may serve as a conductor unless that person had been tested and
evaluated in accordance with the procedures provided in subpart B of
the rule and issued a certificate. Interested parties should note that
the

month provided in paragraph (e) has changed from September 2012 (as
provided in the NPRM) to October 2012 so that Class III railroads would
have approximately the same amount of time (i.e., two months) as Class
I, II, and commuter railroads between submission of the program to FRA
and the time for having an approved program in place.
Section 242.107 Types of Service
    This section creates two types of conductor service: conductor and
passenger conductor. As indicated in the definition section of this
rule, a ``passenger conductor'' is a ``conductor'' who has also
received emergency preparedness training under 49 CFR part 239.
    Paragraph (c) of this section, derived from 49 CFR 240.107(e),
prohibits a railroad from reclassifying the certification of any type
of certified conductor to a different type of conductor certification
during the period in which the certification is otherwise valid except
when a conductor completes 49 CFR part 239 emergency training and is
certified as a passenger conductor. For example, this rule prohibits a
railroad from requiring a passenger conductor to exchange his or her
passenger conductor certificate for a conductor certificate during the
period in which the passenger conductor certificate is otherwise valid.
    While this rule prohibits the practice of reclassification, it does
not prevent the railroads from pursuing other measures to ensure the
safe performance of conductor service. For example, the rule does not
prevent a railroad from placing restrictions on a certificate pursuant
to paragraph (d) of this section. It should be noted, however, that
while paragraph (d) permits a railroad to place restrictions on a
certificate, any restrictions would be applied and reviewed in
accordance with internal railroad rules, procedures and processes. Part
242 does not govern the issuance or review of restrictions as that
would be a matter handled under a railroad's internal discipline system
or collective bargaining agreement. See Sec.  242.5(a), (b), and (d).
Section 242.109 Determinations Required for Certification and
Recertification
    This section lists the determinations required for evaluating a
candidate's eligibility to be certified or recertified. The reference
to Sec.  242.403 in paragraph (a) of this section is to ensure that
railroads determine that a candidate is not currently ineligible to
hold a certification due to a revocation addressed in subpart E of this
rule.
    Paragraph (b)(1) has been modified to clarify the intent of that
section. FRA deleted references to ``railroad employment'' records and
``railroad safety conduct'' since the paragraph also applies to non-
railroad conduct such as motor vehicle operation. Interested parties
should note that despite the provisions in Sec. Sec.  242.111 and
242.115 requiring a review of safety conduct information from the
preceding 5 years, paragraph (b)(1) of this section does not permit a
railroad to consider information concerning safety conduct that
occurred prior to the effective date of this final rule. Although that
paragraph may result in an evaluation of less than 5-years's worth of
information for some conductors, it is included in part 242 for the
reasons the provision was also included in the part 240 rulemaking. See
56 FR 28228, 28242 (June 19, 1991).
    Since motor vehicle data is required to be sent to the railroad
rather than to the candidate, paragraphs (d) and (e) of this section
require a railroad to provide a candidate for certification or
recertification an opportunity to review and comment on any record
which contains adverse information. This review will avoid the
potential for reliance on records that were somehow erroneously
associated with a candidate.
    Paragraph (g) of this section provides flexibility to railroads and
conductors or conductor candidates in obtaining the information
required by Sec. Sec.  242.111 and 242.113. For example, paragraph (g)
would permit a conductor and a railroad to enter into an agreement
allowing a railroad to request the conductor's service record from a
previous employing railroad pursuant to Sec.  242.113(c).
Section 242.111 Prior Safety Conduct as Motor Vehicle Operator
    This section, derived from 49 CFR 240.111 and 240.115, provides the
requirements and procedures that a railroad must follow when evaluating
a conductor or conductor candidate's prior conduct as a motor vehicle
operator. Although some members of the Working Group suggested that
information regarding the prior safety conduct as a motor vehicle
operator was unnecessary in determining whether a person should be
certified as a conductor, FRA believes that the prior safety conduct of
a motor vehicle operator is one indicator of that person's drug and/or
alcohol use and therefore an important piece of information for a
railroad to consider.
    Pursuant to this section, each person seeking certification or
recertification as a conductor must request in writing that the chief
of each driver licensing agency that issued him or her a driver's
license within the preceding five years provide a copy of the person's
driving record to the railroad. Unlike part 240, this rule would not
require individuals to also request motor vehicle operator information
from the National Driver Registry (NDR). It is FRA's understanding
that, based on the NDR statute and regulation (see 49 U.S.C. chapter
303 and 23 CFR part 1327), railroads are prohibited from running NDR
checks or requesting NDR information from individuals seeking
employment as certified conductors.
    During the Working Group meetings, members of the Working Group
raised concerns about conductor candidates who had properly requested
motor vehicle operator information but were unable to be certified or
recertified as conductors because of a delay or mix-up by a driver
licensing agency in sending the required information to the railroad.
To address that concern, paragraphs (c) and (d) of this section require
a railroad to certify or recertify a person for 60 days if the person:
(1) Requested the required information at least 60 days prior to the
date of the decision to certify or recertify; and (2) otherwise meets
the eligibility requirements provided in Sec.  242.109 of this rule. If
a railroad certifies or recertifies a person for 60 days pursuant to
paragraphs (c) or (d) but is unable to obtain and evaluate the required
information during those 60 days, the person is ineligible to perform
as a conductor until the information can be evaluated. However, if a
person is simply unable to obtain the required information, that person
or the certifying or recertifying railroad could petition for a waiver
from FRA (see 49 CFR part 211). During the pendency of the waiver
request, a railroad would have to certify or recertify a person if the
person otherwise meets the eligibility requirements of Sec.  242.109 of
this final rule.
    Paragraph (l) of this section requires certified conductors or
persons seeking initial certification to notify the employing railroad
of motor vehicle incidents described in paragraph (n) of this section
within 48 hours of the conviction or completed state action to cancel,
revoke, suspend, or deny a motor vehicle driver's license. The
paragraph also provides that, for purposes of conductor certification,
a railroad cannot have a more restrictive company rule requiring an
employee to report a conviction or completed state action to cancel,
revoke, or deny a motor vehicle drivers license in less than 48 hours.

    The reasoning behind paragraph (l) involves several intertwined
objectives. As a matter of fairness, a railroad should not revoke,
deny, or otherwise make a person ineligible for certification until
that person had received due process from the state agency taking the
action against the motor vehicle license. Otherwise, action pursuant to
this part might be deemed premature since the American criminal justice
system is based on the concept of a person being innocent until proven
guilty. Further, by not requiring reporting until 48 hours after the
completed state action, the rule will have the practical effect of
ensuring that a required referral to a DAC under paragraph (o) of this
section would not occur prematurely. Interested parties should note
however, that paragraph (l) does not prevent an eligible person from
choosing to voluntarily self-refer pursuant to Sec.  242.115(d)(3). Nor
does it prevent the railroad from referring the person for an
evaluation under an internal railroad policy if other information
exists that identifies the person as possibly having a substance abuse
disorder. Further, the restriction applies only to actions taken
against a person's certificate and does not effect on a person's right
to be employed by that railroad.
    As mentioned above, paragraph (o) of this section provides that if
such a motor vehicle incident described in paragraph (n) is identified,
the railroad is required to provide the data to its DAC along with
``any information concerning the person's railroad service record.''
Furthermore, the person would have to be referred for evaluation to
determine if the person had an active substance abuse disorder. If the
person has such a disorder, the person could not be currently
certified. Alternatively, even if the person is evaluated as not
currently affected by an active substance abuse disorder, the railroad
would be required, if recommended by a DAC, to condition certification
upon participation in any needed aftercare and/or follow-up testing for
alcohol or drugs, or both. The intent of this provision is to use motor
vehicle records to expose conductors or conductor candidates who may
have active substance abuse disorders and make sure they are referred
for evaluation and any necessary treatment before allowing them to
perform safety sensitive service. Interested parties should note that
any testing performed as a result of a DAC's recommendation under
paragraph (o) will be done under company authority, not Federal,
although the testing will still be required to comply with the
``technical standards'' of part 219, subpart H, and part 40.
    Paragraph (o)(5) has been added to the final rule to clarify that a
failure to cooperate in the DAC evaluation will result in the person
being ineligible to perform as a conductor until such time as the
person cooperates in the evaluation.
Section 242.113 Prior Safety Conduct as an Employee of a Different
Railroad
    This section of the rule, which is derived from 49 CFR 240.113 and
240.205, provides a process for requesting information regarding the
candidate's prior safety conduct, if any, as an employee of a different
railroad.
Section 242.115 Substance Abuse Disorders and Alcohol/Drug Rules
Compliance
    This section, which is derived from 49 CFR 240.119 and 240.205,
addresses two separate dimensions of the alcohol/drug problem in
relation to conductors--(1) Active substance abuse disorders and (2)
specific alcohol/drug regulatory violations. This section and Sec.
242.111 address certain situations in which inquiry must be made into
the possibility that the individual has an active substance abuse
disorder if the individual is to obtain or retain a certificate. The
fact that specific instances are cited in this section would not
exclude the general duty of the railroad to take reasonable and
proportional action in other appropriate cases. Declining job
performance, extreme mood swings, irregular attendance and other
indicators may, to the extent not immediately explicable, indicate the
need for an evaluation under internal railroad policies.
    FRA acknowledges that there could be legitimate reasons why someone
might exhibit some or all of the conditions identified above. However,
those conditions, to the extent not immediately explicable, may also
indicate a need for an evaluation. The purpose of identifying
conditions 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.
    Paragraph (a) requires each railroad to address both dimensions of
this issue in its program. Paragraphs (b) and (c) require each railroad
to determine that a person initially certifying or a conductor
recertifying meets the eligibility requirements of this section.
Additionally, each railroad is required to retain the documents used to
make that determination.
    Paragraph (d) provides that a person with an active substance abuse
disorder cannot be currently certified as a conductor. This means that
appropriate action must be taken with respect to a certificate (whether
denial or suspension) whenever the existence of an active substance
abuse disorder comes to the official attention of the railroad, with
the exception discussed below. Paragraph (d) also provides a mechanism
for an employee to voluntarily self-refer for substance abuse
counseling or treatment.
    Paragraph (e) addresses conduct constituting a violation of Sec.
219.101 or Sec.  219.102 of the alcohol/drug regulations. Section
219.101 prohibits any employee from going on or remaining on duty in
covered service while using, possessing, or being under the influence
of or impaired by alcohol or a controlled substance or with a blood
alcohol concentration of .04 or more. An employee may also not use
alcohol either within four hours of reporting for covered service or
after receiving notice to report for covered service, whichever is
lesser. This is conduct that specifically and directly threatens safety
in a way that is wholly unacceptable, regardless of its genesis and
regardless of whether it has occurred previously. In its more extreme
forms, such conduct is punishable as a felony under the criminal laws
of the United States (18 U.S.C. 341 et seq.) and a number of states.
    Section 219.102 prohibits use of a controlled substance by a
covered employee, at any time, on or off duty, except under the
exception for approved medical use. Abuse of marijuana, cocaine,
amphetamines, and other controlled substances poses unacceptable risks
to safety.
    Under the alcohol/drug regulations, whenever a violation of Sec.
219.101 or Sec.  219.102 is established based on authorized or mandated
chemical testing, the employee must be removed from service and may not
return until after a SAP evaluation, any needed treatment, or a
negative return-to-duty test, and is subject to follow-up testing (as
required by Sec.  219.104). This structure suggests an absolute minimum
for action when a conductor is determined to have violated one of these
prohibitions. Considering the need both for general and specific
deterrence with respect to future unsafe conduct, additional action
should be premised on

