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

H. Unfunded Mandates Reform Act of 1995

    Under section 201 of the Unfunded Mandates Reform Act of 1995,\44\
each Federal agency ``shall, unless otherwise prohibited by law, assess
the effects of Federal regulatory actions on State, local, and tribal
governments, and the private sector (other than to the extent that such
regulations incorporate requirements specifically set forth in law).''
Section 202 of the Act (2 U.S.C. 1532) further requires that ``before
promulgating any general notice of proposed rulemaking that is likely
to result in the promulgation of any rule that includes any Federal
mandate that may result in expenditure by State, local, and tribal
governments, in the aggregate, or by the private sector, of
$100,000,000 or more (adjusted annually for inflation) in any 1 year,
and before promulgating any final rule for which a general notice of
proposed rulemaking was published, the agency shall prepare a written
statement'' detailing the effect on State, local, and tribal
governments and the private sector. This final rule will not result in
the expenditure, in the aggregate, of $100,000,000 or more (as adjusted
annually for inflation) in in any one year, and thus preparation of
such a statement is not required.
---------------------------------------------------------------------------

    \44\ Public Law 104-4, 2 U.S.C. 1531.
---------------------------------------------------------------------------

I. Energy Impact

    Executive Order 13211 requires Federal agencies to prepare a
Statement of Energy Effects for any ``significant energy action.'' \45\
FRA has evaluated this final rule under Executive Order 13211 and
determined that this rule is not a ``significant energy action'' within
the meaning of Executive Order 13211.
---------------------------------------------------------------------------

    \45\ 66 FR 28355 (May 22, 2001).
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    Executive Order 13783 requires Federal agencies to review
regulations to determine whether they potentially burden the
development or use of domestically produced energy resources, with
particular attention to oil, natural gas, coal, and nuclear energy
resources.\46\ FRA has evaluated this final rule under Executive Order
13783 and determined that this rule will not burden the development or
use of domestically produced energy resources.
---------------------------------------------------------------------------

    \46\ 82 FR 16093 (Mar. 31, 2017).
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List of Subjects

49 CFR Part 219

    Alcohol abuse, Drug abuse, Drug testing, Penalties, Railroad
safety, Reporting and recordkeeping requirements, Safety,
Transportation.

49 CFR Part 240

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

49 CFR Part 242

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

The Final Rule

    For the reasons discussed in the preamble, FRA amends parts 219,
240, and 242 of chapter II, subtitle B of title 49 of the Code of
Federal Regulations as follows:

PART 219--CONTROL OF ALCOHOL AND DRUG USE

0
1. The authority citation for part 219 continues to read as follows:

    Authority:  49 U.S.C. 20103, 20107, 20140, 21301, 21304, 21311;
28 U.S.C. 2461, note; Sec. 412, Div. A, Pub. L. 110-432, 122 Stat.
4889 (49 U.S.C. 20140, note) and 49 CFR 1.89.

0
2. Section 219.25 is amended by revising paragraph (b) to read as
follows:

Sec.  219.25   Previous employer drug and alcohol checks.

* * * * *
    (b) When determining whether a person may become or remain
certified as a locomotive engineer or a conductor, a railroad must
comply with the requirements in Sec.  240.119(e) (for engineers) or
Sec.  242.115(e) (for conductors) of this chapter regarding the
consideration of Federal alcohol and drug violations that occurred
within a period of 60 consecutive months before the review of the
person's records.

0
3. Section 219.1003 is amended by revising paragraph (j) to read as
follows:

Sec.  219.1003   Referral program conditions.

* * * * *
    (j) Locomotive engineers and conductors. Consistent with Sec. Sec.
240.119(g) and 242.115(g) of this chapter, for a certified locomotive
engineer, certified conductor, or a candidate for engineer or conductor
certification, the referral program must state that confidentiality is
waived (to the extent the railroad receives from a DAC official notice
of the active drug abuse disorder and suspends or revokes the
certification, as appropriate) if the employee at any time refuses to
cooperate in a recommended course of counseling or treatment.
* * * * *

PART 240--QUALIFICATION AND CERTIFICATION OF LOCOMOTIVE ENGINEERS

0
4. The authority citation for part 240 is revised to read as follows:

    Authority:  44 U.S.C. 3501 et seq.; 49 U.S.C. 20103, 20107,
20135, 20138, 20162, 20163, 21301, 21304, 21311; 28 U.S.C. 2461,
note; and 49 CFR 1.89.

0
5. Section 240.1 is amended by revising paragraph (c) to read as
follows:

Sec.  240.1   Purpose and scope.

* * * * *
    (c) The locomotive engineer certification requirements prescribed
in this part apply to any person who meets the definition of locomotive
engineer contained in Sec.  240.7, regardless of the fact that the
person may have a job classification title other than that of
locomotive engineer.

0
6. Section 240.3 is revised to read as follows:

Sec.  240.3   Application and responsibility for compliance.

    (a) This part applies to all railroads, except:
    (1) Railroads that operate only on track inside an installation
that is not part of the general railroad system of transportation
(i.e., plant railroads, as defined in Sec.  240.7);
    (2) Tourist, scenic, historic, or excursion operations that are not
part of the general railroad system of transportation as defined in
Sec.  240.7; or
    (3) Rapid transit operations in an urban area that are not
connected to the general railroad system of transportation.
    (b) Although the duties imposed by this part are generally stated
in terms of the duty of a railroad, each person, including a contractor
for a railroad, who performs any function covered by this part must
perform that function in accordance with this part.

0
7. Section 240.5 is revised to read as follows:

Sec.  240.5   Effect and construction.

    (a) FRA does not intend, by use of the term locomotive engineer in
this part, to alter the terms, conditions, or interpretation of
existing collective bargaining agreements that employ other job
classification titles when identifying a person authorized by a
railroad to operate a locomotive.
    (b) FRA does not intend by issuance of these regulations to alter
the authority of a railroad to initiate disciplinary sanctions against
its employees, including managers and supervisors, in the normal and
customary manner, including those contained in its collective
bargaining agreements.
    (c) Except as provided in Sec.  240.308, nothing in this part shall
be construed to create or prohibit an eligibility or entitlement to
employment in other service for the railroad as a result of denial,
suspension, or revocation of certification under this part.
    (d) Nothing in this part shall be deemed to abridge any additional
procedural rights or remedies not inconsistent with this part that are
available to the employee under a collective bargaining agreement, the
Railway Labor Act, or (with respect to employment at will) at common
law with respect to removal from service or other adverse action taken
as a consequence of this part.

0
8. Section 240.7 is amended by:
0
a. Adding in alphabetical order definitions for ``Conductor'' and
``Drug and alcohol counselor'';
0
b. Removing the definition of ``EAP counselor'';
0
c. Revising the definitions of ``File, filed and filing'' and ``FRA
Representative'';
0
d. Adding in alphabetical order a definition for ``Ineligible or
ineligibility'';
0
e. Revising the definitions of ``Instructor engineer'' and ``Medical
examiner'';
0
f. Removing the definition of ``Newly hired employee'';
0
g. Adding in alphabetical order definitions for ``On-the-job training
(OJT),'' ``Physical characteristics,'' and ``Plant railroad'';
0
h. Revising the definitions of ``Qualified'' and ``Railroad rolling
stock'';
0
i. Adding in alphabetical order a definition for ``Serve or service'';
0
j. Removing the definition of ``Service'';
0
k. Revising the definition of ``Substance abuse disorder''; and
0
l. Adding in alphabetical order definitions for ``Substance Abuse
Professional,'' ``Territorial qualifications,'' and ``Tourist, scenic,
historic, or excursion operations that are not part of the general
system of transportation.''
    The additions and revisions read as follows:

Sec.  240.7   Definitions.

* * * * *
    Conductor means the crewmember in charge of a ``train or yard
crew'' as defined in part 218 of this chapter.
* * * * *

    Drug and alcohol counselor (DAC) means a person who meets the
credentialing and qualification requirements of a ``Substance Abuse
Professional'' (SAP), as provided in 49 CFR part 40.
* * * * *
    File, filed and filing mean submission of a document under this
part on the date when the DOT Docket Clerk or FRA receives it, or if
sent by mail, the date mailing was completed.
* * * * *
    FRA Representative means the FRA Associate Administrator for
Railroad Safety/Chief Safety Officer and the Associate Administrator's
delegate, including any safety inspector employed by the Federal
Railroad Administration and any qualified State railroad safety
inspector acting under part 212 of this chapter.
    Ineligible or ineligibility means that a person is legally
disqualified from serving as a certified locomotive engineer. The term
covers a number of circumstances in which a person may not serve as a
certified locomotive engineer. Revocation of certification pursuant to
Sec.  240.307 and denial of certification pursuant to Sec.  240.219 are
two examples in which a person would be ineligible to serve as a
certified locomotive engineer. A period of ineligibility may end when a
condition or conditions are met. For example, a period of ineligibility
may end when a person meets the conditions to serve as a certified
locomotive engineer following an alcohol or drug violation pursuant to
Sec.  240.119.
    Instructor engineer, as used in this part:
    (1) Means a person who has demonstrated, pursuant to the railroad's
written program, an adequate knowledge of the subjects under
instruction and, where applicable, has the necessary operating
experience to instruct effectively in the field, and has the following
qualifications:
    (i) Is a certified locomotive engineer under this part; and
    (ii) Has been selected as such by a designated railroad officer, in
concurrence with the designated employee representative, where present,
to teach others proper train handling procedures; or
    (iii) In absence of concurrence provided in paragraph (1)(ii) of
this definition, has a minimum of 12 months service working in the
class of service for which the person is designated to instruct.
    (2) If a railroad does not have designated employee representation,
then a person employed by the railroad need not comply with paragraph
(1)(ii) or (iii) of this definition to be an instructor engineer.
* * * * *
    Medical examiner means a person licensed as a doctor of medicine or
doctor of osteopathy. A medical examiner can be a qualified, full-time
salaried employee of a railroad, a qualified practitioner who contracts
with the railroad on a fee-for-service or other basis, or a qualified
practitioner designated by the railroad to perform functions in
connection with medical evaluations of employees. As used in this rule,
the medical examiner owes a duty to make an honest and fully informed
evaluation of the condition of an employee.
    On-the-job training (OJT) means job training that occurs in the
workplace, i.e., the employee learns the job while doing the job.
* * * * *
    Physical characteristics means the actual track profile of and
physical location for points within a specific yard or route that
affect the movement of a locomotive or train. Physical characteristics
includes both main track physical characteristics (see definition of
``main track'' in this section) and other than main track physical
characteristics.
    Plant railroad means a plant or installation that owns or leases a
locomotive, uses that locomotive to switch cars throughout the plant or
installation, and is moving goods solely for use in the facility's own
industrial processes. The plant or installation could include track
immediately adjacent to the plant or installation if the plant railroad
leases the track from the general system railroad and the lease
provides for (and actual practice entails) the exclusive use of that
trackage by the plant railroad and the general system railroad for
purposes of moving only cars shipped to or from the plant. A plant or
installation that operates a locomotive to switch or move cars for
other entities, even if solely within the confines of the plant or
installation, rather than for its own purposes or industrial processes,
will not be considered a plant railroad because the performance of such
activity makes the operation part of the general railroad system of
transportation.
    Qualified means a person who has successfully completed all
instruction, training and examination programs required by the employer
and the applicable parts of this chapter, and that the person therefore
may reasonably be expected to be proficient on all safety-related tasks
the person is assigned to perform.
* * * * *
    Railroad rolling stock is on-track equipment that is either a
``railroad freight car'' (as defined in Sec.  215.5 of this chapter) or
a ``passenger car'' (as defined in Sec.  238.5 of this chapter).
* * * * *
    Serve or service, in the context of serving documents, has the
meaning given in Rule 5 of the Federal Rules of Civil Procedure as
amended. Similarly, the computation of time provisions in Rule 6 of the
Federal Rules of Civil Procedure as amended are also applicable in this
part. See also the definition of ``filing'' in this section.
* * * * *
    Substance abuse disorder refers to a psychological or physical
dependence on alcohol or a drug, or another identifiable and treatable
mental or physical disorder involving the abuse of alcohol or drugs as
a primary manifestation. A substance abuse disorder is ``active''
within the meaning of this part if the person is currently using
alcohol or other drugs, except under medical supervision consistent
with the restrictions described in Sec.  219.103 of this chapter or has
failed to complete primary treatment successfully or participate in
aftercare successfully as directed by a DAC or SAP.
    Substance Abuse Professional (SAP) means a person who meets the
qualifications of a Substance Abuse Professional, as provided in part
40 of this title.
    Territorial qualifications means possessing the necessary knowledge
concerning a railroad's operating rules and timetable special
instructions, including familiarity with applicable main track and
other than main track physical characteristics of the territory over
which the locomotive or train movement will occur.
    Tourist, scenic, historic, or excursion operations that are not
part of the general railroad system of transportation means a tourist,
scenic, historic, or excursion operation conducted only on track used
exclusively for that purpose (i.e., there is no freight, intercity
passenger, or commuter passenger railroad operation on the track).
* * * * *

0
9. Section 240.11 is amended by revising paragraph (d) to read as
follows:

Sec.  240.11   Penalties and consequences for noncompliance.

