Conductor Certification Final Rule (FR Version)

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DEPARTMENT OF TRANSPORTATION
Federal Railroad Administration
49 CFR Part 242
[Docket No. FRA–2009–0035; Notice No. 2]
2130–AC08

Conductor Certification
Federal Railroad
Administration (FRA), Department of
Transportation (DOT).
ACTION: Final rule.
AGENCY:

FRA is prescribing regulations
for certification of conductors, as
required by the Rail Safety Improvement
Act of 2008. This rule requires railroads
to have a formal program for certifying
conductors. As part of that program,
railroads are required to have a formal
process for training prospective
conductors and determining that all
persons are competent before permitting
them to serve as a conductor. FRA is
issuing this regulation to ensure that
only those persons who meet minimum
Federal safety standards serve as
conductors, to reduce the rate and
number of accidents and incidents, and
to improve railroad safety. Although
this rule does not propose any specific
amendments to the regulation governing
locomotive engineer certification, it
does highlight areas in that regulation
that may require conforming changes.
DATES: Effective Date: The rule is
effective January 1, 2012.
FOR FURTHER INFORMATION CONTACT:
Mark H. McKeon, Special Assistant to
the Associate Administrator for Railroad
Safety/Chief Safety Officer, U.S.
Department of Transportation, Federal
Railroad Administration, RRS–1, Mail
Stop 25, 1200 New Jersey Avenue SE.,
Washington, DC 20590 (telephone: (202)
493–6350); Joseph D. Riley, Railroad
Safety Specialist (OP)-Operating Crew
Certification, U.S. Department of
Transportation, Federal Railroad
Administration, Mail Stop-25, Room
W38–323, 1200 New Jersey Avenue SE.,
Washington, DC 20590 (telephone: (202)
493–6318); or John Seguin, Trial
Attorney, U.S. Department of
Transportation, Federal Railroad
Administration, Office of Chief Counsel,
RCC–10, Mail Stop 10, West Building
3rd Floor, Room W31–217, 1200 New
Jersey Avenue SE., Washington, DC
20590 (telephone: (202) 493–6045).
SUPPLEMENTARY INFORMATION:

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SUMMARY:

I. Statutory Background
Pursuant to § 402 of the Rail Safety
Improvement Act of 2008, Public Law
110–432, 122 Stat. 4884 (Oct. 16, 2008)

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(codified at 49 U.S.C. 20163)
(hereinafter ‘‘RSIA’’), Congress required
the Secretary of Transportation
(Secretary) to prescribe regulations to
establish a program requiring the
certification of train conductors. The
Secretary delegated this authority to the
Federal Railroad Administrator. 49 CFR
1.49(oo).
Section 20163(a) of 49 U.S.C. (Section
402 of the RSIA) provides that:
The Secretary of Transportation shall
prescribe regulations to establish a program
requiring the certification of train
conductors. In prescribing such regulations,
the Secretary shall require that train
conductors be trained, in accordance with
the training standards developed pursuant to
section 20162.

Section 20163(b) provides that ‘‘[i]n
developing the regulations required by
subsection (a), the Secretary may
consider the requirements of section
20135(b) through (e).’’ The requirements
in 49 U.S.C. 20135 concern the
certification of locomotive engineers.
Section 20162(a)(2) of 49 U.S.C.
(Section 401 of the RSIA) provides that:
(a) In General.—The Secretary of
Transportation shall, not later than 1 year
after the date of enactment of the Rail Safety
Improvement Act of 2008, establish—

*

*

*

*

*

(2) a requirement that railroad carriers,
contractors, and subcontractors develop and
submit training and qualification plans to the
Secretary for approval, including training
programs and information deemed necessary
by the Secretary to ensure that all safetyrelated railroad employees receive
appropriate training in a timely manner.

*
*
*
*
*
Section 20162(b) of 49 U.S.C. provides
that ‘‘[t]he Secretary shall review and
approve the plans required under
subsection (a)(2) utilizing an approval
process required for programs to certify
the qualification of locomotive
engineers pursuant to part 240 of title
49, Code of Federal Regulations.’’
II. RSAC Overview
In March 1996, FRA established the
Railroad Safety Advisory Committee
(RSAC), which provides a forum for
collaborative rulemaking and program
development. RSAC includes
representatives from all of the agency’s
major stakeholder groups, including
railroads, labor organizations, suppliers
and manufacturers, and other interested
parties. A list of RSAC members
follows:
American Association of Private Railroad Car
Owners (AAPRCO);
American Association of State Highway &
Transportation Officials (AASHTO);
American Chemistry Council;
American Petroleum Institute;

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

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

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majority of RSAC, the proposal is
formally recommended to FRA. FRA
then determines what action to take on
the recommendation. Because FRA staff
play an active role at the working group
level in discussing the issues and
options and in drafting the language of
the consensus proposal, and because the
RSAC recommendation constitutes the
consensus of some of the industry’s
leading experts on a given subject, FRA
is often favorably inclined toward the
RSAC recommendation. However, FRA
is in no way bound to follow the
recommendation and the agency
exercises its independent judgment on
whether the recommended rule achieves
the agency’s regulatory goals, is soundly
supported, and is in accordance with
applicable policy and legal
requirements. Often, FRA varies in some
respects from the RSAC
recommendation in developing the
actual regulatory proposal or final rule.
Any such variations would be noted and
explained in the rulemaking document
issued by FRA. If the working group or
RSAC is unable to reach consensus on
recommendations for action, FRA
resolves the issue(s) through traditional
rulemaking proceedings or other action.
III. RSAC Conductor Certification
Working Group
On December 10, 2008, the RSAC
accepted a task (No. 08–07) entitled
‘‘Conductor Certification.’’ The purpose
of this task was defined as follows: ‘‘To
develop regulations for certification of
railroad conductors, as required by the
Rail Safety Improvement Act of 2008
(Act), and to consider any appropriate
related amendments to existing
regulations.’’ The task called for the
RSAC Conductor Certification Working
Group (Working Group) to perform the
following:
• Review safety data bearing on
opportunities for reducing risk
associated with the duties performed by
freight and passenger conductors.
• Assist FRA in developing
regulations responsive to the legislative
mandate.
• Consider any revisions to 49 CFR
part 240 appropriate to conform and
update the certification programs for
locomotive engineers and conductors.
The task also listed issues requiring
specific report:
• What requirements for training and
experience are appropriate?
• What classifications of conductors
should be recognized?
• To what extent do existing
requirements and procedures for
certification of locomotive engineers
provide a model for conductor
certification?

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• To what extent should unsafe
conduct occurring while a locomotive
engineer affect certification status as a
conductor, and vice versa?
• Starting with the locomotive
engineer certification model, what
opportunities are available for
simplifying appeals from decertification
decisions of the railroads?
The Working Group was formed from
interested organizations that are
members of the RSAC. In addition to
FRA, the following organizations
contributed members:
AAR, including members from BNSF
Railway Company (BNSF), Canadian
National Railway (CN), Canadian Pacific
Railway (CP), CSX Transportation, Inc.
(CSX), Iowa Interstate Railroad, LTD,
Kansas City Southern Railway (KCS),
Northeast Illinois Regional Commuter
Railroad Corporation (METRA), Norfolk
Southern Railway Company (NS), and
Union Pacific Railroad (UP);
The National Railroad Passenger
Corporation (Amtrak);
APTA, including members from Long
Island Rail Road (LIRR), Metro-North
Railroad (MNCW), Southeastern
Pennsylvania Transportation Authority
(SEPTA), Southern California Regional
Rail Authority (Metrolink), and Transit
Solutions Group (TSG);
ASLRRA, including members from
Anacostia Rail Holdings (ARH), Genesee
& Wyoming Inc. (GNWR), Omnitrax
Inc.(Omnitrax), Rio Grande Pacific
Corporation (RGP), and WATCO
Companies, Inc. (WATCO);
BLET;
National Railroad Construction &
Maintenance Association, including
members from Herzog Transit Services
(Herzog);
NTSB;
TWU; and
UTU.
DOT’s John A. Volpe National
Transportation Systems Center (Volpe
Center) also contributed members to the
Working Group.
The Working Group convened 6 times
on the following dates and locations:
• July 21–23, 2009 in Washington,
DC;
• August 25–27, 2009 in Overland
Park, KS;
• September 15–17, 2009 in Colorado
Springs, CO;
• October 20–22, 2009 in Arlington,
VA;
• November 17–19, 2009 in
Scottsdale, AZ; and
• December 16–18, 2009 in
Washington, DC.
To aid the Working Group in its
development of recommendations for
certification of conductors, FRA
prepared draft regulatory text, which it

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distributed prior to the July meeting.
The draft text closely followed 49 CFR
part 240 which governs the qualification
and certification of locomotive
engineers.
During each meeting, Working Group
members made recommendations
regarding changes and additions to the
draft text. Following each meeting, FRA
considered all of the recommendations
and revised the draft text accordingly.
Minutes of each of these meetings are
part of the docket in this proceeding and
are available for public inspection.
Having worked closely with the RSAC
in developing its recommendations,
FRA believes that the RSAC effectively
addressed concerns with regard to the
certification of conductors. FRA greatly
benefited from the open, informed
exchange of information during the
meetings.
The Working Group reached
consensus on all of its recommended
regulatory provisions. On March 18,
2010, the Working Group presented its
recommendations to the full RSAC for
concurrence. All of the members of the
full RSAC in attendance at the March
meeting accepted the regulatory
recommendations submitted by the
Working Group. Thus, the Working
Group’s recommendations became the
full RSAC’s recommendations to FRA.
Based on the recommendations of the
RSAC, FRA published a Notice of
Proposed Rulemaking (NPRM) in the
Federal Register on November 10, 2010.
See 75 FR 69166. In the NPRM, FRA
solicited public comment on the
proposed rule and notified the public of
its option to request a public hearing on
the NPRM. In addition, FRA also invited
comment on a number of specific issues
related to the proposed requirements for
the purpose of developing the final rule.
In response to the NPRM, FRA
received written comments from AAR,
Amsted Rail, Amtrak, APTA, ASLRRA,
BLET, NYMTA, SEPTA, and UTU.1 FRA
then met with the Working Group on
May 12, 2011 to discuss the comments.
Minutes of that meeting are part of the
docket in this proceeding and are
available for public inspection.
As contemplated by the Working
Group’s task statement, the
promulgation of the conductor
certification regulation opens up
consideration of conforming changes to
49 CFR part 240, ‘‘Qualification and
certification of locomotive engineers.’’
Such changes could include amending
the program submission process, adding
49 CFR 218, subpart F violations as
1 BLET and UTU submitted joint comments.
Accordingly, those comments will be referred to as
BLET/UTU comments.

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

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

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A. Definitions
1. Substance Abuse Professional (SAP)
FRA solicited comments whether a
SAP should owe a duty to both the
employee being evaluated and the
railroad. FRA noted that in the NPRM,
the duty owed by a SAP did not parallel
the duty owed by a ‘‘medical examiner.’’
BLET/UTU commented that a SAP
should owe a duty to both the employee
and the railroad and that the definition
should be revised accordingly.
After reviewing the comment
regarding SAPs and the comments
regarding the drug and alcohol rules
proposed in the NPRM, FRA finds that
the definition and use of the term
‘‘SAP’’ in the NPRM appears to be
causing confusion within the industry
and may interfere with DOT’s drug and
alcohol rules contained in parts 40 and
219. Under DOT’s alcohol and drug
rules, a SAP is only used when
referencing the counseling requirements
that follow a Federal drug or alcohol
violation (e.g., a part 219 violation). In
the NPRM, however, a SAP is required
both for evaluations stemming from
Federal violations and evaluations
stemming from incidents that are not
the result of a Federal violation (e.g.,
motor vehicle alcohol or drug incidents
indentified pursuant to § 242.111).
Moreover, the definition of SAP in the
NPRM goes beyond the definition of the
term in part 40, which does not
reference duties owed by a SAP.
To avoid interfering with the
established rules and definitions
contained in DOT’s drug and alcohol
regulations and to avoid confusion in
the industry regarding what is required
for Federal and non-Federal violations;
FRA is making three changes to the
regulation proposed in the NPRM. First,
FRA is deleting the reference to a duty
in the definition of SAP. Second, the
term SAP in part 242 will only be used
in connection with counseling
requirements stemming from a Federal
violation. For example, the term SAP
will be used in § 242.115(f) which
discusses the follow-up that must occur
after a part 219 violation, but the term
will not be used in § 242.111 which
concerns evaluations stemming from
motor vehicle alcohol or drug incidents.
Third, for those sections of part 242
which address drug and alcohol
evaluation requirements not involving a
Federal violation, the term SAP will be
replaced with the term ‘‘Drug and
Alcohol Counselor’’ (DAC).2 As used in
2 With respect to employee self-referrals under
§ 242.115(d), FRA acknowledges that the plain
language of 49 CFR 219.403(b)(4) requires a SAP
recommendation for the return to service of an

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the final rule, a DAC will be required to
meet the exact same qualifications as a
SAP. FRA believes these changes will
avoid interfering with parts 40 and 219
while requiring the same qualification
and credentialing requirements for
persons evaluating substance abuse
disorders as that proposed in the NPRM.
2. Medical Examiner
BLET/UTU commented that the
proposed definition of ‘‘medical
examiner’’ should be amended to
explicitly state that a medical examiner
owes a duty to the employee and the
railroad. FRA believes that this revision
is unnecessary given the plain language
of the regulation and the statement
provided in the NPRM preamble
addressing this issue. As FRA stated in
the NPRM (75 FR 69166, 69170 (Nov.
10, 2010)) and in the section-by-section
analysis to this final rule:
Under this rule, the medical examiner
owes a duty to make an honest and fully
informed evaluation of the condition of an
employee. The only difference between the
definition of medical examiner in this rule
and the definition in 49 CFR part 240 is that
under part 240, the medical examiner owes
‘‘a duty to the railroad.’’ In this rule,
however, the words ‘‘to the railroad’’ have
been deleted. This change was made to
address a concern of some Working Group
members that a medical examiner should not
owe a duty to just the railroad but rather
should owe a duty to both the railroad and
the employee being evaluated.

3. Job Aid
SEPTA raised a concern with FRA’s
proposed definition of ‘‘job aid.’’
According to SEPTA, job aids provide
information or guidance on how to
perform a multitude of tasks, and
railroads must have the flexibility to
determine the scope of their use. SEPTA
asserts that the specific reference to
‘‘physical characteristics’’ in the
definition of ‘‘job aid’’ is unduly
prescriptive and creates the potential for
misinterpretations and erroneous
limitations on the use of such tools.
Based on that reading, SEPTA expressed
concern that the proposed definition
could be considered a prohibition on
railroads from using a job aid for
employee who has entered a voluntary self-referral
program. However, FRA has indicated that either a
SAP or an Employee Assistance Program (EAP)
Counselor may perform the assessment and provide
any necessary recommendations for the return to
service of an employee who has entered a voluntary
self-referral program. See Part 219 Alcohol/Drug
Program Compliance Manual at http://
www.fra.dot.gov/downloads/safety/
ADComplianceMan.pdf. Moreover, § 240.119(e)
references an EAP in connection with voluntary
self-referrals for locomotive engineers. Accordingly,
in this final rule, the term DAC will be used with
respect to employee self-referrals rather than SAP.

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anything other than physical
characteristics familiarization.
FRA believes that the commenter is
applying the term ‘‘job aid,’’ as used in
part 242, beyond its intended scope.
The term only applies to specific
information that would be provided in
specific situations (i.e., information
regarding other than main track physical
characteristics that is required to be
provided only in situations where a
conductor lacks territorial qualification
on other than main track physical
characteristics and it is not practicable
for the conductor to be assisted by a
conductor who meets the territorial
qualification requirements). As defined,
the term ‘‘job aid’’ would not prohibit
additional information from being
included in a job aid. Moreover, the use
of the term ‘‘job aid’’ in this rule is not
intended to prohibit the use of
information or guidance which is not
covered by the term’s definition,
regardless of whether the information or
guidance is called a job aid. Because
FRA does not believe that the proposed
definition could be considered a
prohibition on a railroad using a job aid
for anything other than physical
characteristics familiarization, FRA has
adopted the proposed definition in this
final rule.

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4. On-the-Job Training
SEPTA commented that the proposed
definition of ‘‘on-the-job training’’
should be replaced by a definition of
that term as developed by the RSAC
Training Standards and Plans Working
Group. At the Working Group meetings,
FRA informed the Working Group that
it would conform to the requirements
developed by the Training Standards
and Plans Working Group where
appropriate. The proposed definition in
the NPRM mirrored the definition
developed by the Training Standards
and Plans Working Group except the
Training Standards definition included
‘‘on-the-job training’’ components in the
regulatory text rather than in the
definition as provided in the NPRM. In
this final rule, FRA has adopted the
more concise definition of ‘‘on-the-job
training’’ developed by Training
Standards and Plans Working Group
and has moved the components to the
regulatory text. See 49 CFR
242.119(d)(2).
5. Conductor
SEPTA commented that the definition
of ‘‘conductor’’ should be revised to
read: ‘‘Conductor means the
crewmember in charge of a train or yard
crew as defined in part 218 of this
chapter, when the train or yard crew
consists of more than one crew

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member.’’ The definition of conductor
was the subject of lengthy discussions
during the Working Group meetings and
the recommendation of the Working
Group was adopted in the NPRM. The
NPRM is focused on the functions that
a person performs and not on the
person’s job title. SEPTA’s definition,
however, would diverge significantly
from the approach taken in the NPRM.
For example, by SEPTA’s definition, a
one-person remote control operator job
would not have a conductor but a twoperson job would. Thus, SEPTA’s
definition would mean that a remote
control operator in a one-person job
would not have engaged in a revocable
event for any 49 CFR part 218, subpart
F violation. FRA believes that such a
loophole in the regulation could lead to
a less safe working environment for
railroad employees.
The definition of ‘‘conductor’’ is a
fundamental element of the conductor
certification regulation and FRA does
not discern any safety-related reason to
modify it. Accordingly, FRA has
adopted the definition, as proposed in
the NPRM, in this final rule.

person could safely return to duty under
certain conditions. Thus, to capture all
situations where a conductor may be
legally disqualified from serving as a
conductor, FRA believes it is useful to
define and use the terms ‘‘ineligible’’
and ‘‘ineligibility.’’
BLET/UTU commented that the
definition of ‘‘ineligible’’ and
‘‘ineligibility’’ should be revised to state
that a period of ineligibility ‘‘shall begin
only after a person has been afforded the
applicable due process established by
either § 242.109(e), § 242.115(f) or
Subpart E and shall end when the
condition or conditions contained
therein are met.’’ FRA believes that
BLET/UTU’s proposal could have an
adverse impact on railroad safety
because the proposal could potentially
allow a conductor, involved in a
revocable event, to continue to serve as
a conductor until the railroad concludes
its hearing and issues a decision.
Accordingly, FRA declines to
implement the proposal and determines
that the definition of ‘‘ineligible’’ and
‘‘ineligibility’’ as proposed in the NPRM
will be adopted in this final rule.

6. Ineligible and Ineligibility
SEPTA commented that the use of the
terms ‘‘ineligible’’ and ‘‘ineligibility’’
should be limited to two situations: (1)
Initial certification, where an individual
is being considered for certification but
may not qualify for certification at that
time; and (2) recertification, where an
individual is currently certified and due
for recertification, but certain
circumstances outside the scope of
‘‘prohibited conduct’’ would prohibit
recertification until the situation is
resolved.
As used in the NPRM, the terms
‘‘ineligible’’ and ‘‘ineligibility’’ are
catch-all terms that not only encompass
revocation and denial of certification
(including the two situations
highlighted by SEPTA) but also cover
other situations. For example, a certified
conductor may voluntarily refer him or
herself for substance abuse counseling
or treatment under 242.115(d). If the
conductor refuses to complete a course
of action recommended under the
provisions of 49 CFR 219.403, that
would not be an operating rule or
procedure, or type of alcohol or drug
violation that would require revocation
(nor would it constitute a denial of
certification situation). Rather the
conductor would simply remain
‘‘ineligible’’ until a railroad determined
that the person no longer had a
substance abuse disorder, or the person
re-entered a substance abuse program
and it had been determined under the
provisions of 49 CFR 219.403 that the

7. Qualified Instructor
SEPTA commented that the definition
of ‘‘qualified instructor’’ should be
replaced with the definition of
‘‘designated instructor’’ developed by
the RSAC Training Standards and Plans
Working Group. In the alternative,
SEPTA commented that: FRA needs to
provide references validating the
correlation of 12 months of experience
with instructional competency, craft
qualifications or subject matter
expertise; and define or clarify whether
the term ‘‘train service’’ is limited to
certified conductors or whether the term
also includes engineers, brakeman,
assistant conductors, etc.
The definition of ‘‘designated
instructor’’ developed by the RSAC
Training Standards and Plans Working
Group refers to:

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

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

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

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

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C. Certification Program
FRA solicited comments as to
whether the amount of time proposed
for implementing a conductor
certification program (based on the
dates provided) is appropriate. FRA did
not receive any written comments on
this issue but did receive feedback
during the May 12, 2011 Working Group
meeting regarding an extension of the
effective date of the rule. However, FRA
believes its proposed approach is
reasonable and thus, the time periods
proposed in the NPRM will be adopted
in this final rule.
D. Schedule of Implementation
AAR seeks confirmation that: ‘‘Any
employee can be designated as a
conductor under the grandfather
provision through June 1, 2012. Any
employee designated as a conductor
under the grandfather provision can
serve as a conductor until June 1, 2015,
without being tested and evaluated
pursuant to subpart B and issued a
certificate pursuant to section 242.207.’’
AAR’s summary of the designation
provisions in § 242.105 is not entirely
accurate. With respect to the time
period for designating conductors, only
persons authorized by a railroad to
perform the duties of conductor
between January 1, 2012 and June 1,
2012 for Class I and II railroads and
January 1, 2012 and October 1, 2012 for
Class III railroads, will be designated as
conductors. With respect to the time
period a person designated as a
conductor may serve without being
tested and evaluated, a person
designated as a conductor pursuant to
§ 242.105 may not serve as a conductor
after June 1, 2015 for Class I and II
railroads and October 1, 2015 for Class
III railroads without being tested and
evaluated pursuant to Subpart B.
However, after March 1, 2012, each
railroad must issue a certificate that
complies with § 242.207 to each person
that it designates. Moreover, subject to
the provisions of § 242.105(c)(1)–(3), a
railroad may test and evaluate its
designated conductors under subpart B
before the 36-month designation period
has expired. Railroads should note that
they may not test and evaluate a
designated conductor or conductor
candidate under subpart B of this rule
or revoke a conductor’s certificate,
including a designated conductor’s
certificate, until they have a certification
program approved by the FRA pursuant
to § 242.103.

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

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would be able to offer the employee a
choice.
Pursuant to § 242.111 of the NPRM,
railroad employees would be evaluated
for substance abuse disorders by a
person (i.e., a Drug and Alcohol
Counselor who meets the credentialing
and qualification requirements of a
SAP) with more stringent credentialing
and knowledge requirements than an
EAP Counselor (currently used in part
240) or the type of person proposed by
AAR. FRA believes that requiring more
stringent credentialing and knowledge
requirements will improve employee
confidence in the evaluation process.
Moreover, AAR’s proposal could open
up the possibility of harassment and
intimidation of an employee who does
not choose to be evaluated by a person
who has less stringent credentialing and
knowledge requirements than a SAP.
Accordingly, FRA declines to adopt the
paragraph proposed by AAR.
AAR commented that it appears that
FRA intends for DOT’s requirement for
direct observation of urine collection to
apply to follow-up testing required as a
result of motor vehicle alcohol and drug
violations. AAR would agree with that
position and suggested that FRA should
make clear, both in this regulation and
Part 240, that where follow-up testing is
required by federal rules, all federal
testing requirements, including direct
observation, apply.
It is not FRA’s intention for DOT’s
requirement for direct observation of
urine collection to apply to follow-up
testing required as a result of motor
vehicle alcohol and drug violations. A
motor vehicle alcohol/drug incident
requiring follow-up testing is not a
Federal part 219 violation. As such, this
incident does not meet the criteria
justifying direct observation as provided
by 49 CFR 40.67. Interested parties
should note, however, that direct
observation of urine collection for
follow-up testing may be recommended
by a Drug and Alcohol Counselor as
necessary.
F. Substance Abuse
BLET/UTU commented that the
guidance provided in the NPRM
concerning circumstances which may
indicate the need for a SAP evaluation
(i.e., ‘‘declining job performance,
extreme mood swings, [and] irregular
attendance’’) should be removed from
the preamble. BLET/UTU assert that the
circumstances identified are ambiguous
and/or subjective concepts which could
be exploited by the railroads. FRA
acknowledges that there could be
legitimate reasons why someone might
exhibit some or all of the conditions
identified in the preamble to the NPRM.

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

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69807

after an incident that a conductor’s
vision or hearing acuity had
deteriorated below the standard set forth
in the NPRM, that conductor, even
though he or she may not have been
aware of the deterioration, may be
subjected to penalties or enforcement
actions for failing to notify the railroad
of the deterioration prior to the incident.
FRA understands BLET/UTU’s concern
and believes it is obvious that a
conductor could not have enforcement
action taken against them for failing to
notify the railroad of a condition he or
she was not aware existed. That is why
the preamble discussion of this section
in the NPRM noted that the paragraph
at issue ‘‘would address the issue of
how soon after learning of a
deterioration * * * a conductor would
have to notify the railroad of the
deterioration.’’ 75 FR 69166, 69176
(Nov. 10, 2010) (emphasis added).
Because the proposed regulation would
not permit enforcement action against a
conductor for failing to notify a railroad
when they are not aware that their
vision or hearing acuity had
deteriorated below the standard set forth
in the regulation, FRA declines to adopt
BLET/UTU’s proposed amendment.
H. Training
FRA solicited comments whether to
require each railroad to provide for the
continuing education of certified
conductors in § 242.119(o). Since FRA
did not receive any comments on this
issue and because FRA sees no reason
to change its approach, the proposed
continuing education requirement
contained in the NPRM (see 75 FR
69166, 69176–69177, 69204–69205
(Nov. 10, 2010)) will be adopted in this
final rule.
NYMTA, SEPTA and AAR
commented that the proposed language
in § 242.119(d)(1) specifying the
development of a task analysis should
be removed. In the Working Group
meetings and the preamble to the
NPRM, FRA indicated that, to the extent
possible and appropriate, it would
conform the training requirements in
part 242 to the training requirements
being developed by the RSAC Training
Standards and Plans Working Group.
Because the RSAC recommendation
from the Training Standards and Plans
Working Group did not require a task
analysis and FRA believes that the more
comprehensive on-the-job training
requirement included in the final rule
(see section-by-section analysis of
242.119 below) adequately substitutes
for a task analysis requirement, FRA has
removed the proposed task analysis
requirement from the final rule.

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NYMTA, SEPTA and AAR
commented that FRA should remove
paragraphs (l) and (m) in proposed
§ 242.119 of the NPRM. Those
paragraphs proposed to require railroads
to perform initial instructional briefings
with their conductors. In the Working
Group meetings and the preamble to the
NPRM, FRA indicated that, to the extent
possible and appropriate, it would
conform the training requirements in
part 242 to the training requirements
being developed by the RSAC Training
Standards and Plans Working Group.
Because the RSAC recommendation
from the Training Standards and Plans
Working Group did not require initial
instructional briefings and FRA believes
that the initial training program
requirements included in the final rule
(see section-by-section analysis of
242.119 below) adequately cover the
requirements in the proposed
paragraphs at issue, FRA has removed
paragraphs (l) and (m) in proposed
§ 242.119 of the NPRM from the final
rule.
BLET/UTU commented that
§ 242.119(n), providing an exception to
the initial briefing requirements of
§ 242.119(l) and (m) should be deleted
and replaced in its entirety with the
following: ‘‘Initial training shall be
conducted in accordance with the
requirements of Part 243.’’ Since FRA
has not even issued a NPRM relating to
part 243, FRA cannot use BLET/UTU’s
proposed language. However, since the
RSAC Training Standards and Plans
Working Group’s recommendation to
FRA does not require initial
instructional briefings and FRA believes
that the initial training program
requirements included in the final rule
(see section-by-section analysis of
242.119 below) adequately cover the
substance of proposed paragraph (n),
FRA has removed paragraph (n) in
proposed § 242.119 of the NPRM from
the final rule.
I. Knowledge Testing
SEPTA commented that proposed
§ 242.121(c)(4)(v), which requires
testing on use of job aids, should be
deleted since this section includes
requirements for an examination on
operating rules and timetable
instructions which would presumably
demonstrate an individual’s ability to
use those documents. FRA believes it is
an important safety measure to ensure
that conductors be able to use any job
aid, as defined by this part, that they
may be given. Moreover, FRA does not
believe that testing on operating rules
and timetable instructions would
necessarily demonstrate an individual’s
ability to use a job aid. Accordingly,

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FRA declines to delete § 242.121(c)(4)(v)
as proposed in the NPRM.
BLET/UTU commented that
§ 242.121(c)(6) of the NPRM, which
would have required knowledge testing
to be conducted without open reference
books or other materials except to the
degree the person is being tested on his
or her ability to use such reference
books or materials, should be deleted.
While one would expect a conductor to
refer to his or her written rules and
instructions whenever there is any
uncertainty about what is required by a
particular rule, instruction or practice,
FRA believes that some rules are so
fundamental to railroad safety, such as
compliance with stop signals, that a
conductor would be expected to know
the rule without referring to reference
materials. Accordingly, FRA declines to
delete § 242.121(c)(6) as proposed in the
NPRM.
J. Monitoring Operational Performance
NYMTA seeks confirmation that:
‘‘Training may be used as a substitute to
satisfy the annual unannounced test for
persons certified as passenger
conductors pursuant to § 242.107(b)(2)
who do not require compliance with
Part 218, subpart F, except under
emergency circumstances.’’ FRA
confirms that training may be used as a
substitute pursuant to § 242.123(d)(2)(i).
SEPTA and NYMTA commented that
it is not feasible to test each of its
certified conductors on one or more of
the provisions in 49 CFR 218.99–
218.109 because the majority of
passenger conductors do not have the
opportunity to perform part 218 tasks on
a regular basis. SEPTA recommends
revising § 242.123(d)(2)(i) to allow
annual training to substitute for annual
test for all passenger conductors. FRA
declines to adopt NYMTA and SEPTA’s
comments in this final rule. FRA
believes that § 242.123(d)(2)(i) addresses
SEPTA and NYMTA’s concerns about
passenger conductors who rarely engage
in activities covered by part 218,
subpart F. FRA expects that most
passenger conductors will never have to
engage in activities covered by part 218,
subpart F (which is what FRA means by
the phrase ‘‘compliance with part 218,
subpart F’’) except in emergency
circumstances. Accordingly, FRA
expects that most passenger conductors
will be permitted to be given annual
training in lieu of an unannounced
compliance test.
While not revising § 242.123(d)(2)(i)
based on the comment, FRA is revising
the paragraph to clarify its intent. FRA
intended for § 242.123(d)(2)(i) to state
that the annual training exception only
applies to part 218, subpart F, testing

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and that a railroad will still have to test
on § 217.9. The final rule has been
revised accordingly.
SEPTA and NYMTA commented that
the time limit proposed in
§ 242.123(b)(1) and (f) for testing
conductors who are returning to service
should be extended from 30 days to 60
days. They contend that this will
provide for increased quality
observations thereby allowing the
manager extra opportunities to observe
the employee on different job
assignments. As provided in the
preamble to the NPRM, proposed
paragraphs (b)(1) and (f) address the
problem that some certified conductors
may not be performing a service that
requires conductor certification and
thus, a railroad may not be able to
provide those conductors with the
annual, unannounced compliance test.
Unlike part 240, which requires
railroads to seek a waiver from FRA’s
Safety Board for engineers that they are
unable to annually test, the proposed
paragraphs would not require railroads
to give an unannounced compliance test
to conductors who are not performing
service requiring certification.
Moreover, the railroads are given
approximately a month to test those
conductors returning to service.
BLET/UTU commented that the rule
should make it clear that the employee
may work for the 30 days pending the
unannounced test and thus, asserted
that 242.123(f) should be amended as
follows: ‘‘However, when the certified
conductor returns to a service that
requires certification pursuant to this
part, that certified conductor shall not
be deemed ineligible but must be tested
pursuant to this section within 30 days
of his or her return.’’ (emphasis added).
FRA declines to adopt the revisions
suggested in the comment. Just as with
locomotive engineers under part 240, a
failure to conduct an unannounced test
does not affect a conductor’s
certification (i.e., a railroad’s failure to
give the test to a person would not
render that person ineligible to serve as
a conductor). However, that does not
mean the person would not be ineligible
for another reason. For example, a
conductor who is determined to have an
active substance abuse disorder would
be ineligible to serve as a conductor
regardless of whether the conductor had
received an unannounced compliance
test within 30 days of his or her return
to conductor service. Since the BLET/
UTU’s proposed revision could be read
to prevent a railroad from deeming a
person ineligible for any reason upon
that person’s return to conductor
service, FRA declines to adopt the
revision.

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K. Time Limitations for Certification
BLET/UTU commented that the
conductor certification rules should be
consistent with the potential medical
standards that are being considered by
FRA. It is FRA’s expectation that where
possible and appropriate, part 242 will
be consistent with any potential medical
standards rulemaking.
L. Certificate Components
FRA solicited comments whether to
require a conductor’s certificate to
include a physical description or
photograph of the conductor. As stated
in the NPRM, locomotive engineer
certificates are required to include a
physical description or photograph of
the engineer pursuant to part 240.
Moreover, FRA believes that this
requirement would enable FRA
inspectors, railroad officers, and police
officers to quickly verify that the person
in possession of the certificate is in fact
the person listed on the certificate.
Since FRA did not receive any
comments on this issue and because
FRA believes it will assist in monitoring
railroad compliance with certification of
conductors, the proposed physical
description or photograph requirement
in the NPRM will be adopted in this
final rule.

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M. Multiple Certifications
In the NPRM, FRA solicited
comments regarding whether to add a
provision to § 242.213 that would
require railroads to make the
determination as to which certification
to revoke, where a person who is
serving as both the conductor and the
engineer is involved in a revocable
event, based on the work the person was
performing at the time the conduct
occurred. FRA noted that such a
determination would be similar to the
one made under § 242.215(f) and under
part 225 in which railroads determine
whether an accident was caused by
poorly performing what is traditionally
considered a conductor’s job function or
what is traditionally considered a
locomotive engineer’s job function.
BLET/UTU supported the addition of
the provision, while AAR commented
that a railroad should be able to revoke
both certificates.
FRA has included the additional
provision in § 242.213 of this final rule.
FRA believes that the provision is
necessary to bring additional continuity
to the revocation process. Moreover, this
type of determination is not new to the
railroads as they already make similar
determinations under part 225 and
agreed to the inclusion of similar
language in § 242.215(f) of the NPRM.

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FRA does not believe it is necessary to
revoke both certificates in such
situations because a person certified as
a conductor and an engineer will not be
permitted to serve in either position if
one of the certificates has been revoked
for anything other than a part 218,
subpart F, violation. With respect to part
218, subpart F violations, AAR’s
comment is not feasible since part 240
does not currently permit a person
certified as an engineer to have his or
her engineer certification revoked for a
violation of part 218, subpart F.
Amtrak, SEPTA, and NYMTA
commented on § 242.213’s proposed
requirement that a locomotive engineer,
including a RCO, who is operating
without an assigned certified conductor
must be certified as both a locomotive
engineer and a conductor or be
accompanied by a certified conductor
who will attach to the crew ‘‘in a
manner similar to that of an
independent assignment.’’ Amtrak,
SEPTA, and NYMTA’s comments
asserted that that requirement should be
amended to provide exceptions for
passenger railroads and train operations
in certain areas and contexts.
Amtrak, SEPTA, and NYMTA’s
comments concern the very definition of
a conductor. That definition was the
subject of lengthy discussions during
the Working Group meetings and the
recommendation of the Working Group
was adopted in the NPRM. The
definition is a fundamental element of
the conductor certification regulation
and FRA does not discern any safetyrelated reason to modify it. Moreover,
an exception is built into the final rule
which address some of the concerns
raised in the comments. For example, if
a conductor is removed from a train for
a medical, police or other such
emergency after the train departs from
an initial terminal, the train may
proceed without the locomotive
engineer being a certified conductor to
the first location where the conductor
can be replaced without incurring
undue delay. Interested parties should
also note that movement of a locomotive
within the confines of a locomotive
repair or servicing area or movement of
a locomotive less than 100 feet for
inspection or maintenance purposes
would not require a certified conductor.
Accordingly, Amtrak, SEPTA, and
NYMTA’s comments have not been
adopted in this final rule.
BLET/UTU commented that
§ 242.213(h)(1) should be amended to
make clear that when both an engineer
and conductor certification are revoked
for different lengths of time, the
revocation periods shall run
concurrently. BLET/UTU recommended

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amending § 242.213(h)(1) to read as
follows:
For purposes of determining the period for
which a person may not work as a certified
locomotive engineer due to a revocation of
his or her conductor certification, only
violations of § 242.403(e)(1) through (e)(5) or
(e)(12) will be counted. Thus, a person who
holds a current conductor and locomotive
engineer certificate and who has had his or
her conductor certification revoked three
times in less than 36 months for two
violations of § 242.403(e)(6) and one
violation of § 242.403(e)(1) would have his or
her conductor certificate revoked for 1 year,
but would not be permitted to work as a
locomotive engineer for the first month of
that revocation period (i.e., the period of
revocation for one violation of
§ 242.403(e)(1)).