the severity of the violation and whether the same individual has prior
violations.
    One key consideration in evaluating this conduct and appropriate
responses is the duration of retrospective review. This rule requires
railroads to consider conduct that occurred within the period of 60
consecutive months prior to the review. This is the same period
provided in this rule as the maximum period of ineligibility for
certification following repeated alcohol/drug violations and is the
same period used in part 240. Use of a 5-year cycle reflects anecdotal
experience in the railroad industry indicating that conduct committed
as much as 5 years before may tend to predict future alcohol or drug
abuse behavior (and recognizes the reality that most individual
violations are probably not detected). It also reflects a certain
confidence in the resilience of human nature--i.e., a reasonable
expectation that the person who remains in compliance for that period
of time will not again be found in violation. Of course, railroads
retain the flexibility to consider prior conduct (including conduct
more than 5 years prior) in determining whom they will hire as
conductors.
    Interested parties should note that conduct violative of the FRA
proscriptions against alcohol and drugs need not occur while the person
is serving in the capacity of a conductor in order to be considered.
For instance, an employee who violated Sec.  219.101 while working as a
brakeman and then sought conductor certification six months later
(under the provision described below) would not be currently eligible
for certification. The same is true under part 240--an employee who
violates Sec.  219.101 while working as a brakeman and then seeks
locomotive engineer certification six months later would not be
eligible for certification at that time. The railroad's responsibility
would not be limited to periodic recertification. This rule requires a
review of certification status for any conduct in violation of Sec.
219.101 or Sec.  219.102.
    The rule requires a determination of ineligibility for a period of
9 months for an initial violation of Sec.  219.101. This parallels the
9-month disqualification in Sec.  240.119(c)(4)(iii). FRA does not
believe that a conductor should be able to seek the shelter of a
collective bargaining agreement or more lenient company policy in the
case of a clear on-the-job violation, insofar as Federal eligibility to
serve as a conductor is concerned.
    Specifying a period of ineligibility serves the interest of
deterrence while giving further encouragement to co-workers to deal
with the problem before it is detected by management. In order to
preserve and encourage co-worker referrals, the 9-month period can only
be waived in the case of a qualifying co-worker report (see Sec.
219.405). FRA believes that this distinction in treatment is warranted
as a strong inducement to participation because co-worker referral
programs help identify troubled employees prior to those employees
getting into accidents and incidents. A strong inducement to refer a
co-worker is a worthy goal if it may contribute to a reduction in
accidents and incidents. Although FRA does not know how many actual co-
worker reports may be generated, the intended result would be served if
an atmosphere of intolerance for drug and/or alcohol abusing behavior
is reinforced in the workplace and violators know that they may be
reported by their colleagues if they report for duty impaired.
    In the case of a second violation of Sec.  219.101, the conductor
would be ineligible for a period of 5 years. Given railroad employment
practices and commitment to alcohol/drug compliance, it is likely, of
course, that any individual so situated may also be permanently
dismissed from employment. However, it is important that the employing
railroad also follow through and revoke the certificate under this rule
so that the conductor could not go to work for another railroad within
the 5-year period using the unexpired certificate issued by the first
railroad as the basis for certification. These sanctions mirror the
sanctions in Sec.  240.119.
    Under this rule, one violation of Sec.  219.102 within the 5-year
window would require only temporary suspension and the minimum response
described in Sec.  242.115(f) (referral for evaluation, treatment as
necessary, negative return-to-duty test, and appropriate follow-up).
This parallels the approach taken in part 240 and reflects FRA's wish
not to undercut the therapeutic approach to drug abuse employed by many
railroads. This approach permits first-time positive drug tests to be
handled in a non-punitive manner that concentrates on remediation of
any underlying substance abuse problem and avoids the adversarial
process associated with investigations, grievances and arbitrations
under the Railway Labor Act and collective bargaining agreements. A
second violation of Sec.  219.102 would subject the employee to a
mandatory 2-year period of ineligibility. A third violation within 5
years would lead to a 5-year period of ineligibility.
    This rule also addresses violations of Sec. Sec.  219.101 and
219.102 in combination. A person violating Sec.  219.101 after a prior
Sec.  219.102 violation would be ineligible for 3 years; and the same
would be true for the reverse sequence.
    Refusals to participate in chemical tests are treated as if the
test were positive. A refusal to provide a breath or body fluid sample
for testing under the requirements of 49 CFR part 219 when instructed
to do so by a railroad representative are treated, for purposes of
ineligibility under this section, in the same manner as a violation of:
(1) Sec.  219.101, in the case of a refusal to provide a breath sample,
or a blood specimen for mandatory post-accident toxicological testing;
or (2) Sec.  219.102, in the case of a refusal to provide a urine
specimen for testing. Interested parties should note that 49 CFR 40,
subpart I, provides the medical conditions under which an individual`s
failure to provide an sufficient sample is not deemed a refusal.
Moreover, subpart G of FRA`s Control of Alcohol and Drug Use Regulation
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. Those provisions are incorporated into this rule's use of the
word ``refuses.''
    Interested parties should also note that if a person, covered by 49
CFR part 219, refuses to provide a breath or a body fluid specimen or
specimens when required to by the railroad under a mandatory provision
of 49 CFR part 219, then the railroad, apart from any action it takes
under part 242, is required to remove that person from covered service
and disqualify that person from working in covered service for 9
months. See, 49 CFR 219.104 and 219.107; see also, 49 CFR part 219
subpart H and 49 CFR 40.191 and 40.261. Paragraph 242.115(e)(4(iv)(B)
has been modified in this final rule by removing the subpart citations
and adding the phrase ``for alcohol testing.'' Those modifications are
simple clarifications to conform the final rule to the provisions of
part 219.
    Paragraph (f) prescribes the conditions under which employees may
be certified or recertified after a determination that the
certification should be denied, suspended, or revoked, due to a
violation of Sec.  219.101 or Sec.  219.102 of the alcohol/drug
regulations. These conditions are derived from the conditions in Sec.
240.119(d) and closely parallel the return-to-duty provisions of the
alcohol/drug rule. Interested parties should note

that 242.115(f)(1)(iii) has been clarified in this final rule with
respect to alcohol concentration to more accurately reflect the
provisions of FRA's alcohol/drug rule. Interested parties should also
note that the regulation does not require compensation of the employee
for the time spent in this testing, which is a condition precedent to
retention of the certificate; but the issue of compensation would
ultimately be resolved by reference to the collective bargaining
agreement or other terms and conditions of employment under the Railway
Labor Act. Moreover, a railroad that intends to withdraw its
conditional certification must afford the conductor the hearing
procedures provided by Sec.  242.407 if the conductor does not waive
his or her right to the hearing.
    Paragraph (g) ensures that a conductor, like any other covered
employee, can self-refer for treatment under the alcohol/drug rule
(Sec.  219.403) before being detected in violation of alcohol/drug
prohibitions and would be entitled to confidential handling of that
referral and subsequent treatment. This means that a railroad would not
normally receive notice from the DAC of any substance abuse disorder
identified as a result of a voluntary self-referral under 49 CFR
219.403. However, the paragraph also requires that the railroad policy
must (rather than may) provide that confidentiality is waived if the
conductor fails to participate successfully in treatment as directed by
the DAC pursuant to 49 CFR 219.403, to the extent that the railroad
must receive notice that the employee has an active substance abuse
disorder so that appropriate certificate action can be taken. The
effect of this provision is that the certification status of a
conductor who seeks help and cooperates in treatment will not be
affected, unless the conductor fails to follow through.
Section 242.117 Vision and Hearing Acuity
    This section contains the requirements for visual and hearing
acuity testing that a railroad must incorporate in its conductor
certification program. The visual requirements are the same as those
provided in 49 CFR 240.121. Although the testing procedures and
standards for the hearing requirements are more stringent than those
contained in 49 CFR 240.121 and were derived from the procedures and
standards provided in 49 CFR part 227, the criteria that must be met to
pass the hearing test is identical to the criteria in part 240.
    Paragraph (f), is intended to address, among other things,
situations in which a conductor's certificate states that he or she is
required to use a corrective device, such as glasses, but the conductor
then undergoes a corrective procedure, such as laser eye surgery, which
eliminates the need for the corrective device. If that conductor wants
to serve as a conductor without using the corrective device listed on
the card, then, following the corrective procedure, he or she should
obtain a written determination from the railroad's medical examiner
that the conductor can safely perform without using the corrective
device. In addition, the certificate should be updated to reflect that
the conductor is no longer required to use the corrective device while
serving as a conductor.
    Although some individuals may not be able to meet the threshold
acuity levels in this rule, they may be able to compensate in other
ways that will permit them to function at an appropriately safe level
despite their physical limitations. Paragraph (j) of this section
permits a railroad to have procedures whereby doctors can evaluate such
individuals and make discrete determinations about each person's
ability to compensate for his or her physical limitations. If the
railroad's medical examiner concluded that an individual had
compensated for his or her limitations and could safely serve as a
conductor on that railroad, the railroad could certify that person
under this regulation once the railroad possesses the medical
examiner's professional medical opinion to that effect.
    Paragraph (k) of this section addresses the issue of how soon after
learning of a deterioration of his or her best correctable vision or
hearing a certified conductor would have to notify the railroad of the
deterioration. FRA is concerned with the safe performance of conductor
service, not whether a person can notify a railroad within a set time
frame. Thus, paragraph (k) requires notification ``prior to any
subsequent performance as a conductor.'' Certified conductors should
note that willful noncompliance with this requirement could result in
enforcement action.
    As mentioned above, it is possible that a regulation recommended by
the Medical Standards Working Group and adopted by FRA could contain
requirements that supersede the hearing and vision standards and
requirements in this rule.
Section 242.119 Training
    This section, in compliance with the training requirements of the
RSIA, requires railroads to provide initial and periodic training of
conductors. That training is necessary to ensure the conductors have
the knowledge, skills, and abilities necessary to competently and
safely perform all of the safety-related duties mandated by Federal
laws, regulations, and orders.
    Paragraph (c) of this section requires railroads to document a
conductor's knowledge of, and ability to comply with, Federal railroad
safety laws and regulations, and railroad rules used to implement them.
In addition, that paragraph requires railroads to document that a
conductor demonstrated that he or she is qualified on the physical
characteristics of the railroad, or its pertinent segments, over which
that person will perform service. This section also requires railroads
to review and modify their training program whenever new safety-related
railroad laws, regulations, technologies, procedures, or equipment are
introduced into the workplace.
    Under this section, railroads have latitude to design and develop
the training and delivery methods they will employ; but paragraphs (d),
(e), and (f) provide requirements for railroads that elect to train a
previously untrained person to be a conductor. Pursuant to paragraph
(d), a railroad that makes this election would be required to determine
how training must be structured, developed, and delivered, including an
appropriate combination of classroom, simulator, computer-based,
correspondence, on-the-job training, or other formal training.
    Paragraphs (g), (h), (i), (j), and (k) of this section contain the
requirements with respect to acquiring familiarity with the physical
characteristics of a territory. Except for the requirements in
paragraphs (j) and (k), the requirements parallel those in part 240.
Paragraphs (j) and (k) of this section require railroads to designate
in their programs the time period in which a conductor must be absent
from a territory or yard, before requalification on physical
characteristics is required and the procedures used to qualify or
requalify a person on the physical characteristics.
    Paragraph (l) requires each railroad to provide for the continuing
education of certified conductors to ensure that each conductor
maintains the necessary knowledge concerning railroad safety and
operating rules and compliance with all applicable Federal regulations,
including, but not limited to, hazardous materials, passenger train
emergency preparedness, brake system safety standards, pre-departure
inspection procedures, and passenger equipment safety standards, and
physical characteristics of a territory. This paragraph is derived from
49 CFR 240.123(b).

