railroad would have to incorporate in its signal employee certification
program. This section differs from its analogous sections in 49 CFR
parts 240 and 242 in that 40 CFR parts 240 and 242 address the
requirements of vision and hearing acuity in the same section. However,
FRA determined that for this proposed rule, it could more clearly
present these requirements if they are in two separate sections: one
section for vision acuity (Sec.  246.117) and one section for hearing
acuity (Sec.  246.118).
    Paragraph (c) of this section contains the general vision standards
that a person would be required to satisfy in order to be certified as
a signal employee unless they are determined to have sufficient vision
acuity under paragraph (d) of this section. The standards in paragraph
(c) mirror the vision acuity standards for locomotive engineers and
conductors in 49 CFR parts 240 and 242. FRA is proposing that certified
signal employees should have to satisfy certain vision standards, with
the ability to distinguish between colors being particularly important.
However, FRA requests comments on whether vision acuity standards for
certified signal employees are necessary, and if so, whether they
should be as strict as the standards for locomotive engineers and
conductors.
    Although some individuals may not be able to meet the threshold
acuity levels in paragraph (c) of this section, they may be able to
compensate in other ways that will permit them to function at an
appropriately safe level despite their physical limitations. Paragraph
(d) of this section permits a railroad to have procedures whereby
doctors can evaluate such individuals and make discrete determinations
about each person's ability to compensate for their physical
limitations. If the railroad's medical examiner concludes that an
individual has compensated for their limitations and could safely serve
as a certified signal employee, the railroad could certify that person
under this proposed regulation if the railroad obtains the medical
examiner's professional medical opinion to that

effect. If necessary, medical examiners could condition their opinion
on certain circumstances or restrictions, such as the use of corrective
lens.
    Paragraph (e) of this section describes what documents the railroad
would be required to keep on file with respect to vision acuity
testing. Railroads would be required to retain these records for
individuals who the railroad certifies as signal employees, as well as
those individuals for whom the railroad denies certification. Paragraph
(g) of this section addresses the issue of vision deterioration. Once
certified signal employees become aware that their vision has
deteriorated, they must notify the railroad before performing any
subsequent service as a certified signal employee. FRA presumes that
certified signal employees would most likely become aware of
deterioration in their vision either through their own personal
observation or through examination by a medical professional. Should
this occur, before a certified signal employee can return to service,
they must be reexamined. If upon reexamination, the railroad's medical
examiner concludes that the certified signal employee still satisfies
the vision acuity standards in this part, the certified signal employee
would be allowed to return to service. However, if the medical examiner
concludes that the certified signal employee no longer satisfies these
requirements, the railroad must deny the person's certification in
accordance with Sec.  246.301, regardless of how much time remains
before the signal employee's current certificate expires. Certified
signal employees should note that willful noncompliance with the
notification requirement in this paragraph could result in enforcement
action.
Section 246.118 Hearing Acuity
    This proposed section, derived from 49 CFR 240.121, 240.207, and
242.117, contains the requirements for hearing acuity testing that a
railroad would be required to incorporate in its signal employee
program.
    Paragraph (c) of this section contains the general hearing
standards that a person must satisfy in order to be certified as a
signal employee unless they are determined to have sufficient hearing
acuity under paragraph (d) of this section. The standards in paragraph
(c) mirror the hearing acuity standards for locomotive engineers and
conductors in 49 CFR parts 240 and 242. FRA is considering whether
hearing acuity standards are necessary for certified signal employees
and if so, whether they need to be as stringent as the standards for
engineers and conductors. FRA proposes that certified signal employees
should have to satisfy certain hearing standards and it seems logical
for these standards to be consistent with the hearing standards for
engineers and conductors. However, FRA requests comments on whether
hearing acuity standards for certified signal employees are necessary,
and if so, whether they should be as strict as the standards for
locomotive engineers and conductors.
    Although some individuals may not be able to meet the threshold
acuity levels in paragraph (c) of this section, they may be able to
compensate in other ways that will permit them to function at an
appropriately safe level despite their physical limitations. Paragraph
(d) of this section would permit a railroad to have procedures whereby
doctors can evaluate such individuals and make discrete determinations
about each person's ability to compensate for their physical
limitations. If the railroad's medical examiner concludes that an
individual has compensated for their limitations and could safely serve
as a certified signal employee, the railroad could certify that person
under this regulation once the railroad possesses the medical
examiner's professional medical opinion to that effect. If necessary,
medical examiners could condition their opinion on certain
circumstances or restrictions, such as the use of a hearing aid.
    Paragraph (e) of this section describes what documents the railroad
would be required to keep on file with respect to hearing acuity
testing. Railroads would be required to retain these records for both
individuals who the railroad certifies as signal employees and those
individuals for whom the railroad denies certification. Paragraph (g)
of this section addresses the issue of hearing deterioration. Once
certified signal employees become aware that their hearing has
deteriorated, they would be required to notify the railroad before
performing any subsequent service as a certified signal employee. FRA
presumes certified signal employees would most likely become aware of
deterioration in their hearing either through their own personal
observation or through examination by a medical professional. Before a
certified signal employee could return to service, they would have to
be reexamined. If upon reexamination, the railroad's medical examiner
concludes that the certified signal employee still satisfies the
hearing acuity standards in this part, the certified signal employee
could return to service. However, if the medical examiner concludes
that the certified signal employee no longer satisfies these
requirements, the railroad would be required to deny the person's
certification in accordance with Sec.  246.301, regardless of how much
time remains before the signal employee's current certificate expires.
Certified signal employees should note that willful noncompliance with
the notification requirement in this paragraph could result in
enforcement action.
Section 246.119 Training Requirements
    This proposed section, derived from 49 CFR 240.123, 240.213, and
242.119, would require railroads to provide initial and periodic
training to signal employees. Such training is necessary to ensure
certified signal employees have the knowledge, skills, and abilities
necessary to safely perform all of the safety-related duties mandated
by Federal law, regulations, and orders.
    Paragraph (b) of this section would require railroads to address in
their certification programs whether the railroad will accept
responsibility for training persons who have not been previously
certified as signal employees and thus obtain authority to provide
initial signal employee certification or whether the railroad will only
recertify signal employees who were previously certified by other
railroads. If a railroad accepts responsibility for training persons
who have not been previously certified as signal employees, paragraph
(c) of this section would require the railroad to state in its
certification program whether it will conduct the training or whether
the railroad will employ a training program that has been adopted and
ratified by the railroad, but will be conducted by another entity on
its behalf.
    Under this section, railroads would have latitude to design and
develop the training and delivery methods they will employ; but
paragraphs (d), (e), and (f) of this section contain proposed
requirements for railroads that elect to train persons who have not
been previously certified as signal employees. Pursuant to paragraph
(d), a railroad that makes this election would be required to determine
how training will be structured, developed, and delivered, including an
appropriate combination of classroom, simulator, computer-based,
correspondence, practical demonstration, on-the-job training, or other
formal training. Paragraph (d)(3) would also require railroads to
review and modify their training programs whenever new safety-related
railroad laws, regulations, orders, and procedures are issued, as well
as whenever new signal systems,

technologies, software, or equipment are introduced into the workplace.
    Paragraph (f) of this section provides the requirements a person
not previously certified as a signal employee would have to satisfy in
order to become a certified signal employee. Paragraph (f)(2) states
the person must demonstrate on-the-job proficiency by successfully
completing the tasks, and using the signal systems and technology
necessary, to be a certified signal employee on the railroad. A
certification candidate may perform these tasks under the direct onsite
supervision of a certified signal employee who has at least one year of
experience as a signal employee. FRA requests comments, including any
supporting data, on whether this ``one year of experience'' requirement
for certified signal employees supervising certification candidates is
sufficient. The final proposed requirement, found in paragraph (f)(3),
is that the previously uncertified person must demonstrate their
knowledge of the railroad's signal systems, technologies, software, and
equipment deployed on the railroad's territory. If the railroad uses a
written test to fulfill this requirement, paragraph (f)(3) would
require the railroad to provide the person(s) being tested with an
opportunity to consult with a qualified instructor to explain a test
question. This requirement is equivalent to 49 CFR 242.119(f) and is
included so that certification candidates being tested can obtain
clarification of test questions from someone who possesses knowledge of
the signal systems, technologies, software and equipment deployed in
the relevant territory.
    Paragraph (g) of this section would require railroads to retain
written documentation of the listed determinations. Paragraph (g)(1)
would only apply to people who have not been previously certified as
signal employees, whereas paragraph (g)(2) would apply to all persons
seeking signal employee certification.
    Paragraph (h) would require all railroads, regardless of their
election in paragraph (b) of this section, to provide comprehensive
training on the installation, operation, testing, maintenance, and
repair of the signal systems and related technology deployed on their
territory. (This training must include training on both signal software
and signal equipment.) In order to implement this requirement,
paragraph (h) requires railroads to address in their certification
program how such training will be provided and how the railroad will
ensure that each certified signal employee receives this comprehensive
training before the employee is required to install, operate, test,
maintain, or repair any signal system or related technology deployed on
the railroad's territory.
    Paragraph (h)(3) would also require railroads to discuss in their
programs the maximum amount of time that a certified signal employee
can be absent from performing various types of safety-sensitive work on
signal systems before refresher training will be required. This
provision is intended to require railroads to address situations in
which a certified signal employee may have been working on signal
system installations for an extended period and was not involved in the
intricacies of maintenance and repair of those systems during that
time. This time period cannot exceed twelve months. However, railroads
would be allowed to choose a shorter time period if they desire.
    Paragraph (j) of this section would require each railroad to
provide for the continuing education of their certified signal
employees to ensure each certified signal employee maintains the
necessary knowledge and skills concerning compliance with all
applicable Federal laws, regulations, and orders; compliance with all
applicable railroad signal system safety and operating rules; and
compliance with all applicable standards, procedures, and instructions
for the installation, operation, testing, maintenance, troubleshooting,
and repair of new and existing signal systems and new and existing
signal-related technology deployed on its territory. Given the formal
annual review and analysis of railroad certification programs that each
Class I railroad, commuter railroad, and Class II railroad would be
required by Sec.  246.215 to conduct, FRA anticipates that these
railroads will address issues identified during the annual review and
analysis of their certification programs in their continuing education
programs. Thus, FRA expects the annual review and analysis required by
Sec.  246.215 will help improve the overall quality of the railroads'
training programs.
    Paragraph (k) is intended to ensure that each certified signal
employee receives comprehensive training on the installation,
operation, testing, maintenance, and repair of new signal systems
(including software and equipment) and new signal-related technology
deployed on the railroad's territory before the employee is required to
install, operate, test, maintain, or repair any such system or signal-
related technology.
Section 246.121 Knowledge Testing
    This proposed section, derived from 49 CFR 240.125, 240.209, and
242.121, would require railroads to provide for the initial and
periodic testing of certified signal employees. Paragraph (b) of this
section outlines the general requirements for such testing. This
testing will have to effectively examine and measure a signal
employee's knowledge of: (a) all applicable Federal railroad safety
laws, regulations, and orders governing signal systems and related
technology, (b) all applicable railroad safety and operating rules, and
(c) all applicable railroad standards, procedures, and instructions for
the installation, operation, testing, maintenance, troubleshooting, and
repair of the railroad's signal systems and related technology.
    Under this section, railroads would have discretion to design the
tests that will be employed; for most railroads that would entail some
modification of their existing ``book of rules'' examination to include
new subject areas. This section does not specify the minimum number of
questions to be asked or the passing score to be obtained. However, it
would require that the test be conducted without open reference books
unless use of such materials is part of a test objective. Also, this
section would require that knowledge testing include a practical
demonstration component, with other test components in written or
electronic form. Since the testing procedures and requirements selected
by the railroad would be submitted to FRA for approval, FRA expects the
railroad would describe how it will exercise its discretion to ensure
certified signal employees on its territory demonstrate their knowledge
concerning the safe discharge of their responsibilities. FRA would also
monitor the exercise of discretion being afforded to railroads by this
section.
    Paragraph (c) of this section mirrors 49 CFR 242.121(e) and would
require the railroad to provide the person(s) being testing with an
opportunity to consult with a qualified instructor to explain one or
more test questions.
    Paragraph (d) of this section states that if a person fails a test,
the railroad cannot allow that person to serve as a certified signal
employee until they achieve a passing score on reexamination. The
railroad would decide how much time, if any, mut pass after a test
failure before a certification candidate can be reexamined.
Furthermore, the railroad would decide what additional training, if
any, a candidate would receive after a test