(emphasis added).
FRA declines to adopt BLET/UTU’s
amendment. Section 242.213(h) and the
chart in Appendix E already make clear
that the period a person cannot not
work as an engineer occurs during the
period that the conductor certification is
revoked (i.e., concurrently). Moreover,
FRA cannot say that the person in the
example given in § 242.213(h)(1) would
not be permitted to work as an engineer
for the first month of the one year
revocation period because the example
does not provide the exact order of the
revocations. Nonetheless, it is FRA’s
intent that the period a conductor could
not work as an engineer would occur at
the beginning of the revocation period.
Thus, a person who holds a current
conductor and locomotive engineer
certificate and who has had his or her
conductor certification revoked twice
within 24 months—first for a violation
of § 242.403(e)(6) and second for a
violation of § 242.403(e)(1)—would have
his or her conductor certificate revoked
for 6 months, but would not be
permitted to work as a locomotive
engineer for the first month of that
6-month revocation period (i.e., the
period of revocation for one violation of
§ 242.403(e)(1)).
N. Territorial Qualification
BLET/UTU commented that the
provision proposed in § 242.301(c)
should be amended to state that a
person who assists a conductor lacking
territorial qualification on main track
physical characteristics may not be an
assigned crew member. In support of its
comment, the BLET/UTU notes that
under part 240, a pilot who assists a
locomotive engineer lacking
qualifications on the physical
characteristics of a territory may not be
an assigned crew member. As proposed
in the NPRM, § 242.301(c) would permit
the locomotive engineer of a train, who
is also certified as a conductor and

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qualified on the physical characteristics
of the territory, to assist the assigned
conductor if the conductor lacks
qualification on the physical
characteristics. BLET/UTU asserts that
could lead to a situation in which an
engineer would be required to
simultaneously perform the safetycritical responsibilities of two people,
including some that may be performed
in two different physical locations. AAR
opposed BLET/UTU’s amendment.
According to AAR, the proposed
amendment ignores the distinction
between an engineer’s duties and a
conductor’s duties and that for a move
requiring the engineer to assist the
conductor, the engineer can conduct a
job safety briefing that provides the
conductor with any information
necessary to allow a safe move. In
addition, AAR asserts that the lack of
need for a non-crew member pilot is
supported by the fact that job aids may
be used on other than main track where
it is not practicable to provide an
assistant—‘‘whether an engineer is
providing necessary information
pertaining to the territory or the
conductor is using a job aid, the
conductor will have sufficient
information available to allow for safe
operation of the train.’’
Based on the comments received and
after further review of the issue, FRA
has revised the requirements in
§ 242.301 regarding when a conductor
lacking territorial qualification on main
track physical characteristics must be
assisted by a person who meets those
qualifications. The revisions, derived in
large part from the pilot requirements
for locomotive engineers in part 240,
provide differing requirements
depending on whether a conductor has
never been qualified on main track
physical characteristics of the territory
over which he or she is to serve as a
conductor or whether the conductor was
previously qualified on main track
physical characteristics of the territory
over which he or she is to serve as a
conductor, but whose qualification has
expired.
For a conductor who has never been
qualified on main track physical
characteristics of the territory over
which he or she is to serve as a
conductor, the final rule requires that
the assistant must be a person who is
certified as a conductor, meets the
territorial qualification requirements for
main track physical characteristics, and
is not an assigned crew member. For a
conductor who was previously qualified
on main track physical characteristics of
the territory over which he or she is to
serve as a conductor, but whose
qualification has expired, the Final Rule

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allows the assistant to be any person,
including an assigned crewmember
other than the locomotive engineer so
long as serving as the assistant would
not conflict with that crewmember’s
other safety sensitive duties, who meets
the territorial qualification requirements
for main track physical characteristics.
In addition to the revisions as to when
an assistant is required on main track,
the Final Rule includes exceptions as to
when an assistant is not required on
main track. Those exceptions, which are
derived from 49 CFR 240.231(c), apply
to movements on a section of main track
with an average grade of less than 1%
over 3 continuous miles and: (1) The
maximum distance the locomotive or
train will be operated does not exceed
one mile; or (2) the maximum
authorized speed for any operation on
the track does not exceed 20 miles per
hour; or (3) operations are conducted
under operating rules that require every
locomotive and train to proceed at a
speed that permits stopping within one
half the range of vision of the
locomotive engineer.
FRA believes that these changes will
serve the interests of safety, address the
concerns of the BLET/UTU, provide
flexibility for the railroads in handling
situations which require an assistant,
and make this Final Rule more
consistent with the main track pilot
requirements in part 240.
The BLET/UTU also commented that
the proposed job aid provision in
§ 242.301(d) should be mandatory and
suggested that the last sentence of that
section should read: ‘‘Where not
practicable, the conductor shall be
provided an accurate job aid prior to
entering the track.’’ It was FRA’s intent
that the job aid provision of § 242.301(d)
be mandatory and it has been revised
accordingly in this final rule. FRA
declines to adopt the additional
suggested revisions as it believes that
the phrase ‘‘appropriate up-to-date’’
used in the NPRM encompasses the
suggested term ‘‘accurate’’ and the
‘‘prior to entering the track’’ language is
unnecessary because a conductor who
lacks territorial qualification on a
segment of track will not be permitted
to enter that track until they are, where
practicable, assisted by a certified
conductor who is qualified or provided
an appropriate up-to-date job aid.
O. Denial of Certification
In the NPRM, FRA solicited
comments on whether to add two
provisions to § 242.401. See 75 FR
69166, 69181 (Nov. 10, 2010). The first
provision proposed to add the following
sentence to paragraph (a) of that section:
‘‘The railroad shall provide the

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

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certification and recertification
requirements in addition to the
revocable events in § 242.403. FRA
provided an example of how paragraph
(d) could be modified: ‘‘A railroad shall
not determine that a person failed to
meet the eligibility requirements of this
part and shall not deny the person’s
certification if sufficient evidence exists
to establish that an intervening cause
prevented or materially impaired the
conductor’s ability to comply with the
railroad operating rule or practice or
certification or recertification
requirement which forms the basis for
denying the person certification or
recertification.’’ See 75 FR 69166, 69181
(Nov. 10, 2010). AAR commented that
they did not understand what FRA was
trying to do and stated that FRA
appeared to be contemplating that there
could be an intervening event on which
to base denial of certification
independent of the events listed in
§ 242.403. BLET/UTU agreed that
§ 242.401(d) should be modified as
proposed by FRA.
Contrary to AAR’s comment, FRA is
not suggesting that an intervening cause
could serve as a basis for denial. Rather,
FRA’s proposal provides that an
intervening cause could serve as a basis
for not denying certification. At the May
12th Working Group meeting, AAR
stated that they were opposed to
extending the intervening cause
provision to denials of certification. At
that meeting, a member of the Working
Group expressed concern that under the
proposal, a conductor candidate who
was not able to hold themselves up on
the side of a car which in turn led to a
violation of § 242.403(e)(1) through
(e)(11) could assert an intervening cause
argument.
Because the proposed modification
appears to have caused confusion, could
lead to unintended consequences, and
merely clarifies FRA’s existing
authority, FRA has decided not to
modify § 242.401(d) as proposed in the
NPRM. Rather, FRA has clarified
paragraph (d) in this final rule to reflect
more accurately what was said in the
NPRM. Interested parties should note,
however, that like the LERB under part
240, the OCRB has the authority, if
petitioned, to review the basis for denial
of certification or recertification by the
railroad to determine if substantial
evidence supports the decision.
P. Criteria for Revoking Certification
In the NPRM, FRA solicited
comments whether a violation of the
final rule in 49 CFR part 220
(‘‘Restrictions on Railroad Operating
Employees’ Use of Cellular Telephones
and Other Electronic Devices’’) should

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constitute a revocable event for
conductors and locomotive engineers. In
particular, FRA asked whether it should
use its other enforcement tools (e.g.,
monetary civil penalty for individual
liability, disqualification, etc.) instead of
mandating revocation and how a
railroad would acquire the necessary
evidence to revoke a conductor’s and/or
locomotive engineer’s certification for
violation of 49 CFR part 220. AAR and
SEPTA commented that a violation of
part 220 should constitute a revocable
event and AAR stated that it would
expect that FRA would provide
assistance and support, as necessary,
including the invocation of its subpoena
power when appropriate.
BLET/UTU commented that they are
opposed to including a violation of part
220 as a revocable event under part 240
and 242 because: FRA’s data shows that
cell phone violations are qualitatively
different than a violation of the cardinal
sins; there is no indication that there is
a pattern of cell phone violations
requiring the imposition of revocation;
there are numerous questions regarding
FRA’s data are unanswered; and FRA
currently has sufficient tools at its
disposal (e.g., subpoenas, individual
liability, etc.) to detect and punish
violations. Alternatively, BLET/UTU
commented that if FRA makes it a
revocable offense, then the regulation
should state that revocation is
appropriate only when an electronic
device is improperly used while
performing safety related duties and the
use contributed to an event identified in
§ 219.201.
At this time, FRA had decided not to
include part 220 violations as revocable
events in this final rule. FRA already
has a new regulation, 49 CFR part 220,
to address cell phone use and believes
that time should be allowed to study
what impact that regulation has on the
improper use of electronic devices on
the railroads. In addition, FRA has
numerous enforcement tools against
individuals available to address misuse
of electronic devices—warning letters,
civil penalties, disqualifications, etc.
Moreover, requiring revocation for part
220 violations would be incredibly
difficult for railroads to enforce and
apply. FRA cannot legally use its
subpoena powers to gather information
for a railroad which is what AAR
expects to happen. Therefore, FRA
expects that most cases would simply be
one person’s statement versus another.
Railroads appear to have rules and
policies in place to address the misuse
of electronic devices. A survey of Class
I railroads indicates that they generally
have rules and policies in effect that are
more comprehensive than the federal

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69811

minimums contained in part 220.
Discipline for non-compliance is
typically governed by the specific
nature of the offense and the discipline
record of the employee and ranges from
coaching or counseling to dismissal.
Although FRA is not including part
220 violations as revocable events, FRA
will continue to monitor the use of
electronic devices and, if necessary, will
consider amending the regulations to
include misuse of such as a revocable
event.
Moreover, FRA expects to use its
disqualification authority under part
211 in instances where improper use of
electronic devices is found under part
220. FRA will be taking a zero tolerance
view of such violations and, in addition
to its civil penalty authority against a
railroad, will also utilize its
disqualification authority against an
individual employee to the extent
practicable in any such instance of
misuse by an employee.
NYMTA and SEPTA commented that
a conductor who is called to perform the
duty of a train crew member other than
that of conductor or locomotive
engineer should have his or her
certification revoked based on actions
taken or not taken while performing that
duty. That suggestion, however, runs
counter to § 242.403(c)(3), and what was
agreed to by the Working Group.
Paragraph (c)(3) of section 242.403
states that a ‘‘certified conductor who is
called by a railroad to perform the duty
of a train crew member other than that
of conductor or locomotive engineer
shall not have his or her certification
revoked based on actions taken or not
taken while performing that duty.’’ FRA
believes that the paragraph explains the
status quo and conforms to the approach
taken in part 240 for locomotive
engineers. See 240.117(c)(3). FRA also
expects that the paragraph will help
keep down the number of railroad
hearings and petitions to FRA for review
pursuant to the dispute resolution
process. Accordingly, FRA has adopted
the paragraph in this final rule.
BLET/UTU commented that the
explanation of the phrase ‘‘appropriate
action’’ in § 242.403(c)(2) and
242.403(e)(2)(i) should be amended to
state that ‘‘the duty is met’’ (rather than
‘‘the duty may be met’’) by warning the
conductor or engineer of a potential or
foreseeable violation. FRA declines to
adopt that change due to the fact that
‘‘appropriate action’’ depends on the
situation. For example, if a conductor
provides a warning with plenty of
distance, then the conductor has likely
met his or her duty. However, the
conductor of a train who provides a
warning for the first time one second

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before the train passes a stop signal that
the conductor was aware of 3 miles
back, likely has not met his or her duty.
Q. Periods of Ineligibility
NYMTA and SEPTA commented
regarding proposed § 242.405(a)(3)(i)
which provides that on other than main
track where restricted speed or the
operational equivalent thereof is in
effect, the period of revocation for a
violation of § 242.403(e)(6) through
(e)(8), (e)(10), or (e)(11) shall be reduced
by one half if another revocable event
has not occurred within the previous 12
months. NYMTA commented that FRA
should leave the ability to assess the
appropriate discipline for speeding
violations on other-than-main-track
with the controlling railroad. SEPTA
commented that proposed
§ 242.405(a)(3)(i) should be eliminated
because all violations should be treated
consistently regardless of where they
occur.
As explained in the NPRM,
§ 242.405(a)(3)(i) recognizes that some
violations which occur on other than
main track where slower speeds are in
effect are likely to pose less of a danger
to safety than violations that occur on
main track and thus, a reduced period
of revocation is warranted. Nothing in
the comments submitted has altered
FRA’s view on this and therefore, FRA
has adopted the provision as proposed
in this final rule.
SEPTA commented that the title of
the § 242.405 should be changed to
‘‘Periods of Revocation or Denial of
Certification’’ consistent with their
comment regarding the definition of
‘‘ineligible’’ and ‘‘ineligibility.’’ FRA
declines to adopt SEPTA’s comment for
the reasons it declined to adopt their
comment regarding the definition of
‘‘ineligible’’ and ‘‘ineligibility.’’ See the
discussion of the definition of
‘‘ineligible’’ and ‘‘ineligibility’’ in the
General Summary of the Comments to
this final rule.
In its comments, ASLRRA
recommended an alternative procedure
for Class III railroads to address a
situation where disqualification of a
conductor would result in a disruption
to service because there is no other
available certified conductor as a
replacement. In that situation, ASLRRA
suggested that a decertified conductor
on a Class III railroad, who had never
previously been decertified, would be
required to undergo remedial training
and testing, but would be allowed to
continue functioning for that railroad as
a conductor under specific restrictions
to match the event triggering the
decertification. FRA declines to adopt
the alternative procedure for Class III

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railroads because: (1) The procedure
would result in disparate treatment of
conductors across the three classes of
railroads (i.e., a conductor for a Class I
railroad would not be permitted to serve
as a conductor following a decertifiable
event whereas a conductor on a Class III
railroad, who was involved in the same
type of decertifiable event, may be
permitted to serve as a conductor); (2)
there is no less a safety risk if a person
is a conductor for a Class III railroad as
opposed to a conductor for a Class I or
Class II railroad; and (3) the procedure
appears to leave open the possibility
that a conductor involved in a revocable
event on a Class III railroad could
immediately go to work for a Class I
railroad due to the fact that restrictions
were placed on the conductor’s
certificate rather than having the
certificate revoked.
R. Process for Revoking Certification
FRA solicited comments regarding its
understanding of proposed
§ 242.407(b)(4) in the NPRM. Pursuant
to that proposed section, a railroad
would, among other things, provide a
conductor subject to a railroad
revocation hearing with a list of
witnesses the railroad will present at the
hearing. The NPRM noted that it is
FRA’s understanding that, except for an
employee of the convening railroad
whose statements led to a suspension
under § 242.407(b)(1), the railroad
would not have to call every witness it
puts on the list. See 75 FR 69166, 69184
(Nov. 10, 2010). Since FRA did not
receive any comments regarding its
understanding and FRA has not
discovered anything to change its
understanding, FRA adopts its
understanding as part of the final rule.
BLET/UTU commented that the
phrase ‘‘just prior’’ in proposed
§ 242.407(b)(4) is ambiguous and should
be changed to a definitive time (i.e., 48
hours) and that telephonic testimony
should be limited to general subject
matter testimony. FRA acknowledges
‘‘just prior’’ is somewhat ambiguous but
railroads need some flexibility with the
timing since railroads do not always
have a copy of the written information
nor do they know exactly who will
serve as a witness 48 hours in advance.
Although FRA declines to adopt the
comment, FRA notes that a party to a
railroad hearing may ask for a recess if
they do not believe they have had
sufficient time to prepare their case.
Moreover, the OCRB, if petitioned, can
consider the time a party had to prepare
his or her defense in determining
whether an appropriate defense was
possible.

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BLET/UTU’s comment regarding
telephonic testimony would narrow the
scope of proposed § 242.407(b)(4) in a
manner not agreed to by the Working
Group or intended by FRA. The intent
of that section as proposed in the NPRM
was to allow a railroad to telephonically
examine an employee of the railroad
whose statements, regardless of subject
matter, formed the information that the
railroad would be presenting at the
hearing if it is impracticable to provide
the employee at the hearing. The section
was narrowly tailored to not only
acknowledge that it is important for a
conductor at a railroad hearing to be
provided with the information that the
railroad will present prior to the
convening of the hearing but also to
acknowledge that in some cases it is
impractical to provide a witness at the
hearing. To retain that balance, FRA is
adopting § 242.407(b)(4) as proposed in
the NPRM.
BLET/UTU commented that the
examples provided in the preamble to
illustrate the term ‘‘minimal nature’’ as
used in proposed § 242.407(i)(2) should
be modified because they are not
realistic. Although FRA declines to
modify the examples provided in the
NPRM, additional examples have been
added to the section-by-section analysis
of § 242.407 in this final rule.
FRA solicited comments on whether a
railroad decision issued pursuant to
proposed § 242.407(c) should include
the following: (1) State whether the
railroad official found that a revocable
event occurred and the applicable
period of revocation with a citation to
49 CFR 242.405 (Periods of revocation);
(2) contain an explanation of the factual
findings and citations to all applicable
railroad rules and practices; (3) not cite
a railroad rule or practice that was not
cited in the written notice of
suspension; and (4) be served on the
employee and the employee’s
representative, if any, with the railroad
to retain proof of that service. AAR
commented that there is no need for the
third proposal. According to AAR, at
least one railroad’s labor agreement
provides that a specific rule violation
shall not be cited in the initial charge
letter and many other railroads have
long-standing practices that are similar.
A comment from a Working Group
member also indicated that the rule
cited would have to be changed if
evidence developed at a railroad hearing
required it. Thus, in that instance, the
railroad would need the flexibility to
cite a rule not cited in the written notice
of suspension. AAR also commented
that the fourth proposal is unnecessary.
As stated in the preamble to the
NPRM, FRA proposed the language to

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

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S. Review Board
BLET/UTU commented that the OCRB
should be comprised of at least three
members and that one of the members
should be an attorney. As stated in the
NPRM, the creation of the OCRB will
require issuance of an internal FRA
order. The make-up of the OCRB will be
determined in that Order. However,
FRA expects that the OCRB will mirror
the make-up of the Locomotive Engineer
Review Board (LERB) which is currently
used by FRA to adjudicate disputes
under part 240. FRA expects that a FRA
attorney will serve as counsel to the
OCRB just as they do to the LERB.
T. Appeals Process
FRA solicited comments whether to
add a provision to proposed
§ 242.503(b) providing that: ‘‘If the
petitioner is requesting review of a
railroad decision which is based on a
failure to comply with any drug or
alcohol related rules or a return-to-

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service agreement, then the petitioner
shall supplement his or her petition
with all relevant written documents,
including the information under 49 CFR
40.329 that laboratories, medical review
officers, and other service agents are
required to release to employees. The
petitioner should provide written
explanation in the petition if written
documents that should be reasonably
available to the petitioner are not
supplied.’’ See 75 FR 69166, 69185
(Nov. 10, 2010). AAR supported the
provision. BLET/UTU commented that
FRA should add a requirement for the
railroad to notify conductors in writing
of their right to acquire the litigation
package from the laboratories, MRO,
and other service agents and that it be
disclosed to the conductor on the record
of revocation hearings conducted in
compliance with § 242.407(b)(4) for
charges of violating § 242.403(e)(12).
BLET/UTU suggested that, at a
minimum, the notification should
contain the exact language contained in
49 CFR 40.329.
Because the OCRB may not need the
information listed in 49 CFR 40.329 in
all cases and because there may be some
cost associated with obtaining the
information, FRA is adopting a modified
version of the proposal for this final rule
which clarifies that petitioners will be
responsible for obtaining the
information listed in 49 CFR 40.329 if
requested by the OCRB. Thus, it will not
be mandatory for a petitioner to submit
the information listed in 49 CFR 40.329
to the OCRB in all cases involving a
violation of § 242.403(e)(12) and FRA
expects that, in those cases where the
OCRB does want information listed in
49 CFR 40.329, the OCRB will explain
to the petitioner what information it is
looking to obtain from the petitioner
and how the petitioner can get it.
Consequently, FRA declines to adopt
BLET/UTU’s additional requirement.
BLET/UTU submitted numerous
comments regarding changes they
wanted to see made to the appeals
process contained in proposed
§§ 242.501, 503, 505, 507, 509 and 511.
According to BLET/UTU the changes
‘‘will create a more expeditious process
to resolve disputes that may arise from
the conductor certification rules.’’ The
suggested changes include eliminating
the opportunity for parties to appeal
FRA decisions to the Administrator,
incorporating the Administrative
Hearing Officer level of appeal into the
OCRB process, requiring the OCRB to
grant a decision if any procedural error
by the railroad is shown, adding an
attorney as a member to the OCRB and
making the OCRB decision final agency
action.

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FRA declines to adopt BLET/UTU’s
proposed revisions to the appeals
process. The proposed appeals process
was thoroughly discussed during the
Working Group meetings and most of
BLET/UTU’s suggestions were rejected
at those meetings. As explained to the
Working Group, due process
requirements and issues concerning
trials de novo necessitate that FRA
retain the OCRB and AHO as distinct
levels of review.
Contrary to BLET/UTU’s claims, FRA
believes that BLET/UTU’s suggested
revisions would actually increase the
amount of time and cost it takes to
resolve the average case on appeal to the
FRA. Under the BLET/UTU proposal,
FRA expects a significant increase in the
number of cases/issues handled by the
AHO and the federal courts. For
example, under the BLET/UTU
proposal, it appears that a decision by
the OCRB to deny a petition as untimely
would be appealed to Federal court as
that decision would constitute final
agency action and the opportunity to
appeal the decision to the
Administrator, as provided for in the
NPRM, would be eliminated. As a
result, cases would take much longer to
resolve and would involve increased
costs for all parties involved. Moreover,
the BLET/UTU proposal advocates for
extending the time for filing a petition
of review with the FRA from 4 months
as provided in the NPRM to 6 months.
That extension would only add to the
time required for a case to be resolved
by FRA following a railroad’s decision
to deny or revoke certification.
Although FRA is not adopting BLET/
UTU’s proposals, FRA is taking steps to
make the appeals process more efficient.
Over the past two years, the average
length of time for the AHO to render a
decision in a locomotive engineer case
under part 240 has dropped by 6
months due in part to the fact that the
AHO is no longer allowing parties to
hold cases in abeyance. FRA expects
that the AHO will not hold conductor
cases in abeyance thereby eliminating
one of the main obstacles in achieving
faster case processing times. In addition,
FRA has revised the requirements
proposed in the NPRM to require
petitions to be submitted to the Docket
Clerk of DOT rather than FRA’s Docket
Clerk. With that change, the process for
submitting petitions to the OCRB will
parallel the process for requesting an
administrative hearing under part 240
and § 242.507. FRA believes this change
will make the process more efficient as
DOT Dockets is better equipped to
process, scan, and store these types of
filings.

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U. Civil Penalty Schedule
In the NPRM, FRA noted that
Appendix A to the final rule would
contain a penalty schedule similar to
that FRA has issued for all of its existing
rules and that such schedules are
statements of policy and therefore not
subject to notice and comment
requirements. Nevertheless, interested
parties were welcomed to submit their
views on what penalties may be
appropriate. BLET/UTU submitted
comments which were considered in
developing the penalty schedule found
in Appendix A to this final rule.
V. Procedures for Submission of
Programs
FRA solicited comments whether to
require each railroad to provide its
program submission required under
§ 242.101 and 242.103 electronically.
Since FRA did not receive any
comments on this issue and because
FRA believes that such an option will
allow FRA to review submissions more
efficiently and eliminate the need to
store hardcopies of the numerous
submissions, FRA has included such an
option in Appendix B to this final rule.
W. Vision Color Tests
In the NPRM, FRA solicited
comments regarding which vision color
tests should be included in Appendix D
to this rule. Since FRA did not receive
any comments on this issue and because
any changes to the list of vision color
tests would appear to fall within the
purview of the medical standards
working group, the proposed vision
color tests contained in the NPRM will
be adopted in this final rule.
V. Section-by-Section Analysis

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Subpart A—General
Subpart A of the rule contains the
general provisions of the rule, including
a formal statement of the rule’s purpose
and scope. The subpart also provides
that this rule does not constrain a
railroad’s ability to prescribe additional
or more stringent requirements for its
conductors that are not inconsistent
with this rule.
Section 242.1 Purpose and Scope
This section, derived from 49 CFR
240.1, prescribes minimum standards
for the eligibility, training, testing,
certification and monitoring of persons
who serve as ‘‘conductors.’’ This section
indicates that the purpose of the rule is
to ensure that only those persons who
meet minimum Federal safety standards
serve as conductors, to reduce the rate
and number of accidents and incidents,
and to improve railroad safety.

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Despite the fact that a person may
have a job classification title other than
that of conductor, the conductor
certification requirements of this rule
apply to that person if he or she meets
the definition of conductor. The
definition of ‘‘conductor’’ and an
explanation of who is covered by the
definition is discussed in more detail in
the section analysis for § 242.7 below.
Section 242.3 Application and
Responsibility for Compliance
This section is derived from 49 CFR
240.3. The section provides that the rule
applies to all railroads with three
exclusions. The first two exclusions
address several types of operations that
occur on tracks that are not part of the
general railroad system. These
exclusions encompass operations
commonly described as tourist, scenic,
or excursion service to the extent that
they occur on tracks that are not part of
the general railroad system. These
exclusions also address operations that
occur within the confines of industrial
installations commonly referred to as
‘‘plant railroads’’ and typified by
operations such as those in steel mills
that do not go beyond the plant’s
boundaries and that do not involve the
switching of rail cars for entities other
than themselves. In other regulations,
FRA did not define plant railroad
because it was assumed that FRA’s
jurisdictional policy statement provided
sufficient clarification. In 2010, FRA
became aware of certain operations that
called themselves plant railroads but
that were exceeding the limitations
required to maintain plant railroad
status in accordance with FRA’s policy
statement. FRA would like to avoid any
confusion as to what it means to be a
plant railroad by defining the term in
this final rule, thereby saving interested
persons the effort necessary to crossreference FRA’s jurisdictional policy
statement. A further discussion of what
is meant by the term ‘‘plant railroad’’ is
offered in the section-by-section
analysis for section 242.7.
FRA also excludes ‘‘tourist, scenic,
historic, and excursion operations that
are not part of the general railroad
system of transportation’’ (as defined in
§ 242.7) from compliance with this rule.
In section 242.7, FRA defines these
operations as ‘‘a tourist, scenic, historic,
or excursion operation conducted only
on track used exclusively for that
purpose (i.e., there is no freight,
intercity passenger, or commuter
passenger railroad operation on the
track).’’ Excluding these types of
operations from this rule is consistent
with FRA’s jurisdictional policy that
already excludes these operations from

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all but a limited number of Federal
safety laws, regulations, and orders.
The third exclusion covers rapid
transit operations in an urban area that
are not connected to the general system.
It should be noted, however, that some
rapid transit type operations, given their
links to the general system, are within
FRA’s jurisdiction and FRA specifically
intends to have this rule apply to those
rapid transit type operations. This rule
is not intended to have any effect on
FRA’s jurisdiction. Since this rule is
intended to apply to the same railroads
covered by part 240, one should refer to
the preamble discussions of 49 CFR
240.3 in 64 FR 60966, 60974 (Nov. 8,
1999), 63 FR 50626, 50636–50637 (Sept.
22, 1998), and 56 FR 28228, 28240 (June
19, 1991) for a more detailed analysis of
the applicability of this rule.
Section 242.5 Effect and Construction
This section addresses several legal
issues. Paragraph (a) addresses the
relationship of this rule to preexisting
legal relationships. Paragraph (b) states
that FRA does not intend to alter the
authority of a railroad to initiate
disciplinary sanctions against its
employees by issuance of this rule.
Paragraph (c) of this section addresses
the issue of ‘‘flowback.’’ The term
flowback has been used in the industry
to describe a situation where an
employee leaves his or her current
position to return to a previously held
position or craft. An example of
flowback occurs when a person who
holds the position of a conductor
subsequently qualifies for the position
of locomotive engineer, and at some
later point in time the person finds it
necessary or preferable to revert back to
a conductor position. The reasons for
reverting back to the previous craft may
derive from personal choice or a less
voluntary nature; e.g., downsizing.
Many collective bargaining
agreements address the issue of
flowback. As a general matter, FRA does
not intend to create or prohibit the right
to flowback or take a position on
whether flowback is desirable. However,
paragraph (c) of this section must be
read in conjunction with § 242.213,
which limits flowback in certain
situations. As described in the section
analysis for that section below, a person
who holds a conductor and locomotive
engineer certificate and who has had his
or her locomotive engineer certificate
revoked could not work as a conductor
during the period of revocation. In
addition, a person who holds a
conductor and locomotive engineer
certificate and who has had his or her
conductor certification revoked for
certain violations could not work as a

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locomotive engineer during the period
of revocation.
Paragraph (d) of this section addresses
employee rights. The intent of the rule
is to explicitly preserve any remedy
already available to the person and not
to create any new entitlements. FRA
expects that employees would benefit
from this paragraph by referring to it
should a railroad use this regulation as
an inappropriate explanation for
ignoring an employee’s rights or
remedies. A railroad must consider
whether any procedural rights or
remedies available to the employee
would be inconsistent with this part.

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Section 242.7 Definitions
This section contains the definitions
that FRA employs in this rule. Most of
the definitions are taken essentially
verbatim from 49 CFR part 240 and have
been thoroughly analyzed in that
rulemaking. Parties seeking a detailed
analysis of those definitions should
refer to the part 240 rulemaking
documents. See, 54 FR 50890 (Dec. 11,
1989), 56 FR 28228 (June 19, 1991), 58
FR 18982 (Apr. 9, 1993), 60 FR 53133
(Oct. 12, 1995), 63 FR 50626 (Sept. 22,
1998), 73 FR 80349 (Dec. 31, 2008), and
74 FR 68173 (Dec. 23, 2009). Some of
the definitions in this rule, however, are
not found in part 240 or have been
substantively modified from their use in
part 240. Those definitions are analyzed
below.
As mentioned above, potential
rulemakings involving medical
standards and 49 CFR part 219 (Control
of Alcohol and Drug Use) may impact
many of the definitions in part 240 and
part 242. For example, definitions
relating to medical standards (e.g.,
‘‘medical examiner’’) and drug and
alcohol control (e.g., ‘‘substance abuse
disorder’’) in parts 240 and 242 may be
superseded by definitions provided in
those rulemakings. However, until those
rulemakings are promulgated, the
definitions in parts 240 and 242 will
control.
Conductor
Although the RSIA requires FRA to
establish a program for the certification
of conductors, the Act does not define
the term ‘‘conductor.’’ Without guidance
from the Act, FRA proposed, and RSAC
recommended, that the definition of
‘‘conductor’’ be based on the generally
understood responsibilities of that
position, similar to part 240’s approach
to defining locomotive engineer. This
rule defines conductor as ‘‘the
crewmember in charge of a train or yard
crew as defined in part 218 of this
chapter.’’ Part 218 defines ‘‘train or yard
crew’’ as:

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

As the use of the singular form of
‘‘crewmember’’ suggests, FRA’s
definition mandates that only one
person can be in charge of the train or
yard crew and that person is deemed the
conductor for purposes of this
regulation only. Moreover, in some
circumstances, a locomotive engineer,
including a remote control operator,
will be required to be certified as both
a locomotive engineer under 49 CFR
part 240 and as a conductor under this
rule. See 49 CFR 242.213(d). All other
train or yard crew members (e.g.,
assistant conductors, brakemen,
hostlers, trainmen, switchmen, utility
persons, flagmen, yard helpers, and
others who might have different job
titles but perform similar duties and are
not in charge of a train or yard crew) do
not fall within the definition of
‘‘conductor’’ for purposes of this rule.
Drug and Alcohol Counselor
The term ‘‘drug and alcohol
counselor’’ means a person who meets
the credentialing and qualification
requirements of a ‘‘Substance Abuse
Professional’’ (SAP), as provided in 49
CFR part 40.
Ineligible or Ineligibility
The term ‘‘ineligible’’ or
‘‘ineligibility,’’ which is not used in part
240, means that a person is legally
disqualified from serving as a certified
conductor. The term is broadly defined
to cover a number of circumstances in
which a person may not serve as a
certified conductor. Revocation of
certification pursuant to § 242.407 and
denial of certification pursuant to
§ 242.401 are two examples in which a
person will be ineligible to serve as a
conductor. A period of ineligibility may
end when a condition or conditions are
met—for example, when a person meets
the conditions to serve as a conductor
following an alcohol or drug violation
pursuant to § 242.115.
Job Aid
The term ‘‘job aid,’’ which is not used
in part 240, is defined as information
regarding other than main track physical
characteristics that supplements the

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69815

operating instructions of the territory
over which the locomotive or train
movement will occur. The terms ‘‘main
track’’ and ‘‘physical characteristics’’ are
discussed below.
The term ‘‘job aid’’ is broadly defined
in this rule. A job aid consists of
information that can be obtained from a
variety of sources, including but not
limited to, training on the territory
pursuant to § 242.119, maps, charts or
visual aids of the territory, or a person
or persons to contact who are qualified
on the territory and who can describe
the physical characteristics of the
territory. While each railroad will have
flexibility in how it conveys the
information in a job aid to a conductor,
the job aid will, at a minimum have to
cover the characteristics of the territory
over which the locomotive or train
movement will occur including:
permanent close clearances, location of
permanent derails and switches,
assigned radio frequencies in use and
special instructions required for
movement, if any, and railroadidentified unique operating conditions.
Pursuant to § 242.121(c)(4)(v), each
railroad will be required to test
conductors and conductor candidates
on the use of any job aid that a railroad
could provide a conductor. Section
242.301(d) describes the conditions
under which a railroad shall provide a
conductor with a job aid.
Main Track
The term ‘‘main track’’ is defined as
a track upon which the operation of
trains is governed by one or more of the
following methods of operation:
Timetable; mandatory directive; signal
indication; positive train control as
defined in 49 CFR part 236; or any form
of absolute or manual block system.
That definition mirrors the definition of
‘‘main track’’ in 49 CFR part 240, but
also includes a reference to positive
train control.
Medical Examiner
The term ‘‘medical examiner’’ is
defined as a person licensed as a doctor
of medicine or doctor of osteopathy. A
medical examiner may be a qualified
full-time salaried employee of a
railroad, a qualified practitioner who
contracts with the railroad on a fee-forservice or other basis, or a qualified
practitioner designated by the railroad
to perform functions in connection with
medical evaluations of employees.
Under this rule, the medical examiner
owes a duty to make an honest and fully
informed evaluation of the condition of
an employee.
The only difference between the
definition of medical examiner in this

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rule and the definition in 49 CFR part
240 is that under part 240, the medical
examiner owes ‘‘a duty to the railroad.’’
In this rule, however, the words ‘‘to the
railroad’’ have been deleted. This
change was made to address a concern
of some Working Group members that a
medical examiner should not owe a
duty to just the railroad but rather
should owe a duty to both the railroad
and the employee being evaluated.
On-the-Job Training
The term ‘‘on-the-job training,’’ which
is not defined in part 240, means job
training that occurs in the workplace,
i.e., the employee learns the job while
doing the job.
Passenger Conductor
The term ‘‘passenger conductor’’ is
defined as a conductor who has also
received emergency preparedness
(EPREP) training under 49 CFR part 239.
Interested parties should note that
nothing in this rule requires a conductor
for private/non-revenue movements
(e.g., business car specials) to have the
EPREP training. This position is
consistent with 49 CFR 239.3(b).
Physical Characteristics
The term ‘‘physical characteristics,’’
which is not defined in part 240, means
the actual track profile of and physical
location for points within a specific
yard or route that affect the movement
of a locomotive or train. ‘‘Physical
characteristics’’ include both main track
physical characteristics (the term ‘‘main
track’’ is analyzed above) and other than
main track physical characteristics.
Examples of physical characteristics
could include permanent close
clearances, location of permanent
derails and switches, and grade.

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Plant Railroad
FRA includes a definition of plant
railroad in this final rule to aid in the
understanding of the application of this
part pursuant to § 242.3. The definition
coincides with FRA’s longstanding
explanation of how the agency will not
exercise its jurisdiction over a plant
railroad that does not operate on the
general system and does not move cars
for other entities. See 49 CFR 209,
app. A.
Qualified
The term ‘‘qualified’’ is defined as a
person who has successfully completed
all instruction, training and examination
programs required by the employer, and
the applicable parts of this chapter and
therefore could reasonably be expected
to be proficient on all safety related
tasks the person is assigned to perform.

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The definition of ‘‘qualified’’ in this rule
differs from its definition in part 240 in
that part 240’s definition focuses on a
person’s knowledge whereas the
definition in this rule focuses not only
on knowledge but also on whether the
person could reasonably be expected to
be proficient at performing all assigned
tasks. The update to the definition of
‘‘qualified’’ is an attempt to ensure that
a railroad’s instruction and training
program not only provide knowledge of
how to perform a task but also the
ability to proficiently perform the task.

Remote Control Operator
The term ‘‘remote control operator’’
(RCO) means a certified locomotive
engineer, as defined in § 240.7 of this
chapter, certified by a railroad to
operate remote control locomotives
pursuant to § 240.107 of this chapter.
Although this term is not defined in part
240, FRA intends for the term to have
the same meaning in this rule as it does
in part 240. FRA defines the term in this
rule to avoid any confusion as to who
this rule is referring to when it
references a remote control operator.

Qualified Instructor

Substance Abuse Disorder 3
The term ‘‘substance abuse disorder’’
refers to a psychological or physical
dependence on alcohol or a drug or
another identifiable and treatable
mental or physical disorder involving
the abuse of alcohol or drugs as a
primary manifestation. FRA intends for
this definition to include drug and
alcohol users who engage in abuse
patterns which result in ongoing safety
risks and violations of FRA drug and
alcohol prohibitions. These types of
substance abusers may demonstrate
compulsive, excessive, or self-damaging
use of drugs or alcohol such as may
manifest as a DUI or DWI, a violation of
FRA drug or alcohol prohibitions,
substance-related accidents or incidents,
or substance-related behavior which has
resulted in a significant safety breach
while under the influence or impaired
(including hangover effect). Often these
patterns of abuse may eventually result
in dependence, physiological injury, or
psychological harm, but are not
necessarily defined by a diagnosis
offered by a health care professional.
A substance abuse disorder is
‘‘active’’ within the meaning of this rule
if the person (1) Is currently using
alcohol or other drugs, except under
medical supervision consistent with the
restrictions described in § 219.103 of
this chapter or (2) has failed to
successfully complete primary
treatment or successfully participate in
aftercare as directed by a Substance
Abuse Professional (SAP) or Drug and
Alcohol Counselor (DAC).
The definition of substance abuse
disorder in this rule is the same as the
definition in part 240 except in two
respects. First, part 240’s definition
refers to an ‘‘EAP Counselor’’ rather
than a SAP or DAC. Since SAPs and
DACs often have more stringent
credential, knowledge, training, and

The term ‘‘qualified instructor,’’
which is derived from the definition of
‘‘instructor engineer’’ in part 240, means
a person who has demonstrated,
pursuant to the railroad’s written
program, an adequate knowledge of the
subjects under instruction and, where
applicable, has the necessary operating
experience to effectively instruct in the
field. A qualified instructor is required
to have the following qualifications:
(1) Is a certified conductor under this
part; and
(2) Has been selected as such by a
designated railroad officer, in
concurrence with the designated
employee representative, where present;
or
(3) In absence of concurrence
provided in paragraph (2) of this
definition, has a minimum of 12 months
service working as a train service
employee.
If a railroad does not have designated
employee representation, then a person
employed by the railroad need not
comply with items (2) or (3) of this
definition to be a ‘‘qualified instructor.’’
Items (2) and (3), while not found in
part 240’s definition of ‘‘instructor
engineer,’’ are included here to address
the concerns of some Working Group
members that employees, through their
representatives, should have input in
the selection of instructors who might
be viewed as inexperienced (i.e., a
person with less than 12 months service
working as a train service employee).
Railroad Rolling Stock
The term ‘‘railroad rolling stock’’
means on-track equipment that is either
a ‘‘railroad freight car’’ (as defined in
§ 215.5 of this chapter) or a ‘‘passenger
car’’ (as defined in § 238.5 of this
chapter). The term matches the
definition of ‘‘railroad rolling stock’’ in
the NPRM and part 240 except that the
word ‘‘railroad’’ has been added to the
term ‘‘freight car’’ to mirror the defined
term (‘‘railroad freight car’’) in § 215.5 of
this chapter.

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

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continuing education requirements
relating to substance abuse than EAPs,
SAPs and DACs may be better qualified
to direct a person’s treatment or
aftercare. Second, part 240 uses the
phrase ‘‘is currently using alcohol and
other drugs’’ when describing active
substance abuse disorders. The rule
revises that phrase to read ‘‘is currently
using alcohol or other drugs.’’ FRA
made that revision to clarify its intent
that a person with an active substance
abuse disorder could be using alcohol or
other drugs.
The definition for ‘‘substance abuse
disorder’’ is similar to the language
employed to govern disposition of
employees referred to an employee
assistance program under the ‘‘coworker report’’ (bypass) provision of the
alcohol/drug regulations. It describes
the condition of substance abuse or
chemical dependency which requires
intervention and/or treatment as
determined by an appropriate
professional. FRA’s intent is that a
person with uncontrolled use of alcohol
or drugs is not a suitable candidate for
the highly sensitive duties entrusted to
a conductor.
The definition explains that the
disorder is considered ‘‘active’’ within
the meaning of the rule if the person is
not currently abstaining from use of
alcohol and drugs (except under
medical supervision consistent with
FRA’s alcohol/drug regulations), has
failed to successfully participate in
aftercare as directed by a SAP or DAC,
or has failed to successfully complete
the assigned course of education,
counseling, or treatment as required.
FRA is aware that many individuals
abuse alcohol and drugs, with
consequent ill-effects on their health
and potential implications for fitness,
without fitting within common
definitions of chemical dependency.
The critical point here with respect to
safety is that conductors not be in the
grip of uncontrolled abuse patterns that,
if addressed through treatment and
permanent abstinence, could be put
behind them.
Substance Abuse Professional (SAP)
The term ‘‘Substance Abuse
Professional’’ (SAP) means a person
who meets the qualifications of a SAP,
as provided in 49 CFR part 40. To avoid
interfering with the established rules
and definitions in DOT’s drug and
alcohol regulations, the reference to a
duty found in the NPRM’s definition of
SAP has been deleted.
Territorial Qualifications
The term ‘‘territorial qualifications’’
means possessing the necessary

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knowledge concerning a railroad’s
operating rules and timetable special
instructions including; familiarity with
applicable main track and other than
main track physical characteristics of
the territory over which the locomotive
or train movement will occur. Although
not defined in part 240, the term is
derived from part 240’s requirement
that, with certain exceptions, a
locomotive engineer may not operate a
locomotive over a territory unless the
engineer is ‘‘qualified on the physical
characteristics of the territory.’’ See 49
CFR 240.231. Pursuant to § 242.301 of
this rule, a person, with certain
exceptions, could not serve as a
conductor unless the person was
certified and possessed the necessary
territorial qualifications for the
applicable territory.
Tourist, Scenic, Historic, or Excursion
Operations That Are Not Part of the
General Railroad System of
Transportation
The final rule offers a definition for
the phrase ‘‘tourist, scenic, historic, or
excursion operations that are not part of
the general railroad system of
transportation’’ in order to explain the
plain meaning of that phrase as used in
the section. See § 242.3. The phrase
means a tourist, scenic, historic, or
excursion operation conducted only on
track used exclusively for that purpose
(i.e., there is no freight, intercity
passenger, or commuter passenger
railroad operation on the track). If there
is any freight, intercity passenger, or
commuter passenger railroad operation
on the track, the track would be
considered part of the general system.
See 49 CFR part 209, app. A. In the
analysis for the applicability section,
there is an explanation for why FRA is
proposing not to exercise its jurisdiction
over these types of railroad operations.
Section 242.9

Waivers

This section tracks the regulatory
language in 49 CFR 240.9 and provides
the requirements for a person seeking a
waiver of any section of this rule.
Section 242.11 Penalties and
Consequences for Noncompliance
This section tracks the regulatory
language in 49 CFR 240.11 and provides
minimum and maximum civil penalty
amounts determined in accordance with
the Federal Civil Penalties Inflation
Adjustment Act of 1990, Public Law
101–410 Stat. 890, 28 U.S.C. 2461 note,
as amended by the Debt Collection
Improvement Act of 1996 Public Law
104–134, April 26, 1996, and the RSIA.

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Section 242.13 Information Collection
Requirements
This section lists the sections of the
rule which contain information
collection requirements.
Subpart B—Program and Eligibility
Requirements
This subpart contains the basic
elements of the conductor certification
program required by this rule. Based on
the RSIA’s requirement for
‘‘certification’’ of conductors and FRA’s
experience with certification of
locomotive engineers, this rulemaking
adopts a certification system (i.e., FRA
sets eligibility criteria but leaves it to
the railroads to evaluate candidates by
those standards) rather than a
traditional licensing system (i.e., a
government agency sets eligibility
criteria and evaluates candidates). As
with part 240, this rule affords railroads
considerable discretion in the daily
administration of their certification
programs.
Section 242.101 Certification Program
Required
This section requires railroads to have
a written program composed of six
elements, each of which comports with
specific provisions relating to that
element. The effective date of the final
rule is January 1, 2012. The rest of the
dates provided in this rule (e.g., dates by
which each railroad must designate its
eligible conductors in § 242.105) are
based on that effective date.
Section 242.103 Approval of Design of
Individual Railroad Programs by FRA
This section requires each railroad to
submit its certification program to FRA
for approval in accordance with the
schedule provided in the final rule. The
schedule for submissions in paragraph
(a) requires Class I railroads, Amtrak,
the commuter railroads, and Class II
railroads to submit their programs at an
earlier date than the Class III railroads
or others not classified elsewhere. The
format and contents of the submission
are discussed at length in appendix B to
this rule.
Unlike part 240, this rule requires
railroads to serve a copy of their
submissions, resubmissions and
material modifications on the president
of each labor organization that
represents the railroad’s certified
conductors. Within 45 days of the filing
of any of those submissions with FRA,
any designated representative of
certified conductors could submit
comments on the railroad’s submissions
to FRA. Although FRA, and not the
commenters, will determine whether a
railroad’s submission is approved, FRA

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expects that comments will be useful in
determining whether the railroad’s
program conforms to the criteria set
forth in this rule.
This section also requires each
railroad to indicate how it intends to
employ future conductors. If a railroad
accepts the responsibility for training a
previously uncertified person to become
a conductor, the railroad must explain
its training regimen for such trainees,
including provisions for relying on an
outside training organization to provide
the actual training.
The rule provides 30 days for FRA
review and approval of railroad
programs. FRA is proceeding in this
manner because most railroads have
existing programs, including locomotive
engineer certification programs,
intended to accomplish a similar goal
that can be easily modified. The quality
of such programs is generally good and
the problems that may be encountered
would not likely involve basic design
flaws and generally would not surface
until FRA has had time to observe the
actual administration of the program. In
screening all submissions, FRA should
be able to quickly detect any substantial
deficiencies. Given the quality of
existing programs, FRA sees little value
in delaying implementation of the
programs for time-consuming agency
review. FRA may, of course, disapprove
any program during the review cycle or
at a later date. FRA will explain any
deficiencies in writing. This section
requires a timely railroad response to an
FRA disapproval action as a railroad
will have no more than 30 days to revise
and resubmit its program.
Paragraph (g)(2) of this section, which
has been modified from the NPRM,
provides that if the Administrator
informs a railroad of deficiencies in its
program more than 30 days after the
initial filing date, the original program
may remain in effect until 30 days after
approval of the revised program is
received so long as the railroad has
complied with the requirements for
resubmitting a program that was
deemed deficient.
Section 242.105 Schedule for
Implementation
This section contains the timetable for
implementation of the rule. Paragraphs
(a) and (b) of this section require that
railroads, in writing, designate as
certified conductors all persons
authorized by the railroad to perform
the duties of a conductor as of the
effective date of the final rule, or
authorized between the effective date of
the final rule and dates specified in
paragraph (d) or (f) of this section, and
to issue a certificate to each person it

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designates. The mandatory designation
requirement of this section is included
to address the concerns of some
Working Group members that railroads
should not be given the discretion to
potentially engage in disparate
treatment of its employees (i.e.,
designate and provide a certificate to
some people who are authorized to
perform the duties of a conductor as of
the effective date of the final rule but
not others).
Paragraph (c) of this section requires
each railroad to make formal
determinations concerning those
employees it has designated as
conductors within 36 months of the date
for compliance by its class of railroad.
Pursuant to this paragraph, a designated
conductor may serve as a conductor for
up to 36 months from the date of
compliance for the railroad (i.e., the date
specified in paragraph (d) or (e) of this
section). At the end of the 36 months,
however, the designated conductor can
no longer serve as a conductor unless he
or she successfully completes the tests
and evaluations provided in subpart B
of this rule (i.e., the full certification
process). Railroads should note that
they may not test and evaluate a
designated conductor or conductor
candidate under subpart B of this rule
until they have a certification program
approved by the FRA pursuant to
§ 242.103.
In order to test and evaluate all of its
designated conductors by the end of the
36-month period, a large railroad will
likely have to begin that process well in
advance of the end of the 36 months.
For example, paragraph (c), which is
derived from part 240’s designation
provision, would permit a railroad to
test and evaluate one third of its
designated conductors within 12
months of the railroad’s date of
compliance; another one third within 24
months of its date of compliance; and
the final one third within 36 months of
its date of compliance.
Some of the Working Group members
raised concerns about designated
conductors who would be eligible to
retire within 36 months of the date for
compliance by their class of railroad.
Specifically, some members did not
believe it was an efficient use of
resources to perform the full
certification process on a designated
conductor who was going to retire
before the end of the 36-month
designation period. To address those
concerns, paragraph (c)(1) provides that
a designated conductor, who is eligible
to receive a retirement pension in
accordance with the terms of an
applicable agreement or with the terms
of the Railroad Retirement Act (45

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U.S.C. 231) within 36 months prior to
the date they would be required to be
tested and evaluated under subpart B of
this rule, may request, in writing, that
the railroad not perform the full
certification process on that designated
conductor until 36 months from the date
of required testing and evaluation.
Paragraph (c)(2) provides that, upon
receipt of that written request, a railroad
may wait to perform the full
certification process on the person
making the request until the end of the
36-month designation period. Thus,
paragraphs (c)(1) and (c)(2) allow
designated conductors to serve as
conductors for the full 36-month
designation period and then retire
before being subjected to the full
certification process.
While it is in the railroads’ interest
not to perform the full certification
process for a person who is going to
retire once the designation period
expires and thus in their interest to
grant as many requests as possible, it
may not be feasible to accommodate
every request that is made. If, for
example, a significant number of
designated conductors on a railroad
properly request that the railroad wait to
recertify them at the end of the
designation period, but then do not, in
fact, retire by the expiration of the 36month designation period, the railroad
might not be able to certify everyone in
time and would risk violating this final
rule. In recognition of that risk and the
need to give the railroads some
flexibility to comply with the rule,
paragraph (c)(2) also provides that a
railroad that grants any request must
grant the request of all eligible persons
‘‘to every extent possible.’’
In addition, paragraph (c)(3) provides
that a designated conductor who is also
subject to recertification under part 240
may not make a request under
paragraph (c)(1) of this section. That
provision recognizes that railroads
would likely want to have concurrent
certification processes for certifying a
person who will be both a certified
locomotive engineer and a conductor
and thus it would not be appropriate, in
that instance, for a designated conductor
who is already subject to recertification
under part 240 to make a request to
delay the full conductor certification
process.
Paragraphs (d), (e), and (f) provide
that after specified dates, no railroad
may certify or recertify a person as a
conductor and no person may serve as
a conductor unless that person had been
tested and evaluated in accordance with
the procedures provided in subpart B of
the rule and issued a certificate.
Interested parties should note that the

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month provided in paragraph (e) has
changed from September 2012 (as
provided in the NPRM) to October 2012
so that Class III railroads would have
approximately the same amount of time
(i.e., two months) as Class I, II, and
commuter railroads between submission
of the program to FRA and the time for
having an approved program in place.

