[Federal Register Volume 76, Number 217 (Wednesday, November 9, 2011)]
[Rules and Regulations]
[Pages 69802-69867]
[FR Doc No: 2011-28175]

Vol. 76

Wednesday,

No. 217

November 9, 2011

Part II

Department of Transportation

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Federal Railroad Administration

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49 CFR Part 242

Conductor Certification; Final Rule

Federal Register / Vol. 76 , No. 217 / Wednesday, November 9, 2011 /
Rules and Regulations

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DEPARTMENT OF TRANSPORTATION

Federal Railroad Administration

49 CFR Part 242

[Docket No. FRA-2009-0035; Notice No. 2]
2130-AC08

Conductor Certification

AGENCY: Federal Railroad Administration (FRA), Department of
Transportation (DOT).

ACTION: Final rule.

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SUMMARY: FRA is prescribing regulations for certification of
conductors, as required by the Rail Safety Improvement Act of 2008.
This rule requires railroads to have a formal program for certifying
conductors. As part of that program, railroads are required to have a
formal process for training prospective conductors and determining that
all persons are competent before permitting them to serve as a
conductor. FRA is issuing this regulation to ensure that only those
persons who meet minimum Federal safety standards serve as conductors,
to reduce the rate and number of accidents and incidents, and to
improve railroad safety. Although this rule does not propose any
specific amendments to the regulation governing locomotive engineer
certification, it does highlight areas in that regulation that may
require conforming changes.

DATES: Effective Date: The rule is effective January 1, 2012.

FOR FURTHER INFORMATION CONTACT: Mark H. McKeon, Special Assistant to
the Associate Administrator for Railroad Safety/Chief Safety Officer,
U.S. Department of Transportation, Federal Railroad Administration,
RRS-1, Mail Stop 25, 1200 New Jersey Avenue SE., Washington, DC 20590
(telephone:<PHONE_NUMBER>); Joseph D. Riley, Railroad Safety
Specialist (OP)-Operating Crew Certification, U.S. Department of
Transportation, Federal Railroad Administration, Mail Stop-25, Room
W38-323, 1200 New Jersey Avenue SE., Washington, DC 20590 (telephone:
(202) 493-6318); or John Seguin, Trial Attorney, U.S. Department of
Transportation, Federal Railroad Administration, Office of Chief
Counsel, RCC-10, Mail Stop 10, West Building 3rd Floor, Room W31-217,
1200 New Jersey Avenue SE., Washington, DC 20590 (telephone: (202) 493-
6045).

SUPPLEMENTARY INFORMATION:

I. Statutory Background

    Pursuant to Sec.  402 of the Rail Safety Improvement Act of 2008,
Public Law 110-432, 122 Stat. 4884 (Oct. 16, 2008) (codified at 49
U.S.C. 20163) (hereinafter ``RSIA''), Congress required the Secretary
of Transportation (Secretary) to prescribe regulations to establish a
program requiring the certification of train conductors. The Secretary
delegated this authority to the Federal Railroad Administrator. 49 CFR
1.49(oo).
    Section 20163(a) of 49 U.S.C. (Section 402 of the RSIA) provides
that:

    The Secretary of Transportation shall prescribe regulations to
establish a program requiring the certification of train conductors.
In prescribing such regulations, the Secretary shall require that
train conductors be trained, in accordance with the training
standards developed pursuant to section 20162.

Section 20163(b) provides that ``[i]n developing the regulations
required by subsection (a), the Secretary may consider the requirements
of section 20135(b) through (e).'' The requirements in 49 U.S.C. 20135
concern the certification of locomotive engineers.
    Section 20162(a)(2) of 49 U.S.C. (Section 401 of the RSIA) provides
that:

    (a) In General.--The Secretary of Transportation shall, not
later than 1 year after the date of enactment of the Rail Safety
Improvement Act of 2008, establish--
* * * * *
    (2) a requirement that railroad carriers, contractors, and
subcontractors develop and submit training and qualification plans
to the Secretary for approval, including training programs and
information deemed necessary by the Secretary to ensure that all
safety-related railroad employees receive appropriate training in a
timely manner.
* * * * *

Section 20162(b) of 49 U.S.C. provides that ``[t]he Secretary shall
review and approve the plans required under subsection (a)(2) utilizing
an approval process required for programs to certify the qualification
of locomotive engineers pursuant to part 240 of title 49, Code of
Federal Regulations.''

II. RSAC Overview

    In March 1996, FRA established the Railroad Safety Advisory
Committee (RSAC), which provides a forum for collaborative rulemaking
and program development. RSAC includes representatives from all of the
agency's major stakeholder groups, including railroads, labor
organizations, suppliers and manufacturers, and other interested
parties. A list of RSAC members follows:

American Association of Private Railroad Car Owners (AAPRCO);
American Association of State Highway & Transportation Officials
(AASHTO);
American Chemistry Council;
American Petroleum Institute;
American Public Transportation Association (APTA);
American Short Line and Regional Railroad Association (ASLRRA);
American Train Dispatchers Association (ATDA);
Association of American Railroads (AAR);
Association of Railway Museums (ARM);
Association of State Rail Safety Managers (ASRSM);
Brotherhood of Locomotive Engineers and Trainmen (BLET);
Brotherhood of Maintenance of Way Employes Division (BMWED);
Brotherhood of Railroad Signalmen (BRS);
Chlorine Institute;
Federal Transit Administration (FTA);*
Fertilizer Institute;
High Speed Ground Transportation Association (HSGTA);
Institute of Makers of Explosives;
International Association of Machinists and Aerospace Workers;
International Brotherhood of Electrical Workers (IBEW);
Labor Council for Latin American Advancement (LCLAA); *
League of Railway Industry Women; *
National Association of Railroad Passengers (NARP);
National Association of Railway Business Women; *
National Conference of Firemen & Oilers;
National Railroad Construction and Maintenance Association;
National Railroad Passenger Corporation (Amtrak);
National Transportation Safety Board (NTSB); *
Railway Supply Institute (RSI);
Safe Travel America (STA);
Secretaria de Comunicaciones y Transporte; *
Sheet Metal Workers International Association (SMWIA);
Tourist Railway Association Inc.;
Transport Canada; *
Transport Workers Union of America (TWU);
Transportation Communications International Union/BRC (TCIU/BRC);
Transportation Security Administration (TSA); and
United Transportation Union (UTU).

    * Indicates associate, non-voting membership.

    When appropriate, FRA assigns a task to RSAC, and after
consideration and debate, RSAC may accept or reject the task. If
accepted, RSAC establishes a working group that possesses the
appropriate expertise and representation of interests to develop
recommendations to FRA for action on the task. These recommendations
are developed by consensus. The working group may establish one or more
task forces or other subgroups to develop facts and options on a
particular aspect of a given task. The task force, or other subgroup,
reports to the working group. If a working group comes to consensus on
recommendations for action, the package is presented to RSAC for a
vote. If the proposal is accepted by a simple

majority of RSAC, the proposal is formally recommended to FRA. FRA then
determines what action to take on the recommendation. Because FRA staff
play an active role at the working group level in discussing the issues
and options and in drafting the language of the consensus proposal, and
because the RSAC recommendation constitutes the consensus of some of
the industry's leading experts on a given subject, FRA is often
favorably inclined toward the RSAC recommendation. However, FRA is in
no way bound to follow the recommendation and the agency exercises its
independent judgment on whether the recommended rule achieves the
agency's regulatory goals, is soundly supported, and is in accordance
with applicable policy and legal requirements. Often, FRA varies in
some respects from the RSAC recommendation in developing the actual
regulatory proposal or final rule. Any such variations would be noted
and explained in the rulemaking document issued by FRA. If the working
group or RSAC is unable to reach consensus on recommendations for
action, FRA resolves the issue(s) through traditional rulemaking
proceedings or other action.

III. RSAC Conductor Certification Working Group

    On December 10, 2008, the RSAC accepted a task (No. 08-07) entitled
``Conductor Certification.'' The purpose of this task was defined as
follows: ``To develop regulations for certification of railroad
conductors, as required by the Rail Safety Improvement Act of 2008
(Act), and to consider any appropriate related amendments to existing
regulations.'' The task called for the RSAC Conductor Certification
Working Group (Working Group) to perform the following:
     Review safety data bearing on opportunities for reducing
risk associated with the duties performed by freight and passenger
conductors.
     Assist FRA in developing regulations responsive to the
legislative mandate.
     Consider any revisions to 49 CFR part 240 appropriate to
conform and update the certification programs for locomotive engineers
and conductors.
    The task also listed issues requiring specific report:
     What requirements for training and experience are
appropriate?
     What classifications of conductors should be recognized?
     To what extent do existing requirements and procedures for
certification of locomotive engineers provide a model for conductor
certification?
     To what extent should unsafe conduct occurring while a
locomotive engineer affect certification status as a conductor, and
vice versa?
     Starting with the locomotive engineer certification model,
what opportunities are available for simplifying appeals from
decertification decisions of the railroads?
    The Working Group was formed from interested organizations that are
members of the RSAC. In addition to FRA, the following organizations
contributed members:
    AAR, including members from BNSF Railway Company (BNSF), Canadian
National Railway (CN), Canadian Pacific Railway (CP), CSX
Transportation, Inc. (CSX), Iowa Interstate Railroad, LTD, Kansas City
Southern Railway (KCS), Northeast Illinois Regional Commuter Railroad
Corporation (METRA), Norfolk Southern Railway Company (NS), and Union
Pacific Railroad (UP);
    The National Railroad Passenger Corporation (Amtrak);
    APTA, including members from Long Island Rail Road (LIRR), Metro-
North Railroad (MNCW), Southeastern Pennsylvania Transportation
Authority (SEPTA), Southern California Regional Rail Authority
(Metrolink), and Transit Solutions Group (TSG);
    ASLRRA, including members from Anacostia Rail Holdings (ARH),
Genesee & Wyoming Inc. (GNWR), Omnitrax Inc.(Omnitrax), Rio Grande
Pacific Corporation (RGP), and WATCO Companies, Inc. (WATCO);
    BLET;
    National Railroad Construction & Maintenance Association, including
members from Herzog Transit Services (Herzog);
    NTSB;
    TWU; and
    UTU.
    DOT's John A. Volpe National Transportation Systems Center (Volpe
Center) also contributed members to the Working Group.
    The Working Group convened 6 times on the following dates and
locations:
     July 21-23, 2009 in Washington, DC;
     August 25-27, 2009 in Overland Park, KS;
     September 15-17, 2009 in Colorado Springs, CO;
     October 20-22, 2009 in Arlington, VA;
     November 17-19, 2009 in Scottsdale, AZ; and
     December 16-18, 2009 in Washington, DC.
    To aid the Working Group in its development of recommendations for
certification of conductors, FRA prepared draft regulatory text, which
it distributed prior to the July meeting. The draft text closely
followed 49 CFR part 240 which governs the qualification and
certification of locomotive engineers.
    During each meeting, Working Group members made recommendations
regarding changes and additions to the draft text. Following each
meeting, FRA considered all of the recommendations and revised the
draft text accordingly. Minutes of each of these meetings are part of
the docket in this proceeding and are available for public inspection.
Having worked closely with the RSAC in developing its recommendations,
FRA believes that the RSAC effectively addressed concerns with regard
to the certification of conductors. FRA greatly benefited from the
open, informed exchange of information during the meetings.
    The Working Group reached consensus on all of its recommended
regulatory provisions. On March 18, 2010, the Working Group presented
its recommendations to the full RSAC for concurrence. All of the
members of the full RSAC in attendance at the March meeting accepted
the regulatory recommendations submitted by the Working Group. Thus,
the Working Group's recommendations became the full RSAC's
recommendations to FRA.
    Based on the recommendations of the RSAC, FRA published a Notice of
Proposed Rulemaking (NPRM) in the Federal Register on November 10,
2010. See 75 FR 69166. In the NPRM, FRA solicited public comment on the
proposed rule and notified the public of its option to request a public
hearing on the NPRM. In addition, FRA also invited comment on a number
of specific issues related to the proposed requirements for the purpose
of developing the final rule.
    In response to the NPRM, FRA received written comments from AAR,
Amsted Rail, Amtrak, APTA, ASLRRA, BLET, NYMTA, SEPTA, and UTU.\1\ FRA
then met with the Working Group on May 12, 2011 to discuss the
comments. Minutes of that meeting are part of the docket in this
proceeding and are available for public inspection.
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    \1\ BLET and UTU submitted joint comments. Accordingly, those
comments will be referred to as BLET/UTU comments.
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    As contemplated by the Working Group's task statement, the
promulgation of the conductor certification regulation opens up
consideration of conforming changes to 49 CFR part 240, ``Qualification
and certification of locomotive engineers.'' Such changes could include
amending the program submission process, adding 49 CFR 218, subpart F
violations as

revocable offenses, and handling engineer and conductor petitions for
review with a single FRA board. Although FRA intended for the Working
Group to consider changes to part 240 during its meetings, the Working
Group was unable to undertake that task. Moreover, members of the
Working Group felt that it would be more efficient to discuss changes
to part 240 after the conductor certification regulation is finalized.
Therefore, FRA expects the Working Group to continue meeting after
publication of this final rule and to provide recommendations that
address conforming changes to part 240.
    In addition to the conductor certification Working Group,
interested parties should also be aware that other RSAC working groups
are currently meeting to discuss potential FRA regulations which may
impact the conductor certification regulation. The Medical Standards
for Safety-Critical Personnel Working Group (RSAC Task No.: 06-03), for
example, is developing recommendations for a potential FRA medical
standards regulation. That regulation, if promulgated, could supersede
some of the medically-related requirements in the conductor
certification regulation. Further, the Training Standards and Plans
Working Group (RSAC Task No.: 10-01) is developing recommendations for
a FRA training regulation. While FRA does not expect that such a
training regulation would supersede the training requirements in the
conductor certification regulation, FRA does not know at this time what
the final training regulation will provide. Some modification of the
training requirements in this rule may be necessary to conform to the
final requirements of the training regulation.

