[Federal Register Volume 88, Number 104 (Wednesday, May 31, 2023)]
[Proposed Rules]
[Pages 35632-35691]
[FR Doc No: 2023-10773]

Vol. 88

Wednesday,

No. 104

May 31, 2023

Part V

Department of Transportation

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Federal Railroad Administration

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49 CFR Part 246

Certification of Signal Employees; Proposed Rule

Federal Register / Vol. 88 , No. 104 / Wednesday, May 31, 2023 /
Proposed Rules

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DEPARTMENT OF TRANSPORTATION

Federal Railroad Administration

49 CFR Part 246

[Docket No. FRA-2022-0020, Notice No. 1]
RIN 2130-AC92

Certification of Signal Employees

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

ACTION: Notice of proposed rulemaking (NPRM).

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SUMMARY: FRA proposes regulations for the certification of signal
employees, pursuant to the authority granted in section 402 of the Rail
Safety Improvement Act of 2008.

DATES: Comments on the proposed rule must be received by July 31, 2023.
FRA will consider comments received after that date to the extent
practicable.

ADDRESSES: Comments: Comments related to Docket No. FRA-2022-0020 may
be submitted by going to https://www.regulations.gov and following the
online instructions for submitting comments.
    Instructions: All submissions must include the agency name, docket
number (FRA-2022-0020), and Regulatory Identification Number (RIN) for
this rulemaking (2130-AC92). All comments received will be posted
without change to https://www.regulations.gov; this includes any
personal information. Please see the Privacy Act heading in the
SUPPLEMENTARY INFORMATION section of this document for Privacy Act
information related to any submitted comments or materials.
    Docket: For access to the docket to read background documents or
comments received, go to https://www.regulations.gov and follow the
online instructions for accessing the docket.

FOR FURTHER INFORMATION CONTACT: Gabe Neal, Staff Director, Signal,
Train Control, and Crossings Division, U.S. Department of
Transportation, Federal Railroad Administration, telephone: (816) 516-
7168, email: [email protected]; or Kathryn Gresham, Attorney Adviser,
U.S. Department of Transportation, Federal Railroad Administration,
telephone:<PHONE_NUMBER>, email: [email protected].

SUPPLEMENTARY INFORMATION:

Abbreviations and Terms Used in This Document

AAR--Association of American Railroads
ASLRRA--American Short Line and Regional Railroad Association
CE--Categorical Exclusion
CFR--Code of Federal Regulations
DAC--Drug and alcohol counselor
DOT--United States Department of Transportation
EA--Environmental Assessment
EIS--Environmental Impact Statement
FRA--Federal Railroad Administration
IRFA--Initial Regulatory Flexibility Analysis
NEPA--National Environmental Policy Act
NPRM--Notice of Proposed Rulemaking
OMB--United States Office of Management and Budget
PRA--The Paperwork Reduction Act
PTC--Positive Train Control
PV--Present Value
RIN--Regulatory Identification Number
RSAC--Railroad Safety Advisory Committee
RSIA--Rail Safety Improvement Act of 2008
SAP--Substance Abuse Professional
STB--The Surface Transportation Board
U.S.C.--United States Code

Table of Contents for Supplementary Information

I. Executive Summary
II. Legal Authority
III. Background
IV. Section-by-Section Analysis
V. Regulatory Impact and Notices
    A. Executive Order 12866
    B. Regulatory Flexibility Act and Executive Order 13272
    C. Paperwork Reduction Act
    D. Federalism Implications
    E. International Trade Impact Assessment
    F. Environmental Impact
    G. Executive Order 12898 (Environmental Justice)
    H. Unfunded Mandates Reform Act of 1995
    I. Energy Impact
    J. Privacy Act Statement
    K. Executive Order 13175 (Tribal Consultation)

I. Executive Summary

Purpose of the Regulatory Action

    FRA proposes to require railroads to develop programs for the
certification of signal employees and to submit those written
certification programs to FRA for approval prior to implementation.
Signal employees are responsible for the installation, testing,
troubleshooting, repair, and maintenance of railroad signal systems
which, for purposes of this proposed rule, include highway-rail and
pathway grade crossing warning systems, unusual contingency detection
devices, broken rail detection systems, power-assisted switches, and
switch point indicators.
    Under this proposed rule, railroads would be required to verify and
document that each signal employee \1\ has the requisite knowledge,
skills, safety record, and abilities to safely perform all of the
safety-related signal employee duties mandated by Federal laws and
regulations, prior to certification. In addition, railroads would be
required to have formal processes for revoking certification (either
temporarily or permanently) for signal employees who violate specified
minimum requirements.
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    \1\ Although ``signal employees'' are also referred to as
``signalmen,'' those terms are synonymous.
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    FRA is proposing this regulation in response to the Rail Safety
Improvement Act of 2008 (RSIA), which required the Secretary of
Transportation (Secretary) to submit a report to Congress addressing
whether certification of ``certain crafts or classes'' of railroad
employees or contractors, including signal employees, was necessary to
``reduce the number and rate of accidents and incidents or to improve
railroad safety.'' If the Secretary determined it was necessary to
require the certification of certain crafts or classes to improve
railroad safety, section 402 of the RSIA authorized the Secretary to
prescribe such regulations.
    The Secretary submitted a report to Congress on November 4,
2015,\2\ stating that, based on FRA's preliminary research, signal
employees were one of the most viable candidate railroad crafts for
certification, particularly with the introduction of Positive Train
Control (PTC) technology. Given the safety critical role of signal
employees in facilitating safe railroad operations, FRA determined that
railroad safety is expected to be improved if signal employees were
required to satisfy certain standards and be certified by each railroad
whose signal systems they install, troubleshoot, repair, test, or
maintain.
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    \2\ A copy of this November 4, 2015 Report to Congress has been
posted in the rulemaking docket at: https://www.regulations.gov/document/FRA-2022-0020-0001.
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Summary of Major Provisions

    This proposed rule would require railroads to develop written
programs for certifying individuals who work as signal employees on
their territories and to submit those written certification programs to
FRA for approval prior to implementation. FRA would issue a letter to
the railroad when it approves a certification program that explains the
basis for approval and a program would not be considered approved until
the approval letter is issued.
    FRA is proposing to require Class I railroads (including the
National Railroad Passenger Corporation), and railroads providing
commuter service, to submit their written certification programs to FRA
no later than eight (8) months after the final rule effective date.
Class II and Class III railroads would be

required to submit their written certification plans sixteen (16)
months after the final rule effective date. New railroads that begin
operation after the final rule effective date would be required to
submit their written certification programs to FRA and obtain FRA
approval before installing their signal systems and commencing
operations. In addition, railroads seeking to materially modify their
FRA-approved certification programs would be required to obtain FRA
approval prior to modifying their programs.
    Railroads would be required to evaluate certification candidates in
multiple areas, including prior safety conduct as a motor vehicle
operator, prior safety conduct with other railroads, substance abuse
disorders and alcohol/drug rules compliance, and vision and hearing
acuity.
    The proposed rule also contains minimum requirements for the
training provided to candidates for signal employee certification.
These proposed requirements are intended to ensure signal employees
receive sufficient training before they are certified to work on signal
systems. These proposed requirements are also intended to ensure that
certified signal employees periodically receive recurring training on
railroad signal system standards, test procedures, operating rules and
procedures, and orders governing the installation, operation, testing,
troubleshooting, repair, and maintenance of railroad signal systems, as
well as comprehensive training on new signal systems and technology
before they are introduced on the railroads where they work.
    With the exception of individuals designated as certified signal
employees prior to FRA approval of the railroad's signal employee
certification program, the proposed rule would prohibit railroads from
certifying signal employees for intervals longer than three (3) years.
This three-year limitation, which would be consistent with the 36-month
maximum period for certifying locomotive engineers in 49 CFR 240.217(c)
and the 36-month maximum period for certifying conductors in 49 CFR
240.201(c), would allow for periodic re-evaluation of certified signal
employees to verify their continued compliance with FRA's minimum
safety requirements.
    Subpart D of this proposed rule addresses the process and criteria
for denying and revoking certification. Proposed Sec.  246.301
describes the process a railroad would be required to undergo before it
denies an individual certification or recertification. This process
would include providing the certification candidate with the
information that forms the basis for the denial decision and giving the
candidate an opportunity to rebut such evidence. When a railroad denies
an individual certification or recertification, it must issue its
decision in writing and the decision must comply with certain
requirements provided in the proposed rule.
    A railroad could only revoke a signal employee's certification if
one of eleven events occurs. Generally, for the first revocable event
that is not related to a signal employee's use of drugs or alcohol, the
individual's certification would be revoked for 30 days. If an
individual accumulates more of these violations in a given time period,
the revocation period (period of ineligibility) would become
increasingly longer.
    If a railroad acquires reliable information that a certified signal
employee has violated an operating rule or practice requiring
decertification under the proposed rule, it must suspend the signal
employee's certification immediately while it determines whether
certification revocation is warranted. In such circumstances, signal
employees would be entitled to a hearing. Similar to a railroad's
decision to deny an individual certification, a railroad's decision to
revoke a signal employee's certification would be required to comply
with certain requirements. Finally, if an intervening cause prevented
or materially impaired a signal employee's ability to comply with a
railroad operating rule or practice, the railroad would not revoke the
signal employee's certification.
    Subpart E of this proposed rule discusses the dispute resolution
process for individuals who wish to challenge a railroad's decision to
deny certification, deny recertification, or revoke certification. This
dispute resolution process mirrors the process used for locomotive
engineers and conductors under 49 CFR parts 240 and 242, respectively.
    Finally, the proposed rule contains two appendices. Appendix A
discusses the procedures that a person seeking certification or
recertification should follow to furnish a railroad with information
concerning their motor vehicle driving record. Appendix B provides
guidance on the procedures railroads should employ in administering the
vision and hearing requirements under Sec. Sec.  246.117 and 246.118.

Costs and Benefits

    FRA analyzed the economic impact of this proposed rule. FRA
estimated the costs estimated to be incurred by railroads and the
Government. FRA also estimated the benefits of fewer signal employee-
caused accidents.
    FRA is proposing regulations establishing a formal certification
process for railroad signal employees. As part of that process,
railroads would be required to develop a program meeting specific
requirements for training current and prospective signal employees,
documenting and verifying that the holder of the certificate has
achieved certain training and proficiency, and creating a comprehensive
record, including of safety compliance infractions, that other
railroads can review when considering individuals for certification.
    This proposed regulation would ensure that signal employees are
properly trained, are qualified to perform their duties, and meet
Federal safety standards. Additionally, this proposed regulation is
expected to improve railroad safety by reducing the rate of accidents/
incidents.
    FRA estimates the 10-year costs of the proposed rule to be $8.3
million, discounted at 7 percent. The estimated annualized costs would
be $1.2 million discounted at 7 percent. The following table shows the
total costs of this proposed rule, over the 10-year analysis period.

                                         Total 10-Year Discounted Costs
                                               [2020 dollars] \3\
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                                                   Present value   Present value   Annualized 7%   Annualized 3%
                    Category                          7% ($)          3% ($)            ($)             ($)
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Development of Certification Program............       1,140,385       1,168,920         162,365         137,033
Certification Eligibility Requirements..........          87,507         100,380          12,459          11,768
Recertification Eligibility Requirements........         203,790         259,653          29,015          30,439

Training........................................       2,079,835       2,379,911         296,122         278,998
Knowledge Testing...............................         746,865         898,884         106,337         105,377
Vision and Hearing..............................       1,097,523       1,320,891         156,263         154,849
Monitoring Operational Performance..............         832,102         994,414         118,473         116,576
Railroad Oversight Responsibilities.............         267,530         326,714          38,090          38,301
Certification Card..............................         103,175         124,175          14,690          14,557
Petitions and Hearings..........................          42,451          50,731           6,044           5,947
Government Administrative Cost..................       1,653,360       1,914,063         235,401         224,387
                                                 ---------------------------------------------------------------
    Total.......................................       8,277,337       9,566,001       1,178,507       1,121,427
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    This rule would reduce the likelihood of an accident occurring due
to signal employee error. FRA has analyzed accidents over the past 10
years to categorize those where signal employee training and
certification would have impacted the accident. FRA then estimated
benefits based on that analysis.
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    \3\ Numbers in this table and subsequent tables may not sum due
to rounding.
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    The following table shows the estimated 10-year quantifiable
benefits of the proposed rule. The total 10-year estimated benefits
would be $2.9 million (PV, 7%) and annualized benefits would be $0.4
million (PV, 7%).