    As mentioned above it is possible that a regulation recommended by
the Training Standards and Plans Working Group and adopted by FRA might
include different or additional training requirements than those found
in this rule. To the extent possible and appropriate, FRA conformed the
training requirements in this rule to the recommendations developed by
Training Standards and Plans Working Group. However, FRA does not know
at this time what the final training regulation will provide.
Therefore, some modification of the training requirements in this rule
may be necessary to conform to the final requirements of any training
regulation.
Section 242.121 Knowledge Testing
    This section, derived from 49 CFR 240.125 and 240.209, requires
railroads to provide for the initial and periodic testing of
conductors. That testing will have to effectively examine and measure a
conductor's knowledge of five subject areas: Safety and operating
rules; timetable instructions; compliance with all applicable Federal
regulations; the physical characteristics of the territory on which a
person will be or is currently serving as a conductor; and the use of
any job aid that a railroad may provide a conductor.
    Under this section, railroads have discretion to design the tests
that will be employed; for most railroads that will entail some
modification of their existing ``book of rules'' examination to include
new subject areas. This section does not specify things like the number
of questions to be asked or the passing score to be obtained. However,
it does require that the test not be conducted with open reference
books unless use of such materials is part of a test objective and that
the test be in written or electronic form. Interested parties should
note that a railroad may not give an all open book exam. Some portion
of the test must be closed book. Since the testing effort selected by
the railroad must be submitted to FRA for approval, the exercise of the
discretion being afforded railroads by this section will be monitored
by FRA.
    To address a concern of some of the members of the Working Group
that persons being tested were unable to obtain clarification of test
questions by someone who possessed knowledge of a relevant territory,
paragraph (e) of this section requires railroads to provide the
person(s) being tested with an opportunity to consult with a
supervisory employee, who possesses territorial qualifications for the
territory, to explain a question.
Section 242.123 Monitoring Operational Performance
    This section, derived from 49 CFR 240.129 and 240.303, contains the
requirements for conducting unannounced compliance tests.
    Paragraph (b) of this section requires each railroad to have a
program to monitor the conduct of its conductors by performing
unannounced operating rules compliance tests. The paragraph also
provides procedures to address the testing of certified conductors who
are not performing a service that requires certification under this
part. FRA understands that railroads 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 their unable to annually test, this paragraph does 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.
    Paragraph (c) provides that each conductor must be given at least
one unannounced compliance test in each calendar year by a railroad
officer who meets the requirements of 49 CFR 217.9(b)(1).
    Paragraph (d) provides the operational tests that conductors and
passenger conductors must be tested on. That paragraph also allows
passenger conductors who do not require compliance with 49 CFR 218
subpart F, except under emergency circumstances, to meet the annual,
unannounced test requirement with annual training. Interested parties
should note that this paragraph has been revised from the NPRM to
clarify that the annual training exception in paragraph (d)(2)(i) only
applies to part 218 subpart F testing and that a railroad will still
have to test on Sec.  217.9.
    Paragraph (e) of this section requires railroads to indicate the
types of actions they will take in the event they find deficiencies
with a conductor's performance during an unannounced compliance test.
FRA believes it is up to each railroad to decide the appropriate action
to take in light of various factors, including collective bargaining
agreements. Further, FRA believes that the vast majority of railroads
have adequate policies to deal with deficiencies with a conductor's
performance and have handled them appropriately for many years.
    To avoid restricting the options available to the railroads and
employee representatives to develop processes for handling test
failures, FRA designed this regulation to be as flexible as possible.
There are a variety of actions and approaches that a railroad could
take in response to a test failure and FRA does not want to stifle a
railroad's ability to adopt an approach that is best for its
organization. Some of the actions railroads could consider include:
Develop and provide formal remedial training for conductors who fail
tests or have deficiencies in their performance; automatically download
event recorder data, if relevant, upon a test failure or deficient
performance in order to preserve evidence of the failure/deficiency;
and require two supervisors to accompany a retest. Each railroad could
also consider implementing a formal procedure whereby a conductor is
given the opportunity to explain, in writing, the factors that he or
she believes caused their test failure or performance deficiencies.
This explanation may allow a railroad to determine what areas of
training to focus on or perhaps discover that the reason for the
failure/deficiency was due to something other than a lack of skills.
FRA believes there are numerous other approaches that could and should
be considered and evaluated by railroads and their employees. FRA
realizes that a railroad's list of actions it will take in response to
a test failure or deficient performance could be expansive given the
various circumstances that could contribute to a test failure or
deficient performance.
    Paragraphs (b) and (f) of this section recognize 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.
For example, a certified conductor may be on furlough, in military
service, off with an extended illness, or working in another service.
Unlike part 240, which requires railroads to seek a waiver from FRA's
Safety Board for engineers it is unable to annually test, this section
does not require railroads to give an unannounced compliance test to
conductors who are not performing service requiring certification.
However, when the certified conductor returns to conductor service, he
or she will have to be tested within 30 days of their return. Moreover,
the railroad will have to retain a written record documenting certain
dates regarding a conductor's service.

Section 242.125 Certification Determinations Made by Other Railroads
    This section, derived from 49 CFR 240.225, provides the
requirements that apply when a certified or previously certified
conductor is about to begin service for a different railroad. The
section permits the hiring railroad to rely on determinations made by
another railroad concerning a person's certification. However, the
section requires a railroad's certification program to address how the
railroad will administer the training of previously uncertified
conductors with extensive operating experience or previously certified
conductors who have had their certification expire. In both these
instances, FRA is providing a railroad with the opportunity to shorten
the on-the-job training that might be required if a person is treated
as having no operational experience. If a railroad's certification
program fails to specify how to train a previously certified engineer
hired from another railroad, then the railroad must require the newly
hired conductor to take the hiring railroad's entire training program.
Section 242.127 Reliance on Qualification Requirements of Other
Countries
    This section, derived from 49 CFR 240.227, provides Canadian
railroads that operate in the United States and U.S. railroads that
conduct joint operations with Canadian railroads the option to rely on
the system of conductor certification established by the Canadian
Government as long as the conductor is employed by a Canadian railroad.

Subpart C--Administration of the Certification Program

Section 242.201 Time Limitations for Certification
    This section, derived from 49 CFR 240.217, contains various time
constraints that preclude railroads from relying on stale information
when evaluating a candidate for certification or recertification.
Although some members of the Working Group advocated for extending the
certification period from 3 years to 5 years, FRA could not discern the
safety justification for doing so. FRA has, however, extended the
period provided in Sec.  240.217(a)(2) upon which a railroad could rely
on a visual and hearing acuity examination from 366 days to 450 days.
The 450 days corresponds to the requirement in Sec.  227.109 that
railroads must offer employees included in a hearing conservation
program a hearing test at an interval not to exceed 450 days.
Section 242.203 Retaining Information Supporting Determinations
    This section, derived from 49 CFR 240.215, contains the record
keeping requirements for railroads that certify conductors. While both
Sec.  240.215 and this section permit railroads to retain records
electronically, paragraph (g) of this section provides more specific
requirements regarding the electronic storage system used to retain the
records than those found in Sec.  240.215. In paragraph (g), FRA
provides minimum standards for electronic record-keeping provisions
that a railroad will have to utilize to maintain the records required
by this section electronically. FRA recognizes the growing prevalence
of electronic records, and acknowledges the unique challenges that
electronic transmission, storage, and retrieval of records can present.
FRA also recognizes the need to maintain the integrity and security of
records stored electronically. Thus, FRA believes that more specific
requirements for electronic storage systems than those found in Sec.
240.215 are needed. Further, to allow for future advances in
technology, the electronic record storage provisions in paragraph (g)
are technology-neutral.
Section 242.205 Identification of Certified Persons and Record Keeping
    This section, derived from 49 CFR 240.221, requires each railroad
to maintain a list of its certified conductors. Although derived from
Sec.  240.221, this section also contains some significant differences.
Unlike Sec.  240.221(c) which requires the railroad responsible for
controlling joint operations territory to maintain a list of all
engineers certified to operate in the joint operations, paragraph (b)
of this section requires the railroad that employs conductors working
in joint operations territory to maintain the list.
    With respect to engineers, FRA has found that, under actual
industry practices, the controlling railroad seldom qualifies foreign
engineers over its trackage. Rather, the controlling railroad usually
qualifies the employing railroad's designated supervisor of locomotive
engineers (DSLEs) on its territory and allows those DSLEs to qualify
their own engineers on the controlling railroad's trackage. Considering
that practice, the employing railroad would be better able to maintain
the list of conductors it qualifies on the controlling railroad.
Additionally, the employing railroad has more of an interest in keeping
track of its conductors that are qualified on the controlling railroad.
Should an employing railroad order a crew for a train that will operate
over the controlling railroad, and the crew is not qualified, the train
would have to stop at the controlling railroad. Moreover, it is much
easier for the employing railroad to keep the list updated as it
qualifies conductors or it removes conductors who have lost
qualification because of time limitations. This section also differs
from Sec.  240.221 in that this section makes it unlawful for a
railroad to knowingly or an individual to willfully make a false entry
on the list or to falsify the list. Similar language is found in Sec.
240.215(i) but not in Sec.  240.221.
    While both Sec.  240.221 and this section permit railroads to
retain records electronically, paragraph (e) of this section provides
more specific requirements regarding the electronic storage system used
to retain the records than those found in Sec.  240.215(f) and does not
require a railroad to obtain FRA approval to maintain the records
electronically. The electronic storage requirements in paragraph (e) of
this section track those in Sec.  242.203(g).
Section 242.207 Certificate Components
    This section, derived from 49 CFR 240.223, contains the
requirements for the certificate that each conductor must carry. To
address the privacy concerns of some Working Group members, FRA's
requirements for what must be on the certificate slightly differ from
the certificate requirements in part 240. While Sec.  240.223(a)(3)
requires locomotive engineer certificates to include the full date of
birth, Sec.  242.207(a)(3) requires conductor certificates to include
only the year of birth. While FRA expects that, in the future, Sec.
240.223(a)(3) will be amended to conform to Sec.  242.207(a)(3), FRA
notes that pursuant to Sec.  242.213(n), a single certificate issued to
a person that is certified as both a conductor and a locomotive
engineer will have to comply, for now, with Sec.  242.207 and Sec.
240.223.
Section 242.209 Maintenance of the Certificate
    This section, derived from 49 CFR 240.305(b), (c) and (e), requires
conductors to: Have their certificates in their possession while on
duty as a conductor; display their certificates when requested to do so
by FRA representatives, State inspectors authorized under 49 CFR part
212, and certain railroad officers; and notify a railroad if he or she
is called to serve as