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Section 242.107 Types of Service
This section creates two types of
conductor service: conductor and
passenger conductor. As indicated in
the definition section of this rule, a
‘‘passenger conductor’’ is a ‘‘conductor’’
who has also received emergency
preparedness training under 49 CFR
part 239.
Paragraph (c) of this section, derived
from 49 CFR 240.107(e), prohibits a
railroad from reclassifying the
certification of any type of certified
conductor to a different type of
conductor certification during the
period in which the certification is
otherwise valid except when a
conductor completes 49 CFR part 239
emergency training and is certified as a
passenger conductor. For example, this
rule prohibits a railroad from requiring
a passenger conductor to exchange his
or her passenger conductor certificate
for a conductor certificate during the
period in which the passenger
conductor certificate is otherwise valid.
While this rule prohibits the practice
of reclassification, it does not prevent
the railroads from pursuing other
measures to ensure the safe performance
of conductor service. For example, the
rule does not prevent a railroad from
placing restrictions on a certificate
pursuant to paragraph (d) of this
section. It should be noted, however,
that while paragraph (d) permits a
railroad to place restrictions on a
certificate, any restrictions would be
applied and reviewed in accordance
with internal railroad rules, procedures
and processes. Part 242 does not govern
the issuance or review of restrictions as
that would be a matter handled under
a railroad’s internal discipline system or
collective bargaining agreement. See
§ 242.5(a), (b), and (d).
Section 242.109 Determinations
Required for Certification and
Recertification
This section lists the determinations
required for evaluating a candidate’s
eligibility to be certified or recertified.
The reference to § 242.403 in paragraph
(a) of this section is to ensure that
railroads determine that a candidate is
not currently ineligible to hold a
certification due to a revocation
addressed in subpart E of this rule.

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Paragraph (b)(1) has been modified to
clarify the intent of that section. FRA
deleted references to ‘‘railroad
employment’’ records and ‘‘railroad
safety conduct’’ since the paragraph also
applies to non-railroad conduct such as
motor vehicle operation. Interested
parties should note that despite the
provisions in §§ 242.111 and 242.115
requiring a review of safety conduct
information from the preceding 5 years,
paragraph (b)(1) of this section does not
permit a railroad to consider
information concerning safety conduct
that occurred prior to the effective date
of this final rule. Although that
paragraph may result in an evaluation of
less than 5-years’s worth of information
for some conductors, it is included in
part 242 for the reasons the provision
was also included in the part 240
rulemaking. See 56 FR 28228, 28242
(June 19, 1991).
Since motor vehicle data is required
to be sent to the railroad rather than to
the candidate, paragraphs (d) and (e) of
this section require a railroad to provide
a candidate for certification or
recertification an opportunity to review
and comment on any record which
contains adverse information. This
review will avoid the potential for
reliance on records that were somehow
erroneously associated with a candidate.
Paragraph (g) of this section provides
flexibility to railroads and conductors or
conductor candidates in obtaining the
information required by §§ 242.111 and
242.113. For example, paragraph (g)
would permit a conductor and a railroad
to enter into an agreement allowing a
railroad to request the conductor’s
service record from a previous
employing railroad pursuant to
§ 242.113(c).
Section 242.111 Prior Safety Conduct
as Motor Vehicle Operator
This section, derived from 49 CFR
240.111 and 240.115, provides the
requirements and procedures that a
railroad must follow when evaluating a
conductor or conductor candidate’s
prior conduct as a motor vehicle
operator. Although some members of
the Working Group suggested that
information regarding the prior safety
conduct as a motor vehicle operator was
unnecessary in determining whether a
person should be certified as a
conductor, FRA believes that the prior
safety conduct of a motor vehicle
operator is one indicator of that person’s
drug and/or alcohol use and therefore
an important piece of information for a
railroad to consider.
Pursuant to this section, each person
seeking certification or recertification as
a conductor must request in writing that

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69819

the chief of each driver licensing agency
that issued him or her a driver’s license
within the preceding five years provide
a copy of the person’s driving record to
the railroad. Unlike part 240, this rule
would not require individuals to also
request motor vehicle operator
information from the National Driver
Registry (NDR). It is FRA’s
understanding that, based on the NDR
statute and regulation (see 49 U.S.C.
chapter 303 and 23 CFR part 1327),
railroads are prohibited from running
NDR checks or requesting NDR
information from individuals seeking
employment as certified conductors.
During the Working Group meetings,
members of the Working Group raised
concerns about conductor candidates
who had properly requested motor
vehicle operator information but were
unable to be certified or recertified as
conductors because of a delay or mix-up
by a driver licensing agency in sending
the required information to the railroad.
To address that concern, paragraphs (c)
and (d) of this section require a railroad
to certify or recertify a person for 60
days if the person: (1) Requested the
required information at least 60 days
prior to the date of the decision to
certify or recertify; and (2) otherwise
meets the eligibility requirements
provided in § 242.109 of this rule. If a
railroad certifies or recertifies a person
for 60 days pursuant to paragraphs (c)
or (d) but is unable to obtain and
evaluate the required information
during those 60 days, the person is
ineligible to perform as a conductor
until the information can be evaluated.
However, if a person is simply unable
to obtain the required information, that
person or the certifying or recertifying
railroad could petition for a waiver from
FRA (see 49 CFR part 211). During the
pendency of the waiver request, a
railroad would have to certify or
recertify a person if the person
otherwise meets the eligibility
requirements of § 242.109 of this final
rule.
Paragraph (l) of this section requires
certified conductors or persons seeking
initial certification to notify the
employing railroad of motor vehicle
incidents described in paragraph (n) of
this section within 48 hours of the
conviction or completed state action to
cancel, revoke, suspend, or deny a
motor vehicle driver’s license. The
paragraph also provides that, for
purposes of conductor certification, a
railroad cannot have a more restrictive
company rule requiring an employee to
report a conviction or completed state
action to cancel, revoke, or deny a motor
vehicle drivers license in less than 48
hours.

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The reasoning behind paragraph (l)
involves several intertwined objectives.
As a matter of fairness, a railroad should
not revoke, deny, or otherwise make a
person ineligible for certification until
that person had received due process
from the state agency taking the action
against the motor vehicle license.
Otherwise, action pursuant to this part
might be deemed premature since the
American criminal justice system is
based on the concept of a person being
innocent until proven guilty. Further, by
not requiring reporting until 48 hours
after the completed state action, the rule
will have the practical effect of ensuring
that a required referral to a DAC under
paragraph (o) of this section would not
occur prematurely. Interested parties
should note however, that paragraph (l)
does not prevent an eligible person from
choosing to voluntarily self-refer
pursuant to § 242.115(d)(3). Nor does it
prevent the railroad from referring the
person for an evaluation under an
internal railroad policy if other
information exists that identifies the
person as possibly having a substance
abuse disorder. Further, the restriction
applies only to actions taken against a
person’s certificate and does not effect
on a person’s right to be employed by
that railroad.
As mentioned above, paragraph (o) of
this section provides that if such a
motor vehicle incident described in
paragraph (n) is identified, the railroad
is required to provide the data to its
DAC along with ‘‘any information
concerning the person’s railroad service
record.’’ Furthermore, the person would
have to be referred for evaluation to
determine if the person had an active
substance abuse disorder. If the person
has such a disorder, the person could
not be currently certified. Alternatively,
even if the person is evaluated as not
currently affected by an active substance
abuse disorder, the railroad would be
required, if recommended by a DAC, to
condition certification upon
participation in any needed aftercare
and/or follow-up testing for alcohol or
drugs, or both. The intent of this
provision is to use motor vehicle
records to expose conductors or
conductor candidates who may have
active substance abuse disorders and
make sure they are referred for
evaluation and any necessary treatment
before allowing them to perform safety
sensitive service. Interested parties
should note that any testing performed
as a result of a DAC’s recommendation
under paragraph (o) will be done under
company authority, not Federal,
although the testing will still be
required to comply with the ‘‘technical

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standards’’ of part 219, subpart H, and
part 40.
Paragraph (o)(5) has been added to the
final rule to clarify that a failure to
cooperate in the DAC evaluation will
result in the person being ineligible to
perform as a conductor until such time
as the person cooperates in the
evaluation.
Section 242.113 Prior Safety Conduct
as an Employee of a Different Railroad
This section of the rule, which is
derived from 49 CFR 240.113 and
240.205, provides a process for
requesting information regarding the
candidate’s prior safety conduct, if any,
as an employee of a different railroad.
Section 242.115 Substance Abuse
Disorders and Alcohol/Drug Rules
Compliance
This section, which is derived from
49 CFR 240.119 and 240.205, addresses
two separate dimensions of the alcohol/
drug problem in relation to
conductors—(1) Active substance abuse
disorders and (2) specific alcohol/drug
regulatory violations. This section and
§ 242.111 address certain situations in
which inquiry must be made into the
possibility that the individual has an
active substance abuse disorder if the
individual is to obtain or retain a
certificate. The fact that specific
instances are cited in this section would
not exclude the general duty of the
railroad to take reasonable and
proportional action in other appropriate
cases. Declining job performance,
extreme mood swings, irregular
attendance and other indicators may, to
the extent not immediately explicable,
indicate the need for an evaluation
under internal railroad policies.
FRA acknowledges that there could be
legitimate reasons why someone might
exhibit some or all of the conditions
identified above. However, those
conditions, to the extent not
immediately explicable, may also
indicate a need for an evaluation. The
purpose of identifying conditions is not
to require (and does not require) the
railroads to order an evaluation anytime
a listed condition is exhibited. Rather,
FRA is simply providing guidance as to
conditions that may, given the context,
call for an evaluation under internal
railroad policies. Moreover, FRA
remains vigilant of harassment and
intimidation and will take appropriate
action where such conduct is
discovered.
Paragraph (a) requires each railroad to
address both dimensions of this issue in
its program. Paragraphs (b) and (c)
require each railroad to determine that
a person initially certifying or a

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conductor recertifying meets the
eligibility requirements of this section.
Additionally, each railroad is required
to retain the documents used to make
that determination.
Paragraph (d) provides that a person
with an active substance abuse disorder
cannot be currently certified as a
conductor. This means that appropriate
action must be taken with respect to a
certificate (whether denial or
suspension) whenever the existence of
an active substance abuse disorder
comes to the official attention of the
railroad, with the exception discussed
below. Paragraph (d) also provides a
mechanism for an employee to
voluntarily self-refer for substance abuse
counseling or treatment.
Paragraph (e) addresses conduct
constituting a violation of § 219.101 or
§ 219.102 of the alcohol/drug
regulations. Section 219.101 prohibits
any employee from going on or
remaining on duty in covered service
while using, possessing, or being under
the influence of or impaired by alcohol
or a controlled substance or with a
blood alcohol concentration of .04 or
more. An employee may also not use
alcohol either within four hours of
reporting for covered service or after
receiving notice to report for covered
service, whichever is lesser. This is
conduct that specifically and directly
threatens safety in a way that is wholly
unacceptable, regardless of its genesis
and regardless of whether it has
occurred previously. In its more extreme
forms, such conduct is punishable as a
felony under the criminal laws of the
United States (18 U.S.C. 341 et seq.) and
a number of states.
Section 219.102 prohibits use of a
controlled substance by a covered
employee, at any time, on or off duty,
except under the exception for approved
medical use. Abuse of marijuana,
cocaine, amphetamines, and other
controlled substances poses
unacceptable risks to safety.
Under the alcohol/drug regulations,
whenever a violation of § 219.101 or
§ 219.102 is established based on
authorized or mandated chemical
testing, the employee must be removed
from service and may not return until
after a SAP evaluation, any needed
treatment, or a negative return-to-duty
test, and is subject to follow-up testing
(as required by § 219.104). This
structure suggests an absolute minimum
for action when a conductor is
determined to have violated one of these
prohibitions. Considering the need both
for general and specific deterrence with
respect to future unsafe conduct,
additional action should be premised on

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Federal Register / Vol. 76, No. 217 / Wednesday, November 9, 2011 / Rules and Regulations
the severity of the violation and whether
the same individual has prior violations.
One key consideration in evaluating
this conduct and appropriate responses
is the duration of retrospective review.
This rule requires railroads to consider
conduct that occurred within the period
of 60 consecutive months prior to the
review. This is the same period
provided in this rule as the maximum
period of ineligibility for certification
following repeated alcohol/drug
violations and is the same period used
in part 240. Use of a 5-year cycle reflects
anecdotal experience in the railroad
industry indicating that conduct
committed as much as 5 years before
may tend to predict future alcohol or
drug abuse behavior (and recognizes the
reality that most individual violations
are probably not detected). It also
reflects a certain confidence in the
resilience of human nature—i.e., a
reasonable expectation that the person
who remains in compliance for that
period of time will not again be found
in violation. Of course, railroads retain
the flexibility to consider prior conduct
(including conduct more than 5 years
prior) in determining whom they will
hire as conductors.
Interested parties should note that
conduct violative of the FRA
proscriptions against alcohol and drugs
need not occur while the person is
serving in the capacity of a conductor in
order to be considered. For instance, an
employee who violated § 219.101 while
working as a brakeman and then sought
conductor certification six months later
(under the provision described below)
would not be currently eligible for
certification. The same is true under
part 240—an employee who violates
§ 219.101 while working as a brakeman
and then seeks locomotive engineer
certification six months later would not
be eligible for certification at that time.
The railroad’s responsibility would not
be limited to periodic recertification.
This rule requires a review of
certification status for any conduct in
violation of § 219.101 or § 219.102.
The rule requires a determination of
ineligibility for a period of 9 months for
an initial violation of § 219.101. This
parallels the 9-month disqualification in
§ 240.119(c)(4)(iii). FRA does not
believe that a conductor should be able
to seek the shelter of a collective
bargaining agreement or more lenient
company policy in the case of a clear
on-the-job violation, insofar as Federal
eligibility to serve as a conductor is
concerned.
Specifying a period of ineligibility
serves the interest of deterrence while
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it is detected by management. In order
to preserve and encourage co-worker
referrals, the 9-month period can only
be waived in the case of a qualifying coworker report (see § 219.405). FRA
believes that this distinction in
treatment is warranted as a strong
inducement to participation because coworker referral programs help identify
troubled employees prior to those
employees getting into accidents and
incidents. A strong inducement to refer
a co-worker is a worthy goal if it may
contribute to a reduction in accidents
and incidents. Although FRA does not
know how many actual co-worker
reports may be generated, the intended
result would be served if an atmosphere
of intolerance for drug and/or alcohol
abusing behavior is reinforced in the
workplace and violators know that they
may be reported by their colleagues if
they report for duty impaired.
In the case of a second violation of
§ 219.101, the conductor would be
ineligible for a period of 5 years. Given
railroad employment practices and
commitment to alcohol/drug
compliance, it is likely, of course, that
any individual so situated may also be
permanently dismissed from
employment. However, it is important
that the employing railroad also follow
through and revoke the certificate under
this rule so that the conductor could not
go to work for another railroad within
the 5-year period using the unexpired
certificate issued by the first railroad as
the basis for certification. These
sanctions mirror the sanctions in
§ 240.119.
Under this rule, one violation of
§ 219.102 within the 5-year window
would require only temporary
suspension and the minimum response
described in § 242.115(f) (referral for
evaluation, treatment as necessary,
negative return-to-duty test, and
appropriate follow-up). This parallels
the approach taken in part 240 and
reflects FRA’s wish not to undercut the
therapeutic approach to drug abuse
employed by many railroads. This
approach permits first-time positive
drug tests to be handled in a nonpunitive 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
§ 219.102 would subject the employee to
a mandatory 2-year period of
ineligibility. A third violation within
5 years would lead to a 5-year period of
ineligibility.

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69821

This rule also addresses violations of
§§ 219.101 and 219.102 in combination.
A person violating § 219.101 after a
prior § 219.102 violation would be
ineligible for 3 years; and the same
would be true for the reverse sequence.
Refusals to participate in chemical
tests are treated as if the test were
positive. A refusal to provide a breath or
body fluid sample for testing under the
requirements of 49 CFR part 219 when
instructed to do so by a railroad
representative are treated, for purposes
of ineligibility under this section, in the
same manner as a violation of: (1)
§ 219.101, in the case of a refusal to
provide a breath sample, or a blood
specimen for mandatory post-accident
toxicological testing; or (2) § 219.102, in
the case of a refusal to provide a urine
specimen for testing. Interested parties
should note that 49 CFR 40, subpart I,
provides the medical conditions under
which an individual‘s failure to provide
an sufficient sample is not deemed a
refusal. Moreover, subpart G of FRA‘s
Control of Alcohol and Drug Use
Regulation excuses a covered employee
from compliance with the requirement
to participate in random drug and
alcohol testing ‘‘in the case of a
documented medical or family
emergency.’’ See 49 CFR 219.603 and
219.609. Those provisions are
incorporated into this rule’s use of the
word ‘‘refuses.’’
Interested parties should also note
that if a person, covered by 49 CFR part
219, refuses to provide a breath or a
body fluid specimen or specimens when
required to by the railroad under a
mandatory provision of 49 CFR part
219, then the railroad, apart from any
action it takes under part 242, is
required to remove that person from
covered service and disqualify that
person from working in covered service
for 9 months. See, 49 CFR 219.104 and
219.107; see also, 49 CFR part 219
subpart H and 49 CFR 40.191 and
40.261. Paragraph 242.115(e)(4(iv)(B)
has been modified in this final rule by
removing the subpart citations and
adding the phrase ‘‘for alcohol testing.’’
Those modifications are simple
clarifications to conform the final rule to
the provisions of part 219.
Paragraph (f) prescribes the
conditions under which employees may
be certified or recertified after a
determination that the certification
should be denied, suspended, or
revoked, due to a violation of § 219.101
or § 219.102 of the alcohol/drug
regulations. These conditions are
derived from the conditions in
§ 240.119(d) and closely parallel the
return-to-duty provisions of the alcohol/
drug rule. Interested parties should note

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that 242.115(f)(1)(iii) has been clarified
in this final rule with respect to alcohol
concentration to more accurately reflect
the provisions of FRA’s alcohol/drug
rule. Interested parties should also note
that the regulation does not require
compensation of the employee for the
time spent in this testing, which is a
condition precedent to retention of the
certificate; but the issue of
compensation would ultimately be
resolved by reference to the collective
bargaining agreement or other terms and
conditions of employment under the
Railway Labor Act. Moreover, a railroad
that intends to withdraw its conditional
certification must afford the conductor
the hearing procedures provided by
§ 242.407 if the conductor does not
waive his or her right to the hearing.
Paragraph (g) ensures that a
conductor, like any other covered
employee, can self-refer for treatment
under the alcohol/drug rule (§ 219.403)
before being detected in violation of
alcohol/drug prohibitions and would be
entitled to confidential handling of that
referral and subsequent treatment. This
means that a railroad would not
normally receive notice from the DAC of
any substance abuse disorder identified
as a result of a voluntary self-referral
under 49 CFR 219.403. However, the
paragraph also requires that the railroad
policy must (rather than may) provide
that confidentiality is waived if the
conductor fails to participate
successfully in treatment as directed by
the DAC pursuant to 49 CFR 219.403, to
the extent that the railroad must receive
notice that the employee has an active
substance abuse disorder so that
appropriate certificate action can be
taken. The effect of this provision is that
the certification status of a conductor
who seeks help and cooperates in
treatment will not be affected, unless
the conductor fails to follow through.
Section 242.117 Vision and Hearing
Acuity
This section contains the
requirements for visual and hearing
acuity testing that a railroad must
incorporate in its conductor certification
program. The visual requirements are
the same as those provided in 49 CFR
240.121. Although the testing
procedures and standards for the
hearing requirements are more stringent
than those contained in 49 CFR 240.121
and were derived from the procedures
and standards provided in 49 CFR part
227, the criteria that must be met to pass
the hearing test is identical to the
criteria in part 240.
Paragraph (f), is intended to address,
among other things, situations in which
a conductor’s certificate states that he or

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she is required to use a corrective
device, such as glasses, but the
conductor then undergoes a corrective
procedure, such as laser eye surgery,
which eliminates the need for the
corrective device. If that conductor
wants to serve as a conductor without
using the corrective device listed on the
card, then, following the corrective
procedure, he or she should obtain a
written determination from the
railroad’s medical examiner that the
conductor can safely perform without
using the corrective device. In addition,
the certificate should be updated to
reflect that the conductor is no longer
required to use the corrective device
while serving as a conductor.
Although some individuals may not
be able to meet the threshold acuity
levels in this rule, they may be able to
compensate in other ways that will
permit them to function at an
appropriately safe level despite their
physical limitations. Paragraph (j) of
this section permits a railroad to have
procedures whereby doctors can
evaluate such individuals and make
discrete determinations about each
person’s ability to compensate for his or
her physical limitations. If the railroad’s
medical examiner concluded that an
individual had compensated for his or
her limitations and could safely serve as
a conductor on that railroad, the
railroad could certify that person under
this regulation once the railroad
possesses the medical examiner’s
professional medical opinion to that
effect.
Paragraph (k) of this section addresses
the issue of how soon after learning of
a deterioration of his or her best
correctable vision or hearing a certified
conductor would have to notify the
railroad of the deterioration. FRA is
concerned with the safe performance of
conductor service, not whether a person
can notify a railroad within a set time
frame. Thus, paragraph (k) requires
notification ‘‘prior to any subsequent
performance as a conductor.’’ Certified
conductors should note that willful
noncompliance with this requirement
could result in enforcement action.
As mentioned above, it is possible
that a regulation recommended by the
Medical Standards Working Group and
adopted by FRA could contain
requirements that supersede the hearing
and vision standards and requirements
in this rule.
Section 242.119 Training
This section, in compliance with the
training requirements of the RSIA,
requires railroads to provide initial and
periodic training of conductors. That
training is necessary to ensure the

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conductors have the knowledge, skills,
and abilities necessary to competently
and safely perform all of the safetyrelated duties mandated by Federal
laws, regulations, and orders.
Paragraph (c) of this section requires
railroads to document a conductor’s
knowledge of, and ability to comply
with, Federal railroad safety laws and
regulations, and railroad rules used to
implement them. In addition, that
paragraph requires railroads to
document that a conductor
demonstrated that he or she is qualified
on the physical characteristics of the
railroad, or its pertinent segments, over
which that person will perform service.
This section also requires railroads to
review and modify their training
program whenever new safety-related
railroad laws, regulations, technologies,
procedures, or equipment are
introduced into the workplace.
Under this section, railroads have
latitude to design and develop the
training and delivery methods they will
employ; but paragraphs (d), (e), and (f)
provide requirements for railroads that
elect to train a previously untrained
person to be a conductor. Pursuant to
paragraph (d), a railroad that makes this
election would be required to determine
how training must be structured,
developed, and delivered, including an
appropriate combination of classroom,
simulator, computer-based,
correspondence, on-the-job training, or
other formal training.
Paragraphs (g), (h), (i), (j), and (k) of
this section contain the requirements
with respect to acquiring familiarity
with the physical characteristics of a
territory. Except for the requirements in
paragraphs (j) and (k), the requirements
parallel those in part 240. Paragraphs (j)
and (k) of this section require railroads
to designate in their programs the time
period in which a conductor must be
absent from a territory or yard, before
requalification on physical
characteristics is required and the
procedures used to qualify or requalify
a person on the physical characteristics.
Paragraph (l) requires each railroad to
provide for the continuing education of
certified conductors to ensure that each
conductor maintains the necessary
knowledge concerning railroad safety
and operating rules and compliance
with all applicable Federal regulations,
including, but not limited to, hazardous
materials, passenger train emergency
preparedness, brake system safety
standards, pre-departure inspection
procedures, and passenger equipment
safety standards, and physical
characteristics of a territory. This
paragraph is derived from 49 CFR
240.123(b).

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As mentioned above it is possible that
a regulation recommended by the
Training Standards and Plans Working
Group and adopted by FRA might
include different or additional training
requirements than those found in this
rule. To the extent possible and
appropriate, FRA conformed the
training requirements in this rule to the
recommendations developed by
Training Standards and Plans Working
Group. However, FRA does not know at
this time what the final training
regulation will provide. Therefore, some
modification of the training
requirements in this rule may be
necessary to conform to the final
requirements of any training regulation.

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Section 242.121

Knowledge Testing

This section, derived from 49 CFR
240.125 and 240.209, requires railroads
to provide for the initial and periodic
testing of conductors. That testing will
have to effectively examine and measure
a conductor’s knowledge of five subject
areas: Safety and operating rules;
timetable instructions; compliance with
all applicable Federal regulations; the
physical characteristics of the territory
on which a person will be or is
currently serving as a conductor; and
the use of any job aid that a railroad
may provide a conductor.
Under this section, railroads have
discretion to design the tests that will be
employed; for most railroads that will
entail some modification of their
existing ‘‘book of rules’’ examination to
include new subject areas. This section
does not specify things like the number
of questions to be asked or the passing
score to be obtained. However, it does
require that the test not be conducted
with open reference books unless use of
such materials is part of a test objective
and that the test be in written or
electronic form. Interested parties
should note that a railroad may not give
an all open book exam. Some portion of
the test must be closed book. Since the
testing effort selected by the railroad
must be submitted to FRA for approval,
the exercise of the discretion being
afforded railroads by this section will be
monitored by FRA.
To address a concern of some of the
members of the Working Group that
persons being tested were unable to
obtain clarification of test questions by
someone who possessed knowledge of a
relevant territory, paragraph (e) of this
section requires railroads to provide the
person(s) being tested with an
opportunity to consult with a
supervisory employee, who possesses
territorial qualifications for the territory,
to explain a question.

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Section 242.123 Monitoring
Operational Performance
This section, derived from 49 CFR
240.129 and 240.303, contains the
requirements for conducting
unannounced compliance tests.
Paragraph (b) of this section requires
each railroad to have a program to
monitor the conduct of its conductors
by performing unannounced operating
rules compliance tests. The paragraph
also provides procedures to address the
testing of certified conductors who are
not performing a service that requires
certification under this part. FRA
understands that railroads may not be
able to provide those conductors with
the annual, unannounced compliance
test. Unlike part 240, which requires
railroads to seek a waiver from FRA’s
Safety Board for engineers their unable
to annually test, this paragraph does not
require railroads to give an
unannounced compliance test to
conductors who are not performing
service requiring certification.
Moreover, the railroads are given
approximately a month to test those
conductors returning to service.
Paragraph (c) provides that each
conductor must be given at least one
unannounced compliance test in each
calendar year by a railroad officer who
meets the requirements of 49 CFR
217.9(b)(1).
Paragraph (d) provides the operational
tests that conductors and passenger
conductors must be tested on. That
paragraph also allows passenger
conductors who do not require
compliance with 49 CFR 218 subpart F,
except under emergency circumstances,
to meet the annual, unannounced test
requirement with annual training.
Interested parties should note that this
paragraph has been revised from the
NPRM to clarify that the annual training
exception in paragraph (d)(2)(i) only
applies to part 218 subpart F testing and
that a railroad will still have to test on
§ 217.9.
Paragraph (e) of this section requires
railroads to indicate the types of actions
they will take in the event they find
deficiencies with a conductor’s
performance during an unannounced
compliance test. FRA believes it is up to
each railroad to decide the appropriate
action to take in light of various factors,
including collective bargaining
agreements. Further, FRA believes that
the vast majority of railroads have
adequate policies to deal with
deficiencies with a conductor’s
performance and have handled them
appropriately for many years.
To avoid restricting the options
available to the railroads and employee

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representatives to develop processes for
handling test failures, FRA designed
this regulation to be as flexible as
possible. There are a variety of actions
and approaches that a railroad could
take in response to a test failure and
FRA does not want to stifle a railroad’s
ability to adopt an approach that is best
for its organization. Some of the actions
railroads could consider include:
Develop and provide formal remedial
training for conductors who fail tests or
have deficiencies in their performance;
automatically download event recorder
data, if relevant, upon a test failure or
deficient performance in order to
preserve evidence of the failure/
deficiency; and require two supervisors
to accompany a retest. Each railroad
could also consider implementing a
formal procedure whereby a conductor
is given the opportunity to explain, in
writing, the factors that he or she
believes caused their test failure or
performance deficiencies. This
explanation may allow a railroad to
determine what areas of training to
focus on or perhaps discover that the
reason for the failure/deficiency was
due to something other than a lack of
skills. FRA believes there are numerous
other approaches that could and should
be considered and evaluated by
railroads and their employees. FRA
realizes that a railroad’s list of actions
it will take in response to a test failure
or deficient performance could be
expansive given the various
circumstances that could contribute to a
test failure or deficient performance.
Paragraphs (b) and (f) of this section
recognize that some certified conductors
may not be performing a service that
requires conductor certification, and
thus, a railroad may not be able to
provide those conductors with the
annual, unannounced compliance test.
For example, a certified conductor may
be on furlough, in military service, off
with an extended illness, or working in
another service. Unlike part 240, which
requires railroads to seek a waiver from
FRA’s Safety Board for engineers it is
unable to annually test, this section
does not require railroads to give an
unannounced compliance test to
conductors who are not performing
service requiring certification. However,
when the certified conductor returns to
conductor service, he or she will have
to be tested within 30 days of their
return. Moreover, the railroad will have
to retain a written record documenting
certain dates regarding a conductor’s
service.

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

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Subpart C—Administration of the
Certification Program
Section 242.201 Time Limitations for
Certification
This section, derived from 49 CFR
240.217, contains various time
constraints that preclude railroads from
relying on stale information when
evaluating a candidate for certification
or recertification. Although some
members of the Working Group
advocated for extending the certification
period from 3 years to 5 years, FRA
could not discern the safety justification
for doing so. FRA has, however,
extended the period provided in
§ 240.217(a)(2) upon which a railroad
could rely on a visual and hearing
acuity examination from 366 days to
450 days. The 450 days corresponds to
the requirement in § 227.109 that
railroads must offer employees included
in a hearing conservation program a

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hearing test at an interval not to exceed
450 days.
Section 242.203 Retaining Information
Supporting Determinations
This section, derived from 49 CFR
240.215, contains the record keeping
requirements for railroads that certify
conductors. While both § 240.215 and
this section permit railroads to retain
records electronically, paragraph (g) of
this section provides more specific
requirements regarding the electronic
storage system used to retain the records
than those found in § 240.215. In
paragraph (g), FRA provides minimum
standards for electronic record-keeping
provisions that a railroad will have to
utilize to maintain the records required
by this section electronically. FRA
recognizes the growing prevalence of
electronic records, and acknowledges
the unique challenges that electronic
transmission, storage, and retrieval of
records can present. FRA also
recognizes the need to maintain the
integrity and security of records stored
electronically. Thus, FRA believes that
more specific requirements for
electronic storage systems than those
found in § 240.215 are needed. Further,
to allow for future advances in
technology, the electronic record storage
provisions in paragraph (g) are
technology-neutral.
Section 242.205 Identification of
Certified Persons and Record Keeping
This section, derived from 49 CFR
240.221, requires each railroad to
maintain a list of its certified
conductors. Although derived from
§ 240.221, this section also contains
some significant differences. Unlike
§ 240.221(c) which requires the railroad
responsible for controlling joint
operations territory to maintain a list of
all engineers certified to operate in the
joint operations, paragraph (b) of this
section requires the railroad that
employs conductors working in joint
operations territory to maintain the list.
With respect to engineers, FRA has
found that, under actual industry
practices, the controlling railroad
seldom qualifies foreign engineers over
its trackage. Rather, the controlling
railroad usually qualifies the employing
railroad’s designated supervisor of
locomotive engineers (DSLEs) on its
territory and allows those DSLEs to
qualify their own engineers on the
controlling railroad’s trackage.
Considering that practice, the
employing railroad would be better able
to maintain the list of conductors it
qualifies on the controlling railroad.
Additionally, the employing railroad
has more of an interest in keeping track

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of its conductors that are qualified on
the controlling railroad. Should an
employing railroad order a crew for a
train that will operate over the
controlling railroad, and the crew is not
qualified, the train would have to stop
at the controlling railroad. Moreover, it
is much easier for the employing
railroad to keep the list updated as it
qualifies conductors or it removes
conductors who have lost qualification
because of time limitations. This section
also differs from § 240.221 in that this
section makes it unlawful for a railroad
to knowingly or an individual to
willfully make a false entry on the list
or to falsify the list. Similar language is
found in § 240.215(i) but not in
§ 240.221.
While both § 240.221 and this section
permit railroads to retain records
electronically, paragraph (e) of this
section provides more specific
requirements regarding the electronic
storage system used to retain the records
than those found in § 240.215(f) and
does not require a railroad to obtain
FRA approval to maintain the records
electronically. The electronic storage
requirements in paragraph (e) of this
section track those in § 242.203(g).
Section 242.207 Certificate
Components
This section, derived from 49 CFR
240.223, contains the requirements for
the certificate that each conductor must
carry. To address the privacy concerns
of some Working Group members,
FRA’s requirements for what must be on
the certificate slightly differ from the
certificate requirements in part 240.
While § 240.223(a)(3) requires
locomotive engineer certificates to
include the full date of birth,
§ 242.207(a)(3) requires conductor
certificates to include only the year of
birth. While FRA expects that, in the
future, § 240.223(a)(3) will be amended
to conform to § 242.207(a)(3), FRA notes
that pursuant to § 242.213(n), a single
certificate issued to a person that is
certified as both a conductor and a
locomotive engineer will have to
comply, for now, with § 242.207 and
§ 240.223.
Section 242.209 Maintenance of the
Certificate
This section, derived from 49 CFR
240.305(b), (c) and (e), requires
conductors to: Have their certificates in
their possession while on duty as a
conductor; display their certificates
when requested to do so by FRA
representatives, State inspectors
authorized under 49 CFR part 212, and
certain railroad officers; and notify a
railroad if he or she is called to serve as

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a conductor in a service that would
cause them to exceed their certificate
limits. Although State inspectors
authorized under 49 CFR part 212 could
be considered ‘‘FRA representatives,’’
they are mentioned separately in this
section to ensure that there would be no
dispute regarding their authority.