IV. General Summary of the Comments

    As noted above, FRA received written comments on the NPRM from
various interested parties. Following the submission of those comments,
FRA convened the Working Group to consider and discuss the comments. As
a result, certain of those comments have been superseded by changes
made in the rule text from the NPRM to this final rule, and they should
not necessarily be understood to reflect the positions of the
commenters with respect to the requirements of the final rule. FRA is
summarizing the comments received and is responding to them in this
document so that FRA's positions are clearly understood.

A. Definitions

1. Substance Abuse Professional (SAP)
    FRA solicited comments whether a SAP should owe a duty to both the
employee being evaluated and the railroad. FRA noted that in the NPRM,
the duty owed by a SAP did not parallel the duty owed by a ``medical
examiner.'' BLET/UTU commented that a SAP should owe a duty to both the
employee and the railroad and that the definition should be revised
accordingly.
    After reviewing the comment regarding SAPs and the comments
regarding the drug and alcohol rules proposed in the NPRM, FRA finds
that the definition and use of the term ``SAP'' in the NPRM appears to
be causing confusion within the industry and may interfere with DOT's
drug and alcohol rules contained in parts 40 and 219. Under DOT's
alcohol and drug rules, a SAP is only used when referencing the
counseling requirements that follow a Federal drug or alcohol violation
(e.g., a part 219 violation). In the NPRM, however, a SAP is required
both for evaluations stemming from Federal violations and evaluations
stemming from incidents that are not the result of a Federal violation
(e.g., motor vehicle alcohol or drug incidents indentified pursuant to
Sec.  242.111). Moreover, the definition of SAP in the NPRM goes beyond
the definition of the term in part 40, which does not reference duties
owed by a SAP.
    To avoid interfering with the established rules and definitions
contained in DOT's drug and alcohol regulations and to avoid confusion
in the industry regarding what is required for Federal and non-Federal
violations; FRA is making three changes to the regulation proposed in
the NPRM. First, FRA is deleting the reference to a duty in the
definition of SAP. Second, the term SAP in part 242 will only be used
in connection with counseling requirements stemming from a Federal
violation. For example, the term SAP will be used in Sec.  242.115(f)
which discusses the follow-up that must occur after a part 219
violation, but the term will not be used in Sec.  242.111 which
concerns evaluations stemming from motor vehicle alcohol or drug
incidents. Third, for those sections of part 242 which address drug and
alcohol evaluation requirements not involving a Federal violation, the
term SAP will be replaced with the term ``Drug and Alcohol Counselor''
(DAC).\2\ As used in the final rule, a DAC will be required to meet the
exact same qualifications as a SAP. FRA believes these changes will
avoid interfering with parts 40 and 219 while requiring the same
qualification and credentialing requirements for persons evaluating
substance abuse disorders as that proposed in the NPRM.
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    \2\ With respect to employee self-referrals under Sec.
242.115(d), FRA acknowledges that the plain language of 49 CFR
219.403(b)(4) requires a SAP recommendation for the return to
service of an employee who has entered a voluntary self-referral
program. However, FRA has indicated that either a SAP or an Employee
Assistance Program (EAP) Counselor may perform the assessment and
provide any necessary recommendations for the return to service of
an employee who has entered a voluntary self-referral program. See
Part 219 Alcohol/Drug Program Compliance Manual at http://www.fra.dot.gov/downloads/safety/ADComplianceMan.pdf. Moreover,
Sec.  240.119(e) references an EAP in connection with voluntary
self-referrals for locomotive engineers. Accordingly, in this final
rule, the term DAC will be used with respect to employee self-
referrals rather than SAP.
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2. Medical Examiner
    BLET/UTU commented that the proposed definition of ``medical
examiner'' should be amended to explicitly state that a medical
examiner owes a duty to the employee and the railroad. FRA believes
that this revision is unnecessary given the plain language of the
regulation and the statement provided in the NPRM preamble addressing
this issue. As FRA stated in the NPRM (75 FR 69166, 69170 (Nov. 10,
2010)) and in the section-by-section analysis to this final rule:

    Under this rule, the medical examiner owes a duty to make an
honest and fully informed evaluation of the condition of an
employee. The only difference between the definition of medical
examiner in this rule and the definition in 49 CFR part 240 is that
under part 240, the medical examiner owes ``a duty to the
railroad.'' In this rule, however, the words ``to the railroad''
have been deleted. This change was made to address a concern of some
Working Group members that a medical examiner should not owe a duty
to just the railroad but rather should owe a duty to both the
railroad and the employee being evaluated.
3. Job Aid
    SEPTA raised a concern with FRA's proposed definition of ``job
aid.'' According to SEPTA, job aids provide information or guidance on
how to perform a multitude of tasks, and railroads must have the
flexibility to determine the scope of their use. SEPTA asserts that the
specific reference to ``physical characteristics'' in the definition of
``job aid'' is unduly prescriptive and creates the potential for
misinterpretations and erroneous limitations on the use of such tools.
Based on that reading, SEPTA expressed concern that the proposed
definition could be considered a prohibition on railroads from using a
job aid for

anything other than physical characteristics familiarization.
    FRA believes that the commenter is applying the term ``job aid,''
as used in part 242, beyond its intended scope. The term only applies
to specific information that would be provided in specific situations
(i.e., information regarding other than main track physical
characteristics that is required to be provided only in situations
where a conductor lacks territorial qualification on other than main
track physical characteristics and it is not practicable for the
conductor to be assisted by a conductor who meets the territorial
qualification requirements). As defined, the term ``job aid'' would not
prohibit additional information from being included in a job aid.
Moreover, the use of the term ``job aid'' in this rule is not intended
to prohibit the use of information or guidance which is not covered by
the term's definition, regardless of whether the information or
guidance is called a job aid. Because FRA does not believe that the
proposed definition could be considered a prohibition on a railroad
using a job aid for anything other than physical characteristics
familiarization, FRA has adopted the proposed definition in this final
rule.
4. On-the-Job Training
    SEPTA commented that the proposed definition of ``on-the-job
training'' should be replaced by a definition of that term as developed
by the RSAC Training Standards and Plans Working Group. At the Working
Group meetings, FRA informed the Working Group that it would conform to
the requirements developed by the Training Standards and Plans Working
Group where appropriate. The proposed definition in the NPRM mirrored
the definition developed by the Training Standards and Plans Working
Group except the Training Standards definition included ``on-the-job
training'' components in the regulatory text rather than in the
definition as provided in the NPRM. In this final rule, FRA has adopted
the more concise definition of ``on-the-job training'' developed by
Training Standards and Plans Working Group and has moved the components
to the regulatory text. See 49 CFR 242.119(d)(2).
5. Conductor
    SEPTA commented that the definition of ``conductor'' should be
revised to read: ``Conductor means the crewmember in charge of a train
or yard crew as defined in part 218 of this chapter, when the train or
yard crew consists of more than one crew member.'' The definition of
conductor was the subject of lengthy discussions during the Working
Group meetings and the recommendation of the Working Group was adopted
in the NPRM. The NPRM is focused on the functions that a person
performs and not on the person's job title. SEPTA's definition,
however, would diverge significantly from the approach taken in the
NPRM. For example, by SEPTA's definition, a one-person remote control
operator job would not have a conductor but a two-person job would.
Thus, SEPTA's definition would mean that a remote control operator in a
one-person job would not have engaged in a revocable event for any 49
CFR part 218, subpart F violation. FRA believes that such a loophole in
the regulation could lead to a less safe working environment for
railroad employees.
    The definition of ``conductor'' is a fundamental element of the
conductor certification regulation and FRA does not discern any safety-
related reason to modify it. Accordingly, FRA has adopted the
definition, as proposed in the NPRM, in this final rule.
6. Ineligible and Ineligibility
    SEPTA commented that the use of the terms ``ineligible'' and
``ineligibility'' should be limited to two situations: (1) Initial
certification, where an individual is being considered for
certification but may not qualify for certification at that time; and
(2) recertification, where an individual is currently certified and due
for recertification, but certain circumstances outside the scope of
``prohibited conduct'' would prohibit recertification until the
situation is resolved.
    As used in the NPRM, the terms ``ineligible'' and ``ineligibility''
are catch-all terms that not only encompass revocation and denial of
certification (including the two situations highlighted by SEPTA) but
also cover other situations. For example, a certified conductor may
voluntarily refer him or herself for substance abuse counseling or
treatment under 242.115(d). If the conductor refuses to complete a
course of action recommended under the provisions of 49 CFR 219.403,
that would not be an operating rule or procedure, or type of alcohol or
drug violation that would require revocation (nor would it constitute a
denial of certification situation). Rather the conductor would simply
remain ``ineligible'' until a railroad determined that the person no
longer had a substance abuse disorder, or the person re-entered a
substance abuse program and it had been determined under the provisions
of 49 CFR 219.403 that the person could safely return to duty under
certain conditions. Thus, to capture all situations where a conductor
may be legally disqualified from serving as a conductor, FRA believes
it is useful to define and use the terms ``ineligible'' and
``ineligibility.''
    BLET/UTU commented that the definition of ``ineligible'' and
``ineligibility'' should be revised to state that a period of
ineligibility ``shall begin only after a person has been afforded the
applicable due process established by either Sec.  242.109(e), Sec.
242.115(f) or Subpart E and shall end when the condition or conditions
contained therein are met.'' FRA believes that BLET/UTU's proposal
could have an adverse impact on railroad safety because the proposal
could potentially allow a conductor, involved in a revocable event, to
continue to serve as a conductor until the railroad concludes its
hearing and issues a decision. Accordingly, FRA declines to implement
the proposal and determines that the definition of ``ineligible'' and
``ineligibility'' as proposed in the NPRM will be adopted in this final
rule.
7. Qualified Instructor
    SEPTA commented that the definition of ``qualified instructor''
should be replaced with the definition of ``designated instructor''
developed by the RSAC Training Standards and Plans Working Group. In
the alternative, SEPTA commented that: FRA needs to provide references
validating the correlation of 12 months of experience with
instructional competency, craft qualifications or subject matter
expertise; and define or clarify whether the term ``train service'' is
limited to certified conductors or whether the term also includes
engineers, brakeman, assistant conductors, etc.
    The definition of ``designated instructor'' developed by the RSAC
Training Standards and Plans Working Group refers to:

    A person designated as such by an employer, training
organization, or learning institution, who has demonstrated,
pursuant to the training program submitted by the employer, training
organization, or learning institution, an adequate knowledge of the
subject matter under instruction and, where applicable, has the
necessary experience to effectively provide formal training.

    Although this final rule generally conforms to the provisions and
terms developed by the Training Standards and Plans Working Group, FRA
believes that it is appropriate to go beyond those requirements with
respect to definition of a ``qualified instructor.'' The definitions of
``qualified instructor'' in the NPRM and ``designated instructor''

developed by the Training Standards and Plans Working Group are similar
to one another with two exceptions. Unlike ``designated instructor,''
the definition of ``qualified instructor'' requires the instructor to
be a certified conductor, and in the case of a railroad that has
designated employee representation, to be designated by the railroad
with concurrence of the designated employee representative or have a
minimum of 12 months service working as a train service employee. As
stated in the NPRM, these additional requirements were included here to
address the concerns of some Working Group members that employees,
through their representatives, should have input in the selection of
instructors who might be viewed as inexperienced (i.e., a person with
less than 12 months service working as a train service employee). FRA
believes that the requirements will help contribute to a better
trained, and thus safer, workforce. Accordingly, FRA declines to modify
the definition of ``qualified instructor'' to the definition of
``designated instructor'' that was developed by the RSAC Training
Standards and Plans Working Group.
    SEPTA's comment demonstrates the need to clarify the meaning of the
term ``train service employee.'' For purposes of the definition of
``qualified instructor'' in this final rule, FRA intends for the term
``train service employee'' to include those persons that have
traditionally been known as certified engineers, conductors, brakemen,
yard helpers, and yardmen. The minimum of 12 months service working as
a train service employee may be at any time during that person's
career.