a conductor in a service that would cause them to exceed their
certificate limits. Although State inspectors authorized under 49 CFR
part 212 could be considered ``FRA representatives,'' they are
mentioned separately in this section to ensure that there would be no
dispute regarding their authority.
Section 242.211 Replacement of Certificates
    This section, derived from 49 CFR 240.301, requires railroads to
have a system for the prompt replacement of certificates when
necessary. Unlike Sec.  240.301, which does not address the question of
who will bear the cost of a replacement certificate, this section
provides that certificates will be replaced by the railroad at no cost
to the conductor. While FRA expected that the railroad would bear the
cost for a replacement locomotive engineer certificate under part 240,
a few Working Group members indicated that some locomotive engineers
had been charged (or asked by a railroad to pay) for replacement
certificates. The provision in this part clarifies that the railroad
would bear the cost of replacement certificates.
    To address the concerns of some Working Group members that a full
replacement certificate can take some time to generate and provide to a
conductor, paragraph (b) of this section permits railroads to issue
temporary replacement certificates. The paragraph describes what the
certificate must contain and who can authorize the temporary
replacement. The temporary replacement certificate may be delivered
electronically (e.g., faxed, emailed, etc.) and may be valid for no
more than 30 days.
Section 242.213 Multiple Certifications
    This section permits a person to hold certification for multiple
types of conductor service and/or certification for both conductor and
locomotive engineer service. A railroad only needs to issue one
certificate to a person with multiple certifications. However, a
certificate issued to a person certified as a conductor and locomotive
engineer will not only have to comply with Sec.  242.207 but also with
Sec.  240.223. To the extent possible, a railroad that issues multiple
certificates to a person will have to coordinate the expiration date of
those certificates.
    With the exception of a situation in which a conductor is removed
from a train for a medical, police, or other such emergency, this
section requires that a locomotive engineer, including a RCO, who is
operating without an assigned certified conductor to either be: (1)
Certified as both a locomotive engineer and a conductor; or (2)
accompanied by a certified conductor who will attach to the crew ``in a
manner similar to that of an independent assignment.'' Since a lone
engineer or RCO would be serving as and performing duties as both
locomotive engineer and conductor, FRA believes, and the Working Group
and full RSAC voted to recommend, that the engineer or RCO must hold
dual certification or be accompanied by a certified conductor. The
language concerning how an accompanying conductor would attach to the
crew conveys FRA's intent that this regulation be neutral on the issue
of crew consist (i.e., how many crewmembers must be on a train).
    During the RSAC process, representatives of FRA, the railroads, and
labor engaged in extensive discussions regarding the potential effect
of Sec.  242.213 (``Multiple certifications'') on the issue of crew
consist. It is FRA's intent that this conductor certification
regulation, including Sec.  242.213, be neutral on the crew consist
issue. Nothing in part 242 should be read as FRA's endorsement of any
particular crew consist arrangement.
    In instances where a person, who is serving as both the conductor
and the engineer (i.e., a lone engineer or RCO), is involved in a
revocable event, railroads may be faced with determining which
certification to revoke. For example, a railroad that finds that a RCO,
who is certified both as an engineer and as a conductor but who was not
accompanied by a certified conductor, has failed to comply with
prohibitions against tampering with a locomotive mounted safety device
would have to determine whether to revoke the person's conductor
certification pursuant to Sec.  242.403(e)(5) or the person's
locomotive engineer certification pursuant to Sec.  240.117(e)(5). To
address that situation, Sec.  242.213(o) requires railroads to make the
determination as to which certification to revoke based on the work the
person was performing at the time the conduct occurred. This
determination would be similar to the determination made under the
reporting requirements in this rule (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 (e.g., switch handling, derail handling, etc.) or whether it
was caused by poorly performing what is traditionally considered a
locomotive engineer's job function (e.g., operation of the locomotive,
braking, etc.). Interested parties should note however, the preamble
discussion of Sec.  242.403(f) which discusses situations in which
multiple revocable events occur within a single tour of duty.
    This section also addresses the consequences of certification
denial or revocation for a conductor who is certified to perform
multiple types of conductor service or both conductor and locomotive
engineer service. A person who holds a current conductor and/or
locomotive engineer certificate from more than one railroad must
immediately notify the other certifying railroad(s) if he or she is
denied engineer or conductor recertification or has his or her
conductor or engineer certification revoked by another railroad.
    Pursuant to this section, a person certified to perform multiple
types of conductor service and who has had any of those certifications
revoked cannot perform any type of conductor service during the period
of revocation. Likewise, a person who holds a conductor and locomotive
engineer certificate and has his or her engineer certificate revoked
cannot work as a conductor during the period of revocation. Similarly,
a person who holds a conductor and engineer certificate and has his or
her conductor certification revoked for violation of Sec. Sec.
242.403(e)(1)-(e)(5) or (e)(12) cannot work as an engineer during the
period of revocation. However, a person who holds a conductor and
engineer certificate and has his or her conductor certification revoked
for a violation of Sec. Sec.  242.403(e)(6)-(e)(11) (i.e., violations
involving provisions of part 218, subpart F) can work as an engineer
during the period of revocation. To aid interested parties, FRA has
included a table in Appendix E to this rule which explains, in a
spreadsheet-style form, when a person certified as both an engineer and
conductor will be permitted to work following a certification
revocation.
    Currently under part 240, an engineer cannot have his or her
certificate revoked for violations of part 218, subpart F. While part
240 may be amended in the future to include part 218, subpart F
violations as revocable events, this rule recognizes that it would be
unfair to prohibit a person from working as an engineer for a violation
that currently would not result in the revocation of his or her
engineer certificate. This section also provides that, in determining
the period in which a person may not work as a locomotive engineer due
to a revocation of his or her conductor certification, only

violations of Sec. Sec.  242.403(e)(1)-(e)(5) or (e)(12) may be
counted. To assist railroads in determining the correct period,
paragraph (h)(1) of this section provides a hypothetical scenario and
an explanation of how the period would be calculated.
    To avoid treating a person who only holds one certification
differently than a person who holds multiple certifications, this
section prohibits a person who has had his or her locomotive engineer
certification revoked from obtaining a conductor certificate during the
revocation. Likewise, a person who has had his or her conductor
certification revoked for violations of Sec. Sec.  242.403(e)(1)-(e)(5)
or (e)(12) is prohibited from obtaining a locomotive engineer
certificate during the period of revocation. With respect to denial of
certification or recertification, this section provides that a railroad
that denies a person locomotive engineer certification or
recertification shall not, solely on the basis of the denial, deny or
revoke that person's conductor certification or recertification and
vice versa.
Section 242.215 Railroad Oversight Responsibilities
    This section, derived from 49 CFR 240.309, requires Class I
(including the National Railroad Passenger Corporation and a railroad
providing commuter service) and Class II railroads to conduct an annual
review and analysis of its program for responding to detected instances
of poor safety conduct by certified conductors. FRA has formulated the
information collection requirements of this section to ensure that
railroads collect data on conductor safety behavior and feed that
information into its operational monitoring efforts, thereby enhancing
safety.
    This section requires Class I (including the National Railroad
Passenger Corporation and a railroad providing commuter service) and II
railroads to have an internal auditing plan to keep track of eight
distinct kinds of events that involve poor safety conduct by
conductors. For each event, the railroad shall indicate what response
it took to that situation. The railroad will evaluate this information,
together with data showing the results of annual operational testing
and the causation of FRA reportable train accidents, to determine what
additional or different efforts, if any, are needed to improve the
safety performance of that railroad's certified conductors. FRA is not
requiring a railroad to furnish this data or its analysis of the data
to FRA. Instead, FRA is requiring that the railroad be prepared to
submit such information when requested.
    For purposes of the reporting requirement in this section, an
instance of poor safety conduct involving a person who holds both a
conductor and engineer certification need only be reported once (i.e.,
either under 49 CFR 240.309 or this section). The determination as to
where to report the instance of poor safety conduct will be based on
the work the person was performing at the time the conduct occurred.
This determination is similar to the determination made under part 225
in which railroads determine whether an accident was caused by poorly
performing what is traditionally considered a conductor's job function
(e.g., switch handling, derail handling, etc.) or whether it was caused
by poorly performing what is traditionally considered a locomotive
engineer's job function (e.g., operation of the locomotive, braking,
etc.).
    Paragraph (g)(2) has been modified slightly from the NPRM to
acknowledge that punishments may not always be imposed by a hearing
officer. Accordingly, FRA has replaced the specific term ``hearing
officer'' with the more general term ``railroad.''
    Paragraph (i)(2) has been modified slightly from the NPRM to
clarify what accident/incident report FRA is referring to in that
paragraph. Further the paragraph that was labeled as ``(ii)
[Reserved]'' has been removed as unnecessary.

Subpart D--Territorial Qualification and Joint Operations

Section 242.301 Requirements for Territorial Qualification
    This section, derived from 49 CFR 240.229 and 240.231, explains the
requirements for territorial qualification. Paragraph (a) of this
section provides that, except for three circumstances, a railroad,
including a railroad that employs conductors working in joint
operations territory, cannot permit or require a person to serve as a
conductor unless that railroad determines that the person is a
certified conductor and possesses the necessary territorial
qualifications.
    Paragraph (a) reflects the Working Group and full RSAC
recommendation to realign the burden for determining which party is
responsible for allowing an unqualified person to operate in joint
operations. While part 240 puts the burden on the controlling railroad,
this rule puts the burden on the employing railroad. This change is
based on the experiences of the Working Group members who believe that
an inordinate amount of the liability currently rests with the
controlling railroad. The perceived unfairness rests on the fact that
it is not always feasible for the controlling railroad to make all of
the determinations required by Sec.  242.119. The employing railroad
may provide the controlling railroad with a long list of hundreds or
thousands of locomotive engineers that it deems eligible for joint
operations; following up on a long, and ever-changing list is made much
more difficult since a controlling railroad would not control the
personnel files of the conductors on this list.
    The realignment will lead to a sharing of the burden among a
controlling railroad, an employing railroad and an employing railroad's
conductor. Although a controlling railroad is obligated to make sure
the person is qualified, paragraph (a) requires that an employing
railroad make these same determinations before calling a person to
serve in joint operations. Paragraph (b) of this section requires a
conductor to notify a railroad when the person is being asked to exceed
his or her territorial qualifications. That paragraph parallels Sec.
242.209(b) of this rule.
    Paragraph (c), which as discussed in the preamble above, has been
modified from the NPRM. The paragraph provides requirements for
situations where a conductor lacks territorial qualification on main
track physical characteristics. It provides 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, paragraph (c)(1) of this 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, paragraph (c)(2) of this 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.
    Paragraph (d) provide requirements for situations where a conductor
lacks territorial qualification on other than main track physical
characteristics. On other than main track, the conductor, where
practicable, must be assisted by a person who is a certified conductor
and meets the territorial qualification requirements for other than
main track physical characteristics. Where not practicable, the
conductor must be provided with an appropriate, up-to-date job aid. Two
points should be made about the other than main track requirements in
paragraph (d) of this section. First, the person assisting the
conductor may be the locomotive engineer as long as the engineer is
also a certified conductor and meets the territorial qualification
requirements for the other than main track physical characteristics.
Second, FRA does not intend for the requirements of Sec.  242.301(d) to
apply to sidings.
    Paragraph (e), which was not included in the NPRM, provides
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.

