor, who
is in the cab, that the engineer knows the correct speed limit without
the conductor saying anything about speed, but the front of the lead
unit in a four unit consist hauling 100 cars enters a speed restriction
at 10 miles per hour over speed while the third unit and the balance of
the train enters the speed restriction at the proper speed, and
maintains that speed for the remainder of the train. If more of the
locomotive or train consist enters the speed restriction in violation,
a railroad that is willing to consider mitigating circumstances would
need to consider whether the violation was truly of a minimal nature.
    In contrast, a violation could not be considered of a minimal
nature if a conductor fundamentally violated the operating rules. For
example, if a conductor failed to perform or have knowledge that a
required brake test was performed, even if the train was only traveling
a short distance, then the event could not be considered of a minimal
nature. In situations where the proposed rule had been fundamentally
violated, a railroad would not have the discretion to excuse the
violation.
    Second, for paragraph (i)(2) to apply, sufficient evidence would
have to be presented to prove that the violation did not have either a
direct or potential effect on rail safety. That defense would certainly
not apply to a violation that actually caused a collision or injury
because that would be a direct effect on rail safety. It would also not
apply to a violation that, given the factual circumstances surrounding
the violation, could have resulted in a collision or injury because
that would be a potential effect on rail safety. For instance, an
example used to illustrate the term ``minimal nature'' described a
situation involving a train that had the first two locomotives enter a
speed restriction too fast, yet the balance of the train was in
compliance with the speed restriction; since the train in that example
would not be endangering other trains because it had the authority to
travel on that track at a particular speed, there would be no direct or
potential effect on rail safety caused by that violation.
    In contrast, if a train failed to stop short of a banner, which was
acting as a signal requiring a complete stop before passing it, during
a locomotive engineer efficiency test, that striking of a banner might
have no direct effect on rail safety but it has a potential effect
since a banner would be simulating a railroad car or another train.
Meanwhile, there would be a difference between passing a banner versus
making an incidental touching of the banner. If a locomotive or train
barely touched a banner so that the locomotive or train did not run
over the banner, break the banner, or cause the banner to fall down,
that incidental touching could be considered a minimal nature violation
that did not have any direct or potential effect on rail safety. This
is because such an incidental touching is not likely to cause damage to
equipment or injuries to crew members even if the banner were another
train. Although it is arguable that if the banner were a person the
touching could be fatal, FRA is willing

to allow railroads the discretion to consider this type of scenario in
the context of excusing a violation pursuant to paragraph (i)(2); of
course, if the banner was in fact a person in the manner described in
the example, the railroad would not have the discretion to apply
paragraph (i)(2).
    Similarly, if a train has received oral and written authority to
occupy a segment of main track, the oral authority refers to the
correct train number but refers to the wrong locomotive because someone
transposed the numbers, the conductor's violation in not catching this
error before entering the track without proper authority could be
considered of a minimal nature with no direct or potential effect on
rail safety. Since the railroad would be aware of the whereabouts of
this train, the additional risk to safety of this paperwork mistake may
practically be zero. Under the same scenario, where there are no other
trains or equipment operating within the designated limits, there may
be no potential effect on rail safety as well as no direct effect.
    Paragraph (j) of this section proposes to require railroads to keep
records of those violations in which they must not or elect not to
revoke a conductor's certificate pursuant to paragraph (i) of this
section. Paragraph (j)(1) would require railroads to keep records even
when they decide not to suspend a conductor's certificate due to a
determination pursuant to paragraph (i). Paragraph (j)(2) would require
railroads to keep records even when they make their determination prior
to the convening of the hearing held pursuant to Sec.  242.407.
    Paragraph (k) addresses concerns that problems could arise if FRA
disagrees with a railroad's decision not to suspend a conductor's
certificate for an alleged misconduct event pursuant to Sec.
242.403(e). As long as a railroad makes a good faith determination
after a reasonable inquiry, the railroad should have a defense to civil
enforcement for making what the agency believes to be an incorrect
determination. However, railroads should note that if they do not
conduct a reasonable inquiry or act in good faith, they would be
subject to civil penalty enforcement under this proposed rule. In
addition, even if a railroad does not take what FRA considers
appropriate revocation action, FRA could still take enforcement action
against a person responsible for the non-compliance by assessing a
civil penalty pursuant to Sec.  242.403 of this proposed rule or
issuing an order prohibiting an individual from performing safety-
sensitive functions in the rail industry for a specified period
pursuant to 49 CFR part 209, subpart D.

Subpart F--Dispute Resolution Procedures

    This subpart details the opportunities and procedures for a person
to appeal a decision by a railroad to deny certification or
recertification or to revoke a conductor's certification. As stated in
the RSAC Task Statement, one of the issues requiring specific report
from the Working Group was ``[s]tarting with the locomotive engineer
certification model, what opportunities are available for simplifying
appeals from decertification decisions of the railroads?'' Since its
first meeting in July of 2009, the Working Group devoted a considerable
amount of time to researching, discussing and proposing ideas to
simplify the appeals process. While the appeals process proposed in
this subpart, which received unanimous consent by the Working Group and
was recommended by the full RSAC, essentially follows the appeals
process in part 240, some important modifications are proposed. Those
proposed modifications are discussed below.
Section 242.501 Review Board Established
    This section, derived from 49 CFR 240.401, provides that a person
who has been denied certification or recertification or has had his or
her conductor certification revoked could petition FRA to review the
railroad's decision. Pursuant to this section, FRA proposes to delegate
initial responsibility for adjudicating such disputes to an Operating
Crew Review Board (OCRB). Although creation of the OCRB would require
issuance of an internal FRA order, FRA expects that the OCRB would
mirror the make-up of the Locomotive Engineer Review Board (LERB),
which is currently used by FRA to adjudicate disputes under part
240.\17\ As mentioned above, FRA expects that, if and when conforming
changes are made to part 240, all references to the LERB in part 240
would be changed to the OCRB and the OCRB would handle both conductor
and locomotive engineer disputes.
Section 242.503 Petition Requirements
---------------------------------------------------------------------------

    \17\ In a modification to the regulatory text considered by the
Working Group and the full RSAC, FRA has removed a reference to a
minimum number of OCRB members in paragraph (c) of this section. The
number of board members will be provided by FRA order.
---------------------------------------------------------------------------

    This section, derived from 49 CFR 240.403, provides the proposed
requirements for obtaining FRA review of a railroad's decision to deny
certification, deny recertification, or revoke certification. Those
requirements contained in paragraphs (a)-(c) include the need to seek
review in a timely fashion once the adverse decision is rendered by the
railroad. Interested parties should note that the ``petitioner''
referred to in paragraph (b) of this section is the person who had his
or her certificate revoked, not an employee representative who may
respond on the petitioner's behalf. If the petitioner is represented by
someone, the petitioner is encouraged to also provide the
representative's name, mailing address, daytime telephone number, and
e-mail address (if available) in the petition.
    As currently proposed, paragraph (b)(5) of this section would
require a petitioner to supplement his or her petition with ``a copy of
all written documents in the petitioner's possession or reasonably
available to the petitioner that document'' the railroad's decision. In
an effort to clarify that requirement with respect to petitions seeking
review of a railroad decision which is based on a failure to comply
with any drug or alcohol related rules or a return-to-service
agreement, FRA is considering adding a provision to paragraph (b) of
this section which would provide that: ``If the petitioner is
requesting review of a railroad decision which is based on a failure to
comply with any drug or alcohol related rules or a return-to-service
agreement, then the petitioner shall supplement his or her petition
with all relevant written documents, including the information under 49
CFR 40.329 that laboratories, medical review officers, and other
service agents are required to release to employees. The petitioner
should provide written explanation in the petition if written documents
that should be reasonably available to the petitioner are not
supplied.'' FRA welcomes comments on that proposed provision.
    Paragraph (c) of this section proposes to give the OCRB discretion
to grant a request for additional time that is made prior to the
expiration of the period originally prescribed. As the OCRB could
exercise its discretion under this proposed rule only for ``cause
shown,'' a party would have to demonstrate some justification for the
Board to grant an extension of time. Similarly, if the deadline in
paragraph (c) is completely missed, the movant, under paragraph (c)(2),
would have to allege facts constituting ``excusable neglect'' and the
mere assertion of excusable neglect, unsupported by facts, would be
insufficient. Excusable neglect would require a demonstration of good
faith on

the part of the party seeking an extension of time and some reasonable
basis for noncompliance within the time specified in the rules. Absent
a showing along these lines, relief would be denied.
    Paragraph (d) of this section explains that a decision by the OCRB
to deny a petition for untimeliness or lack of compliance with the
requirements of Sec.  242.503 could be appealed directly to the
Administrator. Ordinarily, an appeal to the Administrator could occur
only after a case has been heard by FRA's hearing officer.
    One difference between this proposed section and Sec.  240.403 is
the time by which a petition seeking review of a railroad's decision
would have to be filed. Part 240 contains different times depending on
whether a person is seeking review of a revocation decision (120 days)
or a denial decision (180 days). This proposed section, however,
provides that a petition seeking review of a revocation or denial
decision would have to be filed with FRA within 120 days of the date
the decision was served on the petitioner. Another difference between
this proposed section and Sec.  240.403 is that, under this section,
the OCRB's discretion to consider untimely filed petitions would now be
extended to petitions seeking review of a railroad's decision to deny
certification or recertification.
Section 242.505 Processing Certification Review Petitions
    This proposed section, derived from 49 CFR 240.405, details how
petitions for review would be handled by FRA. Upon receipt of the
petition, FRA proposes to provide the person written acknowledgement of
the filing and provide a copy of the filing to the railroad. The
railroad would then have 60 days from its date of receipt to respond,
if it desires to comment on the matter. If the railroad commented on
the matter, any material would have to be submitted in writing and a
copy served on the petitioner and petitioner's representative, if
any.\18\
---------------------------------------------------------------------------

    \18\ The proposed rule considered by the Working Group and full
RSAC would have required the railroad to ``provide'' a copy of the
information to the petitioner. To clarify the obligation of the
railroad, FRA has changed the word ``provide'' to ``serve'' and
added that petitioner's representative, if any, also be served.
---------------------------------------------------------------------------

    Based on the written record, FRA staff would analyze the railroad
decision and make a recommendation to the OCRB. The OCRB would
determine whether the denial or revocation of certification was
improper under the regulation. As indicated in paragraph (a), it would
be FRA's goal to issue OCRB decisions within 180 days from the date FRA
has received all the information from the parties. FRA's ability to
achieve that goal would depend on the number of petitions filed and
agency resources available to handle those petitions in any given
period. Further, that goal will depend on whether FRA receives all
available evidence. If the petition and/or railroad's response do not
contain all available evidence, including but not limited to, the
complete hearing transcript with exhibits and color copies of all
photographic evidence (if available), then it is FRA's intention that
the OCRB will render a decision within 180 days from the date that all
available evidence is received.
    While the handling of petitions by FRA would be the same under
Sec.  240.405 and this proposed section, this section, unlike Sec.
240.405, includes, in paragraphs (f)-(j), the proposed process and
standards of review that the OCRB would utilize when considering a
petition. Those standards are the same standards used by the LERB to
review locomotive engineer petitions.\19\ The standards were added to
this proposed rule to address a concern of some members of the Working
Group that railroads and petitioners would not know what standard of
review the OCRB would use in considering petitions.
---------------------------------------------------------------------------