failure. The railroad would also decide whether there should be a limit
on the number of times a candidate could retake a test, and if so, the
number of test retakes the railroad will allow.
Section 246.123 Monitoring Operational Performance
    This proposed section, derived from 49 CFR 240.129 and 242.123,
contains proposed requirements for conducting unannounced compliance
tests. Paragraph (a) of this section would require each railroad to
describe in its certification program how it will monitor the conduct
of its certified signal employees by performing unannounced compliance
tests on the railroad's signal standards, test procedures, and Federal
regulations concerning signal systems, as well as monitoring the
performance of signal-related tasks. Paragraph (a)(3) would require
railroads to indicate the types of actions they will take if they
identify deficiencies in a certified signal employee's performance
during an unannounced compliance test. FRA believes it is up to each
railroad to decide the appropriate action to take in light of various
factors, including collective bargaining agreements. Further, FRA
believes that the vast majority of railroads have adequate policies to
deal with deficiencies in a signal employee's performance and have
handled them appropriately for many years.
    To avoid restricting the options available to the railroads and
employee representatives to develop processes for handling test
failures, FRA designed this regulation to be as flexible as possible.
There are a variety of actions and approaches that a railroad could
take, such as developing and providing formal remedial training for
certified signal employees who fail tests or have deficiencies in their
performance. Railroads could also implement formal procedures whereby
certified signal employees are given the opportunity to explain, in
writing, the factors that they believe caused their test failure or
performance deficiency. These explanations could help railroads
identify areas of training on which to focus or perhaps discover that
the reason for the failure/deficiency was due to something other than a
lack of skills. FRA believes there are numerous other approaches that
could be considered and evaluated by railroads and their certified
signal employees. FRA does not want to stifle a railroad's ability to
adopt an approach that is best for its organization.
    Paragraph (a)(4) would require railroads to describe how they will
monitor the performance of signal-related tasks by their certified
signal employees. For example, railroad monitoring could include
unaccompanied, post-installation inspections of signal cut-overs
(conducted within three days of the installation) to verify that the
certified signal employee properly installed and tested the signal
system in accordance with the railroad's signal standards. Paragraph
(b) of this section provides proposed requirements for these
unannounced compliance tests, including signal system tests that must
be performed and who would be allowed to conduct the tests. Paragraph
(b)(3) specifies that each railroad would be required to give each of
its certified signal employees at least one unannounced compliance test
each calendar year, except as provided in paragraph (d) of this
section. FRA recognizes that before these unannounced compliance tests
can be performed in conformance with this section, a railroad's
certification program must first be approved by FRA. Thus, at the
latest, FRA expects railroads to perform these unannounced compliance
tests on all of their certified signal employees during the calendar
year immediately following the year their certification program is
first approved by FRA. For example, if FRA approves one railroad's
program in January 2025 and another railroad's program in December
2025, both of these railroads would be required to perform unannounced
compliance tests on all of their certified signal employees starting in
2026. While FRA would encourage these railroads to commence the
unannounced tests after their programs are approved in 2025, FRA
recognizes it may not be practical to perform unannounced tests on all
of their certified signal employees by the end of 2025, especially for
the railroad whose program was not approved until December 2025.
    Paragraph (c) of this section reflects FRA's recognition that some
certified signal employees may not be performing tasks that require
certification. Therefore, a railroad would not be required to provide
those certified signal employees with an annual, unannounced compliance
test. For example, a certified signal employee may be on furlough, in
military service, off with an extended illness, or working in another
craft. In situations like these where a certified signal employee is
not performing tasks that require certification, the railroad would not
have to give an unannounced compliance test. However, when the
certified signal employee resumes work on signal systems that requires
certification, they would have to be given an unannounced compliance
test within 30 days. Moreover, the railroad would be required to retain
a written record documenting the dates on which the certified signal
employee stopped performing tasks requiring certification, the date the
certified signal employee resumed performing signal system work
requiring certification, and the date the certified signal employee
received their unannounced compliance test following their resumption
of signal system work requiring certification.
Section 246.124 Mentoring
    This proposed section would require railroads to include, in their
certification programs, procedures for mentoring signal employees who
have not been certified by the railroad (such as newly-hired signal
employees who were certified by their previous employers). By allowing
for the mentoring of these signal employees, railroads can allow
uncertified signal employees to perform signal work under the direct
oversight and supervision of a mentor until these signal employees are
certified by the railroad.
    After a railroad's certification program has been approved by FRA,
paragraph (b) of this section would require that the railroad assign
either a signal employee that it has certified pursuant to this part or
a signal employee who is working under the direct observation and
supervision of a mentor to perform work on a signal system or signal-
related technology that requires certification. Therefore, if the
railroad assigns a signal employee that it has not certified to perform
work on a signal system or signal-related technology that requires
certification, paragraph (b) would require the railroad to assign a
mentor who can directly oversee and supervise the work performed by the
signal employee.
    Paragraph (c) of this section would only apply to railroads who
elect to classify their certified signal employees into more than one
occupational category or subcategory, in accordance with Sec.  246.107.
These railroads would be required by paragraph (c) to address in their
certification programs how mentoring will be provided for certified
signal employees who move into a different occupational category or
subcategory of certified signal service.
    Paragraph (e) of this section reflects FRA's intent that mentors
must be held accountable for the work performed by the signal employees
who are working under their direct oversight and supervision.
Therefore, paragraph (e)

would require railroads to address in their certification programs how
they will hold mentors accountable for the work performed by signal
employees who are working under their direct oversight and supervision.
Section 246.125 Certification Determinations Made by Other Railroads
    This section of the proposed rule, derived from 49 CFR 240.225 and
242.125, contains requirements that would apply when a certified or
previously certified signal employee is about to begin work for a
different railroad. This section would allow a railroad to rely on
determinations made by another railroad concerning a person's
certification.
    As noted previously in the discussion above related to Sec.
246.124, railroads would be required to provide mentoring for signal
employees with some signal system work experience who have not been
certified by the railroad. However, this section would also require
railroads to address in their certification programs how they will
administer training for previously uncertified signal employees with
extensive signal experience or previously certified signal employees
who have had their certification expire. In both scenarios, FRA would
allow the railroad to reduce the on-the-job training that might
otherwise be required if these signal employees were treated as having
no signal system work experience. However, if a railroad's
certification program fails to specify how the railroad will train a
previously certified signal employee hired from another railroad, all
signal employees hired by that railroad would be required to take the
hiring railroad's entire training program (regardless of the signal
employee's prior certification status).

Subpart C--Administration of the Certification Program

Section 246.201 Time Limitations for Certification
    This proposed section, derived from 49 CFR 240.217 and 242.201,
contains various time constraints that preclude railroads from relying
on stale information when evaluating a candidate for certification or
recertification. For example, when making a determination of
eligibility based on prior safety conduct on a different railroad
pursuant to Sec.  246.113, paragraph (a)(1) would prohibit a railroad
from relying on information provided more than one year before the
railroad's certification decision. However, paragraph (b) goes on to
explain that the time constraints listed in paragraph (a) would not
apply to railroads who are making certification or recertification
decisions based on the eligibility determination that have already been
made by another railroad in accordance with Sec.  246.125.
    Paragraph (c) would prohibit a railroad from certifying a person as
a signal employee for more than three years except for those
individuals who are designated as certified signal employees under
Sec.  246.105(c) or (d). When a railroad designates a person as a
certified signal employee under Sec.  246.105(c) or (d), that
certification can last for three years after the date that FRA
initially approves the railroad's certification program. This could,
however, lead to situations where a certificate could be valid for more
than three years. For example, if a railroad designates a person as a
certified signal employee in January 2025, but FRA does not approve the
railroad's certification program until January 2026, the signal
employee's certification could last until January 2029 (four years in
total). However, any subsequent recertifications for that signal
employee could only last for three years. In other words, if the signal
employee in the previous example got recertified in January 2029, that
certificate would expire no later than January 2032.
    Paragraph (d) would require railroads to issue certificates that
comply with Sec.  246.207 to their certified signal employees within 30
days from the date of the railroad's decision to certify or recertify
that person.
Section 246.203 Retaining Information Supporting Determinations
    This proposed section, derived from 49 CFR 240.215 and 242.203,
contains recordkeeping requirements for railroads that employ certified
signal employees. Paragraph (b) lists the documents that railroads
would be required to retain for each of their certified signal
employees and certification candidates, while paragraph (e) would
require railroads to retain these records for six (6) years from the
date of the certification, recertification, denial, or revocation
decision. Paragraph (e) would also require railroads to make these
records available to FRA representatives, upon request, in a timely
manner.
    Paragraph (f) would prohibit railroads and individuals from
falsifying records that railroads are required to retain pursuant to
this section. Paragraph (g) contains minimum standards for electronic
recordkeeping with which railroads would be required to comply to
maintain electronic versions of the required records. These minimum
standards for electronic recordkeeping are virtually identical to the
electronic recordkeeping standards contained in 49 CFR 242.203.
Section 246.205 List of Certified Signal Employees and Recordkeeping
    This proposed section, derived from 49 CFR 240.221 and 242.205,
would require a railroad to maintain a list of its certified signal
employees. Paragraph (b) of this section would also require railroads
to update their lists of certified signal employees at least annually
and to make its list of certified signal employees available, upon
request, to FRA representatives in a timely manner.
    Paragraph (c) contains minimum standards for electronic
recordkeeping with which railroads would be required to comply, in
order to maintain an electronic version of the list of certified signal
employees required by this section. These minimum standards are similar
to the electronic recordkeeping standards contained in 49 CFR 242.205.
    Paragraph (d) would prohibit railroads and individuals from
falsifying the list of certified signal employees that railroads are
required to maintain pursuant to this section.
Section 246.207 Certificate Requirements
    This proposed section contains proposed requirements for the
certificate that each certified signal employee would be required to
carry. The requirements in paragraphs (a)-(e) of this section, which
pertain to the proposed minimum content for certificates and
authorization of the person who would be designated to sign the
certificates, are derived from 49 CFR 240.223 and 242.207.
    Paragraph (a) of this section specifies that railroads have the
option of issuing certificates electronically or in paper form.
Paragraph (a)(1) would require that the signal employee certificate
identify the railroad issuing the certificate. Therefore, a certified
signal employee who works for more than one railroad would be required
to have a separate certificate for each railroad with whom the signal
employee is certified. For railroads who choose to classify their
certified signal employees into occupational categories or
subcategories, pursuant to Sec.  246.107, paragraph (a)(2) would
require the railroad to indicate the specific signal employee
category(ies) or subcategory(ies) for which the person has been
certified.
    Paragraph (a)(7) would require the certificate to be signed by an
individual who has been designated by the railroad

as an authorized signatory of signal employee certificates, as
described in paragraph (c) of this section. Electronic signatures are
permitted under this proposed rule. In addition, paragraph (e) of this
section would prohibit railroads and individuals from falsifying
certificates.
    Paragraphs (f) and (i) are derived from 49 CFR 240.305 and 242.209.
These paragraphs would require signal employees to have their
certificates in their possession while on duty, display their
certificates when requested by an FRA representative, State inspectors
\21\ authorized under 49 CFR part 212, or certain railroad officers,
and to notify a railroad if they are called to serve as a signal
employee in a service that would cause the employee to exceed their
certificate limits.
---------------------------------------------------------------------------