                                        Total 10-Year Discounted Benefits
                                                 [2020 dollars]
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                                                   Present value   Present value   Annualized 7%   Annualized 3%
                    Category                          7% ($)          3% ($)            ($)             ($)
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Grade Crossing Accidents........................       1,766,028       2,064,676         251,443         242,043
Train Accidents/Incidents.......................         989,123       1,156,391         140,829         135,564
Business Benefits from Fewer Activation Failures         159,526         186,503          22,713          21,864
                                                 ---------------------------------------------------------------
    Total.......................................       2,914,678       3,407,570         414,985         399,471
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    This proposed rule would also provide unquantifiable benefits. FRA
has quantified the monetary impact from accidents which is reported on
FRA accident forms. However, some accident costs are not required to be
reported on FRA accident forms (e.g., environmental impact). That
impact may account for additional benefits not quantified in this
analysis. If these costs were realized, accidents affected by this
proposed rulemaking could have much greater economic impact than
estimated quantitative benefit estimates.
    There is also a chance of a high impact event due to signal
employee error. This could involve fatalities, injuries, and
environmental damage, as well as impact railroads, communities, and the
public. FRA has not estimated the likelihood of such an accident, but
this proposed rule is expected to reduce the risk of an accident of
that magnitude.

II. Legal Authority

    Pursuant to the Rail Safety Improvement Act of 2008, Public Law
110-432, sec. 402, 122 Stat. 4884 (Oct. 16, 2008) (hereinafter
``RSIA''), the Secretary of Transportation (Secretary) was required to
submit a report to Congress addressing whether certification of certain
crafts or classes of employees, including signal repair and maintenance
employees, was necessary to reduce the number and rate of accidents and
incidents or to improve railroad safety.\4\ If the Secretary determined
it was necessary to require the certification of certain crafts or
classes of employees to reduce the number and rate of accidents and
incidents or to improve railroad safety, section 402 of the RSIA stated
the Secretary may prescribe such regulations. The Secretary delegated
this authority to the Federal Railroad Administrator. 49 CFR 1.89. In
response to the RSIA, the Secretary submitted a report to Congress on
November 4, 2015, stating that, based on FRA's preliminary research,
dispatchers and signal employees were potentially the most viable
candidate railroad crafts for certification. Based on the analysis in
Section III below, the Federal Railroad Administrator has determined
that it is necessary to require the certification of signal employees
to improve railroad safety.
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    \4\ See also 49 U.S.C. 20103 (providing FRA's general authority
to ``prescribe regulations and issue orders for every area of
railroad safety'').
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III. Background

1. Roles and Responsibilities of Signal Employees

    Railroad signal employees play an integral role in ensuring the
safety of railroad operations, as well as the safety of highway
motorists. They are responsible for the installation, testing,
troubleshooting, repair, and maintenance of signal systems, as defined
in proposed 49 CFR 246.7, which railroads utilize to direct train
movements. Signal employees must also use specialized test and
maintenance equipment to complete safety critical

tasks on mechanical, electrical, and electronic signal equipment.
    The work performed by signal employees can generally be divided
into two categories: construction and maintenance. On larger railroads,
some signal employees work in groups (often referred to as ``gangs'')
under the direct supervision and oversight of an experienced signal
employee to construct, install, and upgrade signal systems and signal
system subsystems and components. Some signal employees also work in
``gangs'' under the direct supervision and oversight of an experienced
signal employee to make repairs to the signal system, while other
signal employees (often referred to as ``signal maintainers'') are
tasked with inspecting and testing signal systems and performing minor
and emergency repairs as needed.
    The implementation of complex PTC system technology requires
increasingly sophisticated work by signal employees. PTC systems
provide another layer of safety to existing signal systems, many of
which have been place for many decades. In addition, PTC systems are
interoperable with each other, as well as with existing signal systems.
Therefore, signal employees need to understand the relationship between
signal and PTC systems and the communication medium and how these
systems operate, function, and react to a myriad of circumstances.
Signal systems and PTC systems are also continually upgraded, so the
development and implementation of these systems need to be properly
understood and monitored by both FRA and railroad signal employees.

2. FRA History of Certification

    On January 4, 1987, an Amtrak train collided with a Conrail train
in Chase, Maryland, resulting in 16 deaths and 174 injuries. At the
time, it was the deadliest train accident in Amtrak's history. The
subsequent investigation by the National Transportation Safety Board
concluded that the probable cause of the accident was the impairment of
the Conrail engineer who was under the influence of marijuana at the
time of the collision.\5\
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    \5\ Railroad Accident Report: Rear-end Collision of Amtrak
Passenger Train 94, the Colonial and Consolidated Rail Corporation
Freight Train ENS-121, on the Northeast Corridor, Chase, Maryland,
January 4, 1987 (144 Nat'l Transp. Safety Bd. 1988).
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    Following this accident, Congress passed the Rail Safety
Improvement Act of 1988, Public Law 100-342, 4, 102 Stat. 624, 625
(1988), which instructed the Secretary of Transportation (Secretary) to
``issue such rules, regulations, orders, and standards as may be
necessary to establish a program requiring the licensing or
certification of any operator of a locomotive, including any locomotive
engineer.'' On June 19, 1991, FRA published a final rule establishing a
certification system for locomotive engineers and requiring railroads
to ensure that they only certify individuals who met minimum
qualification standards.\6\ In order to minimize governmental
intervention, FRA opted for a certification system where the railroads
issue the certificates as opposed to a government-run licensing system.
This final rule, published in 49 CFR part 240 (part 240), created
certification requirements for engineers that addressed various areas
including vision and hearing acuity; training, knowledge, and
performance skills; and prior safety conduct.
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    \6\ 56 FR. 28227 (June 19, 1991).
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    Seventeen years later, Congress passed the RSIA, which mandated the
creation of a certification system for conductors. On November 9, 2011,
FRA published a final rule requiring railroads to have certification
programs for conductors and to ensure that all certified conductors
satisfy minimum Federal safety standards.\7\ The conductor
certification rule, published in 49 CFR part 242 (part 242), was
largely modeled after part 240 with some deviations based on the
different job classifications. Part 242 also included some
organizational improvements which made the regulation more streamlined
than part 240.
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    \7\ 76 FR 69801 (Nov. 9, 2011).
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3. Statutory Background for Signal Employee Certification

    In addition to requiring certification for conductors, the RSIA
required the Secretary to submit a report to Congress addressing
whether certain other railroad crafts or classes of employees would
benefit from certification. Specifically, section 402(b) of the RSIA
requires that the Secretary issue a report to Congress ``about whether
the certification of certain crafts or classes of railroad carrier or
railroad carrier contractor or subcontractor employees is necessary to
reduce the number and rate of accidents and incidents or to improve
railroad safety.'' As part of that report, section 402(c) specifically
requires the Secretary to consider ``signal repair and maintenance
employees'' as one of the railroad crafts for certification.
    After identifying a railroad craft or class for which certification
is necessary, pursuant to the report to Congress discussed above,
section 402(d) authorizes the Secretary to ``prescribe regulations
requiring the certification of certain crafts or classes of employees
that the Secretary determines . . . are necessary to reduce the number
and rate of accidents and incidents or to improve railroad safety.''

4. Report to Congress

    On November 4, 2015, the Secretary submitted the report to Congress
required under the RSIA. The report stated that, based on FRA's
preliminary research, dispatchers and signal repair employees were the
most viable candidates for certification, particularly with the
introduction of Positive Train Control (PTC) technology. In reaching
this determination with respect to signal employees, the Secretary
cited a variety of factors.
    The report noted that signal employees perform safety-sensitive
work as shown by signal employees being covered under the Hours of
Service laws. Signal employees are also subject to regular and pre-
employment random drug and alcohol testing. In 2012 and 2013, signal
employees had a positive drug testing rate that was considerably higher
than that of their train and engine service counterparts. Annual drug
and alcohol testing data submitted to FRA in 2012 and 2013 showed a
0.75-percent random positive drug rate for signal employees, as
compared to a 0.30-percent random positive drug rate for train and
engine service employees.\8\
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    \8\ Testing results submitted to FRA in 2020 and 2021 showed a
0.81-percent random violation (drug and alcohol positives and
refusals) rate and a 0.79-percent pre-employment violation rate for
signal employees, as compared to a 0.49-percent random positive drug
testing rate and a 0.55-percent pre-employment positive drug testing
rate for train and engine service employees.
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    The report also noted that the greatest proportion of contractors
covered under the Hours of Service laws are signal employees, who tend
to switch employers more frequently than other crafts of employees. In
addition, the report noted that frequent job-hopping by signal
employees makes it even more important to track their violations and
any disqualifications that may result. However, 49 CFR parts 240 and
242 require a five-year alcohol and drug background check, as well as
disqualification of employees for specified alcohol and drug test
violations and for refusing such testing. If such requirements are
included in a signal employee certification program, they could help
prevent signal employees with active substance abuse disorders from
``job hopping'' from one employer to another and reduce the safety risk
of having individuals with

untreated substance abuse disorders working as signal employees.
    Another important factor in the report was the nature of the work
signal employees perform on wayside signal and train control systems,
which are safety-critical for freight and passenger rail operations.
The report noted that, in the coming decade, the rail industry will
likely lose many experienced signal employees to retirement, while
growth in freight, commuter, and intercity passenger rail will require
that more signal employees are hired and trained.
    The report also summarized the challenges posed by PTC system
implementation, while noting the ``increasingly sophisticated work''
involved in the implementation of complex PTC system technology by
signal employees.\9\ In particular, the report noted that ``signal
employees will be required to differentiate between a vital and non-
vital PTC system \10\ and to address the technicalities of using
standalone or overlay PTC systems.'' \11\ This combination of factors
led to the report's conclusion that signal employees are a potentially
viable candidate craft for certification.
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    \9\ See 2015 DOT Report to Congress on Certification of Railroad
Crafts at 3.
    \10\ PTC systems vary widely in complexity and sophistication
based on the level of automation and functionality they implement,
the system architecture used, the wayside system upon which they are
based (i.e., non-signaled, block signal, cab signal, etc.), and the
degree of train control they are capable of assuming. Vital systems
are reliable and built upon failsafe principles, while non-vital
systems are reliable but not guaranteed to provide failsafe
operation.
    \11\ See 2015 DOT Report to Congress on Certification of
Railroad Crafts at 3. An overlay system relies upon and supplements
an existing wayside signal system or redundant method of operation.
A standalone system replaces the existing method of operation.
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5. RSAC Working Group

    In March 1996, FRA established the Railroad Safety Advisory
Committee (RSAC), which provides a forum for collaborative rulemaking
and program development. RSAC includes representatives from all of the
agency's major stakeholder groups, including railroads, labor
organizations, suppliers and manufacturers, and other interested
parties. When appropriate, FRA assigns a task to RSAC, and after
consideration and debate, RSAC may accept or reject the task. If
accepted, RSAC establishes a working group that possesses the
appropriate expertise and representation of interests to develop
recommendations to FRA for action on the task.
    On April 21, 2017, a task statement regarding certification of
signal employees was presented to the RSAC by email but no vote was
taken. On April 24, 2019, the RSAC accepted a task (No. 19-03)
entitled, ``Certification of Railroad Signal Employees.'' \12\ The
purpose of the task was ``[t]o consider whether rail safety would be
enhanced by developing guidance, voluntary standards, and/or draft
regulatory language for the certification of railroad signal
installation, repair, and maintenance workers.'' The task called for
the RSAC Signal Employee Working Group (Working Group) to perform the
following actions:
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    \12\ At the same meeting, the RSAC also accepted a task (No. 19-
02) titled ``Certification of Train Dispatchers.'' A separate RSAC
Working Group was formed to address this task and FRA plans to issue
a related proposed rule that would establish certification
requirements for dispatchers.