B. Waivers

    FRA solicited comments whether Sec.  242.9 of the NPRM dealing with
waivers should be removed as unnecessary in light of the fact that 49
CFR part 211 addresses the waiver process. While all three commenters
on this section; SEPTA, AAR and BLET/UTU, agreed that the waiver
process was covered by part 211, AAR and SEPTA indicated that they were
indifferent to the elimination of Sec.  242.9. However, UTU/BLET
suggested that it may be helpful to laypeople, who may not be aware of
the contents of 49 CFR part 211, to retain the reference to the waiver
process in Sec.  242.9. FRA agrees that Sec.  242.9 may be helpful to
some people and therefore, has retained that section in this final
rule.

C. Certification Program

    FRA solicited comments as to whether the amount of time proposed
for implementing a conductor certification program (based on the dates
provided) is appropriate. FRA did not receive any written comments on
this issue but did receive feedback during the May 12, 2011 Working
Group meeting regarding an extension of the effective date of the rule.
However, FRA believes its proposed approach is reasonable and thus, the
time periods proposed in the NPRM will be adopted in this final rule.

D. Schedule of Implementation

    AAR seeks confirmation that: ``Any employee can be designated as a
conductor under the grandfather provision through June 1, 2012. Any
employee designated as a conductor under the grandfather provision can
serve as a conductor until June 1, 2015, without being tested and
evaluated pursuant to subpart B and issued a certificate pursuant to
section 242.207.'' AAR's summary of the designation provisions in Sec.
242.105 is not entirely accurate. With respect to the time period for
designating conductors, only persons authorized by a railroad to
perform the duties of conductor between January 1, 2012 and June 1,
2012 for Class I and II railroads and January 1, 2012 and October 1,
2012 for Class III railroads, will be designated as conductors. With
respect to the time period a person designated as a conductor may serve
without being tested and evaluated, a person designated as a conductor
pursuant to Sec.  242.105 may not serve as a conductor after June 1,
2015 for Class I and II railroads and October 1, 2015 for Class III
railroads without being tested and evaluated pursuant to Subpart B.
However, after March 1, 2012, each railroad must issue a certificate
that complies with Sec.  242.207 to each person that it designates.
Moreover, subject to the provisions of Sec.  242.105(c)(1)-(3), a
railroad may test and evaluate its designated conductors under subpart
B before the 36-month designation period has expired. Railroads should
note that they may not test and evaluate a designated conductor or
conductor candidate under subpart B of this rule or revoke a
conductor's certificate, including a designated conductor's
certificate, until they have a certification program approved by the
FRA pursuant to Sec.  242.103.

E. Prior Safety Conduct as a Motor Vehicle Operator

    SEPTA commented that additional language should be added to the
regulation that specifies that a delay in receipt of the required
driving records be due to acts or omissions by the driver licensing
agency, and the 60-day extension is limited to those cases where delays
are beyond the control of the individual. According to SEPTA, the
absence of such language could force railroads to impose more severe
time restrictions on the driving record information requirements,
effectively penalizing the majority of employees for the sake of the
few who attempt to beat the system and remain in a safety-critical
environment while affected by an active substance abuse disorder. While
FRA acknowledges SEPTA's concern, FRA has not seen any evidence that
the submission of incorrect or misleading information to driver's
license agencies is a common problem. If FRA finds such evidence, FRA
will consider amending part 242 to address the issue. Interested
parties should note that any person who knowingly and willfully
falsifies a record or report required by part 242 may be subject to
criminal penalties. See Sec.  242.11.
    BLET/UTU commented that they expect that, in the application of
proposed Sec.  242.111(f) which addresses petitions to the waive motor
vehicle check requirements, the Railroad Safety Board would require a
notarized declaration, affidavit or some other form of sworn statement
that no Sec.  242.111(n) incident has occurred within the preceding 36
months as a condition precedent for granting the waiver petition. Based
on that expectation, BLET/UTU suggested that such a requirement could
be written directly into the rule, thereby relieving the Railroad
Safety Board of the burden of having to handle these matters. FRA
declines to adopt this suggestion as FRA cannot speak to what the
Railroad Safety Board may require with respect to a waiver of certain
requirements of Sec.  242.111. Moreover, it is beyond the scope of this
rulemaking to remove a railroad's right to petition the Railroad Safety
Board for a waiver of the FRA's regulatory requirements.
    AAR commented that a paragraph (o)(5) should be added to Sec.
242.111 that would permit railroads to offer the assistance of a
licensed counselor, social worker, or psychologist with expertise in
the assessment of people with substance abuse disorders as an
alternative to a SAP. According to AAR, the employee could use a SAP if
the employee so desired, but the railroad

would be able to offer the employee a choice.
    Pursuant to Sec.  242.111 of the NPRM, railroad employees would be
evaluated for substance abuse disorders by a person (i.e., a Drug and
Alcohol Counselor who meets the credentialing and qualification
requirements of a SAP) with more stringent credentialing and knowledge
requirements than an EAP Counselor (currently used in part 240) or the
type of person proposed by AAR. FRA believes that requiring more
stringent credentialing and knowledge requirements will improve
employee confidence in the evaluation process. Moreover, AAR's proposal
could open up the possibility of harassment and intimidation of an
employee who does not choose to be evaluated by a person who has less
stringent credentialing and knowledge requirements than a SAP.
Accordingly, FRA declines to adopt the paragraph proposed by AAR.
    AAR commented that it appears that FRA intends for DOT's
requirement for direct observation of urine collection to apply to
follow-up testing required as a result of motor vehicle alcohol and
drug violations. AAR would agree with that position and suggested that
FRA should make clear, both in this regulation and Part 240, that where
follow-up testing is required by federal rules, all federal testing
requirements, including direct observation, apply.
    It is not FRA's intention for DOT's requirement for direct
observation of urine collection to apply to follow-up testing required
as a result of motor vehicle alcohol and drug violations. A motor
vehicle alcohol/drug incident requiring follow-up testing is not a
Federal part 219 violation. As such, this incident does not meet the
criteria justifying direct observation as provided by 49 CFR 40.67.
Interested parties should note, however, that direct observation of
urine collection for follow-up testing may be recommended by a Drug and
Alcohol Counselor as necessary.

F. Substance Abuse

    BLET/UTU commented that the guidance provided in the NPRM
concerning circumstances which may indicate the need for a SAP
evaluation (i.e., ``declining job performance, extreme mood swings,
[and] irregular attendance'') should be removed from the preamble.
BLET/UTU assert that the circumstances identified are ambiguous and/or
subjective concepts which could be exploited by the railroads. FRA
acknowledges that there could be legitimate reasons why someone might
exhibit some or all of the conditions identified in the preamble to the
NPRM. However, those conditions, to the extent not immediately
explicable, may also indicate a need for an evaluation. The purpose of
the preamble language is not to require (and does not require) the
railroads to order an evaluation anytime a listed condition is
exhibited. Rather, FRA is simply providing guidance as to conditions
that may, given the context, call for an evaluation under internal
railroad policies. Moreover, FRA remains vigilant of harassment and
intimidation and will take appropriate action where such conduct is
discovered. Accordingly, the guidance in the NPRM has been carried over
into the final rule.
    BLET/UTU commented that Sec.  242.115(e) of the NPRM contains
several references to the certification consequence for an employee who
``refuses or fails'' to provide a breath or body fluid sample. BLET/UTU
disagrees that a failure to provide a breath or body fluid sample
should trigger a revocation consequence. According to BLET/UTU, there
are legitimate medical reasons why a person may be unable to provide a
breath or body fluid sample citing 49 CFR 40, subpart I which provides
the medical conditions under which an individual's failure to provide
an sufficient sample is not deemed a refusal. In addition, BLET/UTU
notes that subpart G of part 219 excuses a covered employee from
compliance with the requirement to participate in random drug and
alcohol testing ``in the case of a documented medical or family
emergency.'' See 49 CFR 219.603 and 219.609. BLET/UTU understands the
reference to part 219 in proposed section 242.115(e)(2) as
incorporating the exceptions set forth in subpart G, and requests that
the section-by-section analysis for the Final Rule clarify that their
understanding is correct.
    FRA confirms that the exceptions in part 40, subpart I, and part
219, subpart G, are included in this final rule's use of the word
``refuses.'' In other words, there is no ``refusal'' if the failure to
provide a sufficient sample was the result of a legitimate medical
explanation under part 40 or if it was a random test and the employee
had a documented medical or family emergency under part 219. Further,
to clarify the issue, FRA has removed the words ``or fails'' in the
final rule. Use of the word ``refuses'' rather than the phrase
``refuses or fails'' more accurately tracks the provisions of parts 40
and 219.

G. Vision and Hearing Acuity

    BLET/UTU commented that proposed Sec.  242.117(k) should be amended
to address concerns that if it is discovered after an incident that a
conductor's vision or hearing acuity had deteriorated below the
standard set forth in the NPRM, that conductor, even though he or she
may not have been aware of the deterioration, may be subjected to
penalties or enforcement actions for failing to notify the railroad of
the deterioration prior to the incident. FRA understands BLET/UTU's
concern and believes it is obvious that a conductor could not have
enforcement action taken against them for failing to notify the
railroad of a condition he or she was not aware existed. That is why
the preamble discussion of this section in the NPRM noted that the
paragraph at issue ``would address the issue of how soon after learning
of a deterioration * * * a conductor would have to notify the railroad
of the deterioration.'' 75 FR 69166, 69176 (Nov. 10, 2010) (emphasis
added). Because the proposed regulation would not permit enforcement
action against a conductor for failing to notify a railroad when they
are not aware that their vision or hearing acuity had deteriorated
below the standard set forth in the regulation, FRA declines to adopt
BLET/UTU's proposed amendment.

H. Training

    FRA solicited comments whether to require each railroad to provide
for the continuing education of certified conductors in Sec.
242.119(o). Since FRA did not receive any comments on this issue and
because FRA sees no reason to change its approach, the proposed
continuing education requirement contained in the NPRM (see 75 FR
69166, 69176-69177, 69204-69205 (Nov. 10, 2010)) will be adopted in
this final rule.
    NYMTA, SEPTA and AAR commented that the proposed language in Sec.
242.119(d)(1) specifying the development of a task analysis should be
removed. In the Working Group meetings and the preamble to the NPRM,
FRA indicated that, to the extent possible and appropriate, it would
conform the training requirements in part 242 to the training
requirements being developed by the RSAC Training Standards and Plans
Working Group. Because the RSAC recommendation from the Training
Standards and Plans Working Group did not require a task analysis and
FRA believes that the more comprehensive on-the-job training
requirement included in the final rule (see section-by-section analysis
of 242.119 below) adequately substitutes for a task analysis
requirement, FRA has removed the proposed task analysis requirement
from the final rule.

    NYMTA, SEPTA and AAR commented that FRA should remove paragraphs
(l) and (m) in proposed Sec.  242.119 of the NPRM. Those paragraphs
proposed to require railroads to perform initial instructional
briefings with their conductors. In the Working Group meetings and the
preamble to the NPRM, FRA indicated that, to the extent possible and
appropriate, it would conform the training requirements in part 242 to
the training requirements being developed by the RSAC Training
Standards and Plans Working Group. Because the RSAC recommendation from
the Training Standards and Plans Working Group did not require initial
instructional briefings and FRA believes that the initial training
program requirements included in the final rule (see section-by-section
analysis of 242.119 below) adequately cover the requirements in the
proposed paragraphs at issue, FRA has removed paragraphs (l) and (m) in
proposed Sec.  242.119 of the NPRM from the final rule.
    BLET/UTU commented that Sec.  242.119(n), providing an exception to
the initial briefing requirements of Sec.  242.119(l) and (m) should be
deleted and replaced in its entirety with the following: ``Initial
training shall be conducted in accordance with the requirements of Part
243.'' Since FRA has not even issued a NPRM relating to part 243, FRA
cannot use BLET/UTU's proposed language. However, since the RSAC
Training Standards and Plans Working Group's recommendation to FRA does
not require initial instructional briefings and FRA believes that the
initial training program requirements included in the final rule (see
section-by-section analysis of 242.119 below) adequately cover the
substance of proposed paragraph (n), FRA has removed paragraph (n) in
proposed Sec.  242.119 of the NPRM from the final rule.