    \19\ FRA has made some modifications to paragraphs (f)-(j) from
the draft recommended by the Working Group and full RSAC. The
modifications are necessary to clarify the authority of the OCRB and
the standards of review the OCRB would utilize.
---------------------------------------------------------------------------

    Like the LERB, the OCRB would only determine whether a railroad's
decision was based on an incorrect determination. If a railroad
conducted hearing was so unfair that it caused a petitioner substantial
harm, the OCRB could grant the petition; however, the OCRB's review
would not be intended to correct all procedural wrongs committed by the
railroad. Also like the LERB, the decision-making power of the OCRB
would be limited to approving the railroad decision, overturning the
railroad decision, or returning the case to the railroad for additional
fact finding. The OCRB would not be empowered to mitigate the
consequences of a railroad decision, if that decision was valid under
this proposed regulation. The OCRB would only be empowered to make
determinations concerning qualifications under this regulation. The
contractual consequences, if any, of those determinations would have to
be resolved under dispute resolution mechanisms that do not directly
involve FRA. For example, FRA could not order a railroad to alter its
seniority rosters or make an award of back pay to accommodate a finding
that a railroad wrongfully denied certification.
    Interested parties should note that promulgation of this proposed
rule, as currently written, would necessarily require the OCRB and LERB
to determine whether a railroad revoked the correct certificate of a
person who holds both an engineer and conductor certification. For
example, in a case in which a railroad found that a person who holds
both a conductor and engineer certification violated a railroad rule
involving a failure to comply with the provisions of 49 CFR 218.99
(i.e., a part 218, subpart F violation) but revoked that person's
engineer certification, the OCRB, if petitioned, would have to find
that the revocation decision was improper because, currently, an
engineer cannot have his or her part 240 certification revoked for
violations of part 218, subpart F.
    Paragraph (l) of this section would require the OCRB's written
decision to be served on the petitioner, including the petitioner's
representative, if any, and the railroad. That paragraph has been
modified from the paragraph considered by the Working Group and the
full RSAC to require that the decision be served on the parties, not
just provided to them. Moreover, the modified paragraph does not
contain a requirement that every decision include findings of fact
which may not be appropriate or relevant to some decisions.
Section 242.507 Request for a Hearing
    This section, which parallels 49 CFR 240.407, provides that a party
who has been adversely affected by an OCRB decision would have the
opportunity to request an administrative proceeding as prescribed in
proposed Sec.  242.509. In addition, this section details the proposed
requirements for requesting such a proceeding.
    Paragraph (c) of this section provides that a party who fails to
request an administrative hearing in a timely fashion would lose the
right to further administrative review since the OCRB's decision would
constitute final agency action.
    As noted in paragraph (e) of this section, FRA would not schedule
hearings or set an agenda for the proceeding. FRA would merely arrange
for the appointment of a presiding officer and it would be the
presiding officer's duty to schedule a hearing for the earliest
practicable date.

Section 242.509 Hearings
    This section, which parallels 49 CFR 240.409, describes the
proposed authority of the presiding officer to conduct an
administrative hearing and the procedures by which the administrative
hearing would be governed. Like Sec.  240.409, the proceeding provided
by this section would afford an aggrieved party a de novo hearing at
which the relevant facts would be adduced and the correct application
of this proposed part would be applied.
    In instances when the issues are purely legal, or when only limited
factual matters are necessary to determine issues, paragraph (c) of
this section proposes that the presiding officer could determine the
issues following an evidentiary hearing only on the disputed factual
issues, if any. The presiding officer could therefore grant full or
partial summary judgment.
    Paragraph (d) of this section proposes that the presiding officer
may authorize discovery. It also proposes to authorize the presiding
officer to sanction willful noncompliance with permissible discovery
requests. Paragraph (e) would require that documents in the nature of
pleadings be signed. This signature would constitute a certification of
factual and legal good faith. Paragraph (f) proposes a requirement for
service and for certificates of service. The presiding officer's
authority to address noncompliance with a law or directive is expressed
in paragraph (g). This provision is intended to ensure that the
presiding officer would have the authority to control the proceeding so
that an efficient and fair hearing would result.
    Paragraph (h) states the right of each party to appear and be
represented. Paragraph (i) would protect witnesses by ensuring their
right of representation and their right to have their representative
question them. Paragraph (j) would allow any party to request
consolidation or separation of hearings of two or more petitions when
to do so would be appropriate under established jurisprudential
standards. This option is intended to allow more efficient
determination of petitions in cases where a joint hearing would be
advantageous.
    Under paragraph (k), the presiding officer could, with certain
exceptions, extend periods for action required in the proceedings,
provided substantial prejudice would not result to a party. The
proposed authority to deny a request for extension submitted after the
expiration of the period involved shows the preference for use of this
authority as a tool to alleviate unforeseen or unnecessary burdens, and
not as a remedy for inexcusable neglect.
    Paragraph (l) would establish a motion as the appropriate method
for requesting action by the presiding officer. That paragraph would
also provide the form of motions and the response period for written
motions.
    Paragraph (m) would provide rules for the mode of hearing and
record maintenance, including requirements for sworn testimony,
verbatim record (including oral testimony and argument), and inclusion
of evidence or substitutes therefor in the record. Paragraph (n) would
direct the presiding officer to employ specific rules of evidence as
guidelines for the introduction of evidence and permits the presiding
officer to determine what evidence may be received. Further, paragraph
(o) proposes additional powers the presiding officer may exercise
during the proceedings.
    Paragraph (p) would provide that the petitioner before the OCRB,
the railroad that took the certification action at issue, and the FRA
are mandatory parties to the administrative proceeding. Paragraph (q)
would require the party requesting the hearing to carry the burden of
proof. The actions of the conductor and the railroad would be at issue
in the hearing--not the actions of the OCRB. Thus, it is appropriate
that the conductor and the railroad fill the roles of petitioner and
respondent for the hearing. In addition, the burden each party would
have if they were the hearing petitioner is articulated in paragraph
(q).
    Paragraph (r) would provide that FRA would be a mandatory party in
the proceeding. In all proceedings, FRA would initially be considered a
respondent. If, based on evidence acquired after the filing of a
petition for hearing, FRA were to conclude that the public interest in
safety was more closely aligned with the position of the petitioner
than the respondent, FRA could request that the hearing officer
exercise his or her inherent authority to realign parties for good
cause shown. However, FRA anticipates that such a situation would occur
rarely, if ever. Since FRA could realign itself, FRA wants to caution
future parties that FRA represents the interests of the government;
hence, parties and their representatives would have to be careful to
avoid ethical dilemmas that might arise due to FRA's ability to realign
itself.
    Paragraphs (s)-(u) would provide the providing officer with
authority to close the record and issue a decision.
Section 242.511 Appeals
    This section, derived from 49 CFR 240.411, proposes to permit any
party aggrieved by the presiding officer's decision to file an appeal
with the FRA Administrator. Paragraph (a) proposes that if no appeal is
timely filed, the presiding officer's decision would constitute final
agency action.
    Paragraphs (b)-(f) would allow for a reply to the appeal and
described the Administrator's authority to conduct the proceedings.
Interested parties should note that the phrase ``except where the terms
of the Administrator's decision (for example, remanding a case to the
presiding officer) show that the parties' administrative remedies have
not been exhausted'' in paragraph (e) of this section is included in
this proposed rule so that parties would understand that a remand, or
other intermediate decision, would not constitute final agency action.
The inclusion of this phrase is made in deference to those parties that
are not represented by an attorney or who might otherwise be confused
as to whether any action taken by the Administrator should be
considered final agency action.
Appendices
    FRA proposes to include at least four appendices to this rule. In
the final rule, Appendix A will contain a penalty schedule similar to
that FRA has issued for all of its existing rules. Because such penalty
schedules are statements of policy, notice and comment are not required
prior to their issuance. See 5 U.S.C. 553(b)(3)(A). Nevertheless
interested parties are welcome to submit their views on what penalties
may be appropriate.
    Proposed Appendix B provides both the organizational requirements
and a narrative description of the submission required under Sec. Sec.
242.101 and 242.103. FRA is not proposing to require that railroad
submissions be made on a Federally mandated form. Instead, FRA is
prescribing only minimal constraints on the organization and manner of
presenting information. FRA would require that the submission be
divided into six sections. FRA would require that each section deal
with a different subject matter and that the railroad identify the
appropriate person to be contacted in the event FRA needs to discuss
some aspect of the railroad's program. While proposed Appendix B is
derived from Appendix B to part 240, one major difference is that
proposed Appendix B proposes to require that, pursuant to Sec.
242.103, a railroad must serve a copy of its submission on the
president of each labor organization that

represents the railroad's employees subject to part 242.
    Interested parties should note that FRA is considering the
possibility of requiring each railroad to provide its submission
electronically. Such a requirement would likely allow FRA to review
submissions more efficiently and eliminate the need to store hardcopies
of the numerous submissions. FRA welcomes comments on this
consideration.
    Proposed Appendix C, derived from Appendix C to part 240, provides
a narrative discussion of the procedures that a person seeking
certification or recertification would have to follow to furnish a
railroad with information concerning his or her motor vehicle driving
record.
    Proposed Appendix D, derived from Appendix F to part 240, provides
a narrative discussion of the procedures that a railroad would be
required to employ in administering the vision and hearing requirements
of Sec.  242.117. The main issue addressed in this proposed Appendix is
the acceptable test methods for determining whether a person has the
ability to recognize and distinguish among the colors used as signals
in the railroad industry.
    Subsequent to the July-December Working Group meetings, FRA was
notified that an additional color vision test (Richmond--HRR (4th
edition)) could be added to the list of acceptable tests contained in
Appendix F to part 240 and that some of the listed tests are no longer
in print. While updating the list would appear to fall within the
purview of the medical standards working group, FRA would welcome
comments on which vision color tests should be included both in
Appendix F to part 240 and in Appendix C to this proposed rule.
    Proposed Appendix E provides a table describing the application of
revocable events. The table lists: The revocation periods; whether a
person would be eligible for a reduction of the revocation period; and
whether a person who is certified as both a conductor and an engineer
could work in either position following a certification revocation.