    \21\ Although State inspectors authorized under 49 CFR part 212
could be considered FRA representatives, they are mentioned
separately in this section to ensure there is no dispute regarding
their authority.
---------------------------------------------------------------------------

    Paragraph (g), derived from 49 CFR 240.301 and 242.211(a), would
require a railroad to promptly replace a certified signal employee's
certificate at no cost to the employee, if the certificate is lost,
stolen, mutilated, or becomes unreadable. However, unlike Sec.
242.211(b), this section does not contain detailed requirements for
temporary replacement certificates. Temporary replacement certificates
generally contain most of the information provided on official
certificates. Therefore, it does not appear to be especially burdensome
for railroads to issue temporary certificates to replace certificates
that have been lost, stolen, mutilated, or become unreadable.
Nonetheless, by refraining from proposing a formal process for the
issuance of temporary replacement certificates, FRA would allow
railroads to decide how and when to issue temporary replacement
certificates to signal employees. FRA is soliciting comment on this
proposed approach.
Section 246.213 Multiple Certifications \22\
---------------------------------------------------------------------------

    \22\ To the extent possible, FRA has attempted to match the
section numbers in this proposed rule to analogous sections in the
conductor certification rule (49 CFR part 242). Since 49 CFR 242.213
addresses multiple certification issues, FRA is proposing to use
section number 246.213 for the multiple certification section in
this proposed rule instead of the next sequential section number,
which would be 246.209.
---------------------------------------------------------------------------

    This proposed section, derived from 49 CFR 240.308 and 242.213,
establishes how railroads would handle certified signal employees who
are also certified in another railroad craft. FRA recognizes that while
it is fairly common for an individual to work as both an engineer and a
conductor, it is less common for a signal employee to also work in
another craft that requires certification. However, because situations
may arise where a certified signal employee is also certified to work
in another craft, such as a locomotive engineer or conductor, FRA would
like to address how railroads would be required to handle such
situations.
    Paragraph (a) of this section would allow a certified signal
employee to become certified in one or more of the other railroad
crafts that require certification such as locomotive engineer or
conductor. If a person is certified in multiple crafts by the same
railroad, paragraph (b) would require the railroad to coordinate the
expiration dates of those certificates, to the extent possible. While
railroads are not required to have all of a person's certificates
expire at the same time, it would be beneficial from the standpoint of
administrating the certification programs if railroads followed this
practice. Thus, FRA encourages railroads to coordinate these expiration
dates when possible.
    Paragraph (c) of this section would pertain to signal employees who
hold signal employee certificates issued by multiple railroads or who
are seeking to become certified signal employees for multiple
railroads. Paragraph (c)(1) would require the signal employee to
immediately notify their employer(s) and all railroads with whom the
signal employee holds a signal employee certificate, if a railroad
denies, suspends, or revokes the signal employee's certification or
recertification. Certified signal employees should note that willful
noncompliance with the notification requirements in this paragraph will
likely result in enforcement action including, but not limited to,
disqualification from safety-sensitive service.
    Paragraph (c)(2) would prohibit an individual from working as a
certified signal employee for any railroad while their signal employee
certification is suspended or revoked by a railroad, except as provided
for in Sec.  246.124(d). For example, if an individual is a certified
signal employee with Railroad ABC and Railroad DEF, and ABC suspends
and/or revokes the individual's certificate, that individual would not
be able to work as a certified signal employee for DEF, or any other
railroad, during the period of suspension and/or revocation. (Section
246.124(d) would, however, allow the individual to perform work on
signal systems, if allowed by a railroad's certification program, under
the direct oversight and supervision of a mentor.)
    Paragraph (c)(3) states that if a person has their signal employee
certification suspended or revoked by one railroad and that person
attempts to become a certified signal employee with another railroad
during the certificate suspension or revocation period, they must
notify the railroad from whom they are seeking certification that their
signal employee certificate has been suspended or revoked. Therefore,
if a person is seeking signal employee certification with Railroad XYX
when their signal employee certificate is suspended or revoked by
Railroad ABC, they must notify XYZ of their current suspended or
revoked certification status.
    Paragraphs (d), (e), and (f) of this section address how the
revocation of a person's signal employee certification would affect
that person's ability to work in another railroad craft requiring
certification and vice versa. If a person's signal employee
certification is revoked because of a drug or alcohol violation, as
described in Sec.  246.303(e)(11), then that person would be ineligible
to work in any craft requiring certification, such as a locomotive
engineer or conductor, for any railroad during the period of
revocation. Such person would also be prohibited from obtaining
certification in any of those crafts from any railroad while their
signal employee certification is revoked. Likewise, if a person's non-
signal employee certification, such as locomotive engineer or
conductor, is revoked because of an alcohol or drug violation, as
described in Sec.  219.101 of this chapter, that person will be
ineligible to work as a certified signal employee or obtain a signal
employee certificate from any railroad during the revocation period. In
contrast, if a signal employee's certification is revoked for a
violation that does not involve alcohol or drugs, as described in
Sec. Sec.  246.303(e)(1) through (10), that person would still be able
to work in any other railroad craft requiring certification, such as a
locomotive engineer or conductor, during the period of revocation, as
long as the person is certified in that craft. Likewise, a person could
still work as a certified signal employee if their certificate for
another railroad craft, such as locomotive engineer or conductor, was
revoked due to a violation that did not involve drugs or alcohol.
    FRA's reasoning for this line of delineation between revocable
events that involve alcohol and drugs and those that do not is rooted
in railroad safety. If someone shows up to work as

a certified signal employee under the influence of alcohol or drugs, it
stands to reason that they could likely show up to work for another
craft, such as a locomotive engineer or conductor, under the influence
as well. Thus, it makes sense for an individual's alcohol or drug
violations as a certified signal employee to impact their eligibility
to work in another craft that requires certification and vice versa.
With respect to revocable events that do not involve alcohol or drugs,
FRA finds that the tasks performed by a certified signal employee are
so inherently different from the tasks performed in another certified
craft, such as an operating crew member, that it does not automatically
follow that a person's revocable event as a certified signal employee
indicates they are more likely to also have a revocable event while
performing in another craft. Thus, FRA is taking the position that the
revocation of a signal employee certificate which does not involve
alcohol or drugs should not affect that person's eligibility to work in
another railroad craft requiring certification, and vice versa.
However, FRA solicits comments on this issue.
    Paragraphs (f) and (g) would prohibit a railroad from denying or
revoking a signal employee's certification just because their attempt
at certification or recertification in another railroad craft, such as
locomotive engineer or conductor, was denied and vice versa. Paragraph
(h) would allow a railroad to issue a single certificate to an
individual who is certified in multiple railroad crafts that require
certification. If a railroad exercises this option, it must ensure that
the single certificate contains all of the components required for that
craft. Alternatively, railroads are also welcome to issue multiple
certificates to an individual who is certified in multiple crafts (one
certificate for each craft). Thus, if a person is certified as both a
signal employee and conductor, the railroad could issue the person a
single certificate for both crafts or it could issue one signal
employee certificate and one conductor certificate.
    Finally, paragraph (i) of this section denotes that if a person is
certified in multiple crafts and they are involved in a revocable
event, that event can only lead to the revocation of a certificate for
a single railroad craft. The railroad would be required to determine
which certificate should be revoked based on the work the individual
was performing at the time of the event. In such instances, while the
railroad may only revoke a certificate for a single craft, that
revocation could affect a person's eligibility to perform other crafts.
For example, if a person who is certified as a signal employee and a
conductor violates Sec.  246.303(e)(11) while on duty as a signal
employee, the railroad should only revoke the person's signal employee
certification. The person's conductor certification could not be
revoked for the incident that occurred while the individual was on duty
as a signal employee. However, as discussed in paragraph (d)(1) of this
section, this person would not be able to work as a conductor while
their signal employee certificate was revoked for this offense.
Section 246.215 Railroad Oversight Responsibilities
    This proposed section, derived from 49 CFR 240.309 and 242.215,
would require each Class I railroad (including the National Railroad
Passenger Corporation), each railroad providing commuter service, and
each Class II railroad to conduct an annual review and analysis of its
program for responding to detected instances of poor safety conduct by
certified signal employees. FRA has formulated the information
collection requirements of this proposed section to ensure that
railroads collect data on signal employee safety behavior and feed that
information into their operational monitoring efforts, thereby
enhancing safety.
    This section would require each Class I railroad (including the
National Railroad Passenger Corporation), railroad providing commuter
service, and Class II railroad to have an internal auditing plan to
keep track of events involving poor safety conduct by certified signal
employees. For each such event, the railroad would be required to
indicate how it responded to that event. The railroad would then be
required to evaluate this information, together with data showing the
results of annual testing and causation of FRA reportable train
accident/incidents, to determine whether additional or different
actions, if any, are needed to improve the safety performance of its
certified signal employees. FRA would not, however, require railroads
to furnish this data or their analysis of the data to FRA. Instead, FRA
would require that railroads be prepared to submit such information
when requested.
    As set forth in paragraph (i), an instance of poor safety conduct
involving a person who is a certified signal employee and is certified
in another railroad craft (such as a locomotive engineer or conductor)
need only be reported once under the appropriate section of this
chapter (e.g., under Sec.  240.309, Sec.  242.215, or under this
section). The determination as to where to report the instance of poor
safety conduct should be based on the work the person was performing at
the time the conduct occurred. This determination is similar to the
determination made under part 225, in which railroads determine whether
an accident was caused by poor performance of what is traditionally
considered a conductor's job function (e.g., switch handling, derail
handling, etc.) or whether it was caused by poor performance of what is
traditionally considered a locomotive engineer's job function (e.g.,
operation of the locomotive, braking, etc.)