Subpart E--Denial and Revocation of Certification

    This subpart parallels part 240's approach to adverse decisions
concerning certification (i.e., decisions to deny certification or
recertification and revoke certification). With respect to denials, the
approach of this rule is predicated principally on the theory that
decisions to deny certification or recertification will come at the
conclusion of a prescribed evaluation process which will be conducted
in accordance with the provisions set forth in this subpart. Thus, this
rule and part 240 contain specific procedures designed to assure that a
person, in jeopardy of being denied certification or recertification,
will be given a reasonable opportunity to explore and respond to the
negative information that might serve as the basis for being denied
certification or recertification.
    When considering revocation, this rule contemplates that decisions
to revoke certification will only occur for the reasons specified in
this subpart. Since revocation decisions by their very nature involve a
clear potential for factual disagreement, this subpart is structured to
ensure that such decisions will come only after a certified conductor
had been afforded an opportunity for an investigatory hearing at which
the presiding officer will determine whether there is sufficient
evidence to establish that the conductor's conduct warranted revocation
of his or her certification.
    This subpart also includes the concept of certificate suspension.
Certificate suspension will be employed in instances where there is
reason to think the certificate should be revoked or made conditional
but time is needed to resolve the situation. Certificate suspension is
applicable in instances where a person is awaiting an investigatory
hearing to determine whether that person violated certain provisions of
FRA's alcohol and drug control rules or engaged in operational
misconduct and situations in which the person is being evaluated or
treated for an active substance abuse disorder.
    While this subpart follows part 240's approach to adverse decisions
concerning certification, it does include some modifications to the
processes in part 240. Those modifications are discussed below.
Section 242.401 Denial of Certification
    This section, derived from 49 CFR 240.219, provides minimum
procedures that must be accorded to a certification candidate before a
railroad denies the candidate certification or recertification. The
requirements in this section parallel the key provisions in Sec.
240.219 including: Providing a certification candidate with a
reasonable opportunity to explain or rebut adverse information; and
notifying a candidate of an adverse decision and providing a written
explanation of the basis for its decision within 10 days.
    This section also includes some additional provisions in paragraphs
(a), (c), and (d) not found in Sec.  240.219 which FRA believes will
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.
Paragraph (a) of this section requires a railroad to provide the
conductor candidate with any written documents or records, including
written statements, related to a failure to meet a requirement of this
part which support its pending denial decision. Paragraph (c) of this
section requires that a written explanation of an adverse decision be
``served'' on a certification candidate (see definition of service in
Sec.  242.7). Use of the defined term, rather than part 240's more
general phrase ``mailed or delivered,'' not only makes this rule
internally consistent but will help FRA in determining whether a
petition seeking review of a denial decision is filed within 120 days
of the date the denial is served on the petitioner (see Sec.
242.503(c)). Paragraph (c) also requires that 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.
    Paragraph (d) of this section, which is also not included in Sec.
240.219, prohibits a railroad from denying certification based on a
failure to comply with Sec.  242.403(e)(1)-(11) if sufficient evidence
exists to establish that an intervening cause prevented or materially
impaired the conductor's ability to comply with those sections.
Paragraph (d) is derived from the intervening cause exception for
revocation in Sec.  242.407(i)(1).
Section 242.403 Criteria for Revoking Certification
    This section, derived from 49 CFR 240.117 and 240.305, provides the
circumstances under which a conductor may have his or her certification
revoked. In addition, paragraph (b) of this section makes it unlawful
to fail to comply with any of the events listed in paragraph (e) of
this section (i.e., events which would require a railroad to initiate
revocation action). Paragraph (b) is needed so that FRA could initiate
enforcement action. For example, FRA might want to initiate enforcement
action in the event that a railroad fails to initiate revocation action
or a person is not a certified conductor under this part. Railroads
should note that they may not 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.
    Paragraph (c)(1) of this section provides that a certified
conductor who fails to comply with the events listed in paragraph (e)
of this section would have his or her conductor certification revoked.
Paragraph (c)(2) provides that a certified conductor, who is
monitoring, piloting, or instructing a conductor, could have his or her
certification revoked if he or she fails to

take ``appropriate action'' to prevent a violation of paragraph (e) of
this section. As explained in paragraph (c)(2), ``appropriate action''
does not mean that a supervisor, pilot, or instructor must prevent a
violation from occurring at all costs, but rather the duty may be met
by warning the conductor or engineer, as appropriate, of a potential or
foreseeable violation. The term ``appropriate action'' is also used in
paragraph (e) of this section as well as Sec.  240.117(c)(2).
    Paragraph (c)(3) provides that a person who is a certified
conductor but is called by a railroad to perform the duty of a train
crew member other than that of conductor or locomotive engineer would
not have his or her certification revoked based on actions taken or not
taken while performing that duty. For example, a person who is called
to be the crew's brakeman and who does not serve as a conductor or
locomotive engineer during that tour of duty could not have his or her
certification revoked for a violation listed in paragraph (e) of this
section. Interested parties should note that the exemption does not
apply to violations of paragraph (e)(12) so that conductors working in
other capacities who violate certain alcohol and drug rules would have
their certification revoked for the appropriate period pursuant to
Sec. Sec.  242.403 and 242.115.
    Paragraph (d) provides that the time frame for considering
operating rule compliance only applies to conduct described in
paragraphs (e)(1) through (e)(11) of this section and not paragraph
(e)(12). When alcohol and drug violations are at issue, the window in
which prior operating rule misconduct will be evaluated will be
dictated by Sec.  242.115 and not limited to the 36-month period
prescribed in this paragraph. This rule requires that certification
reviews consider alcohol and drug misconduct that occurred within a
period of 60 consecutive months prior to the review pursuant to Sec.
242.115(e).
    Paragraph (e) provides the 12 types of rule infractions that could
result in certification revocation. The infractions listed in
paragraphs (e)(1)-(e)(5) and (e)(12) derive from the revocable events
provided in 49 CFR 240.117(e) but have been modified to account for a
conductor's duties. For example, paragraphs (e)(1) and (e)(2) recognize
that a conductor does not operate the train and thus those paragraphs
only require a conductor to take ``appropriate action'' to prevent an
engineer from failing to control a locomotive or train in accordance
with a signal or to adhere to speed limitations. As explained in those
paragraphs, ``appropriate action'' does not mean that a conductor must
prevent a violation from occurring at all costs; but rather the duty
may be met by warning the engineer of a potential or foreseeable
violation. Moreover, paragraph (e)(2) recognizes that a conductor who
is not in the operating cab should not be held to held to the same
responsibility with respect to monitoring train speed as a conductor
who is located in the operating cab.
    The language of paragraph (e)(4) has been modified from the version
proposed in the NPRM. In this final rule, paragraph (e)(4) requires a
conductor to take ``appropriate action'' to prevent an engineer from
occupying main track or a segment of main track without proper
authority or permission. As explained in that paragraph, ``appropriate
action'' does not mean that a conductor must prevent a violation from
occurring at all costs; but rather the duty may be met by warning the
engineer of a potential or foreseeable violation.
    As written in the NPRM, paragraph (e)(4), a conductor could have
had his or her certification revoked for occupying main track or a
segment of main track without proper authority or permission even if
the conductor repeatedly warned the engineer about the potential
violation. FRA does not believe that was the intent of paragraph (e)(4)
and thus, FRA has modified the paragraph in this final rule. Interested
parties should note that with respect to paragraph (e)(4), a conductor
will be considered to have failed to take appropriate action to prevent
an engineer from occupying main track or a segment of main track
without proper authority or permission if the conductor fails to warn
the engineer to stop and protect/flag a crossing on main track when
required to do so pursuant to a railroad operating rule or practice,
including a mandatory directive.
    The infractions listed in paragraphs (e)(6) through (e)(11) of this
section describe violations of part 218, subpart F, which are not
listed as revocable events in part 240. For the reasons listed below,
FRA proposed, and the RSAC recommended, that violations of part 218,
subpart F, should be revocable events for conductors. In the future,
FRA expects to review whether those violations should also be revocable
events for locomotive engineers. Subpart F of part 218 requires that
each railroad have in effect certain operating rules concerning shoving
or pushing movements, equipment left out to foul a track, switches, and
derails.\4\ The operating rules identified in part 218, subpart F, are
not only considered core competencies for conductors but are also
designed to address the most frequently caused human factor accidents.
Human factors are the leading cause of train accidents, accounting for
38 percent of the total in 2005. Human factors also contribute to
employee injuries. Subpart F violations account for approximately 43
percent of all human factor caused accidents. From 2005-2009, there
were approximately 2,227 accidents due to Subpart F violations. Those
accidents resulted in approximately 13 fatalities, 363 injuries, and
$104,855,224 in damages.
---------------------------------------------------------------------------

    \4\ For a detailed analysis of part 218, interested parties
should review the notice of proposed rulemaking (71 FR 60372 (Oct.
12, 2006)), the final rule (73 FR 8442 (Feb. 13, 2008)), and the
response to petitions for reconsideration (73 FR 33888 (June 16,
2008)) issued in that rulemaking.
---------------------------------------------------------------------------

    Paragraph (f) of this section provides that if a single incident
contravenes more than one operating rule or practice listed in
paragraph (e) of this section, that event is to be treated as a single
violation. A single incident is a unique identifiable occurrence caused
by an error of a conductor and/or engineer. It is possible for a person
to be involved in more than one single incident during a tour of duty
if the incidents are separated by time, distance or circumstance. If,
for example a person, who is certified as both an engineer and a
conductor and is serving as a lone engineer, violates a stop signal
rule and in so doing, enters main track without authority, that person
could only be charged as an engineer with one rule violation. However,
if that same person fails to properly secure a switch after operating
the switch in violation of Sec.  218.103(b)(8) and then violates a stop
signal rule, that would be considered two separate incidents and thus
the person's conductor certification could be revoked for the part 218
violation and the person's engineer certification could be revoked for
the stop signal violation.
    Paragraph (f) also provides that a conductor may have his or her
certification revoked for violations that occur during properly
conducted operational compliance tests. However, FRA notes that
violations that occur during an improperly conducted operational
compliance test will not be considered for revocation purposes.
    Paragraph (f)(4) of this section was previously paragraph (e)(13)
in the NPRM. Since the paragraph does not deal with a revocable event
like paragraphs (e)(1) through (e)(12), FRA moved it to paragraph (f)
to avoid confusion. Paragraph (f)(4), which does not have a counterpart
in part 240,

prohibits a railroad from denying or revoking an employee's
certification based upon additional conditions or operational
restrictions imposed pursuant to Sec.  242.107(d). Thus, a railroad
could not revoke a conductor's certificate for an alleged violation of
a railroad rule or practice that is more stringent than the condition
or restrictions required by this part. In the future, FRA expects to
review whether a similar provision should also apply to locomotive
engineers.
Section 242.405 Periods of Ineligibility
    This section, derived from Sec.  240.117, describes how a railroad
will determine the period of ineligibility (e.g., for revocation or
denial of certification) that a conductor or conductor candidate will
have to undergo. With respect to revocation, this section provides that
once a railroad determines that a conductor has failed to comply with
its safety rule concerning one or more events listed in Sec.
242.403(e), two consequences will occur. First, the railroad is
required to revoke the conductor's certification for a period of time
provided in this section. Second, that revocation will initiate a
period during which the conductor will be subject to an increasingly
more severe action if additional revocable events occur in the next 24
to 36 months.
    Except for incidents occurring on other than main track where
restricted speed or the operational equivalent is in effect, the
standard periods of revocation provided in this section track the
periods provided in part 240: 1 event = revocation for 30 days; 2
events within 24 months of each other = revocation for 6 months; 3
events within 36 months of each other = revocation for 1 year; and 4
events within 36 months of each other = revocation for 3 years. This
section notes, however, that violations of Sec.  219.101 could result
in different periods of ineligibility and in those cases, the longest
period of revocation will control. FRA has included a table in Appendix
E to this rule which provides the revocation periods in a spreadsheet-
style form. The table should be useful to regulated entities in
determining the correct period of revocation.
    The period of revocation in both part 240 and this rule is based on
a floating window. Hence, under this rule and part 240, if a second
offense occurs 25 months after the first offense, the revocation period
would be the same as a first offense; however, if a third offense
occurs within 36 months of the first offense, the revocation period
would be one year. The anomaly will be that a person's certificate
could be revoked twice for one month under paragraph (a)(3)(ii) of this
section but that the third incident could result in a one year
revocation under paragraph (a)(3)(iv) of this section without the
benefit of the interim six month revocation period under paragraph
(a)(3)(iii).
    This section also contains two provisions which will reduce the
period of ineligibility if certain criteria are met. The first
provision, which is contained in paragraph (a)(3)(i) of this section,
provides that ``on other than main track where restricted speed or the
operational equivalent thereof is in effect,'' the periods of
revocation for violations of certain provisions of Sec.  242.403(e) \5\
shall be reduced by one half provided that another revocable event has
not occurred within the previous 12 months. That provision, which does
not have an equivalent provision in part 240, recognizes that some
violations which occur on other than main track where slower speeds are
in effect may pose less of a danger to safety than violations that
occur on main track and thus a reduced period of revocation is
warranted. The second provision, which may reduce the period of
ineligibility if certain criteria are met, is contained in paragraph
(c) of this section. That provision, which parallels Sec.  240.117(h),
provides that a person whose conductor certification is denied or
revoked will be eligible for grant or reinstatement of the certificate
prior to the expiration of the initial period of revocation if, among
other things, at least one half of the initial period of ineligibility
has elapsed.
---------------------------------------------------------------------------