V. Regulatory Impact and Notices

1. Executive Order 12866 and DOT Regulatory Policies and Procedures

    This proposed rule has been evaluated in accordance with existing
policies and procedures, and determined to be non-significant under
both Executive Order 12866 and DOT policies and procedures. See 44 FR
11034 (February 26, 1979). FRA has prepared and placed in Docket No.
FRA-2009-0035 a regulatory evaluation addressing the economic impact of
this proposed rule. Document inspection and copying facilities are
available at the DOT Central Docket Management Facility located in Room
W12-140 on the Ground level of the West Building, 1200 New Jersey
Avenue, SE., Washington, DC 20590. Docket material is also available
for inspection electronically through the Federal eRulemaking Portal at
http://www.regulations.gov. Photocopies may also be obtained by
submitting a written request to the FRA Docket Clerk at the Office of
Chief Counsel, RCC-10, Mail Stop 10, Federal Railroad Administration,
1200 New Jersey Avenue, SE., Washington, DC 20590; please refer to
Docket No. FRA-2009-0035.
    As part of the regulatory impact analysis, FRA has assessed
quantitative measurements of the cost streams expected to result from
the adoption of this proposed rule. For the twenty-year period
analyzed, the estimated quantified cost that would be imposed on
industry totals $83.5 million with a present value (PV, 7%) of $42.2
million. In addition, FRA would incur administrative costs totaling
about $15.2 million, with a PV of $7.6 million. Although there are
numerous costs or burdens in this proposed rule, the requirements that
are expected to impose the largest burdens relate to the initial and
periodic training, knowledge testing, and operational testing. In
addition, the dispute resolution process associated with the denial and
revocation of conductor certification would be a new requirement that
would impose burdens on the railroad industry and FRA.
    As part of the regulatory impact analysis, FRA has explained what
the likely benefits for this proposed rule would be, and provided
numerical assessments of the potential value of such benefits. The
proposed rulemaking is expected to improve railroad safety by ensuring
that all trains have certified and trained conductors. Thus, in
general, the proposed rule should decrease train accidents and
incidents and associated casualties and damages. FRA also anticipates
that this proposed regulation will decrease switching operation
casualties and human factor-caused train crew injuries. FRA believes
the value of the anticipated safety benefits will meet or exceed the
cost of implementing the proposed rule.
    The table below presents the cost associated with implementation of
the proposed rule.

[GRAPHIC] [TIFF OMITTED] TP10NO10.000

2. Regulatory Flexibility Act and Executive Order 13272; Initial
Regulatory Flexibility Assessment

    The Regulatory Flexibility Act (5 U.S.C. 601 et seq.) and Executive
Order 13272 require a review of proposed and final rules to assess
their impacts on small entities. An agency must prepare an initial
regulatory flexibility analysis (IRFA) unless it determines and
certifies that a rule, if promulgated, would not have a significant
impact on a substantial number of small entities. FRA has not
determined whether this proposed rule would have a significant economic
impact on a substantial number of small entities. Therefore, FRA is
publishing this IRFA to aid the public in commenting on the potential
small business impacts of the requirements in this NPRM. FRA invites
all interested parties to submit data and information regarding the
potential economic impact that would result from adoption of the
proposals in this NPRM. FRA will consider all comments received in the
public comment process when making a determination.
    Based on information currently available, FRA estimates that about
8 percent of the total railroad cost associated with implementing the
proposed rule would be borne by small entities. Based on very
conservative assumptions, FRA estimates that the cost for this proposed
regulation could be as high as $83.5 million for the railroad industry.
In addition, also based on conservative assumptions, FRA would incur
costs that could total as much as $15.2 million. FRA also estimates
that small railroads comprise over 90 percent of the number of entities
impacted directly by this proposed regulation. Small railroads
generally have fewer conductors and operate over smaller territories
allowing them to meet the proposed requirements at lower overall cost
as well as lower cost per conductor. Thus, although a substantial
number of small entities would likely be impacted, the economic impact
on them would likely not be significant. This IRFA is not intended to
be a stand-alone document. In order to get a better understanding of
the total costs for the railroad industry, which forms the base for the
estimates in this IRFA, or more cost detail on any specific
requirement, please see the Regulatory Impact Analysis (RIA) that FRA
has placed in the docket for this rulemaking.
    In accordance with the Regulatory Flexibility Act, an IRFA must
contain:
    (1) A description of the reasons why action by the agency is being
considered;
    (2) A succinct statement of the objectives of, and the legal basis
for, the proposed rule;
    (3) A description of, and where feasible, an estimate of the number
of small entities to which the proposed rule will apply;

    (4) A description of the projected reporting, recordkeeping and
other compliance requirements of the proposed rule, including an
estimate of the classes of small entities that will be subject to the
requirement and the type of professional skills necessary for
preparation of the report or record;
    (5) An identification, to the extent practicable, of all relevant
Federal rules that may duplicate, overlap, or conflict with the
proposed rule; and
    (6) A description of any significant alternatives to the proposed
rule that accomplish the stated objectives of applicable statutes and
which minimize any significant economic impact of the proposed rule on
small entities. 5 U.S.C. 603(b), (c).
1. Reasons for Considering Agency Action
    The purpose of this rulemaking is to enhance the safety of railroad
operations by ensuring that only those persons who meet minimum Federal
safety standards serve as conductors, to reduce the rate and number of
accidents and incidents, and to improve railroad safety.
2. A Succinct Statement of the Objectives of, and Legal Basis for, the
Proposed Rule
    FRA's proposed regulation for conductor certification is intended,
inter alia, to ensure that only those persons who meet minimum Federal
safety standards serve as train conductors, and it accomplishes this by
establishing Federal requirements for railroads to have conductor
certification programs. These programs must meet or exceed FRA's
minimum standards for the eligibility, training, testing,
certification, and monitoring of persons who serve as conductors.
Included in the eligibility determination for new or recertifying
conductors are vision and hearing acuity tests. In addition, a railroad
must consider prior conduct as a motor vehicle operator; substance
abuse, alcohol, and drug rules compliance; and prior safety conduct at
a different railroad, if applicable. FRA's proposed regulation would
also prescribe minimum standards for the revocation of certification
and the dispute resolution procedures for appealing certification
denial or revocation.
    As discussed in Section IV of the Supplementary Information portion
to the preamble, the proposed rule would require railroads to have a
formal program for certifying conductors. FRA is proposing this
regulation to ensure that only those persons who meet minimum Federal
safety standards serve as conductors, to reduce the rate and number of
accidents and incidents, and to improve railroad safety. FRA is also
issuing this proposed rule to promulgate minimum training and
certification standards for train conductors as mandated by RSIA
Section 402, Public Law 110-432 (October 16, 2008) (codified at 9
U.S.C. 20157).
3. A Description of, and Where Feasible, an Estimate of the Number of
Small Entities to Which the Proposed Rule Would Apply
    The ``universe'' of the entities to be considered generally
includes only those small entities that are reasonably expected to be
directly regulated by this action. For this proposed rulemaking there
is one type of small entity that is potentially affected by this
rulemaking: Small railroads.
    FRA estimates that approximately 5 contractors will be developing
conductor certification programs and contracting conductors to
railroads. The cost associated with certifying conductors is a cost
that these contractors will pass on to the railroads contracting their
services.
    ``Small entity'' is defined in 5 U.S.C. 601 as having the same
meaning as ``small business concern'' under Section 3 of the Small
Business Act. This includes any small business concern that is
independently owned and operated, and is not dominant in its field of
operation. Section 601(4) includes nonprofit enterprises that are
independently owned and operated, and are not dominant in their field
of operations within the definition of ``small entities.''
Additionally, 5 U.S.C. 601(5) defines ``small entities'' as governments
of cities, counties, towns, townships, villages, school districts, or
special districts with populations less than 50,000.
    The U.S. Small Business Administration (SBA) stipulates ``size
standards'' for small entities. It provides that the largest a for-
profit railroad business firm may be (and still classify as a ``small
entity'') is 1,500 employees for ``line-haul operating'' railroads, and
500 employees for ``shortline operating'' railroads.\20\
---------------------------------------------------------------------------

    \20\ ``Table of Size Standards,'' U.S. Small Business
Administration, January 31, 1996, Title 13 CFR Part 121. See also
NAICS Codes 482111 and 482112.
---------------------------------------------------------------------------

    Federal agencies may adopt their own size standards for small
entities in consultation with SBA and in conjunction with public
comment. Pursuant to the authority provided to it by SBA, FRA has
published a final policy, which formally establishes small entities as
railroads that meet the line haulage revenue requirements of a Class
III railroad.\21\ Currently, the revenue requirements are $20 million
or less in annual operating revenue, adjusted annually for inflation.
The $20 million limit (adjusted annually for inflation) is based on the
Surface Transportation Board's threshold of a Class III railroad
carrier, which is adjusted by applying the railroad revenue deflator
adjustment.\22\ The same dollar limit on revenues is established to
determine whether a railroad shipper or contractor is a small entity.
Governments of cities, counties, towns, townships, villages, school
districts, or special districts with populations less than 50,000 are
also considered small entities under FRA's policy. FRA is proposing to
use this definition for this rulemaking. Any comments received
pertinent to its use will be addressed in the final rule.
---------------------------------------------------------------------------

    \21\ See 68 FR 24891 (May 9, 2003).
    \22\ For further information on the calculation of the specific
dollar limit, please see 49 CFR part 1201.
---------------------------------------------------------------------------

    Small Railroads:
    There are approximately 682 railroads meeting the definition of
``small entity'' as described above. FRA estimates that approximately
627 of these small entities would be impacted by this proposed rule.
FRA estimates that approximately 55 of the 682 small railroads would
not be impacted because they would be exempt from the proposed rule.
Note, however, that approximately 125 of the small railroads that would
be impacted are subsidiaries of large shortline holding companies with
the expertise and resources comparable to larger railroads. Many small
railroads that would be impacted by this rulemaking are members of the
American Shortline and Regional Railroad Association (ASLRRA), which
actively participated in the development of this regulatory proposal.
It is very likely that the ASLRRA will develop a generic conductor
certification program for their members to use. FRA would assist with
this effort.
    Small railroads would be required to have written programs for
certifying conductors in accordance with the proposed regulation. Given
the nature of how most small railroads operate and the fact that they
operate fewer types and numbers of trains than larger railroads this
proposed regulation should be less burdensome. Thus, given the more
limited territory, equipment types, number of conductors and/or the
commodities transported by small railroads relative to Class II and
Class I railroads, implementing and maintaining a program for the
certification of conductors would be significantly less burdensome for
small railroads both overall and on a per conductor basis. While FRA
does