Subpart D--Denial and Revocation of Certification

    This subpart parallels part 240 and part 242's approach to adverse
decisions concerning certification (i.e., decisions to deny
certification or recertification and revoke certification). With
respect to denials, the approach of this proposed rule is predicated
principally on the theory that decisions to deny certification or
recertification will come at the conclusion of a prescribed evaluation
process which would be conducted in accordance with the provisions set
forth in this subpart. Thus, this proposed rule contains specific
procedures designed to ensure that a person in jeopardy of being denied
certification or recertification would be given a reasonable
opportunity to examine and respond to negative information that may
serve as the basis for being denied certification or recertification.
    When considering revocation, this proposed rule contemplates that
decisions to revoke certification would only occur for the reasons
specified in this subpart. Since revocation decisions by their very
nature involve a clear potential for factual disagreement, this subpart
is structured to ensure that such decisions would only be made after a
certified signal employee has been afforded an opportunity for an
investigatory hearing at which the presiding officer would determine
whether there is sufficient evidence to establish that the signal
employee's conduct warranted revocation of their certification.
    This subpart also provides for certificate suspension in certain
circumstances. Certificate suspension would be employed in instances
where there is reason to think the certificate should be revoked or
made conditional but time is needed to resolve the situation.
Certificate suspension would be applicable in instances where a person
is awaiting an investigatory

hearing to determine whether that person violated certain provisions of
FRA's alcohol and drug control rules, or committed a violation of
certain signal standards, procedures, or practices, and situations in
which the person is being evaluated or treated for an active substance
abuse disorder.
Section 246.301 Process for Denying Certification
    This proposed section, derived from 49 CFR 240.219 and 242.401,
establishes minimum procedures that must be offered to a certification
candidate before a railroad denies the candidate certification or
recertification. Paragraph (a) of this section gives a certification
candidate a reasonable opportunity to explain or rebut adverse
information, including written documents or records, that the railroad
intends to use as the basis for its decision to deny certification or
recertification.
    Paragraph (b) of this section requires that a written explanation
of an adverse decision be `served' on a certification candidate within
10 days of the railroad's decision. Paragraph (b) also requires that
the basis for a railroad's denial decision address any explanation or
rebuttal information that the certification candidate may have provided
pursuant to paragraph (a) of this section.
    Paragraph (c) of this section prohibits a railroad from denying
certification based on a failure to comply with a railroad test
procedure, signal standard, or practice which constitutes a violation
under Sec.  246.303(e)(1) through (10) if sufficient evidence exists to
establish that an intervening cause prevented or materially impaired
the signal employee's ability to comply with that railroad test
procedure, signal standard, or practice. This paragraph is derived from
the intervening cause exception for revocation in Sec.  246.307(h).
Section 246.303 Criteria for Revoking Certification
    This proposed section, derived from 49 CFR 240.117, 240.305, and
242.403, provides the circumstances under which a signal employee may
have their certification revoked. In addition, paragraph (a) of this
section makes it unlawful to fail to comply with any of the railroad
test procedures, signal standards and practices described in paragraph
(e) of this section. Paragraph (a) is needed so that FRA can initiate
enforcement action. For example, FRA might want to initiate enforcement
action in the event that a railroad fails to initiate revocation action
or a person who is not a certified signal employee violates a railroad
test procedure, signal standard or practice described in paragraph (e)
of this section. (Railroads should, however, note that they may not
revoke a signal employee's certificate, including a designated signal
employee's certificate, until they have obtained FRA approval of their
certification programs pursuant to Sec.  246.103.)
    Paragraph (b) of this section provides that a certified signal
employee who fails to comply with a railroad test procedure, signal
standard or practice described in paragraph (e) will have their signal
employee certification revoked. Paragraph (c) provides that a certified
signal employee who is monitoring, mentoring, or instructing another
signal employee could have their certification revoked if the certified
signal employee fails to take appropriate action to prevent a violation
of a railroad test procedure, signal standard or practice described in
paragraph (e) of this section. As explained in paragraph (c),
``appropriate action'' does not mean that a supervisor, certified
signal employee, mentor, or instructor must prevent a violation from
occurring at all costs, but rather the duty may be met by warning the
signal employee, as appropriate, of a potential or foreseeable
violation.
    Paragraph (d) provides that a certified signal employee who is
called by a railroad to perform a duty other than that of a signal
employee would not have their signal employee certification revoked
based on actions taken or not taken while performing that duty. In
general, this paragraph would apply regardless of whether the
individual was called to perform a certified craft, such as locomotive
engineer or conductor, or a non-certified craft. However, this
exemption would not, however, apply to violations described in
paragraph (e)(11) of this section. Therefore, certified signal
employees working in other capacities that do not require
certification, who violate certain alcohol and drug rules would have
their signal employee certification revoked for the appropriate period
of time pursuant to Sec.  246.115. However, if the certified signal
employee was working in another certified craft, such as a locomotive
engineer or conductor, at the time of the alcohol or drug violation,
their certificate for the craft that they were performing at the time
of the violation would be revoked as opposed to their signal employee
certificate.
    If a certified signal employee who is also certified in another
craft, such as locomotive engineer or conductor, violates Sec.  219.101
while performing a craft that does not require certification, the
railroad must select one, and only one, certificate to revoke. For
example, if a person who is a certified signal employee and conductor
violates Sec.  219.101 while working as a brakeman, the railroad must
decide to revoke either their signal employee or conductor certificate,
but it cannot revoke both certificates. Regardless of which certificate
the railroad chooses to revoke, however, the person will be unable to
work as a signal employee or conductor during the period of revocation.
See Sec.  246.213(d).
    Paragraph (e) provides the eleven types of rule infractions that
could result in certification revocation. The infractions listed in
paragraphs (e)(1) through (11) are derived in part from the revocable
events provided in 49 CFR 242.117(e) but have been modified to account
for the duties and responsibilities of a certified signal employee.
    Paragraph (e)(1) refers to action(s) taken by a certified signal
employee that interfere with the normal functioning of a highway-rail
grade crossing warning system or signal system, if alternative means of
protecting motorists and other crossing users have not already been
provided. (For this purpose, railroads shall only consider violations
of paragraph (e)(1) that result in an activation failure or false
proceed signal.)
    Paragraph (e)(2) refers to action(s) taken by a certified signal
employee that fail to comply with a railroad rule or procedure when
removing one or more of the following devices and systems from service:
(a) highway-rail or pathway grade crossing warning devices and systems;
(b) wayside signal devices and systems; or (c) other devices or systems
subject to this part. Similarly, paragraph (e)(3) refers to action(s)
taken by a certified signal employee that fail to comply with a
railroad rule or procedure when placing these devices and systems in
service or restoring them back to service.
    Paragraph (e)(4) refers to violations involving a certified signal
employee's failure to conduct certain inspections and tests on highway-
rail and pathway grade crossing warning devices and systems that are
required by railroad rule, signal standard, or railroad procedures.
These required inspections and tests would include post-installation
and post-repair testing and inspections that are required by FRA's
grade crossing and signal regulations in parts 234 and 236, as well as
inspections and tests that are required after modification or
disarrangement of grade crossing warning devices and other types of
signal systems.

    Paragraph (e)(5) refers to a certified signal employee's failure to
restore power to a train detection or highway-rail or pathway grade
crossing warning device or system after manual interruption of the
power source. (For violations of this nature, railroads would, however,
be directed to consider only those violations that result in activation
failure.)
    Paragraph (e)(6) refers to a certified signal employee's failure to
comply with railroad validation or cutover procedures.
    Paragraph (e)(7) refers to a certified signal employee's failure to
comply with FRA's Roadway Worker Protection regulations in 49 CFR part
214. However, for purposes of this part, paragraph (e)(7) would require
railroads to consider only those violations that directly involve a
certified signal employee who failed to ascertain whether on-track
safety was being provided before fouling the railroad track.
    Paragraphs (e)(8) through (e)(10) refer to a certified signal
employee's failure to comply with FRA's Railroad Operating Practices
regulations related to work performed on, under, or between rolling
equipment. Paragraph (e)(11) refers to a certified signal employee's
failure to comply with the alcohol and drug use prohibitions in Sec.
219.101 of FRA's alcohol and drug regulations.
    Paragraph (f) proposes a three-year period for considering
certified signal employee conduct that failed to comply with a Federal
regulation or railroad test procedure, signal standard or practice
described in paragraphs (e)(1) through (10) of this section. However,
when alcohol and drug violations are at issue, the time period for
evaluating prior operating rule misconduct would be dictated by Sec.
246.115, which would establish a period of 60 consecutive months prior
to the date of review for such evaluations.
    Paragraph (g) provides that if a single incident contravenes more
than one Federal regulatory provision or railroad test procedure,
signal standard, or practice listed in paragraph (e) of this section,
the incident would be treated as a single violation. FRA considers a
single incident to be a unique identifiable occurrence caused by a
certified signal employee's violation of one or more railroad operating
rules or practices listed in paragraph (e). However, a certified signal
employee could be involved in more than one incident during a single
tour of duty, if the incidents are separated by time, distance, or
circumstance.
    Paragraph (h) provides that a certified signal employee may have
their certification revoked for violation of a railroad test procedure,
signal standard, or practice listed in paragraph (e) that occurs during
a properly conducted monitoring test. However, as reflected in
paragraph (i), violations of railroad test procedures, signal
standards, or practices that occur during monitoring tests that are not
conducted in compliance with this part, the railroad's testing
procedures, or the railroad's program under Sec.  217.9 will not be
considered for revocation purposes.
Section 246.305 Periods of Ineligibility
    This section of the proposed rule, derived from 49 CFR 240.117 and
242.405, describes how a railroad would determine the period of
ineligibility (e.g., for revocation or denial of certification) for a
certified signal employee or candidate for signal employee
certification. Paragraph (a) of this section provides the starting date
for a period of ineligibility. For persons who are not certified as
signal employees, a period of ineligibility would begin on the date of
the railroad's written determination that an incident involving a
potential violation of one or more regulatory requirements in Sec.
246.303(e)(1) through (10) has occurred. For example, if the railroad
made a written determination on March 10th that an incident involving a
potential violation of one or more regulatory requirements in Sec.
246.303(e)(1) through (10) occurred on March 1st, the period of
ineligibility would begin on March 10th for persons who are not
certified signal employees. However, for certified signal employees and
candidates for signal employee recertification, a period of
ineligibility would begin on the date the railroad notifies the
candidate for signal employee recertification that recertification has
been denied or the date the railroad notifies the certified signal
employee that their certification has been suspended.
    Even though some certified signal employees will be subsequently
notified that their certification will be revoked as a result of the
incident, the period of ineligibility will begin on the date the
railroad notifies the certified signal employee that their
certification has been suspended. This is because once a person's
certificate is suspended, they are ineligible to work as a certified
signal employee pending a determination as to whether their
certification should be revoked.
    With respect to revocation, paragraph (b) of this section provides
that once a railroad determines that a certified signal employee has
failed to comply with its test procedures, signal standards, or
practices listed in Sec.  246.303(e), two consequences would occur.
First, the railroad would be required to revoke the signal employee's
certification for a period of time provided in this section. Second,
that revocation would initiate a period during which the signal
employee would be subject to an increasingly more severe period of
revocation if additional revocable events occur within the next 24 to
36 months.
    The standard periods of revocation proposed in this section track
the revocation periods provided in parts 240 and 242. One revocable
event would result in revocation for 30 days. Two revocable events
within 24 months of each other would result in revocation for six (6)
months. Three revocable events within 36 months of each other would
result in revocation of one (1) year. Four revocable events within 36
months of each other would result in revocation for three (3) years.
    While paragraph (c) of this section contains a provision that
parallels Sec.  242.405(b) and provides that all periods of revocation
may consist of training, paragraph (d) contains a provision that
parallels Sec. Sec.  240.117(h) and 242.405(c). Paragraph (d) provides
that a person whose signal employee 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 they can
satisfy all of the criteria listed in the paragraph.
Section 246.307 Process for Revoking Certification
    This proposed section, derived from 49 CFR 240.307 and 242.407,
provides the procedures a railroad would be required to follow if it
acquires reliable information regarding a certified signal employee's
violation of a railroad test procedure, signal standard, or practice
described in Sec.  246.303(e) or 246.115(d). Paragraph (b)(1) of this
section would require a railroad to suspend a signal employee's
certification immediately, upon receipt of reliable information
regarding a violation of a railroad test procedure, signal standard, or
practice described in Sec.  246.303(e). Prior to, or upon suspending,
the signal employee's certificate, paragraph (b)(3) would require the
railroad to provide either verbal 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
would have to confirm the verbal notice in writing would depend on
whether or not a collective bargaining agreement is