--Review critical tasks performed by railroad signalmen for safe train
operations, particularly with the introduction of Positive Train
Control (PTC) technology;
--Review training duration, content, and methodology for new hires and
continuing education.
--Review background checks designed to prevent railroad signalmen with
active substance abuse disorders from ``job-hopping'' from one employer
to another.

    The revised task statement also asked the Working Group to address
the following issues, if appropriate:

--What requirements for training and experience are appropriate?
--What classifications of signalmen should be recognized, if any?
--To what extent do existing requirements and procedures for the
certification of locomotive engineers and conductors provide a model
for signalmen certification?
--What types of unsafe conduct should affect railroad signalmen's
certification status?
--Do the existing locomotive engineer and conductor certifications
provide an adequate model for handling appeals from decertification
decisions of the railroads?

    The Working Group, which included representatives from the
Association of American Railroads (AAR), American Public Transportation
Association (APTA), American Short Line and Regional Railroad
Association (ASLRRA), Brotherhood of Railroad Signalmen (BRS), SMART
Transportation, Commuter Rail Coalition, and National Railroad
Construction & Maintenance Association, held its first and only meeting
on September 5, 2019 in Washington, DC At this meeting, the Working
Group reviewed the task statement from the RSAC, discussed some of the
safety-critical tasks performed by signal employees, and debated
whether certification of signal employees would be beneficial to
railroad safety. At the end of the meeting, action items were assigned
and the next meeting was tentatively scheduled for January 2020.
    However, on December 16, 2019, the presidents of the American Train
Dispatchers Association, BRS, and the International Brotherhood of
Electrical Workers (collectively the ``Unions'') sent a letter to the
FRA Administrator requesting that the RSAC task be withdrawn from
consideration. The letter stated the Unions were involved in numerous
activities and were not able to give the task proper attention. AAR and
ASLRRA advised the unions that they were not opposed to this request.
In response to this letter, FRA withdrew the task from the RSAC and the
Working Group became inactive.

6. Public Outreach

    In 2021, FRA revisited the issue of establishing certification
requirements for signal employees. The agency assembled subject matter
experts from FRA, the International Brotherhood of Electrical Workers
(IBEW) and the Brotherhood of Railroad Signalmen to exchange facts or
information regarding the tasks performed by signal employees. Those
parties met virtually several times between May 5, 2021 and June 30,
2021.
    As part of FRA's outreach, a list of tasks performed by signal
employees was developed. These tasks generally involved: vital
equipment design validation, installation, calibration, testing,
maintenance, and repair (interlockings, grade crossings, wayside signal
systems, PTC, etc.). FRA reviewed each task to determine whether
correctly performing the task was critical to railroad safety; what
were the potential consequences if errors were made while performing
the task; and whether there were any recent examples of issues or
concerns with respect to the task. After performing this analysis, FRA
concluded that the vast majority of tasks performed by signal employees
(80-90% of the listed tasks) were critical to railroad safety with
potentially catastrophic consequences, such as accidents, injuries,
and/or deaths, if the tasks were not performed properly.
    During FRA's outreach, the benefits of certification based on the
experience of stakeholders with engineer and conductor certification
under 49 CFR parts 240 and 242 were also discussed. Some of the main
benefits of

certification that were identified include:
--Creating a minimum standard for training to ensure that the training
encompasses all skills and proficiencies necessary to properly perform
all safety-related signal employee functions;
--Establishing a record of safety compliance that will follow a signal
employee if they wish to become certified by another railroad and that
can be used to review a signal employee's performance and potential
training needs;
--Requiring certain safety checks, such as identifying active substance
abuse disorders, that can minimize the risks posed by job hopping; and
--Establishing a system for individuals to dispute a railroad's
decision to deny or revoke certification with the aim of creating a
fair and consistent process for all parties.

    Based on these meetings, FRA concluded that requiring certification
for signal employees would be an important tool to ensure signal
employees performing safety-sensitive tasks are adequately trained and
qualified and have a documented record of performance that is
accessible to prospective employers.
    Following this initial outreach, FRA held a follow-up conversation
with BRS and IBEW, on March 3, 2022, and individuals from the BRS and
IBEW informed FRA of elements that they believe would be beneficial in
a signal employee certification program. During this conversation,
which was held in videoconference format, FRA asked the attendees to
provide individualized feedback on how similar or different a signal
employee certification rule should be to FRA's locomotive engineer and
conductor certification rules found in 49 CFR parts 240 and 242.
    FRA heard that the agency needs to ensure that comprehensive
training is provided to signal employees as the current training is
inadequate. FRA also heard that railroads are not providing enough
training on new equipment and new technology for signal employees. It
was also noted that, in some cases, signal employees are being required
to use new equipment and new technology without having received any
prior training on the equipment or technology.
    On March 7, 2022, FRA had a conversation with the railroad
industry, including Norfolk Southern Corporation (NS), ASLRRA, and AAR.
During this conversation, which was conducted in a videoconference
format, FRA also asked for individualized feedback on how FRA's
locomotive engineer and conductor certification regulations in 49 CFR
parts 240 and 242 could be improved upon with respect to signal
employee certification. Specifically, FRA asked for feedback on any
regulatory provisions in 49 CFR parts 240 and 242 that, in their
experience, may have been difficult to implement, as well as whether
FRA should explore any changes to these regulatory provisions.
    AAR expressed opposition to FRA's proposal to issue regulations
requiring certification of signal employees arguing that there was not
a safety benefit to certification. In addition, NS questioned the need
for certification regulations in the absence of any identified gaps in
coverage by existing railroad training programs.
    ASLRRA expressed concern that FRA's proposal to issue regulations
requiring certification of dispatchers and signal employees would
result in a big paperwork burden with little benefit. In addition,
ASLRRA asserted that most shortline railroads do not have signal
systems. With respect to grade crossings, ASLRRA asserted that most
shortline railroads rely on contractors to maintain their grade
crossing warning systems.
    After this conversation, FRA provided a short list of written
questions to AAR and ASLRRA. While AAR did not provide additional
feedback in response to FRA's list of questions, ASLRRA responded to
FRA's list of written questions by email on April 13, 2022, a copy of
which has been placed in the docket.\13\
---------------------------------------------------------------------------

    \13\ A record of public contact summarizing this meeting has
been posted in the rulemaking docket at: https://www.regulations.gov/document/FRA-2022-0020-0003.
---------------------------------------------------------------------------

    On March 8, 2022, FRA staff had a follow-up conversation with BRS
and IBEW to receive information on the types of errors and grade
crossing and signal violations that should result in a railroad
revoking a signal employee's certification. During this conversation,
which was conducted in a videoconference format, FRA heard that it
might be appropriate to revoke a signal employee's certification in
response to willful violations.

7. Contractors

    FRA considered whether railroad contractors (and subcontractors)
should be authorized to certify their employees. FRA did not, however,
include that option in this proposed rule. Instead, consistent with
FRA's engineer and conductor certification regulations, this proposed
rule requires railroads to develop and submit certification programs to
FRA for approval and then implement their FRA-approved certification
programs. FRA is proposing to adopt this approach because railroads are
ultimately held responsible for the actions (or failure to act) of
their employees, contractors, and subcontractors when engaged in
railroad operations.
    FRA acknowledges that signal employee tasks are being subcontracted
out by railroads to companies that specialize in this work. However,
railroads are generally most knowledgeable about the signal systems
that have been deployed on their territories. Therefore, railroads are
best suited to develop certification programs that are needed to ensure
all signal employees responsible for installing, troubleshooting,
testing, repair, or maintenance of railroad signal systems, as defined
in Sec.  246.7, have been properly trained and certified on: (a) all
applicable Federal rail safety laws, regulations, and orders governing
the installation, testing, repair, and maintenance of these systems;
and (b) all railroad rules and procedures promulgated to implement
those Federal rail safety laws, regulations, and orders. In addition,
by keeping certification programs in-house, railroads can implement
quality control measures to ensure that their FRA-approved
certification programs are being implemented properly.
    Nonetheless, FRA is soliciting comment on the approach adopted in
this proposed rule, which would require railroads to develop and
implement FRA-approved signal employee certification programs. To ease
any potential burden, especially on Class III railroads, the proposed
rule would allow all railroads to choose between conducting the
training or using a training program conducted by a third party, which
would be adopted and ratified by the railroad. In addition, contractors
that employ signal employees could help railroads comply with the
requirements in this proposed rule by providing information about their
signal employees' compliance with some of the proposed regulatory
requirements. For example, contractors could provide information about
their signal employees' compliance with the vision and hearing acuity
requirements in the proposed rule. Under this proposed rule, however,
railroads would ultimately be responsible for ensuring that certified
signal employees are installing, testing, maintaining, and repairing
their signal systems.

8. Interaction With Other FRA Regulations

    While developing this proposed rule, FRA has been mindful of other
regulations that may touch upon topics covered in this proposed rule,
including FRA's training, qualification, and oversight regulations in
49 CFR part 243 (part 243); railroad safety risk reduction programs
(SSP/RRP) in 49 CFR parts 270 and 271 (parts 270 and 271); and fatigue
risk management programs (FRMP) in parts 270 and 271. However, FRA
finds that this proposed rule would complement, rather than duplicate,
those regulations.
    Signal employees are currently included in part 243's requirements
for training, qualification, and oversight for safety-related railroad
employees. However, part 243 does not require railroads to have formal
processes in place for promptly removing signal employees from service
if they violate one or more basic regulatory standards that could have
a significant negative impact on the safety of rail operations. FRA's
proposed signal employee certification requirements have been drafted
to help address this void, as well as prevent signal employees who have
been fired for committing one or more of the revocable events discussed
in the proposed rule from ``job hopping'' and quickly resuming safety-
sensitive service at a different railroad that is unaware of the signal
employee's prior violation(s) of FRA's rail safety regulations.
    As codified in parts 270 and 271, FRA requires Class I railroads,
railroads with inadequate safety performance, and passenger rail
operations to implement railroad safety risk reduction programs. A
railroad safety risk reduction program is a comprehensive, system-
oriented approach to safety that determines an operation's level of
risk by identifying and analyzing identified hazards and developing
strategies to mitigate risks associated with those hazards. In this
background, FRA is using the term ``railroad safety risk reduction
programs'' to include both a ``system safety program'' (SSP) that is
required for certain passenger rail operations \14\ and a ``risk
reduction program'' (RRP) that is required for a limited number of
other rail operations.\15\ Although a railroad safety risk reduction
program might address a railroad's safety hazards and risks associated
with its signal employees, the framework established by these programs
neither directly addresses the risks associated with signal systems nor
establishes an industry-wide approach.
---------------------------------------------------------------------------

    \14\ 49 CFR 270.3 (requiring the application of the system
safety program rule to certain passenger rail operations).
    \15\ 49 CFR 271.3 (requiring the application of the risk
reduction program rule to certain rail operations).
---------------------------------------------------------------------------

    First, not every railroad is required to have a railroad safety
risk reduction program. Indeed, FRA estimates that fewer than 100
railroads (out of approximately 750 railroads under FRA's jurisdiction)
will be required to develop a railroad safety risk reduction program
over the next 10 years.
    Second, even if a railroad is required to have a railroad safety
risk reduction program through which it identifies the risks associated
with installing, testing, maintaining, and repairing signal systems,
the railroad may decide not to implement mitigations to eliminate or
reduce those specific risks. Parts 270 and 271 permit railroads to
prioritize risks.\16\ Whether a railroad is required to have a program
that mitigates risks associated with signal systems will depend on how
the railroad prioritizes risks for mitigation and how effectively that
mitigation would promote continuous safety improvement compared to
mitigation of other identified hazards and risks. Thus, even if signal
systems are identified as a risk, a railroad may not implement
mitigations to eliminate or reduce that risk.
---------------------------------------------------------------------------