recognize that some small railroads do not currently have formal
conductor training and certification programs, FRA believes that most
small railroads currently have informal programs with the necessary
elements of a formal program. FRA requests information regarding the
number and type of Class III railroads that do not have formal
conductor training and certification programs as well as the number of
conductors employed by such railroads.
    In general, the proposed rule would likely burden all small
railroads that are not exempt from its scope or application. However,
it would not significantly burden many, if any, of these entities. More
details on the cost burdens for small railroads are provided below. FRA
invites commenters to submit information that might assist us in
assessing the cost impacts on small railroads of the proposals during
the comment process of the NPRM.
4. A Description of the Projected Reporting, Recordkeeping, and Other
Compliance Requirements of the Rule, Including an Estimate of the
Classes of Small Entities That Will Be Subject to the Requirement and
the Type of Professional Skills Necessary for Preparation of the Report
or Record
    The impact of this rulemaking would come from its numerous proposed
requirements. However, many of the estimated burdens are for small
paperwork burdens or for processes and procedures that would not impact
small railroads and their conductors as frequently or significantly as
Class I and II railroads and the conductors they employ. As discussed
above, in general the burdens on small railroads should be lower per
train mile than those on Class I and II railroads both for overall
programs and per conductor.
    Small railroads employ less than 10 percent of the employees in the
railroad industry. In fact the percentage of employees is probably
closer to 7 or 8 percent. Thus, since most of the requirements in this
proposed regulation are assessed per conductor, the burden for each
railroad would be driven mainly by the number of conductors it employs.
In general, small railroads have fewer conductors and would not train
or certify as many conductors as the large railroads. Small railroads
would also not need to certify any conductors for remote control
locomotives (RCL) purposes, since they do not use RCLs. In addition,
the size of the territory and level of joint operations is likely to be
less for smaller railroads making the burden per conductor lower.
    This proposed regulation has many requirements which are organized
by subparts. There are numerous burdens from this proposed regulation
that are noted in the RIA for railroads. This IRFA will discuss a
majority of these burdens and their pertinence to small railroads
below.
    FRA's RIA estimates the total burden for this proposed rule to be
$83.5 million (non-discounted) for the first 20 years of the rule. As
detailed in the assessments below, FRA estimates that $6.7 million of
this burden would be borne by small railroads.
    (a) Subpart A--General:
    The requirements in Subpart A do not impose any direct burdens on
small railroads.
    (b) Subpart B--Program and Eligibility Requirements:
    This subpart of the proposed rule contains the basic elements of
the proposed conductor certification program that would impose the
majority of the new burden for creating and implementing such programs.
The ASLRRA has indicated that it plans to develop a generic program and
template to facilitate compliance with this federal regulation and FRA
would gladly collaborate in this effort. FRA anticipates that almost
all of the small railroads in need of a program will take the shortline
generic plan and tailor it for their operations. As more fully
discussed in the RIA, FRA estimates that these programs can be
developed at an average cost of $700 per small railroad.\23\ FRA
estimates, that in total, small railroads will be burdened with
approximately $473,000 to develop conductor certification programs. FRA
estimates that it would cost the entire railroad industry about
$918,000 to develop programs.
---------------------------------------------------------------------------

    \23\ Calculation: (1 small RR) * [(1 exec hours) * ($125) + (2
admin hours) * ($21) + (12 RR staff hours) * ($42.05) + (0.5 Senior
RR staff hours) * ($75)] = $709.
---------------------------------------------------------------------------

    The proposed requirements for a training program and periodic
training for recertification, i.e., Section 242.119, are among the most
significant costs for the entire railroad industry imposed by this
proposal. Railroads generally already have formal or informal training
programs and many offer some degree of periodic training. FRA estimates
that further developing the training programs and providing the
periodic training would cost the railroad industry approximately $28
million (not discounted) over the 20-year analysis in FRA's RIA. Based
on experience and discussions at RSAC working group meetings, FRA knows
that most small railroads are currently providing training to their
conductors and that most of that training is on-the-job training. FRA
estimates that more formalized training will have to be added to the
training programs for small railroads. FRA estimates that the small
railroads will incur almost $2.5 million of this cost, making the per
railroad average approximately $4,000.
    Proposed Section 242.121 requires railroads provide initial and
periodic testing of conductors. That testing would have to effectively
examine and measure a conductor's knowledge of five subject areas:
Safety and operating rules; timetable instructions; compliance with all
applicable Federal regulations; the physical characteristics of the
territory on which a person will be or is currently serving as a
conductor; and the use of any job aid that a railroad may provide a
conductor. FRA's RIA has estimated that this would cost the industry
$7.4 million (not discounted) over the 20-year analysis for the entire
industry. Since small railroads represent approximately 7 to 8 percent
of the employees in the railroad industry, FRA estimates that small
railroads will incur approximately $554,000 of this cost.
    Proposed Section 242.123 requires railroads to conduct unannounced
compliance tests and inspections. The proposed rule would require each
railroad to have a program to monitor the conduct of its conductors by
performing unannounced operating rules compliance tests. FRA's RIA has
estimated that this would cost the industry $7.7 million (not
discounted) over the 20-year analysis. Since small railroads represent
approximately 7 to 8 percent of the employees in the railroad industry,
FRA estimates that small railroads will incur approximately $577,000 of
this cost.
    Other proposed requirements in this subpart that would impact small
railroads include: Prior safety conduct as a motor vehicle operator,
Section 242.111; substance abuse disorders and alcohol drug rules
compliance, Section 242.115; vision and hearing acuity testing, Section
242.117; and certification determinations made by other railroads,
Section 242.125.
    The total (non-discounted) cost for this subpart is $50.6 million.
FRA estimates the estimated cost for small railroads is about $4.6
million (not discounted) over the first twenty-years.
    (c) Subpart C--Administration of the Certificate Program:
    This subpart of the proposed rule covers the requirements for
administering a certification program. Most of the requirements in this
subpart are basic requirements necessary for having the certificate
program, except the proposed requirements in Section 242.215. That
section proposes to

require only Class I, Class II and all passenger railroads to conduct
an annual review and analysis of their programs. Thus, small railroads
will incur no burden from that proposed requirement.
    The total (non-discounted) cost for this Subpart C is $7.4 million.
However, FRA estimates that less 6 percent of this will be borne by
small railroads given that they would not be subject to the annual
review and analysis requirements. Thus, the estimated cost for small
railroads is about $448,000 (non-discounted) over the first twenty-
years.
    (d) Subpart D--Territorial Qualification and Joint Operations:
    This subpart of the proposed rule covers the requirements for
territorial qualification and joint operations. FRA estimates that
approximately 320 railroads operate over joint territory. FRA further
estimates that approximately 2 percent of all of the conductors
industry-wide will be qualified for joint territory. However, the
primary burden from this subpart is related to the qualification of new
conductors. In general, small railroads do not have as high a turnover
rate for employees and therefore should not have as many new conductors
each year. The total (non-discounted) cost for this subpart is $17.1
million. Since small railroads represent approximately 7 to 8 percent
of the employees in the railroad industry, FRA estimates that the cost
for small railroads is about $1,281,000 over the first twenty-years.
    (e) Subpart E--Denial and Revocation of Certification:
    This subpart of the proposed rule covers the denial and revocation
of conductor certifications. The estimated burdens in this subpart are
related to the paperwork involved in the denial of certification, which
often occurs when hearing, vision or knowledge tests are failed. The
majority of the burdens for this subpart are associated with the
process for revocation (Section 242.407). The total (non-discounted)
cost for this subpart is $4.1 million. Since small railroads represent
approximately 7 to 8 percent of the employees in the railroad industry,
FRA estimates the cost for small railroads is about $303,000 (not
discounted) over the first twenty-years.
    (f) Subpart F--Dispute Resolution Procedures:
    This subpart of the proposed rule primarily deals with the dispute
resolution procedures, and the procedures for a person to appeal a
decision by a railroad to deny certification or recertification or to
revoke a conductor's certification. The estimated burdens in this
subpart are related to appeals to FRA's Review Board, requests for
administrative hearings, and appeals to FRA's Administrator. Based on
past experience with locomotive engineer appeals, administrative
hearings, etc., FRA does not anticipate many of the cases related to
this subpart to be from employees of small railroads. The total (non-
discounted) cost for this subpart is $19.4 million. However, most of
the costs for the requirements in this section are for government
resources. FRA estimates that the non-government share of this
Subpart's cost is $4.4 million. FRA estimates that less than 2 percent
of the non-government cost will be borne by small railroads. Thus, the
estimated cost for small railroads is about $88,000 (non-discounted)
over the first twenty-years.
5. An Identification, to the Extent Practicable, of All Relevant
Federal Rules That May Duplicate, Overlap, or Conflict With the
Proposed Rule
    FRA is not aware of any relevant federal rules that may duplicate,
overlap, or conflict with the proposed rule. Some of the requirements
proposed in this NPRM are identical or very similar to the requirements
in 49 CFR Part 240 for the certification of locomotive engineers,
however actions taken to comply with requirements in Part 240 that are
identical or very similar to those in Part 242 could be used to fulfill
the requirements in Part 242, or vice versa, without incurring any
additional burden.
6. A Description of Any Significant Alternatives to the Proposed Rule
That Accomplish the Stated Objectives of Applicable Statutes and Which
Minimize Any Significant Economic Impact of the Proposed Rule on Small
Entities
    FRA formed an RSAC working group to develop recommendations for
conductor certification regulations in December 2008. The RSAC Working
Group met for six, multi-day meetings over a period of several months.
After a series of detailed discussions, the RSAC Working Group achieved
consensus on a draft proposed rule in January 2010. The full RSAC
approved and recommended its consensus on March 18, 2010.
    In Section 242.3 of the proposed regulation there is an exclusion
for operations that occur on track that is not part of the general
railroad system, which generally encompasses operations commonly
described as tourist, scenic or excursion service to the extent that
they occur on track that is not part of the general railroad system.
FRA estimates that this would exclude approximately 55 small and very
small railroads from the requirements of this proposed regulation.
    FRA's proposal would minimize the impact to small railroads by
delaying the implementation of the recertification process for the
Class III railroads by 12 months. Thus, small railroads will have more
time to implement most of the requirements of this proposed regulation
than Class I and Class II freight railroads and passenger railroads.
    FRA is not aware of any significant alternatives to the proposed
rule that would accomplish the stated objectives of RSIA that would
minimize the economic impact of the proposed rule on small entities.
    The process by which this proposed rule was developed provided
outreach to small entities. As noted above in this IRFA, this rule was
developed in consultation with industry representatives via RSAC, which
includes small railroad representatives. The RSAC Conductor
Certification Working Group came to consensus on a majority of this
proposed regulation in January 2010 and the Full RSAC approved the
draft proposed rule in March 2010. Small railroad representatives
participated in all meetings of the Working Group and raised issues of
concern to small railroads. If requested, FRA may hold a public
hearing. After the comment period for this NPRM closes, FRA expects to
reconvene the Working Group to review the comments to the docket. At
that meeting FRA expects that comments will be reviewed and considered
by the Working Group, including any raised concerning impacts on small
entities and this IRFA.