in effect and applicable. In the absence of such an agreement, a
railroad would have four days to provide written notice. If a notice of
suspension is amended after a hearing is convened or does not contain
citations to all railroad test procedure, signal standards, and
practices that may apply to the potentially revocable event, the
Certification Review Board (CRB or Board), if asked to review the
revocation decision, might subsequently find that this constitutes
procedural error pursuant to Sec.  246.405.
    Paragraph (b)(5) of this section would require the railroad, no
later than the start of the hearing, to provide the signal employee
with a copy of the written information and a list of witnesses that the
railroad will present at the hearing. If requested, a recess to the
start of the hearing would be granted if the written information and
list of witnesses is not provided until just prior to the start of the
hearing. If the information that led to the suspension of the signal
employee's certificate pursuant to paragraph (b)(1) of this section is
provided through statements of an employee of the convening railroad,
the railroad would be required to make that employee available for
examination during the hearing. Examination may be telephonic or
virtual when it is impractical to provide the witness at the hearing.
These provisions in paragraph (b)(5) of this section are intended to
ensure that signal employees are provided with information and/or
witnesses necessary to defend themselves at their hearings. Even if a
railroad conducts a hearing pursuant to the procedures in an applicable
collective bargaining agreement, the railroad would still have to
comply with the provisions of paragraph (b)(5). It is not, however,
FRA's intent to require railroads to call every witness included on the
railroad's list of witnesses to testify at the hearing. 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, the railroad would not be
obligated to call that witness to testify. Of course, the opposing
party could request that the witness be produced to testify, but the
hearing officer would have the authority pursuant to paragraph (d)(4)
of this section to determine whether the witness's testimony would be
unduly repetitive or have such minimal relevance that its admission
would impair the prompt, orderly, and fair resolution of the
proceeding.
    Paragraph (d)(2) of this section provides the presiding officer
with the powers necessary to regulate the conduct of the hearing. Thus,
a presiding officer would be permitted to deny excessive hearing
request delays by the signal employee. Moreover, a presiding officer
could find implied consent to postpone a hearing when a signal
employee's witnesses are not available within 10 days of the date the
certificate is suspended. However, the CRB may grant a petition on
review if the CRB finds that the hearing schedule caused the petitioner
substantial harm.
    Paragraph (e) of this section contains requirements regarding the
written decision in a railroad hearing. FRA believes these requirements
would ensure that railroads issue clear and detailed decisions. In
turn, clear and detailed decisions would allow a signal employee to
understand exactly why their certification was revoked and would allow
the CRB to have a more detailed understanding of the case if asked to
review the revocation decision pursuant to subpart E of this proposed
rule.
    Paragraph (f) credits 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 Sec.  246.305. For example, if a signal employee's
certificate is suspended on July 1st and on July 11th, the railroad
issues a decision to revoke the signal employee's certificate for 30
days, the time between July 1st and July 11th would count towards the
30-day revocation period. Thus, the signal employee's certificate would
only be revoked for an additional 20 days after the railroad issued its
revocation decision.
    Paragraph (g) would require a railroad to revoke a signal
employee's certification if it discovers that another railroad has
revoked that individual's signal employee certification. The revocation
period would coincide with the period of revocation imposed by the
railroad that initially revoked the signal employee's certification.
For example, if a signal employee is certified by Railroad ABC and
Railroad XYZ, and ABC revokes the signal employee's certification from
November 1st through November 30th, XYZ must revoke the signal
employee's certification through November 30th once it learns of ABC's
revocation. The revocation hearing requirement in this rule would be
satisfied if any railroad holds a revocation hearing for the signal
employee that arises from the same set of facts.
    Paragraphs (h) and (i) provide 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 these provisions, either defense would have to be
proven by sufficient evidence. Paragraph (h) would prohibit railroads
from revoking a signal employee's certificate when there is sufficient
evidence of an intervening cause that prevented or materially impaired
the signal employee's ability to comply. For example, a railroad should
consider assertions that a qualified instructor failed to take
appropriate action to prevent an uncertified signal employee or signal
employee trainee from using defective equipment. However, FRA does not
intend to imply that all equipment failures and errors caused by others
will serve to absolve signal employees from certification revocation
under this proposed rule. The factual issues presented by each incident
would need to be analyzed on a case-by-case basis.
    Paragraph (i) would allow railroads to exercise discretion when
determining whether to revoke a signal employee's certification ``if
sufficient evidence exists to establish that the violation of the
railroad test procedure, signal standard, or practice described in
Sec.  246.303(e) was of a minimal nature and had no direct or potential
effect on rail safety.'' However, FRA acknowledges that the
determination as to whether an incident meets this criterion could be
subject to different interpretations. For this reason, paragraph (j)
would require railroads to retain information about the evidence relied
upon when exercising this discretion. Unless a railroad fails to retain
information as required in paragraph (j) or acts in bad faith, FRA does
not anticipate taking enforcement action against the railroad even if
FRA believes the railroad could have revoked the signal employee's
certification.
    Paragraph (j) of this section would require railroads to keep
records of those violations in which they must not or elect not to
revoke a signal employee's certificate pursuant to paragraph (h) or (i)
of this section. Paragraph (k) addresses concerns that problems could
arise if FRA disagrees with a railroad's decision not to suspend a
signal employee's certificate for an alleged violation of a railroad
test procedure, signal standard, or practice pursuant to Sec.
246.303(e). As long as a railroad makes a good faith determination
after a reasonable inquiry, the railroad will have immunity from civil
enforcement for making what the agency believes to be an incorrect
determination. However, if railroads do

not conduct a reasonable inquiry or act in good faith, they could be
subject to civil penalty assessment under this rule. In addition, even
if a railroad does not take what FRA considers appropriate revocation
action, FRA could still take enforcement action against an individual
responsible for the noncompliance by assessing a civil penalty against
the individual or issuing an order prohibiting the individual from
performing safety-sensitive functions in the rail industry for a
specified period of time pursuant to part 209, subpart D.