* * * * *

    (d) In addition to the enforcement methods referred to in
paragraphs (a), (b), and (c) of this section, FRA may also address
violations of this part by use of the emergency order, compliance
order, and/or injunctive provisions of the Federal rail safety laws.

0
10. Section 240.103 is revised to read as follows:

Sec.  240.103   Approval of design of individual railroad programs by
FRA.

    (a) Each railroad shall submit its written certification program
and a description of how its program conforms to the specific
requirements of this part in accordance with the procedures contained
in appendix B to this part and shall submit this written certification
program for approval at least 60 days before commencing operations. The
primary method for a railroad's submission is by email to
<EMAIL_ADDRESS>For those railroads that are unable to send the
program by email, the program may be sent to the Associate
Administrator for Railroad Safety/Chief Safety Officer, Federal
Railroad Administration, 1200 New Jersey Avenue SE, Washington, DC
20590.
    (b) Each railroad shall:
    (1) Simultaneous with its filing with FRA, provide a copy of the
submission filed pursuant to paragraph (a) of this section, a
resubmission filed pursuant to paragraph (f) of this section, or a
material modification filed pursuant to paragraph (g) of this section
to the president of each labor organization that represents the
railroad's employees subject to this part; and
    (2) Include in its submission filed pursuant to paragraph (a) of
this section, a resubmission filed pursuant to paragraph (f) of this
section, or a material modification filed pursuant to paragraph (g) of
this section a statement affirming that the railroad has provided a
copy to the president of each labor organization that represents the
railroad's employees subject to this part, together with a list of the
names and addresses of persons provided a copy.
    (c) Not later than 45 days from the date of filing a submission
pursuant to paragraph (a) of this section, a resubmission pursuant to
paragraph (f) of this section, or a material modification pursuant to
paragraph (g) of this section, any designated representative of
railroad employees subject to this part may comment on the submission,
resubmission, or material modification.
    (1) Each comment shall set forth specifically the basis upon which
it is made, and contain a concise statement of the interest of the
commenter in the proceeding;
    (2) Each comment shall be submitted by email to
<EMAIL_ADDRESS>or by mail to the Associate Administrator for
Railroad Safety/Chief Safety Officer, FRA, 1200 New Jersey Avenue SE,
Washington, DC 20590; and
    (3) The commenter shall affirm that a copy of the comment was
provided to the railroad.
    (d) The submission required by paragraph (a) of this section shall
state the railroad's election either:
    (1) To accept responsibility for the training of student engineers
and thereby obtain authority for that railroad to certify initially a
person as an engineer in an appropriate class of service, or
    (2) To recertify only engineers previously certified by other
railroads.
    (e) A railroad that elects to accept responsibility for the
training of student engineers shall state in its submission whether it
will conduct the training program or employ a training program
conducted by some other entity on its behalf but adopted and ratified
by that railroad.
    (f) A railroad's program is considered approved and may be
implemented 30 days after the required filing date (or the actual
filing date) unless the Administrator notifies the railroad in writing
that the program does not conform to the criteria set forth in this
part.
    (1) If the Administrator determines that the program does not
conform, the Administrator will inform the railroad of the specific
deficiencies.
    (2) If the Administrator informs the railroad of deficiencies more
than 30 days after the initial filing date, the original program may
remain in effect until 30 days after approval of the revised program is
received so long as the railroad has complied with the requirements of
paragraph (g) of this section.
    (g) A railroad shall resubmit its program within 30 days after the
date of such notice of deficiencies. A failure to resubmit the program
with the necessary revisions will be considered a failure to implement
a program under this part.
    (1) The Administrator will inform the railroad in writing whether
its revised program conforms to this part.
    (2) If the program does not conform, the railroad shall resubmit
its program.
    (h) A railroad that intends to modify materially its program after
receiving initial FRA approval shall submit a description of how it
intends to modify the program in conformity with the specific
requirements of this part at least 60 days prior to implementing such a
change.
    (1) A modification is material if it would affect the program's
conformance with this part.
    (2) The modification submission shall contain a description that
conforms to the pertinent portion of the procedures contained in
appendix B of this part.
    (3) The modification submission will be handled in accordance with
the procedures of paragraphs (b) and (c) of this section as though it
were a new program.

0
11. Section 240.105 is amended by adding paragraph (d) to read as
follows:

Sec.  240.105   Criteria for selection of designated supervisors of
locomotive engineers.

* * * * *
    (d) Each railroad is authorized to designate a person as a
designated supervisor of locomotive engineers with additional
conditions or operational restrictions on the service the person may
perform.

0
12. Section 240.107 is amended by revising the section heading to read
as follows:

Sec.  240.107   Types of service.

* * * * *

0
13. Section 240.111 is amended by revising paragraph (a)(2), revising
and republishing paragraph (c), and revising paragraphs (d), (e), (f),
and (h) to read as follows:

Sec.  240.111   Individual's duty to furnish data on prior safety
conduct as motor vehicle operator.

    (a) * * *
    (2) Take any additional actions, including providing any necessary
consent required by State, Federal, or foreign law to make information
concerning his or her driving record available to that railroad.
* * * * *
    (c) Each person shall request the information required under
paragraph (b)(1) of this section from:
    (1) The chief of the driver licensing agency of any jurisdiction,
including a State or foreign country, which last issued that person a
driver's license; and
    (2) The chief of the driver licensing agency of any other
jurisdiction, including states or foreign countries, that issued or
reissued him or her a driver's license within the preceding five years.
    (d) Each person shall request the information required under
paragraph (b)(2) of this section from the Chief, National Driver
Register, National Highway Traffic Safety Administration,

1200 New Jersey Avenue SE, Washington, DC 20590 in accordance with the
procedures contained in appendix C of this part unless the person's
motor vehicle driving license was issued by a State or the District of
Columbia.
    (e) If the person's motor vehicle driving license was issued by one
of the driver licensing agencies of a State or the District of
Columbia, the person shall request the chief of that driver licensing
agency to perform a check of the National Driver Register for the
possible existence of additional information concerning his or her
driving record and to provide the resulting information to the
railroad.
    (f) If advised by the railroad that a driver licensing agency or
the National Highway Traffic Safety Administration has informed the
railroad that additional information concerning that person's driving
history may exist in the files of a State agency or foreign country not
previously contacted in accordance with this section, such person
shall:
    (1) Request in writing that the chief of the driver licensing
agency which compiled the information provide a copy of the available
information to the prospective certifying railroad; and
    (2) Take any additional action required by State, Federal, or
foreign law to obtain that additional information.
* * * * *
    (h) Each certified locomotive engineer or person seeking initial
certification shall report motor vehicle incidents described in Sec.
240.115(h)(1) and (2) to the employing railroad within 48 hours of
being convicted for, or completed State action to cancel, revoke,
suspend, or deny a motor vehicle driver's license for, such violations.
For purposes of this paragraph (h) and Sec.  240.115(h), ``State
action'' means action of the jurisdiction that has issued the motor
vehicle driver's license, including a foreign country. For the purposes
of engineer certification, no railroad shall require reporting earlier
than 48 hours after the conviction, or completed State action to
cancel, revoke, or deny a motor vehicle driver's license.

0
14. Section 240.113 is revised to read as follows:

Sec.  240.113   Individual's duty to furnish data on prior safety
conduct as an employee of a different railroad.

    (a) Except for persons covered by Sec.  240.109(h), each person
seeking certification or recertification under this part shall, within
366 days preceding the date of the railroad's decision on certification
or recertification:
    (1) Request, in writing, that the chief operating officer or other
appropriate person of the former employing railroad provide a copy of
that railroad's available information concerning his or her service
record pertaining to compliance or non-compliance with Sec. Sec.
240.111, 240.117, and 240.119 to the railroad that is considering such
certification or recertification; and
    (2) Take any additional actions, including providing any necessary
consent required by State or Federal law to make information concerning
his or her service record available to that railroad.
    (b) [Reserved]

0
15. Section 240.115 is revised to read as follows:

Sec.  240.115   Criteria for consideration of prior safety conduct as a
motor vehicle operator.

    (a) Each railroad shall adopt and comply with a program meeting the
requirements of this section. When any person (including, but not
limited to, each railroad, railroad officer, supervisor, and employee)
violates any requirement of a program that complies with the
requirements of this section, that person shall be considered to have
violated the requirements of this section.
    (b) Except as provided in paragraphs (c) through (f) of this
section, each railroad, prior to initially certifying or recertifying
any person as a locomotive engineer for any type of service, shall
determine that the person meets the eligibility requirements of this
section involving prior conduct as a motor vehicle operator.
    (c) A railroad shall initially certify a person as a locomotive
engineer for 60 days if the person:
    (1) Requested the information required by paragraph (h) of this
section at least 60 days prior to the date of the decision to certify
that person; and
    (2) Otherwise meets the eligibility requirements provided in Sec.
240.109.
    (d) A railroad shall recertify a person as a locomotive engineer
for 60 days from the expiration date of that person's certification if
the person:
    (1) Requested the information required by paragraph (h) of this
section at least 60 days prior to the date of the decision to recertify
that person; and
    (2) Otherwise meets the eligibility requirements provided in Sec.
240.109.
    (e) Except as provided in paragraph (f) of this section, if a
railroad which certified or recertified a person pursuant to paragraph
(c) or (d) of this section does not obtain and evaluate the information
required pursuant to paragraph (h) of this section within 60 days of
the pertinent dates identified in paragraph (c) or (d) of this section,
that person will be ineligible to perform as a locomotive engineer
until the information can be evaluated.
    (f) If a person requests the information required pursuant to
paragraph (h) of this section but is unable to obtain it, that person
or the railroad certifying or recertifying that person may petition for
a waiver of the requirements of paragraph (b) of this section in
accordance with the provisions of part 211 of this chapter. A railroad
shall certify or recertify a person during the pendency of the waiver
request if the person otherwise meets the eligibility requirements
provided in Sec.  240.109.
    (g) When evaluating a person's motor vehicle driving record, a
railroad shall not consider information concerning motor vehicle
driving incidents that occurred more than 36 months before the month in
which the railroad is making its certification decision or at a time
other than that specifically provided for in Sec.  240.111, Sec.
240.117, Sec.  240.119, or Sec.  240.205.
    (h) A railroad shall only consider information concerning the
following types of motor vehicle incidents:
    (1) A conviction for, or completed State action to cancel, revoke,
suspend, or deny a motor vehicle driver's license for, operating a
motor vehicle while under the influence of or impaired by alcohol or a
controlled substance; or
    (2) A conviction for, or completed State action to cancel, revoke,
suspend, or deny a motor vehicle driver's license for, refusal to
undergo such testing as is required by State or foreign law when a law
enforcement official seeks to determine whether a person is operating a
vehicle while under the influence of alcohol or a controlled substance.
    (i) If such an incident is identified:
    (1) The railroad shall provide the data to the railroad's DAC,
together with any information concerning the person's railroad service
record, and shall refer the person for evaluation to determine if the
person has an active substance abuse disorder;
    (2) The person shall cooperate in the evaluation and shall provide
any requested records of prior counseling or treatment for review
exclusively by the DAC in the context of such evaluation; and
    (3) If the person is evaluated as not currently affected by an
active substance abuse disorder, the subject data shall not be
considered further with respect to certification. However, the railroad
shall, on recommendation of the DAC, condition certification upon
participation in any needed aftercare and/or follow-up testing for
alcohol or

drugs deemed necessary by the DAC consistent with the technical
standards specified in Sec.  240.119(d)(3).
    (4) If the person is evaluated as currently affected by an active
substance abuse disorder, the provisions of Sec.  240.119(b) will
apply.
    (5) If the person fails to comply with the requirements of
paragraph (i)(2) of this section, the person shall be ineligible to
perform as a locomotive engineer until such time as the person complies
with the requirements.