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Section 242.211 Replacement of
Certificates
This section, derived from 49 CFR
240.301, requires railroads to have a
system for the prompt replacement of
certificates when necessary. Unlike
§ 240.301, which does not address the
question of who will bear the cost of a
replacement certificate, this section
provides that certificates will be
replaced by the railroad at no cost to the
conductor. While FRA expected that the
railroad would bear the cost for a
replacement locomotive engineer
certificate under part 240, a few
Working Group members indicated that
some locomotive engineers had been
charged (or asked by a railroad to pay)
for replacement certificates. The
provision in this part clarifies that the
railroad would bear the cost of
replacement certificates.
To address the concerns of some
Working Group members that a full
replacement certificate can take some
time to generate and provide to a
conductor, paragraph (b) of this section
permits railroads to issue temporary
replacement certificates. The paragraph
describes what the certificate must
contain and who can authorize the
temporary replacement. The temporary
replacement certificate may be delivered
electronically (e.g., faxed, emailed, etc.)
and may be valid for no more than 30
days.
Section 242.213 Multiple
Certifications
This section permits a person to hold
certification for multiple types of
conductor service and/or certification
for both conductor and locomotive
engineer service. A railroad only needs
to issue one certificate to a person with
multiple certifications. However, a
certificate issued to a person certified as
a conductor and locomotive engineer
will not only have to comply with
§ 242.207 but also with § 240.223. To
the extent possible, a railroad that issues
multiple certificates to a person will
have to coordinate the expiration date of
those certificates.
With the exception of a situation in
which a conductor is removed from a
train for a medical, police, or other such
emergency, this section requires that a
locomotive engineer, including a RCO,
who is operating without an assigned

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certified conductor to either be: (1)
Certified as both a locomotive engineer
and a conductor; or (2) accompanied by
a certified conductor who will attach to
the crew ‘‘in a manner similar to that of
an independent assignment.’’ Since a
lone engineer or RCO would be serving
as and performing duties as both
locomotive engineer and conductor,
FRA believes, and the Working Group
and full RSAC voted to recommend, that
the engineer or RCO must hold dual
certification or be accompanied by a
certified conductor. The language
concerning how an accompanying
conductor would attach to the crew
conveys FRA’s intent that this
regulation be neutral on the issue of
crew consist (i.e., how many
crewmembers must be on a train).
During the RSAC process,
representatives of FRA, the railroads,
and labor engaged in extensive
discussions regarding the potential
effect of § 242.213 (‘‘Multiple
certifications’’) on the issue of crew
consist. It is FRA’s intent that this
conductor certification regulation,
including § 242.213, be neutral on the
crew consist issue. Nothing in part 242
should be read as FRA’s endorsement of
any particular crew consist
arrangement.
In instances where a person, who is
serving as both the conductor and the
engineer (i.e., a lone engineer or RCO),
is involved in a revocable event,
railroads may be faced with determining
which certification to revoke. For
example, a railroad that finds that a
RCO, who is certified both as an
engineer and as a conductor but who
was not accompanied by a certified
conductor, has failed to comply with
prohibitions against tampering with a
locomotive mounted safety device
would have to determine whether to
revoke the person’s conductor
certification pursuant to § 242.403(e)(5)
or the person’s locomotive engineer
certification pursuant to § 240.117(e)(5).
To address that situation, § 242.213(o)
requires railroads to make the
determination as to which certification
to revoke based on the work the person
was performing at the time the conduct
occurred. This determination would be
similar to the determination made under
the reporting requirements in this rule
(§ 242.215(f)) and under part 225 in
which railroads determine whether an
accident was caused by poorly
performing what is traditionally
considered a conductor’s job function
(e.g., switch handling, derail handling,
etc.) or whether it was caused by poorly
performing what is traditionally
considered a locomotive engineer’s job
function (e.g., operation of the

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locomotive, braking, etc.). Interested
parties should note however, the
preamble discussion of § 242.403(f)
which discusses situations in which
multiple revocable events occur within
a single tour of duty.
This section also addresses the
consequences of certification denial or
revocation for a conductor who is
certified to perform multiple types of
conductor service or both conductor and
locomotive engineer service. A person
who holds a current conductor and/or
locomotive engineer certificate from
more than one railroad must
immediately notify the other certifying
railroad(s) if he or she is denied
engineer or conductor recertification or
has his or her conductor or engineer
certification revoked by another
railroad.
Pursuant to this section, a person
certified to perform multiple types of
conductor service and who has had any
of those certifications revoked cannot
perform any type of conductor service
during the period of revocation.
Likewise, a person who holds a
conductor and locomotive engineer
certificate and has his or her engineer
certificate revoked cannot work as a
conductor during the period of
revocation. Similarly, a person who
holds a conductor and engineer
certificate and has his or her conductor
certification revoked for violation of
§§ 242.403(e)(1)–(e)(5) or (e)(12) cannot
work as an engineer during the period
of revocation. However, a person who
holds a conductor and engineer
certificate and has his or her conductor
certification revoked for a violation of
§§ 242.403(e)(6)–(e)(11) (i.e., violations
involving provisions of part 218,
subpart F) can work as an engineer
during the period of revocation. To aid
interested parties, FRA has included a
table in Appendix E to this rule which
explains, in a spreadsheet-style form,
when a person certified as both an
engineer and conductor will be
permitted to work following a
certification revocation.
Currently under part 240, an engineer
cannot have his or her certificate
revoked for violations of part 218,
subpart F. While part 240 may be
amended in the future to include part
218, subpart F violations as revocable
events, this rule recognizes that it would
be unfair to prohibit a person from
working as an engineer for a violation
that currently would not result in the
revocation of his or her engineer
certificate. This section also provides
that, in determining the period in which
a person may not work as a locomotive
engineer due to a revocation of his or
her conductor certification, only

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violations of §§ 242.403(e)(1)–(e)(5) or
(e)(12) may be counted. To assist
railroads in determining the correct
period, paragraph (h)(1) of this section
provides a hypothetical scenario and an
explanation of how the period would be
calculated.
To avoid treating a person who only
holds one certification differently than a
person who holds multiple
certifications, this section prohibits a
person who has had his or her
locomotive engineer certification
revoked from obtaining a conductor
certificate during the revocation.
Likewise, a person who has had his or
her conductor certification revoked for
violations of §§ 242.403(e)(1)–(e)(5) or
(e)(12) is prohibited from obtaining a
locomotive engineer certificate during
the period of revocation. With respect to
denial of certification or recertification,
this section provides that a railroad that
denies a person locomotive engineer
certification or recertification shall not,
solely on the basis of the denial, deny
or revoke that person’s conductor
certification or recertification and vice
versa.
Section 242.215 Railroad Oversight
Responsibilities
This section, derived from 49 CFR
240.309, requires Class I (including the
National Railroad Passenger Corporation
and a railroad providing commuter
service) and Class II railroads to conduct
an annual review and analysis of its
program for responding to detected
instances of poor safety conduct by
certified conductors. FRA has
formulated the information collection
requirements of this section to ensure
that railroads collect data on conductor
safety behavior and feed that
information into its operational
monitoring efforts, thereby enhancing
safety.
This section requires Class I
(including the National Railroad
Passenger Corporation and a railroad
providing commuter service) and II
railroads to have an internal auditing
plan to keep track of eight distinct kinds
of events that involve poor safety
conduct by conductors. For each event,
the railroad shall indicate what
response it took to that situation. The
railroad will evaluate this information,
together with data showing the results
of annual operational testing and the
causation of FRA reportable train
accidents, to determine what additional
or different efforts, if any, are needed to
improve the safety performance of that
railroad’s certified conductors. FRA is
not requiring a railroad to furnish this
data or its analysis of the data to FRA.
Instead, FRA is requiring that the

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railroad be prepared to submit such
information when requested.
For purposes of the reporting
requirement in this section, an instance
of poor safety conduct involving a
person who holds both a conductor and
engineer certification need only be
reported once (i.e., either under 49 CFR
240.309 or this section). The
determination as to where to report the
instance of poor safety conduct will be
based on the work the person was
performing at the time the conduct
occurred. This determination is similar
to the determination made under part
225 in which railroads determine
whether an accident was caused by
poorly performing what is traditionally
considered a conductor’s job function
(e.g., switch handling, derail handling,
etc.) or whether it was caused by poorly
performing what is traditionally
considered a locomotive engineer’s job
function (e.g., operation of the
locomotive, braking, etc.).
Paragraph (g)(2) has been modified
slightly from the NPRM to acknowledge
that punishments may not always be
imposed by a hearing officer.
Accordingly, FRA has replaced the
specific term ‘‘hearing officer’’ with the
more general term ‘‘railroad.’’
Paragraph (i)(2) has been modified
slightly from the NPRM to clarify what
accident/incident report FRA is
referring to in that paragraph. Further
the paragraph that was labeled as ‘‘(ii)
[Reserved]’’ has been removed as
unnecessary.
Subpart D—Territorial Qualification
and Joint Operations
Section 242.301 Requirements for
Territorial Qualification
This section, derived from 49 CFR
240.229 and 240.231, explains the
requirements for territorial qualification.
Paragraph (a) of this section provides
that, except for three circumstances, a
railroad, including a railroad that
employs conductors working in joint
operations territory, cannot permit or
require a person to serve as a conductor
unless that railroad determines that the
person is a certified conductor and
possesses the necessary territorial
qualifications.
Paragraph (a) reflects the Working
Group and full RSAC recommendation
to realign the burden for determining
which party is responsible for allowing
an unqualified person to operate in joint
operations. While part 240 puts the
burden on the controlling railroad, this
rule puts the burden on the employing
railroad. This change is based on the
experiences of the Working Group
members who believe that an inordinate

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amount of the liability currently rests
with the controlling railroad. The
perceived unfairness rests on the fact
that it is not always feasible for the
controlling railroad to make all of the
determinations required by § 242.119.
The employing railroad may provide the
controlling railroad with a long list of
hundreds or thousands of locomotive
engineers that it deems eligible for joint
operations; following up on a long, and
ever-changing list is made much more
difficult since a controlling railroad
would not control the personnel files of
the conductors on this list.
The realignment will lead to a sharing
of the burden among a controlling
railroad, an employing railroad and an
employing railroad’s conductor.
Although a controlling railroad is
obligated to make sure the person is
qualified, paragraph (a) requires that an
employing railroad make these same
determinations before calling a person
to serve in joint operations. Paragraph
(b) of this section requires a conductor
to notify a railroad when the person is
being asked to exceed his or her
territorial qualifications. That paragraph
parallels § 242.209(b) of this rule.
Paragraph (c), which as discussed in
the preamble above, has been modified
from the NPRM. The paragraph provides
requirements for situations where a
conductor lacks territorial qualification
on main track physical characteristics. It
provides differing requirements
depending on whether a conductor has
never been qualified on main track
physical characteristics of the territory
over which he or she is to serve as a
conductor or whether the conductor was
previously qualified on main track
physical characteristics of the territory
over which he or she is to serve as a
conductor, but whose qualification has
expired. For a conductor who has never
been qualified on main track physical
characteristics of the territory over
which he or she is to serve as a
conductor, paragraph (c)(1) of this final
rule requires that the assistant must be
a person who is certified as a conductor,
meets the territorial qualification
requirements for main track physical
characteristics, and is not an assigned
crew member. For a conductor who was
previously qualified on main track
physical characteristics of the territory
over which he or she is to serve as a
conductor, but whose qualification has
expired, paragraph (c)(2) of this Final
Rule allows the assistant to be any
person, including an assigned
crewmember other than the locomotive
engineer so long as serving as the
assistant would not conflict with that
crewmember’s other safety sensitive
duties, who meets the territorial

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qualification requirements for main
track physical characteristics.
Paragraph (d) provide requirements
for situations where a conductor lacks
territorial qualification on other than
main track physical characteristics. On
other than main track, the conductor,
where practicable, must be assisted by
a person who is a certified conductor
and meets the territorial qualification
requirements for other than main track
physical characteristics. Where not
practicable, the conductor must be
provided with an appropriate, up-todate job aid. Two points should be made
about the other than main track
requirements in paragraph (d) of this
section. First, the person assisting the
conductor may be the locomotive
engineer as long as the engineer is also
a certified conductor and meets the
territorial qualification requirements for
the other than main track physical
characteristics. Second, FRA does not
intend for the requirements of
§ 242.301(d) to apply to sidings.
Paragraph (e), which was not
included in the NPRM, provides
exceptions as to when an assistant is not
required on main track. Those
exceptions, which are derived from
49 CFR 240.231(c), apply to movements
on a section of main track with an
average grade of less than 1% over 3
continuous miles and: (1) The
maximum distance the locomotive or
train will be operated does not exceed
one mile; or (2) the maximum
authorized speed for any operation on
the track does not exceed 20 miles per
hour; or (3) operations are conducted
under operating rules that require every
locomotive and train to proceed at a
speed that permits stopping within one
half the range of vision of the
locomotive engineer.

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Subpart E—Denial and Revocation of
Certification
This subpart parallels part 240’s
approach to adverse decisions
concerning certification (i.e., decisions
to deny certification or recertification
and revoke certification). With respect
to denials, the approach of this rule is
predicated principally on the theory
that decisions to deny certification or
recertification will come at the
conclusion of a prescribed evaluation
process which will be conducted in
accordance with the provisions set forth
in this subpart. Thus, this rule and part
240 contain specific procedures
designed to assure that a person, in
jeopardy of being denied certification or
recertification, will be given a
reasonable opportunity to explore and
respond to the negative information that

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might serve as the basis for being denied
certification or recertification.
When considering revocation, this
rule contemplates that decisions to
revoke certification will only occur for
the reasons specified in this subpart.
Since revocation decisions by their very
nature involve a clear potential for
factual disagreement, this subpart is
structured to ensure that such decisions
will come only after a certified
conductor had been afforded an
opportunity for an investigatory hearing
at which the presiding officer will
determine whether there is sufficient
evidence to establish that the
conductor’s conduct warranted
revocation of his or her certification.
This subpart also includes the
concept of certificate suspension.
Certificate suspension will be employed
in instances where there is reason to
think the certificate should be revoked
or made conditional but time is needed
to resolve the situation. Certificate
suspension is applicable in instances
where a person is awaiting an
investigatory hearing to determine
whether that person violated certain
provisions of FRA’s alcohol and drug
control rules or engaged in operational
misconduct and situations in which the
person is being evaluated or treated for
an active substance abuse disorder.
While this subpart follows part 240’s
approach to adverse decisions
concerning certification, it does include
some modifications to the processes in
part 240. Those modifications are
discussed below.
Section 242.401 Denial of Certification
This section, derived from 49 CFR
240.219, provides minimum procedures
that must be accorded to a certification
candidate before a railroad denies the
candidate certification or recertification.
The requirements in this section parallel
the key provisions in § 240.219
including: Providing a certification
candidate with a reasonable opportunity
to explain or rebut adverse information;
and notifying a candidate of an adverse
decision and providing a written
explanation of the basis for its decision
within 10 days.
This section also includes some
additional provisions in paragraphs (a),
(c), and (d) not found in § 240.219
which FRA believes will improve the
transparency of the certification denial
process and improve FRA’s ability to
adjudicate petitions seeking review of a
railroad’s denial decision pursuant to
subpart E of this rule. Paragraph (a) of
this section requires a railroad to
provide the conductor candidate with
any written documents or records,
including written statements, related to

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69827

a failure to meet a requirement of this
part which support its pending denial
decision. Paragraph (c) of this section
requires that a written explanation of an
adverse decision be ‘‘served’’ on a
certification candidate (see definition of
service in § 242.7). Use of the defined
term, rather than part 240’s more
general phrase ‘‘mailed or delivered,’’
not only makes this rule internally
consistent but will help FRA in
determining whether a petition seeking
review of a denial decision is filed
within 120 days of the date the denial
is served on the petitioner (see
§ 242.503(c)). Paragraph (c) also requires
that the basis for a railroad’s denial
decision shall address any explanation
or rebuttal information that the
conductor candidate may have provided
in writing pursuant to paragraph (a) of
this section.
Paragraph (d) of this section, which is
also not included in § 240.219, prohibits
a railroad from denying certification
based on a failure to comply with
§ 242.403(e)(1)–(11) if sufficient
evidence exists to establish that an
intervening cause prevented or
materially impaired the conductor’s
ability to comply with those sections.
Paragraph (d) is derived from the
intervening cause exception for
revocation in § 242.407(i)(1).
Section 242.403 Criteria for Revoking
Certification
This section, derived from 49 CFR
240.117 and 240.305, provides the
circumstances under which a conductor
may have his or her certification
revoked. In addition, paragraph (b) of
this section makes it unlawful to fail to
comply with any of the events listed in
paragraph (e) of this section (i.e., events
which would require a railroad to
initiate revocation action). Paragraph (b)
is needed so that FRA could initiate
enforcement action. For example, FRA
might want to initiate enforcement
action in the event that a railroad fails
to initiate revocation action or a person
is not a certified conductor under this
part. Railroads should note that they
may not revoke a conductor’s certificate,
including a designated conductor’s
certificate, until they have a certification
program approved by the FRA pursuant
to § 242.103.
Paragraph (c)(1) of this section
provides that a certified conductor who
fails to comply with the events listed in
paragraph (e) of this section would have
his or her conductor certification
revoked. Paragraph (c)(2) provides that
a certified conductor, who is
monitoring, piloting, or instructing a
conductor, could have his or her
certification revoked if he or she fails to

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take ‘‘appropriate action’’ to prevent a
violation of paragraph (e) of this section.
As explained in paragraph (c)(2),
‘‘appropriate action’’ does not mean that
a supervisor, pilot, or instructor must
prevent a violation from occurring at all
costs, but rather the duty may be met by
warning the conductor or engineer, as
appropriate, of a potential or foreseeable
violation. The term ‘‘appropriate action’’
is also used in paragraph (e) of this
section as well as § 240.117(c)(2).
Paragraph (c)(3) provides that a
person who is a certified conductor but
is called by a railroad to perform the
duty of a train crew member other than
that of conductor or locomotive
engineer would not have his or her
certification revoked based on actions
taken or not taken while performing that
duty. For example, a person who is
called to be the crew’s brakeman and
who does not serve as a conductor or
locomotive engineer during that tour of
duty could not have his or her
certification revoked for a violation
listed in paragraph (e) of this section.
Interested parties should note that the
exemption does not apply to violations
of paragraph (e)(12) so that conductors
working in other capacities who violate
certain alcohol and drug rules would
have their certification revoked for the
appropriate period pursuant to
§§ 242.403 and 242.115.
Paragraph (d) provides that the time
frame for considering operating rule
compliance only applies to conduct
described in paragraphs (e)(1) through
(e)(11) of this section and not paragraph
(e)(12). When alcohol and drug
violations are at issue, the window in
which prior operating rule misconduct
will be evaluated will be dictated by
§ 242.115 and not limited to the 36month period prescribed in this
paragraph. This rule requires that
certification reviews consider alcohol
and drug misconduct that occurred
within a period of 60 consecutive
months prior to the review pursuant to
§ 242.115(e).
Paragraph (e) provides the 12 types of
rule infractions that could result in
certification revocation. The infractions
listed in paragraphs (e)(1)–(e)(5) and
(e)(12) derive from the revocable events
provided in 49 CFR 240.117(e) but have
been modified to account for a
conductor’s duties. For example,
paragraphs (e)(1) and (e)(2) recognize
that a conductor does not operate the
train and thus those paragraphs only
require a conductor to take ‘‘appropriate
action’’ to prevent an engineer from
failing to control a locomotive or train
in accordance with a signal or to adhere
to speed limitations. As explained in
those paragraphs, ‘‘appropriate action’’

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does not mean that a conductor must
prevent a violation from occurring at all
costs; but rather the duty may be met by
warning the engineer of a potential or
foreseeable violation. Moreover,
paragraph (e)(2) recognizes that a
conductor who is not in the operating
cab should not be held to held to the
same responsibility with respect to
monitoring train speed as a conductor
who is located in the operating cab.
The language of paragraph (e)(4) has
been modified from the version
proposed in the NPRM. In this final
rule, paragraph (e)(4) requires a
conductor to take ‘‘appropriate action’’
to prevent an engineer from occupying
main track or a segment of main track
without proper authority or permission.
As explained in that paragraph,
‘‘appropriate action’’ does not mean that
a conductor must prevent a violation
from occurring at all costs; but rather
the duty may be met by warning the
engineer of a potential or foreseeable
violation.
As written in the NPRM, paragraph
(e)(4), a conductor could have had his
or her certification revoked for
occupying main track or a segment of
main track without proper authority or
permission even if the conductor
repeatedly warned the engineer about
the potential violation. FRA does not
believe that was the intent of paragraph
(e)(4) and thus, FRA has modified the
paragraph in this final rule. Interested
parties should note that with respect to
paragraph (e)(4), a conductor will be
considered to have failed to take
appropriate action to prevent an
engineer from occupying main track or
a segment of main track without proper
authority or permission if the conductor
fails to warn the engineer to stop and
protect/flag a crossing on main track
when required to do so pursuant to a
railroad operating rule or practice,
including a mandatory directive.
The infractions listed in paragraphs
(e)(6) through (e)(11) of this section
describe violations of part 218, subpart
F, which are not listed as revocable
events in part 240. For the reasons listed
below, FRA proposed, and the RSAC
recommended, that violations of part
218, subpart F, should be revocable
events for conductors. In the future,
FRA expects to review whether those
violations should also be revocable
events for locomotive engineers.
Subpart F of part 218 requires that each
railroad have in effect certain operating
rules concerning shoving or pushing
movements, equipment left out to foul
a track, switches, and derails.4 The
4 For a detailed analysis of part 218, interested
parties should review the notice of proposed

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operating rules identified in part 218,
subpart F, are not only considered core
competencies for conductors but are
also designed to address the most
frequently caused human factor
accidents. Human factors are the leading
cause of train accidents, accounting for
38 percent of the total in 2005. Human
factors also contribute to employee
injuries. Subpart F violations account
for approximately 43 percent of all
human factor caused accidents. From
2005–2009, there were approximately
2,227 accidents due to Subpart F
violations. Those accidents resulted in
approximately 13 fatalities, 363 injuries,
and $104,855,224 in damages.
Paragraph (f) of this section provides
that if a single incident contravenes
more than one operating rule or practice
listed in paragraph (e) of this section,
that event is to be treated as a single
violation. A single incident is a unique
identifiable occurrence caused by an
error of a conductor and/or engineer. It
is possible for a person to be involved
in more than one single incident during
a tour of duty if the incidents are
separated by time, distance or
circumstance. If, for example a person,
who is certified as both an engineer and
a conductor and is serving as a lone
engineer, violates a stop signal rule and
in so doing, enters main track without
authority, that person could only be
charged as an engineer with one rule
violation. However, if that same person
fails to properly secure a switch after
operating the switch in violation of
§ 218.103(b)(8) and then violates a stop
signal rule, that would be considered
two separate incidents and thus the
person’s conductor certification could
be revoked for the part 218 violation
and the person’s engineer certification
could be revoked for the stop signal
violation.
Paragraph (f) also provides that a
conductor may have his or her
certification revoked for violations that
occur during properly conducted
operational compliance tests. However,
FRA notes that violations that occur
during an improperly conducted
operational compliance test will not be
considered for revocation purposes.
Paragraph (f)(4) of this section was
previously paragraph (e)(13) in the
NPRM. Since the paragraph does not
deal with a revocable event like
paragraphs (e)(1) through (e)(12), FRA
moved it to paragraph (f) to avoid
confusion. Paragraph (f)(4), which does
not have a counterpart in part 240,
rulemaking (71 FR 60372 (Oct. 12, 2006)), the final
rule (73 FR 8442 (Feb. 13, 2008)), and the response
to petitions for reconsideration (73 FR 33888 (June
16, 2008)) issued in that rulemaking.

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prohibits a railroad from denying or
revoking an employee’s certification
based upon additional conditions or
operational restrictions imposed
pursuant to § 242.107(d). Thus, a
railroad could not revoke a conductor’s
certificate for an alleged violation of a
railroad rule or practice that is more
stringent than the condition or
restrictions required by this part. In the
future, FRA expects to review whether
a similar provision should also apply to
locomotive engineers.
Section 242.405 Periods of Ineligibility
This section, derived from § 240.117,
describes how a railroad will determine
the period of ineligibility (e.g., for
revocation or denial of certification) that
a conductor or conductor candidate will
have to undergo. With respect to
revocation, this section provides that
once a railroad determines that a
conductor has failed to comply with its
safety rule concerning one or more
events listed in § 242.403(e), two
consequences will occur. First, the
railroad is required to revoke the
conductor’s certification for a period of
time provided in this section. Second,
that revocation will initiate a period
during which the conductor will be
subject to an increasingly more severe
action if additional revocable events
occur in the next 24 to 36 months.
Except for incidents occurring on
other than main track where restricted
speed or the operational equivalent is in
effect, the standard periods of
revocation provided in this section track
the periods provided in part 240: 1
event = revocation for 30 days; 2 events
within 24 months of each other =
revocation for 6 months; 3 events within
36 months of each other = revocation for
1 year; and 4 events within 36 months
of each other = revocation for 3 years.
This section notes, however, that
violations of § 219.101 could result in
different periods of ineligibility and in
those cases, the longest period of
revocation will control. FRA has
included a table in Appendix E to this
rule which provides the revocation
periods in a spreadsheet-style form. The
table should be useful to regulated
entities in determining the correct
period of revocation.
The period of revocation in both part
240 and this rule is based on a floating
window. Hence, under this rule and
part 240, if a second offense occurs 25
months after the first offense, the
revocation period would be the same as
a first offense; however, if a third
offense occurs within 36 months of the
first offense, the revocation period
would be one year. The anomaly will be
that a person’s certificate could be

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revoked twice for one month under
paragraph (a)(3)(ii) of this section but
that the third incident could result in a
one year revocation under paragraph
(a)(3)(iv) of this section without the
benefit of the interim six month
revocation period under paragraph
(a)(3)(iii).
This section also contains two
provisions which will reduce the period
of ineligibility if certain criteria are met.
The first provision, which is contained
in paragraph (a)(3)(i) of this section,
provides that ‘‘on other than main track
where restricted speed or the
operational equivalent thereof is in
effect,’’ the periods of revocation for
violations of certain provisions of
§ 242.403(e) 5 shall be reduced by one
half provided that another revocable
event has not occurred within the
previous 12 months. That provision,
which does not have an equivalent
provision in part 240, recognizes that
some violations which occur on other
than main track where slower speeds
are in effect may pose less of a danger
to safety than violations that occur on
main track and thus a reduced period of
revocation is warranted. The second
provision, which may reduce the period
of ineligibility if certain criteria are met,
is contained in paragraph (c) of this
section. That provision, which parallels
§ 240.117(h), provides that a person
whose conductor certification is denied
or revoked will be eligible for grant or
reinstatement of the certificate prior to
the expiration of the initial period of
revocation if, among other things, at
least one half of the initial period of
ineligibility has elapsed.
In certain instances, both provisions
may apply to a conductor who has had
his or her certification revoked. For
example, if a conductor’s certification is
revoked for a violation of § 242.403(e)(6)
which occurred on other than main
track where restricted speed is in effect
and it is the only revocation that the
conductor has ever had, then, under
§ 242.405(a)(3)(i), the revocation period
would be 15 days. Moreover, if the
conductor meets the criteria in
§ 242.405(c), then the conductor would
be eligible for reinstatement of his or her
certificate in 8 days.6
5 The provisions are § 242.403(e)(6) through (e)(8),
(e)(10), and (e)(11). Section 242.403(e)(9) is not
included in the list because the reduction provided
for in § 242.403(a)(3)(i) only applies on other than
main track where restricted speed or the operational
equivalent thereof is in effect. Section 242.403(e)(9),
however, addresses violations of § 218.105 which
only applies to main track switches.
6 If, as in the example, the revocation calculation
results in any fraction of a day (e.g., 7.5 days), then
round the number up. Thus, the conductor in the
example would be eligible for reinstatement in 8
days.

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

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of this section is provided through
statements of an employee of the
convening railroad, the railroad must
make that employee available for
examination during the hearing.
Examination may be telephonic where it
is impractical to provide the witness at
the hearing.
The provisions in paragraph (b)(4) of
this section were added to address the
concerns of some members of the
Working Group that engineers were not
being provided with information and/or
witnesses necessary to defend
themselves at the hearing under part
240. Interested parties should note that
even if a railroad conducts a hearing
pursuant to the procedures in an
applicable collective bargaining
agreement pursuant to paragraph (d) of
this section, the railroad will still have
to comply with the provisions of
paragraph (b)(4). It is FRA’s
understanding that, except for an
employee of the convening railroad
whose statements led to a suspension
under paragraph (b)(1) of this section, a
railroad will not, in fact, be required to
call to testify every witness that it
includes on the list provided pursuant
to paragraph (b)(4). If, for example, a
railroad believes that it has provided
sufficient evidence during a hearing to
prove its case and that calling a witness
on its list to testify would be unduly
repetitive, then the railroad will not be
obligated to call that witness. Of course,
the opposing party could request that
the witness be produced to testify but
the hearing officer would have the
authority pursuant to paragraph (c)(6) to
determine whether the witness’
testimony would be unduly repetitive or
so extensive and lacking in relevancy
that its admission would impair the
prompt, orderly, and fair resolution of
the proceeding.
While paragraph (c)(1) provides a
conductor with significant input into
when the hearing is held, that paragraph
must read in conjunction with
paragraph (c)(3) which provides the
presiding officer with the powers
necessary to regulate the conduct of the
hearing. Thus, a presiding officer would
be permitted to deny excessive hearing
request delays by the conductor.
Moreover, a presiding officer could find
implied consent to postpone a hearing
where a conductor’s witnesses are not
available within 10 days of the date the
certificate is suspended. However,
interested parties should note that the
OCRB may grant a petition on review if
the OCRB finds that the hearing
schedule caused the petitioner
substantial harm.
Paragraph (c)(11) contains
requirements regarding the written

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decision issued in a railroad hearing
beyond those contained in part 240.
Specifically, the final rule requires the
decision to: (1) State whether the
railroad official found that a revocable
event occurred and the applicable
period of revocation with a citation to
§ 242.405 (Periods of revocation); (2)
contain an explanation of the factual
findings and citations to all applicable
railroad rules and practices; and (3) be
served on the employee and the
employee’s representative, if any, with
the railroad to retain proof of that
service. FRA believes these additional
requirements will ensure that clearer
and more detailed decisions are issued.
In turn, clearer and more detailed
decisions will allow a conductor to
understand exactly why his or her
certification was revoked and will allow
the Operating Crew Review Board to
have a more detailed understanding of
the case if it is asked to review the
revocation decision pursuant to subpart
E of this rule.
Paragraph (g) requires a railroad to
revoke an employee’s conductor
certification if it discovers that another
railroad has revoked that person’s
conductor certification. The hearing
requirement in this rule is satisfied
when any single railroad holds a
revocation hearing.
Paragraph (h) credits the period of
certificate suspension prior to the
commencement of a hearing required
under this section towards satisfying
any applicable revocation period
imposed in accordance with the
provisions of § 242.405.
Paragraph (i) provides two specific
defenses for railroad supervisors and
hearing officers to consider when
deciding whether to suspend or revoke
a person’s certificate due to an alleged
revocable event. Pursuant to paragraph
(i), either defense will have to be proven
by sufficient evidence. Paragraph (i)(1)
of this section provides that a person’s
certificate will not be revoked when
there is sufficient evidence of an
intervening cause that prevented or
materially impaired the person’s ability
to comply. For example, a railroad
should consider assertions that a
conductor in the operating cab failed to
take appropriate action to prevent the
engineer from failing to control the
locomotive in accordance with a signal
indication that requires a complete stop
before passing it because of defective
equipment. Similar to the defense of
defective equipment, the actions of
other people could sometimes be an
intervening cause. For instance, a
dispatcher or a train crew member could
relay incorrect information to the
conductor who reasonably relied on it

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in causing a prohibited train movement.
Conductors and railroad managers
should note that not all equipment
failures or errors caused by others will
serve to absolve the person from
certification action under this rule. The
factual issues of each circumstance will
have to be analyzed on a case-by-case
basis. For example, a broken
speedometer would not be an
intervening factor in a violation of
§ 242.403(e)(3) (failure to perform
certain required brake tests).
Paragraph (i)(2) of this section
provides a railroad with the discretion
necessary to decide not to revoke a
conductor’s certification for an event
that violates § 242.403(e)(1) through
(e)(11) under certain limited
circumstances. FRA promulgated the
discretionary provision allowing a
railroad to decide not to revoke when
the incident ‘‘was of a minimal nature
and had no direct or potential effect on
rail safety’’ with the express
understanding that some railroads
would exercise the discretion and others
would not. The decision of whether an
incident meets that criteria may often be
subject to different interpretations. For
that reason, FRA is requiring that for
each instance that a railroad chooses to
exercise this discretion, the railroad
must record its actions. See 49 CFR
242.407(j). Unless a railroad fails to
record its actions or acts in bad faith,
FRA will not take enforcement action
even if FRA believes the railroad could
have revoked the certification.
Paragraph (i)(2) does not permit a
railroad to use its discretion to dismiss
violations indiscriminately. FRA will
only permit railroads to excuse
violations when two criteria are met.
First, the violation would have to be of
a minimal nature; for example, on high
speed track at the bottom of a steep
grade, the engineer communicates to the
conductor, who is in the cab, that the
engineer knows the correct speed limit
on a portion of restricted track without
requiring the conductor to say anything
about speed, but the front of the lead
unit in a four unit consist hauling 100
cars enters a speed restriction at 10
miles per hour over speed while the
third unit and the balance of the train
enters the speed restriction at the proper
speed, and maintains that speed until
the entire train clears the speed
restriction. If a railroad is willing to
consider mitigating circumstances, it
would need to consider whether the
violation was truly of a minimal nature.
Other suggestions of the types of
incidents that a railroad may find to be
of a minimal nature under certain
circumstances include:

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• A train is required to reduce speed
past a signal and most of the train gets
by the signal at a faster speed but the
back of the train does get below 10 MPH
above the maximum authorized speed;
• During an unannounced operating
rules compliance test, a train gets by a
flag, banner, lantern or other non-fixed
stop signal that requires a complete stop
before passing it for a short distance.
The test is conducted according to the
railroad’s 49 CFR 217.9 operational
testing program with sufficient
safeguards in place. Although a
violation occurred, it may be deemed
minimal in nature since there may be no
direct or potential effect on rail safety;
or
• A train occupies main track or a
segment of main track without authority
but the lack of authority or mistake is
corrected by the crewmembers and no
actual harm is caused by the mistake.
For example, the conductor contacts the
dispatcher to roll up or obtain new
authority. During the radio
conversation, the wrong milepost or
train number is given and the train is no
longer on track for which it previously
had authority. After that radio
conversation, the crew realizes the error
and successfully contacts the dispatcher
to correct it.
In contrast, a violation could not be
considered of a minimal nature if a
conductor fundamentally violates the
operating rules. For example, if a
conductor fails to perform or have
knowledge that a required brake test
was performed, even if the train was
only traveling a short distance, then the
event may not be considered of a
minimal nature. In situations where the
rule had been fundamentally violated, a
railroad would not have the discretion
to excuse the violation.
Second, for paragraph (i)(2) to apply,
sufficient evidence must be presented to
prove that the violation did not have
either a direct or potential effect on rail
safety. That defense would certainly not
apply to a violation that actually caused
a collision or injury because that would
be a direct effect on rail safety. It would
also not apply to a violation that, given
the factual circumstances surrounding
the violation, could have resulted in a
collision or injury because that would
be a potential effect on rail safety. An
example illustrating the term ‘‘minimal
nature’’ involves a situation where a
train has the first two locomotives enter
a speed restriction too fast, yet the
balance of the train is in compliance
with the speed restriction. The train in
this example is not endangering other
trains because it had the authority to
travel on that track at a particular speed.
Thus, the railroad could find that there

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was no direct or potential effect on rail
safety caused by the violation.
In contrast, if a train fails to stop short
of a banner, which is acting as a signal
requiring a complete stop before passing
it, during a locomotive engineer
efficiency test, the passing of a banner
might have no direct effect on rail safety
but it has a potential effect since a
banner is simulating a railroad car or
another train. Meanwhile, there would
be a difference between passing a
banner versus making an incidental
touching of the banner. If a locomotive
or train barely touches a banner so that
the locomotive or train does not run
over the banner, break the banner, or
cause the banner to fall down, that
incidental touching could be considered
a minimal nature violation that does not
have any direct or potential effect on
rail safety. This is because such an
incidental touching is not likely to
cause damage to equipment or injuries
to crew members even if the banner was
another train. Although it is arguable
that if the banner were a person the
touching could be fatal, FRA is willing
to allow railroads the discretion to
consider this type of scenario in the
context of excusing a violation pursuant
to paragraph (i)(2). Of course, if the
banner is in fact a person in the manner
described in the example, the railroad
would not have the discretion to apply
paragraph (i)(2).
Similarly, if a train has received oral
and written authority to occupy a
segment of main track, the oral authority
refers to the correct train number but
refers to the wrong locomotive because
someone transposed the numbers, the
conductor’s violation in not catching
this error before entering the track
without proper authority could be
considered of a minimal nature with no
direct or potential effect on rail safety.
Since the railroad would be aware of the
whereabouts of this train, the additional
risk to safety of this paperwork mistake
may practically be zero. Under the same
scenario, where there are no other trains
or equipment operating within the
designated limits, there may be no
potential effect on rail safety as well as
no direct effect.
Paragraph (j) of this section requires
railroads to keep records of those
violations in which they must not or
elect not to revoke a conductor’s
certificate pursuant to paragraph (i) of
this section. Paragraph (j)(1) requires
railroads to keep records even when
they decide not to suspend a
conductor’s certificate due to a
determination pursuant to paragraph (i).
Paragraph (j)(2) requires railroads to
keep records even when they make their

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69831

determination prior to the convening of
the hearing held pursuant to § 242.407.
Paragraph (k) addresses concerns that
problems could arise if FRA disagrees
with a railroad’s decision not to
suspend a conductor’s certificate for an
alleged misconduct event pursuant to
§ 242.403(e). As long as a railroad makes
a good faith determination after a
reasonable inquiry, the railroad will
have immunity from civil enforcement
for making what the agency believes to
be an incorrect determination. However,
railroads should note that if they do not
conduct a reasonable inquiry or act in
good faith, they could be subject to civil
penalty enforcement under this rule. In
addition, even if a railroad does not take
what FRA considers appropriate
revocation action, FRA could still take
enforcement action against an
individual responsible for the noncompliance by assessing a civil penalty
against the individual or issuing an
order prohibiting an individual from
performing safety-sensitive functions in
the rail industry for a specified period
pursuant to part 209, subpart D.
Subpart F—Dispute Resolution
Procedures
This subpart details the opportunities
and procedures for a person to appeal a
decision by a railroad to deny
certification or recertification or to
revoke a conductor’s certification. As
stated in the RSAC Task Statement, one
of the issues requiring specific report
from the Working Group was ‘‘[s]tarting
with the locomotive engineer
certification model, what opportunities
are available for simplifying appeals
from decertification decisions of the
railroads?’’ Since its first meeting in July
of 2009, the Working Group devoted a
considerable amount of time to
researching, discussing and proposing
ideas to simplify the appeals process.
While the appeals process provided in
this subpart essentially follows the
appeals process in part 240, some
important modifications have been
made. Those modifications are
discussed below.
Section 242.501 Review Board
Established
This section, derived from 49 CFR
240.401, provides that a person who is
denied certification or recertification or
has his or her conductor certification
revoked may petition FRA to review the
railroad’s decision. Pursuant to this
section, FRA delegates initial
responsibility for adjudicating such
disputes to an internal FRA Operating
Crew Review Board (OCRB). Although
creation of the OCRB will require
issuance of an internal FRA order, FRA

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expects that the OCRB will mirror the
make-up of the Locomotive Engineer
Review Board (LERB), which is
currently used by FRA to adjudicate
disputes under part 240.7 As mentioned
above, FRA expects that, if and when
conforming changes are made to part
240, all references to the LERB in part
240 will be changed to the OCRB and
the OCRB will handle both conductor
and locomotive engineer disputes.
Section 242.503 Petition Requirements
This section, derived from 49 CFR
240.403, provides the requirements for
obtaining FRA review of a railroad’s
decision to deny certification, deny
recertification, or revoke certification.
The requirements contained in
paragraphs (a) through (c) include the
need to seek review in a timely fashion
once the adverse decision is rendered by
the railroad. Interested parties should
note that the ‘‘petitioner’’ referred to
paragraph (b) of this section is the
person who had his or her certificate
revoked, not an employee representative
who may respond on petitioner’s behalf.
If the petitioner is represented by
someone, the petitioner is encouraged to
also provide the representative’s name,
mailing address, daytime telephone
number, and email address (if available)
in the petition.
Paragraph (b)(2) revises the
requirements proposed in the NPRM
and differs from § 240.403 in that
petitions will be submitted to the
Docket Clerk of DOT rather than FRA’s
Docket Clerk. With this change, the
process for submitting petitions to the
OCRB will parallel the process for
requesting an administrative hearing
under part 240 and § 242.507. FRA
believes this change will make the
process more efficient as DOT Dockets
is better equipped to process, scan and
store these types of filings. In addition,
filings in OCRB proceedings will
become more accessible because they
will be posted on www.regulations.gov.
Interested parties should note that
anyone is able to search the electronic
form of all filings received into any of
DOT’s dockets by the name of the
individual submitting the filing (or
signing the filing, if submitted on behalf
of an association, business, labor union,
etc.). You may review DOT’s complete
Privacy Act Statement published in the
Federal Register on April 11, 2000
(Volume 65, Number 70, Pages 19477–
78), or you may visit http://
www.regulations.gov/#!privacyNotice.
Paragraph (b)(3) requires petitioners
to provide certain information,
7 The number of board members will be provided
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including an email address if available.
Petitioners should note that if FRA
receives an email address, it expects to
conduct any or all correspondence
regarding the petition or case by email.
Paragraph (b)(5) of this section
requires a petitioner to supplement his
or her petition with ‘‘a copy of all
written documents in the petitioner’s
possession or reasonably available to the
petitioner that document’’ the railroad’s
decision. Paragraph (b)(7) of this section
which provides that, if requested by the
OCRB, a petitioner must supplement the
petition with ‘‘a copy of the information
under 49 CFR 40.329 that laboratories,
medical review officers, and other
service agents are required to release to
employees.’’ That paragraph also
provides that a petitioner must provide
a written explanation in response to an
OCRB request if written documents that
should be reasonably available to the
petitioner are not supplied. The
requirements in paragraph (b)(7) were
added to clarify a petitioner’s
responsibilities, if requested by the
OCRB, with respect to a petition seeking
review of a railroad decision which is
based on a failure to comply with any
drug or alcohol related rules or a returnto-service agreement.
Paragraph (c) of this section gives the
OCRB discretion to grant a request for
additional time that is made prior to the
expiration of the period originally
prescribed. As the OCRB can exercise its
discretion under this rule only for
‘‘cause shown,’’ a party will have to
demonstrate some justification for the
OCRB to grant an extension of time.
Similarly, if the deadline in paragraph
(c) is completely missed, the movant,
under paragraph (c)(2), would have to
allege facts constituting ‘‘excusable
neglect’’ and the mere assertion of
excusable neglect, unsupported by facts,
would be insufficient. Excusable neglect
requires a demonstration of good faith
on the part of the party seeking an
extension of time and some reasonable
basis for noncompliance within the time
frame specified in the rules. Absent a
showing along these lines, relief will be
denied.
Paragraph (d) of this section explains
that a decision by the OCRB to deny a
petition for untimeliness or lack of
compliance with the requirements of
§ 242.503 may be appealed directly to
the Administrator. Ordinarily, an appeal
to the Administrator can occur only
after a case has been heard by FRA’s
hearing officer.
One difference between this section
and § 240.403 is the time by which a
petition seeking review of a railroad’s
decision would have to be filed. Part
240 contains different times depending

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on whether a person is seeking review
of a revocation decision (120 days) or a
denial decision (180 days). This section,
however, provides that a petition
seeking review of a revocation or denial
decision will have to be filed with FRA
within 120 days of the date the decision
was served on the petitioner. Another
difference between this section and
§ 240.403 is that, under this section, the
OCRB’s discretion to consider untimely
filed petitions is now extended to
petitions seeking review of a railroad’s
decision to deny certification or
recertification.
Section 242.505 Processing
Certification Review Petitions
This section, derived from 49 CFR
240.405, details how petitions for
review will be handled by FRA. Upon
receipt of the petition, FRA will provide
the person written acknowledgement of
the filing. The railroad will then have 60
days from its date of receipt to respond,
if it desires to comment on the matter.
If the railroad comments on the matter,
any material will have to be submitted
in writing and a copy served on the
petitioner and petitioner’s
representative, if any. As discussed in
the section-by-section analysis of
§ 242.503, OCRB petitions will be
accessible on www.regulations.gov.
Therefore, FRA will no longer
automatically provide copies of the
petitions to railroads. The railroads will
be responsible for accessing the
petitions online.
Paragraph (d)(1) has been revised
from the NPRM to require railroads to
provide FRA with an email address if
available. Railroads should note that if
FRA receives an email address, it
expects to conduct any and all
correspondence regarding a petition or
case by email.
Paragraph (d)(3) has revised the
requirements proposed in the NPRM
and differs from § 240.405 in that
railroad responses to a petition will be
submitted to the Docket Clerk of DOT
rather than FRA’s Docket Clerk. FRA
believes this change will make the
process more efficient as DOT Dockets
is better equipped to process, scan and
store these types of filings. In addition,
filings in OCRB proceedings will
become more accessible because they
will be posted on www.regulations.gov.
Interested parties should note that
anyone is able to search the electronic
form of all filings received into any of
DOT’s dockets by the name of the
individual submitting the filing (or
signing the filing, if submitted on behalf
of an association, business, labor union,
etc.). You may review DOT’s complete
Privacy Act Statement published in the

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Federal Register on April 11, 2000
(Volume 65, Number 70, Pages 19477–
78), or you may visit http://
www.regulations.gov/#!privacyNotice.
Based on the written record, FRA staff
will analyze the railroad decision and
make a recommendation to the OCRB.
The ORCB will determine whether the
denial or revocation of certification was
improper under the regulation. As
indicated in paragraph (a), it will be
FRA’s goal to issue OCRB decisions
within 180 days from the date FRA has
received all the information from the
parties. FRA’s ability to achieve that
goal will depend on the number of
petitions filed and agency resources
available to handle those petitions in
any given period. Further, that goal will
depend on whether FRA receives all
available evidence. If the petition and/
or railroad’s response do not contain all
available evidence, including but not
limited to, the complete hearing
transcript with exhibits and color copies
of all photographic evidence (if
available), then it is FRA’s intention that
the OCRB will render a decision within
180 days from the date that all available
evidence is received.
While the handling of petitions by
FRA will be the same under § 240.405
and this section, this section, unlike
§ 240.405, includes, in paragraphs (f)–
(j), the process and standards of review
that the OCRB will utilize when
considering a petition. Those standards
are the same standards used by the
LERB to review locomotive engineer
petitions. The standards were added to
this rule to address a concern of some
members of the Working Group that
railroads and petitioners did not know
what standard of review the OCRB
would use in considering petitions.
Like the LERB, the OCRB will only
determine whether a railroad’s decision
was based on an incorrect
determination. If a railroad conducted
hearing was so unfair that it causes a
petitioner substantial harm, the OCRB
could grant the petition; however, the
OCRB’s review is not intended to
correct all procedural wrongs
committed by a railroad. Also like the
LERB, the decision-making power of the
OCRB is limited to approving the
railroad decision, overturning the
railroad decision, or returning the case
to the railroad for additional fact
finding. The OCRB is not empowered to
mitigate the consequences of a railroad
decision, if the decision was valid under
this regulation. The OCRB is only
empowered to make determinations
concerning qualifications under this
regulation. The contractual
consequences, if any, of these
determinations would have to be