    \5\ The provisions are Sec.  242.403(e)(6) through (e)(8),
(e)(10), and (e)(11). Section 242.403(e)(9) is not included in the
list because the reduction provided for in Sec.  242.403(a)(3)(i)
only applies on other than main track where restricted speed or the
operational equivalent thereof is in effect. Section 242.403(e)(9),
however, addresses violations of Sec.  218.105 which only applies to
main track switches.
---------------------------------------------------------------------------

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

    \6\ If, as in the example, the revocation calculation results in
any fraction of a day (e.g., 7.5 days), then round the number up.
Thus, the conductor in the example would be eligible for
reinstatement in 8 days.
---------------------------------------------------------------------------

    Paragraph (b) of this section provides that all periods of
revocation may consist of training. While that provision is not
explicitly stated in part 240, it is certainly not prohibited and is
included in this rule to make FRA's intent clear.
Section 242.407 Process for Revoking Certification
    This section, derived from 49 CFR 240.307, provides the procedures
a railroad must follow if it acquires reliable information regarding a
conductor's violation of Sec.  242.115(e) or Sec.  242.403(e).
    Paragraph (b)(1) of this section provides that upon receipt of
reliable information regarding a violation of Sec.  242.403(e), a
railroad must suspend the person's certificate. Paragraph (b)(2)
provides that prior to or upon suspending the person's certificate, the
railroad will have to provide either oral or written notice of the
reason for the suspension, the pending revocation, and an opportunity
for a hearing. If the initial notice was verbal, then the notice will
have to be promptly confirmed in writing. The amount of time the
railroad has to confirm the notice in writing will depend on whether or
not a collective bargaining agreement is in effect and applicable. In
the absence of such an agreement, a railroad will have 96 hours to
provide this important information. Interested parties should note that
if a notice of suspension is amended after a hearing is convened and/or
does not contain citations to all railroad rules and practices that may
apply to a potentially revocable event, the Operating Crew Review
Board, if asked to review the revocation decision, might subsequently
find that this constitutes procedural error pursuant to Sec.  242.505.
    Paragraphs (b)(3)-(b)(7) and paragraphs (c), (d), (e), and (f) of
this section provide the requirements and procedures for conducting or
waiving a railroad hearing regarding the alleged revocable event.
Except for paragraphs (b)(4) and (c)(11), discussed below, those
requirements mirror the hearing requirements currently contained in
part 240.
    Pursuant to paragraph (b)(4) of this section, no later than the
convening of a hearing, the railroad convening the hearing must provide
the person with a copy of the written information and list of witnesses
the railroad will present at the hearing. If requested, a recess to the
start of the hearing shall be granted if the copy of the written
information and list of witnesses is not provided until just prior to
the convening of the hearing. If the information that led to the
suspension of a conductor's certificate pursuant to paragraph (b)(1)

of this section is provided through statements of an employee of the
convening railroad, the railroad must make that employee available for
examination during the hearing. Examination may be telephonic where it
is impractical to provide the witness at the hearing.
    The provisions in paragraph (b)(4) of this section were added to
address the concerns of some members of the Working Group that
engineers were not being provided with information and/or witnesses
necessary to defend themselves at the hearing under part 240.
Interested parties should note that even if a railroad conducts a
hearing pursuant to the procedures in an applicable collective
bargaining agreement pursuant to paragraph (d) of this section, the
railroad will still have to comply with the provisions of paragraph
(b)(4). It is FRA's understanding that, except for an employee of the
convening railroad whose statements led to a suspension under paragraph
(b)(1) of this section, a railroad will not, in fact, be required to
call to testify every witness that it includes on the list provided
pursuant to paragraph (b)(4). If, for example, a railroad believes that
it has provided sufficient evidence during a hearing to prove its case
and that calling a witness on its list to testify would be unduly
repetitive, then the railroad will not be obligated to call that
witness. Of course, the opposing party could request that the witness
be produced to testify but the hearing officer would have the authority
pursuant to paragraph (c)(6) to determine whether the witness'
testimony would be unduly repetitive or so extensive and lacking in
relevancy that its admission would impair the prompt, orderly, and fair
resolution of the proceeding.
    While paragraph (c)(1) provides a conductor with significant input
into when the hearing is held, that paragraph must read in conjunction
with paragraph (c)(3) which provides the presiding officer with the
powers necessary to regulate the conduct of the hearing. Thus, a
presiding officer would be permitted to deny excessive hearing request
delays by the conductor. Moreover, a presiding officer could find
implied consent to postpone a hearing where a conductor's witnesses are
not available within 10 days of the date the certificate is suspended.
However, interested parties should note that the OCRB may grant a
petition on review if the OCRB finds that the hearing schedule caused
the petitioner substantial harm.
    Paragraph (c)(11) contains requirements regarding the written
decision issued in a railroad hearing beyond those contained in part
240. Specifically, the final rule requires the decision to: (1) State
whether the railroad official found that a revocable event occurred and
the applicable period of revocation with a citation to Sec.  242.405
(Periods of revocation); (2) contain an explanation of the factual
findings and citations to all applicable railroad rules and practices;
and (3) be served on the employee and the employee's representative, if
any, with the railroad to retain proof of that service. FRA believes
these additional requirements will ensure that clearer and more
detailed decisions are issued. In turn, clearer and more detailed
decisions will allow a conductor to understand exactly why his or her
certification was revoked and will allow the Operating Crew Review
Board to have a more detailed understanding of the case if it is asked
to review the revocation decision pursuant to subpart E of this rule.
    Paragraph (g) requires a railroad to revoke an employee's conductor
certification if it discovers that another railroad has revoked that
person's conductor certification. The hearing requirement in this rule
is satisfied when any single railroad holds a revocation hearing.
    Paragraph (h) credits the period of certificate suspension prior to
the commencement of a hearing required under this section towards
satisfying any applicable revocation period imposed in accordance with
the provisions of Sec.  242.405.
    Paragraph (i) provides two specific defenses for railroad
supervisors and hearing officers to consider when deciding whether to
suspend or revoke a person's certificate due to an alleged revocable
event. Pursuant to paragraph (i), either defense will have to be proven
by sufficient evidence. Paragraph (i)(1) of this section provides that
a person's certificate will not be revoked when there is sufficient
evidence of an intervening cause that prevented or materially impaired
the person's ability to comply. For example, a railroad should consider
assertions that a conductor in the operating cab failed to take
appropriate action to prevent the engineer from failing to control the
locomotive in accordance with a signal indication that requires a
complete stop before passing it because of defective equipment. Similar
to the defense of defective equipment, the actions of other people
could sometimes be an intervening cause. For instance, a dispatcher or
a train crew member could relay incorrect information to the conductor
who reasonably relied on it in causing a prohibited train movement.
Conductors and railroad managers should note that not all equipment
failures or errors caused by others will serve to absolve the person
from certification action under this rule. The factual issues of each
circumstance will have to be analyzed on a case-by-case basis. For
example, a broken speedometer would not be an intervening factor in a
violation of Sec.  242.403(e)(3) (failure to perform certain required
brake tests).
    Paragraph (i)(2) of this section provides a railroad with the
discretion necessary to decide not to revoke a conductor's
certification for an event that violates Sec.  242.403(e)(1) through
(e)(11) under certain limited circumstances. FRA promulgated the
discretionary provision allowing a railroad to decide not to revoke
when the incident ``was of a minimal nature and had no direct or
potential effect on rail safety'' with the express understanding that
some railroads would exercise the discretion and others would not. The
decision of whether an incident meets that criteria may often be
subject to different interpretations. For that reason, FRA is requiring
that for each instance that a railroad chooses to exercise this
discretion, the railroad must record its actions. See 49 CFR
242.407(j). Unless a railroad fails to record its actions or acts in
bad faith, FRA will not take enforcement action even if FRA believes
the railroad could have revoked the certification.
    Paragraph (i)(2) does not permit a railroad to use its discretion
to dismiss violations indiscriminately. FRA will only permit railroads
to excuse violations when two criteria are met. First, the violation
would have to be of a minimal nature; for example, on high speed track
at the bottom of a steep grade, the engineer communicates to the
conductor, who is in the cab, that the engineer knows the correct speed
limit on a portion of restricted track without requiring the conductor
to say anything about speed, but the front of the lead unit in a four
unit consist hauling 100 cars enters a speed restriction at 10 miles
per hour over speed while the third unit and the balance of the train
enters the speed restriction at the proper speed, and maintains that
speed until the entire train clears the speed restriction. If a
railroad is willing to consider mitigating circumstances, it would need
to consider whether the violation was truly of a minimal nature. Other
suggestions of the types of incidents that a railroad may find to be of
a minimal nature under certain circumstances include:

     A train is required to reduce speed past a signal and most
of the train gets by the signal at a faster speed but the back of the
train does get below 10 MPH above the maximum authorized speed;
     During an unannounced operating rules compliance test, a
train gets by a flag, banner, lantern or other non-fixed stop signal
that requires a complete stop before passing it for a short distance.
The test is conducted according to the railroad's 49 CFR 217.9
operational testing program with sufficient safeguards in place.
Although a violation occurred, it may be deemed minimal in nature since
there may be no direct or potential effect on rail safety; or
     A train occupies main track or a segment of main track
without authority but the lack of authority or mistake is corrected by
the crewmembers and no actual harm is caused by the mistake. For
example, the conductor contacts the dispatcher to roll up or obtain new
authority. During the radio conversation, the wrong milepost or train
number is given and the train is no longer on track for which it
previously had authority. After that radio conversation, the crew
realizes the error and successfully contacts the dispatcher to correct
it.
    In contrast, a violation could not be considered of a minimal
nature if a conductor fundamentally violates the operating rules. For
example, if a conductor fails to perform or have knowledge that a
required brake test was performed, even if the train was only traveling
a short distance, then the event may not be considered of a minimal
nature. In situations where the rule had been fundamentally violated, a
railroad would not have the discretion to excuse the violation.
    Second, for paragraph (i)(2) to apply, sufficient evidence must be
presented to prove that the violation did not have either a direct or
potential effect on rail safety. That defense would certainly not apply
to a violation that actually caused a collision or injury because that
would be a direct effect on rail safety. It would also not apply to a
violation that, given the factual circumstances surrounding the
violation, could have resulted in a collision or injury because that
would be a potential effect on rail safety. An example illustrating the
term ``minimal nature'' involves a situation where a train has the
first two locomotives enter a speed restriction too fast, yet the
balance of the train is in compliance with the speed restriction. The
train in this example is not endangering other trains because it had
the authority to travel on that track at a particular speed. Thus, the
railroad could find that there was no direct or potential effect on
rail safety caused by the violation.
    In contrast, if a train fails to stop short of a banner, which is
acting as a signal requiring a complete stop before passing it, during
a locomotive engineer efficiency test, the passing of a banner might
have no direct effect on rail safety but it has a potential effect
since a banner is simulating a railroad car or another train.
Meanwhile, there would be a difference between passing a banner versus
making an incidental touching of the banner. If a locomotive or train
barely touches a banner so that the locomotive or train does not run
over the banner, break the banner, or cause the banner to fall down,
that incidental touching could be considered a minimal nature violation
that does not have any direct or potential effect on rail safety. This
is because such an incidental touching is not likely to cause damage to
equipment or injuries to crew members even if the banner was another
train. Although it is arguable that if the banner were a person the
touching could be fatal, FRA is willing to allow railroads the
discretion to consider this type of scenario in the context of excusing
a violation pursuant to paragraph (i)(2). Of course, if the banner is
in fact a person in the manner described in the example, the railroad
would not have the discretion to apply paragraph (i)(2).
    Similarly, if a train has received oral and written authority to
occupy a segment of main track, the oral authority refers to the
correct train number but refers to the wrong locomotive because someone
transposed the numbers, the conductor's violation in not catching this
error before entering the track without proper authority could be
considered of a minimal nature with no direct or potential effect on
rail safety. Since the railroad would be aware of the whereabouts of
this train, the additional risk to safety of this paperwork mistake may
practically be zero. Under the same scenario, where there are no other
trains or equipment operating within the designated limits, there may
be no potential effect on rail safety as well as no direct effect.
    Paragraph (j) of this section requires railroads to keep records of
those violations in which they must not or elect not to revoke a
conductor's certificate pursuant to paragraph (i) of this section.
Paragraph (j)(1) requires railroads to keep records even when they
decide not to suspend a conductor's certificate due to a determination
pursuant to paragraph (i). Paragraph (j)(2) requires railroads to keep
records even when they make their determination prior to the convening
of the hearing held pursuant to Sec.  242.407.
    Paragraph (k) addresses concerns that problems could arise if FRA
disagrees with a railroad's decision not to suspend a conductor's
certificate for an alleged misconduct event pursuant to Sec.
242.403(e). As long as a railroad makes a good faith determination
after a reasonable inquiry, the railroad will have immunity from civil
enforcement for making what the agency believes to be an incorrect
determination. However, railroads should note that if they do not
conduct a reasonable inquiry or act in good faith, they could be
subject to civil penalty enforcement under this rule. In addition, even
if a railroad does not take what FRA considers appropriate revocation
action, FRA could still take enforcement action against an individual
responsible for the non-compliance by assessing a civil penalty against
the individual or issuing an order prohibiting an individual from
performing safety-sensitive functions in the rail industry for a
specified period pursuant to part 209, subpart D.