0
16. Section 240.117 is amended by:
0
a. Revising paragraphs (a), (c)(1) and (3), (d), and (e)(5) and (6);
0
b. Adding paragraph (f)(4);
0
c. Revising paragraphs (g)(3)(i) and (ii);
0
d. Redesignating paragraph (h) as paragraph (i); and
0
e. Adding new paragraph (h).
    The revisions and additions read as follows:

Sec.  240.117   Criteria for consideration of operating rules
compliance data.

    (a) Each railroad shall adopt and comply with a program which meets
the requirements of this section. When any person including, but not
limited to, each railroad, railroad officer, supervisor, and employee
violates any requirement of a program that complies with the
requirements of this section, that person shall be considered to have
violated the requirements of this section.
* * * * *
    (c)(1) A certified locomotive engineer who has demonstrated a
failure to comply with railroad rules and practices described in
paragraph (e) of this section shall have his or her certification
revoked.
* * * * *
    (3) A certified locomotive engineer who is called by a railroad to
perform the duty of a train crew member other than that of locomotive
engineer or conductor shall not have his or her certification revoked
based on actions taken or not taken while performing that duty.
    (d) In determining whether a person may be or remain certified as a
locomotive engineer, a railroad shall consider as operating rule
compliance data only conduct described in paragraphs (e)(1) through (5)
of this section that occurred within a period of 36 consecutive months
prior to the determination. A review of an existing certification shall
be initiated promptly upon the occurrence and documentation of any
conduct described in this section.
    (e) * * *
    (5) Failure to comply with prohibitions against tampering with
locomotive mounted safety devices, or knowingly operating or permitting
to be operated a train with an unauthorized disabled safety device in
the controlling locomotive. (See 49 CFR part 218, subpart D, and
appendix C to part 218); or
    (6) Incidents of noncompliance with Sec.  219.101 of this chapter;
however, such incidents shall be considered as a violation only for the
purposes of paragraphs (g)(2) and (3) of this section.
    (f) * * *
    (4) A railroad shall not be permitted to deny or revoke an
employee's certification based upon additional conditions or
operational restrictions imposed pursuant to Sec.  240.107(d).
    (g) * * *
    (3) * * *
    (i) In the case of a single incident involving violation of one or
more of the operating rules or practices described in paragraphs (e)(1)
through (5) of this section, the person shall have his or her
certificate revoked for a period of 30 calendar days.
    (ii) In the case of two separate incidents involving a violation of
one or more of the operating rules or practices described in paragraphs
(e)(1) through (5) of this section, that occurred within 24 months of
each other, the person shall have his or her certificate revoked for a
period of 180 calendar days.
* * * * *
    (h) Any or all periods of revocation provided in this section may
consist of training.
* * * * *

0
17. Section 240.119 is revised to read as follows:

Sec.  240.119   Criteria for consideration of data on substance abuse
disorders and alcohol/drug rules compliance.

    (a) Program requirement. Each railroad shall adopt and comply with
a program which complies with the requirements of this section. When
any person, including, but not limited to, each railroad, railroad
officer, supervisor, and employee, violates any requirement of a
program which complies with the requirements of this section, that
person shall be considered to have violated the requirements of this
section.
    (b) Determination requirement. Each railroad, prior to initially
certifying or recertifying any person as a locomotive engineer for any
type of service, shall determine that the person meets the eligibility
requirements of this section.
    (c) Recordkeeping requirement. In order to make the determination
required under paragraph (d) of this section, a railroad shall have on
file documents pertinent to that determination, including a written
document from its DAC which states his or her professional opinion that
the person has been evaluated as not currently affected by a substance
abuse disorder or that the person has been evaluated as affected by an
active substance abuse disorder.
    (d) Fitness requirement. (1) A person who has an active substance
abuse disorder shall be denied certification or recertification as a
locomotive engineer.
    (2) Except as provided in paragraph (g) of this section, a
certified locomotive engineer who is determined to have an active
substance abuse disorder shall be ineligible to hold certification.
Consistent with other provisions of this part, certification may be
reinstated as provided in paragraph (f) of this section.
    (3) In the case of a current employee of the railroad evaluated as
having an active substance abuse disorder (including a person
identified under the procedures of Sec.  240.115), the employee may, if
otherwise eligible, voluntarily self-refer for substance abuse
counseling or treatment under the policy required by Sec.
219.1001(b)(1) of this chapter; and the railroad shall then treat the
substance abuse evaluation as confidential except with respect to
ineligibility for certification.
    (e) Prior alcohol/drug conduct; Federal rule compliance. (1) In
determining whether a person may be or remain certified as a locomotive
engineer, a railroad shall consider conduct described in paragraph
(e)(2) of this section that occurred within a period of 60 consecutive
months prior to the review. A review of certification shall be
initiated promptly upon the occurrence and documentation of any
incident of conduct described in this paragraph (e)(1).
    (2) A railroad shall consider any violation of Sec.  219.101 or
Sec.  219.102 of this chapter and any refusal to provide a breath or
body fluid sample for testing under the requirements of part 219 of
this chapter when instructed to do so by a railroad representative.
    (3) A period of ineligibility described in this paragraph (e) shall
begin:
    (i) For a person not currently certified, on the date of the
railroad's written determination that the most recent incident has
occurred; or
    (ii) For a person currently certified, on the date of the
railroad's notification to the person that recertification has been
denied or certification has been revoked.
    (4) The period of ineligibility described in this section shall be
determined in accordance with the following standards:

    (i) In the case of a single violation of Sec.  219.102 of this
chapter, the person shall be ineligible to hold a certificate during
evaluation and any required primary treatment as described in paragraph
(f) of this section. In the case of two violations of Sec.  219.102 of
this chapter, the person shall be ineligible to hold a certificate for
a period of two years. In the case of more than two such violations,
the person shall be ineligible to hold a certificate for a period of
five years.
    (ii) In the case of one violation of Sec.  219.102 of this chapter
and one violation of Sec.  219.101 of this chapter, the person shall be
ineligible to hold a certificate for a period of three years.
    (iii) In the case of one violation of Sec.  219.101 of this
chapter, the person shall be ineligible to hold a certificate for a
period of 9 months (unless identification of the violation was through
a qualifying referral program described in Sec.  219.1001 of this
chapter and the locomotive engineer waives investigation, in which case
the certificate shall be deemed suspended during evaluation and any
required primary treatment as described in paragraph (f) of this
section). In the case of two or more violations of Sec.  219.101 of
this chapter, the person shall be ineligible to hold a certificate for
a period of five years.
    (iv) A refusal to provide a breath or body fluid sample for testing
under the requirements of part 219 of this chapter when instructed to
do so by a railroad representative shall be treated, for purposes of
ineligibility under this paragraph (e), in the same manner as a
violation of:
    (A) Section 219.102 of this chapter, in the case of a refusal to
provide a urine specimen for testing; or
    (B) Section 219.101 of this chapter, in the case of a refusal to
provide a breath sample for alcohol testing or a blood specimen for
mandatory post-accident toxicological testing.
    (f) Future eligibility to hold certificate following alcohol/drug
violation. The following requirements apply to a person who has been
denied certification or who has had certification suspended or revoked
as a result of conduct described in paragraph (e) of this section:
    (1) The person shall not be eligible for grant or reinstatement of
the certificate unless and until the person has:
    (i) Been evaluated by a SAP to determine if the person currently
has an active substance abuse disorder;
    (ii) Successfully completed any program of counseling or treatment
determined to be necessary by the SAP prior to return to service; and
    (iii) In accordance with the testing procedures of subpart H of
part 219 of this chapter, has had an alcohol test with an alcohol
concentration of less than .02 and presented a urine sample that tested
negative for controlled substances assayed.
    (2) A locomotive engineer placed in service or returned to service
under the above-stated conditions shall continue in any program of
counseling or treatment deemed necessary by the SAP and shall be
subject to a reasonable program of follow-up alcohol and drug testing
without prior notice for a period of not more than 60 months following
return to service. Follow-up tests shall include not fewer than 6
alcohol tests and 6 drug tests during the first 12 months following
return to service.
    (3) Return-to-service and follow-up alcohol and drug tests shall be
performed consistent with the requirements of subpart H of part 219 of
this chapter.
    (4) This paragraph (f) does not create an entitlement to utilize
the services of a railroad SAP, to be afforded leave from employment
for counseling or treatment, or to employment as a locomotive engineer.
Nor does it restrict any discretion available to the railroad to take
disciplinary action based on conduct described herein.
    (g) Confidentiality protected. Nothing in this part shall affect
the responsibility of the railroad under Sec.  219.1003(f) of this
chapter to treat qualified referrals for substance abuse counseling and
treatment as confidential; and the certification status of a locomotive
engineer who is successfully assisted under the procedures of that
section shall not be adversely affected. However, the railroad shall
include in its referral policy, as required pursuant to Sec.
219.1003(j) of this chapter, a provision that, at least with respect to
a certified locomotive engineer or a candidate for certification, the
policy of confidentiality is waived (to the extent that the railroad
shall receive from the SAP or DAC official notice of the substance
abuse disorder and shall suspend or revoke the certification, as
appropriate) if the person at any time refuses to cooperate in a
recommended course of counseling or treatment.

0
18. Section 240.121 is amended by revising paragraphs (a), (b), and (d)
to read as follows:

Sec.  240.121   Criteria for vision and hearing acuity data.

    (a) Each railroad shall adopt and comply with a program which
complies with the requirements of this section. When any person,
including, but not limited to, each railroad, railroad officer,
supervisor, and employee, violates any requirement of a program that
complies with the requirements of this section, that person shall be
considered to have violated the requirements of this section.
    (b) In order to be currently certified as a locomotive engineer,
except as permitted by paragraph (e) of this section, a person's vision
and hearing shall meet or exceed the standards prescribed in this
section and appendix F to this part. It is recommended that each test
conducted pursuant to this section should be performed according to any
directions supplied by the manufacturer of such test and any American
National Standards Institute (ANSI) standards that are applicable.
* * * * *
    (d) Except as provided in paragraph (e) of this section, each
person shall have a hearing test or audiogram that shows the person's
hearing acuity meets or exceeds the following thresholds: The person
does not have an average hearing loss in the better ear greater than 40
decibels with or without use of a hearing aid, at 500 Hz, 1,000 Hz, and
2,000 Hz. The hearing test or audiogram shall meet the requirements of
one of the following:
    (1) As required in 29 CFR 1910.95(h) (Occupational Safety and
Health Administration);
    (2) As required in Sec.  227.111 of this chapter; or
    (3) Conducted using an audiometer that meets the specifications of
and is maintained and used in accordance with a formal industry
standard, such as ANSI S3.6, ``Specifications for Audiometers.''
* * * * *

0
19. Section 240.123 is amended by revising the section heading and
paragraph (a), revising and republishing paragraph (c), and adding
paragraphs (e) and (f) to read as follows:

Sec.  240.123   Training.