Subpart E--Dispute Resolution Procedures

    This subpart details the opportunities and procedures for a person
to challenge a railroad's decision to deny certification or
recertification or to revoke a signal employee's certification. While
the proposed dispute resolution process for signal employees largely
mirrors the processes for engineers under part 240 and conductors under
part 242, FRA proposes some modifications in this proposed rule that
will be discussed below. In addition, FRA has undertaken efforts to
simplify these regulations to make them clear and comprehensible to all
interested parties.
Section 246.401 Review Board Established
    This proposed section, derived from 49 CFR 240.401 and 242.501,
provides that a person who is denied certification or recertification
or has had their signal employee certification revoked may petition FRA
to review the railroad's decision. Pursuant to this section, FRA
delegates initial responsibility for adjudicating such disputes to the
CRB. Although creation of the CRB will require issuance of an internal
FRA order, FRA anticipates that the CRB will mirror the Operating Crew
Review Board (OCRB) which currently adjudicates disputes under parts
240 and 242.\23\ Under this proposed rule, this newly created Board
would adjudicate certification disputes for all certified crafts,
including locomotive engineers, conductors, and signal employees. FRA
is fully aware that these different job disciplines require different
knowledge bases and skill sets. While the specific process for
selecting CRB members would be delineated in an FRA order or other
internal document, FRA would ensure that the CRB is composed of
employees with sufficient backgrounds in these various disciplines.
Only those CRB members with sufficient knowledge of signaling would be
able to participate as a voting member on a petition filed under this
part.
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    \23\ In a future rulemaking, FRA expects to revise parts 240 and
242 to refer to the CRB instead of the OCRB.
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Section 246.403 Petition Requirements
    This proposed section, derived from 49 CFR 240.403 and 242.503,
contains proposed requirements for obtaining FRA review of a railroad's
decision to deny or revoke certification, or deny recertification.
Paragraph (b) of this section would require petitioners to seek review
in a timely fashion once the adverse decision is served on them. In the
interest of consistency and uniformity with parts 240 and 242,
petitioners would have 120 days from the date the adverse decision was
served upon them to file a petition for review by the CRB.
    Paragraph (b)(3) would require petitioners to file their petitions
through https://www.regulations.gov. Petitioners and their
representatives would, however, be well-advised to save some form of
proof of filing, in case an error occurs in the regulations.gov system
and they have to submit proof that their petition was timely filed. All
documents associated with a CRB petition would be posted to the docket
on Regulations.gov and all DOT dockets on Regulations.gov are available
to the public. You may review DOT's complete Privacy Act Statement
published in the Federal Register on April 11, 2000 (Volume 65, Number
70, Pages 19477-78).
    Paragraph (b)(4) would require that a petition contain contact
information, including an email address, for the petitioner and their
representative, if any. The OCRB only communicates with parties via
email. Therefore, FRA anticipates the CRB will operate in a similar
manner and will only send communications to the parties via email. If a
petition only contains an email address for the petitioner's
representative, but not the petitioner, the CRB will only send any
necessary communications to the representative. Accordingly, a petition
filed in accordance with this part need not include a mailing address
for petitioner or their representative, unlike petitions for review
filed pursuant to parts 240 and 242. Lastly, if any required contact
information for petitioner or their representative, such as a phone
number or email address, changes during the pendency of a petition
before the CRB, it would be the responsibility of the petitioner or
their representative to provide the CRB and the railroad with the new
contact information.
    Paragraph (b)(6) would require petitioners or their representatives
to state the facts and arguments in support of their petition. In other
words, they would need to explain to the CRB why they think the
railroad was incorrect in denying or revoking the petitioner's
certification. Paragraph (b)(7) would require petitioners to submit all
documents related to the railroad's decision that are in their
possession or reasonably available to them. This may include the
transcript and exhibits from the petitioner's denial or revocation
hearing. In most cases, these documents will be essential to the
Board's ability to make an informed decision on the petition. If
neither the petitioner nor the railroad provides these documents, the
Board may have to specifically request these documents which would
likely to delay the Board's adjudication of the petition. Therefore, it
is in the petitioner's interest to include these documents as part of
their petition.
    Paragraph (c) of this section is intended to clarify a petitioner's
responsibilities with respect to a petition seeking review of a
railroad decision based on petitioner's alleged failure to comply with
a drug or alcohol-related rule or a return-to-service agreement. If
requested by the CRB, paragraph (c) would require a petitioner to
supplement the petition with ``a copy of the information under 49 CFR
40.329 that laboratories, medical review officers, and other service
agents are required to release to employees.'' This paragraph would
also require a petitioner to provide a written explanation in response
to a CRB request if the petitioner does not supply the Board with
written documents that should be reasonably available under 49 CFR
40.329.
    Paragraph (d) of this section would give the CRB discretion to
grant a request for additional time to file a petition if certain
circumstances are met. As an initial matter, the petitioner would be
required to show good cause for granting the extension. Thus, a
petitioner would have to demonstrate a reasonable justification for
granting the extension of time. This justification should be as
detailed as possible to assist the Board in its determination. In
addition to showing good cause for an extension, a petitioner would be
required to submit their extension request before the deadline for
filing their petition or, if the deadline has already passed, they must
allege facts constituting ``excusable neglect'' for failing to meet the
deadline. 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 the party's failure to
comply with the time frame specified in this proposed rule. Absent a
showing along these lines, relief would be denied. The Board would make
determinations on whether ``good cause'' and/or ``excusable neglect''
has been shown on a case-by-case basis.
    Paragraph (e) explains that a decision by the CRB to deny a
petition for untimeliness or lack of compliance with the requirements
of Sec.  246.303 may be appealed directly to the FRA Administrator.
Normally an appeal to the Administrator can only occur after a case has
been heard by FRA's hearing officer. However, petitions that the Board
finds to be untimely or incomplete are the two exceptions where a party
can skip petitioning the hearing officer and go directly to filing an
appeal with the Administrator.
Section 246.405 Processing Certification Review Petitions
    This section of the proposed rule, derived from 49 CFR 240.405 and
242.505, details how petitions for review by the CRB would be handled.
Paragraph (a) of this section notes that when FRA receives a CRB
petition, FRA would send a written notification to the parties involved
in the petition. FRA proposes to send these acknowledgments via email.
If a representative files a petition on behalf of a petitioner, the
petition must include the petitioner's email address, if the petitioner
also wants to receive the acknowledgment email and any other
correspondence (including the Board's decision) from FRA. The
acknowledgment email would include the docket number for the petition
so that both parties can access the documents in the case on https://www.regulations.gov. FRA would not send a copy of the petition to the
railroad.
    Paragraph (b) of this section would provide railroads with the
opportunity to respond to a petition. While it is always optional for a
railroad to respond to a petitioner's arguments, if the petitioner did
not include relevant documents in their petition, such as hearing
transcripts or exhibits, the railroad is required to provide FRA with
those documents, even if it does not respond to the arguments in the
petition. Railroads would have 60 days, from the date FRA sends the
acknowledgment email, to file a response to the petition in the docket
on https://www.regulations.gov. Railroads would be permitted to submit
responses after the 60-day deadline, but the Board would only review
such late filings if practicable. In other words, there is no guarantee
that the Board would review a late response prior to issuing a
decision; thus, if a railroad wishes to respond to a petition, it
should meet the 60-day filing deadline. The railroad could fulfill its
requirement to serve a copy of its response on the other parties by
sending its response via email to petitioner, petitioner's
representative, and petitioner's employer (if different from the
railroad that revoked petitioner's certification).
    Paragraph (c) of this section explains when a case would be
referred to the Board, and what authority the Board would have. If a
railroad files a response before the 60-day deadline in paragraph (b)
of this section, the petition would be referred to the Board upon
receipt of the response. Otherwise, the petition would be referred to
the Board 60 days after the date the acknowledgment email was sent. The
Board would have the authority to grant a petition (rule in favor of
the petitioner), deny a petition (rule in favor of the railroad), or
dismiss a petition. An example of when the Board would dismiss a
petition would be if the respondent railroad did not deny or revoke the
petitioner's certification, and thus, there was no case or controversy
before the Board. If there is insufficient evidence in the record for
the Board to make a decision on the merits of a petition, the Board may
choose to remand a petition or issue an interim order, so that
additional fact-finding can occur.
    Paragraphs (d), (e), and (f) of this section provide the standards
of review that the Board would employ for procedural issues, factual
issues, and legal issues, respectively. These standards mirror the
standards of review used by the OCRB to review locomotive engineer and
conductor petitions. The Board would not correct all procedural errors
committed by a railroad. Instead, the Board would only grant a petition
if the respondent railroad's procedural error caused substantial harm
to the petitioner. For factual issues, the petitioner would be required
to show that the respondent railroad did not have substantial evidence
to support its decision to deny or revoke the petitioner's
certification. If the Board must decide a legal issue, it would conduct
de novo review, meaning that it would not give deference to any
decision or interpretation made by the railroad.
    Paragraph (g) of this section acknowledges that the Board's
decision-making power would be limited to granting or denying a
petition. In other words, the Board would only be empowered to make
determinations concerning qualifications under this proposed
regulation. The Board would not be empowered to mitigate the
consequences of a railroad decision if the decision is valid under this
proposed regulation. The contractual consequences, if any, of these
determinations would have to be resolved under dispute resolution
mechanisms that do not directly involve FRA. For example, FRA cannot
order a railroad to alter its seniority rosters or make an award of
back pay, in the event of a finding that a railroad wrongfully denied
certification.
    Paragraph (h) of this section would require the Board to issue a
written decision that would be served on all affected parties. FRA
would send the decision to the parties by email and it will also be
posted in the case's docket on https://www.regulations.gov.
Section 246.407 Request for a Hearing
    This proposed section, derived from 49 CFR 240.407 and 49 CFR
242.507, provides that a party who has been adversely affected by a CRB
decision would have the opportunity to request an administrative
proceeding as prescribed in Sec.  246.409. Paragraph (b) of this
section contains the instructions and the deadline for submitting a
hearing request. Just like CRB petitions, parties would be required to
file hearing requests electronically. To file a hearing request, the
adversely affected party would upload the request to the docket on
https://www.regulations.gov that was used while the case was before the
Board. This docket would also be used to file documents while the case
is before the hearing officer. After the 20-day deadline to file a
hearing request has passed, FRA would check the docket on https://www.regulations.gov to see if a hearing request was filed. Paragraph
(c) of this section contains a list of elements that would be required
for a hearing request, including the docket number assigned to the case
when it was before the Board. With respect to the signature requirement
in paragraph (c), FRA would accept electronic signatures.
    Paragraph (d) of this section states that FRA would arrange for the
appointment of a presiding officer. The presiding officer would then
schedule a hearing for the earliest practicable date.
    Paragraph (e) 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 and the CRB's decision would
constitute final agency action.

Section 246.409 Hearings
    This section of the proposed rule, derived from 49 CFR 240.409 and
49 CFR 242.509, describes the authority of the presiding officer to
conduct an administrative hearing and the procedures by which the
administrative hearing would be governed. Paragraph (b) of this section
provides that the proceeding would afford an aggrieved party a de novo
hearing at which the relevant facts would be adduced and the correct
application of this part would be determined. When the issues presented
are purely legal, or when only limited factual findings are necessary
to determine issues, the presiding officer may determine the issues
following an evidentiary hearing only on the disputed factual issues,
if any. The presiding officer could then grant full or partial summary
judgment.
    Paragraph (d) of this section provides that the presiding officer
may authorize discovery. It would also authorize the presiding officer
to sanction willful noncompliance with permissible discovery requests.
Paragraph (e) of this section would require that documents in the
nature of pleadings be signed. This signature could be electronic and
would constitute a certification of factual and legal good faith.
Paragraph (f) of this section contains a proposed requirement for
service and for certificates of service. Paragraph (g) of this section
would give the presiding officer authority to address noncompliance
with a law or directive. This provision is intended to ensure that the
presiding officer will have the authority to control the proceeding so
that an efficient and fair hearing can be conducted.
    Paragraph (h) of this section states the right of each party to
appear and be represented. Paragraph (i) of this section is intended to
protect witnesses by ensuring their right of representation and their
right to have their representative question them. Paragraph (j) of this
section would allow any party to request consolidation or separation of
hearings of two or more petitions when appropriate under established
jurisprudential standards. This option is intended to allow for more
efficient determination of petitions in cases where a joint hearing
would be advantageous.
    Under paragraph (k) of this section, the presiding officer could,
with certain exceptions, extend deadlines for action required in the
proceedings, provided substantial prejudice would not result to a
party. The authority to deny an extension request submitted after a
deadline has already passed shows the preference for use of this
authority to provide extensions of time as a tool to alleviate
unforeseen or unnecessary burdens, and not as a remedy for inexcusable
neglect.
    Paragraph (l) of this section would establish motions as the
appropriate method for requesting action by the presiding officer. This
paragraph also provides the proposed form of motions and the proposed
response period for written motions. Paragraph (m) of this section
contains proposed rules for the mode of hearing and record maintenance,
including proposed requirements for sworn testimony, verbatim record
(including oral testimony and argument), and inclusion of evidence or
substitutes therefor in the record. Paragraph (n) of this section would
direct the presiding officer to employ specific rules of evidence as
guidelines for the introduction of evidence, and would permit the
presiding officer to determine what evidence may be received. Further,
paragraph (o) of this section provides additional powers the presiding
officer may exercise during the proceedings.
    Paragraph (p) of this section would require that the petitioner
before the CRB, the railroad that took the certification action at
issue, and FRA serve as mandatory parties to the administrative
proceeding. Paragraph (q) of this section explains which party would be
the hearing petitioner and which parties would be the respondents. If
the Board granted the petition, the railroad would be the hearing
petitioner and the signal employee or signal employee candidate would
be a respondent. If the Board denied the petition, the signal employee
or signal employee candidate would be the hearing petitioner and the
railroad would be a respondent. The actions of the signal employee (or
certification candidate) and the railroad would be at issue in the
hearing--not the actions of the CRB. Thus, it is appropriate that the
signal employee and the railroad fill the roles of petitioner and
respondent for the hearing.
    Paragraph (q) also provides that FRA would be a mandatory party in
the proceeding. In all proceedings, FRA would initially be considered a
co-respondent. If, based on evidence acquired after the filing of a
hearing petition, FRA concludes that the public interest in safety is
more closely aligned with the position of the petitioner than the
respondent, FRA could request that the hearing officer exercise their
inherent authority to realign parties for good cause shown. However,
FRA anticipates that such a situation would rarely occur. FRA would
represent 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. Paragraph (q) also
notes that the party requesting the hearing would have the burden of
proving its case by the preponderance of evidence.
    Paragraph (r) of this section would give the presiding officer
authority to close the record in a case. Paragraph (s) of this section
would also give the presiding officer authority to issue a decision and
includes proposed requirements for that decision.
Section 246.411 Appeals
    This proposed section, derived from 49 CFR 240.411 and 49 CFR
242.511, would permit any party aggrieved by the presiding officer's
decision to file an appeal with the FRA Administrator. Paragraph (a) of
this section provides that if no appeal is timely filed, the presiding
officer's decision would constitute final agency action. The appeal
must be filed in the same docket on https://www.regulations.gov used
when the case was before the Board and the presiding officer.
    Paragraph (b) of this section allows for a party to reply to the
appeal. Paragraphs (c) and (d) of this section describe the
Administrator's authority to conduct the proceedings of an appeal.
Paragraph (e) of this section addresses the Administrator's options for
ruling on an appeal. 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'' is included in this proposed rule because a
remand, or other intermediate decision, would not constitute final
agency action. The inclusion of this phrase is intended to clarify this
potential outcome to those parties who 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.
    Paragraph (f) of this section provides instructions for handling
appeals to the Administrator that come directly from the CRB. The only
cases that would be allowed to proceed directly from the Board to the
Administrator would be cases in which the Board denied a petition for
being untimely or incomplete. If the Administrator vacates and remands
the Board's decision, the case would return to the Board. If the
Administrator affirms the Board's decision, that would constitute final
agency action.

Appendices

    FRA has included two appendices with this proposed rule. Appendix
A, derived from appendix C to part 240 and appendix C to part 242,
provides a narrative discussion of the procedures that a person seeking
certification or recertification should follow to furnish a railroad
with information concerning their motor vehicle driving record.
Appendix B, derived from appendix D to part 240 and appendix D to part
242, provides a narrative discussion of the procedures that a railroad
would be required to employ when administering the vision and hearing
requirements of Sec. Sec.  246.117 and 246.118. This appendix discusses
test methods for determining whether a person has the ability to
recognize and distinguish among the colors used as signals in the
railroad industry.