    \16\ See e.g., 49 CFR 270.5 (definition of ``risk-based hazard
management'') and 271.103(b)(3).
---------------------------------------------------------------------------

    Accordingly, this proposed rule may complement the SSP/RRP
requirements but does not duplicate those requirements. Without this
proposed rule, railroads may not be required to implement mitigations
to address identified safety risks associated with signal systems
across the entire industry.
    With respect to FRMPs,\17\ an FRMP is a comprehensive, system-
oriented approach to safety in which a railroad determines its fatigue
risk by identifying and analyzing applicable hazards and developing
plans to mitigate, if not eliminate, those risks. Like the SSP/RRP
rules, the FRMP rule is part of FRA's continual efforts to improve rail
safety and satisfies the statutory mandate of Section 103 of the
RSIA.\18\
---------------------------------------------------------------------------

    \17\ On June 13, 2022, FRA published a final rule adding a FRMP
to the railroad safety risk reduction program requirements in parts
270 and 271. 85 FR 83484.
    \18\ Codified at 49 U.S.C. 20156.
---------------------------------------------------------------------------

    Like the SSP/RRP requirements, there is no guarantee that any
railroad covered by the regulation will use an FRMP to address signal
issues. As with the SSP/RRP rules, a covered railroad must identify
fatigue hazards, assess the risks associated with those fatigue
hazards, and prioritize those risks for mitigation purposes. It is
possible that other fatigue risks, not associated with signal systems,
might rank higher, in which case the risk associated with signal
systems might not be promptly mitigated. Further, because the FRMP
requirements would apply only to those railroads required to comply
with the SSP/RRP requirements, an FRMP would not be required of every
railroad. Thus, like the SSP/RRP rules, this proposed rule is
complementary to the FRMP final rule and is not duplicative.

IV. Section-by-Section Analysis

Subpart A--General

    Subpart A of the proposed rule contains general provisions,
including a formal statement of the proposed rule's purpose and scope.
The subpart also provides that this proposed rule does not constrain
the ability of a railroad to prescribe additional or more stringent
requirements for its signal employees that are not inconsistent with
this proposed rule.
Section 246.1 Purpose and Scope
    This proposed section, derived from 49 CFR 240.1 and 242.1,
indicates that the purpose of the proposed rule is to ensure that only
those persons who meet minimum Federal safety standards serve as
certified signal employees, to reduce the rate and number of accidents
and incidents, and to improve railroad safety.
    Even though a person may have a job title other than signal
employee, the requirements of this proposed rule would apply to that
person if they meet the definition of ``signal employee'' without
regard to the class or craft of the employee or the manner in which the
employee is compensated, if at all. The definition of ``signal
employee,'' and an explanation of who is covered by the definition, are
discussed in more detail in the section-by-section analysis for Sec.
246.7, below.
Section 246.3 Application and Responsibility for Compliance
    The extent of FRA's jurisdiction, and the agency's exercise of that
jurisdiction, is well-established. See 49 CFR part 209, app. A. This
proposed application and responsibility for compliance section is
consistent with FRA's Statement of Agency Policy Concerning Enforcement
of the Federal Railroad Safety Laws in appendix A to 49 CFR part 209
(Policy Statement).
    This proposed section, derived from 49 CFR 240.3 and 242.3,
provides that the proposed rule would apply to all railroads with four
exceptions.

Paragraph (a)(1) of this section notes that this proposed rule would
not apply to railroads that do not have a signal system, as defined in
Sec.  246.7. In paragraph (a)(2), FRA proposes to exempt operations
that occur within the confines of industrial installations commonly
referred to as ``plant railroads'' and typified by operations such as
those in steel mills that do not go beyond the plant's boundaries and
that do not involve the switching of rail cars for entities other than
themselves. Further explanation of what is meant by the term ``plant
railroad'' is provided in the section-by-section analysis for Sec.
246.7.
    In paragraph (a)(3), FRA is also proposing to exclude ``tourist,
scenic, historic, and excursion operations conducted only on track used
exclusively for that purpose . . . and only on track inside an
installation that is insular.'' In other words, FRA is proposing to
exclude tourist, scenic, historic, or excursion operations conducted
only on track where there is no freight, intercity passenger, or
commuter passenger railroad operations on the track. In addition, FRA
is proposing to consider insularity when determining whether the
requirements of this proposed rule apply to a tourist, scenic,
historic, or excursion operation. As explained in the Policy Statement,
FRA considers a railroad to be ``insular'' if its operations are
limited to a separate enclave in such a way that there is no reasonable
expectation that the safety of any member of the public (except a
business guest, a licensee of the tourist operation or an affiliated
entity, or a trespasser) would be affected by the operation. A railroad
is not considered insular if one or more of the following exists on its
line: (a) A public highway-rail grade crossing that is in use; (b) an
at-grade rail crossing that is in use; (c) a bridge over a public road
or waters used for commercial navigation; or (d) a common corridor with
a railroad (i.e., its operations are within 30 feet of those of any
railroad). In addition, when determining insularity for purposes of
this proposed rule, FRA would consider whether a public pathway grade
crossing is located on the railroad line. FRA is proposing to add this
criterion to the determination of insularity for purposes of this
proposed rule, in recognition of the potential safety risks associated
with the use of public pathway grade crossings by members of the
general public.
    FRA believes that applying the proposed regulatory requirements in
this part to signal employees who work on non-insular passenger rail
operations off the general system is warranted by the potential risk to
passengers associated with accidents involving heavy motor vehicles.
FRA acknowledges that a passenger railroad off the general system may
be considered non-insular, yet have only private grade crossings on its
line of railroad. Due to the non-insular status of the railroad, signal
employees who install, maintain, test, or repair train-activated
warning devices at those private grade crossings or who install,
maintain, test, or repair signal systems on its line would be subject
to this rule.
    The final proposed exclusion in Sec.  246.3(a)(4) covers rapid
transit operations in an urban area that are not connected to the
general railroad system of transportation. It should, however, be noted
that FRA exercises jurisdiction over some rapid transit type
operations, given their links to the general railroad system of
transportation, such as rapid transit operations conducted on track
used for freight, intercity passenger, or commuter passenger railroad
operations, during a block of time during which a general system
railroad is not operating (temporal separation). Thus, this proposed
rule would apply to persons who perform work on signal systems for
those rapid transit type operations.
    Paragraph (b) is intended to clarify that any person, as defined in
Sec.  246.7 (including a railroad employee or employee of a railroad
contractor) who performs a function required by this part will be held
responsible for compliance.
Section 246.5 Effect and Construction
    This proposed section is derived from 49 CFR 240.5 and 242.5.
Paragraph (a) addresses the relationship of this proposed rule to
preexisting legal relationships. Paragraph (b) states that FRA does not
intend to alter the authority of a railroad to initiate disciplinary
sanctions against its employees by issuance of this proposed rule.
    Paragraph (c) of this section is intended to note that, as a
general matter, FRA does not intend to create or prohibit the right to
``flowback'' or take a position on whether ``flowback'' is desirable.
The term ``flowback'' has been used in the industry to describe a
situation where an employee leaves their current position to return to
a previously held position or craft. The reasons for reverting back to
the previous craft may derive from personal choice or a less voluntary
nature (such as downsizing). Many collective bargaining agreements
address the issue of flowback. However, paragraph (c) must be read in
conjunction with Sec.  246.213, which would limit flowback in certain
situations (i.e., when a certificate is revoked due to an alcohol or
drug violation).
    Paragraph (d) of this proposed section addresses employee rights.
The proposed rule would explicitly preserve any remedy already
available to the person and would not create any new entitlements.
Section 246.7 Definitions
    This section defines a number of terms that have specific meaning
in this proposed part. Some of these terms have definitions that are
similar to, but may not exactly mirror, definitions used elsewhere in
this chapter.
    Contractor, as defined in this proposed part, would include prime
contractors, as well as subcontractors. This definition, which mirrors
the definition of ``contractor'' in 49 CFR part 243, has been included
in this section to help explain FRA's intent that the requirements of
this part which apply to railroad contractors are also intended to
apply to railroad subcontractors as well.
    Disable, as defined in this proposed part, would mean to render a
device [or system] incapable of proper and effective action or to
materially impair the functioning of that device. In the interest of
consistency, this proposed definition is very similar to the definition
of ``disable'' provided in Sec.  218.53 of FRA's railroad operating
practices regulations. However, for purposes of this proposed part, the
term ``disable'' would include situations in which a device or system
is lawfully rendered incapable of proper and effective action.
    Consistent with parts 240 and 242, FRA proposes to define ``drug''
as any substance (other than alcohol) that has known mind- or function-
altering effects on an individual, specifically including any
psychoactive substance and including, but not limited to, controlled
substances. This term is intended to refer to substances that have a
significant potential for abuse and/or dependence. Normal ingestion of
caffeine in beverages and use of nicotine from tobacco products, even
though involving some degree of habituation or dependence, are not
intended to be included within the definition.
    In this proposed part, the terms ``ineligible'' and
``ineligibility'' would be catch-all terms that not only encompass
revocation and denial of certification, but also cover other situations
in which a signal employee would be legally disqualified from serving
as a signal employee. For example, a certified signal employee

may voluntarily refer him or herself for substance abuse counseling or
treatment under 242.115(c). If the signal employee then refuses to
complete a course of action recommended under the provisions of 49 CFR
219.1003, that would not be an operating rule or procedure, or type of
alcohol or drug violation that would require revocation (nor would it
require denial of certification). Rather the signal employee would
simply remain ``ineligible'' until a railroad determined that the
person no longer had a substance abuse disorder, or the person re-
entered a substance abuse program and it had been determined under the
provisions of 49 CFR 219.1003 that the person could safely return to
duty under certain conditions.
    In this proposed part, mentor would be defined as a certified
signal employee who has at least one year of experience as a certified
signal employee. FRA is proposing to define the term, ``mentor,'' to
help clarify that a mentor provides direct supervision and oversight
over the work of one or more signal employees.
    In this proposed part, person would take on the same meaning as it
does in FRA's other safety rules. The proposed definition is intended
to clarify that this term does not apply merely to individual persons.
Instead, the term would mean ``an entity of any type covered under 1
U.S.C. 1'' and the proposed definition goes into detail regarding the
types of people and entities that are covered.
    FRA proposes a definition of plant railroad to aid in the
understanding of the application of this part pursuant to section
246.3(a)(1). The definition coincides with FRA's longstanding
explanation of how the agency will not exercise jurisdiction over a
plant railroad that does not operate on the general system of
transportation and does not move cars for other entities. See 49 CFR
part 209, app. A.
    Although the RSIA required FRA to issue a report to Congress on
whether the certification of certain crafts or classes of railroad
carrier or railroad carrier contractor or subcontractor employees,
including ``signal repair and maintenance employees,'' is necessary to
reduce the number and rate of accidents and incidents or to improve
railroad safety, the RSIA did not define the term, ``signal repair and
maintenance employees.'' In the absence of such a definition in the
RSIA, FRA proposes to use the streamlined term, ``signal employee.''
FRA also proposes to define this streamlined term, ``signal employee,''
as a person who is engaged in installing, troubleshooting, testing,
repair, or maintenance of railroad signal systems, highway-rail and
pathway grade crossing warning systems, unusual contingency detection
devices, power-assisted switches, broken rail detection systems, and
switch-point indicators, as well as other safety-related devices,
appliances, and systems installed on the railroad in signaled or non-
signaled territory. This proposed definition is generally consistent
with the definition of ``signal employee'' in the hours of service law
but includes the terms ``troubleshooting'' and ``testing'' which are
not found in the statutory definition.\19\
---------------------------------------------------------------------------