I. Knowledge Testing

    SEPTA commented that proposed Sec.  242.121(c)(4)(v), which
requires testing on use of job aids, should be deleted since this
section includes requirements for an examination on operating rules and
timetable instructions which would presumably demonstrate an
individual's ability to use those documents. FRA believes it is an
important safety measure to ensure that conductors be able to use any
job aid, as defined by this part, that they may be given. Moreover, FRA
does not believe that testing on operating rules and timetable
instructions would necessarily demonstrate an individual's ability to
use a job aid. Accordingly, FRA declines to delete Sec.
242.121(c)(4)(v) as proposed in the NPRM.
    BLET/UTU commented that Sec.  242.121(c)(6) of the NPRM, which
would have required knowledge testing to be conducted without open
reference books or other materials except to the degree the person is
being tested on his or her ability to use such reference books or
materials, should be deleted. While one would expect a conductor to
refer to his or her written rules and instructions whenever there is
any uncertainty about what is required by a particular rule,
instruction or practice, FRA believes that some rules are so
fundamental to railroad safety, such as compliance with stop signals,
that a conductor would be expected to know the rule without referring
to reference materials. Accordingly, FRA declines to delete Sec.
242.121(c)(6) as proposed in the NPRM.

J. Monitoring Operational Performance

    NYMTA seeks confirmation that: ``Training may be used as a
substitute to satisfy the annual unannounced test for persons certified
as passenger conductors pursuant to Sec.  242.107(b)(2) who do not
require compliance with Part 218, subpart F, except under emergency
circumstances.'' FRA confirms that training may be used as a substitute
pursuant to Sec.  242.123(d)(2)(i).
    SEPTA and NYMTA commented that it is not feasible to test each of
its certified conductors on one or more of the provisions in 49 CFR
218.99-218.109 because the majority of passenger conductors do not have
the opportunity to perform part 218 tasks on a regular basis. SEPTA
recommends revising Sec.  242.123(d)(2)(i) to allow annual training to
substitute for annual test for all passenger conductors. FRA declines
to adopt NYMTA and SEPTA's comments in this final rule. FRA believes
that Sec.  242.123(d)(2)(i) addresses SEPTA and NYMTA's concerns about
passenger conductors who rarely engage in activities covered by part
218, subpart F. FRA expects that most passenger conductors will never
have to engage in activities covered by part 218, subpart F (which is
what FRA means by the phrase ``compliance with part 218, subpart F'')
except in emergency circumstances. Accordingly, FRA expects that most
passenger conductors will be permitted to be given annual training in
lieu of an unannounced compliance test.
    While not revising Sec.  242.123(d)(2)(i) based on the comment, FRA
is revising the paragraph to clarify its intent. FRA intended for Sec.
242.123(d)(2)(i) to state that the annual training exception only
applies to part 218, subpart F, testing and that a railroad will still
have to test on Sec.  217.9. The final rule has been revised
accordingly.
    SEPTA and NYMTA commented that the time limit proposed in Sec.
242.123(b)(1) and (f) for testing conductors who are returning to
service should be extended from 30 days to 60 days. They contend that
this will provide for increased quality observations thereby allowing
the manager extra opportunities to observe the employee on different
job assignments. As provided in the preamble to the NPRM, proposed
paragraphs (b)(1) and (f) address the problem that some certified
conductors may not be performing a service that requires conductor
certification and thus, a railroad may not be able to provide those
conductors with the annual, unannounced compliance test. Unlike part
240, which requires railroads to seek a waiver from FRA's Safety Board
for engineers that they are unable to annually test, the proposed
paragraphs would not require railroads to give an unannounced
compliance test to conductors who are not performing service requiring
certification. Moreover, the railroads are given approximately a month
to test those conductors returning to service.
    BLET/UTU commented that the rule should make it clear that the
employee may work for the 30 days pending the unannounced test and
thus, asserted that 242.123(f) should be amended as follows: ``However,
when the certified conductor returns to a service that requires
certification pursuant to this part, that certified conductor shall not
be deemed ineligible but must be tested pursuant to this section within
30 days of his or her return.'' (emphasis added). FRA declines to adopt
the revisions suggested in the comment. Just as with locomotive
engineers under part 240, a failure to conduct an unannounced test does
not affect a conductor's certification (i.e., a railroad's failure to
give the test to a person would not render that person ineligible to
serve as a conductor). However, that does not mean the person would not
be ineligible for another reason. For example, a conductor who is
determined to have an active substance abuse disorder would be
ineligible to serve as a conductor regardless of whether the conductor
had received an unannounced compliance test within 30 days of his or
her return to conductor service. Since the BLET/UTU's proposed revision
could be read to prevent a railroad from deeming a person ineligible
for any reason upon that person's return to conductor service, FRA
declines to adopt the revision.

K. Time Limitations for Certification

    BLET/UTU commented that the conductor certification rules should be
consistent with the potential medical standards that are being
considered by FRA. It is FRA's expectation that where possible and
appropriate, part 242 will be consistent with any potential medical
standards rulemaking.

L. Certificate Components

    FRA solicited comments whether to require a conductor's certificate
to include a physical description or photograph of the conductor. As
stated in the NPRM, locomotive engineer certificates are required to
include a physical description or photograph of the engineer pursuant
to part 240. Moreover, FRA believes that this requirement would enable
FRA inspectors, railroad officers, and police officers to quickly
verify that the person in possession of the certificate is in fact the
person listed on the certificate. Since FRA did not receive any
comments on this issue and because FRA believes it will assist in
monitoring railroad compliance with certification of conductors, the
proposed physical description or photograph requirement in the NPRM
will be adopted in this final rule.

M. Multiple Certifications

    In the NPRM, FRA solicited comments regarding whether to add a
provision to Sec.  242.213 that would require railroads to make the
determination as to which certification to revoke, where a person who
is serving as both the conductor and the engineer is involved in a
revocable event, based on the work the person was performing at the
time the conduct occurred. FRA noted that such a determination would be
similar to the one made under Sec.  242.215(f) and under part 225 in
which railroads determine whether an accident was caused by poorly
performing what is traditionally considered a conductor's job function
or what is traditionally considered a locomotive engineer's job
function. BLET/UTU supported the addition of the provision, while AAR
commented that a railroad should be able to revoke both certificates.
    FRA has included the additional provision in Sec.  242.213 of this
final rule. FRA believes that the provision is necessary to bring
additional continuity to the revocation process. Moreover, this type of
determination is not new to the railroads as they already make similar
determinations under part 225 and agreed to the inclusion of similar
language in Sec.  242.215(f) of the NPRM. FRA does not believe it is
necessary to revoke both certificates in such situations because a
person certified as a conductor and an engineer will not be permitted
to serve in either position if one of the certificates has been revoked
for anything other than a part 218, subpart F, violation. With respect
to part 218, subpart F violations, AAR's comment is not feasible since
part 240 does not currently permit a person certified as an engineer to
have his or her engineer certification revoked for a violation of part
218, subpart F.
    Amtrak, SEPTA, and NYMTA commented on Sec.  242.213's proposed
requirement that a locomotive engineer, including a RCO, who is
operating without an assigned certified conductor must be certified as
both a locomotive engineer and a conductor or be accompanied by a
certified conductor who will attach to the crew ``in a manner similar
to that of an independent assignment.'' Amtrak, SEPTA, and NYMTA's
comments asserted that that requirement should be amended to provide
exceptions for passenger railroads and train operations in certain
areas and contexts.
    Amtrak, SEPTA, and NYMTA's comments concern the very definition of
a conductor. That definition was the subject of lengthy discussions
during the Working Group meetings and the recommendation of the Working
Group was adopted in the NPRM. The definition is a fundamental element
of the conductor certification regulation and FRA does not discern any
safety-related reason to modify it. Moreover, an exception is built
into the final rule which address some of the concerns raised in the
comments. For example, if a conductor is removed from a train for a
medical, police or other such emergency after the train departs from an
initial terminal, the train may proceed without the locomotive engineer
being a certified conductor to the first location where the conductor
can be replaced without incurring undue delay. Interested parties
should also note that movement of a locomotive within the confines of a
locomotive repair or servicing area or movement of a locomotive less
than 100 feet for inspection or maintenance purposes would not require
a certified conductor. Accordingly, Amtrak, SEPTA, and NYMTA's comments
have not been adopted in this final rule.
    BLET/UTU commented that Sec.  242.213(h)(1) should be amended to
make clear that when both an engineer and conductor certification are
revoked for different lengths of time, the revocation periods shall run
concurrently. BLET/UTU recommended amending Sec.  242.213(h)(1) to read
as follows:

    For purposes of determining the period for which a person may
not work as a certified locomotive engineer due to a revocation of
his or her conductor certification, only violations of Sec.
242.403(e)(1) through (e)(5) or (e)(12) will be counted. Thus, a
person who holds a current conductor and locomotive engineer
certificate and who has had his or her conductor certification
revoked three times in less than 36 months for two violations of
Sec.  242.403(e)(6) and one violation of Sec.  242.403(e)(1) would
have his or her conductor certificate revoked for 1 year, but would
not be permitted to work as a locomotive engineer for the first
month of that revocation period (i.e., the period of revocation for
one violation of Sec.  242.403(e)(1)).

(emphasis added).
    FRA declines to adopt BLET/UTU's amendment. Section 242.213(h) and
the chart in Appendix E already make clear that the period a person
cannot not work as an engineer occurs during the period that the
conductor certification is revoked (i.e., concurrently). Moreover, FRA
cannot say that the person in the example given in Sec.  242.213(h)(1)
would not be permitted to work as an engineer for the first month of
the one year revocation period because the example does not provide the
exact order of the revocations. Nonetheless, it is FRA's intent that
the period a conductor could not work as an engineer would occur at the
beginning of the revocation period. Thus, a person who holds a current
conductor and locomotive engineer certificate and who has had his or
her conductor certification revoked twice within 24 months--first for a
violation of Sec.  242.403(e)(6) and second for a violation of Sec.
242.403(e)(1)--would have his or her conductor certificate revoked for
6 months, but would not be permitted to work as a locomotive engineer
for the first month of that 6-month revocation period (i.e., the period
of revocation for one violation of Sec.  242.403(e)(1)).

N. Territorial Qualification

    BLET/UTU commented that the provision proposed in Sec.  242.301(c)
should be amended to state that a person who assists a conductor
lacking territorial qualification on main track physical
characteristics may not be an assigned crew member. In support of its
comment, the BLET/UTU notes that under part 240, a pilot who assists a
locomotive engineer lacking qualifications on the physical
characteristics of a territory may not be an assigned crew member. As
proposed in the NPRM, Sec.  242.301(c) would permit the locomotive
engineer of a train, who is also certified as a conductor and

qualified on the physical characteristics of the territory, to assist
the assigned conductor if the conductor lacks qualification on the
physical characteristics. BLET/UTU asserts that could lead to a
situation in which an engineer would be required to simultaneously
perform the safety-critical responsibilities of two people, including
some that may be performed in two different physical locations. AAR
opposed BLET/UTU's amendment. According to AAR, the proposed amendment
ignores the distinction between an engineer's duties and a conductor's
duties and that for a move requiring the engineer to assist the
conductor, the engineer can conduct a job safety briefing that provides
the conductor with any information necessary to allow a safe move. In
addition, AAR asserts that the lack of need for a non-crew member pilot
is supported by the fact that job aids may be used on other than main
track where it is not practicable to provide an assistant--``whether an
engineer is providing necessary information pertaining to the territory
or the conductor is using a job aid, the conductor will have sufficient
information available to allow for safe operation of the train.''
    Based on the comments received and after further review of the
issue, FRA has revised the requirements in Sec.  242.301 regarding when
a conductor lacking territorial qualification on main track physical
characteristics must be assisted by a person who meets those
qualifications. The revisions, derived in large part from the pilot
requirements for locomotive engineers in part 240, provide differing
requirements depending on whether a conductor has never been qualified
on main track physical characteristics of the territory over which he
or she is to serve as a conductor or whether the conductor was
previously qualified on main track physical characteristics of the
territory over which he or she is to serve as a conductor, but whose
qualification has expired.
    For a conductor who has never been qualified on main track physical
characteristics of the territory over which he or she is to serve as a
conductor, the final rule requires that the assistant must be a person
who is certified as a conductor, meets the territorial qualification
requirements for main track physical characteristics, and is not an
assigned crew member. For a conductor who was previously qualified on
main track physical characteristics of the territory over which he or
she is to serve as a conductor, but whose qualification has expired,
the Final Rule allows the assistant to be any person, including an
assigned crewmember other than the locomotive engineer so long as
serving as the assistant would not conflict with that crewmember's
other safety sensitive duties, who meets the territorial qualification
requirements for main track physical characteristics.
    In addition to the revisions as to when an assistant is required on
main track, the Final Rule includes exceptions as to when an assistant
is not required on main track. Those exceptions, which are derived from
49 CFR 240.231(c), apply to movements on a section of main track with
an average grade of less than 1% over 3 continuous miles and: (1) The
maximum distance the locomotive or train will be operated does not
exceed one mile; or (2) the maximum authorized speed for any operation
on the track does not exceed 20 miles per hour; or (3) operations are
conducted under operating rules that require every locomotive and train
to proceed at a speed that permits stopping within one half the range
of vision of the locomotive engineer.
    FRA believes that these changes will serve the interests of safety,
address the concerns of the BLET/UTU, provide flexibility for the
railroads in handling situations which require an assistant, and make
this Final Rule more consistent with the main track pilot requirements
in part 240.
    The BLET/UTU also commented that the proposed job aid provision in
Sec.  242.301(d) should be mandatory and suggested that the last
sentence of that section should read: ``Where not practicable, the
conductor shall be provided an accurate job aid prior to entering the
track.'' It was FRA's intent that the job aid provision of Sec.
242.301(d) be mandatory and it has been revised accordingly in this
final rule. FRA declines to adopt the additional suggested revisions as
it believes that the phrase ``appropriate up-to-date'' used in the NPRM
encompasses the suggested term ``accurate'' and the ``prior to entering
the track'' language is unnecessary because a conductor who lacks
territorial qualification on a segment of track will not be permitted
to enter that track until they are, where practicable, assisted by a
certified conductor who is qualified or provided an appropriate up-to-
date job aid.