    (a) Each railroad shall adopt and comply with a program that meets
the requirements of this section. When any person, including, but not
limited to, each railroad, railroad officer, supervisor, and employee,
violates any requirement of a program that complies with the
requirements of this section, that person shall be considered to have
violated the requirements of this section.
* * * * *
    (c) A railroad that elects to train a previously untrained person
to be a locomotive engineer shall provide initial training that, at a
minimum, complies with the program

requirements of Sec.  243.101 of this chapter and:
    (1) Is composed of classroom, skill performance, and
familiarization with physical characteristics components;
    (2) Includes both knowledge and performance skill testing;
    (3) Is conducted under the supervision of a qualified class
instructor;
    (4) Is subdivided into segments or periods of appropriate duration
to effectively cover the following subject matter areas:
    (i) Personal safety;
    (ii) Railroad operating rules and procedures;
    (iii) Mechanical condition of equipment;
    (iv) Train handling procedures (including use of locomotive and
train brake systems);
    (v) Familiarization with physical characteristics including train
handling; and
    (vi) Compliance with Federal railroad safety laws, regulations, and
orders; and
    (5) Is conducted so that the performance skill component shall meet
the following conditions:
    (i) Be under the supervision of a qualified instructor engineer
located in the same control compartment whenever possible;
    (ii) Place the student engineer at the controls of a locomotive for
a significant portion of the time; and
    (iii) Permit the student to experience whatever variety of types of
trains are normally operated by the railroad.
* * * * *
    (e) A railroad shall designate in its program required by this
section the time period in which a locomotive engineer must be absent
from a territory or yard, before requalification on physical
characteristics is required.
    (f) A railroad's program shall include the procedures used to
qualify or requalify a person on the physical characteristics.

0
20. Section 240.125 is amended by revising the section heading and
paragraph (a), revising and republishing paragraph (c), and adding
paragraphs (e), (f), and (g) to read as follows:

Sec.  240.125   Knowledge testing.

    (a) Each railroad shall adopt and comply with a program that meets
the requirements of this section. When any person, including, but not
limited to, each railroad, railroad officer, supervisor, and employee,
violates any requirement of a program that complies with the
requirements of this section, that person shall be considered to have
violated the requirements of this section.
* * * * *
    (c) The testing methods selected by the railroad shall be:
    (1) Designed to examine a person's knowledge of the railroad's
rules and practices for the safe operation of trains;
    (2) Objective in nature;
    (3) Administered in written form;
    (4) Cover the following subjects:
    (i) Personal safety practices;
    (ii) Operating practices;
    (iii) Equipment inspection practices;
    (iv) Train handling practices including familiarity with the
physical characteristics of the territory; and
    (v) Compliance with Federal railroad safety laws, regulations, and
orders;
    (5) Sufficient to accurately measure the person's knowledge of the
covered subjects; and
    (6) Conducted without open reference books or other materials
except to the degree the person is being tested on his or her ability
to use such reference books or materials.
* * * * *
    (e) For purposes of paragraph (c) of this section, the railroad
must 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.
    (f) The documentation shall indicate whether the person passed or
failed the test.
    (g) If a person fails to pass the test, no railroad shall permit or
require that person to function as a locomotive engineer prior to that
person's achieving a passing score during a reexamination of the
person's knowledge.

0
21. Section 240.127 is amended by revising paragraph (a) to read as
follows:

Sec.  240.127   Criteria for examining skill performance.

    (a) Each railroad shall adopt and comply with a program which
complies with the requirements of this section. When any person,
including, but not limited to, each railroad, railroad officer,
supervisor, and employee, violates any requirement of a program that
complies with the requirements of this section, that person shall be
considered to have violated the requirements of this section.
* * * * *

0
22. Section 240.129 is amended by revising paragraphs (a), (b), (c)
introductory text, (c)(2), (d) introductory text, (e) introductory
text, and (e)(1) and adding paragraph (h) to read as follows:

Sec.  240.129   Criteria for monitoring operational performance of
certified engineers.

    (a) Each railroad shall adopt and comply with a program which
complies with the requirements of this section. When any person,
including, but not limited to, each railroad, railroad officer,
supervisor, and employee, violates any requirement of a program which
complies with the requirements of this section, that person shall be
considered to have violated the requirements of this section.
    (b) Each railroad shall have a program to monitor the operational
performance of those it has determined as qualified as a locomotive
engineer in any class of service. The program shall include procedures
to address the testing of certified engineers who are not given both an
operational monitoring observation and an unannounced compliance test
in a calendar year pursuant to paragraph (h) of this section. At a
minimum, such procedures shall include the following:
    (1) A requirement that an operational monitoring observation and an
unannounced compliance test must be conducted within 30 days of a
return to service as a locomotive engineer; and
    (2) The railroad must retain a written record indicating the date
that the engineer stopped performing service that requires
certification pursuant to this part, the date that the engineer
returned to performing service that requires certification pursuant to
this part, and the dates that the operational monitoring observation
and the unannounced compliance test were performed.
    (c) The procedures for the operational monitoring observation
shall:
* * * * *
    (2) Be designed so that each engineer shall be monitored each
calendar year by a Designated Supervisor of Locomotive Engineers, who
does not need to be qualified on the physical characteristics of the
territory over which the operational monitoring observation will be
conducted;
* * * * *
    (d) The operational monitoring observation procedures may be
designed so that the locomotive engineer being monitored either:
* * * * *
    (e) The unannounced compliance test program shall:
    (1) Be designed so that, except for as provided in paragraph (h) of
this section, each locomotive engineer shall be given at least one
unannounced compliance test each calendar year;
* * * * *

    (h) A certified engineer who is not performing a service that
requires certification pursuant to this part need not be given an
unannounced compliance test or operational monitoring observation.
However, when the certified engineer returns to a service that requires
certification pursuant to this part, that certified engineer must be
tested pursuant to this section and Sec.  240.303 within 30 days of his
or her return.

0
23. Section 240.205 is revised to read as follows:

Sec.  240.205   Procedures for determining eligibility based on prior
safety conduct.

    (a) Each railroad, prior to initially certifying or recertifying
any person as an engineer for any class of service other than student,
shall determine that the person meets the eligibility requirements of
Sec.  240.115 involving prior conduct as a motor vehicle operator,
Sec.  240.117 involving prior conduct as a railroad worker, and Sec.
240.119 involving substance abuse disorders and alcohol/drug rules
compliance.
    (b) In order to make the determination required under paragraph (a)
of this section, a railroad shall have on file documents pertinent to
the determinations referred to in paragraph (a) of this section,
including a written document from its DAC either reflecting his or her
professional opinion that the person has been evaluated as not
currently affected by a substance abuse disorder or that the person has
been evaluated as affected by an active substance abuse disorder and is
ineligible for certification.

0
24. Section 240.207 is amended by revising paragraphs (b)(2)
introductory text and (b)(2)(i) to read as follows:

Sec.  240.207   Procedures for making the determination on vision and
hearing acuity.

* * * * *
    (b) * * *
    (2) A written document from its medical examiner documenting his or
her professional opinion that the person does not meet one or both
acuity standards and stating the basis for his or her determination
that:
    (i) The person can nevertheless be certified under certain
conditions; or
* * * * *

0
25. Section 240.209 is amended by revising paragraphs (b) and (c) to
read as follows:

Sec.  240.209   Procedures for making the determination on knowledge.

* * * * *
    (b) In order to make the determination required by paragraph (a) of
this section, a railroad shall have written documentation showing that
the person either:
    (1) Exhibited his or her knowledge by achieving a passing grade in
testing that complies with this part; or
    (2) Did not achieve a passing grade in such testing.
    (c) If a person fails to achieve a passing score under the testing
procedures required by this part, no railroad shall permit or require
that person to operate a locomotive as a locomotive or train service
engineer prior to that person's achieving a passing score during a
reexamination of his or her knowledge.

0
26. Section 240.211 is amended by revising paragraph (b) to read as
follows:

Sec.  240.211   Procedures for making the determination on performance
skills.

* * * * *
    (b) In order to make this determination, a railroad shall have
written documentation showing the person either:
    (1) Exhibited his or her knowledge by achieving a passing grade in
testing that complies with this part; or
    (2) Did not achieve a passing grade in such testing.
* * * * *

0
27. Section 240.215 is amended by revising and republishing paragraph
(e) and revising paragraph (j) to read as follows:

Sec.  240.215   Retaining information supporting determinations.

* * * * *
    (e) The information concerning demonstrated performance skills that
the railroad shall retain includes:
    (1) The relevant data from the railroad's records concerning the
person's success or failure on the performance skills test(s) that
documents the relevant operating facts on which the evaluation is based
including the observations and evaluation of the designated supervisor
of locomotive engineers;
    (2) If a railroad relies on the use of a locomotive operations
simulator to conduct the performance skills testing required under this
part, the relevant data from the railroad's records concerning the
person's success or failure on the performance skills test(s) that
documents the relevant operating facts on which the determination was
based including the observations and evaluation of the designated
supervisor of locomotive engineers; and
    (3) The relevant data from the railroad's records concerning the
person's success or failure on tests the railroad performed to monitor
the engineer's operating performance in accordance with Sec.  240.129.
* * * * *
    (j) Nothing in this section precludes a railroad from maintaining
the information required to be retained under this section in an
electronic format provided that:
    (1) The railroad maintains an information technology security
program adequate to ensure the integrity of the electronic data storage
system, including the prevention of unauthorized access to the program
logic or individual records;
    (2) The program and data storage system must be protected by a
security system that utilizes an employee identification number and
password, or a comparable method, to establish appropriate levels of
program access meeting all of the following standards:
    (i) No two individuals have the same electronic identity; and
    (ii) A record cannot be deleted or altered by any individual after
the record is certified by the employee who created the record;
    (3) Any amendment to a record is either:
    (i) Electronically stored apart from the record that it amends; or
    (ii) Electronically attached to the record as information without
changing the original record;
    (4) Each amendment to a record uniquely identifies the person
making the amendment;
    (5) The system employed by the railroad for data storage permits
reasonable access and retrieval of the information in usable format
when requested to furnish data by FRA representatives; and
    (6) Information retrieved from the system can be easily produced in
a printed format which can be readily provided to FRA representatives
in a timely manner and authenticated by a designated representative of
the railroad as a true and accurate copy of the railroad's records if
requested to do so by FRA representatives.

0
28. Section 240.217 is amended by revising paragraphs (a) and (d) to
read as follows:

Sec.  240.217   Time limitations for making determinations.

    (a) A railroad shall not certify or recertify a person as a
qualified locomotive engineer in any class of train or engine service,
if the railroad is making a determination concerning:
    (1) Eligibility and the eligibility data being relied on was
furnished more than 366 days before the date of the railroad's
certification decision;

    (2) Visual and hearing acuity and the medical examination being
relied on was conducted more than 450 days before the date of the
railroad's recertification decision;
    (3) Demonstrated knowledge and the knowledge examination being
relied on was conducted more than 366 days before the date of the
railroad's certification decision;
    (4) Demonstrated knowledge and the knowledge examination being
relied on was conducted more than 24 months before the date of the
railroad's certification decision if the railroad administers a
knowledge testing program pursuant to Sec.  240.125 at intervals that
do not exceed 24 months; or
    (5) Demonstrated performance skills and the performance skill
testing being relied on was conducted more than 366 days before the
date of the railroad's certification decision.
* * * * *
    (d) A railroad shall issue each person designated as a certified
locomotive engineer a certificate that complies with Sec.  240.223 no
later than 30 days from the date of its decision to certify or
recertify that person.

0
29. Section 240.219 is amended by revising paragraphs (a) and (c) and
adding paragraph (d) to read as follows:

Sec.  240.219   Denial of certification.