    \19\ 49 U.S.C. 21101(4). The hours of service law defines
``signal employee'' as ``an individual who is engaged in installing,
repairing, or maintaining signal systems.'' 49 U.S.C. 21101(4).
While FRA believes ``troubleshooting'' and ``testing'' would fall
under the terms ``installing, repairing, or maintaining'' in the
hours of service law definition, FRA wanted to make explicit in this
rule that ``troubleshooting'' and ``testing'' are included in the
definition of ``signal employee.'' The addition of
``troubleshooting'' and ``testing'' in the proposed definition in
this rule is not intended to capture a broader group of employees
than provided in the hours of service law.
---------------------------------------------------------------------------

    Consistent with parts 240 and 242, the term ``substance abuse
disorder'' is defined as 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.
    This proposed definition would include drug and alcohol users who
engage in abuse patterns which result in ongoing safety risks and
violations. A substance abuse disorder is ``active'' within the meaning
of this proposed rule if the person (1) is currently using alcohol or
other drugs, except under medical supervision consistent with the
restrictions described in Sec.  219.103 of this chapter or (2) has
failed to successfully complete primary treatment or successfully
participate in aftercare as directed by a Substance Abuse Professional
(SAP) or Drug and Alcohol Counselor (DAC).
Section 246.9 Waivers
    This proposed section, derived from 49 CFR 240.9 and 242.9,
provides the proposed requirements for a person seeking a waiver of any
section of this proposed rule.
Section 246.11 Penalties and Consequences for Noncompliance
    This proposed section, derived from 49 CFR 240.11 and 242.11,
explains that FRA may impose civil penalties on any person, including a
railroad or a contractor providing goods or services to a railroad,
that violates any requirement of this proposed rule. Any person who
violates a requirement of this proposed rule may be subject to civil
penalties between the minimum and maximum amounts authorized by statute
and adjusted for inflation per violation. Individuals may be subject to
penalties for willful violations only. Where a pattern of repeated
violations, or a grossly negligent violation creates an imminent hazard
of death or injury, or causes death or injury, an aggravated maximum
penalty may be assessed.\20\ Finally, a person may be subject to
criminal penalties under 49 U.S.C. 21311 for knowingly and willfully
falsifying reports required by these proposed regulations.
---------------------------------------------------------------------------

    \20\ Please visit FRA's website for the current aggravated
maximum penalty amount at https://railroads.dot.gov/.
---------------------------------------------------------------------------

    Consistent with FRA's final rule regarding the removal of civil
penalty schedules from the CFR (84 FR 23730 (May 23, 2019)), FRA will
not publish a civil penalty schedule for this rule in the CFR, but
plans to publish a civil penalty schedule on its website. Penalty
schedules are statements of agency policy, thus notice and comment are
not required prior to their issuance, nor are they required to be
published in the CFR. See 5 U.S.C. 553(b)(3)(A). Nevertheless,
commenters are invited to suggest the types of actions or omissions
under each regulatory section that would subject a person to the
assessment of a civil penalty. Commenters are also invited to recommend
what penalty amounts may be appropriate, based upon the relative
seriousness of each type of violation.

Subpart B--Program and Eligibility Requirements

Section 246.101 Certification Program Required
    This proposed section, derived from 49 CFR 240.101 and 242.101,
would require railroads to have written certification programs
comprised of multiple elements, each of which comports with specific
regulatory provisions in the proposed rule related to that element. In
addition to these required elements, paragraph (b)(1) would require
railroads who elect to classify their certified signal employees into
multiple occupational categories (and, in some cases, subcategories) to
explain and discuss each category or subcategory of certified signal
employees.
    Paragraph (c) would require railroads to maintain version control
for their certification programs. Therefore, railroads would be
required to maintain an up-to-date, detailed list or index

tracking every change made to their certification programs. FRA would
encourage railroads to maintain a redlined version of their
certification programs to reflect changes that have been made over the
years in context.
Section 246.103 FRA Review of Certification Programs
    This proposed section, derived from 49 CFR 240.103 and 242.103,
describes the process for the submission and review of signal employee
certification programs. Paragraph (a) of this section applies to
railroads that have a signal system, as defined in Sec.  246.7, in
operation prior to the effective date of the final rule and provides
the deadlines for when these railroads would be required to submit
their certification programs to FRA. (Paragraph (a) would not, however,
apply to railroads that are exempted by Sec.  246.3(a)). The submission
schedule in paragraph (a) would require Class I railroads and commuter
service railroads to submit their programs earlier than Class II
railroads, Class III railroads, and railroads not otherwise classified.
The separate deadlines would help space out the initial influx of
programs FRA will receive after the final rule goes into effect, to
allow FRA to issue approval and disapproval decisions in a more timely
manner. FRA also presumes that, in general, Class I railroads and
commuter service railroads will have more resources to devote to
creating these programs and will be better positioned to create and
draft them more quickly.
    Paragraph (b) of this section would only apply to railroads that
commence operations after the effective date of the final rule. Prior
to installing, implementing, or operating any signal system as defined
in Sec.  246.7, these railroads would be required to submit their
signal employee certification program to FRA and obtain FRA approval.
    Paragraph (c) of this section provides that railroads would submit
their programs and their requests for approval (which are described in
greater detail in Sec.  246.106(a)) by uploading them to FRA's secure
document submission site. This will allow for more efficient processing
and will significantly reduce the risk of a program submission getting
lost. FRA will need basic information from each railroad before setting
up the user's account. In order to provide secure access, information
regarding the points of contact will be required. It is anticipated
that FRA will be able to approve or disapprove all or part of a program
and generate automated notifications by email to a railroad's points of
contact.
    FRA does not intend to develop a secure document submission site
that would allow confidential materials to be identified and not shared
with the general public. This is because FRA does not expect the
information in a program to be confidential or proprietary,
particularly since each railroad would be required to share the program
submission, resubmission, or material modification with the president
of each labor organization that represents the railroad's certified
signal employees and the program will be available on FRA's website.
See Sec.  246.103(d) and (j). Accordingly, FRA does not at this time
believe it is necessary to develop a document submission system to
address confidential materials.
    When a railroad submits its certification program to FRA, paragraph
(d) of this section would require the railroad to also submit a copy of
the program and the request for approval to the president of each labor
organization that represents the railroad's signal employees and to all
of the railroad's signal employees who would be subject to this part.
The railroad's submission to FRA must include a statement affirming
that it has provided a copy of the program and the request for approval
to the president of each labor organization that represents its signal
employees and to all of the railroad's signal employees who would be
subject to this part. In addition, the railroad would be required to
include a list of the names and email addresses of each labor
organization president who received a copy of the program.
    Paragraph (e) of this section explains who would be allowed to
comment on these programs. For signal employees who are members of a
labor union, any comments must be submitted by a designated
representative. Signal employees who are not members of a labor union
would, however, be permitted to personally submit comments on their
railroad's certification program. FRA anticipates that comments
submitted through this process will assist the agency in determining
whether a program conforms to the requirements set forth in this rule,
and thus, FRA will not make a decision on a program until after the 45-
day comment period in paragraph (e)(1) has passed.
    Paragraph (f) of this section states FRA's aspirational goal to
decide on whether to approve a program within 90 days of the date that
the program is submitted. However, this would only be a goal and not a
deadline for the agency. Paragraph (f)(3) explains that if FRA is
unable to issue a decision on the program within 90 days, the program
will not be considered approved on the 91st day. A certification
program will not be approved until FRA issues a letter notifying the
railroad that its program has been approved. While FRA will make every
effort to issue approval and disapproval letters within 90 days, FRA
recognizes that this will not always be possible. It may be especially
difficult for FRA to meet this goal during the initial implementation
of the final rule issued in this rulemaking when FRA expects to receive
many certification programs within a relatively short period of time.
    Paragraph (g) of this section addresses the process for railroads
who wish to materially modify their previously approved programs. If a
railroad wishes to materially modify its certification program, it must
submit two documents to FRA: (1) a description of how it intends to
modify its current program (this constitutes the request for approval
required under Sec.  246.106(a)); and (2) a copy of the modified
program. Paragraph (g)(1) defines a ``material modification'' as a
modification that ``would affect the program's conformance with this
part.'' This definition is taken from 49 CFR 240.103(h)(1) and
242.103(i)(1) and is intentionally broad to cover many different types
of program modifications. FRA recognizes that there may be some desire
among some interested parties to have a more specific definition of
``material modification'' in the regulation. Thus, FRA welcomes any
comments on suggested changes to the proposed definition of ``material
modification.''
    Paragraph (g)(3) explains that the process for submission and
review of material modifications mirrors the process for submission and
review of initial certification programs. Railroads would be required
to submit their material modifications to FRA in conformance with
paragraph (c) of this section and would be required to send a copy of
the material modification description and the modified program to all
required parties referenced in paragraph (d) of this section. Certain
interested parties would be allowed to comment on the modification in
conformance with paragraph (e) of this section, and FRA would issue a
letter either approving or disapproving the material modification in
conformance with paragraph (f) of this section. If FRA approves the
material modification, the railroad could begin implementing the
modification and the modified program would replace the original
program. If