Subpart F--Dispute Resolution Procedures

    This subpart details the opportunities and procedures for a person
to appeal a decision by a railroad to deny certification or
recertification or to revoke a conductor's certification. As stated in
the RSAC Task Statement, one of the issues requiring specific report
from the Working Group was ``[s]tarting with the locomotive engineer
certification model, what opportunities are available for simplifying
appeals from decertification decisions of the railroads?'' Since its
first meeting in July of 2009, the Working Group devoted a considerable
amount of time to researching, discussing and proposing ideas to
simplify the appeals process. While the appeals process provided in
this subpart essentially follows the appeals process in part 240, some
important modifications have been made. Those modifications are
discussed below.
Section 242.501 Review Board Established
    This section, derived from 49 CFR 240.401, provides that a person
who is denied certification or recertification or has his or her
conductor certification revoked may petition FRA to review the
railroad's decision. Pursuant to this section, FRA delegates initial
responsibility for adjudicating such disputes to an internal FRA
Operating Crew Review Board (OCRB). Although creation of the OCRB will
require issuance of an internal FRA order, 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.\7\ As mentioned above, FRA expects
that, if and when conforming changes are made to part 240, all
references to the LERB in part 240 will be changed to the OCRB and the
OCRB will handle both conductor and locomotive engineer disputes.
---------------------------------------------------------------------------

    \7\ The number of board members will be provided by FRA order.
---------------------------------------------------------------------------

Section 242.503 Petition Requirements
    This section, derived from 49 CFR 240.403, provides the
requirements for obtaining FRA review of a railroad's decision to deny
certification, deny recertification, or revoke certification. The
requirements contained in paragraphs (a) through (c) include the need
to seek review in a timely fashion once the adverse decision is
rendered by the railroad. Interested parties should note that the
``petitioner'' referred to paragraph (b) of this section is the person
who had his or her certificate revoked, not an employee representative
who may respond on petitioner's behalf. If the petitioner is
represented by someone, the petitioner is encouraged to also provide
the representative's name, mailing address, daytime telephone number,
and email address (if available) in the petition.
    Paragraph (b)(2) revises the requirements proposed in the NPRM and
differs from Sec.  240.403 in that petitions will be submitted to the
Docket Clerk of DOT rather than FRA's Docket Clerk. With this 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. In addition, filings in OCRB proceedings will
become more accessible because they will be posted on
www.regulations.gov. Interested parties should note that anyone is able
to search the electronic form of all filings received into any of DOT's
dockets by the name of the individual submitting the filing (or signing
the filing, if submitted on behalf of an association, business, labor
union, etc.). You may review DOT's complete Privacy Act Statement
published in the Federal Register on April 11, 2000 (Volume 65, Number
70, Pages 19477-78), or you may visit http://www.regulations.gov/#!privacyNotice.
    Paragraph (b)(3) requires petitioners to provide certain
information, including an email address if available. Petitioners
should note that if FRA receives an email address, it expects to
conduct any or all correspondence regarding the petition or case by
email.
    Paragraph (b)(5) of this section requires a petitioner to
supplement his or her petition with ``a copy of all written documents
in the petitioner's possession or reasonably available to the
petitioner that document'' the railroad's decision. Paragraph (b)(7) of
this section which provides that, if requested by the OCRB, a
petitioner must supplement the petition with ``a copy of the
information under 49 CFR 40.329 that laboratories, medical review
officers, and other service agents are required to release to
employees.'' That paragraph also provides that a petitioner must
provide a written explanation in response to an OCRB request if written
documents that should be reasonably available to the petitioner are not
supplied. The requirements in paragraph (b)(7) were added to clarify a
petitioner's responsibilities, if requested by the OCRB, with respect
to a petition seeking review of a railroad decision which is based on a
failure to comply with any drug or alcohol related rules or a return-
to-service agreement.
    Paragraph (c) of this section gives the OCRB discretion to grant a
request for additional time that is made prior to the expiration of the
period originally prescribed. As the OCRB can exercise its discretion
under this rule only for ``cause shown,'' a party will have to
demonstrate some justification for the OCRB to grant an extension of
time. Similarly, if the deadline in paragraph (c) is completely missed,
the movant, under paragraph (c)(2), would have to allege facts
constituting ``excusable neglect'' and the mere assertion of excusable
neglect, unsupported by facts, would be insufficient. Excusable neglect
requires a demonstration of good faith on the part of the party seeking
an extension of time and some reasonable basis for noncompliance within
the time frame specified in the rules. Absent a showing along these
lines, relief will be denied.
    Paragraph (d) of this section explains that a decision by the OCRB
to deny a petition for untimeliness or lack of compliance with the
requirements of Sec.  242.503 may be appealed directly to the
Administrator. Ordinarily, an appeal to the Administrator can occur
only after a case has been heard by FRA's hearing officer.
    One difference between this section and Sec.  240.403 is the time
by which a petition seeking review of a railroad's decision would have
to be filed. Part 240 contains different times depending on whether a
person is seeking review of a revocation decision (120 days) or a
denial decision (180 days). This section, however, provides that a
petition seeking review of a revocation or denial decision will have to
be filed with FRA within 120 days of the date the decision was served
on the petitioner. Another difference between this section and Sec.
240.403 is that, under this section, the OCRB's discretion to consider
untimely filed petitions is now extended to petitions seeking review of
a railroad's decision to deny certification or recertification.
Section 242.505 Processing Certification Review Petitions
    This section, derived from 49 CFR 240.405, details how petitions
for review will be handled by FRA. Upon receipt of the petition, FRA
will provide the person written acknowledgement of the filing. The
railroad will then have 60 days from its date of receipt to respond, if
it desires to comment on the matter. If the railroad comments on the
matter, any material will have to be submitted in writing and a copy
served on the petitioner and petitioner's representative, if any. As
discussed in the section-by-section analysis of Sec.  242.503, OCRB
petitions will be accessible on www.regulations.gov. Therefore, FRA
will no longer automatically provide copies of the petitions to
railroads. The railroads will be responsible for accessing the
petitions online.
    Paragraph (d)(1) has been revised from the NPRM to require
railroads to provide FRA with an email address if available. Railroads
should note that if FRA receives an email address, it expects to
conduct any and all correspondence regarding a petition or case by
email.
    Paragraph (d)(3) has revised the requirements proposed in the NPRM
and differs from Sec.  240.405 in that railroad responses to a petition
will be submitted to the Docket Clerk of DOT rather than FRA's Docket
Clerk. 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. In addition, filings in OCRB proceedings will become more
accessible because they will be posted on www.regulations.gov.
Interested parties should note that anyone is able to search the
electronic form of all filings received into any of DOT's dockets by
the name of the individual submitting the filing (or signing the
filing, if submitted on behalf of an association, business, labor
union, etc.). You may review DOT's complete Privacy Act Statement
published in the

Federal Register on April 11, 2000 (Volume 65, Number 70, Pages 19477-
78), or you may visit http://www.regulations.gov/#!privacyNotice.
    Based on the written record, FRA staff will analyze the railroad
decision and make a recommendation to the OCRB. The ORCB will determine
whether the denial or revocation of certification was improper under
the regulation. As indicated in paragraph (a), it will be FRA's goal to
issue OCRB decisions within 180 days from the date FRA has received all
the information from the parties. FRA's ability to achieve that goal
will depend on the number of petitions filed and agency resources
available to handle those petitions in any given period. Further, that
goal will depend on whether FRA receives all available evidence. If the
petition and/or railroad's response do not contain all available
evidence, including but not limited to, the complete hearing transcript
with exhibits and color copies of all photographic evidence (if
available), then it is FRA's intention that the OCRB will render a
decision within 180 days from the date that all available evidence is
received.
    While the handling of petitions by FRA will be the same under Sec.
240.405 and this section, this section, unlike Sec.  240.405, includes,
in paragraphs (f)-(j), the process and standards of review that the
OCRB will utilize when considering a petition. Those standards are the
same standards used by the LERB to review locomotive engineer
petitions. The standards were added to this rule to address a concern
of some members of the Working Group that railroads and petitioners did
not know what standard of review the OCRB would use in considering
petitions.
    Like the LERB, the OCRB will only determine whether a railroad's
decision was based on an incorrect determination. If a railroad
conducted hearing was so unfair that it causes a petitioner substantial
harm, the OCRB could grant the petition; however, the OCRB's review is
not intended to correct all procedural wrongs committed by a railroad.
Also like the LERB, the decision-making power of the OCRB is limited to
approving the railroad decision, overturning the railroad decision, or
returning the case to the railroad for additional fact finding. The
OCRB is not empowered to mitigate the consequences of a railroad
decision, if the decision was valid under this regulation. The OCRB is
only empowered to make determinations concerning qualifications under
this regulation. The contractual consequences, if any, of these
determinations would have to be resolved under dispute resolution
mechanisms that do not directly involve FRA. For example, FRA cannot
order a railroad to alter its seniority rosters or make an award of
back pay to accommodate a finding that a railroad wrongfully denied
certification.
    Interested parties should note that promulgation of this rule
necessarily requires the OCRB and LERB to determine whether a railroad
revoked the correct certificate of a person who holds both an engineer
and conductor certification. For example, in a case in which a railroad
finds that a person, who holds both a conductor and engineer
certification, violates a railroad rule involving a failure to comply
with the provisions of 49 CFR 218.99 (i.e., a part 218, subpart F
violation) but revoked that person's engineer certification, the OCRB,
if petitioned, would have to find that the revocation decision was
improper because, currently, an engineer cannot have his or her part
240 certification revoked for violations of part 218, subpart F.
    Paragraph (l) of this section requires the OCRB's written decision
to be served on the petitioner, including the petitioner's
representative, if any, and the railroad. Moreover, the paragraph does
not contain a requirement that every decision include findings of fact
which may not be appropriate or relevant to some decisions.
Section 242.507 Request for a Hearing
    This section, which parallels 49 CFR 240.407, provides that a party
who has been adversely affected by an OCRB decision will have the
opportunity to request an administrative proceeding as prescribed in
Sec.  242.509. In addition, this section details the requirements for
requesting such a proceeding.
    Paragraph (c) of this section provides that a party who fails to
request an administrative hearing in a timely fashion will lose the
right to further administrative review and the OCRB's decision will
constitute final agency action.
    As noted in paragraph (e) of this section, FRA will not schedule
hearings or set an agenda for the proceeding. FRA will merely arrange
for the appointment of a presiding officer and it will be the presiding
officer's duty to schedule a hearing for the earliest practicable date.
Section 242.509 Hearings
    This section, which parallels 49 CFR 240.409, describes the
authority of the presiding officer to conduct an administrative hearing
and the procedures by which the administrative hearing will be
governed. Like Sec.  240.409, the proceeding provided by this section
will afford an aggrieved party a de novo hearing at which the relevant
facts will be adduced and the correct application of this part will be
determined.
    In instances when the issues are purely legal, or when only limited
factual matters are necessary to determine issues, paragraph (c) of
this section provides that the presiding officer may determine the
issues following an evidentiary hearing only on the disputed factual
issues, if any. The presiding officer can therefore grant full or
partial summary judgment.
    Paragraph (d) of this section provides that the presiding officer
may authorize discovery. It also authorizes the presiding officer to
sanction willful noncompliance with permissible discovery requests.
Paragraph (e) requires that documents in the nature of pleadings be
signed. This signature will constitute a certification of factual and
legal good faith. Paragraph (f) provides the requirement for service
and for certificates of service. The presiding officer's authority to
address noncompliance with a law or directive is expressed in paragraph
(g). This provision is intended to ensure that the presiding officer
will have the authority to control the proceeding so that an efficient
and fair hearing will result.
    Paragraph (h) states the right of each party to appear and be
represented. Paragraph (i) protects witnesses by ensuring their right
of representation and their right to have their representative question
them. Paragraph (j) allows any party to request consolidation or
separation of hearings of two or more petitions when to do so would be
appropriate under established jurisprudential standards. This option is
intended to allow more efficient determination of petitions in cases
where a joint hearing would be advantageous.
    Under paragraph (k), the presiding officer could, with certain
exceptions, extend periods for action required in the proceedings,
provided substantial prejudice would not result to a party. The
authority to deny a request for extension submitted after the
expiration of the period involved shows the preference for use of this
authority as a tool to alleviate unforeseen or unnecessary burdens, and
not as a remedy for inexcusable neglect.
    Paragraph (l) establishes a motion as the appropriate method for
requesting action by the presiding officer. This paragraph also
provides the form of motions and the response period for written
motions.
    Paragraph (m) provides rules for the mode of hearing and record