    (a) A railroad shall notify a candidate for certification or
recertification of information known to the railroad that forms the
basis for denying the person certification and provide the person a
reasonable opportunity to explain or rebut that adverse information in
writing prior to denying certification. A railroad shall provide the
locomotive engineer candidate with any written documents or records,
including written statements, related to failure to meet a requirement
of this part that support its pending denial decision.
* * * * *
    (c) If a railroad denies a person certification or recertification,
it shall notify the person of the adverse decision and explain, in
writing, the basis for its denial decision. The basis for a railroad's
denial decision shall address any explanation or rebuttal information
that the locomotive engineer candidate may have provided in writing
pursuant to paragraph (a) of this section. The document explaining the
basis for the denial shall be served on the person within 10 days after
the railroad's decision and shall give the date of the decision.
    (d) A railroad shall not deny the person's certification for
failing to comply with a railroad operating rule or practice that
constitutes a violation under Sec.  240.117(e)(1) through (5) if
sufficient evidence exists to establish that an intervening cause
prevented or materially impaired the engineer's ability to comply with
that railroad operating rule or practice.

0
30. Section 240.221 is amended by revising paragraphs (d), (e), and (f)
to read as follows:

Sec.  240.221   Identification of qualified persons.

* * * * *
    (d) The listing required by paragraphs (a), (b), and (c) of this
section shall:
    (1) Be updated at least annually;
    (2) Be available at the divisional or regional headquarters of the
railroad; and
    (3) Be available for inspection or copying by FRA during regular
business hours.
    (e) It shall be unlawful for any railroad to knowingly or any
individual to willfully:
    (1) Make, cause to be made, or participate in the making of a false
entry on the list required by this section; or
    (2) Otherwise falsify such list through material misstatement,
omission, or mutilation.
    (f) Nothing in this section precludes a railroad from maintaining
the list required under this section in an electronic format provided
that:
    (1) The railroad maintains an information technology security
program adequate to ensure the integrity of the electronic data storage
system, including the prevention of unauthorized access to the program
logic or the list;
    (2) The program and data storage system must be protected by a
security system that utilizes an employee identification number and
password, or a comparable method, to establish appropriate levels of
program access meeting all of the following standards:
    (i) No two individuals have the same electronic identity; and
    (ii) An entry on the list cannot be deleted or altered by any
individual after the entry is certified by the employee who created the
entry;
    (3) Any amendment to the list is either:
    (i) Electronically stored apart from the entry on the list that it
amends; or
    (ii) Electronically attached to the entry on the list as
information without changing the original entry;
    (4) Each amendment to the list uniquely identifies the person
making the amendment;
    (5) The system employed by the railroad for data storage permits
reasonable access and retrieval of the information in usable format
when requested to furnish data by FRA representatives; and
    (6) Information retrieved from the system can be easily produced in
a printed format which can be readily provided to FRA representatives
in a timely manner and authenticated by a designated representative of
the railroad as a true and accurate copy of the railroad's records if
requested to do so by FRA representatives.

0
31. Section 240.223 is amended by revising and republishing paragraph
(a) to read as follows:

Sec.  240.223   Criteria for the certificate.

    (a) As a minimum, each certificate issued in compliance with this
part shall:
    (1) Identify the railroad or parent company that is issuing it;
    (2) Indicate that the railroad, acting in conformity with this
part, has determined that the person to whom it is being issued has
been determined to be qualified to operate a locomotive;
    (3) Identify the person to whom it is being issued (including the
person's name, employee identification number, the year of birth, and
either a physical description or photograph of the person);
    (4) Identify any conditions or limitations, including the class of
service or conditions to ameliorate vision or hearing acuity
deficiencies, that restrict the person's operational authority;
    (5) Show the effective date of each certification held;
    (6) Be signed by a supervisor of locomotive engineers or other
individual designated in accordance with paragraph (b) of this section;
    (7) Show the date of the person's last operational monitoring event
as required by Sec. Sec.  240.129(c) and 240.303(b), unless that
information is reflected on supplementary documents which the
locomotive engineer has in his or her possession when operating a
locomotive; and
    (8) Be of sufficiently small size to permit being carried in an
ordinary pocket wallet.
* * * * *

0
32. Section 240.225 is revised to read as follows:

Sec.  240.225   Reliance on qualification determinations made by other
railroads.

    (a) A railroad that is considering certification of a person as a
qualified engineer may rely on determinations made by another railroad
concerning that person's qualifications. The railroad's certification
program shall

address how the railroad will administer the training of previously
uncertified engineers with extensive operating experience or previously
certified engineers who have had their certification expire. If a
railroad's certification program fails to specify how it will train a
previously certified engineer hired from another railroad, then the
railroad shall require the newly hired engineer to take the hiring
railroad's entire training program.
    (b) A railroad relying on another's certification shall determine
that:
    (1) The prior certification is still valid in accordance with the
provisions of Sec. Sec.  240.201, 240.217, and 240.307;
    (2) The prior certification was for the same classification of
locomotive or train service as the certification being issued under
this section;
    (3) The person has received training on and visually observed the
physical characteristics of the new territory in accordance with Sec.
240.123;
    (4) The person has demonstrated the necessary knowledge concerning
the railroad's operating rules in accordance with Sec.  240.125; and
    (5) The person has demonstrated the necessary performance skills
concerning the railroad's operating rules in accordance with Sec.
240.127.

0
33. Revise the heading of subpart D to read as follows:

Subpart D--Administration of the Certification Program

0
34. Section 240.301 is revised to read as follows:

Sec.  240.301   Replacement of certificates.

    (a) A railroad shall have a system for the prompt replacement of
lost, stolen or mutilated certificates at no cost to engineers. That
system shall be reasonably accessible to certified locomotive engineers
in need of a replacement certificate or temporary replacement
certificate.
    (b) At a minimum, a temporary replacement certificate must identify
the person to whom it is being issued (including the person's name,
identification number and year of birth); indicate the date of
issuance; and be authorized by a supervisor of locomotive engineers or
other individual designated in accordance with Sec.  240.223(b).
Temporary replacement certificates may be delivered electronically and
are valid for a period no greater than 30 days.

0
35. Section 240.303 is amended by revising paragraphs (b) and (c) to
read as follows:

Sec.  240.303   Operational monitoring requirements.

* * * * *
    (b) The program shall be conducted so that each locomotive
engineer, except as provided in Sec.  240.129(h), shall be given at
least one operational monitoring observation by a qualified supervisor
of locomotive engineers in each calendar year.
    (c) The program shall be conducted so that each locomotive
engineer, except as provided in Sec.  240.129(h), shall be given at
least one unannounced, compliance test each calendar year.
* * * * *

0
36. Section 240.305 is amended by revising and republishing paragraph
(b) to read as follows:

Sec.  240.305   Prohibited conduct.

* * * * *
    (b) Each locomotive engineer who has received a certificate
required under this part shall:
    (1) Have that certificate in his or her possession while on duty as
an engineer; and
    (2) Display that certificate upon the receipt of a request to do so
from:
    (i) A representative of the Federal Railroad Administration;
    (ii) A State inspector authorized under part 212 of this chapter;
    (iii) An officer of the issuing railroad; or
    (iv) An officer of another railroad when operating a locomotive or
train in joint operations territory.
* * * * *

0
37. Section 240.307 is amended by:
0
a. Revising paragraph (a);
0
b. Republishing the introductory text to paragraph (b);
0
c. Revising paragraphs (b)(1) and (4);
0
d. Redesignating paragraphs (b)(5) and (6) as paragraphs (b)(6) and
(7);
0
e. Adding a new paragraph (b)(5); and
0
f. Revising paragraphs (c)(2), (9), and (11), (g), (i), and (j)(2).
    The revisions and additions read as follows:

Sec.  240.307   Revocation of certification.

    (a) Except as provided for in Sec.  240.119(e), a railroad that
certifies or recertifies a person as a qualified locomotive engineer
and, during the period that certification is valid, acquires reliable
information regarding violation(s) of Sec.  240.117(e) or Sec.
240.119(c) shall revoke the person's engineer certificate.
    (b) Pending a revocation determination under this section, the
railroad shall:
    (1) Upon receipt of reliable information regarding violation(s) of
Sec.  240.117(e) or Sec.  240.119(c), immediately suspend the person's
certificate;
* * * * *
    (4) No later than the convening of the hearing and notwithstanding
the terms of an applicable collective bargaining agreement, the
railroad convening the hearing shall provide the person with a copy of
the written information and list of witnesses the railroad will present
at the hearing. If requested, a recess to the start of the hearing will
be granted if that information is not provided until just prior to the
convening of the hearing. If the information was provided through
statements of an employee of the convening railroad, the railroad will
make that employee available for examination during the hearing
required by paragraph (b)(3) of this section. Examination may be
telephonic where it is impractical to provide the witness at the
hearing;
    (5) Determine, on the record of the hearing, whether the person no
longer meets the certification requirements of this part stating
explicitly the basis for the conclusion reached;
* * * * *
    (c) * * *
    (2) The hearing shall be conducted by a presiding officer, who can
be any proficient person authorized by the railroad other than the
investigating officer.
* * * * *
    (9) The record in the proceeding shall be closed at the conclusion
of the hearing unless the presiding officer allows additional time for
the submission of information. In such instances, the record shall be
left open for such time as the presiding officer grants for that
purpose.
* * * * *
    (11) The decision shall:
    (i) Contain the findings of fact as well as the basis therefor,
concerning all material issues of fact presented on the record and
citations to all applicable railroad rules and practices;
    (ii) State whether the railroad official found that a revocable
event occurred and the applicable period of revocation with a citation
to Sec.  240.117 or Sec.  240.119; and
    (iii) Be served on the employee and the employee's representative,
if any, with the railroad to retain proof of that service.
* * * * *
    (g) A railroad that has relied on the certification by another
railroad under the provisions of Sec.  240.227 or Sec.  240.229, shall
revoke its certification if, during the period that certification is
valid, the railroad acquires information that

convinces it that another railroad has revoked its certification in
accordance with the provisions of this section. The requirement to
provide a hearing under this section is satisfied when any single
railroad holds a hearing and no additional hearing is required prior to
a revocation by more than one railroad arising from the same facts.
* * * * *
    (i) A railroad:
    (1) Shall not revoke the person's certification as provided for in
paragraph (a) of this section if sufficient evidence exists to
establish that an intervening cause prevented or materially impaired
the locomotive engineer's ability to comply with the railroad operating
rule or practice that constitutes a violation under Sec.  240.117(e)(1)
through (5); or
    (2) May decide not to revoke the person's certification as provided
for in paragraph (a) of this section if sufficient evidence exists to
establish that the violation of Sec.  240.117(e)(1) through (5) was of
a minimal nature and had no direct or potential effect on rail safety.
    (j) * * *
    (2) Prior to the convening of the hearing provided for in this
section.
* * * * *

0
38. Section 240.308 is added to read as follows:

Sec.  240.308   Multiple certifications.