O. Denial of Certification

    In the NPRM, FRA solicited comments on whether to add two
provisions to Sec.  242.401. See 75 FR 69166, 69181 (Nov. 10, 2010).
The first provision proposed to add the following sentence to paragraph
(a) of that section: ``The railroad shall provide the conductor
candidate with any written documents or records, including written
statements, which support its pending denial decision.'' The second
provision proposed to add the following sentence to paragraph (c) of
this section: ``The basis for a railroad's denial decision shall
address any explanation or rebuttal information that the conductor
candidate may have provided in writing pursuant to paragraph (a) of
this section.'' AAR commented that they oppose the first proposal
because the supporting documentation could include privileged documents
and documents that will be used in litigation.
    As stated in the NPRM, the intent of the first proposed provision
is to improve the transparency of the certification denial process and
improve FRA's ability to adjudicate petitions seeking review of a
railroad's denial decision pursuant to subpart E of this rule. Denial
decisions are not accompanied by a hearing transcript and often contain
little or no documentary record. The issue that FRA is trying to
address is the situation where a conductor candidate does not get
enough information regarding a denial decision to draft an appropriate
rebuttal. FRA wants to avoid the delay and cost of a conductor
candidate having to petition the Operating Crew Review Board (OCRB) to
obtain the documents they need to rebut the denial decision. If
conductor candidates are provided better information upfront, FRA
expects that fewer petitions will be filed with the OCRB. FRA is not
requiring documentation regarding employment or personal issues but
rather is only interested in documents related to a failure to meet a
requirement of part 242. For example, FRA would expect that locomotive
download printouts, Form Bs, and/or transcripts of railroad
communications that support the pending denial decision would be
provided to the conductor candidate. Under this final rule, the OCRB
already has the authority to order a railroad to produce those types of
documents and FRA would not expect that they would be privileged.
Accordingly, FRA is adopting the first proposal, with some
modification, in this final rule.
    Since FRA did not receive any comments objecting to the second
proposed provision and FRA sees no reason to change its approach, the
second proposed provision will also be adopted in this final rule.
    In the NPRM, FRA also asked whether the intervening cause exception
in proposed paragraph (d) of Sec.  242.401 should be modified to
include

certification and recertification requirements in addition to the
revocable events in Sec.  242.403. FRA provided an example of how
paragraph (d) could be modified: ``A railroad shall not determine that
a person failed to meet the eligibility requirements of this part and
shall not deny the person's certification if sufficient evidence exists
to establish that an intervening cause prevented or materially impaired
the conductor's ability to comply with the railroad operating rule or
practice or certification or recertification requirement which forms
the basis for denying the person certification or recertification.''
See 75 FR 69166, 69181 (Nov. 10, 2010). AAR commented that they did not
understand what FRA was trying to do and stated that FRA appeared to be
contemplating that there could be an intervening event on which to base
denial of certification independent of the events listed in Sec.
242.403. BLET/UTU agreed that Sec.  242.401(d) should be modified as
proposed by FRA.
    Contrary to AAR's comment, FRA is not suggesting that an
intervening cause could serve as a basis for denial. Rather, FRA's
proposal provides that an intervening cause could serve as a basis for
not denying certification. At the May 12th Working Group meeting, AAR
stated that they were opposed to extending the intervening cause
provision to denials of certification. At that meeting, a member of the
Working Group expressed concern that under the proposal, a conductor
candidate who was not able to hold themselves up on the side of a car
which in turn led to a violation of Sec.  242.403(e)(1) through (e)(11)
could assert an intervening cause argument.
    Because the proposed modification appears to have caused confusion,
could lead to unintended consequences, and merely clarifies FRA's
existing authority, FRA has decided not to modify Sec.  242.401(d) as
proposed in the NPRM. Rather, FRA has clarified paragraph (d) in this
final rule to reflect more accurately what was said in the NPRM.
Interested parties should note, however, that like the LERB under part
240, the OCRB has the authority, if petitioned, to review the basis for
denial of certification or recertification by the railroad to determine
if substantial evidence supports the decision.

P. Criteria for Revoking Certification

    In the NPRM, FRA solicited comments whether a violation of the
final rule in 49 CFR part 220 (``Restrictions on Railroad Operating
Employees' Use of Cellular Telephones and Other Electronic Devices'')
should constitute a revocable event for conductors and locomotive
engineers. In particular, FRA asked whether it should use its other
enforcement tools (e.g., monetary civil penalty for individual
liability, disqualification, etc.) instead of mandating revocation and
how a railroad would acquire the necessary evidence to revoke a
conductor's and/or locomotive engineer's certification for violation of
49 CFR part 220. AAR and SEPTA commented that a violation of part 220
should constitute a revocable event and AAR stated that it would expect
that FRA would provide assistance and support, as necessary, including
the invocation of its subpoena power when appropriate.
    BLET/UTU commented that they are opposed to including a violation
of part 220 as a revocable event under part 240 and 242 because: FRA's
data shows that cell phone violations are qualitatively different than
a violation of the cardinal sins; there is no indication that there is
a pattern of cell phone violations requiring the imposition of
revocation; there are numerous questions regarding FRA's data are
unanswered; and FRA currently has sufficient tools at its disposal
(e.g., subpoenas, individual liability, etc.) to detect and punish
violations. Alternatively, BLET/UTU commented that if FRA makes it a
revocable offense, then the regulation should state that revocation is
appropriate only when an electronic device is improperly used while
performing safety related duties and the use contributed to an event
identified in Sec.  219.201.
    At this time, FRA had decided not to include part 220 violations as
revocable events in this final rule. FRA already has a new regulation,
49 CFR part 220, to address cell phone use and believes that time
should be allowed to study what impact that regulation has on the
improper use of electronic devices on the railroads. In addition, FRA
has numerous enforcement tools against individuals available to address
misuse of electronic devices--warning letters, civil penalties,
disqualifications, etc. Moreover, requiring revocation for part 220
violations would be incredibly difficult for railroads to enforce and
apply. FRA cannot legally use its subpoena powers to gather information
for a railroad which is what AAR expects to happen. Therefore, FRA
expects that most cases would simply be one person's statement versus
another.
    Railroads appear to have rules and policies in place to address the
misuse of electronic devices. A survey of Class I railroads indicates
that they generally have rules and policies in effect that are more
comprehensive than the federal minimums contained in part 220.
Discipline for non-compliance is typically governed by the specific
nature of the offense and the discipline record of the employee and
ranges from coaching or counseling to dismissal.
    Although FRA is not including part 220 violations as revocable
events, FRA will continue to monitor the use of electronic devices and,
if necessary, will consider amending the regulations to include misuse
of such as a revocable event.
    Moreover, FRA expects to use its disqualification authority under
part 211 in instances where improper use of electronic devices is found
under part 220. FRA will be taking a zero tolerance view of such
violations and, in addition to its civil penalty authority against a
railroad, will also utilize its disqualification authority against an
individual employee to the extent practicable in any such instance of
misuse by an employee.
    NYMTA and SEPTA commented that a conductor who is called to perform
the duty of a train crew member other than that of conductor or
locomotive engineer should have his or her certification revoked based
on actions taken or not taken while performing that duty. That
suggestion, however, runs counter to Sec.  242.403(c)(3), and what was
agreed to by the Working Group. Paragraph (c)(3) of section 242.403
states that a ``certified conductor who is called by a railroad to
perform the duty of a train crew member other than that of conductor or
locomotive engineer shall not have his or her certification revoked
based on actions taken or not taken while performing that duty.'' FRA
believes that the paragraph explains the status quo and conforms to the
approach taken in part 240 for locomotive engineers. See 240.117(c)(3).
FRA also expects that the paragraph will help keep down the number of
railroad hearings and petitions to FRA for review pursuant to the
dispute resolution process. Accordingly, FRA has adopted the paragraph
in this final rule.
    BLET/UTU commented that the explanation of the phrase ``appropriate
action'' in Sec.  242.403(c)(2) and 242.403(e)(2)(i) should be amended
to state that ``the duty is met'' (rather than ``the duty may be met'')
by warning the conductor or engineer of a potential or foreseeable
violation. FRA declines to adopt that change due to the fact that
``appropriate action'' depends on the situation. For example, if a
conductor provides a warning with plenty of distance, then the
conductor has likely met his or her duty. However, the conductor of a
train who provides a warning for the first time one second

before the train passes a stop signal that the conductor was aware of 3
miles back, likely has not met his or her duty.

Q. Periods of Ineligibility

    NYMTA and SEPTA commented regarding proposed Sec.  242.405(a)(3)(i)
which provides that on other than main track where restricted speed or
the operational equivalent thereof is in effect, the period of
revocation for a violation of Sec.  242.403(e)(6) through (e)(8),
(e)(10), or (e)(11) shall be reduced by one half if another revocable
event has not occurred within the previous 12 months. NYMTA commented
that FRA should leave the ability to assess the appropriate discipline
for speeding violations on other-than-main-track with the controlling
railroad. SEPTA commented that proposed Sec.  242.405(a)(3)(i) should
be eliminated because all violations should be treated consistently
regardless of where they occur.
    As explained in the NPRM, Sec.  242.405(a)(3)(i) recognizes that
some violations which occur on other than main track where slower
speeds are in effect are likely to pose less of a danger to safety than
violations that occur on main track and thus, a reduced period of
revocation is warranted. Nothing in the comments submitted has altered
FRA's view on this and therefore, FRA has adopted the provision as
proposed in this final rule.
    SEPTA commented that the title of the Sec.  242.405 should be
changed to ``Periods of Revocation or Denial of Certification''
consistent with their comment regarding the definition of
``ineligible'' and ``ineligibility.'' FRA declines to adopt SEPTA's
comment for the reasons it declined to adopt their comment regarding
the definition of ``ineligible'' and ``ineligibility.'' See the
discussion of the definition of ``ineligible'' and ``ineligibility'' in
the General Summary of the Comments to this final rule.
    In its comments, ASLRRA recommended an alternative procedure for
Class III railroads to address a situation where disqualification of a
conductor would result in a disruption to service because there is no
other available certified conductor as a replacement. In that
situation, ASLRRA suggested that a decertified conductor on a Class III
railroad, who had never previously been decertified, would be required
to undergo remedial training and testing, but would be allowed to
continue functioning for that railroad as a conductor under specific
restrictions to match the event triggering the decertification. FRA
declines to adopt the alternative procedure for Class III railroads
because: (1) The procedure would result in disparate treatment of
conductors across the three classes of railroads (i.e., a conductor for
a Class I railroad would not be permitted to serve as a conductor
following a decertifiable event whereas a conductor on a Class III
railroad, who was involved in the same type of decertifiable event, may
be permitted to serve as a conductor); (2) there is no less a safety
risk if a person is a conductor for a Class III railroad as opposed to
a conductor for a Class I or Class II railroad; and (3) the procedure
appears to leave open the possibility that a conductor involved in a
revocable event on a Class III railroad could immediately go to work
for a Class I railroad due to the fact that restrictions were placed on
the conductor's certificate rather than having the certificate revoked.