FRA disapproves the material modification, the railroad would not be
allowed to implement the modification and the original program must
remain in effect. If a railroad's material modification submission
contains multiple modifications, FRA reserves the right to approve some
modifications while disapproving other modifications. In such an
instance, the railroad could only begin implementing those
modifications that FRA has approved.
    Paragraph (h) of this section describes the process to resubmit a
program or material modification that was previously disapproved by
FRA. Paragraph (h)(2) notes that the process for submission and review
of resubmitted programs and material modifications mirrors the process
for submission and review of initial certification programs. Railroads
would resubmit their initial programs or material modifications to FRA
in conformance with paragraph (c) of this section and would send a copy
of the resubmitted program or material modification to all required
parties referenced in paragraph (d) of this section. Certain interested
parties would be allowed to comment on the resubmitted program or
material modification in conformance with paragraph (e) of this section
and FRA would issue a letter either approving or disapproving the
resubmitted program or material modification in conformance with
paragraph (f) of this section.
    Railroads would, however, remain responsible for maintaining their
signal systems, as defined in Sec.  246.7, in compliance with Federal
regulations even if rail operations cease or have not yet been
initiated.
    Paragraph (h)(3) provides the deadlines, if any, for when a
railroad must resubmit its certification program or material
modification to FRA. For railroads that have installed or implemented a
signal system, as defined in Sec.  246.7, prior to the effective date
of the final rule (legacy railroads), if their initial certification
program is disapproved by FRA, the railroad would be required to
resubmit its program within 30 days of the date FRA notified the
railroad that its program was deficient. If a legacy railroad fails to
resubmit its program within 30 days and continues operations, FRA may
use its enforcement discretion to determine whether enforcement action
against the railroad is warranted.
    FRA believes a 30-day deadline is needed for legacy railroads
because Sec.  246.105(a) allows legacy railroads to continue operations
while they await FRA approval of their programs. Thus, without a
deadline, legacy railroads could purposely delay coming into compliance
with the final rule issued in this rulemaking by taking months or even
years to resubmit their programs. In contrast, railroads that begin
operations after the effective date of the final rule cannot begin
operations until FRA approves their program. Likewise, no railroad
(legacy or non-legacy) can implement a material modification to its
program until FRA has approved the modification. In these scenarios, a
deadline is unnecessary because the railroad has every incentive to
resubmit its programs or material modifications in a timely manner.
However, while there is no FRA-imposed deadline in these scenarios, FRA
still recommends that railroads provide their resubmissions within 30
days of being notified of deficiencies.
    Paragraph (i) of this section acknowledges that FRA reserves the
right to revisit its prior approval of a certification program. In
certain circumstances, including an audit of a certification program,
FRA may discover that it made an error when it previously approved a
program. This paragraph allows FRA to rescind a wrongful prior approval
while also providing the railroads with certain rights. Paragraph
(i)(3) notes that the process for submission and review of programs
whose prior approval has been rescinded mirrors the process for
submission and review of initial certification programs and
resubmission of initially disapproved programs. Railroads would
resubmit their programs to FRA in conformance with paragraph (c) of
this section and they would send a copy of the resubmitted program to
all required parties referenced in paragraph (d) of this section.
Certain interested parties would be allowed to comment on the
resubmitted program in conformance with paragraph (e) of this section,
and FRA would issue a letter either approving or disapproving the
resubmitted program in conformance with paragraph (f) of this section.
    Paragraphs (i)(6) and (i)(7) allow for a grace period where a
rescinded program may remain in effect for a certain period of time.
However, once FRA approves a resubmitted program, the resubmitted
program must replace the rescinded program. In addition, a rescinded
program can no longer remain in effect if FRA has twice disapproved the
railroad's resubmitted program. This latter scenario is best explained
through an example: On February 10th, FRA notifies ABC Railroad (ABC)
that FRA is rescinding its prior approval of the railroad's signal
employee certification program. On March 10th, ABC resubmits its
program to FRA. On June 10th, FRA disapproves ABC's resubmitted
program. On July 10th, ABC sends FRA its second resubmitted program. On
October 10th, FRA issues a letter once again disapproving ABC's
program. In this example, ABC's rescinded program could remain in
effect between February 10th and October 10th. However, after October
10th, the rescinded program could no longer be in effect. If ABC
continued to operate its signal system after October 10th, when it did
not have an FRA-approved certification program, FRA could find that the
railroad failed to implement a program. In such cases, FRA would
determine the appropriate enforcement approach to achieve compliance,
including civil penalties and/or an emergency order. In exercising its
enforcement discretion, FRA may consider such factors as the number and
extent of the remaining deficiencies in the program and whether the
railroad made good faith efforts to address the deficiencies in its
resubmissions.
    Finally, paragraph (j) of this section notes that the following
documents would be made available on FRA's website (railroads.dot.gov):
(1) certification programs and material modifications submitted by the
railroads; (2) any comments to the submissions from the railroads; and
(3) the letters from FRA approving or disapproving a program or a
material modification. While parts 240 and 242 do not currently require
the posting of these documents on FRA's website, the current practice
with respect to locomotive engineer and conductor certification
programs has been for FRA to post comments on a railroad's submission,
as well as FRA approval and disapproval letters, on its website.
Paragraph (j) of this section in this proposed rule is intended to make
the proposed review and approval process for railroad signal employee
certification programs as transparent as possible.
Section 246.105 Implementation Schedule for Certification Programs
    This section, derived from 49 CFR 240.201 and 242.105, contains the
timetable for implementing this proposed rule. Paragraph (a) of this
section acknowledges railroads that have installed or implemented a
signal system, as defined in Sec.  246.7, prior to the effective date
of the final rule may continue their rail operations while they await
FRA's approval of their certification programs. However, if FRA
disapproves a legacy railroad's certification program twice (the
initial

submission and the first resubmission), the railroad will no longer be
in compliance with the rule if it continues to operate its signal
system without an FRA-approved program. In such a scenario, FRA could
find that the railroad has failed to implement a program and would
determine the appropriate enforcement approach to achieve compliance,
including civil penalties and/or an emergency order. In exercising this
enforcement discretion, FRA may consider such factors as the number and
extent of the remaining deficiencies in the program and whether the
railroad made good faith efforts to comply with the requirements of the
rule through its submitted program. Paragraph (b) provides that any
non-legacy railroad (a railroad that did not have any signal system, as
defined in Sec.  246.7, installed or implemented prior to the effective
date of the final rule) may not install or implement a signal system
until FRA has approved its signal employee certification program.
    Paragraph (c) of this section would require railroads to designate
as certified signal employees, in writing, all persons authorized by
the railroad to perform the duties of each category or subcategory of
certified signal employee identified by the railroad pursuant to Sec.
246.107 as of the effective date of the final rule. Similarly,
paragraph (d) of this section would require railroads to designate as
certified signal employees, in writing, all such persons authorized by
the railroad to perform the duties of certified signal employees
pursuant to Sec.  246.107 between the effective date of the final rule
and the date FRA approves the railroad's certification program.
Railroads would also be required to issue a certificate to each person
they designate. This designation system is modeled after the system
used when parts 240 and 242 first went into effect. This system allows
``legacy signal employees'' to obtain certificates so that when their
railroad's program is approved, they will be considered ``previously
certified signal employees'' when the time comes for them to be
recertified through the railroad's signal employee certification
program. Therefore, the recertifying railroad will not have to provide
legacy certified signal employees with the kind of basic training that
would be given to individuals with little to no signal experience. In
other words, a person with 20 years of experience as a signal employee
most likely does not need to take a ``Signal 101'' course that provides
a basic overview of signal systems and related technology. Instead,
this person would be better served by undergoing continuing education
training as described in Sec. Sec.  246.107(b)(2) and 246.119(j).
    Paragraph (e) of this section states that after the final rule has
been in effect for eight months, no person would be permitted to serve
as a certified signal employee unless that person has been certified.
Paragraph (f) of this section requires each railroad to make formal
determinations concerning those individuals it has designated as
certified signal employees within three years after FRA's approval of
the railroad's certification program. Pursuant to this paragraph, a
designated signal employee may serve as a certified signal employee for
up to three years from the date of FRA's approval of the program. At
the end of three years, however, the designated signal employee can no
longer serve as a certified signal employee unless they successfully
complete the tests and evaluations provided in subpart B of this rule
(i.e., the full certification process).
    Thus, individuals who are designated as certified signal employees
under paragraphs (c) and (d) of this section could be certified for
more than three years before they have to complete the railroad's full
certification process. For example, if a person is designated as a
certified signal employee on September 1, 2024, and FRA approves the
railroad's certification program on September 1, 2025, the signal
employee would not have to go through the full certification process
and get recertified until September 1, 2028 (four years from the date
the individual was designated by the railroad as a certified signal
employee). Railroads should note that they may not test and evaluate a
designated signal employee or signal employee certification candidate
under subpart B of this rule until they have a certification program
approved by FRA pursuant to Sec.  246.103.
    In order to test and evaluate all of its designated signal
employees by the end of the three-year period, a large railroad would
likely have to begin that process well in advance of the end of the
three-year period. For example, paragraph (f), which is derived from
the designation provisions in parts 240 and 242, would permit a
railroad to test and evaluate one-third of its designated signal
employees within one year of the approval date of the railroad's
certification program; another one-third within two years of the
program's approval date; and the final one-third within three years of
the program's approval date.
    To address the issue of designated signal employees who would be
eligible to retire within three years of the date FRA approves their
railroad's certification program, FRA is proposing paragraphs (f)(1)
through (3) in this section since it would not be an efficient use of
railroad resources to conduct the full certification process for a
designated signal employee who is going to retire before the end of
their designation period. Paragraph (f)(1) provides that a designated
signal employee, who is eligible to receive a retirement pension in
accordance with the terms of an applicable agreement or with the terms
of the Railroad Retirement Act (45 U.S.C. 231) within three years from
the date FRA approves the railroad's certification program, may request
in writing that the railroad not perform the full certification
progress on that designated signal employee until three years from the
date FRA approves the railroad's program.
    Paragraph (f)(2) would allow the railroad to honor the designated
signal employee's request. Thus, paragraphs (f)(1) and (2) allow
designated signal employees to serve as signal employees for the full
designation period and then retire before being subjected to the full
certification process. While it is in the railroads' interest not to
perform the full certification process for a person who is going to
retire once the designation period expires, and thus, in their interest
to grant as many requests as possible, it may not be feasible to
accommodate every request that is made. If, for example, a significant
number of designated signal employees properly request that the
railroad wait to recertify them at the end of the designation period,
but then do not retire by the end of the designation period, the
railroad might not be able to recertify everyone in time and would risk
violating this rule. In recognition of that risk and the need to give
railroads some flexibility to comply with the rule, paragraph (f)(2)
also provides that a railroad granting any request to delay performance
of the full certification process must grant the request of all
eligible persons ``to every extent possible.''
    In addition, paragraph (f)(3) provides that a designated signal
employee who is also subject to recertification under part 240 or 242
may not make a request under paragraph (f)(1) of this section. This
provision recognizes that railroads would likely want to have
concurrent certification processes for certifying a person who will be
both a certified signal employee and a certified locomotive engineer or
conductor. Thus, it would not be appropriate, in that instance, for a
designated signal employee who is already subject to recertification
under part 240 or 242 to

make a request to delay the full signal employee certification process.
    Paragraph (g) of this section provides that after FRA approves a
railroad's certification program, the railroad cannot certify or
recertify a person as a signal employee unless that person has been
tested and evaluated in accordance with the procedures provided in
subpart B of this rule. In other words, after FRA approves a railroad's
program, that railroad can no longer designate persons as certified
signal employees under paragraph (c) or (d) of this section.
Section 246.106 Requirements for Certification Programs
    This proposed section, derived from Appendix B to part 240 and
Appendix B to part 242, provides both the proposed organizational
requirements and a narrative description of the submission required
under Sec. Sec.  246.101 and 246.103. FRA is not proposing to require
railroad submissions to be made on a specific form. Instead, FRA
proposes to prescribe only minimal constraints on the organization and
manner of presenting information.
    Paragraph (a) of this section addresses what must be included in a
railroad's submission to FRA. Specifically, the railroad must include
two documents in its submission: (1) a request for approval; and (2)
the certification program. If a railroad is submitting its initial
certification program, the request for approval can be a brief document
that simply states the railroad is submitting its initial signal
employee certification program to FRA for approval. However, if a
railroad is making a material modification or modifications to a signal
employee certification program that has previously been approved by
FRA, the request for approval must describe how the railroad intends to
modify its program. In addition, the railroad must provide a copy of
the modified certification program that identifies all of the proposed
changes from the last FRA-approved version of the program, as required
by section 246.103(g).
    Paragraph (b) of this section would require that signal employee
certification programs be divided into six sections, each dealing with
a different subject matter, and that the railroad identify the
appropriate person to be contacted in the event FRA needs to discuss
some aspect of the railroad's program. Paragraph (b)(1) would require
railroads to include basic contact information in Section One of their
certification programs and to address whether the railroad elects to
accept responsibility for training persons not previously certified as
signal employees. However, for railroads that elect to classify their
certified signal employees into more than one occupational category or
subcategory by class, task, location, or other suitable terminology,
paragraph (b)(1) would require the railroad to provide detailed
information about each occupational category (and subcategory, if
applicable) of certified signal service in Section One of its
certification program.
    Paragraph (b)(2) would require railroads to address in Section Two
of their certification programs how they will provide continuing
education for certified signal employees. A matter of particular
concern to FRA is how each railroad will ensure that certified signal
employees receive sufficient training on new signal systems and related
technology that are deployed on the railroad's territory. While a
railroad would have the latitude to select the specific subject matters
to be covered, the duration of continuing education sessions, the
methods of presenting the information, and the frequency with which
continuing education will be provided, the railroad must describe in
this section how it will use that latitude to ensure that its certified
signal employees receive up-to-date and comprehensive training on new
signal systems and related technology so as to comply with the training
standards set forth in Sec.  246.119(j).
    However, time and circumstances can diminish both abstract
knowledge and the proper application of that knowledge to discrete
events. Time and circumstances can also alter the value of previously
obtained knowledge and the application of that knowledge. Therefore,
certified signal employees also need to have their fundamental
knowledge of applicable Federal laws and regulations, as well as
railroad signal system safety rules and practices, refreshed
periodically. Therefore, the railroad must also describe in Section Two
how it will ensure that its certified signal employees remain
knowledgeable concerning the safe discharge of their responsibilities,
in accordance with the standard set forth in Sec.  246.119(j).
    Section Three of the certification program must address
requirements for the testing and evaluation of previously certified
signal employees. Paragraph (b)(3)(i) would require railroads to
address how their certification programs will comply with the standards
found in Sec.  246.121. Section 246.121 would require railroads, when
seeking a demonstration of the signal employee's knowledge, to employ a
written or electronic test containing objective questions that address
the following subject matters: (i) compliance with all applicable
Federal railroad safety laws, regulations, and orders governing signal
systems and related technology; (ii) compliance with all applicable
railroad safety and operating rules; and (iii) compliance with all
applicable railroad standards, procedures, and instructions for the
installation, operation, testing, maintenance, troubleshooting, and
repair of the railroad's signal systems and related technology. In
addition, the test must also include a practical demonstration
component. Paragraph (b)(3)(ii) would also require railroads, in their
certification programs, to explain their procedures for testing vision
and hearing acuity and for ensuring that their medical examiners have
sufficient knowledge to make determinations on whether candidates for
signal employee certification or recertification can safely work as
certified signal employees.
    Section Four of the certification program would address the
requirements for training, testing, and evaluating persons not
previously certified as signal employees. Railroads that elect, in
Section One of the certification programs, to not take responsibility
for training persons not previously certified as signal employees can
skip this section. Paragraph (b)(4) would require railroads that elect
to provide training to persons who have not been previously certified
as signal employees to provide details in Section Four for how they
will train, test, and evaluate these individuals to ensure they acquire
and demonstrate sufficient knowledge and skills to safely perform the
job of a certified signal employee. Paragraph (b)(4)(i) would also
require railroads to discuss in Section Four its procedures for
mentoring candidates for signal employee certification, in accordance
with Sec.  246.124.
    Paragraph (b)(4)(ii) would require railroads to include the same
level of detail in Section Four of their certification programs as that
provided in Sections Two and Three of their programs. Therefore,
railroads would be required to address both the training requirements
found in Sec.  246.119 and the knowledge testing requirements in Sec.
246.121.
    If a railroad intends to rely on another entity to provide training
to persons not previously certified as signal employees, paragraph
(b)(4)(iii) would require the railroad to explain in Section Four how
the railroad will ensure that the training provided by another entity
adheres to the railroad's certification program. Specifically, the
railroad would be required to explain how persons not previously
certified as signal employees will be given the required training on