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resolved under dispute resolution
mechanisms that do not directly involve
FRA. For example, FRA cannot order a
railroad to alter its seniority rosters or
make an award of back pay to
accommodate a finding that a railroad
wrongfully denied certification.
Interested parties should note that
promulgation of this rule necessarily
requires the OCRB and LERB to
determine whether a railroad revoked
the correct certificate of a person who
holds both an engineer and conductor
certification. For example, in a case in
which a railroad finds that a person,
who holds both a conductor and
engineer certification, violates a railroad
rule involving a failure to comply with
the provisions of 49 CFR 218.99 (i.e., a
part 218, subpart F violation) but
revoked that person’s engineer
certification, the OCRB, if petitioned,
would have to find that the revocation
decision was improper because,
currently, an engineer cannot have his
or her part 240 certification revoked for
violations of part 218, subpart F.
Paragraph (l) of this section requires
the OCRB’s written decision to be
served on the petitioner, including the
petitioner’s representative, if any, and
the railroad. Moreover, the paragraph
does not contain a requirement that
every decision include findings of fact
which may not be appropriate or
relevant to some decisions.
Section 242.507 Request for a Hearing
This section, which parallels 49 CFR
240.407, provides that a party who has
been adversely affected by an OCRB
decision will have the opportunity to
request an administrative proceeding as
prescribed in § 242.509. In addition, this
section details the requirements for
requesting such a proceeding.
Paragraph (c) of this section provides
that a party who fails to request an
administrative hearing in a timely
fashion will lose the right to further
administrative review and the OCRB’s
decision will constitute final agency
action.
As noted in paragraph (e) of this
section, FRA will not schedule hearings
or set an agenda for the proceeding. FRA
will merely arrange for the appointment
of a presiding officer and it will be the
presiding officer’s duty to schedule a
hearing for the earliest practicable date.
Section 242.509 Hearings
This section, which parallels 49 CFR
240.409, describes the authority of the
presiding officer to conduct an
administrative hearing and the
procedures by which the administrative
hearing will be governed. Like
§ 240.409, the proceeding provided by

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69833

this section will afford an aggrieved
party a de novo hearing at which the
relevant facts will be adduced and the
correct application of this part will be
determined.
In instances when the issues are
purely legal, or when only limited
factual matters are necessary to
determine issues, paragraph (c) of this
section provides that the presiding
officer may determine the issues
following an evidentiary hearing only
on the disputed factual issues, if any.
The presiding officer can therefore grant
full or partial summary judgment.
Paragraph (d) of this section provides
that the presiding officer may authorize
discovery. It also authorizes the
presiding officer to sanction willful
noncompliance with permissible
discovery requests. Paragraph (e)
requires that documents in the nature of
pleadings be signed. This signature will
constitute a certification of factual and
legal good faith. Paragraph (f) provides
the requirement for service and for
certificates of service. The presiding
officer’s authority to address
noncompliance with a law or directive
is expressed in paragraph (g). This
provision is intended to ensure that the
presiding officer will have the authority
to control the proceeding so that an
efficient and fair hearing will result.
Paragraph (h) states the right of each
party to appear and be represented.
Paragraph (i) protects witnesses by
ensuring their right of representation
and their right to have their
representative question them. Paragraph
(j) allows any party to request
consolidation or separation of hearings
of two or more petitions when to do so
would be appropriate under established
jurisprudential standards. This option is
intended to allow more efficient
determination of petitions in cases
where a joint hearing would be
advantageous.
Under paragraph (k), the presiding
officer could, with certain exceptions,
extend periods for action required in the
proceedings, provided substantial
prejudice would not result to a party.
The authority to deny a request for
extension submitted after the expiration
of the period involved shows the
preference for use of this authority as a
tool to alleviate unforeseen or
unnecessary burdens, and not as a
remedy for inexcusable neglect.
Paragraph (l) establishes a motion as
the appropriate method for requesting
action by the presiding officer. This
paragraph also provides the form of
motions and the response period for
written motions.
Paragraph (m) provides rules for the
mode of hearing and record

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maintenance, including requirements
for sworn testimony, verbatim record
(including oral testimony and
argument), and inclusion of evidence or
substitutes therefor in the record.
Paragraph (n) directs the presiding
officer to employ specific rules of
evidence as guidelines for the
introduction of evidence and permits
the presiding officer to determine what
evidence may be received. Further,
paragraph (o) provides additional
powers the presiding officer may
exercise during the proceedings.
Paragraph (p) provides that the
petitioner before the OCRB, the railroad
that took the certification action at
issue, and the FRA are mandatory
parties to the administrative proceeding.
Paragraph (q) requires the party
requesting the hearing to carry the
burden of proof. The actions of the
conductor and the railroad will be at
issue in the hearing—not the actions of
the OCRB. Thus, it is appropriate that
the conductor and the railroad fill the
roles of petitioner and respondent for
the hearing. In addition, the burden
each party will have if they were the
hearing petitioner is articulated in
paragraph (q).
Paragraph (r) provides that FRA will
be a mandatory party in the proceeding.
In all proceedings, FRA will initially be
considered a respondent. If, based on
evidence acquired after the filing of a
petition for hearing, FRA were to
conclude that the public interest in
safety was more closely aligned with the
position of the petitioner than the
respondent, FRA can request that the
hearing officer exercise his or her
inherent authority to realign parties for
good cause shown. However, FRA
anticipates that such a situation would
occur rarely, if ever. Since FRA could
realign itself, FRA wants to caution
future parties that FRA represents the
interests of the government; hence,
parties and their representatives will
have to be careful to avoid ethical
dilemmas that might arise due to FRA’s
ability to realign itself.
Paragraphs (s) through (u) provide the
presiding officer with authority to close
the record and issue a decision.
Section 242.511 Appeals
This section, derived from 49 CFR
240.411, permits any party aggrieved by
the presiding officer’s decision to file an
appeal with the FRA Administrator.
Paragraph (a) provides that if no appeal
is timely filed, the presiding officer’s
decision will constitute final agency
action.
Paragraphs (b) through (f) allow for a
reply to the appeal and describe the
Administrator’s authority to conduct the

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proceedings. Interested parties should
note that the phrase ‘‘except where the
terms of the Administrator’s decision
(for example, remanding a case to the
presiding officer) show that the parties’
administrative remedies have not been
exhausted’’ in paragraph (e) of this
section is included in this rule so that
parties understand that a remand, or
other intermediate decision, will not
constitute final agency action. The
inclusion of this phrase is made in
deference to those parties that are not
represented by an attorney or who might
otherwise be confused as to whether any
action taken by the Administrator
should be considered final agency
action.
Appendices
FRA has included four appendices
with this rule. Appendix A contains a
civil penalty schedule similar to those
that FRA has issued for all of its existing
rules.
Appendix B provides both the
organizational requirements and a
narrative description of the submission
required under §§ 242.101 and 242.103.
FRA is not requiring railroad
submissions to be made on a Federally
mandated form. Instead, FRA is
prescribing only minimal constraints on
the organization and manner of
presenting information. FRA requires
that the submission be divided into six
sections. FRA requires that each section
deal with a different subject matter and
that the railroad identify the appropriate
person to be contacted in the event FRA
needs to discuss some aspect of the
railroad’s program. While Appendix B is
derived from Appendix B to part 240,
one major difference is that Appendix B
of part 242 makes clear that, pursuant to
§ 242.103, a railroad must serve a copy
of its submission on the president of
each labor organization that represents
the railroad’s employees subject to part
242.
Appendix B provides the railroads
with the option to file their program
submissions electronically. FRA intends
to create a secure document submission
site and will need basic information
from each company before setting up
the user’s account. In order to provide
secure access, information regarding the
points of contact is required. It is
anticipated that FRA will be able to
approve or disapprove all or part of a
program and generate automated
notifications by email to a railroad’s
points of contact. Thus, FRA wants each
point of contact to understand that by
providing any email addresses, the
railroad is consenting to receive
approval and disapproval notices from
FRA by email. Railroads that allow

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notice from FRA by email would gain
the benefit of receiving such notices
quickly and efficiently.
Those railroads that choose to submit
printed materials to FRA must deliver
them directly to the specified address.
Some railroads may choose to deliver a
CD, DVD, or other electronic storage
format to FRA rather than requesting
access to upload the documents directly
to the secure electronic database.
Although that will be an acceptable
method of submission, FRA would
encourage each railroad to utilize the
electronic submission capabilities of the
system. Of course, if FRA does not have
the capability to read the type of
electronic storage format sent, FRA can
reject the submission.
FRA may be able to develop its secure
document submission site so that
confidential materials are identified and
not shared with the general public.
However, FRA does not expect the
information in a program to be of such
a confidential or proprietary nature,
particularly since each railroad is
required to share the program
submission, resubmission, or material
modification with the president of each
labor organization that represents the
railroad’s certified conductors. See
242.103(c). Accordingly, FRA does not
at this time believe it is necessary to
develop a document submission system
which addresses confidential materials
at this time.
Appendix C, derived from Appendix
C to part 240, provides a narrative
discussion of the procedures that a
person seeking certification or
recertification will have to follow to
furnish a railroad with information
concerning his or her motor vehicle
driving record.
Appendix D, derived from Appendix
F to part 240, provides a narrative
discussion of the procedures that a
railroad is required to employ in
administering the vision and hearing
requirements of § 242.117. The main
issue addressed in this Appendix is the
acceptable test methods for determining
whether a person has the ability to
recognize and distinguish among the
colors used as signals in the railroad
industry.
Appendix E provides a table
describing the application of revocable
events. The table lists: The revocation
periods; whether a person would be
eligible for a reduction of the revocation
period; and whether a person who is
certified as both a conductor and an
engineer could work in either position
following a certification revocation.

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A. Executive Order 12866 and DOT
Regulatory Policies and Procedures
This final rule has been evaluated in
accordance with existing policies and
procedures and determined to be nonsignificant under both Executive Order
12866 and DOT policies and
procedures. See 44 FR 11034; February
26, 1979. FRA has prepared and placed
in the docket a regulatory impact
analysis addressing the economic
impact of this final rule.
As part of the regulatory impact
analysis, FRA has assessed quantitative
measurements of the cost streams
expected to result from the adoption of
this final rule. For the twenty-year
period analyzed, the estimated

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quantified cost imposed on industry
totals $86.3 million with a present value
(PV, 7%) of $43.2 million. In addition,
FRA would incur administrative costs
totaling about $15.2 million, with a PV
of $7.6 million. Although there are
numerous costs or burdens in this final
rule, the requirements that are expected
to impose the largest burdens relate to
the initial and periodic training,
knowledge testing, and operational
testing. In addition, the dispute
resolution process associated with the
denial and revocation of conductor
certification would be a new
requirement that would impose burdens
on the railroad industry and FRA.
As part of the regulatory impact
analysis, FRA has explained what the

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likely benefits for this final rule would
be, and provided numerical assessments
of the potential value of such benefits.
The final rule is expected to improve
railroad safety by ensuring that all trains
have certified and trained conductors.
Thus, in general, the final rule should
decrease train accidents and incidents
and associated casualties and damages.
FRA also anticipates that this regulation
will decrease switching operation
casualties and human factor-caused
train crew injuries. FRA believes the
value of the anticipated safety benefits
will meet or exceed the cost of
implementing the final rule.
The table below presents the cost
associated with implementation of the
final rule.

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VI. Regulatory Impact and Notices

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

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‘‘small business concern’’ under Section
3 of the Small Business Act. This
includes any small business concern
that is independently owned and
operated, and is not dominant in its
field of operation. Section 601(4)
includes nonprofit enterprises that are
independently owned and operated, and
are not dominant in their field of
operations within the definition of
‘‘small entities.’’ Additionally, 5 U.S.C.
601(5) defines ‘‘small entities’’ as
governments of cities, counties, towns,
townships, villages, school districts, or
special districts with populations less
than 50,000.
The U.S. Small Business
Administration (SBA) stipulates ‘‘size
standards’’ for small entities. It provides
that the largest a for-profit railroad
business firm may be (and still classify
as a ‘‘small entity’’) is 1,500 employees
for ‘‘line-haul operating’’ railroads, and
500 employees for ‘‘shortline operating’’
railroads.
Federal agencies may adopt their own
size standards for small entities in
consultation with SBA and in
conjunction with public comment.
Pursuant to the authority provided to it
by SBA, FRA has published a final
policy, which formally establishes small
entities as railroads that meet the line
haulage revenue requirements of a Class
III railroad. Currently, the revenue
requirements are $20 million or less in
annual operating revenue, adjusted
annually for inflation. The $20 million
limit (adjusted annually for inflation) is
based on the Surface Transportation
Board’s threshold of a Class III railroad
carrier, which is adjusted by applying
the railroad revenue deflator
adjustment. The same dollar limit on
revenues is established to determine
whether a railroad shipper or contractor
is a small entity. Governments of cities,
counties, towns, townships, villages,
school districts, or special districts with
populations less than 50,000 are also
considered small entities under FRA’s
policy. FRA proposed using this
definition for this rulemaking in the
proposed rule. No comments were
received pertinent to its use.
2. Small Railroads
There are approximately 682 railroads
meeting the definition of ‘‘small entity’’
as described above. FRA estimates that
approximately 627 of these small
entities, would be impacted by this final
rule. FRA estimates that approximately
55 of the 682 small railroads would not
be impacted because they would be
exempt from the final rule. Note,
however, that approximately 125 of the
small railroads that would be impacted
are subsidiaries of large shortline

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holding companies with the expertise
and resources comparable to larger
railroads. Many small railroads that will
be impacted by this rulemaking are
members of the American Shortline and
Regional Railroad Association
(ASLRRA), which actively participated
in the development of this regulatory
action. It is very likely that the ASLRRA
will develop a generic conductor
certification program for their members
to use. FRA would assist with this
effort.
Small railroads will be required to
have written programs for certifying
conductors in accordance with this
regulation. Given the nature of how
most small railroads operate and the fact
that they operate fewer types and
numbers of trains than larger railroads,
this regulation should be less
burdensome for small railroads than
larger railroads. Thus, given the more
limited territory, equipment types,
number of conductors and/or the
commodities transported by small
railroads relative to Class II and Class I
railroads, implementing and
maintaining a program for the
certification of conductors would be
significantly less burdensome for small
railroads both overall and on a per
conductor basis. While FRA does
recognize that some small railroads do
not currently have formal conductor
training and certification programs, FRA
believes that most small railroads
currently have informal programs with
the necessary elements of a formal
program. FRA requested information
regarding the number and type of Class
III railroads that do not have formal
conductor training and certification
programs as well as the number of
conductors employed by such railroads
in the Notice of Proposed Rulemaking
(NPRM) and Initial Regulatory
Flexibility Assessment (IRFA).
However, FRA did not receive
comments specific to that request.
In general, this final rule will likely
burden all small railroads that are not
exempt from its scope or application.
However, it would significantly burden
few if any, of these entities. FRA invited
commenters to submit information that
might assist us in assessing the cost
impacts on small railroads in the NPRM.
However, FRA only received comments
from one commenter addressing the cost
to small railroads. The ASLRRA noted
in its comments of January 10, 2011,
that it was working to generate data and
if and when it was available, would post
it to the docket. FRA has received no
additional data on this issue.
FRA disagrees with ASLRRA’s cost
assessment in their comments. In
general, it should be noted that the final

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Federal Register / Vol. 76, No. 217 / Wednesday, November 9, 2011 / Rules and Regulations
rule is not a ‘‘stand alone’’ regulation. It
is conjoined with numerous existing
regulations, such as parts 217 and 218.
However, the shortline railroads have
been responsible for complying with the
Locomotive Engineering Certification
Regulation (49 CFR part 240) for over 20
years. Many of the compliance
requirements in this final rule are
identical or very similar to part 240.
Thus, these railroads likely already have
assigned personnel and filing
procedures in place to comply with this
final rule. Since this final rule requires
three of the four certification
components required by part 240
(hearing and visual acuity, motor
vehicle operator history check, and
knowledge test), the shortline railroads
would only need to satisfy these
requirements once for individuals who
will work as both a conductor and an
engineer. FRA believes that many of the
Train and Engine employees on
shortlines will be dual certified. Thus,
these employees can work either a
conductor’s position or an engineer’s
position as service demands.
The ASLRRA commented that the
proposed rule will also impose
significant new costs on small railroads.
In addition, ASLRRA noted that
‘‘appropriate and ongoing training is
[the] centerpiece of the proposed
conductor certification rules, and
certification itself is a reflection that the
conductor has been properly trained
and has demonstrated the ability to
apply that training in the safe
performance of job duties.’’ However,
FRA notes that the conductor training
required by this final rule should not be
new to shortlines. Most, if not all,
shortlines currently afford training to
employees who fill a conductor’s
position. A majority of this training has
been in the form of on-the-job (OJT)
training followed by formal or informal
classroom training on safety and
operating rules. Historically, OJT is peer
training provided by a qualified, per this
rulemaking, certified employee. Hence,
there is no major change to existing
practices or additional cost, excluding
the time required to compile a list of
qualified instructors. In addition, the
final rule has placed a greater emphasis
on OJT and removed the task analysis
requirement in the training section.
Thus, the training provided by most
small railroads would not change much
if any under the final rule. It will likely
be more formalized and ensure that
conductors receive appropriate training
in all areas of responsibility. Thus, the
additional cost for training should not
be significant. FRA has met with and
will continue to work with ASLRRA to

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develop a generic conductor
certification program that can be used
for small railroads. This should help to
reduce the cost of conductor
certification programs and the cost of
training development for small
railroads. As noted above, this final rule
is complementary with several other
FRA regulations. It is conjoined with
Section 217.9, Subpart F of Part 218,
Section 238.109, and Section
239.101(a)(2). Thus, there will be cost
savings due to the fact that some of its
requirements are current burdens under
other federal regulations.
The ASLRRA’s comments noted that
‘‘one training cost for some small
railroads which FRA has completely
dismissed is the cost of training Remote
Control Operators (RCO’s).’’ It should be
noted that RCO operation is a practice
that provides value based on the
reduction of train crew numbers.
ASLRRA is correct that FRA dismissed
the costs related to the RCO in the
Initial Regulatory Flexibility
Assessment (IRFA) and the Regulatory
Impact Assessment (RIA) to the NPRM.
FRA’s IRFA and RIA dismissed such
costs for all railroads, including small
railroads, due to the fact that there are
no FRA regulations requiring the use of
remote controlled locomotives (RCL).
The use of RCL by any railroad is a
choice and usually a business decision.
Training for RCO is covered in part 240.
Multiple certifications are addressed in
this final rule and the only difference
regarding the locomotive engineer
training and the conductor training are
the additional modules that cover
Subpart F of part 218, and part 239.
The ASLRRA also noted concern over
the economic impact of decertifying a
conductor on a small railroad with
limited personnel. While FRA
recognizes ASLRRA’s concerns, FRA
notes that small railroads have
successfully dealt with a similar issue
under part 240 for many years without
excessive financial burdens being
incurred. Further, FRA notes that there
is a significant safety concern involved
with treating a conductor for a small
railroad differently than a conductor for
a large railroad with respect to
certificate revocation. Such treatment
would result in the disparate treatment
of conductors across the three classes of
railroads (i.e., a conductor for a Class I
railroad would not be permitted to serve
as a conductor following a decertifiable
event whereas a conductor on a Class III
railroad, who was involved in the same
type of decertifiable event, may be
permitted to serve as a conductor) even
thought there is no less a safety risk if
a person is a conductor for a Class III
railroad as opposed to a conductor for

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a Class I or Class II railroad. Moreover,
treating small railroads differently in
this instance would leave open the
possibility that a conductor involved in
a revocable event on a Class III railroad
could immediately go to work for a
Class I railroad due to the fact that
restrictions were placed on the
conductor’s certificate rather than
having the certificate revoked.
3. Economic Impacts on Small Entities
(Railroads)
This certification is not intended to be
a stand-alone document. In order to get
a better understanding of the total costs
for the railroad industry, which forms
the base for these estimates or more cost
detail on any specific requirement, a
review of FRA’s RIA is recommended.
FRA has placed a copy of the RIA in the
docket for this rulemaking.
Based on information currently
available, FRA estimates that about 8
percent of the total railroad cost
associated with implementing the final
rule will be borne by small entities. FRA
has estimated the total cost for this
regulation to be $86.3 million for the
railroad industry. FRA estimates that
$6.4 million of this burden will be borne
by small railroads. In addition, FRA will
incur costs totaling approximately $15.2
million. FRA also estimates that small
railroads comprise over 90 percent of
the number of entities impacted directly
by this regulation. Small railroads
generally have fewer conductors and
operate over smaller territories allowing
them to meet the requirements at lower
overall cost as well as lower cost per
conductor. Thus, although a substantial
number of small entities will likely be
impacted, the economic impact on them
will likely not be significant.
4. Significant Economic Impact Criteria
Previously, FRA sampled small
railroad and found that revenue
averaged approximately $4.7 million
(not discounted) in 2006. One percent of
average annual revenue per small
railroad is $47,000. FRA estimates that
the average small railroad will spend
less than $11,000 over 20 years to
comply with the additional
requirements of this final rule. Based on
this, FRA concludes that the expected
burden of this final rule will not have
a significant impact on the competitive
position of small entities, or on the
small entity segment of the railroad
industry as a whole.
5. Substantial Number Criteria
This final rule will likely burden all
small railroads that are not exempt from
its scope or application. Thus, as noted

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above this rule will impact a substantial
number of small railroads.
6. Certification

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Pursuant to the Regulatory Flexibility
Act (5 U.S.C. 605(b)), FRA certifies that
this final rule will not have a significant
impact on a substantial number of small

entities. Although a substantial number
of small railroads will be affected by
this final rule, none of these entities will
be significantly impacted.
C. Paperwork Reduction Act
The information collection
requirements in this final rule are being

submitted for approval to the Office of
Management and Budget (OMB) under
the Paperwork Reduction Act of 1995,
44 U.S.C. 3501 et seq. The sections that
contain the new information collection
requirements are duly designated, and
the estimated time to fulfill each
requirement is as follows:

CFR Section/subject

Respondent universe

Total annual responses

Average time per
response

242.9—Waivers—Petitions ..................................
242.101/103—Certification Program: Written
Program for Certifying Conductors.
Approval of Design of Programs:
—Certification Programs for New RRs ........
—Conductor Certification Submission Copies to Rail Labor Organizations.
—Affirmative Statements that Copies of
Submissions Sent to RLOs.
—Certified Comments on Submissions .......
—Certification Programs Disapproved by
FRA and then Revised.
—Revised Certification Programs Still Not
Conforming and Then Resubmitted.
—Certification Programs Materially Modified
After Initial FRA Approval.
—Materially
Modified
Programs
Disapproved by FRA & Then Revised.
—Revised programs Disapproved and Then
Resubmitted.
242.105—Implementation Schedule:
—Designation of Certified Conductors
(Class I Railroads).
—Issued Certificates (1/3 each year) ...........
—Designation of Certified Conductors
(Class II and III Railroads).
—Issued Certificates (1/3 each year) ...........
—Requests for Delayed Certification ...........
—Testing/Evaluation to Certify Persons ......
—Testing/Evaluation to Certify Conductors
(Class III).
242.107—Types of Service—Reclassification to
Diff. Type of Cert.
242.109—Opportunity by RRs for Certification
Candidates to Review and Comment on Prior
Safety Record.
242.111—Prior Safety Conduct As Motor Vehicle Operator:
—Eligibility Determinations ...........................
—Initial Certification for 60 Days ..................
—Recertification for 60 Days .......................
—Driver Info. Not Provided and Request for
Waiver by Persons/RR.
—Request to Obtain Driver’s License Information From Licensing Agency.
—Requests for Additional Information From
Licensing Agency.
—Notification to RR by Persons of Never
Having a License.
—Report of Motor Vehicle Incidents ............
—Evaluation of Driving Record ....................
—DAC Referral by RR After Report of Driving Drug/Alcohol Incident.
—DAC Request and Supply by Persons of
Prior Counseling or Treatment.
—Conditional Certifications Recommended
by DAC.
242.113—Prior Safety Conduct As Employee of
a Different Railroad.
242.115—Substance Abuse Disorders and Alcohol Drug Rules Compliance:
—Meeting Section’s Eligibility Reqmnt .........

677 railroads ................
677 railroads ................

10 petitions ...................
678 programs ...............

3 hours .........................
160 hrs./581 .................
Hrs./15.5 hrs ................

30
16,799

6 railroads ....................
677 railroads ................

6 new prog ...................
200 copies ....................

15.5 hours ....................
15 minutes ...................

93
50

677 railroads ................

200 statements ............

15 minutes ...................

50

677 railroads ................
677 railroads ................

35 comments ...............
10 programs .................

4 hours .........................
4 hours .........................

140
40

677 railroads ................

3 programs ...................

2 hours .........................

6

677 railroads ................

50 programs .................

2 hours .........................

100

677 railroads ................

3 programs ...................

2 hours .........................

6

677 railroads ................

1 program .....................

2 hours .........................

2

677 railroads ................

48,600 designations .....

5 minutes .....................

4,050

677 railroads ................
677 railroads ................

16,200 certif .................
5,400 design ................

1 hour ...........................
5 minutes .....................

16,200
450

677
677
677
627

................
................
................
................

1,800 certif ...................
5,000 request ...............
1,000 tests ...................
100 tests ......................

1 hour ...........................
30 minutes ...................
560 hours .....................
400 hours .....................

1,800
2,500
560,000
40,000

677 railroads ................

25 conductor Tests/
Evaluations.
200 records + 200 comment.

8 hours .........................

200

30 minutes + 10 minutes.

133

...............
...............
...............
...............

1,100 dtrmin .................
75 certific ......................
125 recertif ...................
25 requests ..................

10 minutes ...................
10 minutes ...................
10 minutes ...................
2 hours .........................

183
13
21
50

54,000 Conductors/Persons.
54,000 Conductors/Persons.
54,000 Conductors/Persons.
54,000 Conductors .......
54,000 conductors .......
677 Railroads ...............

18,000 req ....................

15 minutes ...................

4,500

25 requests ..................

10 minutes ...................

4

2 notification .................

10 minutes ...................

.33

200 reports ...................
18,000 eval ..................
180 referrals .................

10 minutes ...................
15 minutes ...................
5 minutes .....................

33
4,500
15

677 Railroads ...............

5 requests/Records ......

30 minutes ...................

3

677 Railroads ...............

50 certificat ...................

4 hours .........................

200

54,000 conductors .......

360 requests/360
records.

15 minutes + 30 minutes.

270

54,000 conductors .......

18,000 determination ...

2 minutes .....................

600

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677 Railroads ...............

677
677
677
677

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69839

CFR Section/subject

Respondent universe

Total annual responses

Average time per
response

—Written Documents from DAC Person Not
Affected by a Disorder.
—Self-Referral by Conductors for Substance Abuse Counseling.
—Certification Reviews for Occurrence/Documentation of Prior Alcohol/Drug Conduct
by Persons/Conductors.
—Written Determination That Most Recent
Incident Has Occurred.
—Notification to Person That Recertification
Has Been Denied.
—Persons/Conductors Waiving Investigation
242.117—Vision and Hearing Acuity:
—Determination Vision Standards Met ........
—Determination Hearing Stds. Met .............
—Additional Gap Hearing Tests ...................
—Medical Examiner Certificate that Person
Has Been Examined/Passed Test.
—Document Standards Met with Conditions
—Document Standards Not Met ..................
—Notation Person Needs Corrective ...........
Device (Glasses/Hearing Aid):
—Request for Further Medical Evaluation
for New Determination.
—Request for Second Retest and Another
Medical Evaluation.
—Copies of part 242 Provided to RR Medical Examiners.
—Consultations by Medical Examiners with
Railroad Officer and Issue of Conditional
Certification.
—Notification by Certified Conductor of Deterioration of Vision/Hearing.
242.119—Training:
—Completion of Training Program ...............
—Modification to Training Program ..............
—Completion of Training Program by Conductors/Persons + Documents.
—Modification of Training Program Due to
New Laws/Regulations.
—Consultation with Supervisory Employee
During Written Test.
—Familiarization Training Upon Transfer of
RR Ownership.
—Continuing Education of Conductors ........

677 railroads ................

400 docs ......................

30 minutes ...................

200

54,000 conductors .......

10 self-referrals ............

10 minutes ...................

2

677 railroads ................

18,000 reviews .............

10 minutes ...................

3,000

677 railroads ................

150 determin ................

60 minutes ...................

150

677 railroads ................

150 notific .....................

10 minutes ...................

25

54,000 Conductors .......

100 waivers ..................

10 minutes ...................

17

677
677
677
677

................
................
................
................

18,000 deter .................
18,000 deter .................
200 deter ......................
18,000 certif .................

20 minutes ...................
20 minutes ...................
20 minutes ...................
2 hours .........................

6,000
6,000
67
36,000

677 railroads ................
677 railroads ................
677 railroads ................

50 document ................
25 document ................
10,000 notes ................

30 minutes ...................
30 minutes ...................
10 minutes ...................

25
13
1,667

677 railroads ................

60 minutes + 2 hours ...

300

677 railroads ................

100 request + 100
Evals.
25 requests + 25 Evals.

60 minutes + 2 hours ...

75

677 railroads ................

677 copies ....................

60 minutes ...................

677

677 railroads ................

100 consults + 100
certif.

2 hours + 10 minutes ...

217

677 railroads ................

10 notific. ......................

10 minutes ...................

2

677 railroads ................
677 railroads ................
54,000 Conductors .......

36 hours/70 hrs/3 hrs ...
12 hrs/20 hrs/30 min ....
1 hour/560 hours ..........

3,751
34
10,098,000

677 railroads ................

678 Program ................
678 Program ................
18,000 Docs/18,000
Cond.
30 programs .................

4 hours .........................

120

677 railroads ................

1,000 consult ................

15 minutes ...................

250

677 railroads ................

10 trained Conductors

8 hours .........................

80

677 railroads ................

18,000 cont. trained
cond.

8 hours .........................

144,000

677 railroads ................
677 railroads ................

18,000 deter. ................
500 Retests ..................

30 minutes ...................
8 hours .........................

9,000
4,000

677 railroads ................

18,000 tests + 18,000
recd.
1,000 tests + 1,000
records.

10 minutes + 5 minutes

4,500

10 minutes + 5 minutes

250

677 railroads ................

100 determin ................

30 minutes ...................

50

677 railroads ................
677 railroads ................

200 determin ................
18,000 recds ................

30 minutes ...................
15 minutes ...................

100
4,500

677 railroads ................
677 railroads ................

20 records ....................
625 lists ........................

60 minutes ...................
60 minutes ...................

20
625

677 railroads ................
677 railroads ................

2,000 request/displays
1,000 notif ....................

2 minutes .....................
10 minutes ...................

67
167

677 railroads ................

500 certific ....................

5 minutes .....................

42

677 railroads ................

5 notification .................

10 minutes ...................

1

242.121—Knowledge Testing:
—Determining Eligibility ................................
—Retests/Re-Examinations ..........................
242.123—Monitoring Operational Performance:
—Unannounced Compliance Tests and
Records.
—Return to Service That Requires Unannounced Compliance Test/Record.
242.125/127—Certificate Determination by Other
Railroads/Other Country:
—Determination Made by RR Relying on
Another RR’s Certification.
—Determination by Another Country ...........
242.203—Retaining Information Supporting Determination—Records:
—Amended Electronic Records ...................
242.205—List of Certified Conductors Working
in Joint Territory.
242.209—Maintenance of Certificates:
—Request to Display Certificate ..................
—Notification That Request to Serve Exceeds Certification.
242.211—Replacement of Certificates ................
242.213—Multiple Certificates:
—Notification to Engineer That No Conductor Is On Train.

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CFR Section/subject

Respondent universe

Total annual responses

Average time per
response

—Notification of Denial of Certification by
Individuals Holding Multiple Certifications.
242.215—RR Oversight Responsibility:
—RR Review and Analysis of Administration of Certification Program.
—Report of Findings by RR to FRA ............
242.301—Determinations—Territorial Qualification and Joint Operations.
—Notification by Persons Who Do Not Meet
Territorial Qualification.
242.401—Notification to Candidate of Information That Forms Basis for Denying Certification and Candidate Response.
—Written Notification of Denial of Certification.
242.403/405—Criteria for Revoking Certification:
Periods of Ineligibility:
—Review of Compliance Conduct ...............
—Written Determination That the Most Recent Incident Has Occurred.
242.407—Process for Revoking Certification:
—Revocation for Violations of Section
242.115(e).
—Immediate Suspension of Certificate ........
—Determinations Based on RR Hearing
Record.
—Hearing Record .........................................
—Written Decisions by RR Official ..............
—Service of Written Decision on Employee
by RR + RR Service Proof.
—Written Waiver of Right to Hearing ...........
—Revocation of Certification Based on Information That Another Railroad Has
Done So.
—Placing Relevant Information in Record
Prior to Suspending Certification/Convening Hearing.

677 railroads ................

10 notific .......................

10 minutes ...................

2

677 railroads ................

44 reviews/Analyses ....

40 hours .......................

1,760

677 railroads ................
320 railroads ................

36 reports .....................
1,080 Deter ..................

4 hours .........................
15 minutes ...................

144
270

320 railroads ................

500 notific .....................

10 minutes ...................

83

677 railroads ................

40 notific + 40 responses.

60 minutes/60 minutes

80

677 railroads ................

40 notific .......................

60 minutes ...................

40

677 railroads ................
677 railroads ................

950 reviews ..................
950 determin ................

10 minutes ...................
60 minutes ...................

158
950

677 railroads ................

950 Revoked Certificates.
950 suspend Certificate
950 determin ................

8 hours .........................

7,600

1 hour ...........................
15 minutes ...................

950
238

950 records ..................
950 decions ..................
950 decisions + 950
proofs.
425 waivers ..................
15 revoked Certifications.

30 minutes ...................
2 hours .........................
10 minutes + 5 minutes

475
1,900
238

10 minutes ...................
10 minutes ...................

71
3

100 updated records ....

1 hour ...........................

100

All estimates include the time for
reviewing instructions; searching
existing data sources; gathering or
maintaining the needed data; and
reviewing the information. For
information or a copy of the paperwork
package submitted to OMB, contact
Mr. Robert Brogan at (202) 493–6292 or
Ms. Kimberly Toone at (202) 493–6132
or via email at the following addresses:
[email protected]; Kimberly.
[email protected].
Organizations and individuals
desiring to submit comments on the
collection of information requirements
should direct them to the Office of
Management and Budget, Office of
Information and Regulatory Affairs, 725
17th St. NW., Washington, DC 20503,
attn: FRA Desk Officer. Comments may
also be sent via email to the Office of
Management and Budget at the
following address: oira_submission@
omb.eop.gov.
OMB is required to make a decision
concerning the collection of information
requirements contained in this final rule
between 30 and 60 days after
publication of this document in the
Federal Register. Therefore, a comment

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677 railroads ................
677 railroads ................
677 railroads ................
677 railroads ................
677 railroads ................
54,000 Conductors .......
677 railroads ................
677 railroads ................

to OMB is best assured of having its full
effect if OMB receives it within 30 days
of publication.
FRA cannot impose a penalty on
persons for violating information
collection requirements which do not
display a current OMB control number,
if required. FRA intends to obtain
current OMB control numbers for any
new information collection
requirements resulting from this
rulemaking action prior to the effective
date of this final rule. The OMB control
number, when assigned, will be
announced by separate notice in the
Federal Register.
D. Federalism Implications
Executive Order 13132, ‘‘Federalism’’
(64 FR 43255, Aug. 10, 1999), requires
FRA to develop an accountable process
to ensure ‘‘meaningful and timely input
by State and local officials in the
development of regulatory policies that
have federalism implications.’’ ‘‘Policies
that have federalism implications’’ are
defined in the Executive Order to
include regulations that have
‘‘substantial direct effects on the States,
on the relationship between the national

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burden hours

government and the States, or on the
distribution of power and
responsibilities among the various
levels of government.’’ Under Executive
Order 13132, the agency may not issue
a regulation with federalism
implications that imposes substantial
direct compliance costs and that is not
required by statute, unless the Federal
government provides the funds
necessary to pay the direct compliance
costs incurred by State and local
governments, the agency consults with
State and local governments, or the
agency consults with State and local
government officials early in the process
of developing the regulation. Where a
regulation has federalism implications
and preempts State law, the agency
seeks to consult with State and local
officials in the process of developing the
regulation.
This rule has been analyzed in
accordance with the principles and
criteria contained in Executive Order
13132. The rule will not have a
substantial effect on the States or their
political subdivisions; it will not impose
any compliance costs; and it will not
affect the relationships between the

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Federal Register / Vol. 76, No. 217 / Wednesday, November 9, 2011 / Rules and Regulations
Federal government and the States or
their political subdivisions, or the
distribution of power and
responsibilities among the various
levels of government. Therefore, the
consultation and funding requirements
of Executive Order 13132 do not apply.
However, this rule could have
preemptive effect by operation of law
under certain provisions of the Federal
railroad safety statutes, specifically the
former Federal Railroad Safety Act of
1970, repealed and recodified at 49
U.S.C. 20106. Section 20106 provides
that States may not adopt or continue in
effect any law, regulation, or order
related to railroad safety or security that
covers the subject matter of a regulation
prescribed or order issued by the
Secretary of Transportation (with
respect to railroad safety matters) or the
Secretary of Homeland Security (with
respect to railroad security matters),
except when the State law, regulation,
or order qualifies under the ‘‘essentially
local safety or security hazard’’
exception to section 20106.
In sum, FRA has analyzed this rule in
accordance with the principles and
criteria contained in Executive Order
13132. As explained above, FRA has
determined that this rule has no
federalism implications, other than the
possible preemption of State laws under
Federal railroad safety statutes,
specifically 49 U.S.C. 20106.
Accordingly, FRA has determined that
preparation of a federalism summary
impact statement for this rule is not
required.

jlentini on DSK4TPTVN1PROD with RULES2

E. International Trade Impact
Assessment
The Trade Agreement Act of 1979
prohibits Federal agencies from
engaging in any standards or related
activities that create unnecessary
obstacles to the foreign commerce of the
United States. Legitimate domestic
objectives, such as safety, are not
considered unnecessary obstacles. The
statute also requires consideration of
international standards and where
appropriate, that they be the basis for
U.S. standards.
This rulemaking is purely domestic in
nature and is not expected to affect
trade opportunities for U.S. firms doing
business overseas or for foreign firms
doing business in the United States.
F. Environmental Impact
FRA has evaluated this rule in
accordance with its ‘‘Procedures for
Considering Environmental Impacts’’
(FRA’s Procedures) (64 FR 28545, May
26, 1999) as required by the National
Environmental Policy Act (42 U.S.C.
4321 et seq.), other environmental

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69841

statutes, Executive Orders, and related
regulatory requirements. FRA has
determined that this rule is not a major
FRA action (requiring the preparation of
an environmental impact statement or
environmental assessment) because it is
categorically excluded from detailed
environmental review pursuant to
section 4(c)(20) of FRA’s Procedures.
See 64 FR 28547 (May 26, 1999).
In accordance with section 4(c) and
(e) of FRA’s Procedures, the agency has
further concluded that no extraordinary
circumstances exist with respect to this
regulation that might trigger the need for
a more detailed environmental review.
As a result, FRA finds that this rule is
not a major Federal action significantly
affecting the quality of the human
environment.

rulemaking: (1)(i) That is a significant
regulatory action under Executive Order
12866 or any successor order, and (ii) is
likely to have a significant adverse effect
on the supply, distribution, or use of
energy; or (2) that is designated by the
Administrator of the Office of
Information and Regulatory Affairs as a
significant energy action. FRA has
evaluated this rule in accordance with
Executive Order 13211. FRA has
determined that this rule is not likely to
have a significant adverse effect on the
supply, distribution, or use of energy.
Consequently, FRA has determined that
this rule is not a ‘‘significant energy
action’’ within the meaning of Executive
Order 13211.

G. Unfunded Mandates Reform Act of
1995
Pursuant to Section 201 of the
Unfunded Mandates Reform Act of 1995
(Pub. L. 104–4, 2 U.S.C. 1531), each
Federal agency ‘‘shall, unless otherwise
prohibited by law, assess the effects of
Federal regulatory actions on State,
local, and tribal governments, and the
private sector (other than to the extent
that such regulations incorporate
requirements specifically set forth in
law).’’ Section 202 of the Act (2 U.S.C.
1532) further requires that ‘‘before
promulgating any general notice of
proposed rulemaking that is likely to
result in the promulgation of any rule
that includes any Federal mandate that
may result in expenditure by State,
local, and tribal governments, in the
aggregate, or by the private sector, of
$140,800,000 or more in any one year,
and before promulgating any final rule
for which a general notice of proposed
rulemaking was published, the agency
shall prepare a written statement’’
detailing the effect on State, local, and
tribal governments and the private
sector. The rule will not result in the
expenditure, in the aggregate, of
$140,800,000 or more in any one year,
and thus preparation of such a
statement is not required.

Anyone is able to search the
electronic form of all comments
received into any of DOT’s dockets by
the name of the individual submitting
the comment (or signing the comment,
if submitted on behalf of an association,
business, labor union, etc.). You may
review DOT’s complete Privacy Act
Statement published in the Federal
Register on April 11, 2000 (Volume 65,
Number 70, Pages 19477–78), or you
may visit http://www.regulations.gov/
#!privacyNotice.

H. Energy Impact
Executive Order 13211 requires
Federal agencies to prepare a Statement
of Energy Effects for any ‘‘significant
energy action.’’ 66 FR 28355 (May 22,
2001). Under the Executive Order, a
‘‘significant energy action’’ is defined as
any action by an agency (normally
published in the Federal Register) that
promulgates or is expected to lead to the
promulgation of a final rule or
regulation, including notices of inquiry,
advance notices of proposed
rulemaking, and notices of proposed

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I. Privacy Act

List of Subjects in 49 CFR Part 242
Administrative practice and
procedure, Conductor, Penalties,
Railroad employees, Railroad operating
procedures, Railroad safety, Reporting
and recordkeeping requirements.
The Rule
For the reasons discussed in the
preamble, FRA amends chapter II,
subtitle B of title 49 of the Code of
Federal Regulations by adding part 242
to read as follows:
PART 242—QUALIFICATION AND
CERTIFICATION OF CONDUCTORS
Subpart A—General
Sec.
242.1 Purpose and scope.
242.3 Application and responsibility for
compliance.
242.5 Effect and construction.
242.7 Definitions.
242.9 Waivers.
242.11 Penalties and consequences for
noncompliance.
242.13 Information collection requirements.
Subpart B—Program and Eligibility
Requirements
242.101 Certification program required.
242.103 Approval of design of individual
railroad programs by FRA.
242.105 Schedule for implementation.
242.107 Types of service.

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

242.109 Determinations required for
certification and recertification.
242.111 Prior safety conduct as motor
vehicle operator.
242.113 Prior safety conduct as an
employee of a different railroad.
242.115 Substance abuse disorders and
alcohol drug rules compliance.
242.117 Vision and hearing acuity.
242.119 Training.
242.121 Knowledge testing.
242.123 Monitoring operational
performance.
242.125 Certification determinations made
by other railroads.
242.127 Reliance on qualification
requirements of other countries.

(b) This part prescribes minimum
Federal safety standards for the
eligibility, training, testing, certification
and monitoring of all conductors to
whom it applies. This part does not
restrict a railroad from adopting and
enforcing additional or more stringent
requirements consistent with this part.
(c) The conductor certification
requirements prescribed in this part
apply to any person who meets the
definition of conductor contained in
§ 242.7, regardless of the fact that the
person may have a job classification title
other than that of conductor.

Subpart C—Administration of the
Certification Program
242.201 Time limitations for certification.
242.203 Retaining information supporting
determinations.
242.205 Identification of certified persons
and recordkeeping.
242.207 Certificate components.
242.209 Maintenance of the certificate.
242.211 Replacement of certificates.
242.213 Multiple certifications.
242.215 Railroad oversight responsibilities.