R. Process for Revoking Certification

    FRA solicited comments regarding its understanding of proposed
Sec.  242.407(b)(4) in the NPRM. Pursuant to that proposed section, a
railroad would, among other things, provide a conductor subject to a
railroad revocation hearing with a list of witnesses the railroad will
present at the hearing. The NPRM noted that it is FRA's understanding
that, except for an employee of the convening railroad whose statements
led to a suspension under Sec.  242.407(b)(1), the railroad would not
have to call every witness it puts on the list. See 75 FR 69166, 69184
(Nov. 10, 2010). Since FRA did not receive any comments regarding its
understanding and FRA has not discovered anything to change its
understanding, FRA adopts its understanding as part of the final rule.
    BLET/UTU commented that the phrase ``just prior'' in proposed Sec.
242.407(b)(4) is ambiguous and should be changed to a definitive time
(i.e., 48 hours) and that telephonic testimony should be limited to
general subject matter testimony. FRA acknowledges ``just prior'' is
somewhat ambiguous but railroads need some flexibility with the timing
since railroads do not always have a copy of the written information
nor do they know exactly who will serve as a witness 48 hours in
advance. Although FRA declines to adopt the comment, FRA notes that a
party to a railroad hearing may ask for a recess if they do not believe
they have had sufficient time to prepare their case. Moreover, the
OCRB, if petitioned, can consider the time a party had to prepare his
or her defense in determining whether an appropriate defense was
possible.
    BLET/UTU's comment regarding telephonic testimony would narrow the
scope of proposed Sec.  242.407(b)(4) in a manner not agreed to by the
Working Group or intended by FRA. The intent of that section as
proposed in the NPRM was to allow a railroad to telephonically examine
an employee of the railroad whose statements, regardless of subject
matter, formed the information that the railroad would be presenting at
the hearing if it is impracticable to provide the employee at the
hearing. The section was narrowly tailored to not only acknowledge that
it is important for a conductor at a railroad hearing to be provided
with the information that the railroad will present prior to the
convening of the hearing but also to acknowledge that in some cases it
is impractical to provide a witness at the hearing. To retain that
balance, FRA is adopting Sec.  242.407(b)(4) as proposed in the NPRM.
    BLET/UTU commented that the examples provided in the preamble to
illustrate the term ``minimal nature'' as used in proposed Sec.
242.407(i)(2) should be modified because they are not realistic.
Although FRA declines to modify the examples provided in the NPRM,
additional examples have been added to the section-by-section analysis
of Sec.  242.407 in this final rule.
    FRA solicited comments on whether a railroad decision issued
pursuant to proposed Sec.  242.407(c) should include the following: (1)
State whether the railroad official found that a revocable event
occurred and the applicable period of revocation with a citation to 49
CFR 242.405 (Periods of revocation); (2) contain an explanation of the
factual findings and citations to all applicable railroad rules and
practices; (3) not cite a railroad rule or practice that was not cited
in the written notice of suspension; and (4) be served on the employee
and the employee's representative, if any, with the railroad to retain
proof of that service. AAR commented that there is no need for the
third proposal. According to AAR, at least one railroad's labor
agreement provides that a specific rule violation shall not be cited in
the initial charge letter and many other railroads have long-standing
practices that are similar. A comment from a Working Group member also
indicated that the rule cited would have to be changed if evidence
developed at a railroad hearing required it. Thus, in that instance,
the railroad would need the flexibility to cite a rule not cited in the
written notice of suspension. AAR also commented that the fourth
proposal is unnecessary.
    As stated in the preamble to the NPRM, FRA proposed the language to

ensure that clearer and more detailed decisions are issued. Clearer and
more detailed decisions would allow a conductor to understand exactly
why his or her certification was revoked and would allow the OCRB to
have a more detailed understanding of the case if asked to review the
revocation decision pursuant to subpart E of this rule. Moreover, the
service proposal would help eliminate disputes as to when the conductor
was notified of the railroad decision. FRA understands that a railroad
may, under certain circumstances, need to change the rule being cited.
Accordingly, FRA has adopted the first, second and fourth but not the
third proposal in this final rule. However, FRA is concerned about
conductors preparing their defense for the railroad hearing based on
the rule cited in the written notice of suspension only to have the
railroad change the rule cited during the hearing or in the decision.
Railroads must take actions to avoid this and should grant a recess, if
appropriate, to allow a conductor to prepare a defense to the violation
being cited. Railroads should also note that the OCRB may grant a
petition on review if the OCRB finds that citing a different violation
caused the petitioner substantial harm.
    BLET/UTU commented that FRA must provide immunity from civil
enforcement for a railroad that makes a good faith determination
pursuant to Sec.  242.407(k) that a conductor's certification should
not be suspended. FRA understands BLET/UTU concerns and has
strengthened the preamble language in this final rule to address those
concerns.

S. Review Board

    BLET/UTU commented that the OCRB should be comprised of at least
three members and that one of the members should be an attorney. As
stated in the NPRM, the creation of the OCRB will require issuance of
an internal FRA order. The make-up of the OCRB will be determined in
that Order. However, FRA expects that the OCRB will mirror the make-up
of the Locomotive Engineer Review Board (LERB) which is currently used
by FRA to adjudicate disputes under part 240. FRA expects that a FRA
attorney will serve as counsel to the OCRB just as they do to the LERB.

T. Appeals Process

    FRA solicited comments whether to add a provision to proposed Sec.
242.503(b) providing that: ``If the petitioner is requesting review of
a railroad decision which is based on a failure to comply with any drug
or alcohol related rules or a return-to-service agreement, then the
petitioner shall supplement his or her petition with all relevant
written documents, including the information under 49 CFR 40.329 that
laboratories, medical review officers, and other service agents are
required to release to employees. The petitioner should provide written
explanation in the petition if written documents that should be
reasonably available to the petitioner are not supplied.'' See 75 FR
69166, 69185 (Nov. 10, 2010). AAR supported the provision. BLET/UTU
commented that FRA should add a requirement for the railroad to notify
conductors in writing of their right to acquire the litigation package
from the laboratories, MRO, and other service agents and that it be
disclosed to the conductor on the record of revocation hearings
conducted in compliance with Sec.  242.407(b)(4) for charges of
violating Sec.  242.403(e)(12). BLET/UTU suggested that, at a minimum,
the notification should contain the exact language contained in 49 CFR
40.329.
    Because the OCRB may not need the information listed in 49 CFR
40.329 in all cases and because there may be some cost associated with
obtaining the information, FRA is adopting a modified version of the
proposal for this final rule which clarifies that petitioners will be
responsible for obtaining the information listed in 49 CFR 40.329 if
requested by the OCRB. Thus, it will not be mandatory for a petitioner
to submit the information listed in 49 CFR 40.329 to the OCRB in all
cases involving a violation of Sec.  242.403(e)(12) and FRA expects
that, in those cases where the OCRB does want information listed in 49
CFR 40.329, the OCRB will explain to the petitioner what information it
is looking to obtain from the petitioner and how the petitioner can get
it. Consequently, FRA declines to adopt BLET/UTU's additional
requirement.
    BLET/UTU submitted numerous comments regarding changes they wanted
to see made to the appeals process contained in proposed Sec. Sec.
242.501, 503, 505, 507, 509 and 511. According to BLET/UTU the changes
``will create a more expeditious process to resolve disputes that may
arise from the conductor certification rules.'' The suggested changes
include eliminating the opportunity for parties to appeal FRA decisions
to the Administrator, incorporating the Administrative Hearing Officer
level of appeal into the OCRB process, requiring the OCRB to grant a
decision if any procedural error by the railroad is shown, adding an
attorney as a member to the OCRB and making the OCRB decision final
agency action.
    FRA declines to adopt BLET/UTU's proposed revisions to the appeals
process. The proposed appeals process was thoroughly discussed during
the Working Group meetings and most of BLET/UTU's suggestions were
rejected at those meetings. As explained to the Working Group, due
process requirements and issues concerning trials de novo necessitate
that FRA retain the OCRB and AHO as distinct levels of review.
    Contrary to BLET/UTU's claims, FRA believes that BLET/UTU's
suggested revisions would actually increase the amount of time and cost
it takes to resolve the average case on appeal to the FRA. Under the
BLET/UTU proposal, FRA expects a significant increase in the number of
cases/issues handled by the AHO and the federal courts. For example,
under the BLET/UTU proposal, it appears that a decision by the OCRB to
deny a petition as untimely would be appealed to Federal court as that
decision would constitute final agency action and the opportunity to
appeal the decision to the Administrator, as provided for in the NPRM,
would be eliminated. As a result, cases would take much longer to
resolve and would involve increased costs for all parties involved.
Moreover, the BLET/UTU proposal advocates for extending the time for
filing a petition of review with the FRA from 4 months as provided in
the NPRM to 6 months. That extension would only add to the time
required for a case to be resolved by FRA following a railroad's
decision to deny or revoke certification.
    Although FRA is not adopting BLET/UTU's proposals, FRA is taking
steps to make the appeals process more efficient. Over the past two
years, the average length of time for the AHO to render a decision in a
locomotive engineer case under part 240 has dropped by 6 months due in
part to the fact that the AHO is no longer allowing parties to hold
cases in abeyance. FRA expects that the AHO will not hold conductor
cases in abeyance thereby eliminating one of the main obstacles in
achieving faster case processing times. In addition, FRA has revised
the requirements proposed in the NPRM to require petitions to be
submitted to the Docket Clerk of DOT rather than FRA's Docket Clerk.
With that change, the process for submitting petitions to the OCRB will
parallel the process for requesting an administrative hearing under
part 240 and Sec.  242.507. FRA believes this change will make the
process more efficient as DOT Dockets is better equipped to process,
scan, and store these types of filings.

U. Civil Penalty Schedule

    In the NPRM, FRA noted that Appendix A to the final rule would
contain a penalty schedule similar to that FRA has issued for all of
its existing rules and that such schedules are statements of policy and
therefore not subject to notice and comment requirements. Nevertheless,
interested parties were welcomed to submit their views on what
penalties may be appropriate. BLET/UTU submitted comments which were
considered in developing the penalty schedule found in Appendix A to
this final rule.

V. Procedures for Submission of Programs

    FRA solicited comments whether to require each railroad to provide
its program submission required under Sec.  242.101 and 242.103
electronically. Since FRA did not receive any comments on this issue
and because FRA believes that such an option will allow FRA to review
submissions more efficiently and eliminate the need to store hardcopies
of the numerous submissions, FRA has included such an option in
Appendix B to this final rule.

W. Vision Color Tests

    In the NPRM, FRA solicited comments regarding which vision color
tests should be included in Appendix D to this rule. Since FRA did not
receive any comments on this issue and because any changes to the list
of vision color tests would appear to fall within the purview of the
medical standards working group, the proposed vision color tests
contained in the NPRM will be adopted in this final rule.