3. Paperwork Reduction Act

    The information collection requirements in this proposed rule have
been submitted for approval to the Office of Management and Budget
(OMB) under the Paperwork Reduction Act of 1995, 44 U.S.C. 3501 et seq.
The sections that contain the new information collection requirements
are duly designated, and the estimated time to fulfill each requirement
is as follows:

----------------------------------------------------------------------------------------------------------------
                                                            Total annual       Average time per    Total annual
       CFR Section/Subject         Respondent universe       responses             response        burden hours
----------------------------------------------------------------------------------------------------------------
242.9--Waivers--Petitions........  677 railroads......  10 petitions.......  3 hours............              30
242.101/103--Certification         677 railroads......  678 programs.......  160 hrs./581 hrs./           16,799
 Program: Written Program for                                                 15.5 hrs.
 Certifying Conductors.
Approval of Design of Programs
--Certification Programs for New   6 railroads........  6 new prog.........  15.5 hours.........              93
 RRs.
--Conductor Certification          677 railroads......  200 copies.........  15 minutes.........              50
 Submission Copies to Rail Labor
 Organizations.
--Affirmative Statements that      677 railroads......  200 statements.....  15 minutes.........              50
 Copies of Submissions Sent to
 RLOs.
--Certified Comments on            677 railroads......  35 comments........  4 hours............             140
 Submissions.
--Certification Programs           677 railroads......  10 programs........  4 hours............              40
 Disapproved by FRA and then
 Revised.
--Revised Certification Programs   677 railroads......  3 programs.........  2 hours............               6
 Still Not Conforming and then
 Resubmitted.
--Certification Programs           677 railroads......  50 programs........  2 hours............             100
 Materially Modified After
 Initial FRA Approval.
--Materially Modified Programs     677 railroads......  3 programs.........  2 hours............               6
 Disapproved by FRA & Then
 Revised.
--Revised programs Disapproved     677 railroads......  1 program..........  2 hours............               2
 and Then Resubmitted.
242.105--Implementation Schedule
--Designation of Certified         677 railroads......  48,600 designations  5 minutes..........           4,050
 Conductors (Class I Railroads).
--Issued Certificates (\1/3\ each  677 railroads......  16,200 certif......  1 hour.............          16,200
 year).
--Designation of Certified         677 railroads......  5,400 design.......  5 minutes..........             450
 Conductors (Class II and III
 Railroads).
--Issued Certificates (\1/3\ each  677 railroads......  1,800 certif.......  1 hour.............           1,800
 year).
--Requests for Delayed             677 railroads......  5,000 request......  30 minutes.........           2,500
 Certification.
--Testing/Evaluation to Certify    677 railroads......  1,000 tests........  560 hours..........         560,000
 Persons.
--Testing/Evaluation to Certify    627 railroads......  100 tests..........  400 hours..........          40,000
 Conductors (Class III).
242.107--Types of Service
--Reclassification to Diff. Type   677 railroads......  25 conductor Tests/  8 hours............             200
 of Cert..                                               Evaluations.
242.109--Opportunity by RRs for    677 Railroads......  50 comments........  1 hour.............              50
 Certification Candidates to
 Review and Comment on Prior
 Safety Record.
242.111--Prior Safety Conduct As
 Motor Vehicle Operator
--Eligibility Determinations.....  677 Railroads......  1,100 dtrmin.......  10 minutes.........             183
--Initial Certification for 60     677 Railroads......  75 certific........  10 minutes.........              13
 Days.
--Recertification for 60 Days....  677 Railroads......  125 recertif.......  10 minutes.........              21
--Driver Info. Not Provided and    677 Railroads......  25 requests........  2 hours............              50
 Request for Waiver by Persons/RR.
--Request to Obtain Driver's       54,000 Conductors/   18,000 req.........  15 minutes.........           4,500
 License Information From           Persons.
 Licensing Agency.
--Requests for Additional          54,000 Conductors/   25 requests........  10 minutes.........               4
 Information From Licensing         Persons.
 Agency.
--Notification to RR by Persons    54,000 Conductors/   2 notification.....  10 minutes.........             .33
 of Never Having a License.         Persons.
--Report of Motor Vehicle          54,000 Conductors..  200 reports........  10 minutes.........              33
 Incidents.
--Evaluation of Driving Record...  54,000 Conductors..  18,000 eval........  10 minutes.........           3,000
--SAP Referral by RR After Report  677 Railroads......  180 referrals......  5 minutes..........              15
 of Driving Drug/Alcohol Incident.
--SAP Request and Supply by        677 Railroads......  5 requests/Records.  30 minutes.........               3
 Persons of Prior Counseling or
 Treatment.
--Conditional Certifications       677 Railroads......  50 certificat......  4 hours............             200
 Recommended by SAP.
242.113--Prior Safety Conduct As   54,000 conductors..  360 requests/360     15 minutes + 30                 270
 Employee of a Different Railroad.                       records.             minutes.
242.115--Substance Abuse
 Disorders and Alcohol Drug Rules
 Compliance
--Meeting Section's Eligibility    54,000 conductors..  18,000               2 minutes..........             600
 Reqmnt.                                                 determinations.
--Written Documents from SAP       677 railroads......  400 docs...........  30 minutes.........             200
 Person Not Affected by a
 Disorder.
--Self-Referral by Conductors for  54,000 conductors..  10 self-referrals..  10 minutes.........               2
 Substance Abuse Counseling.
--Certification Reviews for        677 railroads......  18,000 reviews.....  10 minutes.........           3,000
 Occurrence/Documentation of
 Prior Alcohol/Drug Conduct by
 Persons/Conductors.

--Written Determination That Most  677 railroads......  150 determin.......  60 minutes.........             150
 Recent Incident Has Occurred.
--Notification to Person That      677 railroads......  150 notific........  10 minutes.........              25
 Recertification Has Been Denied.
--Persons/Conductors Waiving       54,000 conductors..  100 waivers........  10 minutes.........              17
 Investigation.
242.117-- Vision and Hearing
 Acuity
--Determination Vision Standards   677 railroads......  18,000 deter.......  20 minutes.........           6,000
 Met.
--Determination Hearing Stds. Met  677 railroads......  18,000 deter.......  20 minutes.........           6,000
--Medical Examiner Certificate     677 railroads......  18,000 certif......  2 hours............          36,000
 That Person Has Been Examined/
 Passed test.
--Document Standards Met with      677 railroads......  50 document........  30 minutes.........              25
 Conditions.
--Document Standards Not Met.....  677 railroads......  25 document........  30 minutes.........              13
--Notation Person Needs            677 railroads......  10,000 notes.......  10 minutes.........           1,667
 Corrective Device (Glasses/
 Hearing Aid).
--Request for Further Medical      677 railroads......  100 requests + 100   60 minutes + 2                  300
 Evaluation for New Determination.                       Evals.               hours.
--Request for Second Retest and    677 railroads......  25 requests + 25     60 minutes + 2                   75
 Another Medical Evaluation.                             Evals.               hours.
--Copies of Part 242 Provided to   677 railroads......  677 copies.........  60 minutes.........             677
 RR Medical Examiners.
--Consultations by Medical         677 railroads......  100 consults + 100   2 hours + 10                    217
 Examiners with Railroad Officer                         certif.              minutes.
 and Issue of Conditional
 Certification.
--Notification by Certified        677 railroads......  10 notific.........  10 minutes.........               2
 Conductor of Deterioration of
 Vision/Hearing.
242.119--Training
--Completion of Training Program.  677 railroads......  678 Programs.......  37 hours/70 hrs/3             3,801
                                                                              hrs.
--Completion of Training Program   54,000 Conductors..  18,000 Docs/18,000   1 hour/560 hours...      10,098,000
 by Conductors/Persons +                                 Cond.
 Documents.
--Training Task Analysis for RRs   677 railroads......  677 analyses.......  12 hours/20 hrs./20             829
 Training Persons Previously                                                  min.
 Untrained.
--Modification of Training         677 railroads......  30 programs........  4 hours............             120
 Program Due to New Laws/
 Regulations.
--Consultation with Supervisory    677 railroads......  1,000 consult......  15 minutes.........             250
 Employee During Written Test.
--Familiarization Training Upon    677 railroads......  10 trained           8 hours............              80
 Transfer of RR Ownership.                               Conductors.
--Instructional Briefings on       677 railroads......  54,000 briefs......  8 hours............         432,000
 Federal RR Safety Laws/
 Regulations.
--Records of Instructional         677 railroads......  54,000 record......  10 minutes.........           9,000
 Briefings.
--Continuing Education of          677 railroads......  18,000 cont.         8 hours............         144,000
 Conductors.                                             trained cond.
242.121--Knowledge Testing
--Determining Eligibility........  677 railroads......  18,000 deter.......  30 minutes.........           9,000
--Retests/Re-Examinations........  677 railroads......  500 Retests........  8 hours............           4,000
242.123--Monitoring Operational
 Performance
--Unannounced Compliance Tests     677 railroads......  18,000 tests +       2 hours + 10                 39,000
 and Records.                                            18,000 recd.         minutes.
--Return to Service That Requires  677 railroads......  1,000 tests + 1,000  2 hours + 10                  2,167
 Unannounced Compliance Test/                            records.             minutes.
 Record.
242.125/127--Certificate
 Determination by Other Railroads/
 Other Country
--Determination Made by RR         677 railroads......  100 determin.......  8.5 hours..........             850
 Relying on Another RR's
 Certification.
--Determination by Another         677 railroads......  200 determin.......  1 hour.............             200
 Country.
242.203--Retaining Information     677 railroads......  18,000 recds.......  5 minutes..........           1,500
 Supporting Determination--
 Records.
--Amended Electronic Records.....  677 railroads......  20 records.........  60 minutes.........              20
242.205--List of Certified         677 railroads......  625 lists..........  60 minutes.........             625
 Conductors Working in Joint
 Territory.
242.209-- Maintenance of
 Certificates
--Request to Display Certificate.  677 railroads......  2,000 request/       2 minutes..........              67
                                                         displays.
--Notification That Request to     677 railroads......  1,000 notif........  10 minutes.........             167
 Serve Exceeds Certification.
242.211--Replacement of            677 railroads......  500 certific.......  5 minutes..........              42
 Certificates.
242.213--Multiple Certificates
--Notification to Engineer That    677 railroads......  5 notification.....  10 minutes.........               1
 No Conductor Is On Train.