the railroad's signal systems and related technology.
    Paragraph (b)(5) would require railroads to discuss in Section Five
of their certification programs how the railroad will monitor the
operational performance of its certified signal employees in accordance
with Sec.  246.123. In particular, the railroad must discuss the
processes and procedures it will use for ensuring that such monitoring
and testing is performed. This includes a description of the scoring
system the railroad will employ during monitoring observations and
unannounced tests.
    Finally, paragraph (b)(6) would require railroads to address in
Section Six of their certification programs how the railroad will
perform routine administration of the program. This section must
include summaries of how the program will comply with the various
provisions listed in paragraph (b)(6) that contain procedural
requirements for railroad certification programs.
Section 246.107 Signal Service Classifications
    This proposed section would permit, but not require, railroads to
issue certificates for one or more occupational categories or
subcategories of certified signal employee service. While some
railroads with only one type of signal employee service might not have
any interest in certifying multiple types of signal employee service,
larger railroads that have already established multiple categories of
signal employee service (such as signal maintainers, signal inspectors,
locomotive signal/electrical technicians, etc.) on their territories
may find it beneficial to issue certificates for multiple types of
signal employee service. Therefore, by allowing railroads to classify
their certified signal employees into multiple occupational categories
or subcategories, FRA would give railroads the flexibility to shape the
structure of their certification programs to highlight the specific
tasks and responsibilities for each category and subcategory of
certified signal employee working on their territories.
    A railroad that classifies its certified signal employees into
separate categories, such as signal maintainers, signal inspectors, and
locomotive signal/electrical technicians, would be permitted to issue
specific certificates for each category of signal employee service.
This proposed section would also allow railroads to certify signal
employees for signal system work on specific railroad divisions or
subdivisions, as opposed to issuing one universal signal employee
certificate that would certify the signal employee to perform signal
system work anywhere on the certifying railroad's territory. As further
explained in the Section-by-Section Analysis of Sec.  246.106(b),
railroads that choose to classify their certified signal employees into
multiple occupational categories and subcategories would be required by
Sec.  246.106(b)(1)(iv) to provide detailed information about each
occupational category (and subcategory, if applicable) of its certified
signal employees.
    Paragraph (b) of this section would require certified signal
employees to immediately notify the railroad (or their employer, if
they are not employed by a railroad) if they are called to work on a
signal system or signal-related technology on which they have not been
certified. When notified that a certified signal employee has been
called to work on a signal system or signal-related technology on which
the employee has not been certified, paragraph (c) would prohibit the
railroad from requiring the certified signal employee to work on the
signal system or signal-related technology unless the certified signal
employee is allowed to work under the direct oversight and supervision
of a mentor in accordance with Sec.  246.124.
Section 246.109 Determinations Required for Certification and
Recertification
    This proposed section lists the determinations that would be
required for evaluating a candidate's eligibility to be certified or
recertified. The reference to Sec.  246.303 in paragraph (a)(2) of this
section is to ensure railroads determine whether a candidate is
eligible to hold a certification by reviewing any prior revocations
addressed in subpart D of this rule.
    Despite the reference in paragraph (a)(1) of this section to
provisions in Sec. Sec.  246.111 and 246.113 requiring a review of
safety conduct information from the preceding five years, Sec.
246.113(g)(1) would not permit a railroad to consider information
concerning safety conduct that occurred prior to the effective date of
the final rule issued in this rulemaking. Even though this provision
would result in a railroad's evaluation of less than five years' worth
of information for some signal employees early on in the rule's
effective period, it is included in part 246 for the same reason
similar provisions were included in parts 240 and 242--namely, that all
signal employees should be permitted to start with a ``clean slate''
for certification purposes as a matter of basic fairness. See 56 FR
28228, 28242 (June 19, 1991).
    Paragraph (b) of this section would provide flexibility to
railroads and signal employees or signal employee candidates in
obtaining the information required by Sec. Sec.  246.111 and 246.113.
For example, in some states, railroads may be able to obtain motor
vehicle operator data for signal employees and signal employee
candidates through background checks.
Section 246.111 Prior Safety Conduct as Motor Vehicle Operator
    This proposed section, derived from 49 CFR 240.111, 240.115, and
242.111, would provide the requirements and procedures that a railroad
would be required to follow when evaluating a certified signal employee
or certification candidate's prior safety conduct as a motor vehicle
operator. FRA believes that the prior safety conduct of a motor vehicle
operator is one indicator of that person's drug and/or alcohol use and
therefore an important piece of information for a railroad to consider.
    Pursuant to this section, each person seeking certification or
recertification as a signal employee would be required to request in
writing that the chief of each driver licensing agency that issued them
a driver's license within the preceding five years provide a copy of
the person's driving record to the railroad. Unlike part 240, this
proposed rule would not require individuals to also request motor
vehicle operator information from the National Driver Registry (NDR).
Based on the NDR statute and regulation (see 49 U.S.C. chapter 303 and
23 CFR part 1327), railroads are prohibited from running NDR checks or
requesting NDR information from individuals seeking employment as
certified signal employees.
    Paragraphs (b) and (c) of this section would require a railroad to
certify or recertify a person for 60 days if the person: (1) requested
the required information at least 60 days prior to the date of the
decision to certify or recertify; and (2) otherwise meets the
eligibility requirements provided in Sec.  246.109(a)(1) through (5).
If a railroad certifies or recertifies a person for 60 days pursuant to
paragraphs (b) and (c) but is unable to obtain and evaluate the
required information during those 60 days, the person would be
ineligible to perform as a certified signal employee until the
information can be evaluated. However, if a person is simply unable to
obtain the required information, that person or the certifying or
recertifying railroad could petition for a waiver from FRA (see 49 CFR
part 211). During the pendency of the waiver request, a railroad would
be required to certify or recertify a person if the person

otherwise meets the eligibility requirements of Sec.  246.109(a)(1)
through (5).
    Paragraph (k) of this section would require certified signal
employees or persons seeking certification as signal employees to
notify their employer (if employed by a railroad or contractor to a
railroad), all prospective certifying railroads (if applicable), and
all railroads with whom the person holds a signal employee certificate
of motor vehicle incidents described in paragraph (m) of this section
within 48 hours of the conviction or completed State action to cancel,
revoke, suspend, or deny their motor vehicle driver's license for such
incidents. Paragraph (k) would also prohibit railroads from having a
more restrictive company rule requiring certified signal employees or
persons seeking signal employee certification to report a conviction or
completed State action to cancel, revoke, or deny a motor vehicle
driver's license in less than 48 hours.
    The reasoning behind proposed paragraph (k) involves several
intertwined objectives. As a matter of fairness, a railroad should not
revoke, deny, or otherwise make a person ineligible for certification
until that person has received due process from the State agency taking
the action against the motor vehicle license. Further, by not requiring
reporting until 48 hours after the completed State action, the proposed
rule would have the practical effect of ensuring that a required
referral to a drug and alcohol counselor (DAC) under paragraph (n) of
this section would not occur prematurely. However, proposed paragraph
(k) would not prevent an eligible person from choosing to voluntarily
self-refer. Nor would it prevent the railroad from referring the person
for an evaluation under an internal railroad policy if other
information exists that identifies the person as possibly having a
substance abuse disorder.
    Paragraph (n) of this section would provide that if a motor vehicle
incident described in paragraph (m) is identified, the railroad would
be required to provide the data to its DAC along with ``any information
concerning the person's railroad service record.'' Furthermore, the
person would have to be referred for evaluation to determine whether
the person has an active substance abuse disorder. If the person has an
active substance abuse disorder, the person would not be eligible for
certification. However, even if it is determined that the person is not
currently affected by an active substance abuse disorder, the railroad
would be required, if recommended by a DAC, to condition certification
upon participation in any needed aftercare and/or follow-up testing for
alcohol or drugs or both. The intent of this proposed provision is to
use motor vehicle records to identify signal employees or candidates
for signal employee certification who may have active substance abuse
disorders and make sure they are referred for evaluation and any
necessary treatment before allowing them to perform safety sensitive
service. Any testing performed as a result of a DAC's recommendation
under paragraph (n) would be done under company authority, not Federal.
However, the testing would be required to comply with the ``technical
standards'' of part 219, subpart H, and part 40.
    Paragraph (n)(5) is intended to clarify that failure to cooperate
in the DAC evaluation discussed in paragraphs (n)(2) of this section
would result in the person being ineligible to perform as a certified
signal employee until such time as the person cooperates in the
evaluation.
Section 246.113 Prior Safety Conduct With Other Railroads
    This proposed section, which is derived from 49 CFR 240.113,
240.205, and 242.113, would establish a process for certification
candidates to request information about their prior safety conduct when
employed or certified by another railroad. Except as otherwise provided
by the retroactive time limit contained in paragraph (g) of this
section, this section would require railroads to review records
provided by railroads that previously employed or certified the
certification candidate regarding the candidate's prior compliance with
Sec. Sec.  246.115 and 246.303 within the previous five years, as well
as the candidate's motor vehicle driving record within the previous
three years.
    Paragraph (b) of this section contains an exception that if a
certification candidate has not been employed or certified by any other
railroad in the previous five years, they do not have to submit a
request pursuant to paragraph (c) of this section. Such candidates,
however, must notify the railroad where they are seeking certification
of this fact. This exception should help minimize any burden arising
from these proposed requirements.
    For certification candidates who do not qualify for the exception
provided in paragraph (b), paragraph (c) would require the
certification candidate to submit a written request to each railroad
that employed or certified the candidate within the previous five
years. As indicated earlier, the written request would direct the
previous railroad employer or certifying railroad to provide
information about the certification candidate's prior compliance with
Sec. Sec.  246.115 and 246.303 within the previous five years, as well
as the candidate's motor vehicle driving record within the previous
three years from the date of the written request.
    In addition, railroads would be required by paragraph (e) to comply
with written requests for records of prior safety conduct submitted by
former employees or certified signal employees pursuant to this section
within 30 days after receipt of such requests. Railroads that are
unable to provide information about prior safety conduct within 30 days
would be required by paragraph (f) to either: (1) provide a written
explanation of why the railroad cannot provide the information within
the requested time frame, along with an estimate of how much time will
be needed to supply the requested information; or (2) provide an
adequate explanation for why the railroad cannot provide the
information requested.
    In the event a railroad seeking to certify or recertify a
certification candidate receives a written statement from another
railroad pursuant to paragraph (f) of this section, which explains that
the railroad cannot provide the information requested, the railroad
seeking to certify or recertify the certification candidate would be
deemed to have complied with the eligibility determination required by
paragraph (a) of this section, provided the railroad retains a copy of
the other railroad's written statement in its records.
    Similarly, in the event a railroad seeking to certify or recertify
a certification candidate does not receive a written response from
other railroads, the railroad would be deemed to have complied with the
eligibility determination required by paragraph (a) of this section
provided the railroad retains a copy of its written request for this
information in its records.
Section 246.115 Substance Abuse Disorders and Alcohol Drug Rules
Compliance
    This proposed section, which is derived from 49 CFR 240.119,
240.205, and 242.115, addresses: (1) active substance abuse disorders;
and (2) specific alcohol/drug regulatory violations. As noted earlier,
annual drug and alcohol testing data submitted to FRA revealed that
signal employees had