V. Regulatory Impact and Notices

A. Executive Order 12866 as Amended by Executive Order 14094

    This proposed rule is not a significant regulatory action within
the meaning of Executive Order 12866 as amended by Executive Order
14094, Modernizing Regulatory Review. Details on the estimated costs of
this NPRM can be found in the Regulatory Impact Analysis (RIA), which
FRA has prepared and placed in the docket (FRA-2021-0020).
    FRA is proposing regulations establishing a formal certification
process for railroad signal employees. As part of that process,
railroads would be required to develop a program for training current
and prospective signal employees, documenting and verifying that the
holder of the certificate has achieved certain training and
proficiency, and creating a record of safety compliance infractions
that other railroads can review when considering individuals for
certification. This proposed regulation would ensure that signal
employees are properly trained, are qualified to perform their duties,
and meet Federal safety standards. Additionally, this proposed
regulation is expected to improve railroad safety by reducing the rate
of accidents/incidents.
    The RIA presents estimates of the costs likely to occur over the
first 10 years of the proposed rule. The analysis includes estimates of
costs associated with development of training programs, initial and
periodic training, knowledge testing, and monitoring of operational
performance. Additionally, costs are estimated for vision and hearing
tests, certification determinations made by other railroads, and
Government administrative costs.
    FRA estimated 10-year costs of $8.3 million discounted at 7
percent. The annualized cost would be $1.2 million discounted at 7
percent. The following table shows the estimated 10-year costs of the
proposed rule.

                                         Total 10-Year Discounted Costs
                                                 [2020 Dollars]
----------------------------------------------------------------------------------------------------------------
                                                   Present value   Present value   Annualized 7%   Annualized 3%
                    Category                          7% ($)          3% ($)            ($)             ($)
----------------------------------------------------------------------------------------------------------------
Development of Certification Program............       1,140,385       1,168,920         162,365         137,033
Certification Eligibility Requirements..........          87,507         100,380          12,459          11,768
Recertification Eligibility Requirements........         203,790         259,653          29,015          30,439
Training........................................       2,079,835       2,379,911         296,122         278,998
Knowledge Testing...............................         746,865         898,884         106,337         105,377
Vision and Hearing..............................       1,097,523       1,320,891         156,263         154,849
Monitoring Operational Performance..............         832,102         994,414         118,473         116,576
Railroad Oversight Responsibilities.............         267,530         326,714          38,090          38,301
Certification Card..............................         103,175         124,175          14,690          14,557
Petitions and Hearings..........................          42,451          50,731           6,044           5,947
Government Administrative Cost..................       1,653,360       1,914,063         235,401         224,387
                                                 ---------------------------------------------------------------
    Total.......................................       8,277,337       9,566,001       1,178,507       1,121,427
----------------------------------------------------------------------------------------------------------------

    This rule is expected to reduce the likelihood of an accident
occurring due to signal employee error. FRA has analyzed accidents over
the past 10 years to categorize those where signal employee may have
caused the accident. FRA then estimated benefits based on that
analysis.
    The following table shows the estimated 10-year benefits of the
proposed rule. The total 10-year estimated benefits would be $2.9
million (PV, 7%) and annualized benefits would be $0.4 million (PV,
7%).

                                        Total 10-Year Discounted Benefits
                                                 [2020 Dollars]
----------------------------------------------------------------------------------------------------------------
                                                   Present value   Present value   Annualized 7%   Annualized 3%
                    Category                          7% ($)          3% ($)            ($)             ($)
----------------------------------------------------------------------------------------------------------------
Grade Crossing Accidents........................       1,766,028       2,064,676         251,443         242,043
Train Accidents/Incidents.......................         989,123       1,156,391         140,829         135,564
Business Benefits from Fewer Activation Failures         159,526         186,503          22,713          21,864
                                                 ---------------------------------------------------------------
    Total.......................................       2,914,678       3,407,570         414,985         399,471
----------------------------------------------------------------------------------------------------------------

    Additional benefits are discussed, but not quantified, in this
analysis. This proposed rule would require railroads to check with
prior employers when hiring a new signal employee. This would include a
check of their prior safety

record and whether the prospective signal employee had their
certification revoked in the past.

B. Regulatory Flexibility Act and Executive Order 13272

    The Regulatory Flexibility Act of 1980 (5 U.S.C. 601 et seq.) and
E.O. 13272 (67 FR 53461, Aug. 16, 2002) require agency 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 economic 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 prepared this IRFA to facilitate public
comment 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 on small entities that would
result from adoption of the proposals in this NPRM. FRA particularly
encourages small entities that could potentially be impacted by the
proposed rule to participate in the public comment process. FRA will
consider all information and comments received in the public comment
process when making a determination of the economic impact on small
entities.
1. Reasons for Considering Agency Action
    FRA is concerned with accidents caused by signal employee error.
Railroads' signal employee training programs may not be covering all
aspects of a signal employee's job responsibility. Additionally,
railroads may not be testing signal employees and ensuring that their
knowledge is maintained continuously.
    This NPRM would require railroads to develop a signal employee
certification program. This proposed rule would ensure that railroads
examine railroad safety with respect to signal employees. If FRA did
not issue the rule as proposed, railroads would be free to hire and
train signal employees as they see fit.
2. A Succinct Statement of the Objectives of, and the Legal Basis for,
the Proposed Rule
    This proposed rule may reduce the rate of signal employee-caused
accidents. The annual operational performance monitoring would ensure
that signal employees maintain their knowledge after the initial
certification process.
    FRA is proposing regulations for the certification of signal
employees, pursuant to the authority granted in section 402 of the Rail
Safety Improvement Act of 2008 (RSIA). Also, the general authority of
the Secretary states, in relevant part, that the Secretary ``as
necessary, shall prescribe regulations and issue orders for every area
of railroad safety supplementing laws and regulations in effect on
October 16, 1970.'' \24\ The Secretary delegated this authority to the
Federal Railroad Administrator.\25\
---------------------------------------------------------------------------

    \24\ 49 U.S.C. 20103.
    \25\ 49 CFR 1.89(a).
---------------------------------------------------------------------------

3. A Description of, and Where Feasible, an Estimate of the Number of
Small Entities to Which the Proposed Rule Would Apply
    The Regulatory Flexibility Act of 1980 requires a review of
proposed and final rules to assess their impact on small entities,
unless the Secretary certifies that the rule would not have a
significant economic impact on a substantial number of small entities.
``Small entity'' is defined in 5 U.S.C. 601 as a small business concern
that is independently owned and operated and is not dominant in its
field of operation. The U.S. Small Business Administration (SBA) has
authority to regulate issues related to small businesses, and
stipulates in its size standards that a ``small entity'' in the
railroad industry is a for profit ``line-haul railroad'' that has fewer
than 1,500 employees, a ``short line railroad'' with fewer than 1,500
employees, a ``commuter rail system'' with annual receipts of less than
$16.5 million dollars, or a contractor that performs support activities
for railroads with annual receipts of less than $16.5 million.\26\
---------------------------------------------------------------------------

    \26\ U.S. Small Business Administration, ``Table of Small
Business Size Standards Matched to North American Industry
Classification System Codes, August 19, 2019. https://www.sba.gov/sites/default/files/2019-08/SBA%20Table%20of%20Size%20Standards_Effective%20Aug%2019,%202019.pdf.

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

    Federal agencies may adopt their own size standards for small
entities in consultation with SBA and in conjunction with public
comment. Under that authority, FRA has published a proposed statement
of agency policy that formally establishes ``small entities'' or
``small businesses'' as railroads, contractors, and hazardous materials
shippers that meet the revenue requirements of a Class III railroad as
set forth in 49 CFR 1201.1-1, which is $20 million or less in
inflation-adjusted annual revenues,\27\ and commuter railroads or small
Governmental jurisdictions that serve populations of 50,000 or less.
See 68 FR 24891 (May 9, 2003) (codified at Appendix C to 49 CFR part
209). FRA is using this definition for the proposed rule.
---------------------------------------------------------------------------

    \27\ The Class III railroad revenue threshold is $40.4 million
or less, for 2021. (The Class II railroad threshold is between $40.4
million and $900 million.) See Surface Transportation Board (STB),
available at https://www.stb.gov/news-communications/latest-news/pr-21-16/.
---------------------------------------------------------------------------

    When shaping the proposed rule, FRA considered the impact that the
proposed rule would have on small entities.
    The proposed rule would be applicable to all railroads with signal
systems. However, some small railroads do not have a signal system as
part of their operations. FRA estimates there are 744 Class III
railroads, of which 704 operate on the general system. These railroads
are of varying size, with some belonging to larger holding companies.
Approximately 490 Class III railroads would be impacted by this
rulemaking because they have a signal system. The remaining Class III
railroads do not have a signal system, thus would have no need for
signal employee certification program.
4. A Description of the Projected Reporting, Recordkeeping, and Other
Compliance Requirements of the Rule, Including an Estimate of the Class
of Small Entities That Would be Subject to the Requirements and the
Type of Professional Skill Necessary for Preparation of the Report or
Record
    Railroads would be required to submit information to FRA for
approval of signal employee certification programs. For small railroads
that choose to develop their own certification programs, they would
likely be less complex than larger railroads' operations. This would
ease some of the burden on small railroads.
    The training program, and annual railroad responsibilities would be
prepared by a professional or administrative employee. The type of
professional skills needed by an employee responsible for submitting a
special approval request includes the ability to plan and organize
work. Such an employee would also need good verbal and written
communication skills and attention to detail.
Summary of Class III Railroad Costs
    Class III Railroads would have all the same cost components as
larger railroads except they would not be required to perform annual
railroad oversight responsibilities in accordance with the proposed
rule. Therefore, that

cost has been excluded for Class III railroads.
    The following table shows the annualized cost for Class III
railroads over the 10-year analysis period. The total estimated 10-year
costs for Class III railroads would be $2.4 million and the annualized
cost for all Class III railroads would be $346,052 (PV, 7 percent).

         Total 10-Year and Annualized Costs, Class III Railroads
------------------------------------------------------------------------
                                           Present value   Annualized 7%
                Category                      7% ($)            ($)
------------------------------------------------------------------------
Development of Certification Program....         309,067          44,004
Certification Eligibility Requirements..          21,877           3,115
Recertification Eligibility Requirements          50,947           7,254
Training................................         519,959          74,030
Knowledge Testing.......................         186,716          26,584
Vision and Hearing......................       1,097,523         156,263
Monitoring Operational Performance......         208,026          29,618
Certification Card......................          25,794           3,672
Petitions and Hearings..................          10,613           1,511
    Total...............................       2,430,522         346,052
------------------------------------------------------------------------

    The industry trade organization representing small railroads,
ASLRRA, reports the average freight revenue per Class III railroad is
$4.75 million.\28\ The following table summarizes the average annual
costs and revenue for Class III railroads.
---------------------------------------------------------------------------

    \28\ American Short Line and Regional Railroad Association,
Short Line and Regional Railroad Facts and Figures, p. 10 (2017
pamphlet).