--Notification of Denial of        677 railroads......  10 notific.........  10 minutes.........               2
 Certification by Individuals
 Holding Multiple Certifications.
242.215--RR Oversight
 Responsibility
--RR Review and Analysis of        677 railroads......  44 reviews/Analyses  40 hours/1 hour....           1,760
 Administration of Certification
 Program.
--Report of Findings by RR to FRA  677 railroads......  36 reports.........  4 hours............             144
242.301--Determinations--Territor  320 railroads......  1,080 Deter........  15 minutes.........             270
 ial Qualification and Joint
 Operations.
--Notification by Persons Who Do   320 railroads......  500 Notific........  10 minutes.........              83
 Not Meet Territorial
 Qualification.
242.401--Notification to           677 railroads......  40 notific. + 30     60 minutes/60                    70
 Candidate of Information That                           responses.           minutes.
 Forms Basis for Denying
 Certification and Candidate
 Response.
--Written Notification of Denial   677 railroads......  40 notific.........  60 minutes.........              40
 of Certification.
242.403/405--Criteria for
 Revoking Certification; Periods
 of Ineligibility
--Review of Compliance Conduct...  677 railroads......  950 reviews........  10 minutes.........             158
--Written Determination That the   677 railroads......  950 determin.......  60 minutes.........             950
 Most Recent Incident Has
 Occurred.
242.407--Process for Revoking
 Certification
--Revocation for Violations of     677 railroads......  950 Revoked          8 hours............           7,600
 Section 242.115(e).                                     Certificates.
--Immediate Suspension of          677 railroads......  950 suspend          1 hour.............             950
 Certificate.                                            Certificate.
--Determinations Based on RR       677 railroads......  950 determin.......  1 hour.............             950
 Hearing Record.
--Hearing Record.................  677 railroads......  950 records........  30 minutes.........             475
--Written Decisions by RR          677 railroads......  950 decisions......  1 hour.............             950
 Official.
--Written Waiver of Right to       54,000 Conductors..  425 waivers........  10 minutes.........              71
 Hearing.
--Revocation of Certification      677 railroads......  15 revoked           10 minutes.........               3
 Based on Information That                               Certifications.
 Another Railroad Has Done So.
--Placing Relevant Information in  677 railroads......  100 updated records  1 hour.............             100
 Record Prior to Suspending
 Certification/Convening Hearing.
----------------------------------------------------------------------------------------------------------------

    All estimates include the time for reviewing instructions;
searching existing data sources; gathering or maintaining the needed
data; and reviewing the information. Pursuant to 44 U.S.C.
3506(c)(2)(B), FRA solicits comments concerning: Whether these
information collection requirements are necessary for the proper
performance of the functions of FRA, including whether the information
has practical utility; the accuracy of FRA's estimates of the burden of
the information collection requirements; the quality, utility, and
clarity of the information to be collected; and whether the burden of
collection of information on those who are to respond, including
through the use of automated collection techniques or other forms of
information technology, may be minimized. For information or a copy of
the paperwork package submitted to OMB, contact Mr. Robert Brogan,
Information Clearance Officer, at<PHONE_NUMBER>, or Ms. Nakia Jackson at
202-493-6073.
    Organizations and individuals desiring to submit comments on the
collection of information requirements should direct them to Mr. Robert
Brogan or Ms. Nakia Jackson, Federal Railroad Administration, 1200 New
Jersey Avenue, SE., 3rd Floor, Washington, DC 20590. Comments may also
be submitted via e-mail to Mr. Brogan or Ms. Jackson at the following
address<EMAIL_ADDRESS><EMAIL_ADDRESS>    OMB is required to make a decision concerning the collection of
information requirements contained in this proposed rule between 30 and
60 days after publication of this document in the Federal Register.
Therefore, a comment to OMB is best assured of having its full effect
if OMB receives it within 30 days of publication. The final rule will
respond to any OMB or public comments on the information collection
requirements contained in this proposal.
    FRA is not authorized to impose a penalty on persons for violating
information collection requirements which do not display a current OMB
control number, if required. FRA intends to obtain current OMB control
numbers for any new information collection requirements resulting from
this rulemaking action prior to the effective date of the final rule.
The OMB control number, when assigned, will be announced by separate
notice in the Federal Register.

4. Federalism Implications

    Executive Order 13132, ``Federalism'' (64 FR 43255, Aug. 10, 1999),
requires FRA to develop an accountable process to ensure ``meaningful
and timely input by State and local officials in the development of
regulatory policies that have federalism implications.'' ``Policies
that have federalism implications'' are defined in the Executive Order
to include regulations that have ``substantial direct effects on the
States, on the relationship between the national government and the
States, or on the distribution of power and responsibilities among the
various levels of government.'' Under Executive Order 13132, the agency
may not issue a regulation with federalism implications that imposes
substantial direct compliance costs and that is not required by
statute, unless the Federal government provides the funds

necessary to pay the direct compliance costs incurred by State and
local governments, the agency consults with State and local
governments, or the agency consults with State and local government
officials early in the process of developing the regulation. Where a
regulation has federalism implications and preempts State law, the
agency seeks to consult with State and local officials in the process
of developing the regulation.
    This NPRM has been analyzed in accordance with the principles and
criteria contained in Executive Order 13132. This proposed rule would
not have a substantial effect on the States or their political
subdivisions; it would not impose any compliance costs; and it would
not affect the relationships between the Federal government and the
States or their political subdivisions, or the distribution of power
and responsibilities among the various levels of government. Therefore,
the consultation and funding requirements of Executive Order 13132 do
not apply.
    However, this proposed rule could have preemptive effect by
operation of law under certain provisions of the Federal railroad
safety statutes, specifically the former Federal Railroad Safety Act of
1970, repealed and recodified at 49 U.S.C. 20106. Section 20106
provides that States may not adopt or continue in effect any law,
regulation, or order related to railroad safety or security that covers
the subject matter of a regulation prescribed or order issued by the
Secretary of Transportation (with respect to railroad safety matters)
or the Secretary of Homeland Security (with respect to railroad
security matters), except when the State law, regulation, or order
qualifies under the ``essentially local safety or security hazard''
exception to section 20106.
    In sum, FRA has analyzed this proposed rule in accordance with the
principles and criteria contained in Executive Order 13132. As
explained above, FRA has determined that this proposed rule has no
federalism implications, other than the possible preemption of State
laws under Federal railroad safety statutes, specifically 49 U.S.C.
20106. Accordingly, FRA has determined that preparation of a federalism
summary impact statement for this proposed rule is not required.

5. International Trade Impact Assessment

    The Trade Agreement Act of 1979 prohibits Federal agencies from
engaging in any standards or related activities that create unnecessary
obstacles to the foreign commerce of the United States. Legitimate
domestic objectives, such as safety, are not considered unnecessary
obstacles. The statute also requires consideration of international
standards and where appropriate, that they be the basis for U.S.
standards.
    This proposed rulemaking is purely domestic in nature and is not
expected to affect trade opportunities for U.S. firms doing business
overseas or for foreign firms doing business in the United States.

6. Environmental Impact

    FRA has evaluated this rule in accordance with its ``Procedures for
Considering Environmental Impacts'' (FRA's Procedures) (64 FR 28545,
May 26, 1999) as required by the National Environmental Policy Act (42
U.S.C. 4321 et seq.), other environmental statutes, Executive Orders,
and related regulatory requirements. FRA has determined that this
proposed rule is not a major FRA action (requiring the preparation of
an environmental impact statement or environmental assessment) because
it is categorically excluded from detailed environmental review
pursuant to section 4(c)(20) of FRA's Procedures. See 64 FR 28547 (May
26, 1999).
    In accordance with section 4(c) and (e) of FRA's Procedures, the
agency has further concluded that no extraordinary circumstances exist
with respect to this regulation that might trigger the need for a more
detailed environmental review. As a result, FRA finds that this
proposed rule is not a major Federal action significantly affecting the
quality of the human environment.

7. Unfunded Mandates Reform Act of 1995

    Pursuant to Section 201 of the Unfunded Mandates Reform Act of 1995
(Pub. L. 104-4, 2 U.S.C. 1531), each Federal agency ``shall, unless
otherwise prohibited by law, assess the effects of Federal regulatory
actions on State, local, and tribal governments, and the private sector
(other than to the extent that such regulations incorporate
requirements specifically set forth in law).'' Section 202 of the Act
(2 U.S.C. 1532) further requires that ``before promulgating any general
notice of proposed rulemaking that is likely to result in the
promulgation of any rule that includes any Federal mandate that may
result in expenditure by State, local, and tribal governments, in the
aggregate, or by the private sector, of $140,800,000 or more in any one
year, and before promulgating any final rule for which a general notice
of proposed rulemaking was published, the agency shall prepare a
written statement'' detailing the effect on State, local, and tribal
governments and the private sector. The proposed rule will not result
in the expenditure, in the aggregate, of $140,800,000 or more in any
one year, and thus preparation of such a statement is not required.

8. Energy Impact

    Executive Order 13211 requires Federal agencies to prepare a
Statement of Energy Effects for any ``significant energy action.'' 66
FR 28355 (May 22, 2001). Under the Executive Order, a ``significant
energy action'' is defined as any action by an agency (normally
published in the Federal Register) that promulgates or is expected to
lead to the promulgation of a final rule or regulation, including
notices of inquiry, advance notices of proposed rulemaking, and notices
of proposed rulemaking: (1)(i) That is a significant regulatory action
under Executive Order 12866 or any successor order, and (ii) is likely
to have a significant adverse effect on the supply, distribution, or
use of energy; or (2) that is designated by the Administrator of the
Office of Information and Regulatory Affairs as a significant energy
action. FRA has evaluated this NPRM in accordance with Executive Order
13211. FRA has determined that this NPRM is not likely to have a
significant adverse effect on the supply, distribution, or use of
energy. Consequently, FRA has determined that this NPRM is not a
``significant energy action'' within the meaning of Executive Order
13211.

9. Privacy Act

    FRA wishes to inform all potential commenters that anyone is able
to search the electronic form of all comments received into any agency
docket by the name of the individual submitting the comment (or signing
the comment, if submitted on behalf of an association, business, labor
union, etc.). You may review DOT's complete Privacy Act Statement in
the Federal Register published on April 11, 2000 (65 FR 19477-78) or
you may visit http://www.regulations.gov/search/footer/privacyanduse.jsp.

List of Subjects in 49 CFR Part 242

    Administrative practice and procedure, Conductor, Penalties,
Railroad employees, Railroad operating procedures, Railroad safety,
Reporting and recordkeeping requirements.

The Proposed Rule

    For the reasons discussed in the preamble, FRA proposes to amend
chapter II, subtitle B of title 49 of the Code of Federal Regulations
as follows:

    1. Add a new part 242 to read as follows:

PART 242--QUALIFICATION AND CERTIFICATION OF CONDUCTORS

Subpart A--General
Sec.
242.1 Purpose and scope.
242.3 Application and responsibility for compliance.
242.5 Effect and construction.
242.7 Definitions.
242.9 Waivers.
242.11 Penalties and consequences for noncompliance.
242.13 Information collection requirements.
Subpart B--Program and Eligibility Requirements
242.101 Certification program required.
242.103 Approval of design of individual railroad programs by FRA.
242.105 Schedule for implementation.
242.107 Types of service.
242.109 Determinations required for certification and
recertification.
242.111 Prior safety conduct as motor vehicle operator.
242.113 Prior safety conduct as an employee of a different railroad.
242.115 Substance abuse disorders and alcohol drug rules compliance.
242.117 Vision and hearing acuity.
242.119 Training.
242.121 Knowledge testing.
242.123 Monitoring operational performance.
242.125 Certification determinations made by other railroads.
242.127 Reliance on qualification requirements of other countries.
Subpart C--Administration of the Certification Program
242.201 Time limitations for certification.
242.203 Retaining information supporting determinations.
242.205 Identification of certified persons and record keeping.
242.207 Certificate components.
242.209 Maintenance of the certificate.
242.211 Replacement of certificates.
242.213 Multiple certifications.
242.215 Railroad oversight responsibilities.
Subpart D--Territorial Qualification and Joint Operations
242.301 Requirements for territorial qualification.
Subpart E--Denial and Revocation of Certification
242.401 Denial of certification.
242.403 Criteria for revoking certification.
242.405 Periods of ineligibility.
242.407 Process for revoking certification.
Subpart F--Dispute Resolution Procedures
242.501 Review board established.
242.503 Petition requirements.
242.505 Processing certification review petitions.
242.507 Request for a hearing.
242.509 Hearings.
242.511 Appeals.
APPENDIX A TO PART 242--SCHEDULE OF CIVIL PENALTIES
APPENDIX B TO PART 242--PROCEDURES FOR SUBMISSION AND APPROVAL OF
CONDUCTOR CERTIFICATION PROGRAMS
APPENDIX C TO PART 242--PROCEDURES FOR OBTAINING AND EVALUATING
MOTOR VEHICLE DRIVING RECORD DATA
APPENDIX D TO PART 242--MEDICAL STANDARDS GUIDELINES
APPENDIX E TO PART 242--APPLICATION OF REVOCABLE EVENTS

    Authority:  49 U.S.C. 20103, 20107, 20135, 20138, 20162, 20163,
21301, 21304, 21311; 28 U.S.C. 2461, note; and 49 CFR 1.49.