a random violation rate (drug and alcohol positives and refusals) and a
pre-employment violation rate that was considerably higher than their
train and engine service counterparts.
    Therefore, this section and Sec.  246.111 address certain
situations in which inquiry must be made into the possibility that the
individual has an active substance abuse disorder if the individual is
to obtain or retain a certificate. The fact that specific instances are
cited in this section would not preclude the general duty of the
railroad to take reasonable and proportional action in other
appropriate cases. Declining job performance, extreme mood swings,
irregular attendance and other indicators may, to the extent not
immediately explicable, indicate the need for an evaluation under
internal policies of the railroad.
    The purpose of identifying conditions is not to require (and does
not require) a railroad to order an evaluation any time a listed
condition is exhibited. Rather, FRA is simply providing guidance here
as to conditions that may, given the context, call for an evaluation
under internal policies of the railroad. Moreover, FRA remains vigilant
of harassment and intimidation and will take appropriate action if such
conduct is discovered.
    Paragraph (a) of this section would require railroads to determine
that a person initially certifying, or a signal employee recertifying,
meets the eligibility requirements of this section. In addition, each
railroad would be required by Sec.  246.203 to retain the documents
used to make that determination.
    Paragraph (c) of this section would prohibit a person with an
active substance abuse disorder from being certified as a signal
employee. This means appropriate action must be taken with respect to a
certificate (whether denial or suspension) whenever the existence of an
active substance abuse disorder comes to the official attention of the
railroad, with the exception discussed below. Paragraph (c) would also
provide a mechanism for an employee to voluntarily self-refer for
substance abuse counseling or treatment.
    Paragraph (d) would address conduct constituting a violation of
Sec.  219.101 or Sec.  219.102 of the alcohol/drug regulations. Section
219.101(a)(1) prohibits regulated employees from using or possessing
alcohol or any controlled substance when the employee is on duty and
subject to performing regulated service for a railroad. Section
219.101(a)(2) prohibits regulated employees from reporting for
regulated service, or going on or remaining on duty in regulated
service, while under the influence of (or impaired by) alcohol or while
having a breath or blood alcohol concentration of 0.04 or more. A
regulated employee is also prohibited from using alcohol either within
four hours of reporting for regulated service or after receiving notice
to report for regulated service, whichever is less. This is conduct
that specifically and directly threatens safety in a way that is wholly
unacceptable, regardless of its genesis and regardless of whether it
has occurred previously. In its more extreme forms, such conduct is
punishable as a felony under the criminal laws of the United States (18
U.S.C. 341 et seq.) and a number of states.
    Section 219.102 prohibits use of a controlled substance by a
regulated employee, at any time, whether on or off duty, except for
approved medical use. Abuse of marijuana, cocaine, amphetamines, and
other controlled substances poses unacceptable risks to safety.
    Under the alcohol/drug regulations, whenever a violation of Sec.
219.101 or Sec.  219.102 is established, based on authorized or
mandated chemical testing, the employee must be removed from service
and may not return until after an SAP evaluation, any needed treatment
and/or education, and a negative return-to-duty test, and is subject to
follow-up testing (as required by Sec.  219.104). These requirements
constitute an absolute minimum standard for action when a signal
employee is determined to have violated one of these prohibitions.
Considering the need both for general and specific deterrence with
respect to future unsafe conduct, additional action should be premised
on the severity of the violation and whether the same individual has
had prior violations.
    This proposed rule would require railroads to consider conduct that
occurred within the period of five consecutive years prior to the
review. This is the same period provided in this proposed rule as the
maximum period of ineligibility for certification following repeated
alcohol/drug violations and is the same period used in parts 240 and
242. Use of a 5-year cycle reflects railroad industry experience
indicating that conduct committed as much as 5 years before may tend to
predict future alcohol or drug abuse behavior. For example, in
analyzing data submitted to FRA between 2017 and 2021, FRA found that
railroad employees returning to duty from previous drug or alcohol
violations were approximately five times more likely to test positive
than other railroad employees. Of course, railroads would retain the
flexibility to consider prior conduct (including conduct more than 5
years prior) in determining whom they will hire as signal employees.
    Conduct violative of the FRA proscriptions against alcohol and
drugs need not occur while the person is serving in the capacity of a
signal employee in order to be considered. For instance, an employee
who violated Sec.  219.101 while working as a conductor and then sought
signal employee certification six months later (under the provision
described below) would not be eligible for certification. The same is
true under part 240--an employee who violates Sec.  219.101 while
working as a brakeman and then seeks locomotive engineer certification
six months later would not be eligible for certification at that time.
The responsibility of the railroad would therefore not be limited to
periodic recertification. This proposed rule would require a review of
certification status for any conduct in violation of Sec.  219.101 or
Sec.  219.102.
    The proposed rule would require a determination of ineligibility
for a period of 9 months for an initial violation of Sec.  219.101.
This would parallel the 9-month ineligibility period in Sec. Sec.
240.119(c)(4)(iii) and 242.115(e)(4)(iii).
    Specifying a period of ineligibility serves the interest of
deterrence while giving further encouragement to deal with the problem
before it is detected by management. In order to preserve and encourage
referrals, the nine-month period could only be waived in the case of a
qualifying referral (see Sec.  219.1001). FRA believes that this
distinction in treatment, which is also found in part 242, is warranted
as a strong inducement to participation because referral programs help
identify troubled employees before those employees get into accidents
and incidents.
    In the case of a second violation of Sec.  219.101, the signal
employee would be ineligible for a period of five years. Given railroad
employment practices and commitment to alcohol/drug compliance, it is
likely that any individual so situated may also be permanently
dismissed from employment. However, it would be important that the
employing railroad follow through and revoke the certificate under this
proposed rule, so the signal employee could not go to work for another
railroad (or railroad contractor) within the five-year period using the
unexpired certificate issued by the first railroad as the basis for
certification. These proposed sanctions

mirror the sanctions in Sec. Sec.  240.119 and 242.115.
    Under this proposed rule, one violation of Sec.  219.102 within the
5-year window would require only temporary suspension and the minimum
response described in Sec.  246.115(e) (referral for evaluation,
treatment as necessary, negative return-to-duty test, and appropriate
follow-up). This parallels the approach taken in parts 240 and 242 and
reflects FRA's intent to not undercut the therapeutic approach to drug
abuse employed by many railroads. This approach permits first-time
positive drug tests to be handled in a non-punitive manner that
concentrates on remediation of any underlying substance abuse problem
and avoids the adversarial process associated with investigations,
grievances, and arbitrations under the Railway Labor Act and collective
bargaining agreements. A second violation of Sec.  219.102 would
subject the employee to a mandatory two-year period of ineligibility. A
third violation within five years would lead to a five-year period of
ineligibility.
    This proposed rule also addresses violations of Sec. Sec.  219.101
and 219.102 in combination. A person violating Sec.  219.101 after a
prior Sec.  219.102 violation would be ineligible for three years; and
the same would be true for the reverse sequence. This mirrors the
ineligibility period for locomotive engineers and conductors who have
one Sec.  219.101 violation and one Sec.  219.102 violation. See 49 CFR
240.119(e)(4)(ii) and 242.115(e)(4)(ii).
    Refusals to participate in chemical tests would be treated as if
the test were positive. A refusal to provide a breath or body fluid
sample for testing under the requirements of 49 CFR part 219 when
instructed to do so by a railroad representative would be treated, for
purposes of ineligibility under this section, in the same manner as a
violation of: (1) Sec.  219.101, in the case of a refusal to provide a
breath sample for alcohol testing, or a blood specimen for mandatory
post-accident toxicological testing; or (2) Sec.  219.102, in the case
of a refusal to provide a body fluid specimen for drug testing.
    Interested parties should, however, note that 49 CFR part 40,
subpart I, discusses medical conditions under which an individual's
failure to provide a sufficient sample would not be deemed a refusal.
In addition, subpart G of FRA's alcohol and drug regulations excuses
employees from compliance with the requirement to participate in random
drug and alcohol testing if the employee can substantiate a medical
emergency involving the employee or an immediate family member. See 49
CFR 219.617.
    If an employee covered by 49 CFR part 219 refuses to provide a
breath or body fluid specimen or specimens when required to by a
railroad pursuant to a mandatory provision of 49 CFR part 219, then the
railroad (apart from any action it takes under part 246) would be
required to remove that employee from regulated service and disqualify
the employee from working in regulated service for nine months. See 49
CFR 219.104 and 219.107; see also, 49 CFR part 219, subpart H, and 49
CFR 40.191 and 40.261. The employee would also be prohibited by Sec.
246.213(c) from working as a certified signal employee for any other
railroad during this 9-month period.
    Paragraph (e) prescribes the conditions under which employees may
be certified or recertified after a determination that the
certification should be denied, suspended, or revoked, due to a
violation of Sec.  219.101 or Sec.  219.102 of FRA's alcohol/drug
regulations. These conditions are derived from the conditions in
Sec. Sec.  240.119(d) and 242.115(f) and closely parallel the return-
to-duty provisions of the alcohol/drug rule. The proposed regulation
would not require compensation of the employee for the time spent in
this testing, which is a condition precedent to retention of the
certificate; but the issue of compensation would ultimately be resolved
by reference to the collective bargaining agreement or other terms and
conditions of employment under the Railway Labor Act. Moreover, the
railroad that intends to withdraw its conditional certification would
be required to afford the signal employee the hearing procedures
provided by Sec.  246.307 if the signal employee does not waive their
right to the hearing.
    Paragraph (f) would ensure that a signal employee, like any other
covered employee, can self-refer for treatment under the alcohol/drug
rule (49 CFR 219.1003) before being detected in violation of alcohol/
drug prohibitions and would be entitled to confidential handling of
that referral and subsequent treatment. This means that a railroad
would not normally receive notice from the DAC of any substance abuse
disorder identified as a result of a voluntary self-referral under 49
CFR 219.1003. However, paragraph (f) would also require that the
railroad policy provide that confidentiality is waived if the signal
employee at any time refuses to cooperate in a recommended course of
counseling or treatment, to the extent that the railroad must receive
notice that the employee has an active substance abuse disorder so that
appropriate certificate action can be taken. The effect of this
proposed provision is that the certification status of a signal
employee who seeks help and cooperates in treatment would not be
affected, unless the signal employee fails to follow through.
Section 246.117 Vision Acuity
    This proposed section, derived from 49 CFR 240.121, 240.207, and
242.117, contains the requirements for vision acuity testing that a