§ 242.3 Application and responsibility for
compliance.

Subpart D—Territorial Qualification and
Joint Operations
242.301 Requirements for territorial
qualification.
Subpart E—Denial and Revocation of
Certification
242.401 Denial of certification.
242.403 Criteria for revoking certification.
242.405 Periods of ineligibility.
242.407 Process for revoking certification.
Subpart F—Dispute Resolution Procedures
242.501 Review board established.
242.503 Petition requirements.
242.505 Processing certification review
petitions.
242.507 Request for a hearing.
242.509 Hearings.
242.511 Appeals.
Appendix A to Part 242—Schedule of Civil
Penalties
Appendix B to Part 242—Procedures for
Submission and Approval of Conductor
Certification Programs
Appendix C to Part 242—Procedures for
Obtaining and Evaluating Motor Vehicle
Driving Record Data
Appendix D to Part 242—Medical Standards
Guidelines
Appendix E to Part 242—Application of
Rrevocable Events
Authority: 49 U.S.C. 20103, 20107, 20135,
20138, 20162, 20163, 21301, 21304, 21311;
28 U.S.C. 2461, note; and 49 CFR 1.49.

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Subpart A—General
§ 242.1

Purpose and scope.

(a) The purpose of this part is to
ensure that only those persons who
meet minimum Federal safety standards
serve as conductors, to reduce the rate
and number of accidents and incidents
and to improve railroad safety.

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(a) This part applies to all railroads,
except:
(1) Railroads that operate only on
track inside an installation that is not
part of the general railroad system of
transportation (i.e., plant railroads, as
defined in § 242.7);
(2) Tourist, scenic, historic, or
excursion operations that are not part of
the general railroad system of
transportation as defined in § 242.7; or
(3) Rapid transit operations in an
urban area that are not connected to the
general railroad system of
transportation.
(b) Although the duties imposed by
this part are generally stated in terms of
the duty of a railroad, each person,
including a contractor for a railroad,
who performs any function covered by
this part, must perform that function in
accordance with this part.
§ 242.5

Effect and construction.

(a) FRA does not intend, by use of the
term conductor in this part, to alter the
terms, conditions, or interpretation of
existing collective bargaining
agreements that employ other job
classification titles when identifying a
person who is the crew member in
charge of a movement that requires a
locomotive engineer.
(b) FRA does not intend by issuance
of these regulations to alter the authority
of a railroad to initiate disciplinary
sanctions against its employees,
including managers and supervisors, in
the normal and customary manner,
including those contained in its
collective bargaining agreements.
(c) Except as provided in § 242.213,
nothing in this part shall be construed
to create or prohibit an eligibility or
entitlement to employment in other
service for the railroad as a result of
denial, suspension, or revocation of
certification under this part.
(d) Nothing in this part shall be
deemed to abridge any additional
procedural rights or remedies not

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inconsistent with this part that are
available to the employee under a
collective bargaining agreement, the
Railway Labor Act, or (with respect to
employment at will) at common law
with respect to removal from service or
other adverse action taken as a
consequence of this part.
§ 242.7

Definitions.

As used in this part—
Administrator means the
Administrator of the FRA or the
Administrator’s delegate.
Alcohol means ethyl alcohol (ethanol)
and includes use or possession of any
beverage, mixture, or preparation
containing ethyl alcohol.
Conductor means the crewmember in
charge of a ‘‘train or yard crew’’ as
defined in part 218 of this chapter. See
also the definition of ‘‘passenger
conductor’’ in this section.
Controlled substance has the meaning
assigned by 21 U.S.C. 802 and includes
all substances listed on Schedules I
through V as they may be revised from
time to time (21 CFR parts 1301–1316).
Drug means any substance (other than
alcohol) that has known mind or
function-altering effects on a human
subject, specifically including any
psychoactive substance and including,
but not limited to, controlled
substances.
Drug and alcohol counselor (DAC)
means a person who meets the
credentialing and qualification
requirements of a ‘‘Substance Abuse
Professional’’ (SAP), as provided in 49
CFR part 40.
Dual purpose vehicle means a piece of
on-track equipment that is capable of
moving railroad rolling stock and may
also function as roadway maintenance
equipment.
File, filed and filing mean submission
of a document under this part on the
date when the Docket Clerk receives it,
or if sent by mail, the date mailing was
completed.
FRA means the Federal Railroad
Administration.
FRA representative means the FRA
Associate Administrator for Railroad
Safety/Chief Safety Officer and the
Associate Administrator’s delegate,
including any safety inspector
employed by the Federal Railroad
Administration and any qualified state
railroad safety inspector acting under
part 212 of this chapter.
Ineligible or ineligibility means that a
person is legally disqualified from
serving as a certified conductor. The
term covers a number of circumstances
in which a person may not serve as a
certified conductor. Revocation of
certification pursuant to § 242.407 and

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denial of certification pursuant to
§ 242.401 are two examples in which a
person would be ineligible to serve as a
conductor. A period of ineligibility may
end when a condition or conditions are
met. For example, when a person meets
the conditions to serve as a conductor
following an alcohol or drug violation
pursuant to § 242.115.
Job aid means information regarding
other than main track physical
characteristics that supplements the
operating instructions of the territory
over which the locomotive or train
movement will occur. See definitions of
‘‘main track’’ and ‘‘physical
characteristics’’ in this section. A job aid
may consist of training on the territory
pursuant to § 242.119, maps, charts or
visual aids of the territory, or a person
or persons to contact who are qualified
on the territory and who can describe
the physical characteristics of the
territory. At a minimum, a job aid must
cover characteristics of a territory
including: permanent close clearances,
location of permanent derails and
switches, assigned radio frequencies in
use and special instructions required for
movement, if any, and railroadidentified unique operating conditions.
Joint operations means rail operations
conducted by more than one railroad on
the same track regardless of whether
such operations are the result of—
(1) Contractual arrangement between
the railroads,
(2) Order of a governmental agency or
a court of law, or
(3) Any other legally binding
directive.
Knowingly means having actual
knowledge of the facts giving rise to the
violation or that a reasonable person
acting in the circumstances, exercising
due care, would have had such
knowledge.
Locomotive means a piece of on-track
equipment (other than specialized
roadway maintenance equipment or a
dual purpose vehicle operating in
accordance with § 240.104(a)(2) of this
chapter):
(1) With one or more propelling
motors designed for moving other
equipment;
(2) With one or more propelling
motors designed to carry freight or
passenger traffic or both; or
(3) Without propelling motors but
with one or more control stands.
Locomotive engineer means any
person who moves a locomotive or
group of locomotives regardless of
whether they are coupled to other
rolling equipment except:
(1) A person who moves a locomotive
or group of locomotives within the
confines of a locomotive repair or

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servicing area as provided for in
§§ 218.5 and 218.29(a)(1) of this chapter;
or
(2) A person who moves a locomotive
or group of locomotives for distances of
less than 100 feet and this incidental
movement of a locomotive or
locomotives is for inspection or
maintenance purposes.
Locomotive engineer certificate means
a certificate issued pursuant to part 240
of this chapter.
Main track means a track upon which
the operation of trains is governed by
one or more of the following methods of
operation: timetable; mandatory
directive; signal indication; positive
train control as defined in part 236 of
this chapter; or any form of absolute or
manual block system.
Medical examiner means a person
licensed as a doctor of medicine or
doctor of osteopathy. A medical
examiner can be a qualified full-time
salaried employee of a railroad, a
qualified practitioner who contracts
with the railroad on a fee-for-service or
other basis, or a qualified practitioner
designated by the railroad to perform
functions in connection with medical
evaluations of employees. As used in
this rule, the medical examiner owes a
duty to make an honest and fully
informed evaluation of the condition of
an employee.
On-the-job training means job training
that occurs in the workplace, i.e., the
employee learns the job while doing the
job.
Passenger conductor means a
conductor who has also received
emergency preparedness training under
part 239 of this chapter. See also the
definition of ‘‘conductor’’ in this
section.
Person means an entity of any type
covered under 1 U.S.C. 1, including but
not limited to the following: A railroad;
a manager, supervisor, official, or other
employee or agent of a railroad; any
owner, manufacturer, lessor, or lessee of
railroad equipment, track, or facilities;
any independent contractor providing
goods or services to a railroad; and any
employee of such owner, manufacturer,
lessor, lessee, or independent
contractor.
Physical characteristics means the
actual track profile of and physical
location for points within a specific
yard or route that affect the movement
of a locomotive or train. Physical
characteristics includes both main track
physical characteristics (see definition
of ‘‘main track’’ in this section) and
other than main track physical
characteristics.
Plant railroad means a plant or
installation that owns or leases a

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locomotive, uses that locomotive to
switch cars throughout the plant or
installation, and is moving goods solely
for use in the facility’s own industrial
processes. The plant or installation
could include track immediately
adjacent to the plant or installation if
the plant railroad leases the track from
the general system railroad and the lease
provides for (and actual practice entails)
the exclusive use of that trackage by the
plant railroad and the general system
railroad for purposes of moving only
cars shipped to or from the plant. A
plant or installation that operates a
locomotive to switch or move cars for
other entities, even if solely within the
confines of the plant or installation,
rather than for its own purposes or
industrial processes, will not be
considered a plant railroad because the
performance of such activity makes the
operation part of the general railroad
system of transportation.
Qualified means a person who has
successfully completed all instruction,
training and examination programs
required by the employer, and the
applicable parts of this chapter and that
the person therefore may reasonably be
expected to be proficient on all safety
related tasks the person is assigned to
perform.
Qualified instructor means a person
who has demonstrated, pursuant to the
railroad’s written program, an adequate
knowledge of the subjects under
instruction and, where applicable, has
the necessary operating experience to
effectively instruct in the field, and has
the following qualifications:
(1) Is a certified conductor under this
part; and
(2) Has been selected as such by a
designated railroad officer, in
concurrence with the designated
employee representative, where present;
or
(3) In absence of concurrence
provided in paragraph (2) of this
definition, has a minimum of 12 months
service working as a train service
employee.
If a railroad does not have designated
employee representation, then a person
employed by the railroad need not
comply with paragraphs (2) or (3) of this
definition to be a qualified instructor.
Railroad means any form of
nonhighway ground transportation that
runs on rails or electromagnetic
guideways and any entity providing
such transportation, including:
(1) Commuter or other short-haul
railroad passenger service in a
metropolitan or suburban area and
commuter railroad service that was
operated by the Consolidated Rail
Corporation on January 1, 1979; and

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(2) High speed ground transportation
systems that connect metropolitan areas,
without regard to whether those systems
use new technologies not associated
with traditional railroads; but does not
include rapid transit operations in an
urban area that are not connected to the
general railroad system of
transportation.
Railroad officer means any
supervisory employee of a railroad.
Railroad rolling stock is on-track
equipment that is either a ‘‘railroad
freight car’’ (as defined in § 215.5 of this
chapter) or a ‘‘passenger car’’ (as defined
in § 238.5 of this chapter).
Remote control operator (RCO) means
a certified locomotive engineer, as
defined in § 240.7 of this chapter,
certified by a railroad to operate remote
control locomotives pursuant to
§ 240.107 of this chapter.
Roadway maintenance equipment is
on-track equipment powered by any
means of energy other than hand power
which is used in conjunction with
maintenance, repair, construction or
inspection of track, bridges, roadway,
signal, communications, or electric
traction systems.
Serve or service, in the context of
serving documents, has the meaning
given in Rule 5 of the Federal Rules of
Civil Procedure as amended. Similarly,
the computation of time provisions in
Rule 6 of the Federal Rules of Civil
Procedure as amended are also
applicable in this part. See also the
definition of ‘‘filing’’ in this section.
Specialized roadway maintenance
equipment is roadway maintenance
equipment that does not have the
capability to move railroad rolling stock.
Any alteration of such equipment that
enables it to move railroad rolling stock
will require that the equipment be
treated as a dual purpose vehicle.
Substance abuse disorder refers to a
psychological or physical dependence
on alcohol or a drug, or another
identifiable and treatable mental or
physical disorder involving the abuse of
alcohol or drugs as a primary
manifestation. A substance abuse
disorder is ‘‘active’’ within the meaning
of this part if the person is currently
using alcohol or other drugs, except
under medical supervision consistent
with the restrictions described in
§ 219.103 of this chapter or has failed to
successfully complete primary
treatment or successfully participate in
aftercare as directed by a DAC or SAP.
Substance Abuse Professional (SAP)
means a person who meets the
qualifications of a substance abuse
professional, as provided in part 40 of
this title.

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Territorial qualifications means
possessing the necessary knowledge
concerning a railroad’s operating rules
and timetable special instructions
including familiarity with applicable
main track and other than main track
physical characteristics of the territory
over which the locomotive or train
movement will occur.
Tourist, scenic, historic, or excursion
operations that are not part of the
general railroad system of
transportation means a tourist, scenic,
historic, or excursion operation
conducted only on track used
exclusively for that purpose (i.e., there
is no freight, intercity passenger, or
commuter passenger railroad operation
on the track).
§ 242.9

Waivers.

(a) A person subject to a requirement
of this part may petition the
Administrator for a waiver of
compliance with such requirement. The
filing of such a petition does not affect
that person’s responsibility for
compliance with that requirement while
the petition is being considered.
(b) Each petition for a waiver under
this section must be filed in the manner
and contain the information required by
part 211 of this chapter.
(c) If the Administrator finds that a
waiver of compliance is in the public
interest and is consistent with railroad
safety, the Administrator may grant the
waiver subject to any conditions the
Administrator deems necessary.
§ 242.11 Penalties and consequences for
noncompliance.

(a) A person who violates any
requirement of this part or causes the
violation of any such requirement is
subject to a civil penalty of at least $650
and not more than $25,000 per
violation, except that: Penalties may be
assessed against individuals only for
willful violations, and, where a grossly
negligent violation or a pattern of
repeated violations has created an
imminent hazard of death or injury to
persons, or has caused death or injury,
a penalty not to exceed $100,000 per
violation may be assessed. Each day a
violation continues shall constitute a
separate offense. See Appendix A to this
part for a statement of agency civil
penalty policy.
(b) A person who violates any
requirement of this part or causes the
violation of any such requirement may
be subject to disqualification from all
safety-sensitive service in accordance
with part 209 of this chapter.
(c) A person who knowingly and
willfully falsifies a record or report
required by this part may be subject to

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criminal penalties under 49 U.S.C.
21311.
(d) In addition to the enforcement
methods referred to in paragraphs (a),
(b), and (c) of this section, FRA may also
address violations of this part by use of
the emergency order, compliance order,
and/or injunctive provisions of the
Federal rail safety laws.
§ 242.13 Information collection
requirements.

(a) The information collection
requirements of this Part are being
reviewed by the Office of Management
and Budget pursuant to the Paperwork
Reduction Act of 1980 (44 U.S.C. 3501
et seq.) and have not yet been assigned
an OMB control number.
(b) The information collection
requirements are found in the following
sections: §§ 242.9, 242.101, 242.103,
242.105, 242.107, 242.109, 242.111,
242.113, 242.115, 242.117, 242.119,
242.121, 242.123, 242.125, 242.127,
242.203, 242.205, 242.209, 242.211,
242.213, 242.215, 242.301, 242.401,
242.403, 242.405, and 242.407.
Subpart B—Program and Eligibility
Requirements
§ 242.101

Certification program required.

(a) After the pertinent date specified
in § 242.105(d) or (e), each railroad shall
have a certification program approved
in accordance with § 242.103 that
includes:
(1) A designation of the types of
service that it determines will be used
in compliance with the criteria
established in § 242.107;
(2) A procedure for evaluating prior
safety conduct that complies with the
criteria established in § 242.109;
(3) A procedure for evaluating visual
and hearing acuity that complies with
the criteria established in § 242.117;
(4) A procedure for training that
complies with the criteria established in
§ 242.119;
(5) A procedure for knowledge testing
that complies with the criteria
established in § 242.121; and
(6) A procedure for monitoring
operational performance that complies
with the criteria established in
§ 242.123.
(b) [Reserved].
§ 242.103 Approval of design of individual
railroad programs by FRA.

(a) Each railroad shall submit its
written certification program and
request for approval in accordance with
the procedures contained in appendix B
of this part according to the following
schedule:
(1) A Class I railroad (including the
National Railroad Passenger

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Corporation), Class II railroad, or
railroad providing commuter service
shall submit a program no later than
March 30, 2012; and
(2) A Class III railroad (including a
switching and terminal or other railroad
not otherwise classified) shall submit a
program no later than July 30, 2012.
(b) A railroad commencing operations
after the pertinent date specified in
paragraph (a) of this section shall
submit its written certification program
and request for approval in accordance
with the procedures contained in
appendix B to this part at least 60 days
prior to commencing operations.
(c) Each railroad shall:
(1) Simultaneous with its filing with
the FRA, serve a copy of the submission
filed pursuant to paragraph (a) or (b) of
this section, a resubmission filed
pursuant to paragraph (h) of this
section, or a material modification filed
pursuant to paragraph (i) of this section
on the president of each labor
organization that represents the
railroad’s employees subject to this part;
and
(2) Include in its submission filed
pursuant to paragraph (a) or (b) of this
section, a resubmission filed pursuant to
paragraph (h) of this section, or a
material modification filed pursuant to
paragraph (i) of this section a statement
affirming that the railroad has served a
copy on the president of each labor
organization that represents the
railroad’s employees subject to this part,
together with a list of the names and
addresses of persons served.
(d) Not later than 45 days from the
date of filing a submission pursuant to
paragraph (a) or (b) of this section, a
resubmission pursuant to paragraph (h)
of this section, or a material
modification pursuant to paragraph (i)
of this section, any designated
representative of railroad employees
subject to this part may comment on the
submission, resubmission, or material
modification:
(1) Each comment shall set forth
specifically the basis upon which it is
made, and contain a concise statement
of the interest of the commenter in the
proceeding;
(2) Each comment shall be submitted
to the Associate Administrator for
Railroad Safety/Chief Safety Officer,
FRA, 1200 New Jersey Avenue SE.,
Washington, DC 20590; and
(3) The commenter shall certify that a
copy of the comment was served on the
railroad.
(e) The submission required by
paragraph (a) or (b) of this section shall
state the railroad’s election either:
(1) To accept responsibility for the
training of conductors and thereby

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obtain authority for that railroad to
initially certify a person as a conductor
in an appropriate type of service; or
(2) To recertify only conductors
previously certified by other railroads.
(f) A railroad that elects to accept
responsibility for the training of
conductors shall state in its submission
whether it will conduct the training
program or employ a training program
conducted by some other entity on its
behalf but adopted and ratified by that
railroad.
(g) A railroad’s program is considered
approved and may be implemented 30
days after the required filing date (or the
actual filing date) unless the
Administrator notifies the railroad in
writing that the program does not
conform to the criteria set forth in this
part.
(1) If the Administrator determines
that the program does not conform, the
Administrator will inform the railroad
of the specific deficiencies.
(2) If the Administrator informs the
railroad of deficiencies more than 30
days after the initial filing date, the
original program may remain in effect
until 30 days after approval of the
revised program is received so long as
the railroad has complied with the
requirements of paragraph (h) of this
section.
(h) A railroad shall resubmit its
program within 30 days after the date of
such notice of deficiencies. A failure to
resubmit the program with the
necessary revisions will be considered a
failure to implement a program under
this part.
(1) The Administrator will inform the
railroad in writing whether its revised
program conforms to this part.
(2) If the program does not conform,
the railroad shall resubmit its program.
(i) A railroad that intends to
materially modify its program after
receiving initial FRA approval shall
submit a description of how it intends
to modify the program in conformity
with the specific requirements of this
part at least 60 days prior to
implementing such a change.
(1) A modification is material if it
would affect the program’s conformance
with this part.
(2) The modification submission shall
contain a description that conforms to
the pertinent portion of the procedures
contained in appendix B of this part.
(3) The modification submission will
be handled in accordance with the
procedures of paragraphs (g) and (h) of
this section as though it were a new
program.
§ 242.105

Schedule for implementation.

(a) By March 1, 2012, each railroad
shall:

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(1) In writing, designate as certified
conductors all persons authorized by
the railroad to perform the duties of a
conductor as of January 1, 2012; and
(2) Issue a certificate that complies
with § 242.207 to each person that it
designates.
(b) After March 1, 2012, each railroad
shall:
(1) In writing, designate as a certified
conductor any person who has been
authorized by the railroad to perform
the duties of a conductor between
January 1, 2012 and the pertinent date
in paragraph (d) or (e) of this section;
and
(2) Issue a certificate that complies
with § 242.207 to each person that it
designates.
(c) No railroad shall permit or require
a person, designated as a certified
conductor under the provisions of
paragraph (a) or (b) of this section, to
perform service as a certified conductor
for more than a 36-month period
beginning on the pertinent date for
compliance with the mandatory
procedures for testing and evaluation set
forth in the applicable provisions of
paragraph (d) or (e) of this section
unless that person has been certified in
accordance with procedures that
comply with subpart B of this part.
(1) Except as provided in paragraph
(c)(3) of this section, a person who has
been designated as a certified conductor
under the provisions of paragraph (a) or
(b) of this section and who is eligible to
receive a retirement pension in
accordance with the terms of an
applicable agreement or in accordance
with the terms of the Railroad
Retirement Act (45 U.S.C. 231) within
36 months from the pertinent date for
compliance with the mandatory
procedures for testing and evaluation set
forth in the applicable provisions of
paragraph (d) or (e) of this section, may
request, in writing, that a railroad not
recertify that person, pursuant to
subpart B of this part, until 36 months
from the pertinent date for compliance
with the mandatory procedures for
testing and evaluation set forth in the
applicable provisions of paragraph (d)
or (e) of this section.
(2) Upon receipt of a written request
pursuant to paragraph (c)(1) of this
section, a railroad may wait to recertify
the person making the request until the
end of the 36-month period described in
paragraph (c) of this section. If a railroad
grants any request, it must grant the
request of all eligible persons to every
extent possible.
(3) A person who is subject to
recertification under part 240 of this
chapter may not make a request

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pursuant to paragraph (c)(1) of this
section.
(d) After June 1, 2012, no Class I
railroad (including the National
Railroad Passenger Corporation), Class II
railroad, or railroad providing
commuter service shall initially certify
or recertify a person as a conductor
unless that person has been tested and
evaluated in accordance with
procedures that comply with subpart B
of this part and issued a certificate that
complies with § 242.207.
(e) After October 1, 2012, no Class III
railroad (including a switching and
terminal or other railroad not otherwise
classified) shall initially certify or
recertify a person as a conductor unless
that person has been tested and
evaluated in accordance with
procedures that comply with subpart B
of this part and issued a certificate that
complies with § 242.207.
(f) After the applicable dates specified
in paragraphs (d) and (e) of this section,
no person shall serve as a conductor in
any type of service and no railroad shall
require or permit any person to serve as
a conductor in any type of service
unless that person has been tested and
evaluated in accordance with
procedures that comply with subpart B
of this part and issued a certificate that
complies with § 242.207.

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§ 242.107

Types of service.

(a) Each railroad’s program shall state
which of the two types of service
(conductor and passenger conductor),
provided for in paragraph (b) of this
section, that it will cover.
(b) A railroad may issue certificates
for either of the following types of
service:
(1) Conductor; and
(2) Passenger conductor.
(c) A railroad shall not reclassify the
certification of any type of certified
conductor to a different type of
conductor certification during the
period in which the certification is
otherwise valid except when a
conductor completes the emergency
training identified in part 239 of this
chapter and is certified as a passenger
conductor.
(d) Each railroad is authorized to
impose additional conditions or
operational restrictions on the service a
conductor may perform beyond those
identified in this section provided those
conditions or restrictions are not
inconsistent with this part.
§ 242.109 Determinations required for
certification and recertification.

(a) After the pertinent date specified
in § 242.105(d) or (e), each railroad,
prior to initially certifying or

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recertifying any person as a conductor,
shall, in accordance with its FRAapproved program, determine in writing
that:
(1) The individual meets the
eligibility requirements of §§ 242.111,
242.113, 242.115, and 242.403; and
(2) The individual meets the vision
and hearing acuity standards of
§ 242.117 (‘‘Vision and hearing acuity’’);
(3) The individual has the necessary
knowledge, as demonstrated by
successfully completing a test that
meets the requirements of § 242.121
(‘‘Knowledge testing’’); and
(4) Where a person has not previously
been certified, that the person has
completed a training program that meets
the requirements of § 242.119
(‘‘Training’’).
(b) When evaluating a person’s prior
safety conduct, a railroad shall not
consider information concerning prior
conduct that:
(1) Occurred prior to the effective date
of this rule; or
(2) Occurred at a time other than that
specifically provided for in §§ 242.111,
242.115 or 242.403.
(c) In order to make the determination
required under paragraph (a) of this
section, a railroad shall have on file
documents pertinent to those
determinations.
(d) A railroad’s program shall provide
a candidate for certification or
recertification a reasonable opportunity
to review and comment in writing on
any record which contains information
concerning the person’s prior safety
conduct, including information
pertinent to determinations required
under § 242.115, if the railroad believes
the record contains information that
could be sufficient to render the person
ineligible for certification under this
subpart.
(e) The opportunity for comment shall
be afforded to the person prior to the
railroad’s rendering its eligibility
decision based on that information. Any
responsive comment furnished shall be
retained by the railroad in accordance
with § 242.203.
(f) The program shall include a
method for a person to advise the
railroad that he or she has never been
a railroad employee or obtained a
license to drive a motor vehicle.
Nothing in this section shall be
construed as imposing a duty or
requirement that a person have prior
railroad employment experience or
obtain a motor vehicle driver’s license
in order to become a certified
conductor.
(g) Nothing in this section, § 242.111
or § 242.113 shall be construed to
prevent persons subject to this part from

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entering into an agreement that results
in a railroad’s obtaining the information
needed for compliance with this subpart
in a different manner than that
prescribed in § 242.111 or § 242.113.
§ 242.111 Prior safety conduct as motor
vehicle operator.

(a) Each railroad shall adopt and
comply with a program meeting the
requirements of this section. When any
person (including, but not limited to,
each railroad, railroad officer,
supervisor, and employee) violates any
requirement of a program which
complies with the requirements of this
section, that person shall be considered
to have violated the requirements of this
section.
(b) Except as provided in paragraphs
(c), (d), (e), and (f) of this section, after
the pertinent date specified in
§ 242.105(d) or (e), each railroad, prior
to initially certifying or recertifying any
person as a conductor for any type of
service, shall determine that the person
meets the eligibility requirements of this
section involving prior conduct as a
motor vehicle operator.
(c) A railroad shall initially certify a
person as a conductor for 60 days if the
person:
(1) Requested the information
required by paragraph (h) of this section
at least 60 days prior to the date of the
decision to certify that person; and
(2) Otherwise meets the eligibility
requirements provided in § 242.109.
(d) A railroad shall recertify a person
as a conductor for 60 days from the
expiration date of that person’s
certification if the person:
(1) Requested the information
required by paragraph (h) of this section
at least 60 days prior to the date of the
decision to recertify that person; and
(2) Otherwise meets the eligibility
requirements provided in § 242.109.
(e) Except as provided in paragraph (f)
of this section, if a railroad who
certified or recertified a person pursuant
to paragraph (c) or (d) of this section
does not obtain and evaluate the
information required pursuant to
paragraph (h) of this section within 60
days of the pertinent dates identified in
paragraph (c) or (d) of this section, that
person will be ineligible to perform as
a conductor until the information can be
evaluated.
(f) If a person requests the information
required pursuant to paragraph (h) of
this section but is unable to obtain it,
that person or the railroad certifying or
recertifying that person may petition for
a waiver of the requirements of
paragraph (b) of this section in
accordance with the provisions of part
211 of this chapter. A railroad shall

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certify or recertify a person during the
pendency of the waiver request if the
person otherwise meets the eligibility
requirements provided in § 242.109.
(g) Individual’s duty. Except for
persons designated as conductors under
§ 242.105(a) or (b) or for persons
covered by § 242.109(f), each person
seeking certification or recertification
under this part shall, within 366 days
preceding the date of the railroad’s
decision on certification or
recertification:
(1) Take the actions required by
paragraphs (h) through (j) of this section
to make information concerning his or
her driving record available to the
railroad that is considering such
certification or recertification; and
(2) Take any additional actions,
including providing any necessary
consent required by State, Federal, or
foreign law to make information
concerning his or her driving record
available to that railroad.
(h) Each person seeking certification
or recertification under this part shall
request, in writing, that the chief of each
driver licensing agency identified in
paragraph (i) of this section provide a
copy of that agency’s available
information concerning his or her
driving record to the railroad that is
considering such certification or
recertification.
(i) Each person shall request the
information required under paragraph
(h) of this section from:
(1) The chief of the driver licensing
agency of any jurisdiction, including a
state or foreign country, which last
issued that person a driver’s license;
and
(2) The chief of the driver licensing
agency of any other jurisdiction,
including states or foreign countries,
that issued or reissued the person a
driver’s license within the preceding
five years.
(j) If advised by the railroad that a
driver licensing agency has informed
the railroad that additional information
concerning that person’s driving history
may exist in the files of a state agency
or foreign country not previously
contacted in accordance with this
section, such person shall:
(1) Request in writing that the chief of
the driver licensing agency which
compiled the information provide a
copy of the available information to the
prospective certifying railroad; and
(2) Take any additional action
required by State, Federal, or foreign
law to obtain that additional
information.
(k) Any person who has never
obtained a motor vehicle driving license
is not required to comply with the

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provisions of paragraph (h) of this
section but shall notify the railroad of
that fact in accordance with procedures
of the railroad that comply with
§ 242.109(f).
(l) Each certified conductor or person
seeking initial certification shall report
motor vehicle incidents described in
paragraphs (n)(1) and (2) of this section
to the employing railroad within 48
hours of being convicted for, or
completed state action to cancel, revoke,
suspend, or deny a motor vehicle
drivers license for, such violations. For
purposes of this paragraph and
paragraph (n) of this section, ‘‘state
action’’ means action of the jurisdiction
that has issued the motor vehicle
driver’s license, including a foreign
country. For the purposes of conductor
certification, no railroad shall require
reporting earlier than 48 hours after the
conviction, or completed state action to
cancel, revoke, or deny a motor vehicle
drivers license.
(m) Evaluation of record. When
evaluating a person’s motor vehicle
driving record, a railroad shall not
consider information concerning motor
vehicle driving incidents that occurred:
(1) Prior to the effective date of this
rule;
(2) More than 36 months before the
month in which the railroad is making
its certification decision; or
(3) At a time other than that
specifically provided for in §§ 242.111,
242.115, or 242.403.
(n) A railroad shall only consider
information concerning the following
types of motor vehicle incidents:
(1) A conviction for, or completed
state action to cancel, revoke, suspend,
or deny a motor vehicle drivers license
for, operating a motor vehicle while
under the influence of or impaired by
alcohol or a controlled substance; or
(2) A conviction for, or completed
state action to cancel, revoke, suspend,
or deny a motor vehicle driver’s license
for, refusal to undergo such testing as is
required by State or foreign law when a
law enforcement official seeks to
determine whether a person is operating
a vehicle while under the influence of
alcohol or a controlled substance.
(o) If such an incident is identified:
(1) The railroad shall provide the data
to the railroad’s DAC, together with any
information concerning the person’s
railroad service record, and shall refer
the person for evaluation to determine
if the person has an active substance
abuse disorder;
(2) The person shall cooperate in the
evaluation and shall provide any
requested records of prior counseling or
treatment for review exclusively by the

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DAC in the context of such evaluation;
and
(3) If the person is evaluated as not
currently affected by an active substance
abuse disorder, the subject data shall
not be considered further with respect
to certification. However, the railroad
shall, on recommendation of the DAC,
condition certification upon
participation in any needed aftercare
and/or follow-up testing for alcohol or
drugs deemed necessary by the DAC
consistent with the technical standards
specified in § 242.115(f)(3).
(4) If the person is evaluated as
currently affected by an active substance
abuse disorder, the provisions of
§ 242.115(d) will apply.
(5) If the person fails to comply with
the requirements of paragraph (o)(2) of
this section, the person shall be
ineligible to perform as a conductor
until such time as the person complies
with the requirements.
§ 242.113 Prior safety conduct as an
employee of a different railroad.

(a) Each railroad shall adopt and
comply with a program which complies
with the requirements of this section.
When any person including, but not
limited to, each railroad, railroad
officer, supervisor, and employee
violates any requirement of a program
which complies with the requirements
of this section, that person shall be
considered to have violated the
requirements of this section.
(b) After the pertinent date specified
in § 242.105(d) or (e), each railroad,
prior to initially certifying or
recertifying any person as a conductor
for any type of service, shall determine
that the person meets the eligibility
requirements of this section.
(c) Except for persons designated as
conductors under § 242.105(a) or (b) or
for persons covered by § 242.109(f), each
person seeking certification or
recertification under this part shall,
within 366 days preceding the date of
the railroad’s decision on certification
or recertification:
(1) Request, in writing, that the chief
operating officer or other appropriate
person of the former employing railroad
provide a copy of that railroad’s
available information concerning his or
her service record pertaining to
compliance or non-compliance with
§§ 242.111, 242.115, and 242.403 to the
railroad that is considering such
certification or recertification; and
(2) Take any additional actions,
including providing any necessary
consent required by State or Federal law
to make information concerning his or
her service record available to that
railroad.

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§ 242.115 Substance abuse disorders and
alcohol drug rules compliance.

(a) Each railroad shall adopt and
comply with a program which complies
with the requirements of this section.
When any person, including, but not
limited to, each railroad, railroad
officer, supervisor, and employee,
violates any requirement of a program
which complies with the requirements
of this section, that person shall be
considered to have violated the
requirements of this section.
(b) After the pertinent date specified
in § 242.105(d) or (e), each railroad,
prior to initially certifying or
recertifying any person as a conductor
for any type of service, shall determine
that the person meets the eligibility
requirements of this section.
(c) In order to make the determination
required under paragraph (d) of this
section, a railroad shall have on file
documents pertinent to that
determination, including a written
document from its DAC which states his
or her professional opinion that the
person has been evaluated as not
currently affected by a substance abuse
disorder or that the person has been
evaluated as affected by an active
substance abuse disorder.
(d) Fitness requirement. (1) A person
who has an active substance abuse
disorder shall be denied certification or
recertification as a conductor.
(2) Except as provided in paragraph
(g) of this section, a certified conductor
who is determined to have an active
substance abuse disorder shall be
ineligible to hold certification.
Consistent with other provisions of this
part, certification may be reinstated as
provided in paragraph (f) of this section.
(3) In the case of a current employee
of the railroad evaluated as having an
active substance abuse disorder
(including a person identified under the
procedures of § 242.111), the employee
may, if otherwise eligible, voluntarily
self-refer for substance abuse counseling
or treatment under the policy required
by § 219.403 of this chapter; and the
railroad shall then treat the substance
abuse evaluation as confidential except
with respect to ineligibility for
certification.
(e) Prior alcohol/drug conduct;
Federal rule compliance. (1) In
determining whether a person may be or
remain certified as a conductor, a
railroad shall consider conduct
described in paragraph (e)(2) of this
section that occurred within a period of
60 consecutive months prior to the
review. A review of certification shall be
initiated promptly upon the occurrence
and documentation of any incident of
conduct described in this paragraph.

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(2) A railroad shall consider any
violation of § 219.101 or § 219.102 of
this chapter and any refusal to provide
a breath or body fluid sample for testing
under the requirements of part 219 of
this chapter when instructed to do so by
a railroad representative.
(3) A period of ineligibility described
in this section shall begin:
(i) For a person not currently certified,
on the date of the railroad’s written
determination that the most recent
incident has occurred; or
(ii) For a person currently certified, on
the date of the railroad’s notification to
the person that recertification has been
denied or certification has been
revoked; and
(4) The period of ineligibility
described in this section shall be
determined in accordance with the
following standards:
(i) In the case of a single violation of
§ 219.102 of this chapter, the person
shall be ineligible to hold a certificate
during evaluation and any required
primary treatment as described in
paragraph (f) of this section. In the case
of two violations of § 219.102 of this
chapter, the person shall be ineligible to
hold a certificate for a period of two
years. In the case of more than two such
violations, the person shall be ineligible
to hold a certificate for a period of five
years.
(ii) In the case of one violation of
§ 219.102 of this chapter and one
violation of § 219.101 of this chapter,
the person shall be ineligible to hold a
certificate for a period of three years.
(iii) In the case of one violation of
§ 219.101 of this chapter, the person
shall be ineligible to hold a certificate
for a period of 9 months (unless
identification of the violation was
through a qualifying ‘‘co-worker report’’
as described in § 219.405 of this chapter
and the conductor waives investigation,
in which case the certificate shall be
deemed suspended during evaluation
and any required primary treatment as
described in paragraph (f)). In the case
of two or more violations of § 219.101 of
this chapter, the person shall be
ineligible to hold a certificate for a
period of five years.
(iv) A refusal to provide a breath or
body fluid sample for testing under the
requirements of part 219 of this chapter
when instructed to do so by a railroad
representative shall be treated, for
purposes of ineligibility under this
paragraph, in the same manner as a
violation of:
(A) Section 219.102 of this chapter, in
the case of a refusal to provide a urine
specimen for testing; or
(B) Section 219.101 of this chapter, in
the case of a refusal to provide a breath

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sample for alcohol testing or a blood
specimen for mandatory post-accident
toxicological testing.
(f) Future eligibility to hold certificate
following alcohol/drug violation. The
following requirements apply to a
person who has been denied
certification or who has had
certification suspended or revoked as a
result of conduct described in paragraph
(e) of this section:
(1) The person shall not be eligible for
grant or reinstatement of the certificate
unless and until the person has:
(i) Been evaluated by a SAP to
determine if the person currently has an
active substance abuse disorder;
(ii) Successfully completed any
program of counseling or treatment
determined to be necessary by the SAP
prior to return to service; and
(iii) In accordance with the testing
procedures of subpart H of part 219 of
this chapter, has had an alcohol test
with an alcohol concentration of less
than .02 and presented a urine sample
that tested negative for controlled
substances assayed.
(2) A conductor placed in service or
returned to service under the abovestated conditions shall continue in any
program of counseling or treatment
deemed necessary by the SAP and shall
be subject to a reasonable program of
follow-up alcohol and drug testing
without prior notice for a period of not
more than 60 months following return
to service. Follow-up tests shall include
not fewer than 6 alcohol tests and 6
drug tests during the first 12 months
following return to service.
(3) Return-to-service and follow-up
alcohol and drug tests shall be
performed consistent with the
requirements of subpart H of part 219 of
this chapter.
(4) This paragraph does not create an
entitlement to utilize the services of a
railroad SAP, to be afforded leave from
employment for counseling or
treatment, or to employment as a
conductor. Nor does it restrict any
discretion available to the railroad to
take disciplinary action based on
conduct described herein.
(g) Confidentiality protected. Nothing
in this part shall affect the responsibility
of the railroad under § 219.403 of this
chapter (‘‘Voluntary referral policy’’) to
treat voluntary referrals for substance
abuse counseling and treatment as
confidential; and the certification status
of a conductor who is successfully
assisted under the procedures of that
section shall not be adversely affected.
However, the railroad shall include in
its voluntary referral policy required to
be issued pursuant to § 219.403 of this
chapter a provision that, at least with

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respect to a certified conductor or a
candidate for certification, the policy of
confidentiality is waived (to the extent
that the railroad shall receive from the
SAP or DAC official notice of the
substance abuse disorder and shall
suspend or revoke the certification, as
appropriate) if the person at any time
refuses to cooperate in a recommended
course of counseling or treatment.

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§ 242.117

Vision and hearing acuity.

(a) Each railroad shall adopt and
comply with a program which complies
with the requirements of this section.
When any person including, but not
limited to, each railroad, railroad
officer, supervisor, and employee
violates any requirement of a program
which complies with the requirements
of this section, that person shall be
considered to have violated the
requirements of this section.
(b) After the pertinent date specified
in § 242.105(d) or (e), each railroad,
prior to initially certifying or
recertifying any person as a conductor
for any class of service, shall determine
that the person meets the standards for
visual acuity and hearing acuity
prescribed in this section.
(c) In order to make the determination
required under paragraph (b) of this
section, a railroad shall have on file
either:
(1) A medical examiner’s certificate
that the individual has been medically
examined and meets these acuity
standards; or
(2) A written document from its
medical examiner documenting his or
her professional opinion that the person
does not meet one or both acuity
standards and stating the basis for his or
her determination that:
(i) The person can nevertheless be
certified under certain conditions; or
(ii) The person’s acuity is such that
the person cannot safely perform as a
conductor even with conditions
attached.
(d) Any examination required for
compliance with this section shall be
performed by or under the supervision
of a medical examiner or a licensed
physician’s assistant such that:
(1) A licensed optometrist or a
technician responsible to that person
may perform the portion of the
examination that pertains to visual
acuity; and
(2) A licensed or certified audiologist
or a technician responsible to that
person may perform the portion of the
examination that pertains to hearing
acuity.
(e) If the examination required under
this section discloses that the person
needs corrective lenses or a hearing aid,

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or both, either to meet the threshold
acuity levels established in this section
or to meet a lower threshold determined
by the railroad’s medical examiner to be
sufficient to perform as a conductor,
that fact shall be noted on the certificate
issued in accordance with the
provisions of this part.
(f) Any person with such a certificate
notation shall use the relevant
corrective device(s) while performing as
a conductor unless the railroad’s
medical examiner subsequently
determines in writing that the person
can safely perform without using the
device.
(g) Fitness requirement: In order to be
currently certified as a conductor,
except as permitted by paragraph (j) of
this section, a person’s vision and
hearing shall meet or exceed the
standards prescribed in this section and
Appendix D to this part. It is
recommended that each test conducted
pursuant to this section should be
performed according to any directions
supplied by the manufacturer of such
test and any American National
Standards Institute (ANSI) standards
that are applicable.
(h) Except as provided in paragraph (j)
of this section, each person shall have
visual acuity that meets or exceeds the
following thresholds:
(1) For distant viewing, either:
(i) Distant visual acuity of at least
20/40 (Snellen) in each eye without
corrective lenses; or
(ii) Distant visual acuity separately
corrected to at least 20/40 (Snellen) with
corrective lenses and distant binocular
acuity of at least 20/40 (Snellen) in both
eyes with or without corrective lenses;
(2) A field of vision of at least 70
degrees in the horizontal meridian in
each eye; and
(3) The ability to recognize and
distinguish between the colors of
railroad signals as demonstrated by
successfully completing one of the tests
in Appendix E to this part.
(i) Except as provided in paragraph (j)
of this section, each person shall have
a hearing test or audiogram that shows
the person’s hearing acuity meets or
exceeds the following thresholds: The
person does not have an average hearing
loss in the better ear greater than 40
decibels with or without use of a
hearing aid, at 500 Hz, 1,000 Hz, and
2,000 Hz. The hearing test or audiogram
shall meet the requirements of one of
the following:
(1) As required in 29 CFR 1910.95(h)
(OSHA);
(2) As required in § 227.111 of this
chapter; or
(3) Conducted using an audiometer
that meets the specifications of and are

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maintained and used in accordance
with ANSI S3.6–2004 ‘‘Specifications
for Audiometers.’’
(j) A person not meeting the
thresholds in paragraphs (h) and (i) of
this section shall, upon request, be
subject to further medical evaluation by
a railroad’s medical examiner to
determine that person’s ability to safely
perform as a conductor. In accordance
with the guidance prescribed in
Appendix D to this part, a person is
entitled to one retest without making
any showing and to another retest if the
person provides evidence substantiating
that circumstances have changed since
the last test to the extent that the person
could now safely perform as a
conductor. The railroad shall provide its
medical examiner with a copy of this
part, including all appendices. If, after
consultation with a railroad officer, the
medical examiner concludes that,
despite not meeting the threshold(s) in
paragraphs (h) and (i) of this section, the
person has the ability to safely perform
as a conductor, the person may be
certified as a conductor and such
certification conditioned on any special
restrictions the medical examiner
determines in writing to be necessary.
(k) As a condition of maintaining
certification, each certified conductor
shall notify his or her employing
railroad’s medical department or, if no
such department exists, an appropriate
railroad official if the person’s best
correctable vision or hearing has
deteriorated to the extent that the
person no longer meets one or more of
the prescribed vision or hearing
standards or requirements of this
section. This notification is required
prior to any subsequent performance as
a conductor.
§ 242.119

Training.