V. Section-by-Section Analysis

Subpart A--General

    Subpart A of the rule contains the general provisions of the rule,
including a formal statement of the rule's purpose and scope. The
subpart also provides that this rule does not constrain a railroad's
ability to prescribe additional or more stringent requirements for its
conductors that are not inconsistent with this rule.
Section 242.1 Purpose and Scope
    This section, derived from 49 CFR 240.1, prescribes minimum
standards for the eligibility, training, testing, certification and
monitoring of persons who serve as ``conductors.'' This section
indicates that the purpose of the rule is to ensure that only those
persons who meet minimum Federal safety standards serve as conductors,
to reduce the rate and number of accidents and incidents, and to
improve railroad safety.
    Despite the fact that a person may have a job classification title
other than that of conductor, the conductor certification requirements
of this rule apply to that person if he or she meets the definition of
conductor. The definition of ``conductor'' and an explanation of who is
covered by the definition is discussed in more detail in the section
analysis for Sec.  242.7 below.
Section 242.3 Application and Responsibility for Compliance
    This section is derived from 49 CFR 240.3. The section provides
that the rule applies to all railroads with three exclusions. The first
two exclusions address several types of operations that occur on tracks
that are not part of the general railroad system. These exclusions
encompass operations commonly described as tourist, scenic, or
excursion service to the extent that they occur on tracks that are not
part of the general railroad system. These exclusions also address
operations that occur within the confines of industrial installations
commonly referred to as ``plant railroads'' and typified by operations
such as those in steel mills that do not go beyond the plant's
boundaries and that do not involve the switching of rail cars for
entities other than themselves. In other regulations, FRA did not
define plant railroad because it was assumed that FRA's jurisdictional
policy statement provided sufficient clarification. In 2010, FRA became
aware of certain operations that called themselves plant railroads but
that were exceeding the limitations required to maintain plant railroad
status in accordance with FRA's policy statement. FRA would like to
avoid any confusion as to what it means to be a plant railroad by
defining the term in this final rule, thereby saving interested persons
the effort necessary to cross-reference FRA's jurisdictional policy
statement. A further discussion of what is meant by the term ``plant
railroad'' is offered in the section-by-section analysis for section
242.7.
    FRA also excludes ``tourist, scenic, historic, and excursion
operations that are not part of the general railroad system of
transportation'' (as defined in Sec.  242.7) from compliance with this
rule. In section 242.7, FRA defines these operations as ``a tourist,
scenic, historic, or excursion operation conducted only on track used
exclusively for that purpose (i.e., there is no freight, intercity
passenger, or commuter passenger railroad operation on the track).''
Excluding these types of operations from this rule is consistent with
FRA's jurisdictional policy that already excludes these operations from
all but a limited number of Federal safety laws, regulations, and
orders.
    The third exclusion covers rapid transit operations in an urban
area that are not connected to the general system. It should be noted,
however, that some rapid transit type operations, given their links to
the general system, are within FRA's jurisdiction and FRA specifically
intends to have this rule apply to those rapid transit type operations.
This rule is not intended to have any effect on FRA's jurisdiction.
Since this rule is intended to apply to the same railroads covered by
part 240, one should refer to the preamble discussions of 49 CFR 240.3
in 64 FR 60966, 60974 (Nov. 8, 1999), 63 FR 50626, 50636-50637 (Sept.
22, 1998), and 56 FR 28228, 28240 (June 19, 1991) for a more detailed
analysis of the applicability of this rule.
Section 242.5 Effect and Construction
    This section addresses several legal issues. Paragraph (a)
addresses the relationship of this rule to preexisting legal
relationships. Paragraph (b) states that FRA does not intend to alter
the authority of a railroad to initiate disciplinary sanctions against
its employees by issuance of this rule.
    Paragraph (c) of this section addresses the issue of ``flowback.''
The term flowback has been used in the industry to describe a situation
where an employee leaves his or her current position to return to a
previously held position or craft. An example of flowback occurs when a
person who holds the position of a conductor subsequently qualifies for
the position of locomotive engineer, and at some later point in time
the person finds it necessary or preferable to revert back to a
conductor position. The reasons for reverting back to the previous
craft may derive from personal choice or a less voluntary nature; e.g.,
downsizing.
    Many collective bargaining agreements address the issue of
flowback. As a general matter, FRA does not intend to create or
prohibit the right to flowback or take a position on whether flowback
is desirable. However, paragraph (c) of this section must be read in
conjunction with Sec.  242.213, which limits flowback in certain
situations. As described in the section analysis for that section
below, a person who holds a conductor and locomotive engineer
certificate and who has had his or her locomotive engineer certificate
revoked could not work as a conductor during the period of revocation.
In addition, a person who holds a conductor and locomotive engineer
certificate and who has had his or her conductor certification revoked
for certain violations could not work as a

locomotive engineer during the period of revocation.
    Paragraph (d) of this section addresses employee rights. The intent
of the rule is to explicitly preserve any remedy already available to
the person and not to create any new entitlements. FRA expects that
employees would benefit from this paragraph by referring to it should a
railroad use this regulation as an inappropriate explanation for
ignoring an employee's rights or remedies. A railroad must consider
whether any procedural rights or remedies available to the employee
would be inconsistent with this part.
Section 242.7 Definitions
    This section contains the definitions that FRA employs in this
rule. Most of the definitions are taken essentially verbatim from 49
CFR part 240 and have been thoroughly analyzed in that rulemaking.
Parties seeking a detailed analysis of those definitions should refer
to the part 240 rulemaking documents. See, 54 FR 50890 (Dec. 11, 1989),
56 FR 28228 (June 19, 1991), 58 FR 18982 (Apr. 9, 1993), 60 FR 53133
(Oct. 12, 1995), 63 FR 50626 (Sept. 22, 1998), 73 FR 80349 (Dec. 31,
2008), and 74 FR 68173 (Dec. 23, 2009). Some of the definitions in this
rule, however, are not found in part 240 or have been substantively
modified from their use in part 240. Those definitions are analyzed
below.
    As mentioned above, potential rulemakings involving medical
standards and 49 CFR part 219 (Control of Alcohol and Drug Use) may
impact many of the definitions in part 240 and part 242. For example,
definitions relating to medical standards (e.g., ``medical examiner'')
and drug and alcohol control (e.g., ``substance abuse disorder'') in
parts 240 and 242 may be superseded by definitions provided in those
rulemakings. However, until those rulemakings are promulgated, the
definitions in parts 240 and 242 will control.
Conductor
    Although the RSIA requires FRA to establish a program for the
certification of conductors, the Act does not define the term
``conductor.'' Without guidance from the Act, FRA proposed, and RSAC
recommended, that the definition of ``conductor'' be based on the
generally understood responsibilities of that position, similar to part
240's approach to defining locomotive engineer. This rule defines
conductor as ``the crewmember in charge of a train or yard crew as
defined in part 218 of this chapter.'' Part 218 defines ``train or yard
crew'' as:

``one or more railroad employees assigned a controlling locomotive,
under the charge and control of one crew member; called to perform
service covered by Section 2 of the Hours of Service Act; involved
with the train or yard movement of railroad rolling equipment they
are to work with as an operating crew; reporting and working
together as a unit that remains in close contact if more than one
employee; and subject to the railroad operating rules and program of
operational tests and inspections required in Sec. Sec.  217.9 and
217.11 of this chapter.''

    As the use of the singular form of ``crewmember'' suggests, FRA's
definition mandates that only one person can be in charge of the train
or yard crew and that person is deemed the conductor for purposes of
this regulation only. Moreover, in some circumstances, a locomotive
engineer, including a remote control operator, will be required to be
certified as both a locomotive engineer under 49 CFR part 240 and as a
conductor under this rule. See 49 CFR 242.213(d). All other train or
yard crew members (e.g., assistant conductors, brakemen, hostlers,
trainmen, switchmen, utility persons, flagmen, yard helpers, and others
who might have different job titles but perform similar duties and are
not in charge of a train or yard crew) do not fall within the
definition of ``conductor'' for purposes of this rule.
Drug and Alcohol Counselor
    The term ``drug and alcohol counselor'' means a person who meets
the credentialing and qualification requirements of a ``Substance Abuse
Professional'' (SAP), as provided in 49 CFR part 40.
Ineligible or Ineligibility
    The term ``ineligible'' or ``ineligibility,'' which is not used in
part 240, means that a person is legally disqualified from serving as a
certified conductor. The term is broadly defined to cover a number of
circumstances in which a person may not serve as a certified conductor.
Revocation of certification pursuant to Sec.  242.407 and denial of
certification pursuant to Sec.  242.401 are two examples in which a
person will be ineligible to serve as a conductor. A period of
ineligibility may end when a condition or conditions are met--for
example, when a person meets the conditions to serve as a conductor
following an alcohol or drug violation pursuant to Sec.  242.115.
Job Aid
    The term ``job aid,'' which is not used in part 240, is defined as
information regarding other than main track physical characteristics
that supplements the operating instructions of the territory over which
the locomotive or train movement will occur. The terms ``main track''
and ``physical characteristics'' are discussed below.
    The term ``job aid'' is broadly defined in this rule. A job aid
consists of information that can be obtained from a variety of sources,
including but not limited to, training on the territory pursuant to
Sec.  242.119, maps, charts or visual aids of the territory, or a
person or persons to contact who are qualified on the territory and who
can describe the physical characteristics of the territory. While each
railroad will have flexibility in how it conveys the information in a
job aid to a conductor, the job aid will, at a minimum have to cover
the characteristics of the territory over which the locomotive or train
movement will occur including: permanent close clearances, location of
permanent derails and switches, assigned radio frequencies in use and
special instructions required for movement, if any, and railroad-
identified unique operating conditions.
    Pursuant to Sec.  242.121(c)(4)(v), each railroad will be required
to test conductors and conductor candidates on the use of any job aid
that a railroad could provide a conductor. Section 242.301(d) describes
the conditions under which a railroad shall provide a conductor with a
job aid.
Main Track
    The term ``main track'' is defined as a track upon which the
operation of trains is governed by one or more of the following methods
of operation: Timetable; mandatory directive; signal indication;
positive train control as defined in 49 CFR part 236; or any form of
absolute or manual block system. That definition mirrors the definition
of ``main track'' in 49 CFR part 240, but also includes a reference to
positive train control.
Medical Examiner
    The term ``medical examiner'' is defined as a person licensed as a
doctor of medicine or doctor of osteopathy. A medical examiner may be a
qualified full-time salaried employee of a railroad, a qualified
practitioner who contracts with the railroad on a fee-for-service or
other basis, or a qualified practitioner designated by the railroad to
perform functions in connection with medical evaluations of employees.
Under this rule, the medical examiner owes a duty to make an honest and
fully informed evaluation of the condition of an employee.
    The only difference between the definition of medical examiner in
this

rule and the definition in 49 CFR part 240 is that under part 240, the
medical examiner owes ``a duty to the railroad.'' In this rule,
however, the words ``to the railroad'' have been deleted. This change
was made to address a concern of some Working Group members that a
medical examiner should not owe a duty to just the railroad but rather
should owe a duty to both the railroad and the employee being
evaluated.
On-the-Job Training
    The term ``on-the-job training,'' which is not defined in part 240,
means job training that occurs in the workplace, i.e., the employee
learns the job while doing the job.
Passenger Conductor
    The term ``passenger conductor'' is defined as a conductor who has
also received emergency preparedness (EPREP) training under 49 CFR part
239. Interested parties should note that nothing in this rule requires
a conductor for private/non-revenue movements (e.g., business car
specials) to have the EPREP training. This position is consistent with
49 CFR 239.3(b).
Physical Characteristics
    The term ``physical characteristics,'' which is not defined in part
240, means the actual track profile of and physical location for points
within a specific yard or route that affect the movement of a
locomotive or train. ``Physical characteristics'' include both main
track physical characteristics (the term ``main track'' is analyzed
above) and other than main track physical characteristics. Examples of
physical characteristics could include permanent close clearances,
location of permanent derails and switches, and grade.
Plant Railroad
    FRA includes a definition of plant railroad in this final rule to
aid in the understanding of the application of this part pursuant to
Sec.  242.3. The definition coincides with FRA's longstanding
explanation of how the agency will not exercise its jurisdiction over a
plant railroad that does not operate on the general system and does not
move cars for other entities. See 49 CFR 209, app. A.
Qualified
    The term ``qualified'' is defined as a person who has successfully
completed all instruction, training and examination programs required
by the employer, and the applicable parts of this chapter and therefore
could reasonably be expected to be proficient on all safety related
tasks the person is assigned to perform. The definition of
``qualified'' in this rule differs from its definition in part 240 in
that part 240's definition focuses on a person's knowledge whereas the
definition in this rule focuses not only on knowledge but also on
whether the person could reasonably be expected to be proficient at
performing all assigned tasks. The update to the definition of
``qualified'' is an attempt to ensure that a railroad's instruction and
training program not only provide knowledge of how to perform a task
but also the ability to proficiently perform the task.
Qualified Instructor
    The term ``qualified instructor,'' which is derived from the
definition of ``instructor engineer'' in part 240, means a person who
has demonstrated, pursuant to the railroad's written program, an
adequate knowledge of the subjects under instruction and, where
applicable, has the necessary operating experience to effectively
instruct in the field. A qualified instructor is required to have the
following qualifications:
    (1) Is a certified conductor under this part; and
    (2) Has been selected as such by a designated railroad officer, in
concurrence with the designated employee representative, where present;
or
    (3) In absence of concurrence provided in paragraph (2) of this
definition, has a minimum of 12 months service working as a train
service employee.
    If a railroad does not have designated employee representation,
then a person employed by the railroad need not comply with items (2)
or (3) of this definition to be a ``qualified instructor.''
    Items (2) and (3), while not found in part 240's definition of
``instructor engineer,'' are included here to address the concerns of
some Working Group members that employees, through their
representatives, should have input in the selection of instructors who
might be viewed as inexperienced (i.e., a person with less than 12
months service working as a train service employee).
Railroad Rolling Stock
    The term ``railroad rolling stock'' means on-track equipment that
is either a ``railroad freight car'' (as defined in Sec.  215.5 of this
chapter) or a ``passenger car'' (as defined in Sec.  238.5 of this
chapter). The term matches the definition of ``railroad rolling stock''
in the NPRM and part 240 except that the word ``railroad'' has been
added to the term ``freight car'' to mirror the defined term
(``railroad freight car'') in Sec.  215.5 of this chapter.
Remote Control Operator
    The term ``remote control operator'' (RCO) means a certified
locomotive engineer, as defined in Sec.  240.7 of this chapter,
certified by a railroad to operate remote control locomotives pursuant
to Sec.  240.107 of this chapter. Although this term is not defined in
part 240, FRA intends for the term to have the same meaning in this
rule as it does in part 240. FRA defines the term in this rule to avoid
any confusion as to who this rule is referring to when it references a
remote control operator.
Substance Abuse Disorder \3\
    The term ``substance abuse disorder'' refers to a psychological or
physical dependence on alcohol or a drug or another identifiable and
treatable mental or physical disorder involving the abuse of alcohol or
drugs as a primary manifestation. FRA intends for this definition to
include drug and alcohol users who engage in abuse patterns which
result in ongoing safety risks and violations of FRA drug and alcohol
prohibitions. These types of substance abusers may demonstrate
compulsive, excessive, or self-damaging use of drugs or alcohol such as
may manifest as a DUI or DWI, a violation of FRA drug or alcohol
prohibitions, substance-related accidents or incidents, or substance-
related behavior which has resulted in a significant safety breach
while under the influence or impaired (including hangover effect).
Often these patterns of abuse may eventually result in dependence,
physiological injury, or psychological harm, but are not necessarily
defined by a diagnosis offered by a health care professional.
---------------------------------------------------------------------------