maintenance, including requirements for sworn testimony, verbatim
record (including oral testimony and argument), and inclusion of
evidence or substitutes therefor in the record. Paragraph (n) directs
the presiding officer to employ specific rules of evidence as
guidelines for the introduction of evidence and permits the presiding
officer to determine what evidence may be received. Further, paragraph
(o) provides additional powers the presiding officer may exercise
during the proceedings.
    Paragraph (p) provides that the petitioner before the OCRB, the
railroad that took the certification action at issue, and the FRA are
mandatory parties to the administrative proceeding. Paragraph (q)
requires the party requesting the hearing to carry the burden of proof.
The actions of the conductor and the railroad will be at issue in the
hearing--not the actions of the OCRB. Thus, it is appropriate that the
conductor and the railroad fill the roles of petitioner and respondent
for the hearing. In addition, the burden each party will have if they
were the hearing petitioner is articulated in paragraph (q).
    Paragraph (r) provides that FRA will be a mandatory party in the
proceeding. In all proceedings, FRA will initially be considered a
respondent. If, based on evidence acquired after the filing of a
petition for hearing, FRA were to conclude that the public interest in
safety was more closely aligned with the position of the petitioner
than the respondent, FRA can request that the hearing officer exercise
his or her inherent authority to realign parties for good cause shown.
However, FRA anticipates that such a situation would occur rarely, if
ever. Since FRA could realign itself, FRA wants to caution future
parties that FRA represents the interests of the government; hence,
parties and their representatives will have to be careful to avoid
ethical dilemmas that might arise due to FRA's ability to realign
itself.
    Paragraphs (s) through (u) provide the presiding officer with
authority to close the record and issue a decision.
Section 242.511 Appeals
    This section, derived from 49 CFR 240.411, permits any party
aggrieved by the presiding officer's decision to file an appeal with
the FRA Administrator. Paragraph (a) provides that if no appeal is
timely filed, the presiding officer's decision will constitute final
agency action.
    Paragraphs (b) through (f) allow for a reply to the appeal and
describe the Administrator's authority to conduct the proceedings.
Interested parties should note that the phrase ``except where the terms
of the Administrator's decision (for example, remanding a case to the
presiding officer) show that the parties' administrative remedies have
not been exhausted'' in paragraph (e) of this section is included in
this rule so that parties understand that a remand, or other
intermediate decision, will not constitute final agency action. The
inclusion of this phrase is made in deference to those parties that are
not represented by an attorney or who might otherwise be confused as to
whether any action taken by the Administrator should be considered
final agency action.
Appendices
    FRA has included four appendices with this rule. Appendix A
contains a civil penalty schedule similar to those that FRA has issued
for all of its existing rules.
    Appendix B provides both the organizational requirements and a
narrative description of the submission required under Sec. Sec.
242.101 and 242.103. FRA is not requiring railroad submissions to be
made on a Federally mandated form. Instead, FRA is prescribing only
minimal constraints on the organization and manner of presenting
information. FRA requires that the submission be divided into six
sections. FRA requires that each section deal with a different subject
matter and that the railroad identify the appropriate person to be
contacted in the event FRA needs to discuss some aspect of the
railroad's program. While Appendix B is derived from Appendix B to part
240, one major difference is that Appendix B of part 242 makes clear
that, pursuant to Sec.  242.103, a railroad must serve a copy of its
submission on the president of each labor organization that represents
the railroad's employees subject to part 242.
    Appendix B provides the railroads with the option to file their
program submissions electronically. FRA intends to create a secure
document submission site and will need basic information from each
company before setting up the user's account. In order to provide
secure access, information regarding the points of contact is required.
It is anticipated that FRA will be able to approve or disapprove all or
part of a program and generate automated notifications by email to a
railroad's points of contact. Thus, FRA wants each point of contact to
understand that by providing any email addresses, the railroad is
consenting to receive approval and disapproval notices from FRA by
email. Railroads that allow notice from FRA by email would gain the
benefit of receiving such notices quickly and efficiently.
    Those railroads that choose to submit printed materials to FRA must
deliver them directly to the specified address. Some railroads may
choose to deliver a CD, DVD, or other electronic storage format to FRA
rather than requesting access to upload the documents directly to the
secure electronic database. Although that will be an acceptable method
of submission, FRA would encourage each railroad to utilize the
electronic submission capabilities of the system. Of course, if FRA
does not have the capability to read the type of electronic storage
format sent, FRA can reject the submission.
    FRA may be able to develop its secure document submission site so
that confidential materials are identified and not shared with the
general public. However, FRA does not expect the information in a
program to be of such a confidential or proprietary nature,
particularly since each railroad is required to share the program
submission, resubmission, or material modification with the president
of each labor organization that represents the railroad's certified
conductors. See 242.103(c). Accordingly, FRA does not at this time
believe it is necessary to develop a document submission system which
addresses confidential materials at this time.
    Appendix C, derived from Appendix C to part 240, provides a
narrative discussion of the procedures that a person seeking
certification or recertification will have to follow to furnish a
railroad with information concerning his or her motor vehicle driving
record.
    Appendix D, derived from Appendix F to part 240, provides a
narrative discussion of the procedures that a railroad is required to
employ in administering the vision and hearing requirements of Sec.
242.117. The main issue addressed in this Appendix is the acceptable
test methods for determining whether a person has the ability to
recognize and distinguish among the colors used as signals in the
railroad industry.
    Appendix E provides a table describing the application of revocable
events. The table lists: The revocation periods; whether a person would
be eligible for a reduction of the revocation period; and whether a
person who is certified as both a conductor and an engineer could work
in either position following a certification revocation.

VI. Regulatory Impact and Notices

A. Executive Order 12866 and DOT Regulatory Policies and Procedures

    This final rule has been evaluated in accordance with existing
policies and procedures and determined to be non-significant under both
Executive Order 12866 and DOT policies and procedures. See 44 FR 11034;
February 26, 1979. FRA has prepared and placed in the docket a
regulatory impact analysis addressing the economic impact of this final
rule.
    As part of the regulatory impact analysis, FRA has assessed
quantitative measurements of the cost streams expected to result from
the adoption of this final rule. For the twenty-year period analyzed,
the estimated quantified cost imposed on industry totals $86.3 million
with a present value (PV, 7%) of $43.2 million. In addition, FRA would
incur administrative costs totaling about $15.2 million, with a PV of
$7.6 million. Although there are numerous costs or burdens in this
final rule, the requirements that are expected to impose the largest
burdens relate to the initial and periodic training, knowledge testing,
and operational testing. In addition, the dispute resolution process
associated with the denial and revocation of conductor certification
would be a new requirement that would impose burdens on the railroad
industry and FRA.
    As part of the regulatory impact analysis, FRA has explained what
the likely benefits for this final rule would be, and provided
numerical assessments of the potential value of such benefits. The
final rule is expected to improve railroad safety by ensuring that all
trains have certified and trained conductors. Thus, in general, the
final rule should decrease train accidents and incidents and associated
casualties and damages. FRA also anticipates that this regulation will
decrease switching operation casualties and human factor-caused train
crew injuries. FRA believes the value of the anticipated safety
benefits will meet or exceed the cost of implementing the final rule.
    The table below presents the cost associated with implementation of
the final rule.
[GRAPHIC] [TIFF OMITTED] TR09NO11.000

B. Regulatory Flexibility Act and Executive Order 13272

    To ensure potential impacts of rules on small entities are properly
considered, FRA developed this final rule in accordance with Executive
Order 13272 (``Proper Consideration of Small Entities in Agency
Rulemaking'') and DOT's procedures and policies to promote compliance
with the Regulatory Flexibility Act (5 U.S.C. 601 et seq.).
    The Regulatory Flexibility Act requires an agency to review
regulations to assess their impact on small entities. An agency must
conduct a regulatory flexibility analysis unless it determines and
certifies that a rule is not expected to have a significant impact on a
substantial number of small entities.
    As discussed earlier, FRA has initiated this rulemaking as a
requirement of the Rail Safety Improvement Act of 2008. This final rule
enhances the safety of railroad operations by ensuring that only those
persons who meet minimum Federal safety standards serve as conductors,
to reduce the rate and number of accidents and incidents, and to
improve railroad safety.
    Pursuant to the Regulatory Flexibility Act (5 U.S.C. 605(b)), FRA
certifies that this final rule would not have a significant impact on a
substantial number of small entities. Although a substantial number of
small railroads would be affected by this final rule, few, if any,
would be significantly impacted. FRA invited all interested parties to
submit data and information regarding the potential economic impact
that would result from the adoption of the final rule. FRA received one
comment pertinent to this (see below) and considered it in making the
determination for certification of this final rule.
1. Description of Regulated Entities and Impacts
    The ``universe'' of the entities to be considered generally
includes only those small entities that are reasonably expected to be
directly regulated by this action. For this rulemaking, there is one
type of small entity that is potentially affected by this rulemaking:
Small railroads.
    FRA estimates that approximately 5 contractors will be developing
conductor certification programs and contracting conductors to
railroads. The cost associated with certifying conductors is a cost
that these contractors will pass on to the railroads contracting their
services.
    ``Small entity'' is defined in 5 U.S.C. 601 as having the same
meaning as ``small business concern'' under Section 3 of the Small