                                 Average Class III Railroads' Costs and Revenue
----------------------------------------------------------------------------------------------------------------
                                       Number of Class
 Total cost for Class III railroads,    III railroads      Average annual   Average Class III    Average annual
            annualized 7%                with signal       cost per Class     annual revenue   cost as a percent
                                           systems        III railroad ($)         ($)             of revenue
a                                                    b          c = a / b                  d          e = c / d
----------------------------------------------------------------------------------------------------------------
346,052.............................               535                647          4,750,000              0.01%
----------------------------------------------------------------------------------------------------------------

    The average annual cost for a Class III railroad impacted by this
rule would be $647. This represents a small percentage (0.01%) of the
average annual revenue for a Class III railroad.
    The estimates above show that the burden on Class III railroads
would not be a significant economic burden. FRA requests comments on
this estimate and will consider all comments when making a
determination for the final rule.
5. 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 rule that duplicates,
overlaps with, or conflicts with this NPRM. This proposed rule is
complementary to, rather than duplicative of, other recent regulatory
initiatives FRA has issued or is in the process of developing. These
initiatives include: the implementation of positive train control (PTC)
systems by required railroads; \29\ training, qualification, and
oversight; \30\ railroad safety risk reduction programs; \31\ and the
development of fatigue risk management programs.\32\
---------------------------------------------------------------------------

    \29\ See generally 49 CFR part 236, subpart I; and press release
in which FRA announces full implementation of positive train control
(Dec. 29, 2020), available at https://railroads.dot.gov/sites/fra.dot.gov/files/2020-12/fra1920.pdf.
    \30\ 49 CFR part 243.
    \31\ 49 CFR parts 270 and 271.
    \32\ 85 FR 83484 (Dec. 22, 2020) (proposing to amend 49 CFR
parts 270 and 271 to require certain railroads to develop and
implement a Fatigue Risk Management Program as one component of the
railroads' larger railroad safety risk reduction programs).
---------------------------------------------------------------------------

6. A Description of Significant Alternatives to the Rule
    This analysis considered two alternatives to the rule: the baseline
approach, and an approach that would certify just the training program.
The baseline alternative (no action) would not ensure that signal
employees are being properly trained. Without this rule, railroad
operations may be less safe if railroads are not providing adequate
training to their signal employees.
    The alternative of certifying only the training program would
require a railroad to enhance their training of signal employees.
Training, however, is only a part of the certification process. The
additional requirements of this proposed rule would ensure that signal
employees' hearing, vision, prior safety conduct at other railroads,
and other aspects have been reviewed and are consistent with railroad
safety.

C. Paperwork Reduction Act

    FRA is submitting the information collection requirements in this
proposed rule to the Office of Management and Budget (OMB) for approval
under the Paperwork Reduction Act of 1995.\33\ The entire table
contains the new information collection requirements and the estimated
time to fulfill each requirement are as follows:
---------------------------------------------------------------------------

    \33\ 44 U.S.C. 3501 et seq.

--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                Total annual         Average time per     Total annual burden                 Total cost
            CFR section              Respondent universe         responses              responses                hours           Wage rate    equivalent
                                                           (A)..................  (B)..................  (C) = A * B..........     (D) \34\  (E) = C * D
--------------------------------------------------------------------------------------------------------------------------------------------------------
246.9--Waivers--Petitions.........  553 railroads........  10.00 petition.......  3 hours..............  30.00................       $77.44    $2,323.20
246.101/.103--Certification         553 railroads +        187.66 plans (14.33    120 hours + 120 hours  3,139.20.............       115.24   361,761.41
 program required and FRA review     ASLRRA and holding     Class I and commuter   + 6 hours.
 of certification program--          companies.             railroads plans +
 Development of signal employee                             3.33 generic program
 certification program in                                   developed by ASLRRA
 accordance with this part and                              and holding
 procedures contained under Sec.                            companies plans +
 246.106 (Note: Each certification                          170 Class II and III
 program includes procedure                                 railroads plans).
 requirements under Sec.   246.111
 through Sec.   246.121.).
--(d)(1) Signal employees           553 railroads........  2 copies.............  15 minutes...........  .50..................        77.44        38.72
 certification submission--Copies
 of the program provided to the
 president of each rail labor
 organization (RLO) that
 represents the railroad's
 employees that are subject to
 this part.
--(d)(2) Affirmative statements     553 railroads........  2 affirmative          15 minutes...........  .50..................        77.44        38.72
 that the railroad has provided a                           statements.
 copy of the program to RLOs.
--(e) Comment Period--Affirmed      553 railroads........  31 comments..........  4 hours..............  124.00...............        77.44     9,602.56
 comments on a railroad's program
 by any designated representative
 of employees subject to this part
 or any directly affected employee
 who does not have a designated
 representative.
                                   ---------------------------------------------------------------------------------------------------------------------
--(g) Material Modifications of     The paperwork burden for this requirement is outside the scope of the 3-year PRA review period.
 FRA-approved program--Railroad to
 submit a description of how it
 intends to modify the program and
 a copy of the modified program to
 FRA.
                                   ---------------------------------------------------------------------------------------------------------------------
--(h) Resubmission--Railroad can    553 railroads +        4.67 revised plans     21 hours + 20 hours..  94.40................        77.44     7,310.34
 resubmit its program or material    ASLRRA and holding     (3.67 revised plans
 modification as described in        companies.             Class I and commuter
 paragraph (f)(2) of this section                           railroads + 1
 after addressing all of the                                revised plan ASLRRA
 deficiencies noted by FRA and the                          and holding
 resubmission must conform with                             companies).
 the procedures and requirements
 contained in Sec.   246.106.
                                   ---------------------------------------------------------------------------------------------------------------------
--(i) Rescinding Prior Approval of  The paperwork burden for this requirement is outside the scope of the 3-year PRA review period.
 Program--Railroad to resubmit its
 certification program and the
 program must conform with the
 procedures and requirements
 contained in Sec.   246.106.
                                   ---------------------------------------------------------------------------------------------------------------------
246.105(c)(1)-(d)(1)--Implementati  553 railroads........  3,781 designated       5 minutes............  315.08...............        77.44    24,399.80
 on schedule for certification                              lists.
 programs--Designation of
 certified signal employee.
--(c)(2)-(d)(2) Issue a             553 railroads........  3,781 issued           3 minutes............  189.05...............        77.44    14,640.03
 certificate that complies with                             certificates.
 Sec.   246.207 to each person
 that it designates.
                                   ---------------------------------------------------------------------------------------------------------------------
--(f) Written requests for delayed  FRA anticipates zero submissions.
 certification--Railroad may wait
 to recertify the person making
 the request until the end of the
 three-year period after FRA has
 approved the railroad's
 certification program.
                                   ---------------------------------------------------------------------------------------------------------------------
--(g) Testing and evaluation--      The paperwork burden for testing and evaluation is included in the economic burden and the burden for certificates
 Railroad shall only certify or      is included under Sec.   246.105.
 recertify a person as a signal
 employee if that person has been
 tested and evaluated in
 accordance with procedures that
 comply with subpart B of this
 part.
                                   ---------------------------------------------------------------------------------------------------------------------
246.106--Requirements for           The paperwork requirements described in this section are accounted for throughout this table.
 Certification Programs--
 Procedures for Submission and
 Approval of Dispatcher
 Certification Programs.
                                   ---------------------------------------------------------------------------------------------------------------------
246.109(a)--Determinations          The paperwork burden for this requirement is covered under Sec.   246.111 through Sec.   246.121 and Sec.   246.303.
 required for certification and
 recertification--Eligibility
 requirements.
                                   ---------------------------------------------------------------------------------------------------------------------

246.111(a)-(c)--Prior safety        553 railroads........  1,706 motor vehicle    5 minutes............  142.17...............        77.44    11,009.64
 conduct as motor vehicle                                   records.
 operator--Eligibility
 requirements of this section
 involving prior conduct as a
 motor vehicle operator.
--(e) If driver information is not  553 railroads........  2 waivers............  2 hours..............  4.00.................        77.44       309.76
 obtained as required pursuant to
 paragraph (g) of this section,
 that person or the railroad
 certifying or recertifying that
 person may petition for a waiver
 in accordance with the provisions
 of part 211 of this chapter.
                                   ---------------------------------------------------------------------------------------------------------------------
--(f) Individual's duty--Consent    This is usual and customary procedure. The consent form is signed at the time of hiring to make driving information
 to make information concerning      available to the railroad.
 driving record available to that
 railroad.
                                   ---------------------------------------------------------------------------------------------------------------------
--(g)-(h) Request to obtain         553 railroads........  1,706 written          5 minutes............  142.17...............        59.00     8,388.03
 driver's license information from                          requests.
 licensing agency.
                                   ---------------------------------------------------------------------------------------------------------------------
--(i) Requests for additional       The paperwork burden for this requirement is included under Sec.   246.111(g)-(h).
 information from licensing agency.
                                   ---------------------------------------------------------------------------------------------------------------------
--(j) Notification to railroad by   553 railroads........  2 notices............  10 minutes...........  .33..................        77.44        25.56
 persons of never having a license.
--(k) Report of motor vehicle       553 railroads........  40 self-reports......  10 minutes...........  6.67.................        77.44       516.52
 incidents described in paragraphs
 (m)(1) and (2) of this section to
 the employing railroad within 48
 hours.
--(l)-(m) Evaluation of person's    553 railroads........  1,706 motor vehicle    5 minutes............  142.17...............        71.89    10,220.60
 driving record by railroad.                                record evaluations.
--(n)(1) DAC referral by railroad   553 railroads........  36 DAC referrals.....  5 minutes............  3.00.................       115.24       345.72
 after report of driving drug/
 alcohol incident.
--(n)(2) DAC request and supply by  553 railroads........  1 request and          30 minutes...........  .50..................       115.24        57.62
 persons of prior counseling or                             supplied record.
 treatment.
--(n)(3) Conditional                553 railroads........  3 conditional          4 hours..............  12.00................       115.24     1,382.88
 certifications recommended by DAC.                         certification
                                                            recommendations.
                                   ---------------------------------------------------------------------------------------------------------------------
246.113(b)--Prior safety conduct    This is usual and customary procedure and therefore there is no paperwork burden.
 as an employee of a different
 railroad--Certification candidate
 has not been employed by any
 other railroad in the previous
 five years, they do not have to
 submit a request in accordance
 with paragraph (d) of this
 section, but they must notify the
 railroad of this fact in
 accordance with procedures
 established by the railroad in
 its certification program.
                                   ---------------------------------------------------------------------------------------------------------------------
--(c) Person seeking certification  553 railroads........  43.00 requests.......  15 minutes...........  10.75................        77.44       832.48
 or recertification under this
 part shall submit a written
 request to each railroad that
 employed the person within the
 previous five years.
                                   ---------------------------------------------------------------------------------------------------------------------
--(e) and (g) Railroad shall        553 railroads........  43.00 records........  15 minutes...........  10.75................        77.44       832.48
 provide the information requested
 to the railroad designated in the
 written request.
                                   ---------------------------------------------------------------------------------------------------------------------
--(f) An explanation shall state    FRA anticipates zero submissions.
 why the railroad cannot provide
 the information within the
 requested time frame or cannot
 provide the requested information.
                                   ---------------------------------------------------------------------------------------------------------------------
246.115(a)--Substance abuse         553 railroads........  1,535 determinations.  2 minutes............  51.17................        77.40     3,960.56
 disorders and alcohol drug rules
 compliance--Determination that
 person meets eligibility
 requirements.
--(b) Written documents from DAC    553 railroads........  79 filed documents...  30 minutes...........  39.50................       115.24     4,551.98
 that person is not affected by a
 disorder.