    (a) A person may hold both conductor and locomotive engineer
certification.
    (b) A railroad that issues multiple certificates to a person,
shall, to the extent possible, coordinate the expiration date of those
certificates.
    (c) Except as provided in paragraph (d) of this section, a
locomotive engineer, including a remote control operator, who is
operating a locomotive without an assigned certified conductor must
either be:
    (1) Certified as both a locomotive engineer under this part and as
a conductor under part 242 of this chapter; or
    (2) Accompanied by a person certified as a conductor under part 242
of this chapter but who will be attached to the crew in a manner
similar to that of an independent assignment.
    (d) If the conductor is removed from a passenger train for a
medical, police or other such emergency after the train departs from an
initial terminal, the train may proceed to the first location where the
conductor can be replaced without incurring undue delay without the
locomotive engineer being a certified conductor. However, an assistant
conductor or brakeman must be on the train and the locomotive engineer
must be informed that there is no certified conductor on the train
prior to any movement.
    (e) During the duration of any certification interval, a person who
holds a current conductor and/or locomotive engineer certificate from
more than one railroad shall immediately notify the other certifying
railroad(s) if he or she is denied conductor or locomotive engineer
recertification under Sec.  240.219 or Sec.  242.401 of this chapter or
has his or her conductor or locomotive engineer certification revoked
under Sec.  240.307 or Sec.  242.407 of this chapter by another
railroad.
    (f) A person who holds a current conductor and locomotive engineer
certificate and who has had his or her conductor certification revoked
under Sec.  242.407 of this chapter for a violation of Sec.
242.403(e)(1) through (5) or (12) of this chapter may not work as a
locomotive engineer during the period of revocation. However, a person
who holds a current conductor and locomotive engineer certificate and
who has had his or her conductor certification revoked under Sec.
242.407 of this chapter for a violation of Sec.  242.403(e)(6) through
(11) may work as a locomotive engineer during the period of revocation.
    (1) For purposes of determining the period for which a person may
not work as a certified locomotive engineer due to a revocation of his
or her conductor certification, only violations of Sec.  242.403(e)(1)
through (5) or (12) of this chapter will be counted. Thus, a person who
holds a current conductor and locomotive engineer certificate and who
has had his or her conductor certification revoked three times in less
than 36 months for two violations of Sec.  242.403(e)(6) and one
violation of Sec.  242.403(e)(1) would have his or her conductor
certificate revoked for 1 year, but would not be permitted to work as a
locomotive engineer for one month (i.e., the period of revocation for
one violation of Sec.  242.403(e)(1)).
    (g) A person who holds a current conductor and locomotive engineer
certificate and who has had his or her locomotive engineer
certification revoked under Sec.  240.307 may not work as a conductor
during the period of revocation.
    (h) A person who has had his or her locomotive engineer
certification revoked under Sec.  240.307 may not obtain a conductor
certificate pursuant to part 242 of this chapter during the period of
revocation.
    (i) A person who had his or her conductor certification revoked
under Sec.  242.407 of this chapter for violations of Sec.
242.403(e)(1) through (5) or (12) of this chapter may not obtain a
locomotive engineer certificate pursuant to this part 240 during the
period of revocation.
    (j) A railroad that denies a person conductor certification or
recertification under Sec.  242.401 of this chapter shall not, solely
on the basis of that denial, deny or revoke that person's locomotive
engineer certification or recertification.
    (k) A railroad that denies a person locomotive engineer
certification or recertification under Sec.  240.219 shall not, solely
on the basis of that denial, deny or revoke that person's conductor
certification or recertification.
    (l) In lieu of issuing multiple certificates, a railroad may issue
one certificate to a person who is certified as a conductor and a
locomotive engineer. The certificate must comply with Sec.  240.223 and
Sec.  242.207 of this chapter.
    (m) A person who holds a current conductor and locomotive engineer
certification and who is involved in a revocable event under Sec.
240.307 or Sec.  242.407 of this chapter may only have one certificate
revoked for that event. The determination by the railroad as to which
certificate to revoke for the revocable event must be based on the work
the person was performing at the time the event occurred.

0
39. Section 240.309 is amended by:
0
a. Revising paragraphs (b)(4), (e)(1), (2), (8), and (9), and (f)
through (h); and
0
b. Adding paragraph (i).
    The revisions and addition read as follows:

Sec.  240.309   Railroad oversight responsibilities.

* * * * *
    (b) * * *
    (4) If the railroad conducts joint operations with another
railroad, the number of locomotive engineers employed by the other
railroad(s) that: Were involved in events described in this paragraph
(b) and were determined to be certified and to have possessed the
necessary territorial qualifications for joint operations purposes by
the controlling railroad.
* * * * *
    (e) * * *
    (1) Incidents involving noncompliance with part 218 of this
chapter;
    (2) Incidents involving noncompliance with part 219 of this
chapter;
* * * * *
    (8) Incidents involving the failure to comply with prohibitions
against tampering with locomotive mounted safety devices, or knowingly
operating

or permitting to be operated a train with an unauthorized or disabled
safety device in the controlling locomotive; and
    (9) Incidents involving noncompliance with the railroad's operating
practices (including train handling procedures) resulting in excessive
in-train force levels.
    (f) For reporting purposes, an instance of poor safety conduct
involving a person who holds both conductor certification pursuant to
part 242 of this chapter and locomotive engineer certification pursuant
to this part need only be reported once (either under Sec.  242.215 of
this chapter or this section). The determination as to where to report
the instance of poor safety conduct should be based on the work the
person was performing at the time the conduct occurred.
    (g) For reporting purposes, each category of detected poor safety
conduct identified in paragraph (b) of this section shall be capable of
being annotated to reflect the following:
    (1) The nature of the remedial action taken and the number of
events subdivided so as to reflect which of the following actions was
selected:
    (i) Imposition of informal discipline;
    (ii) Imposition of formal discipline;
    (iii) Provision of informal training; or
    (iv) Provision of formal training; and
    (2) If the nature of the remedial action taken was formal
discipline, the number of events further subdivided so as to reflect
which of the following punishments was imposed by the railroad:
    (i) The person was withheld from service;
    (ii) The person was dismissed from employment; or
    (iii) The person was issued demerits. If more than one form of
punishment was imposed only that punishment deemed the most severe
shall be shown.
    (h) For reporting purposes, each category of detected poor safety
conduct identified in paragraph (b) of this section which resulted in
the imposition of formal or informal discipline shall be annotated to
reflect the following:
    (1) The number of instances in which the railroad's internal
appeals process reduced the punishment initially imposed at the
conclusion of its hearing; and
    (2) The number of instances in which the punishment imposed by the
railroad was reduced by any of the following entities: The National
Railroad Adjustment Board, a Public Law Board, a Special Board of
Adjustment or other body for the resolution of disputes duly
constituted under the provisions of the Railway Labor Act.
    (i) For reporting purposes, each category of detected poor safety
conduct identified in paragraph (b) of this section shall be capable of
being annotated to reflect the following:
    (1) The total number of incidents in that category;
    (2) The number of incidents within that total which reflect
incidents requiring an FRA accident/incident report under part 225 of
this chapter; and
    (3) The number of incidents within that total which were detected
as a result of a scheduled operational monitoring effort.

0
40. Section 240.401 is revised to read as follows:

Sec.  240.401   Review board established.

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

0
41. Section 240.403 is amended by:
0
a. Revising and republishing paragraph (b);
0
b. Revising paragraphs (c) and (d); and
0
c. Removing paragraph (e).
    The revisions and addition read as follows:

Sec.  240.403   Petition requirements.

* * * * *
    (b) Each petition shall:
    (1) Be in writing;
    (2) Be filed with the Docket Clerk, U.S. Department of
Transportation, Docket Operations (M-30), West Building Ground Floor,
Room W12-140, 1200 New Jersey Avenue SE, Washington, DC 20590. The form
of such request may be in written or electronic form consistent with
the standards and requirements established by the Federal Docket
Management System and posted on its website at http://www.regulations.gov;
    (3) Contain all available information that the person thinks
supports the person's belief that the railroad acted improperly,
including:
    (i) The petitioner's full name;
    (ii) The petitioner's current mailing address;
    (iii) The petitioner's daytime telephone number;
    (iv) The petitioner's email address (if available);
    (v) The name and address of the railroad; and
    (vi) The facts that the petitioner believes constitute the improper
action by the railroad, specifying the locations, dates, and identities
of all persons who were present or involved in the railroad's actions
(to the degree known by the petitioner);
    (4) Explain the nature of the remedial action sought;
    (5) Be supplemented by a copy of all written documents in the
petitioner's possession or reasonably available to the petitioner that
document that railroad's decision;
    (6) Be filed in a timely manner; and
    (7) Be supplemented, if requested by the Operating Crew Review
Board, with a copy of the information under 49 CFR 40.329 that
laboratories, medical review officers, and other service agents are
required to release to employees. The petitioner must provide written
explanation in response to an Operating Crew Review Board request if
written documents that should be reasonably available to the petitioner
are not supplied.
    (c) A petition seeking review of a railroad's decision to deny
certification or recertification or revoke certification in accordance
with the procedures required by Sec.  240.307 filed with FRA more than
120 days after the date the railroad's denial or revocation decision
was served on the petitioner will be denied as untimely except that the
Operating Crew Review Board for cause shown may extend the petition
filing period at any time in its discretion:
    (1) Provided that the request for extension is filed before the
expiration of the period provided in this paragraph (c); or
    (2) Provided that the failure to file timely was the result of
excusable neglect.
    (d) A party aggrieved by a Board decision to deny a petition as
untimely or not in compliance with the requirements of this section may
file an appeal with the Administrator in accordance with Sec.  240.411.

0
42. Section 240.405 is revised to read as follows:

Sec.  240.405   Processing certification review petitions.

    (a) Each petition shall be acknowledged in writing by FRA. The
acknowledgment shall contain the docket number assigned to the petition
and a statement of FRA's intention that the Board will attempt to
render a

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

0
43. Section 240.407 is amended by revising paragraphs (a) and (c) and
revising and republishing paragraph (d) to read as follows:

Sec.  240.407   Request for a hearing.

    (a) If adversely affected by the Operating Crew Review Board's
decision, either the petitioner before the Board or the railroad
involved shall have a right to an administrative proceeding as
prescribed by Sec.  240.409.
* * * * *
    (c) If a party fails to request a hearing within the period
provided in paragraph (b) of this section, the Operating Crew Review
Board's decision will constitute final agency action.
    (d) If a party elects to request a hearing, that person shall
submit a written request to the Docket Clerk containing the following:
    (1) The name, address, telephone number, and email address (if
available) of the respondent and the requesting party's designated
representative, if any;
    (2) The specific factual issues, industry rules, regulations, or
laws that the requesting party alleges need to be examined in
connection with the certification decision in question; and
    (3) The signature of the requesting party or the requesting party's
representative, if any.
* * * * *

0
44. Section 240.409 is amended by revising paragraphs (a), (p), and (q)
to read as follows:

Sec.  240.409   Hearings.

    (a) An administrative hearing for a locomotive engineer
certification petition shall be conducted by a presiding officer, who
can be any person authorized by the Administrator, including an
administrative law judge.
* * * * *
    (p) The petitioner before the Operating Crew Review Board, the
railroad involved in taking the certification action, and FRA shall be
parties at the hearing. All parties may participate in the hearing and
may appear and be heard on their own behalf or through designated
representatives. All parties may offer relevant evidence, including
testimony, and may conduct such cross-examination of witnesses as may
be required to make a record of the relevant facts.
    (q) The party requesting the administrative hearing shall be the
``hearing petitioner.'' The hearing petitioner shall have the burden of
proving its case by a preponderance of the evidence. Hence, if the
hearing petitioner is the railroad involved in taking the certification
action, that railroad will have the burden of proving that its decision
to deny certification, deny recertification, or revoke certification
was correct. Conversely, if the petitioner before the Operating Crew
Review Board is the hearing petitioner, that person will have the
burden of proving that the railroad's decision to deny certification,
deny recertification, or revoke certification was incorrect. Between
the petitioner before the Operating Crew Review Board and the railroad
involved in taking the certification action, the party who is not the
hearing petitioner will be a respondent.
* * * * *

0
45. Section 240.411 is amended by revising paragraphs (a) and (f) to
read as follows:

Sec.  240.411   Appeals.

    (a) Any party aggrieved by the presiding officer's decision may
file an appeal in the presiding officer's docket. The appeal must be
filed within 35 days of issuance of the decision. A copy of the appeal
shall be served on each party. The appeal shall set forth objections to
the presiding officer's decision, supported by reference to applicable
laws and regulations and with specific reference to the record. If no
appeal is timely filed, the presiding officer's decision constitutes
final agency action.
* * * * *
    (f) An appeal from an Operating Crew Review Board decision pursuant
to Sec.  240.403(d) must be filed in the Board's docket within 35 days
of issuance of the decision. A copy of the appeal shall be served on
each party. The Administrator may affirm or vacate the Board's

decision, and may remand the petition to the Board for further
proceedings. An Administrator's decision to affirm the Board's decision
constitutes final agency action.