(a) Each railroad shall adopt and
comply with a program that meets the
requirements of this section. When any
person including, but not limited to,
each railroad, railroad officer,
supervisor, and employee violates any
requirement of a program which
complies with the requirements of this
section, that person shall be considered
to have violated the requirements of this
section.
(b) After the pertinent date specified
in § 242.105(d) or (e), each railroad,
prior to the initial issuance of a
certificate to any person as a conductor,
shall determine that the person has, in
accordance with the requirements of
this section, the knowledge to safely
perform as a conductor in each type of
service that the person will be permitted
to perform.

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(c) In making this determination, a
railroad shall have written
documentation showing that:
(1) The person completed a training
program that complies with paragraph
(d) of this section;
(2) The person demonstrated his or
her knowledge by achieving a passing
grade under the testing and evaluation
procedures of that training program; and
(3) The person demonstrated that he
or she is qualified on the physical
characteristics of the railroad, or its
pertinent segments, over which that
person will perform service.
(d) A railroad that elects to train a
previously untrained person to be a
conductor shall develop an initial
training program which, at a minimum,
includes the following:
(1) Determine how training must be
structured, developed, and delivered,
including an appropriate combination of
classroom, simulator, computer-based,
correspondence, on-the-job training, or
other formal training. The curriculum
shall be designed to impart knowledge
of, and ability to comply with
applicable Federal railroad safety laws,
regulations, and orders, as well as any
relevant railroad rules and procedures
promulgated to implement those
applicable Federal railroad safety laws,
regulations, and orders. This training
shall document a person’s knowledge
of, and ability to comply with, Federal
railroad safety laws, regulations, and
orders, as well as railroad rules and
procedures.
(2) The on-the-job portion of the
training program shall consist of the
following three key components:
(i) A brief statement describing the
tasks and related steps the employee
learning the job shall be able to perform;
(ii) A statement of the conditions (e.g.,
prerequisites, tools, equipment,
documentation, briefings,
demonstrations, and practice) necessary
for learning transfer; and
(iii) A statement of the standards by
which proficiency is measured through
a combination of task/step accuracy,
completeness, and repetition.
(3) Prior to beginning the initial
safety-related tasks associated with onthe-job exercises, employers shall make
any relevant information or materials,
such as operating rules, safety rules, or
other rules available to employees
involved for referencing.
(4) The tasks and related steps
associated with on-the-job exercises for
a particular type of conductor service
(e.g., passenger conductor) shall be
maintained together in one manual,
checklist, or similar document. This
reference shall be made available to all

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employees involved in those on-the-job
exercises.
(5) When new safety-related railroad
laws, regulations, orders, technologies,
procedures, or equipment are
introduced into the workplace, the
railroad must review its training
program and modify its training plan
accordingly.
(e) Prior to a previously untrained
person being certified as a conductor, a
railroad shall require the person to:
(1) Successfully complete the formal
initial training program developed
pursuant to paragraph (d) of this section
and any associated examinations
covering the skills and knowledge the
person will need to possess in order to
perform the tasks necessary to be a
conductor; and
(2) Demonstrate, to the satisfaction of
the railroad with input from a qualified
instructor, on-the-job proficiency by
successfully completing the tasks
necessary to be a conductor. However,
a person may perform such tasks under
the direct onsite supervision of a
person, who has the necessary operating
experience, as part of the on-the-job
training process prior to completing
such training and passing the field
evaluation; and
(3) Demonstrate knowledge of the
physical characteristics of any assigned
territory by successfully completing a
test created by a person qualified on the
physical characteristics of the territory.
(f) If a railroad uses a written test for
purposes of paragraph (e)(3) of this
section, the railroad must provide the
person(s) being tested with an
opportunity to consult with a
supervisory employee, who possesses
territorial qualifications for the territory,
to explain a question.
(g) A person may acquire familiarity
with the physical characteristics of a
territory through the following methods:
(1) The methods used by a railroad for
familiarizing its conductors with new
territory while starting up a new
railroad;
(2) The methods used by a railroad for
starting operations over newly acquired
rail lines; or
(3) The methods used by a railroad for
reopening of a long unused route.
(h) The methods listed in paragraph
(g) of this section shall be described in
the railroad’s conductor qualification
program required under this part and
submitted according to the procedures
described in Appendix B to this part.
(i) If ownership of a railroad is being
transferred from one company to
another, the conductor(s) of the
acquiring company may receive
familiarization training from the selling

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company prior to the acquiring railroad
commencing operation.
(j) A railroad shall designate in its
program required by this section the
time period in which a conductor must
be absent from a territory or yard, before
requalification on physical
characteristics is required.
(k) A railroad’s program shall include
the procedures used to qualify or
requalify a person on the physical
characteristics.
(l) A railroad shall provide for the
continuing education of certified
conductors to ensure that each
conductor maintains the necessary
knowledge concerning railroad safety
and operating rules and compliance
with all applicable Federal regulations,
including, but not limited to, hazardous
materials, passenger train emergency
preparedness, brake system safety
standards, pre-departure inspection
procedures, and passenger equipment
safety standards, and physical
characteristics of a territory.
§ 242.121

Knowledge testing.

(a) Each railroad shall adopt and
comply with a program that meets the
requirements of this section. When any
person including, but not limited to,
each railroad, railroad officer,
supervisor, and employee violates any
requirement of a program which
complies with the requirements of this
section, that person shall be considered
to have violated the requirements of this
section.
(b) After the pertinent date specified
in § 242.105(d) or (e), each railroad,
prior to initially certifying or
recertifying any person as a conductor
for any type of service, shall determine
that the person has, in accordance with
the requirements of this section,
demonstrated sufficient knowledge of
the railroad’s rules and practices for the
safe movement of trains.
(c) In order to make the knowledge
determination required by paragraph (b)
of this section, a railroad shall have
procedures for testing a person being
evaluated for certification as a
conductor that shall be:
(1) Designed to examine a person’s
knowledge of the railroad’s operating
rules and practices for the safe
movement of trains;
(2) Objective in nature;
(3) Administered in written or
electronic form;
(4) Cover the following subjects:
(i) Safety and operating rules;
(ii) Timetable instructions;
(iii) Compliance with all applicable
Federal regulations;
(iv) Physical characteristics of the
territory on which a person will be or
is currently serving as a conductor; and

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(v) Use of any job aid that a railroad
may provide a conductor;
(5) Sufficient to accurately measure
the person’s knowledge of the covered
subjects; and
(6) Conducted without open reference
books or other materials except to the
degree the person is being tested on his
or her ability to use such reference
books or materials.
(d) The conduct of the test shall be
documented in writing and the
documentation shall contain sufficient
information to identify the relevant facts
relied on for evaluation purposes.
(e) For purposes of paragraph (c) of
this section, the railroad must provide
the person(s) being tested with an
opportunity to consult with a
supervisory employee, who possesses
territorial qualifications for the territory,
to explain a question.
(f) The documentation shall indicate
whether the person passed or failed the
test.
(g) If a person fails to pass the test, no
railroad shall permit or require that
person to function as a conductor prior
to that person’s achieving a passing
score during a reexamination of the
person’s knowledge.

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§ 242.123 Monitoring operational
performance.

(a) Each railroad shall adopt and
comply with a program that meets the
requirements of this section. When any
person including, but not limited to,
each railroad, railroad officer,
supervisor, and employee violates any
requirement of a program which
complies with the requirements of this
section, that person shall be considered
to have violated the requirements of this
section.
(b) Each railroad shall have a program
to monitor the conduct of its certified
conductors by performing unannounced
operating rules compliance tests. The
program shall include procedures to
address the testing of certified
conductors who are not given an
unannounced compliance test in a
calendar year pursuant to paragraph (f)
of this section. At a minimum, such
procedures shall include the following:
(1) A requirement that an
unannounced compliance test must be
conducted within 30 days of a return to
conductor service; and
(2) The railroad must retain a written
record indicating the date that the
conductor stopped performing service
that requires certification pursuant to
this part, the date that the conductor
returned to performing service that
requires certification pursuant to this
part, and the date that the unannounced
compliance test was performed.

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(c) Except as provided in paragraph (f)
of this section, each conductor shall be
given at least one unannounced
compliance test in each calendar year by
a railroad officer who meets the
requirements of § 217.9(b)(1) of this
chapter.
(d) The unannounced test program
shall:
(1) Test those persons certified as a
conductor pursuant to § 242.107(b)(1)
for compliance with one or more
operational tests in accordance with the
provisions of § 217.9 of this chapter; and
one or more provisions of §§ 218.99
through 218.109 of this chapter; and
(2) Test those persons certified as a
passenger conductor pursuant to
§ 242.107(b)(2) for compliance with one
or more operational tests in accordance
with the provisions of § 217.9 of this
chapter.
(i) For persons certified as passenger
conductors pursuant to § 242.107(b)(2)
who do not require compliance with
part 218, subpart F of this chapter
except under emergency circumstances,
the requirement for an annual,
unannounced test on the requirements
of part 218, subpart F may be satisfied
by annual training.
(ii) [Reserved]
(e) Each railroad’s program shall
indicate the action the railroad will take
in the event that it finds deficiencies
with a conductor’s performance during
an unannounced compliance test
administered in accordance with this
section.
(f) A certified conductor who is not
performing a service that requires
certification pursuant to this part need
not be given an unannounced
compliance test. However, when the
certified conductor returns to a service
that requires certification pursuant to
this part, that certified conductor must
be tested pursuant to this section within
30 days of his or her return.
§ 242.125 Certification determinations
made by other railroads.

(a) A railroad that is considering
certification of a person as a conductor
may rely on determinations made by
another railroad concerning that
person’s certification. The railroad’s
certification program shall address how
the railroad will administer the training
of previously uncertified conductors
with extensive operating experience or
previously certified conductors who
have had their certification expire. If a
railroad’s certification program fails to
specify how it will train a previously
certified conductor hired from another
railroad, then the railroad shall require
the newly hired conductor to take the
hiring railroad’s entire training program.

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(b) A railroad relying on another
railroad’s certification shall determine
that:
(1) The prior certification is still valid
in accordance with the provisions of
§§ 242.201 and 242.407;
(2) The prior certification was for the
same type of service as the certification
being issued under this section;
(3) The person has received training
on the physical characteristics of the
new territory in accordance with
§ 242.119; and
(4) The person has demonstrated the
necessary knowledge concerning the
railroad’s operating rules in accordance
with § 242.121.
§ 242.127 Reliance on qualification
requirements of other countries.

A Canadian railroad that is required
to comply with this regulation or a
railroad that conducts joint operations
with a Canadian railroad may certify
that a person is eligible to be a
conductor provided it determines that:
(a) The person is employed by the
Canadian railroad; and
(b) The person meets or exceeds the
qualifications standards issued by
Transport Canada for such service.
Subpart C—Administration of the
Certification Program
§ 242.201

Time limitations for certification.

(a) After the pertinent date in
§ 242.105(d) or (e), a railroad shall not
certify or recertify a person as a
conductor in any type of service, if the
railroad is making:
(1) A determination concerning
eligibility under §§ 242.111, 242.113,
242.115, and 242.403 and the eligibility
data being relied on was furnished more
than 366 days before the date of the
railroad’s certification decision;
(2) A determination concerning visual
and hearing acuity and the medical
examination being relied on was
conducted more than 450 days before
the date of the railroad’s certification
decision;
(3) A determination concerning
demonstrated knowledge and the
knowledge examination being relied on
was conducted more than 366 days
before the date of the railroad’s
certification decision; or
(4) A determination concerning
demonstrated knowledge and the
knowledge examination being relied on
was conducted more than 24 months
before the date of the railroad’s
recertification decision if the railroad
administers a knowledge testing
program pursuant to § 242.121 at
intervals that do not exceed 24 months.
(b) The time limitations of paragraph
(a) of this section do not apply to a

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railroad that is making a certification
decision in reliance on determinations
made by another railroad in accordance
with paragraph (c)(3) of this section,
§ 242.125, or § 242.127.
(c) No railroad shall:
(1) Permit or require a person,
designated under § 242.105(a) or (b), to
perform service as a certified conductor
for more than the 36-month period
beginning on the pertinent date for
compliance with the mandatory
procedures for testing and evaluation set
forth in the applicable provisions of
§ 242.105(d) or (e) unless that person
has been determined to be eligible in
accordance with procedures that
comply with subpart B of this part.
(2) Certify a person as a conductor for
an interval of more than 36 months; or
(3) Rely on a certification issued by
another railroad that is more than 36
months old.
(d) Except as provided for in
§ 242.105 concerning initial
implementation of the program, a
railroad shall issue each person
designated as a certified conductor a
certificate that complies with § 242.207
no later than 30 days from the date of
its decision to certify or recertify that
person.

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§ 242.203 Retaining information
supporting determinations.

(a) After the pertinent date in
§ 242.105(d) or (e), a railroad that issues,
denies, or revokes a certificate after
making the determinations required
under § 242.109 shall maintain a record
for each certified conductor or applicant
for certification that contains the
information the railroad relied on in
making the determinations.
(b) A railroad shall retain the
following information:
(1) Relevant data from the railroad’s
records concerning the person’s prior
safety conduct;
(2) Relevant data furnished by another
railroad;
(3) Relevant data furnished by a
governmental agency concerning the
person’s motor vehicle driving record;
(4) Relevant data furnished by the
person seeking certification concerning
his or her eligibility;
(5) The relevant test results data
concerning hearing and vision acuity;
(6) If applicable, the relevant data
concerning the professional opinion of
the railroad’s medical examiner on the
adequacy of the person’s hearing or
vision acuity;
(7) Relevant data from the railroad’s
records concerning the person’s success
or failure of the passage of knowledge
test(s) under § 242.121;

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(8) A sample copy of the written
knowledge test or tests administered;
and
(9) The relevant data from the
railroad’s records concerning the
person’s success or failure on
unannounced operating rules
compliance tests the railroad performed
to monitor the conductor’s performance
in accordance with § 242.123.
(c) If a railroad is relying on
successful completion of an approved
training program conducted by another
entity, the relying railroad shall
maintain a record for each certified
conductor that contains the relevant
data furnished by the training entity
concerning the person’s demonstration
of knowledge and relied on by the
railroad in making its determinations.
(d) If a railroad is relying on a
certification decision initially made by
another railroad, the relying railroad
shall maintain a record for each certified
conductor that contains the relevant
data furnished by the other railroad
which it relied on in making its
determinations.
(e) All records required under this
section shall be retained for a period of
six years from the date of the
certification, recertification, denial or
revocation decision and shall be made
available to FRA representatives upon
request during normal business hours.
(f) It shall be unlawful for any railroad
to knowingly or any individual to
willfully:
(1) Make, cause to be made, or
participate in the making of a false entry
on the record(s) required by this section;
or
(2) Otherwise falsify such records
through material misstatement,
omission, or mutilation.
(g) Nothing in this section precludes
a railroad from maintaining the
information required to be retained
under this section in an electronic
format provided that:
(1) The railroad maintains an
information technology security
program adequate to ensure the integrity
of the electronic data storage system,
including the prevention of
unauthorized access to the program
logic or individual records;
(2) The program and data storage
system must be protected by a security
system that utilizes an employee
identification number and password, or
a comparable method, to establish
appropriate levels of program access
meeting all of the following standards:
(i) No two individuals have the same
electronic identity; and
(ii) A record cannot be deleted or
altered by any individual after the

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record is certified by the employee who
created the record;
(3) Any amendment to a record is
either:
(i) Electronically stored apart from the
record that it amends; or
(ii) Electronically attached to the
record as information without changing
the original record;
(4) Each amendment to a record
uniquely identifies the person making
the amendment;
(5) The system employed by the
railroad for data storage permits
reasonable access and retrieval of the
information in usable format when
requested to furnish data by FRA
representatives; and
(6) Information retrieved from the
system can be easily produced in a
printed format which can be readily
provided to FRA representatives in a
timely manner and authenticated by a
designated representative of the railroad
as a true and accurate copy of the
railroad’s records if requested to do so
by FRA representatives.
§ 242.205 Identification of certified
persons and recordkeeping.

(a) After March 1, 2012, a railroad
shall maintain a list identifying each
person designated as a certified
conductor. That list shall indicate the
types of service the railroad determines
each person is authorized to perform
and date of the railroad’s certification
decision.
(b) If a railroad employs conductors
working in joint operations territory, the
list shall include person(s) determined
by that railroad to be certified as
conductor(s) and possessing the
necessary territorial qualifications for
the applicable territory in accordance
with § 242.301.
(c) The list required by paragraphs (a)
and (b) of this section shall:
(1) Be updated at least annually;
(2) Be available at the divisional or
regional headquarters of the railroad;
and
(3) Be available for inspection or
copying by FRA during regular business
hours.
(d) It shall be unlawful for any
railroad to knowingly or any individual
to willfully:
(1) Make, cause to be made, or
participate in the making of a false entry
on the list required by this section; or
(2) Otherwise falsify such list through
material misstatement, omission, or
mutilation.
(e) Nothing in this section precludes
a railroad from maintaining the list
required this section in an electronic
format provided that:
(1) The railroad maintains an
information technology security

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program adequate to ensure the integrity
of the electronic data storage system,
including the prevention of
unauthorized access to the program
logic or the list;
(2) The program and data storage
system must be protected by a security
system that utilizes an employee
identification number and password, or
a comparable method, to establish
appropriate levels of program access
meeting all of the following standards:
(i) No two individuals have the same
electronic identity; and
(ii) An entry on the list cannot be
deleted or altered by any individual
after the entry is certified by the
employee who created the entry;
(3) Any amendment to the list is
either:
(i) Electronically stored apart from the
entry on the list that it amends; or
(ii) Electronically attached to the
entry on the list as information without
changing the original entry;
(4) Each amendment to the list
uniquely identifies the person making
the amendment;
(5) The system employed by the
railroad for data storage permits
reasonable access and retrieval of the
information in usable format when
requested to furnish data by FRA
representatives; and
(6) Information retrieved from the
system can be easily produced in a
printed format which can be readily
provided to FRA representatives in a
timely manner and authenticated by a
designated representative of the railroad
as a true and accurate copy of the
railroad’s records if requested to do so
by FRA representatives.

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§ 242.207

Certificate components.

(a) At a minimum, each certificate
issued in compliance with this part
shall:
(1) Identify the railroad or parent
company that is issuing it;
(2) Indicate that the railroad, acting in
conformity with this part, has
determined that the person to whom it
is being issued has been determined to
be eligible to perform as a conductor or
as a passenger conductor;
(3) Identify the person to whom it is
being issued (including the person’s
name, employee identification number,
the year of birth, and either a physical
description or photograph of the
person);
(4) Identify any conditions or
limitations, including the type of service
or conditions to ameliorate vision or
hearing acuity deficiencies, that restrict
the person’s operational authority;
(5) Show the effective date of each
certification held;

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(6) Be signed by an individual
designated in accordance with
paragraph (b) of this section; and
(7) Be of sufficiently small size to
permit being carried in an ordinary
pocket wallet.
(b) Each railroad shall designate in
writing any person that it authorizes to
sign the certificates described in this
section. The designation shall identify
such persons by name or job title.
(c) Nothing in paragraph (a) of this
section shall prohibit any railroad from
including additional information on the
certificate or supplementing the
certificate through other documents.
(d) It shall be unlawful for any
railroad to knowingly or any individual
to willfully:
(1) Make, cause to be made, or
participate in the making of a false entry
on that certificate; or
(2) Otherwise falsify that certificate
through material misstatement,
omission, or mutilation.
§ 242.209

Maintenance of the certificate.

(a) Each conductor who has received
a certificate required under this part
shall:
(1) Have that certificate in his or her
possession while on duty as a
conductor; and
(2) Display that certificate upon the
receipt of a request to do so from:
(i) A representative of the Federal
Railroad Administration,
(ii) A State inspector authorized
under part 212 of this chapter,
(iii) An officer of the issuing railroad,
or
(iv) An officer of another railroad
when serving as a conductor in joint
operations territory.
(b) Any conductor who is notified or
called to serve as a conductor and such
service would cause the conductor to
exceed certificate limitations, set forth
in accordance with subpart B of this
part, shall immediately notify the
railroad that he or she is not authorized
to perform that anticipated service and
it shall be unlawful for the railroad to
require such service.
(c) Nothing in this section shall be
deemed to alter a certified conductor’s
duty to comply with other provisions of
this chapter concerning railroad safety.
§ 242.211

Replacement of certificates.

(a) A railroad shall have a system for
the prompt replacement of lost, stolen
or mutilated certificates at no cost to
conductors. That system shall be
reasonably accessible to certified
conductors in need of a replacement
certificate or temporary replacement
certificate.
(b) At a minimum, a temporary
replacement certificate must identify the

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person to whom it is being issued
(including the person’s name,
identification number and year of birth);
indicate the date of issuance; and be
authorized by a designated supervisor.
Temporary replacement certificates may
be delivered electronically and are valid
for a period no greater than 30 days.
§ 242.213

Multiple certifications.

(a) A person may hold certification for
multiple types of conductor service.
(b) A person may hold both conductor
and locomotive engineer certification.
(c) A railroad that issues multiple
certificates to a person, shall, to the
extent possible, coordinate the
expiration date of those certificates.
(d) Except as provided in paragraph
(e) of this section, a locomotive
engineer, including a remote control
operator, who is operating a locomotive
without an assigned certified conductor
must either be:
(1) Certified as both a locomotive
engineer under part 240 of this chapter
and as a conductor under this part; or
(2) Accompanied by a person certified
as a conductor under this part but who
will be attached to the crew in a manner
similar to that of an independent
assignment.
(e) Passenger railroad operations: If
the conductor is removed from a train
for a medical, police or other such
emergency after the train departs from
an initial terminal, the train may
proceed to the first location where the
conductor can be replaced without
incurring undue delay without the
locomotive engineer being a certified
conductor. However, an assistant
conductor or brakeman must be on the
train and the locomotive engineer must
be informed that there is no certified
conductor on the train prior to any
movement.
(f) During the duration of any
certification interval, a person who
holds a current conductor and/or
locomotive engineer certificate from
more than one railroad shall
immediately notify the other certifying
railroad(s) if he or she is denied
conductor or locomotive engineer
recertification under § 242.401 or
§ 240.219 of this chapter or has his or
her conductor or locomotive engineer
certification revoked under § 242.407 or
§ 240.307 of this chapter by another
railroad.
(g) A person who is certified to
perform multiple types of conductor
service and who has had any of those
certifications revoked under § 242.407
may not perform any type of conductor
service during the period of revocation.
(h) A person who holds a current
conductor and locomotive engineer

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certificate and who has had his or her
conductor certification revoked under
§ 242.407 for a violation of
§ 242.403(e)(1) through (5) or (e)(12)
may not work as a locomotive engineer
during the period of revocation.
However, a person who holds a current
conductor and locomotive engineer
certificate and who has had his or her
conductor certification revoked under
§ 242.407 for a violation of
§ 242.403(e)(6) through (11) may work
as a locomotive engineer during the
period of revocation.
(1) For purposes of determining the
period for which a person may not work
as a certified locomotive engineer due to
a revocation of his or her conductor
certification, only violations of
§ 242.403(e)(1) through (5) or (e)(12) will
be counted. Thus, a person who holds
a current conductor and locomotive
engineer certificate and who has had his
or her conductor certification revoked
three times in less than 36 months for
two violations of § 242.403(e)(6) and one
violation of § 242.403(e)(1) would have
his or her conductor certificate revoked
for 1 year, but would not be permitted
to work as a locomotive engineer for one
month (i.e., the period of revocation for
one violation of § 242.403(e)(1)).
(i) A person who holds a current
conductor and locomotive engineer
certificate and who has had his or her
locomotive engineer certification
revoked under § 240.307 of this chapter
may not work as a conductor during the
period of revocation.
(j) A person who has had his or her
locomotive engineer certification
revoked under § 240.307 of this chapter
may not obtain a conductor certificate
pursuant to this part during the period
of revocation.
(k) A person who had his or her
conductor certification revoked under
§ 242.407 for violations of
§ 242.403(e)(1) through (5) or (e)(12)
may not obtain a locomotive engineer
certificate pursuant to part 240 of this
chapter during the period of revocation.
(l) A railroad that denies a person
conductor certification or recertification
under § 242.401 shall not, solely on the
basis of that denial, deny or revoke that
person’s locomotive engineer
certification or recertification.
(m) A railroad that denies a person
locomotive engineer certification or
recertification under § 240.219 of this
chapter shall not, solely on the basis of
that denial, deny or revoke that person’s
conductor certification or
recertification.
(n) In lieu of issuing multiple
certificates, a railroad may issue one
certificate to a person who is certified to
perform multiple types of conductor

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service or is certified as a conductor and
a locomotive engineer. The certificate
must comply with § 240.223 of this
chapter and § 242.207.
(o) A person who holds a current
conductor and locomotive engineer
certificate and who is involved in a
revocable event under § 242.407 or
§ 240.307 of this chapter may only have
one certificate revoked for that event.
The determination by the railroad as to
which certificate to revoke for the
revocable event must be based on the
work the person was performing at the
time the event occurred.
§ 242.215 Railroad oversight
responsibilities.

(a) No later than March 31 of each
year (beginning in calendar year 2013),
each Class I railroad (including the
National Railroad Passenger Corporation
and a railroad providing commuter
service) and each Class II railroad shall
conduct a formal annual review and
analysis concerning the administration
of its program for responding to
detected instances of poor safety
conduct by certified conductors during
the prior calendar year.
(b) Each review and analysis shall
involve:
(1) The number and nature of the
instances of detected poor safety
conduct including the nature of the
remedial action taken in response
thereto;
(2) The number and nature of FRA
reported train accidents attributed to
poor safety performance by conductors;
(3) The number and type of
operational monitoring test failures
recorded by railroad officers who meet
the requirements of § 217.9(b)(1) of this
chapter; and
(4) If the railroad conducts joint
operations with another railroad, the
number of conductors employed by the
other railroad(s) which: were involved
in events described in this paragraph
and were determined to be certified and
to have possessed the necessary
territorial qualifications for joint
operations purposes by the controlling
railroad.
(c) Based on that review and analysis,
each railroad shall determine what
action(s) it will take to improve the
safety of railroad operations to reduce or
eliminate future incidents of that nature.
(d) If requested in writing by FRA, the
railroad shall provide a report of the
findings and conclusions reached
during such annual review and analysis
effort.
(e) For reporting purposes,
information about the nature of detected
poor safety conduct shall be capable of

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segregation for study and evaluation
purposes into the following categories:
(1) Incidents involving
noncompliance with part 218 of this
chapter;
(2) Incidents involving
noncompliance with part 219 of this
chapter;
(3) Incidents involving
noncompliance with the procedures for
the safe use of train or engine brakes
when the procedures are required for
compliance with the Class I, Class IA,
Class II, Class III, or transfer train brake
test provisions of part 232 of this
chapter or when the procedures are
required for compliance with the Class
1, Class 1A, Class II, or running brake
test provisions of part 238 of this
chapter;
(4) Incidents involving
noncompliance with the railroad’s
operating rules involving operation of a
locomotive or train to operate at a speed
that exceeds the maximum authorized
limit;
(5) Incidents involving
noncompliance with the railroad’s
operating rules resulting in operation of
a locomotive or train past any signal,
excluding a hand or a radio signal
indication or a switch, that requires a
complete stop before passing it;
(6) Incidents involving
noncompliance with the provisions of
restricted speed, and the operational
equivalent thereof, that must be
reported under the provisions of part
225 of this chapter;
(7) Incidents involving occupying
main track or a segment of main track
without proper authority or permission;
and
(8) Incidents involving the failure to
comply with prohibitions against
tampering with locomotive mounted
safety devices, or knowingly operating
or permitting to be operated a train with
an unauthorized or disabled safety
device in the controlling locomotive.
(f) For reporting purposes, an instance
of poor safety conduct involving a
person who holds both conductor
certification pursuant to this part and
locomotive engineer certification
pursuant to part 240 of this chapter
need only be reported once (either
under 49 CFR 240.309 of this chapter or
this section). The determination as to
where to report the instance of poor
safety conduct should be based on the
work the person was performing at the
time the conduct occurred.
(g) For reporting purposes each
category of detected poor safety conduct
identified in paragraph (b) of this
section shall be capable of being
annotated to reflect the following:

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(1) The nature of the remedial action
taken and the number of events
subdivided so as to reflect which of the
following actions was selected:
(i) Imposition of informal discipline;
(ii) Imposition of formal discipline;
(iii) Provision of informal training; or
(iv) Provision of formal training; and
(2) If the nature of the remedial action
taken was formal discipline, the number
of events further subdivided so as to
reflect which of the following
punishments was imposed by the
railroad:
(i) The person was withheld from
service;
(ii) The person was dismissed from
employment or
(iii) The person was issued demerits.
If more than one form of punishment
was imposed only that punishment
deemed the most severe shall be shown.
(h) For reporting purposes each
category of detected poor safety conduct
identified in paragraph (b) of this
section which resulted in the imposition
of formal or informal discipline shall be
annotated to reflect the following:
(1) The number of instances in which
the railroad’s internal appeals process
reduced the punishment initially
imposed at the conclusion of its hearing;
and
(2) The number of instances in which
the punishment imposed by the railroad
was reduced by any of the following
entities: The National Railroad
Adjustment Board, a Public Law Board,
a Special Board of Adjustment or other
body for the resolution of disputes duly
constituted under the provisions of the
Railway Labor Act.
(i) For reporting purposes, each
category of detected poor safety conduct
identified in paragraph (b) of this
section shall be capable of being
annotated to reflect the following:
(1) The total number of incidents in
that category;
(2) The number of incidents within
that total which reflect incidents
requiring an FRA accident/incident
report under part 225 of this chapter;
and
(3) The number of incidents within
that total which were detected as a
result of a scheduled operational
monitoring effort.

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Subpart D—Territorial Qualification
and Joint Operations
§ 242.301 Requirements for territorial
qualification.

(a) Except as provided in paragraph
(c), (d), or (e) of this section, a railroad,
including a railroad that employs
conductors working in joint operations
territory, shall not permit or require a

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person to serve as a conductor unless
that railroad determines that the person
is certified as a conductor and possesses
the necessary territorial qualifications
for the applicable territory pursuant to
§ 242.119.
(b) Each person who is called to serve
as a conductor shall:
(1) Meet the territorial qualification
requirements on the segment of track
upon which he or she will serve as a
conductor; and
(2) Immediately notify the railroad
upon which he or she is employed if he
or she does not meet the required
territorial qualifications.
(c) Except as provided in paragraph
(e) of this section, if a conductor lacks
territorial qualification on main track
physical characteristics required by
paragraph (a) of this section, he or she
shall be assisted by a person who meets
the territorial qualification requirements
for main track physical characteristics.
(1) For a conductor who has never
been qualified on main track physical
characteristics of the territory over
which he or she is to serve as a
conductor, the assistant shall be a
person who is certified as a conductor,
meets the territorial qualification
requirements for main track physical
characteristics, and is not an assigned
crew member.
(2) For a conductor who was
previously qualified on main track
physical characteristics of the territory
over which he or she is to serve as a
conductor, but whose qualification has
expired, the assistant may be any
person, including an assigned
crewmember other than the locomotive
engineer so long as serving as the
assistant would not conflict with that
crewmember’s other safety sensitive
duties, who meets the territorial
qualification requirements for main
track physical characteristics.
(d) If a conductor lacks territorial
qualification on other than main track
physical characteristics required by
paragraph (a) of this section, where
practicable, he or she shall be assisted
by a person who is a certified conductor
and meets the territorial qualification
requirements for other than main track
physical characteristics. Where not
practicable, the conductor shall be
provided an appropriate up-to-date job
aid.
(e) An assistant is not required if the
movement is on a section of main track
with an average grade of less than 1%
over 3 continuous miles, and
(1) The maximum distance the
locomotive or train will be operated
does not exceed one mile; or

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(2) The maximum authorized speed
for any operation on the track does not
exceed 20 miles per hour; or
(3) Operations are conducted under
operating rules that require every
locomotive and train to proceed at a
speed that permits stopping within one
half the range of vision of the
locomotive engineer.
Subpart E—Denial and Revocation of
Certification
§ 242.401

Denial of certification.

(a) A railroad shall notify a candidate
for certification or recertification of
information known to the railroad that
forms the basis for denying the person
certification and provide the person a
reasonable opportunity to explain or
rebut that adverse information in
writing prior to denying certification. A
railroad shall provide the conductor
candidate with any written documents
or records, including written statements,
related to failure to meet a requirement
of this part which support its pending
denial decision.
(b) This section does not require
further opportunity to comment if the
railroad’s denial is based solely on
factors addressed by §§ 242.111,
242.115, or 242.403 and the opportunity
to comment afforded by § 242.109 has
been provided.
(c) If a railroad denies a person
certification or recertification, it shall
notify the person of the adverse decision
and explain, in writing, the basis for its
denial decision. The basis for a
railroad’s denial decision shall address
any explanation or rebuttal information
that the conductor candidate may have
provided in writing pursuant to
paragraph (a) of this section. The
document explaining the basis for the
denial shall be served on the person
within 10 days after the railroad’s
decision and shall give the date of the
decision.
(d) A railroad shall not deny the
person’s certification for failing to
comply with a railroad operating rule or
practice which constitutes a violation
under § 242.403(e)(1) through (11) of
this part if sufficient evidence exists to
establish that an intervening cause
prevented or materially impaired the
conductor’s ability to comply with that
railroad operating rule or practice.
§ 242.403 Criteria for revoking
certification.

(a) Each railroad shall adopt and
comply with a program which meets the
requirements of this section. When any
person including, but not limited to,
each railroad, railroad officer,
supervisor, and employee violates any

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requirement of a program which
complies with the requirements of this
section, that person shall be considered
to have violated the requirements of this
section.
(b) It shall be unlawful to fail to
comply with any of the railroad rules
and practices described in paragraph (e)
of this section.
(c)(1) A certified conductor who has
demonstrated a failure to comply with
railroad rules and practices described in
paragraph (e) of this section shall have
his or her certification revoked.
(2) A certified conductor who is
monitoring, piloting, or instructing a
conductor and fails to take appropriate
action to prevent a violation of
paragraph (e) of this section shall have
his or her certification revoked.
Appropriate action does not mean that
a supervisor, pilot, or instructor must
prevent a violation from occurring at all
costs; the duty may be met by warning
the conductor or the engineer, as
appropriate, of a potential or foreseeable
violation.
(3) A certified conductor who is
called by a railroad to perform the duty
of a train crew member other than that
of conductor or locomotive engineer
shall not have his or her certification
revoked based on actions taken or not
taken while performing that duty.
(d) Limitations on consideration of
prior operating rule compliance data: In
determining whether a person may be or
remain certified as a conductor, a
railroad shall consider as operating rule
compliance data only conduct described
in paragraphs (e)(1) through (e)(11) of
this section that occurred within a
period of 36 consecutive months prior
to the determination. A review of an
existing certification shall be initiated
promptly upon the occurrence and
documentation of any conduct
described in this section.
(e) A railroad shall only consider
violations of its operating rules and
practices that involve:
(1) Failure to take appropriate action
to prevent the locomotive engineer of
the train the conductor is assigned to
from failing to control a locomotive or
train in accordance with a signal
indication, excluding a hand or a radio
signal indication or a switch, that
requires a complete stop before passing
it, when the conductor is located in the
operating cab, or otherwise has
knowledge of the signal indication.
Appropriate action does not mean that
a conductor must prevent a violation
from occurring at all costs; the duty may
be met by warning an engineer of a
potential or foreseeable violation.
(2) Failure to take appropriate action
to prevent the locomotive engineer of

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the train the conductor is assigned to
from failing to adhere to the following
limitations concerning train speed:
(i) When the conductor is located in
the operating cab and the speed at
which the train was operated exceeds
the maximum authorized limit by at
least 10 miles per hour. Where restricted
speed is in effect, railroads shall
consider only those violations of the
conditional clause of restricted speed
rules (i.e., the clause that requires
stopping within one half of the
locomotive engineer’s range of vision),
or the operational equivalent thereof,
which cause reportable accidents or
incidents under part 225 of this chapter,
except for accidents and incidents that
are classified as ‘‘covered data’’ under
§ 225.5 of this chapter. Appropriate
action does not mean that a conductor
must prevent a violation from occurring
at all costs; the duty may be met by
warning an engineer of a potential or
foreseeable violation.
(ii) When not in the operating cab, the
conductor is deemed to have taken
appropriate action when in compliance
with all applicable Railroad Operating
Rules and Special Instructions.
(3) Failure to perform or have
knowledge that a required brake test
was performed pursuant to the Class I,
Class IA, Class II, Class III, or transfer
train brake test provisions of part 232 of
this chapter or the Class 1, Class 1A,
Class II, or running brake test provisions
of part 238 of this chapter.
(4) Failure to take appropriate action
to prevent the locomotive engineer of
the train the conductor is assigned to
from occupying main track or a segment
of main track without proper authority
or permission. Appropriate action does
not mean that a conductor must prevent
a violation from occurring at all costs;
the duty may be met by warning an
engineer of a potential or foreseeable
violation.
(5) Failure to comply with
prohibitions against tampering with
locomotive mounted safety devices;
knowingly fail to take appropriate
action to prevent the locomotive
engineer of the train the conductor is
assigned to from failing to comply with
prohibitions against tampering with
locomotive mounted safety devices; or
knowingly fail to take appropriate
action to prevent the locomotive
engineer of the train the conductor is
assigned to from operating or permitting
to be operated a train with an
unauthorized disabled safety device in
the controlling locomotive. (See 49 CFR
part 218, subpart D and appendix C to
part 218);
(6) Failure to comply with the
provisions of § 218.99 of this chapter

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(Shoving or pushing movements).
Railroads shall only consider those
violations of § 218.99 of this chapter
which cause reportable accidents or
incidents under part 225 of this chapter,
except for accidents and incidents that
are classified as ‘‘covered data’’ under
§ 225.5 of this chapter.
(7) Failure to comply with the
provisions of § 218.101 of this chapter
(Leaving rolling and on-track
maintenance-of-way equipment in the
clear). Railroads shall only consider
those violations of § 218.101 of this
chapter which cause reportable
accidents or incidents under part 225 of
this chapter, except for accidents and
incidents that are classified as ‘‘covered
data’’ under § 225.5 of this chapter.
(8) Failure to comply with the
provisions of § 218.103 of this chapter
(Hand-operated switches, including
crossover switches). Railroads shall only
consider those violations of § 218.103 of
this chapter which cause reportable
accidents or incidents under part 225 of
this chapter, except for accidents and
incidents that are classified as ‘‘covered
data’’ under § 225.5 of this chapter.
(9) Failure to comply with the
provisions of § 218.105 of this chapter
(Additional operational requirements
for hand-operated main track switches).
Railroads shall only consider those
violations of § 218.105 of this chapter
which cause reportable accidents or
incidents under part 225 of this chapter,
except for accidents and incidents that
are classified as ‘‘covered data’’ under
§ 225.5 of this chapter.
(10) Failure to comply with the
provisions of § 218.107 of this chapter
(Additional operational requirements
for hand-operated crossover switches).
Railroads shall only consider those
violations of § 218.107 of this chapter
which cause reportable accidents or
incidents under part 225 of this chapter,
except for accidents and incidents that
are classified as ‘‘covered data’’ under
§ 225.5 of this chapter.
(11) Failure to comply with the
provisions of § 218.109 of this chapter
(Hand-operated fixed derails). Railroads
shall only consider those violations of
§ 218.109 of this chapter which cause
reportable accidents or incidents under
part 225 of this chapter, except for
accidents and incidents that are
classified as ‘‘covered data’’ under
§ 225.5 of this chapter.
(12) Failure to comply with § 219.101
of this chapter; however such incidents
shall be considered as a violation only
for the purposes of § 242.405(a)(2) and
(3).
(f)(1) If in any single incident the
person’s conduct contravened more
than one operating rule or practice, that

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event shall be treated as a single
violation for the purposes of this
section.
(2) A violation of one or more
operating rules or practices described in
paragraphs (e)(1) through (11) of this
section that occurs during a properly
conducted operational compliance test
subject to the provisions of this chapter
shall be counted in determining the
periods of ineligibility described in
§ 242.405.
(3) An operational test that is not
conducted in compliance with this part,
a railroad’s operating rules, or a
railroad’s program under § 217.9 of this
chapter, will not be considered a
legitimate test of operational skill or
knowledge, and will not be considered
for certification, recertification or
revocation purposes.
(4) A railroad shall not be permitted
to deny or revoke an employee’s
certification based upon additional
conditions or operational restrictions
imposed pursuant to § 242.107(d).

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§ 242.405

Periods of ineligibility.

(a) A period of ineligibility described
in this paragraph shall:
(1) Begin, for a person not currently
certified, on the date of the railroad’s
written determination that the most
recent incident has occurred; or
(2) Begin, for a person currently
certified, on the date of the railroad’s
notification to the person that
recertification has been denied or
certification has been revoked; and
(3) Be determined according to the
following standards:
(i) On other than main track where
restricted speed or the operational
equivalent thereof is in effect, the period
of revocation for a violation of
§ 242.403(e)(6) through (8), (10), or (11)
shall be reduced by one half provided
that another revocable event has not
occurred within the previous 12
months.
(ii) In the case of a single incident
involving violation of one or more of the
operating rules or practices described in
§ 242.403(e)(1) through (11), the person
shall have his or her certificate revoked
for a period of 30 calendar days.
(iii) In the case of two separate
incidents involving a violation of one or
more of the operating rules or practices
described in § 242.403(e)(1) through
(11), that occurred within 24 months of
each other, the person shall have his or
her certificate revoked for a period of six
months.
(iv) In the case of three separate
incidents involving violations of one or
more of the operating rules or practices,
described in § 242.403(e)(1) through
(12), that occurred within 36 months of

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each other, the person shall have his or
her certificate revoked for a period of
one year.
(v) In the case of four separate
incidents involving violations of one or
more of the operating rules or practices,
described in § 242.403(e)(1) through
(12), that occurred within 36 months of
each other, the person shall have his or
her certificate revoked for a period of
three years.
(vi) Where, based on the occurrence of
violations described in § 242.403(e)(12),
different periods of ineligibility may
result under the provisions of this
section and § 242.115, the longest
period of revocation shall control.
(b) Any or all periods of revocation
provided in paragraph (a) of this section
may consist of training.
(c) Reduction in period of
ineligibility: A person whose
certification is denied or revoked shall
be eligible for grant or reinstatement of
the certificate prior to the expiration of
the initial period of ineligibility only if:
(1) The denial or revocation of
certification in accordance with the
provisions of paragraph (a)(3) of this
section is for a period of one year or
less;
(2) Certification is denied or revoked
for reasons other than noncompliance
with § 219.101 of this chapter;
(3) The person is evaluated by a
railroad officer and determined to have
received adequate remedial training;
(4) The person successfully completes
any mandatory program of training or
retraining, if that is determined to be
necessary by the railroad prior to return
to service; and
(5) At least one half the pertinent
period of ineligibility specified in
paragraph (a)(3) of this section has
elapsed.
§ 242.407 Process for revoking
certification.