Subpart A--General

Sec.  242.1  Purpose and scope.

    (a) The purpose of this part is to ensure that only those persons
who meet minimum Federal safety standards serve as conductors, to
reduce the rate and number of accidents and incidents and to improve
railroad safety.
    (b) This part prescribes minimum Federal safety standards for the
eligibility, training, testing, certification and monitoring of all
conductors to whom it applies. This part does not restrict a railroad
from adopting and enforcing additional or more stringent requirements
consistent with this part.
    (c) The conductor certification requirements prescribed in this
part apply to any person who meets the definition of conductor
contained in Sec.  242.7, regardless of the fact that the person may
have a job classification title other than that of conductor.

Sec.  242.3  Application and responsibility for compliance.

    (a) This part applies to all railroads, except:
    (1) A railroad that operates only on track inside an installation
that is not part of the general railroad system of transportation; or
    (2) Rapid transit operations in an urban area that are not
connected to the general railroad system of transportation.
    (b) Although the duties imposed by this part are generally stated
in terms of the duty of a railroad, each person, including a contractor
for a railroad, who performs any function covered by this part, must
perform that function in accordance with this part.

Sec.  242.5  Effect and construction.

    (a) FRA does not intend, by use of the term conductor in this part,
to alter the terms, conditions, or interpretation of existing
collective bargaining agreements that employ other job classification
titles when identifying a person who is the crew member in charge of a
movement that requires a locomotive engineer.
    (b) FRA does not intend by issuance of these regulations to alter
the authority of a railroad to initiate disciplinary sanctions against
its employees, including managers and supervisors, in the normal and
customary manner, including those contained in its collective
bargaining agreements.
    (c) Except as provided in Sec.  242.213, nothing in this part shall
be construed to create or prohibit an eligibility or entitlement to
employment in other service for the railroad as a result of denial,
suspension, or revocation of certification under this part.
    (d) Nothing in this part shall be deemed to abridge any additional
procedural rights or remedies not inconsistent with this part that are
available to the employee under a collective bargaining agreement, the
Railway Labor Act, or (with respect to employment at will) at common
law with respect to removal from service or other adverse action taken
as a consequence of this part.

Sec.  242.7  Definitions.

    As used in this part--
    Administrator means the Administrator of the FRA or the
Administrator's delegate.
    Alcohol means ethyl alcohol (ethanol) and includes use or
possession of any beverage, mixture, or preparation containing ethyl
alcohol.
    Conductor means the crewmember in charge of a ``train or yard
crew'' as defined in part 218 of this chapter. See also the definition
of ``passenger conductor'' in this section.
    Controlled substance has the meaning assigned by 21 U.S.C. 802 and
includes all substances listed on Schedules I through V as they may be
revised from time to time (21 CFR parts 1301-1316).
    Drug means any substance (other than alcohol) that has known mind
or function-altering effects on a human subject, specifically including
any psychoactive substance and including, but not limited to,
controlled substances.
    Dual purpose vehicle means a piece of on-track equipment that is
capable of moving railroad rolling stock and may also function as
roadway maintenance equipment.
    File, filed and filing mean submission of a document under this
part on the date when the Docket Clerk receives it, or if sent by mail,
the date mailing was completed.
    FRA means the Federal Railroad Administration.
    FRA representative means the FRA Associate Administrator for
Railroad

Safety/Chief Safety Officer and the Associate Administrator's delegate,
including any safety inspector employed by the Federal Railroad
Administration and any qualified state railroad safety inspector acting
under part 212 of this chapter.
    Ineligible or ineligibility means that a person is legally
disqualified from serving as a certified conductor. The term covers a
number of circumstances in which a person may not serve as a certified
conductor. Revocation of certification pursuant to Sec.  242.407 and
denial of certification pursuant to Sec.  242.401 are two examples in
which a person would be ineligible to serve as a conductor. A period of
ineligibility may end when a condition or conditions are met. For
example, when a person meets the conditions to serve as a conductor
following a alcohol or drug violation pursuant to Sec.  242.115.
    Job aid means information regarding other than main track physical
characteristics that supplements the operating instructions of the
territory over which the locomotive or train movement will occur. See
definitions of ``main track'' and ``physical characteristics'' in this
section. A job aid may consist of training on the territory pursuant to
Sec.  242.119, maps, charts or visual aids of the territory, or a
person or persons to contact who are qualified on the territory and who
can describe the physical characteristics of the territory. At a
minimum, a job aid must cover characteristics of a territory including:
Permanent close clearances, location of permanent derails and switches,
assigned radio frequencies in use and special instructions required for
movement, if any, and railroad-identified unique operating conditions.
    Joint operations means rail operations conducted by more than one
railroad on the same track regardless of whether such operations are
the result of--
    (1) Contractual arrangement between the railroads,
    (2) Order of a governmental agency or a court of law, or
    (3) Any other legally binding directive.
    Knowingly means having actual knowledge of the facts giving rise to
the violation or that a reasonable person acting in the circumstances,
exercising due care, would have had such knowledge.
    Locomotive means a piece of on-track equipment (other than
specialized roadway maintenance equipment or a dual purpose vehicle
operating in accordance with Sec.  240.104(a)(2) of this chapter):
    (1) With one or more propelling motors designed for moving other
equipment;
    (2) With one or more propelling motors designed to carry freight or
passenger traffic or both; or
    (3) Without propelling motors but with one or more control stands.
    Locomotive engineer means any person who moves a locomotive or
group of locomotives regardless of whether they are coupled to other
rolling equipment except:
    (1) A person who moves a locomotive or group of locomotives within
the confines of a locomotive repair or servicing area as provided for
in Sec. Sec.  218.5 and 218.29(a)(1) of this chapter; or
    (2) A person who moves a locomotive or group of locomotives for
distances of less than 100 feet and this incidental movement of a
locomotive or locomotives is for inspection or maintenance purposes.
    Locomotive engineer certificate means a certificate issued pursuant
to part 240 of this chapter.
    Main track means a track upon which the operation of trains is
governed by one or more of the following methods of operation:
Timetable; mandatory directive; signal indication; positive train
control as defined in part 236 of this chapter; or any form of absolute
or manual block system.
    Medical examiner means a person licensed as a doctor of medicine or
doctor of osteopathy. A medical examiner can be a qualified full-time
salaried employee of a railroad, a qualified practitioner who contracts
with the railroad on a fee-for-service or other basis, or a qualified
practitioner designated by the railroad to perform functions in
connection with medical evaluations of employees. As used in this rule,
the medical examiner owes a duty to make an honest and fully informed
evaluation of the condition of an employee.
    On-the-job training means job training that occurs in the work
place (i.e., the employee learns the job while doing the job). In the
context of this part, the on-the-job training portion of the training
program must be based on a model generally accepted by the educational
community, and must consist of the following three key components:
    (1) A brief statement describing the tasks and related steps the
employee must be able to perform;
    (2) A statement of the conditions (i.e., tools, equipment,
documentation, briefings, demonstrations, and practice) necessary for
learning transfer; and
    (3) A statement of the standards by which proficiency can be
measured through a combination of task/step accuracy, completeness, and
repetition.
    Passenger conductor means a conductor who has also received
emergency preparedness training under part 239 of this chapter. See
also the definition of ``conductor'' in this section.
    Person means an entity of any type covered under 1 U.S.C. 1,
including but not limited to the following: A railroad; a manager,
supervisor, official, or other employee or agent of a railroad; any
owner, manufacturer, lessor, or lessee of railroad equipment, track, or
facilities; any independent contractor providing goods or services to a
railroad; and any employee of such owner, manufacturer, lessor, lessee,
or independent contractor.
    Physical characteristics means the actual track profile of and
physical location for points within a specific yard or route that
affect the movement of a locomotive or train. Physical characteristics
includes both main track physical characteristics (see definition of
``main track'' in this section) and other than main track physical
characteristics.
    Qualified means a person who has successfully completed all
instruction, training and examination programs required by the
employer, and the applicable parts of this chapter and that the person
therefore may reasonably be expected to be proficient on all safety
related tasks the person is assigned to perform.
    Qualified instructor means a person who has demonstrated, pursuant
to the railroad's written program, an adequate knowledge of the
subjects under instruction and, where applicable, has the necessary
operating experience to effectively instruct in the field, and has the
following qualifications:
    (1) Is a certified conductor under this part; and
    (2) Has been selected as such by a designated railroad officer, in
concurrence with the designated employee representative, where present;
or
    (3) In absence of concurrence provided in paragraph (2) of this
definition, has a minimum of 12 months service working as a train
service employee. If a railroad does not have designated employee
representation, then a person employed by the railroad need not comply
with paragraphs (2) or (3) of this definition to be a qualified
instructor.
    Railroad means any form of nonhighway ground transportation that
runs on rails or electromagnetic guideways and any entity providing
such transportation, including:
    (1) Commuter or other short-haul railroad passenger service in a

metropolitan or suburban area and commuter railroad service that was
operated by the Consolidated Rail Corporation on January 1, 1979; and
    (2) High speed ground transportation systems that connect
metropolitan areas, without regard to whether those systems use new
technologies not associated with traditional railroads; but does not
include rapid transit operations in an urban area that are not
connected to the general railroad system of transportation.
    Railroad officer means any supervisory employee of a railroad.
    Railroad rolling stock is on-track equipment that is either a
freight car (as defined in Sec.  215.5 of this chapter) or a passenger
car (as defined in Sec.  238.5 of this chapter).
    Remote control operator (RCO) means a certified locomotive
engineer, as defined in Sec.  240.7 of this chapter, certified by a
railroad to operate remote control locomotives pursuant to Sec.
240.107 of this chapter.
    Roadway maintenance equipment is on-track equipment powered by any
means of energy other than hand power which is used in conjunction with
maintenance, repair, construction or inspection of track, bridges,
roadway, signal, communications, or electric traction systems.
    Serve or service, in the context of serving documents, has the
meaning given in Rule 5 of the Federal Rules of Civil Procedure as
amended. Similarly, the computation of time provisions in Rule 6 of the
Federal Rules of Civil Procedure as amended are also applicable in this
part. See also the definition of ``filing'' in this section.
    Specialized roadway maintenance equipment is roadway maintenance
equipment that does not have the capability to move railroad rolling
stock. Any alteration of such equipment that enables it to move
railroad rolling stock will require that the equipment be treated as a
dual purpose vehicle.
    Substance abuse disorder refers to a psychological or physical
dependence on alcohol or a drug, or another identifiable and treatable
mental or physical disorder involving the abuse of alcohol or drugs as
a primary manifestation. A substance abuse disorder is ``active''
within the meaning of this part if the person is currently using
alcohol or other drugs, except under medical supervision consistent
with the restrictions described in Sec.  219.103 of this chapter or has
failed to successfully complete primary treatment or successfully
participate in aftercare as directed by a SAP.
    Substance Abuse Professional (SAP) means a person who meets the
qualifications of a substance abuse professional, as provided in part
40 of this title. As used in this rule, the SAP owes a duty to the
railroad to make an honest and fully informed evaluation of the
condition and progress of an employee.
    Territorial qualifications means possessing the necessary knowledge
concerning a railroad's operating rules and timetable special
instructions including familiarity with applicable main track and other
than main track physical characteristics of the territory over which
the locomotive or train movement will occur.