0
46. Revise appendix B to part 240 to read as follows:

Appendix B to Part 240--Procedures for Submission and Approval of
Locomotive Engineer Qualification Programs

    This appendix establishes procedures for the submission and
approval of a railroad's program concerning the training, testing,
and evaluating of persons seeking certification or recertification
as a locomotive engineer in accordance with the requirements of this
part (see Sec. Sec.  240.101, 240.103, 240.105, 240.107, 240.123,
240.125, 240.127, and 240.129). It also contains guidance on how FRA
will exercise its review and approval responsibilities.

Submission by a Railroad

    As provided for in Sec.  240.101, each railroad must have a
program for determining the certification of each person it permits
or requires to operate a locomotive. In designing its program, a
railroad must take into account the trackage and terrain over which
it operates, the system(s) for train control that are employed, and
the operational design characteristics of the track and equipment
being operated including train length, train makeup, and train
speeds. Each railroad must submit its individual program to FRA for
approval as provided for in Sec.  240.103. Each program must be
accompanied by a request for approval organized in accordance with
this appendix. Requests for approval must contain appropriate
references to the relevant portion of the program being discussed.
Requests can be in letter or narrative format. The primary method
for a railroad's submission is by email to<EMAIL_ADDRESS>
For a railroad that is unable to send the program by email, the
program shall be sent to the Associate Administrator for Railroad
Safety/Chief Safety Officer, Federal Railroad Administration, 1200
New Jersey Avenue SE, Washington, DC 20590. Simultaneous with its
filing with FRA, each railroad must provide a copy of its submission
to the president of each labor organization that represents the
railroad's employees subject to this part.
    A railroad that electronically submits an initial program or new
portions or revisions to an approved program required by this part
shall be considered to have provided its consent to receive approval
or disapproval notices from FRA by email. FRA may electronically
store any materials required by this part regardless of whether the
railroad that submits the materials does so by delivering the
written materials to the Associate Administrator and opts not to
submit the materials electronically. A railroad that opts not to
submit the materials required by this part electronically, but
provides one or more email addresses in its submission, shall be
considered to have provided its consent to receive approval or
disapproval notices from FRA by email or mail.

Organization of the Submission

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

Section 1 of the Submission: General Information and Elections

    The first section of the request must contain the name of the
railroad, the person to be contacted concerning the request
(including the person's name, title, telephone number, and email and
mailing addresses) and a statement electing either to accept
responsibility for educating previously untrained persons to be
qualified locomotive engineers or recertify only engineers
previously certified by other railroads. Sec.  240.103(b).
    If a railroad elects not to provide initial locomotive engineer
training, the railroad is obligated to state so in its submission. A
railroad that makes this election will be limited to recertifying
persons initially certified by another railroad. A railroad that
makes this election can rescind it by obtaining FRA approval of a
modification of its program. Sec.  240.103(e).
    If a railroad elects to accept responsibility for training
persons not previously trained to be locomotive engineers, the
railroad is obligated to submit information on how such persons will
be trained but has no duty to conduct such training. A railroad that
elects to accept the responsibility for the training of such persons
may authorize another railroad or a non-railroad entity to perform
the actual training effort. The electing railroad remains
responsible for assuring that such other training providers adhere
to the training program the railroad submits.
    This section must also state which class or classes of service
the railroad will employ. Sec.  240.107.

Section 2 of the Submission: Selection of Supervisors of Locomotive
Engineers

    The second section of the request must contain information
concerning the railroad's procedure for selecting the person or
persons it will rely on to evaluate the knowledge, skill, and
ability of persons seeking certification or recertification. As
provided for in Sec.  240.105, each railroad must have a procedure
for selecting supervisors of locomotive engineers which assures that
persons so designated can appropriately test and evaluate the
knowledge, skill, and ability of individuals seeking certification
or recertification.
    Section 240.105 provides a railroad latitude to select the
criteria and evaluation methodology it will rely on to determine
which person or persons have the required capacity to perform as a
supervisor of locomotive engineers. The railroad must describe in
this section how it will use that latitude and evaluate those it
designates as supervisors of locomotive engineers so as to comply
with the performance standard set forth in Sec.  240.105(b). The
railroad must identify, in sufficient detail to permit effective
review by FRA, the criteria for evaluation it has selected. For
example, if a railroad intends to rely on one or more of the
following, a minimum level of prior experience as an engineer,
successful completion of a course of study, or successful passage of
a standardized testing program, the submission must state which
criteria it will employ.

Section 3 of the Submission: Training Persons Previously Certified

    The third section of the request must contain information
concerning the railroad's program for training previously certified
locomotive engineers. As provided for in Sec.  240.123(b) each
railroad must have a program for the ongoing education of its
locomotive engineers to assure that they maintain the necessary
knowledge concerning personal safety, operating rules and practices,
mechanical condition of equipment, methods of safe train handling
(including familiarity with physical characteristics), and relevant
Federal safety rules.
    Section 240.123(b) provides a railroad latitude to select the
specific subject matter to be covered, duration of the training,
method of presenting the information, and the frequency with which
the training will be provided. The railroad must describe in this
section how it will use that latitude to assure that its engineers
remain knowledgeable concerning the safe discharge of their train
operation responsibilities so as to comply with the performance
standard set forth in Sec.  240.123(b). This section must contain
sufficient detail to permit effective evaluation of the railroad's
training program in terms of the subject matter covered, the
frequency and duration of the training sessions, the type of formal
training employed (including, but not limited to, classroom,
computer-based, correspondence, OJT, simulator, or laboratory
training) and which aspects of the program are voluntary or
mandatory.
    Without assistance from automation, safe train handling involves
both abstract knowledge about the appropriate use of engine controls
and the application of that knowledge to trains of differing
composition traversing varying terrain. Time and circumstances have
the capacity to diminish both abstract knowledge and the proper
application of that knowledge to discrete events. Time and
circumstances also have the capacity to alter the value of
previously obtained knowledge and the application of that knowledge.
In formulating how it will use the discretion being afforded, each
railroad must design its program to address both loss of retention
of knowledge and changed circumstances, and this section of the
submission to FRA must address these matters.
    For example, locomotive engineers need to have their fundamental
knowledge of train operations refreshed periodically. Each railroad
needs to advise FRA how that need is satisfied in terms of the
interval between attendance at such training, the nature of the
training being provided, and methods for

conducting the training. A matter of particular concern to FRA is
how each railroad acts to ensure that engineers remain knowledgeable
about safe train handling procedures if the territory over which a
locomotive engineer is authorized to operate is territory from which
the engineer has been absent. The railroad must have a plan for the
familiarization training that addresses the question of how long a
person can be absent before needing more education and, once that
threshold is reached, how the person will acquire the needed
education. Similarly, the program must address how the railroad
responds to changes such as the introduction of new technology, new
operating rule books, or significant changes in operations including
alteration in the territory engineers are authorized to operate
over.

Section 4 of the Submission: Testing and Evaluating Persons Previously
Certified

    The fourth section of the request must contain information
concerning the railroad's program for testing and evaluating
previously certified locomotive engineers. As provided for in
Sec. Sec.  240.125 and 240.127, each railroad must have a program
for the ongoing testing and evaluating of its locomotive engineers
to ensure that they have the necessary knowledge and skills
concerning personal safety, operating rules and practices,
mechanical condition of equipment, methods of safe train handling
(including familiarity with physical characteristics), and relevant
Federal safety rules. Similarly, each railroad must have a program
for ongoing testing and evaluating to ensure that its locomotive
engineers have the necessary vision and hearing acuity as provided
for in Sec.  240.121.
    Sections 240.125 and 240.127 require that a railroad rely on
written procedures for determining that each person can demonstrate
his or her knowledge of the railroad's rules and practices and skill
at applying those rules and practices for the safe operation of a
locomotive or train. Section 240.125 directs that, when seeking a
demonstration of the person's knowledge, a railroad must employ a
written test that contains objective questions and answers and
covers the following subject matters: (i) Personal safety practices;
(ii) operating practices; (iii) equipment inspection practices; (iv)
train handling practices (including familiarity with the physical
characteristics of the territory); and (v) compliance with relevant
Federal safety rules. The test must accurately measure the person's
knowledge of all of these areas.
    Section 240.125 provides a railroad latitude in selecting the
design of its own testing policies (including the number of
questions each test will contain, how each required subject matter
will be covered, weighting (if any) to be given to particular
subject matter responses, selection of passing scores, and the
manner of presenting the test information). The railroad must
describe in this section how it will use that latitude to ensure
that its engineers will demonstrate their knowledge concerning the
safe discharge of their train operation responsibilities so as to
comply with the performance standard set forth in Sec.  240.125.
    Section 240.127 directs that, when seeking a demonstration of
the person's skill, a railroad must employ a test and evaluation
procedure conducted by a designated supervisor of locomotive
engineers that contains an objective evaluation of the person's
skills at applying the railroad's rules and practices for the safe
operation of trains. The test and evaluation procedure must examine
the person's skills in terms of all of the following subject
matters: (i) Operating practices; (ii) equipment inspection
practices; (iii) train handling practices (including familiarity
with the physical characteristics of the territory); and (iv)
compliance with relevant Federal safety rules. The test must be
sufficient to examine effectively the person's skills while
operating a train in the most demanding type of service which the
person is likely to encounter in the normal course of events once he
or she is deemed qualified.
    Section 240.127 provides a railroad latitude in selecting the
design of its own testing and evaluation procedures (including the
duration of the evaluation process, how each required subject matter
will be covered, weighing (if any) to be given to particular subject
matter response, selection of passing scores, and the manner of
presenting the test information). However, the railroad must
describe the scoring system used by the railroad during a skills
test administered in accordance with the procedures required under
Sec.  240.211. The description shall include the skills to be tested
and the weight or possible score that each skill will be given. The
section should also provide information concerning the procedures
which the railroad will follow that achieve the objectives described
in FRA's recommended practices (see appendix E to this part) for
conducting skill performance testing. The section also gives a
railroad the latitude to employ either a Type 1 or a Type 2
simulator (properly programmed) to conduct the test and evaluation
procedure. A railroad must describe in this section how it will use
that latitude to assure that its engineers will demonstrate their
skills concerning the safe discharge of their train operation
responsibilities so as to comply with the performance standard set
forth in Sec.  240.127.
    Section 240.121 provides a railroad latitude to rely on the
professional medical opinion of the railroad's medical examiner
concerning the ability of a person with substandard acuity to
operate a locomotive safely. The railroad must describe in this
section how it will ensure that its medical examiner has sufficient
information concerning the railroad's operations to make appropriate
conclusions about the ability of a particular individual to operate
a train safely.

Section 5 of the Submission: Training, Testing, and Evaluating Persons
Not Previously Certified

    Unless a railroad has made an election not to accept
responsibility for conducting the initial training of persons to be
locomotive engineers, the fifth section of the request must contain
information concerning the railroad's program for educating,
testing, and evaluating persons not previously trained as locomotive
engineers. As provided for in Sec.  240.123(c), a railroad that is
issuing an initial certification to a person to be a locomotive
engineer must have a program for the training, testing, and
evaluating of its locomotive engineers to ensure that they acquire
the necessary knowledge and skills concerning personal safety,
operating rules and practices, mechanical condition of equipment,
methods of safe train handling (including familiarity with physical
characteristics), and relevant Federal safety rules.
    Section 240.123 establishes a performance standard and gives a
railroad latitude in selecting how it will meet that standard. A
railroad must describe in this section how it will use that latitude
to ensure that its engineers will acquire sufficient knowledge and
skill and demonstrate their knowledge and skills concerning the safe
discharge of their train operation responsibilities. This section
must contain the same level of detail concerning initial training
programs as that described for each of the components of the overall
program contained in sections 2 through 4 of this appendix. A
railroad that plans to accept responsibility for the initial
training of locomotive engineers may authorize a non-railroad entity
to perform the actual training effort as long as the other entity
complies with the requirements for training organizations and
learning institutions in Sec.  243.111 of this chapter. The
authorizing railroad may submit a training program developed by that
authorized trainer but the authorizing railroad remains responsible
for ensuring that such other training providers adhere to the
training program submitted. Railroads that elect to rely on other
entities, to conduct training away from the railroad's own
territory, must indicate how the student will be provided with the
required familiarization with the physical characteristics for its
territory.