    \3\ The section-by-section analysis of the term ``substance
abuse disorder'' in the NPRM has been revised in this final rule to
reflect more accurately the approach taken by FRA to substance abuse
disorders in parts 219 and 240.
---------------------------------------------------------------------------

    A substance abuse disorder is ``active'' within the meaning of this
rule if the person (1) Is currently using alcohol or other drugs,
except under medical supervision consistent with the restrictions
described in Sec.  219.103 of this chapter or (2) has failed to
successfully complete primary treatment or successfully participate in
aftercare as directed by a Substance Abuse Professional (SAP) or Drug
and Alcohol Counselor (DAC).
    The definition of substance abuse disorder in this rule is the same
as the definition in part 240 except in two respects. First, part 240's
definition refers to an ``EAP Counselor'' rather than a SAP or DAC.
Since SAPs and DACs often have more stringent credential, knowledge,
training, and

continuing education requirements relating to substance abuse than
EAPs, SAPs and DACs may be better qualified to direct a person's
treatment or aftercare. Second, part 240 uses the phrase ``is currently
using alcohol and other drugs'' when describing active substance abuse
disorders. The rule revises that phrase to read ``is currently using
alcohol or other drugs.'' FRA made that revision to clarify its intent
that a person with an active substance abuse disorder could be using
alcohol or other drugs.
    The definition for ``substance abuse disorder'' is similar to the
language employed to govern disposition of employees referred to an
employee assistance program under the ``co-worker report'' (bypass)
provision of the alcohol/drug regulations. It describes the condition
of substance abuse or chemical dependency which requires intervention
and/or treatment as determined by an appropriate professional. FRA's
intent is that a person with uncontrolled use of alcohol or drugs is
not a suitable candidate for the highly sensitive duties entrusted to a
conductor.
    The definition explains that the disorder is considered ``active''
within the meaning of the rule if the person is not currently
abstaining from use of alcohol and drugs (except under medical
supervision consistent with FRA's alcohol/drug regulations), has failed
to successfully participate in aftercare as directed by a SAP or DAC,
or has failed to successfully complete the assigned course of
education, counseling, or treatment as required. FRA is aware that many
individuals abuse alcohol and drugs, with consequent ill-effects on
their health and potential implications for fitness, without fitting
within common definitions of chemical dependency. The critical point
here with respect to safety is that conductors not be in the grip of
uncontrolled abuse patterns that, if addressed through treatment and
permanent abstinence, could be put behind them.
Substance Abuse Professional (SAP)
    The term ``Substance Abuse Professional'' (SAP) means a person who
meets the qualifications of a SAP, as provided in 49 CFR part 40. To
avoid interfering with the established rules and definitions in DOT's
drug and alcohol regulations, the reference to a duty found in the
NPRM's definition of SAP has been deleted.
Territorial Qualifications
    The term ``territorial qualifications'' means possessing the
necessary knowledge concerning a railroad's operating rules and
timetable special instructions including; familiarity with applicable
main track and other than main track physical characteristics of the
territory over which the locomotive or train movement will occur.
Although not defined in part 240, the term is derived from part 240's
requirement that, with certain exceptions, a locomotive engineer may
not operate a locomotive over a territory unless the engineer is
``qualified on the physical characteristics of the territory.'' See 49
CFR 240.231. Pursuant to Sec.  242.301 of this rule, a person, with
certain exceptions, could not serve as a conductor unless the person
was certified and possessed the necessary territorial qualifications
for the applicable territory.
Tourist, Scenic, Historic, or Excursion Operations That Are Not Part of
the General Railroad System of Transportation
    The final rule offers a definition for the phrase ``tourist,
scenic, historic, or excursion operations that are not part of the
general railroad system of transportation'' in order to explain the
plain meaning of that phrase as used in the section. See Sec.  242.3.
The phrase means a tourist, scenic, historic, or excursion operation
conducted only on track used exclusively for that purpose (i.e., there
is no freight, intercity passenger, or commuter passenger railroad
operation on the track). If there is any freight, intercity passenger,
or commuter passenger railroad operation on the track, the track would
be considered part of the general system. See 49 CFR part 209, app. A.
In the analysis for the applicability section, there is an explanation
for why FRA is proposing not to exercise its jurisdiction over these
types of railroad operations.
Section 242.9 Waivers
    This section tracks the regulatory language in 49 CFR 240.9 and
provides the requirements for a person seeking a waiver of any section
of this rule.
Section 242.11 Penalties and Consequences for Noncompliance
    This section tracks the regulatory language in 49 CFR 240.11 and
provides minimum and maximum civil penalty amounts determined in
accordance with the Federal Civil Penalties Inflation Adjustment Act of
1990, Public Law 101-410 Stat. 890, 28 U.S.C. 2461 note, as amended by
the Debt Collection Improvement Act of 1996 Public Law 104-134, April
26, 1996, and the RSIA.
Section 242.13 Information Collection Requirements
    This section lists the sections of the rule which contain
information collection requirements.

Subpart B--Program and Eligibility Requirements

    This subpart contains the basic elements of the conductor
certification program required by this rule. Based on the RSIA's
requirement for ``certification'' of conductors and FRA's experience
with certification of locomotive engineers, this rulemaking adopts a
certification system (i.e., FRA sets eligibility criteria but leaves it
to the railroads to evaluate candidates by those standards) rather than
a traditional licensing system (i.e., a government agency sets
eligibility criteria and evaluates candidates). As with part 240, this
rule affords railroads considerable discretion in the daily
administration of their certification programs.
Section 242.101 Certification Program Required
    This section requires railroads to have a written program composed
of six elements, each of which comports with specific provisions
relating to that element. The effective date of the final rule is
January 1, 2012. The rest of the dates provided in this rule (e.g.,
dates by which each railroad must designate its eligible conductors in
Sec.  242.105) are based on that effective date.
Section 242.103 Approval of Design of Individual Railroad Programs by
FRA
    This section requires each railroad to submit its certification
program to FRA for approval in accordance with the schedule provided in
the final rule. The schedule for submissions in paragraph (a) requires
Class I railroads, Amtrak, the commuter railroads, and Class II
railroads to submit their programs at an earlier date than the Class
III railroads or others not classified elsewhere. The format and
contents of the submission are discussed at length in appendix B to
this rule.
    Unlike part 240, this rule requires railroads to serve a copy of
their submissions, resubmissions and material modifications on the
president of each labor organization that represents the railroad's
certified conductors. Within 45 days of the filing of any of those
submissions with FRA, any designated representative of certified
conductors could submit comments on the railroad's submissions to FRA.
Although FRA, and not the commenters, will determine whether a
railroad's submission is approved, FRA

expects that comments will be useful in determining whether the
railroad's program conforms to the criteria set forth in this rule.
    This section also requires each railroad to indicate how it intends
to employ future conductors. If a railroad accepts the responsibility
for training a previously uncertified person to become a conductor, the
railroad must explain its training regimen for such trainees, including
provisions for relying on an outside training organization to provide
the actual training.
    The rule provides 30 days for FRA review and approval of railroad
programs. FRA is proceeding in this manner because most railroads have
existing programs, including locomotive engineer certification
programs, intended to accomplish a similar goal that can be easily
modified. The quality of such programs is generally good and the
problems that may be encountered would not likely involve basic design
flaws and generally would not surface until FRA has had time to observe
the actual administration of the program. In screening all submissions,
FRA should be able to quickly detect any substantial deficiencies.
Given the quality of existing programs, FRA sees little value in
delaying implementation of the programs for time-consuming agency
review. FRA may, of course, disapprove any program during the review
cycle or at a later date. FRA will explain any deficiencies in writing.
This section requires a timely railroad response to an FRA disapproval
action as a railroad will have no more than 30 days to revise and
resubmit its program.
    Paragraph (g)(2) of this section, which has been modified from the
NPRM, provides that if the Administrator informs a railroad of
deficiencies in its program more than 30 days after the initial filing
date, the original program may remain in effect until 30 days after
approval of the revised program is received so long as the railroad has
complied with the requirements for resubmitting a program that was
deemed deficient.
Section 242.105 Schedule for Implementation
    This section contains the timetable for implementation of the rule.
Paragraphs (a) and (b) of this section require that railroads, in
writing, designate as certified conductors all persons authorized by
the railroad to perform the duties of a conductor as of the effective
date of the final rule, or authorized between the effective date of the
final rule and dates specified in paragraph (d) or (f) of this section,
and to issue a certificate to each person it designates. The mandatory
designation requirement of this section is included to address the
concerns of some Working Group members that railroads should not be
given the discretion to potentially engage in disparate treatment of
its employees (i.e., designate and provide a certificate to some people
who are authorized to perform the duties of a conductor as of the
effective date of the final rule but not others).
    Paragraph (c) of this section requires each railroad to make formal
determinations concerning those employees it has designated as
conductors within 36 months of the date for compliance by its class of
railroad. Pursuant to this paragraph, a designated conductor may serve
as a conductor for up to 36 months from the date of compliance for the
railroad (i.e., the date specified in paragraph (d) or (e) of this
section). At the end of the 36 months, however, the designated
conductor can no longer serve as a conductor unless he or she
successfully completes the tests and evaluations provided in subpart B
of this rule (i.e., the full certification process). Railroads should
note that they may not test and evaluate a designated conductor or
conductor candidate under subpart B of this rule until they have a
certification program approved by the FRA pursuant to Sec.  242.103.
    In order to test and evaluate all of its designated conductors by
the end of the 36-month period, a large railroad will likely have to
begin that process well in advance of the end of the 36 months. For
example, paragraph (c), which is derived from part 240's designation
provision, would permit a railroad to test and evaluate one third of
its designated conductors within 12 months of the railroad's date of
compliance; another one third within 24 months of its date of
compliance; and the final one third within 36 months of its date of
compliance.
    Some of the Working Group members raised concerns about designated
conductors who would be eligible to retire within 36 months of the date
for compliance by their class of railroad. Specifically, some members
did not believe it was an efficient use of resources to perform the
full certification process on a designated conductor who was going to
retire before the end of the 36-month designation period. To address
those concerns, paragraph (c)(1) provides that a designated conductor,
who is eligible to receive a retirement pension in accordance with the
terms of an applicable agreement or with the terms of the Railroad
Retirement Act (45 U.S.C. 231) within 36 months prior to the date they
would be required to be tested and evaluated under subpart B of this
rule, may request, in writing, that the railroad not perform the full
certification process on that designated conductor until 36 months from
the date of required testing and evaluation.
    Paragraph (c)(2) provides that, upon receipt of that written
request, a railroad may wait to perform the full certification process
on the person making the request until the end of the 36-month
designation period. Thus, paragraphs (c)(1) and (c)(2) allow designated
conductors to serve as conductors for the full 36-month designation
period and then retire before being subjected to the full certification
process.
    While it is in the railroads' interest not to perform the full
certification process for a person who is going to retire once the
designation period expires and thus in their interest to grant as many
requests as possible, it may not be feasible to accommodate every
request that is made. If, for example, a significant number of
designated conductors on a railroad properly request that the railroad
wait to recertify them at the end of the designation period, but then
do not, in fact, retire by the expiration of the 36-month designation
period, the railroad might not be able to certify everyone in time and
would risk violating this final rule. In recognition of that risk and
the need to give the railroads some flexibility to comply with the
rule, paragraph (c)(2) also provides that a railroad that grants any
request must grant the request of all eligible persons ``to every
extent possible.''
    In addition, paragraph (c)(3) provides that a designated conductor
who is also subject to recertification under part 240 may not make a
request under paragraph (c)(1) of this section. That provision
recognizes that railroads would likely want to have concurrent
certification processes for certifying a person who will be both a
certified locomotive engineer and a conductor and thus it would not be
appropriate, in that instance, for a designated conductor who is
already subject to recertification under part 240 to make a request to
delay the full conductor certification process.
    Paragraphs (d), (e), and (f) provide that after specified dates, no
railroad may certify or recertify a person as a conductor and no person