Sec.  242.9  Waivers.

    (a) A person subject to a requirement of this part may petition the
Administrator for a waiver of compliance with such requirement. The
filing of such a petition does not affect that person's responsibility
for compliance with that requirement while the petition is being
considered.
    (b) Each petition for a waiver under this section must be filed in
the manner and contain the information required by part 211 of this
chapter.
    (c) If the Administrator finds that a waiver of compliance is in
the public interest and is consistent with railroad safety, the
Administrator may grant the waiver subject to any conditions the
Administrator deems necessary.

Sec.  242.11  Penalties and consequences for noncompliance.

    (a) A person who violates any requirement of this part or causes
the violation of any such requirement is subject to a civil penalty of
at least $650 and not more than $25,000 per violation, except that:
Penalties may be assessed against individuals only for willful
violations, and, where a grossly negligent violation or a pattern of
repeated violations has created an imminent hazard of death or injury
to persons, or has caused death or injury, a penalty not to exceed
$100,000 per violation may be assessed. Each day a violation continues
shall constitute a separate offense. See Appendix A to this part for a
statement of agency civil penalty policy.
    (b) A person who violates any requirement of this part or causes
the violation of any such requirement may be subject to
disqualification from all safety-sensitive service in accordance with
part 209 of this chapter.
    (c) A person who knowingly and willfully falsifies a record or
report required by this part may be subject to criminal penalties under
49 U.S.C. 21311.
    (d) In addition to the enforcement methods referred to in
paragraphs (a), (b), and (c) of this section, FRA may also address
violations of this part by use of the emergency order, compliance
order, and/or injunctive provisions of the Federal rail safety laws.

Sec.  242.13  Information collection requirements.

    (a) The information collection requirements of this Part were
reviewed by the Office of Management and Budget pursuant to the
Paperwork Reduction Act of 1980 (44 U.S.C. 3501 et seq.) and are
assigned OMB control number ------.
    (b) The information collection requirements are found in the
following sections: (TO BE INSERTED IN FINAL RULE).

Subpart B--Program and Eligibility Requirements

Sec.  242.101  Certification program required.

    (a) After the pertinent date specified in Sec.  242.105(d) or (e),
each railroad shall have a certification program approved in accordance
with Sec.  242.103 that includes:
    (1) A designation of the types of service that it determines will
be used in compliance with the criteria established in Sec.  242.107;
    (2) A procedure for evaluating prior safety conduct that complies
with the criteria established in Sec.  242.109;
    (3) A procedure for evaluating visual and hearing acuity that
complies with the criteria established in Sec.  242.117;
    (4) A procedure for training that complies with the criteria
established in Sec.  242.119;
    (5) A procedure for knowledge testing that complies with the
criteria established in Sec.  242.121; and
    (6) A procedure for monitoring operational performance that
complies with the criteria established in Sec.  242.123.
    (b) Reserved.

Sec.  242.103  Approval of design of individual railroad programs by
FRA.

    (a) Each railroad shall submit its written certification program
and request for approval in accordance with the procedures contained in
appendix B of this part according to the following schedule:
    (1) A Class I railroad (including the National Railroad Passenger
Corporation), Class II railroad, or railroad providing commuter service
shall submit a program no later than March 30, 2012; and
    (2) A Class III railroad (including a switching and terminal or
other railroad

not otherwise classified) shall submit a program no later than July 30,
2012.
    (b) A railroad commencing operations after the pertinent date
specified in paragraph (a) of this section shall submit its written
certification program and request for approval in accordance with the
procedures contained in appendix B to this part at least 60 days prior
to commencing operations.
    (c) Each railroad shall:
    (1) Simultaneous with its filing with the FRA, serve a copy of the
submission filed pursuant to paragraph (a) or (b) of this section, a
resubmission filed pursuant to paragraph (h) of this section, or a
material modification filed pursuant to paragraph (i) of this section
on the president of each labor organization that represents the
railroad's employees subject to this part; and
    (2) Include in their submission filed pursuant to paragraph (a) or
(b) of this section, a resubmission filed pursuant to paragraph (h) of
this section, or a material modification filed pursuant to paragraph
(i) of this section a statement affirming that the railroad has served
a copy on the president of each labor organization that represents the
railroad's employees subject to this part, together with a list of the
names and addresses of persons served.
    (d) Not later than 45 days from the date of filing a submission
pursuant to paragraph (a) or (b) of this section, a resubmission
pursuant to paragraph (h) of this section, or a material modification
pursuant to paragraph (i) of this section, any designated
representative of railroad employees subject to this part may comment
on the submission, resubmission, or material modification:
    (1) Each comment shall set forth specifically the basis upon which
it is made, and contain a concise statement of the interest of the
commenter in the proceeding;
    (2) Each comment shall be submitted to the Associate Administrator
for Railroad Safety/Chief Safety Officer, FRA, 1200 New Jersey Avenue,
SE., Washington, DC 20590; and
    (3) The commenter shall certify that a copy of the comment was
served on the railroad.
    (e) The submission required by paragraph (a) or (b) of this section
shall state the railroad's election either:
    (1) To accept responsibility for the training of conductors and
thereby obtain authority for that railroad to initially certify a
person as a conductor in an appropriate type of service; or
    (2) To recertify only conductors previously certified by other
railroads.
    (f) A railroad that elects to accept responsibility for the
training of conductors shall state in its submission whether it will
conduct the training program or employ a training program conducted by
some other entity on its behalf but adopted and ratified by that
railroad.
    (g) A railroad's program is considered approved and may be
implemented 30 days after the required filing date (or the actual
filing date) unless the Administrator notifies the railroad in writing
that the program does not conform to the criteria set forth in this
part.
    (1) If the Administrator determines that the program does not
conform, the Administrator will inform the railroad of the specific
deficiencies.
    (2) If the Administrator informs the railroad of deficiencies more
than 30 days after the initial filing date, the original program may
remain in effect until 30 days after approval of the revised program is
received.
    (h) A railroad shall resubmit its program within 30 days after the
date of such notice of deficiencies. A failure to resubmit the program
with the necessary revisions will be considered a failure to implement
a program under this part.
    (1) The Administrator will inform the railroad in writing whether
its revised program conforms to this part.
    (2) If the program does not conform, the railroad shall resubmit
its program.
    (i) A railroad that intends to materially modify its program after
receiving initial FRA approval shall submit a description of how it
intends to modify the program in conformity with the specific
requirements of this part at least 60 days prior to implementing such a
change.
    (1) A modification is material if it would affect the program's
conformance with this part.
    (2) The modification submission shall contain a description that
conforms to the pertinent portion of the procedures contained in
appendix B of this part.
    (3) The modification submission will be handled in accordance with
the procedures of paragraphs (g) and (h) of this section as though it
were a new program.

Sec.  242.105  Schedule for implementation.

    (a) By March 1, 2012, each railroad shall:
    (1) In writing, designate as certified conductors all persons
authorized by the railroad to perform the duties of a conductor as of
January 1, 2012; and
    (2) Issue a certificate that complies with Sec.  242.207 to each
person that it designates.
    (b) After March 1, 2012, each railroad shall:
    (1) In writing, designate as a certified conductor any person who
has been authorized by the railroad to perform the duties of a
conductor between January 1, 2012 and the pertinent date in paragraph
(d) or (e) of this section; and
    (2) Issue a certificate that complies with Sec.  242.207 to each
person that it designates.
    (c) No railroad shall permit or require a person, designated as a
certified conductor under the provisions of paragraph (a) or (b) of
this section, to perform service as a certified conductor for more than
a 36-month period beginning on the pertinent date for compliance with
the mandatory procedures for testing and evaluation set forth in the
applicable provisions of paragraph (d) or (e) of this section unless
that person has been certified in accordance with procedures that
comply with subpart B of this part.
    (1) Except as provided in paragraph (c)(3) of this section, a
person who has been designated as a certified conductor under the
provisions of paragraph (a) or (b) of this section and who is eligible
to receive a retirement pension in accordance with the terms of an
applicable agreement or in accordance with the terms of the Railroad
Retirement Act (45 U.S.C. 231) within 36 months from the pertinent date
for compliance with the mandatory procedures for testing and evaluation
set forth in the applicable provisions of paragraph (d) or (e) of this
section, may request, in writing, that a railroad not recertify that
person, pursuant to subpart B of this part, until 36 months from the
pertinent date for compliance with the mandatory procedures for testing
and evaluation set forth in the applicable provisions of paragraph (d)
or (e) of this section.
    (2) Upon receipt of a written request pursuant to paragraph (c)(1)
of this section, a railroad may wait to recertify the person making the
request until the end of the 36-month period described in paragraph (c)
of this section. If a railroad grants any request, it must grant the
request of all eligible persons to every extent possible.
    (3) A person who is subject to recertification under part 240 of
this chapter may not make a request pursuant to paragraph (c)(1) of
this section.
    (d) After June 1, 2012, no Class I railroad (including the National
Railroad Passenger Corporation), Class II railroad, or railroad
providing commuter service shall initially certify or recertify a
person as a conductor

unless that person has been tested and evaluated in accordance with
procedures that comply with subpart B of this part and issued a
certificate that complies with Sec.  242.207.
    (e) After September 1, 2012, no Class III railroad (including a
switching and terminal or other railroad not otherwise classified)
shall initially certify or recertify a person as a conductor unless
that person has been tested and evaluated in accordance with procedures
that comply with subpart B of this part and issued a certificate that
complies with Sec.  242.207.
    (f) After the applicable dates specified in paragraphs (d) and (e)
of this section, no person shall serve as a conductor in any type of
service and no railroad shall require or permit any person to serve as
a conductor in any type of service unless that person has been tested
and evaluated in accordance with procedures that comply with subpart B
of this part and issued a certificate that complies with Sec.  242.207.

Sec.  242.107  Types of service.