Section 6 of the Submission: Monitoring Operational Performance by
Certified Engineers

    The final section of the request must contain information
concerning the railroad's program for monitoring the operation of
its certified locomotive engineers. As provided for in Sec.
240.129, each railroad must have a program for the ongoing
monitoring of its locomotive engineers to ensure that they operate
their locomotives in conformity with the railroad's operating rules
and practices including methods of safe train handling and relevant
Federal safety rules.
    Section 240.129 requires that a railroad annually observe each
locomotive engineer demonstrating his or her knowledge of the
railroad's rules and practices and skill at applying those rules and
practices for the safe operation of a locomotive or train. Section
240.129 directs that the observation be conducted by a designated
supervisor of locomotive engineers but provides a railroad latitude
in selecting the design of its own observation procedures (including
the duration of the observation process, reliance on event recorder
downloads that record the specifics of train operation, and the
specific aspects of the engineer's performance to be covered). The
section also gives a railroad the latitude to employ either a Type 1
or a Type 2 simulator (properly programmed) to conduct monitoring
observations. A railroad must describe in this section how it will
use

that latitude to assure that the railroad is monitoring that its
engineers demonstrate their skills concerning the safe discharge of
their train operation responsibilities. A railroad must also
describe the scoring system used by the railroad during an
operational monitoring observation or unannounced compliance test
administered in accordance with the procedures required under Sec.
240.303. A railroad that intends to employ train operation event
recorder tapes to comply with this monitoring requirement shall
indicate in this section how it anticipates determining what person
was at the controls and what signal indications or other operational
constraints, if any, were applicable to the train's movement.

Section 7 of the Submission: Procedures for Routine Administration of
the Engineer Certification Program

    The final section of the request must contain a summary of how
the railroad's program and procedures will implement the various
specific aspects of the regulatory provisions that relate to routine
administration of its certification program for locomotive
engineers. At a minimum, this section needs to address the
procedural aspects of the rule's provisions identified in the
following paragraph.
    Section 240.109 provides that each railroad must have procedures
for review and comment on adverse prior safety conduct, but allows
the railroad to devise its own system within generalized parameters.
Sections 240.115, 240.117 and 240.119 require a railroad to have
procedures for evaluating data concerning prior safety conduct as a
motor vehicle operator and as railroad workers, yet leave selection
of many details to the railroad. Sections 240.203, 240.217, and
240.219 place a duty on the railroad to make a series of
determinations but allow the railroad to select what procedures it
will employ to assure that all of the necessary determinations have
been made in a timely fashion; who will be authorized to conclude
that person is or is not qualified; and how it will communicate
adverse decisions. Documentation of the factual basis the railroad
relied on in making determinations under Sec. Sec.  240.205,
240.207, 240.209, 240.211, and 240.213 is required, but these
sections permit the railroad to select the procedures it will employ
to accomplish compliance with these provisions. Sections 240.225 and
240.227 permit reliance on qualification determinations made by
other entities and permit a railroad latitude in selecting the
procedures it will employ to ensure compliance with these
provisions. Similarly, Sec.  240.229 permits use of railroad
selected procedures to meet the requirements for certification of
engineers performing service in joint operations territory. Sections
240.301 and 240.307 allow a railroad a certain degree of discretion
in complying with the requirements for replacing lost certificates
or the conduct of certification revocation proceedings.
    This section of the request should outline in summary fashion
the manner in which the railroad will implement its program so as to
comply with the specific aspects of each of the rule's provisions
described in the preceding paragraph.

FRA Review

    The submissions made in conformity with this appendix will be
deemed approved within 30 days after the required filing date or the
actual filing date whichever is later. No formal approval document
will be issued by FRA. The brief interval for review reflects FRA's
judgment that railroads generally already have existing programs
that will meet the requirements of this part. FRA has taken the
responsibility for notifying a railroad when it detects problems
with the railroad's program. FRA retains the right to disapprove a
program that has obtained approval due to the passage of time as
provided for in section Sec.  240.103.
    Rather than establish rigid requirements for each element of the
program, FRA has given railroads discretion to select the design of
their individual programs within a specified context for each
element. The rule, however, provides a good guide to the
considerations that should be addressed in designing a program that
will meet the performance standards of this rule. In reviewing
program submissions, FRA will focus on the degree to which a
particular program deviates from the norms set out in its rule. To
the degree that a particular program submission materially deviates
from the norms set out in its rule, FRA's review and approval
process will be focused on determining the validity of the reasoning
relied on by a railroad for selecting its alternative approach and
the degree to which the alternative approach is likely to be
effective in producing locomotive engineers who have the knowledge,
skill, and ability to operate trains safely.

0
47. Revise appendix C to part 240 to read as follows:

Appendix C to Part 240--Procedures for Obtaining and Evaluating Motor
Vehicle Driving Record Data

    The purpose of this appendix is to outline the procedures
available to individuals and railroads for complying with the
requirements of section 4(a) of the Railroad Safety Improvement Act
of 1988 and Sec. Sec.  240.109, 240.111, and 240.205. Those
provisions require that railroads consider the motor vehicle driving
record of each person prior to issuing him or her certification or
recertification as a locomotive engineer.
    To fulfill that obligation, a railroad must review a
certification candidate's recent motor vehicle driving record.
Generally, that will be a single record on file with the State
agency that issued the candidate's current license. However, it can
include multiple records if the candidate has been issued a motor
vehicle driving license by more than one State agency or foreign
country. In addition, the railroad must determine whether the
certification candidate is listed in the National Driver Register
and, if so listed, to review the data that caused the candidate to
be so listed.

Access to State Motor Vehicle Driving Record Data

    The right of railroad workers, their employers, or prospective
employers to have access to a State motor vehicle licensing agency's
data concerning an individual's driving record is controlled by
State law. Although many States have mechanisms through which
employers and prospective employers such as railroads can obtain
such data, there are some States in which privacy concerns make such
access very difficult or impossible. Since individuals generally are
entitled to obtain access to driving record data that will be relied
on by a State motor vehicle licensing agency when that agency is
taking action concerning their driving privileges, FRA places
responsibility on individuals who want to serve as locomotive
engineers to request that their current State driver licensing
agency or agencies furnish such data directly to the railroad
considering certifying them as a locomotive operator. Depending on
the procedures adopted by a particular State agency, this will
involve the candidate's either sending the State agency a brief
letter requesting such action or executing a State agency form that
accomplishes the same effect. It will normally involve payment of a
nominal fee established by the State agency for such a records
check. In rare instances, when a certification candidate has been
issued multiple licenses, it may require more than a single request.

The National Driver Register

    In addition to seeking an individual State's data, each engineer
candidate is required to request that a search and retrieval be
performed of any relevant information concerning his or her driving
record contained in the National Driver Register (NDR). The NDR is a
system of information created by Congress in 1960. In essence, it is
a nationwide repository of information on problem drivers that was
created in an effort to protect motorists. It is a voluntary State/
Federal cooperative program that assists motor vehicle driver
licensing agencies in gaining access to data about actions taken by
other State agencies concerning an individual's motor vehicle
driving record. The NDR is designed to address the problem that
occurs when chronic traffic law violators, after losing their
license in one State travel to and receive licenses in another
State. Today, each State and the District of Columbia are required
to send information on all revocations, suspensions, and license
denials within 31 days of receipt of the convictions from the courts
to the NDR and each of these driver licensing agencies has the
capability to provide NDR's data. 49 U.S.C. 30304. The NDR data can
also be obtained by contacting the National Highway Traffic Safety
Administration (NHTSA) of the Department of Transportation directly.
    The information submitted to NHTSA contains, at a minimum, three
specific pieces of data: The identification of the State authority
providing the information, the name of the person whose license is
being affected, and the date of birth of that person. It may be
supplemented by data concerning the person's height, weight, color
of eyes, and social security account number, if a State collects
such data.

Access to NDR Data

    Essentially only individuals and State licensing agencies,
including the District of Columbia, can obtain access to the NDR
data. Since railroads have no direct access to the NDR data, FRA
requires that individuals seeking certification as a locomotive
engineer request that an NDR search be performed and direct that the
results be furnished to the railroad. FRA requires that each person
request the NDR information directly from NHTSA unless the
prospective operator has a motor vehicle driver license issued by a
State motor vehicle licensing agency or the District of Columbia.
Participating States and the District of Columbia can directly
access the NDR data on behalf of the prospective engineer.

Requesting NHTSA To Perform the NDR Check

    The procedures for requesting NHTSA performance of an NDR check
are as follows:
    1. Each person shall submit a written request to the National
Highway Traffic Safety Administration at the following address:
Chief, National Driver Register, National Highway Traffic Safety
Administration, 1200 New Jersey Avenue SE, Washington, DC 20590.
    2. The request must contain:
    (a) The full legal name;
    (b) Any other names used by the person (e.g., nickname or
professional name);
    (c) The date of birth;
    (d) Sex;
    (e) Height;
    (f) Weight;
    (g) Color of eyes; and
    (h) Driver's license number (unless that is not available).
    3. The request must authorize NHTSA to perform the NDR check and
to furnish the results of the search directly to the railroad.
    4. The request must identify the railroad to which the results
are to be furnished, including the proper name of the railroad, and
the proper mailing address of the railroad.
    5. The person seeking to become a certified locomotive engineer
shall sign the request, and that signature must be notarized.
    FRA requires that the request be in writing and contain as much
detail as is available to improve the reliability of the data
search. Any person may supply additional information to that being
mandated by FRA. Furnishing additional information, such as the
person's social security account number, will help to identify more
positively any records that may exist concerning the requester.
Although no fee is charged for such NDR checks, a minimal cost may
be incurred in having the request notarized. The requirement for
notarization is designed to ensure that each person's right to
privacy is being respected and that records are only being disclosed
to legally authorized parties.

Requesting a State Agency To Perform the NDR Check

    As discussed earlier in connection with obtaining data compiled
by the State agency itself, a person can either write a letter to
that agency asking for the NDR check or can use the agency's forms
for making such a request. If a request is made by letter the
individual must follow the same procedures required when directly
seeking the data from NHTSA. Since it would be more efficient for a
prospective locomotive engineer to make a single request for both
aspects of the information required under this rule, FRA anticipates
that a State agency inquiry should be the predominant method for
making these NDR checks. Requests to State agencies may involve
payment of a nominal fee established by the State agency for such a
records check.
    State agencies normally will respond in approximately 30 days or
less and advise whether there is or is not a listing for a person
with that name and date of birth. If there is a potential match and
the inquiry State was not responsible for causing that entry, the
agency normally will indicate in writing the existence of a probable
match and will identify the State licensing agency that suspended,
revoked or canceled the relevant license or convicted the person of
one of the violations referenced earlier in this appendix.

Actions When a Probable NDR Match Occurs

    The response provided after performance of an NDR check is
limited to either a notification that no potential record match was
identified or a notification that a potential record match was
identified. If the latter event occurs, the notification will
include the identification of the State motor vehicle licensing
authority which possesses the relevant record. If the NDR check
results indicate a potential match and that the State with the
relevant data is the same State which furnished detailed data
(because it had issued the person a driving license), no further
action is required to obtain additional data. If the NDR check
results indicate a potential match and the State with the relevant
data is different from the State which furnished detailed data, it
then is necessary to contact the individual State motor vehicle
licensing authority that furnished the NDR information to obtain the
relevant record. FRA places responsibility on the railroad to notify