(a) Except as provided for in
§ 242.115(g), a railroad that certifies or
recertifies a person as a conductor and,
during the period that certification is
valid, acquires reliable information
regarding violation(s) of § 242.403(e) or
§ 242.115(e) of this chapter shall revoke
the person’s conductor certificate.
(b) Pending a revocation
determination under this section, the
railroad shall:
(1) Upon receipt of reliable
information regarding violation(s) of
§ 242.403(e) or § 242.115(e) of this
chapter, immediately suspend the
person’s certificate;
(2) Prior to or upon suspending the
person’s certificate, provide notice of
the reason for the suspension, the
pending revocation, and an opportunity

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69857

for a hearing before a presiding officer
other than the investigating officer. The
notice may initially be given either
orally or in writing. If given orally, it
must be confirmed in writing and the
written confirmation must be made
promptly. Written confirmation which
conforms to the notification provisions
of an applicable collective bargaining
agreement shall be deemed to satisfy the
written confirmation requirements of
this section. In the absence of an
applicable collective bargaining
agreement provision, the written
confirmation must be made within 96
hours.
(3) Convene the hearing within the
deadline prescribed by either paragraph
(c)(1) of this section or the applicable
collective bargaining agreement as
permitted under paragraph (d) of this
section;
(4) No later than the convening of the
hearing and notwithstanding the terms
of an applicable collective bargaining
agreement, the railroad convening the
hearing shall provide the person with a
copy of the written information and list
of witnesses the railroad will present at
the hearing. If requested, a recess to the
start of the hearing will be granted if
that information is not provided until
just prior to the convening of the
hearing. If the information was provided
through statements of an employee of
the convening railroad, the railroad will
make that employee available for
examination during the hearing required
by paragraph (b)(3) of this section.
Examination may be telephonic where it
is impractical to provide the witness at
the hearing.
(5) Determine, on the record of the
hearing, whether the person no longer
meets the certification requirements of
this part stating explicitly the basis for
the conclusion reached;
(6) When appropriate, impose the
pertinent period of revocation provided
for in § 242.405 or § 242.115; and
(7) Retain the record of the hearing for
3 years after the date the decision is
rendered.
(c) Except as provided for in
paragraphs (d), (f), (i), and (j) of this
section, a hearing required by this
section shall be conducted in
accordance with the following
procedures:
(1) The hearing shall be convened
within 10 days of the date the certificate
is suspended unless the conductor
requests or consents to delay in the start
of the hearing.
(2) The hearing shall be conducted by
a presiding officer, who can be any
proficient person authorized by the
railroad other than the investigating
officer.

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(3) The presiding officer will exercise
the powers necessary to regulate the
conduct of the hearing for the purpose
of achieving a prompt and fair
determination of all material issues in
controversy.
(4) The presiding officer shall
convene and preside over the hearing.
(5) Testimony by witnesses at the
hearing shall be recorded verbatim.
(6) All relevant and probative
evidence shall be received unless the
presiding officer determines the
evidence to be unduly repetitive or so
extensive and lacking in relevancy that
its admission would impair the prompt,
orderly, and fair resolution of the
proceeding.
(7) The presiding officer may:
(i) Adopt any needed procedures for
the submission of evidence in written
form;
(ii) Examine witnesses at the hearing;
(iii) Convene, recess, adjourn or
otherwise regulate the course of the
hearing; and
(iv) Take any other action authorized
by or consistent with the provisions of
this part and permitted by law that may
expedite the hearing or aid in the
disposition of the proceeding.
(8) Parties may appear and be heard
on their own behalf or through
designated representatives. Parties may
offer relevant evidence including
testimony and may conduct such
examination of witnesses as may be
required for a full disclosure of the
relevant facts.
(9) The record in the proceeding shall
be closed at the conclusion of the
hearing unless the presiding officer
allows additional time for the
submission of information. In such
instances the record shall be left open
for such time as the presiding officer
grants for that purpose.
(10) No later than 10 days after the
close of the record, a railroad official,
other than the investigating officer, shall
prepare and sign a written decision in
the proceeding.
(11) The decision shall:
(i) Contain the findings of fact as well
as the basis therefor, concerning all
material issues of fact presented on the
record and citations to all applicable
railroad rules and practices;
(ii) State whether the railroad official
found that a revocable event occurred
and the applicable period of revocation
with a citation to 49 CFR 242.405
(Periods of revocation); and
(iii) Be served on the employee and
the employee’s representative, if any,
with the railroad to retain proof of that
service.
(12) The railroad shall have the
burden of proving that the conductor’s

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conduct was not in compliance with the
applicable railroad operating rule or
practice or part 219 of this chapter.
(d) A hearing required by this section
which is conducted in a manner that
conforms procedurally to the applicable
collective bargaining agreement shall be
deemed to satisfy the procedural
requirements of this section.
(e) A hearing required under this
section may be consolidated with any
disciplinary or other hearing arising
from the same facts, but in all instances
a railroad official, other than the
investigating officer, shall make separate
findings as to the revocation required
under this section.
(f) A person may waive the right to
the hearing provided under this section.
That waiver shall:
(1) Be made in writing;
(2) Reflect the fact that the person has
knowledge and understanding of these
rights and voluntarily surrenders them;
and
(3) Be signed by the person making
the waiver.
(g) A railroad that has relied on the
certification by another railroad under
the provisions of § 242.127 or § 242.301,
shall revoke its certification if, during
the period that certification is valid, the
railroad acquires information which
convinces it that another railroad has
revoked its certification in accordance
with the provisions of this section. The
requirement to provide a hearing under
this section is satisfied when any single
railroad holds a hearing and no
additional hearing is required prior to a
revocation by more than one railroad
arising from the same facts.
(h) The period of certificate
suspension prior to the commencement
of a hearing required under this section
shall be credited towards satisfying any
applicable revocation period imposed in
accordance with the provisions of
§ 242.405.
(i) A railroad:
(1) Shall not revoke the person’s
certification as provided for in
paragraph (a) of this section if sufficient
evidence exists to establish that an
intervening cause prevented or
materially impaired the conductor’s
ability to comply with the railroad
operating rule or practice which
constitutes a violation under
§ 242.403(e)(1) through (e)(11); or
(2) May decide not to revoke the
person’s certification as provided for in
paragraph (a) of this section if sufficient
evidence exists to establish that the
violation of § 242.403(e)(1) through (11)
was of a minimal nature and had no
direct or potential effect on rail safety.
(j) The railroad shall place the
relevant information in the records

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maintained in compliance with
§ 242.215 for Class I (including the
National Railroad Passenger
Corporation) and Class II railroads, and
§ 242.203 for Class III railroads if
sufficient evidence meeting the criteria
provided in paragraph (i) of this section,
becomes available either:
(1) Prior to a railroad’s action to
suspend the certificate as provided for
in paragraph (b)(1) of this section; or
(2) Prior to the convening of the
hearing provided for in this section;
(k) Provided that the railroad makes a
good faith determination after a
reasonable inquiry that the course of
conduct provided for in paragraph (i) of
this section is appropriate, the railroad
which does not suspend a conductor’s
certification, as provided for in
paragraph (b) of this section, is not in
violation of paragraph (a) of this section.
Subpart F—Dispute Resolution
Procedures
§ 242.501

Review board established.

(a) Any person who has been denied
certification, denied recertification, or
has had his or her certification revoked
and believes that a railroad incorrectly
determined that he or she failed to meet
the certification requirements of this
regulation when making the decision to
deny or revoke certification, may
petition the Federal Railroad
Administrator to review the railroad’s
decision.
(b) The Administrator has delegated
initial responsibility for adjudicating
such disputes to the Operating Crew
Review Board.
(c) The Operating Crew Review Board
shall be composed of employees of the
Federal Railroad Administration
selected by the Administrator.
§ 242.503

Petition requirements.

(a) To obtain review of a railroad’s
decision to deny certification, deny
recertification, or revoke certification, a
person shall file a petition for review
that complies with this section.
(b) Each petition shall:
(1) Be in writing;
(2) Be filed with the Docket Clerk,
U.S. Department of Transportation,
Docket Operations (M–30), West
Building Ground Floor, Room W12–140,
1200 New Jersey Avenue SE.,
Washington, DC 20590. The form of
such request may be in written or
electronic form consistent with the
standards and requirements established
by the Federal Docket Management
System and posted on its Web site at
http://www.regulations.gov.
(3) Contain all available information
that the person thinks supports the

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person’s belief that the railroad acted
improperly, including:
(i) The petitioner’s full name;
(ii) The petitioner’s current mailing
address;
(iii) The petitioner’s daytime
telephone number;
(iv) The petitioner’s email address (if
available);
(v) The name and address of the
railroad; and
(vi) The facts that the petitioner
believes constitute the improper action
by the railroad, specifying the locations,
dates, and identities of all persons who
were present or involved in the
railroad’s actions (to the degree known
by the petitioner);
(4) Explain the nature of the remedial
action sought;
(5) Be supplemented by a copy of all
written documents in the petitioner’s
possession or reasonably available to the
petitioner that document that railroad’s
decision; and
(6) Be filed in a timely manner.
(7) Be supplemented, if requested by
the Operating Crew Review Board, with
a copy of the information under 49 CFR
40.329 that laboratories, medical review
officers, and other service agents are
required to release to employees. The
petitioner must provide written
explanation in response to an Operating
Crew Review Board request if written
documents that should be reasonably
available to the petitioner are not
supplied.
(c) A petition seeking review of a
railroad’s decision to deny certification
or recertification or revoke certification
in accordance with the procedures
required by § 242.407 filed with FRA
more than 120 days after the date the
railroad’s denial or revocation decision
was served on the petitioner will be
denied as untimely except that the
Operating Crew Review Board for cause
shown may extend the petition filing
period at any time in its discretion:
(1) Provided the request for extension
is filed before the expiration of the
period provided in this paragraph; or
(2) Provided that the failure to timely
file was the result of excusable neglect.
(d) A party aggrieved by a Board
decision to deny a petition as untimely
or not in compliance with the
requirements of this section may file an
appeal with the Administrator in
accordance with § 242.511.
§ 242.505 Processing certification review
petitions.

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

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the Board will attempt to render a
decision on this petition within 180
days from the date that the railroad’s
response is received or from the date
upon which the railroad’s response
period has lapsed pursuant to paragraph
(c) of this section.
(b) Upon receipt of the petition, FRA
will notify the railroad that it has
received the petition and where the
petition may be accessed.
(c) Within 60 days from the date of
the notification provided in paragraph
(b) of this section, the railroad may
submit to FRA any information that the
railroad considers pertinent to the
petition. Late filings will only be
considered to the extent practicable.
(d) A railroad that submits such
information shall:
(1) Identify the petitioner by name
and the docket number of the review
proceeding and provide the railroad’s
email address (if available);
(2) Serve a copy of the information
being submitted to FRA to the petitioner
and petitioner’s representative, if any;
and
(3) File the information with the
Docket Clerk, U.S. Department of
Transportation, Docket Operations (M–
30), West Building Ground Floor, Room
W12–140, 1200 New Jersey Avenue SE.,
Washington, DC 20590. The form of
such information may be in written or
electronic form consistent with the
standards and requirements established
by the Federal Docket Management
System and posted on its Web site at
http://www.regulations.gov.
(e) Each petition will then be referred
to the Operating Crew Review Board for
a decision.
(f) Based on the record, the Board
shall have the authority to grant, deny,
dismiss or remand the petition.
(g) If the Board finds that there is
insufficient basis for granting or denying
the petition, the Board shall issue an
order affording the parties an
opportunity to provide additional
information or argument consistent with
its findings.
(h) Standard of review for factual
issues: When considering factual issues,
the Board will determine whether there
is substantial evidence to support the
railroad’s decision, and a negative
finding is grounds for granting the
petition.
(i) Standard of review for procedural
issues: When considering procedural
issues, the Board will determine
whether substantial harm was caused
the petitioner by virtue of the failure to
adhere to the dictated procedures for
making the railroad’s decision. A
finding of substantial harm is grounds
for reversing the railroad’s decision. To

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69859

establish grounds upon which the Board
may grant relief, Petitioner must show:
(1) That procedural error occurred,
and
(2) The procedural error caused
substantial harm.
(j) Standard of review for legal issues:
Pursuant to its reviewing role, the Board
will consider whether the railroad’s
legal interpretations are correct based on
a de novo review.
(k) The Board will determine whether
the denial or revocation of certification
or recertification was improper under
this regulation (i.e., based on an
incorrect determination that the person
failed to meet the certification
requirements of this regulation) and
grant or deny the petition accordingly.
The Board will not otherwise consider
the propriety of a railroad’s decision,
i.e., it will not consider whether the
railroad properly applied its own more
stringent requirements.
(l) The Board’s written decision shall
be served on the petitioner, including
the petitioner’s representative, if any,
and the railroad.
§ 242.507

Request for a hearing.

(a) If adversely affected by the
Operating Crew Review Board’s
decision, either the petitioner before the
Board or the railroad involved shall
have a right to an administrative
proceeding as prescribed by § 242.509.
(b) To exercise that right, the
adversely affected party shall, within 20
days of service of the Board’s decision
on that party, file a written request with
the Docket Clerk, U.S. Department of
Transportation, Docket Operations (M–
30), West Building Ground Floor, Room
W12–140, 1200 New Jersey Avenue SE.,
Washington, DC 20590. The form of
such request may be in written or
electronic form consistent with the
standards and requirements established
by the Federal Docket Management
System and posted on its Web site at
http://www.regulations.gov.
(c) If a party fails to request a hearing
within the period provided in paragraph
(b) of this section, the Operating Crew
Review Board’s decision will constitute
final agency action.
(d) If a party elects to request a
hearing, that person shall submit a
written request to the Docket Clerk
containing the following:
(1) The name, address, telephone
number, and email address (if available)
of the respondent and the requesting
party’s designated representative, if any;
(2) The specific factual issues,
industry rules, regulations, or laws that
the requesting party alleges need to be
examined in connection with the
certification decision in question; and

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(3) The signature of the requesting
party or the requesting party’s
representative, if any.
(e) Upon receipt of a hearing request
complying with paragraph (d) of this
section, FRA shall arrange for the
appointment of a presiding officer who
shall schedule the hearing for the
earliest practicable date.

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§ 242.509

Hearings.

(a) An administrative hearing for a
conductor certification petition shall be
conducted by a presiding officer, who
can be any person authorized by the
Administrator, including an
administrative law judge.
(b) The presiding officer may exercise
the powers of the Administrator to
regulate the conduct of the hearing for
the purpose of achieving a prompt and
fair determination of all material issues
in controversy.
(c) The presiding officer shall convene
and preside over the hearing. The
hearing shall be a de novo hearing to
find the relevant facts and determine the
correct application of this part to those
facts. The presiding officer may
determine that there is no genuine issue
covering some or all material facts and
limit evidentiary proceedings to any
issues of material fact as to which there
is a genuine dispute.
(d) The presiding officer may
authorize discovery of the types and
quantities which in the presiding
officer’s discretion will contribute to a
fair hearing without unduly burdening
the parties. The presiding officer may
impose appropriate non-monetary
sanctions, including limitations as to
the presentation of evidence and issues,
for any party’s willful failure or refusal
to comply with approved discovery
requests.
(e) Every petition, motion, response,
or other authorized or required
document shall be signed by the party
filing the same, or by a duly authorized
officer or representative of record, or by
any other person. If signed by such
other person, the reason therefor must
be stated and the power of attorney or
other authority authorizing such other
person to subscribe the document must
be filed with the document. The
signature of the person subscribing any
document constitutes a certification that
he or she has read the document; that
to the best of his or her knowledge,
information and belief every statement
contained in the document is true and
no such statements are misleading; and
that it is not interposed for delay or to
be vexatious.
(f) After the request for a hearing is
filed, all documents filed or served
upon one party must be served upon all

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parties. Each party may designate a
person upon whom service is to be
made when not specified by law,
regulation, or directive of the presiding
officer. If a party does not designate a
person upon whom service is to be
made, then service may be made upon
any person having subscribed to a
submission of the party being served,
unless otherwise specified by law,
regulation, or directive of the presiding
officer. Proof of service shall accompany
all documents when they are tendered
for filing.
(g) If any document initiating, filed, or
served in, a proceeding is not in
substantial compliance with the
applicable law, regulation, or directive
of the presiding officer, the presiding
officer may strike or dismiss all or part
of such document, or require its
amendment.
(h) Any party to a proceeding may
appear and be heard in person or by an
authorized representative.
(i) Any person testifying at a hearing
or deposition may be accompanied,
represented, and advised by an attorney
or other representative, and may be
examined by that person.
(j) Any party may request to
consolidate or separate the hearing of
two or more petitions by motion to the
presiding officer, when they arise from
the same or similar facts or when the
matters are for any reason deemed more
efficiently heard together.
(k) Except as provided in § 242.507(c)
and paragraph (u)(4) of this section,
whenever a party has the right or is
required to take action within a period
prescribed by this part, or by law,
regulation, or directive of the presiding
officer, the presiding officer may extend
such period, with or without notice, for
good cause, provided another party is
not substantially prejudiced by such
extension. A request to extend a period
which has already expired may be
denied as untimely.
(l) An application to the presiding
officer for an order or ruling not
otherwise specifically provided for in
this part shall be by motion. The motion
shall be filed with the presiding officer
and, if written, served upon all parties.
All motions, unless made during the
hearing, shall be written. Motions made
during hearings may be made orally on
the record, except that the presiding
officer may direct that any oral motion
be reduced to writing. Any motion shall
state with particularity the grounds
therefor and the relief or order sought,
and shall be accompanied by any
affidavits or other evidence desired to
be relied upon which is not already part
of the record. Any matter submitted in
response to a written motion must be

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filed and served within fourteen (14)
days of the motion, or within such other
period as directed by the presiding
officer.
(m) Testimony by witnesses at the
hearing shall be given under oath and
the hearing shall be recorded verbatim.
The presiding officer shall give the
parties to the proceeding adequate
opportunity during the course of the
hearing for the presentation of
arguments in support of or in opposition
to motions, and objections and
exceptions to rulings of the presiding
officer. The presiding officer may permit
oral argument on any issues for which
the presiding officer deems it
appropriate and beneficial. Any
evidence or argument received or
proffered orally shall be transcribed and
made a part of the record. Any physical
evidence or written argument received
or proffered shall be made a part of the
record, except that the presiding officer
may authorize the substitution of
copies, photographs, or descriptions,
when deemed to be appropriate.
(n) The presiding officer shall employ
the Federal Rules of Evidence for United
States Courts and Magistrates as general
guidelines for the introduction of
evidence. Notwithstanding paragraph
(m) of this section, all relevant and
probative evidence shall be received
unless the presiding officer determines
the evidence to be unduly repetitive or
so extensive and lacking in relevancy
that its admission would impair the
prompt, orderly, and fair resolution of
the proceeding.
(o) The presiding officer may:
(1) Administer oaths and affirmations;
(2) Issue subpoenas as provided for in
§ 209.7 of this chapter;
(3) Adopt any needed procedures for
the submission of evidence in written
form;
(4) Examine witnesses at the hearing;
(5) Convene, recess, adjourn or
otherwise regulate the course of the
hearing; and
(6) Take any other action authorized
by or consistent with the provisions of
this part and permitted by law that may
expedite the hearing or aid in the
disposition of the proceeding.
(p) The petitioner before the
Operating Crew Review Board, the
railroad involved in taking the
certification action, and FRA shall be
parties at the hearing. All parties may
participate in the hearing and may
appear and be heard on their own behalf
or through designated representatives.
All parties may offer relevant evidence,
including testimony, and may conduct
such cross-examination of witnesses as
may be required to make a record of the
relevant facts.

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Federal Register / Vol. 76, No. 217 / Wednesday, November 9, 2011 / Rules and Regulations
(q) The party requesting the
administrative hearing shall be the
‘‘hearing petitioner.’’ The hearing
petitioner shall have the burden of
proving its case by a preponderance of
the evidence. Hence, if the hearing
petitioner is the railroad involved in
taking the certification action, that
railroad will have the burden of proving
that its decision to deny certification,
deny recertification, or revoke
certification was correct. Conversely, if
the petitioner before the Operating Crew
Review Board is the hearing petitioner,
that person will have the burden of
proving that the railroad’s decision to
deny certification, deny recertification,
or revoke certification was incorrect.
The party who is not the hearing
petitioner will be a respondent.
(r) FRA will be a mandatory party to
the administrative hearing. At the start
of each proceeding, FRA will be a
respondent.
(s) The record in the proceeding shall
be closed at the conclusion of the
evidentiary hearing unless the presiding
officer allows additional time for the
submission of additional evidence. In
such instances the record shall be left
open for such time as the presiding
officer grants for that purpose.
(t) At the close of the record, the
presiding officer shall prepare a written
decision in the proceeding.
(u) The decision:
(1) Shall contain the findings of fact
and conclusions of law, as well as the
basis for each concerning all material
issues of fact or law presented on the
record;
(2) Shall be served on the hearing
petitioner and all other parties to the
proceeding;

(3) Shall not become final for 35 days
after issuance;
(4) Constitutes final agency action
unless an aggrieved party files an appeal
within 35 days after issuance; and
(5) Is not precedential.
§ 242.511

Appeals.

(a) Any party aggrieved by the
presiding officer’s decision may file an
appeal. The appeal must be filed within
35 days of issuance of the decision with
the Federal Railroad Administrator,
1200 New Jersey Avenue SE.,
Washington, DC 20590 and with the
Docket Clerk, U.S. Department of
Transportation, Docket Operations (M–
30), West Building Ground Floor, Room
W12–140, 1200 New Jersey Avenue SE.,
Washington, DC 20590. A copy of the
appeal shall be served on each party.
The appeal shall set forth objections to
the presiding officer’s decision,
supported by reference to applicable
laws and regulations and with specific
reference to the record. If no appeal is
timely filed, the presiding officer’s
decision constitutes final agency action.
(b) A party may file a reply to the
appeal within 25 days of service of the
appeal. The reply shall be supported by
reference to applicable laws and
regulations and with specific reference
to the record, if the party relies on
evidence contained in the record.
(c) The Administrator may extend the
period for filing an appeal or a response
for good cause shown, provided that the
written request for extension is served
before expiration of the applicable
period provided in this section.
(d) The Administrator has sole
discretion to permit oral argument on
the appeal. On the Administrator’s own

69861

initiative or written motion by any
party, the Administrator may grant the
parties an opportunity for oral
argument.
(e) The Administrator may remand,
vacate, affirm, reverse, alter or modify
the decision of the presiding officer and
the Administrator’s decision constitutes
final agency action except where the
terms of the Administrator’s decision
(for example, remanding a case to the
presiding officer) show that the parties’
administrative remedies have not been
exhausted.
(f) An appeal from an Operating Crew
Review Board decision pursuant to
§ 242.503(d) must be filed within 35
days of issuance of the decision with the
Federal Railroad Administrator, 1200
New Jersey Avenue SE., Washington,
DC 20590 and with the Docket Clerk,
U.S. Department of Transportation,
Docket Operations (M–30), West
Building Ground Floor, Room W12–140,
1200 New Jersey Avenue SE.,
Washington, DC 20590. A copy of the
appeal shall be served on each party.
The Administrator may affirm or vacate
the Board’s decision, and may remand
the petition to the Board for further
proceedings. An Administrator’s
decision to affirm the Board’s decision
constitutes final agency action.
Appendix A to Part 242—Schedule of
Civil Penalties
A penalty may be assessed against an
individual only for a willful violation. The
Administrator reserves the right to assess a
penalty of up to $100,000 for any violation
where circumstances warrant. See 49 CFR
part 209, Appendix A.

APPENDIX A TO PART 242—SCHEDULE OF CIVIL PENALTIES 1

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Section

Violation

Subpart B—Program and Eligibility Requirements:
242.101—Program failures:
(a) Failure to have program ......................................................................................................................
(a)(1)–(6) Program that fails to address a subject ............................................................................
242.103—Program approval:
(a)–(b) Failure to follow Appendix B .........................................................................................................
(c) Failure to comply with filing requirements ...........................................................................................
(h) to resubmit, when directed by FRA .....................................................................................................
242.105—Schedule for implementation:
(a)–(b) Failure to designate conductors ....................................................................................................
(c) Allowing uncertified person to serve as conductor ..............................................................................
(d)–(e) Certifying without complying with subpart B or failure to issue a certificate ................................
(f) Serving as a conductor without complying with subpart B or being issued a certificate ....................
242.107—Types of service:
(a) Failure to designate types of service ..................................................................................................
(c) Reclassifying a certificate ....................................................................................................................
242.109—Certification and recertification determinations:
(a) Failure to determine in writing the requirements of (a)(1), (a)(2), (a)(3), and/or (a)(4) ......................
(b) Considering excluded data ..................................................................................................................
(c) Failure to have required documents on file .........................................................................................
(d), (e) Failure to provide timely review opportunity .................................................................................
242.111—Motor vehicle operator records:
(a) Failure to implement program meeting requirements .........................................................................

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09NOR2

Willful violation

$10,000
2,500

$20,000
5,000

1,000
1,000
1,000

2,000
2,000
2,000

2,000
7,500
2,500
7,500

4,000
15,000
5,000
15,000

2,000
2,500

4,000
5,000

2,500
2,000
1,000
2,000

5,000
4,000
2,000
4,000

6,000

........................

69862

Federal Register / Vol. 76, No. 217 / Wednesday, November 9, 2011 / Rules and Regulations
APPENDIX A TO PART 242—SCHEDULE OF CIVIL PENALTIES 1—Continued

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Section

Violation

(b) Failure to determine eligibility requirements met ................................................................................
(c) Failure to initially certify .......................................................................................................................
(d) Failure to recertify ................................................................................................................................
(e) Allowing person to serve as conductor before information is evaluated ............................................
(f) Failure to certify or certify during pendency of waiver request ............................................................
(g) Failure to take action to make information available ..........................................................................
(h), (i), (j) Failure to request record ..........................................................................................................
(k) Failure to notify of absence of license .................................................................................................
(l) Failure to report in timely manner or railroad taking certification action for not reporting earlier than
48 hours .................................................................................................................................................
(m), (n) Considering excluded data ..........................................................................................................
(o) Failure to:
(1) Consider data ...............................................................................................................................
(3), (4) Properly act in response to data ...........................................................................................
242.113—Prior safety conduct:
(a) Failure to implement program meeting requirements .........................................................................
(b) Failure to determine eligibility requirements met ................................................................................
(c) Failure to request record or take required action ................................................................................
242.115—Substance abuse/rules:
(a) Failure to implement program meeting requirements .........................................................................
(b) Failure to determine eligibility requirements met ................................................................................
(c) Failure to have basis for taking action ................................................................................................
(d)–(g) Failure to comply with requirements .............................................................................................
242.117—Vision and hearing acuity:
(a) Failure to implement program meeting requirements .........................................................................
(b) Failure to determine eligibility requirements met ................................................................................
(c) Failure to have basis for finding proper acuity ....................................................................................
(d) Acuity examination performed by unauthorized person ......................................................................
(e) Failure to note need for device to achieve acuity ...............................................................................
(f) Failure to use device needed for proper acuity ...................................................................................
(h)–(j) Failure to comply with requirements ..............................................................................................
(k) Failure of conductor to notify ...............................................................................................................
242.119—Training:
(a) Failure to implement program meeting requirements .........................................................................
(b) Failure to determine eligibility requirements met ................................................................................
(c) Failure to determine in writing the requirements of (c)(1), (c)(2), and/or (c)(3) ..................................
(d) Failure to:
(1) Make determination, include proper curriculum, and/or document knowledge and ability ..........
(2) Failure to include component .......................................................................................................
(3) Failure to make information available ..........................................................................................
(4) Failure to maintain steps or tasks in one manual or make available ..........................................
(5) Failure to review and modify training plan ...................................................................................
(e) Failure to require person to meet requirements ..................................................................................
(f) Failure to provide opportunity to consult ..............................................................................................
(g)–(k) Failure to have adequate procedures or include procedures in program ....................................
(l) Failure to have adequate procedures for or provide continuing education .........................................
242.121—Knowledge testing:
(a) Failure to implement program meeting requirements .........................................................................
(b) Failure to determine eligibility requirements met ................................................................................
(c) Failure to have adequate procedures for testing knowledge ..............................................................
(d) Failure to properly document testing ...................................................................................................
(e) Failure to provide opportunity to consult .............................................................................................
(f) Failure to document whether test was passed or failed ......................................................................
(g) Allowing person to serve as a conductor despite test failure .............................................................
242.123—Monitoring operational performance:
(a)–(b) Failure to implement program meeting requirements ...................................................................
(c) Failure to test each conductor annually ..............................................................................................
(d) Failure to test properly .........................................................................................................................
(e) Failure to indicate the action to be take ..............................................................................................
(f) Failure to test within time limits ............................................................................................................
242.125—Reliance on determination of another:
(a) Failure to address in program or require newly hired conductor to take entire training program ......
(b) Failure to make any required determinations ......................................................................................
242.127—Relying on requirements of a country:
(a)–(b) Failure to determine person employed and meets Canadian standards .....................................
Subpart C—Administration of the Certification Program:
242.201—Time limitations:
(a), (c), and (d) Exceeding time limit ........................................................................................................
242.203—Supporting information:
(a), (c)–(e) Failure to have a record .........................................................................................................
(b) Failure to have a complete record ......................................................................................................
(f) Falsification of a record ........................................................................................................................

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Willful violation

5,000
2,000
2,000
7,500
2,000
1,000
1,000
1,000

7,500
4,000
4,000
15,000
4,000
2,000
2,000
2,000

1,000
2,000
........................
6,000
2,500

2,000
4,000
........................
10,000
5,000

6,000
5,000
2,000

........................
7,500
2,000

6,000
5,000
2,500
2,500

........................
7,500
5,000
5,000

6,000
5,000
1,000
1,000
1,000
1,000
2,500
2,500

........................
7,500
2,000
2,000
2,000
2,000
5,000
5,000

6,000
5,000
2,500

........................
7,500
5,000

2,500
1,000
1,000
1,000
1,000
2,500
1,000
2,500
2,500

5,000
2,000
2,000
2,000
2,000
5,000
2,000
5,000
5,000

6,000
5,000
2,500
2,500
2,500
2,500
2,500

........................
7,500
5,000
5,000
5,000
5,000
5,000

6,000
2,500
2,500
2,500
2,500

........................
5,000
5,000
5,000
5,000

5,000
2,500

7,500
5,000

2,500

5,000

2,000

4,000

2,500
2,000
(¥)

5,000
4,000
10,000

09NOR2

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

69863

APPENDIX A TO PART 242—SCHEDULE OF CIVIL PENALTIES 1—Continued
Section

Violation

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(g) Failure to comply with requirements if records maintained electronically ..........................................
242.205—Identification of persons:
(a)–(b) Failure to have a record ................................................................................................................
(c) Failure to update or make a record available .....................................................................................
(d) Falsification of a record .......................................................................................................................
(e) Failure to comply with requirements if records maintained electronically ..........................................
242.207—Certificate components:
(a) Improper certificate ..............................................................................................................................
(b) Failure to designate those with signing authority ................................................................................
(d) Falsification of a certificate ..................................................................................................................
242.209—Maintenance of the certificate:
(a) Failure of conductor to carry certificate or display certificate when requested ..................................
(b) Failure of conductor to notify railroad of limitations or railroad requiring conductor to exceed limitations .......................................................................................................................................................
242.211—Replacement of certificates:
(a) Failure to have a reasonably accessible system for certificate replacement .....................................
(b) Failure to comply with requirements for temporary replacement certificates .....................................
242.213—Multiple certifications:
(d) Allowing an engineer to operate without a conductor where the engineer is not certified as a conductor or not accompanied by a certified conductor .............................................................................
(e) Failure to comply with emergency restrictions ....................................................................................
(f) Failure of conductor to notify railroad of denial or revocation .............................................................
(g) Performing conductor service with a revoked conductor certificate ...................................................
(h), (k) Performing work as an engineer or obtaining an engineer certificate with a conductor certification revoked for a violation of 242.403(e)(1)–(e)(5) or (e)(12) ..........................................................
(i), (j) Performing work as a conductor or obtaining a conductor certificate with an engineer certification revoked under 240.307 ...............................................................................................................
(l) Denying or revoking engineer certification or recertification based solely on the denial of conductor
certification .............................................................................................................................................
(m) Denying or revoking conductor certification or recertification based solely on the denial of engineer certification ....................................................................................................................................
242.215—Oversight responsibility:
(a) Failure to perform annual review and analysis or perform on time ....................................................
(b)–(i) Incomplete or inaccurate report .....................................................................................................
Subpart D—Territorial Qualification and Joint Operations
242.301—Territorial qualification:
(a) Allowing uncertified person or person not territorially qualified to serve as a conductor ...................
(b) Failure to notify railroad of lack of qualifications .................................................................................
(c) Failure to provide required assistance ................................................................................................
(d) Failure to provide assistance or up-to-date job aid .............................................................................
Subpart E—Denial and Revocation of Certification
242.401—Denial of certification:
(a) Failure to notify or provide opportunity for comment ..........................................................................
(c) Failure to notify, provide data, or untimely notification ........................................................................
242.403—Revocation criteria:
(a) Failure to implement program meeting requirements .........................................................................
(b) Unlawful failure to comply with rules and practices ............................................................................
(c) Failure to revoke certification ...............................................................................................................
(d) Considering excluded data ..................................................................................................................
(e) Considering unlisted violations of operating rules and practices ........................................................
(f) Improperly counting or considering violations ......................................................................................
242.405—Periods of ineligibility:
(a)–(c) Imposition of incorrect period of ineligibility ..................................................................................
242.407—Revocation of certification:
(a) Failure to revoke certification ..............................................................................................................
(b) Failure to suspend, notify, provide hearing opportunity, or improper procedures ..............................
(c)–(h) Failure of railroad to comply with hearing or waiver procedures ..................................................
(j) Failure of railroad to make record ........................................................................................................
(k) Failure of railroad to conduct reasonable inquiry or make good faith determination .........................

Appendix B to Part 242—Procedures
for Submission and Approval of
Conductor Certification Programs

Willful violation

2,000

4,000

2,500
2,000
(¥)
2,000

5,000
4,000
10,000
4,000

1,000
1,000
(¥)

2,000
2,000
10,000

1,000

2,000

4,000

8,000

2,000
1,000

4,000
2,000

7,500
2,500
4,000
7,500

15,000
5,000
8,000
15,000

7,500

15,000

7,500

15,000

4,000

8,000

4,000

8,000

2,000
2,500

4,000
5,000

7,500
4,000
4,000
4,000

15,000
8,000
8,000
8,000

2,000
2,000

4,000
4,000

6,000
2,500
2,500
2,500
2,500
2,500

........................
5,000
5,000
5,000
5,000
5,000

2,500

5,000

7,500
2,500
2,500
1,000
5,000

15,000
5,000
5,000
2,000
10,000

with the requirements of this part. It also
contains guidance on how FRA will exercise
its review and approval responsibilities.
Submission by a Railroad

1A

penalty may be assessed against an individual
only for a willful violation. The Administrator
reserves the right to assess a penalty of up to
$100,000 for any violation where circumstances
warrant. See 49 CFR part 209, appendix A.

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This appendix establishes procedures for
the submission and approval of a railroad’s
program concerning the training, testing, and
evaluating of persons seeking certification or
recertification as a conductor in accordance

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As provided for in § 242.101, each railroad
must have a program for determining the
certification of each person it permits or
requires to perform as a conductor or as a
passenger conductor. Each railroad must

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submit its individual program to FRA for
approval as provided for in § 242.103. Each
program must be accompanied by a request
for approval organized in accordance with
this appendix. Requests for approval must
contain appropriate references to the relevant
portion of the program being discussed.
Requests should be submitted in writing on
standard sized paper (81⁄2 x 11) and can be
in letter or narrative format. The railroad’s
submission shall be sent to the Associate
Administrator for Railroad Safety/Chief
Safety Officer, FRA. The mailing address for
FRA is 1200 New Jersey Avenue SE.,
Washington, DC 20590. Simultaneous with
its filing with the FRA, each railroad must
serve a copy of its submission on the
president of each labor organization that
represents the railroad’s employees subject to
this part.
Each railroad is authorized to file by
electronic means any program submissions
required under this part. Prior to any person
submitting a railroad’s first program
submission electronically, the person shall
provide the Associate Administrator with the
following information in writing:
(1) The name of the railroad;
(2) The names of two individuals,
including job titles, who will be the railroad’s
points of contact and will be the only
individuals allowed access to FRA’s secure
document submission site;
(3) The mailing addresses for the railroad’s
points of contact;
(4) The railroad’s system or main
headquarters address located in the United
States;
(5) The email addresses for the railroad’s
points of contact; and
(6) The daytime telephone numbers for the
railroad’s points of contact.
A request for electronic submission or FRA
review of written materials shall be
addressed to the Associate Administrator for
Railroad Safety/Chief Safety Officer, Federal
Railroad Administration, 1200 New Jersey
Avenue SE., Washington, DC 20590. Upon
receipt of a request for electronic submission
that contains the information listed above,
FRA will then contact the requestor with
instructions for electronically submitting its
program.
A railroad that electronically submits an
initial program or new portions or revisions
to an approved program required by this part
shall be considered to have provided its
consent to receive approval or disapproval
notices from FRA by email. FRA may
electronically store any materials required by
this part regardless of whether the railroad
that submits the materials does so by
delivering the written materials to the
Associate Administrator and opts not to
submit the materials electronically. A
railroad that opts not to submit the materials
required by this part electronically, but
provides one or more email addresses in its
submission, shall be considered to have
provided its consent to receive approval or
disapproval notices from FRA by email or
mail.
Organization of the Submission
Each request should be organized to
present the required information in the

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following standardized manner. Each section
must begin by giving the name, title,
telephone number, and mailing address of
the person to be contacted concerning the
matters addressed by that section. If a person
is identified in a prior section, it is sufficient
to merely repeat the person’s name in a
subsequent section.
Section 1 of the Submission: General
Information and Elections
The first section of the request must
contain the name of the railroad, the person
to be contacted concerning the request
(including the person’s name, title, telephone
number, and mailing address) and a
statement electing either to accept
responsibility for educating previously
untrained persons to be certified conductors
or recertify only conductors previously
certified by other railroads. See § 242.103(b).
If a railroad elects not to provide initial
conductor training, the railroad is obligated
to state so in its submission. A railroad that
makes this election will be limited to
recertifying persons initially certified by
another railroad. A railroad that makes this
election can rescind it by obtaining FRA
approval of a modification of its program. See
§ 242.103(f).
If a railroad elects to accept responsibility
for training persons not previously trained to
be conductors, the railroad is obligated to
submit information on how such persons will
be trained but has no duty to actually
conduct such training. A railroad that elects
to accept the responsibility for the training of
such persons may authorize another railroad
or a non-railroad entity to perform the actual
training effort. The electing railroad remains
responsible for assuring that such other
training providers adhere to the training
program the railroad submits. This section
must also state which types of service the
railroad will employ. See § 242.107.
Section 2 of the Submission: Training
Persons Previously Certified
The second section of the request must
contain information concerning the railroad’s
program for training previously certified
conductors. As provided for in § 242.119(l)
each railroad must have a program for the
ongoing education of its conductors to assure
that they maintain the necessary knowledge
concerning operating rules and practices,
familiarity with physical characteristics, and
relevant Federal safety rules.
Section 242.119(l) provides a railroad
latitude to select the specific subject matter
to be covered, duration of the training,
method of presenting the information, and
the frequency with which the training will be
provided. The railroad must describe in this
section how it will use that latitude to assure
that its conductors remain knowledgeable
concerning the safe discharge of their
responsibilities so as to comply with the
performance standard set forth in
§ 242.119(l). This section must contain
sufficient detail to permit effective evaluation
of the railroad’s training program in terms of
the subject matter covered, the frequency and
duration of the training sessions, the training
environment employed (for example, use of
classroom, use of computer based training,

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use of film or slide presentations, and use of
on-job-training) and which aspects of the
program are voluntary or mandatory.
Time and circumstances have the capacity
to diminish both abstract knowledge and the
proper application of that knowledge to
discrete events. Time and circumstances also
have the capacity to alter the value of
previously obtained knowledge and the
application of that knowledge. In formulating
how it will use the discretion being afforded,
each railroad must design its program to
address both loss of retention of knowledge
and changed circumstances, and this section
of the submission to FRA must address these
matters.
For example, conductors need to have their
fundamental knowledge of operating rules
and procedures refreshed periodically. Each
railroad needs to advise FRA how that need
is satisfied in terms of the interval between
attendance at such training, the nature of the
training being provided, and methods for
conducting the training. A matter of
particular concern to FRA is how each
railroad acts to assure that conductors remain
knowledgeable about the territory over which
a conductor is authorized to perform but
from which the conductor has been absent.
The railroad must have a plan for the
familiarization training that addresses the
question of how long a person can be absent
before needing more education and, once that
threshold is reached, how the person will
acquire the needed education. Similarly, the
program must address how the railroad
responds to changes such as the introduction
of new technology, new operating rule books,
or significant changes in operations
including alteration in the territory
conductors are authorized to work over.
Section 3 of the Submission: Testing and
Evaluating Persons Previously Certified
The third section of the request must
contain information concerning the railroad’s
program for testing and evaluating previously
certified conductors. As provided for in
§ 242.121, each railroad must have a program
for the ongoing testing and evaluating of its
conductors to assure that they have the
necessary knowledge and skills concerning
operating rules and practices, familiarity
with physical characteristics of the territory,
and relevant Federal safety rules. Similarly,
each railroad must have a program for
ongoing testing and evaluating to assure that
its conductors have the necessary vision and
hearing acuity as provided for in § 242.117.
Section 242.121 requires that a railroad
rely on written procedures for determining
that each person can demonstrate his or her
knowledge of the railroad’s rules and
practices and skill at applying those rules
and practices for the safe performance as a
conductor. Section 242.121 directs that,
when seeking a demonstration of the person’s
knowledge, a railroad must employ a written
test that contains objective questions and
answers and covers the following subject
matters: (i) Safety and operating rules; (ii)
timetable instructions; (iii) physical
characteristics of the territory; and (iv)
compliance with all applicable Federal
regulations. The test must accurately measure
the person’s knowledge of all of these areas.

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Section 242.121 provides a railroad
latitude in selecting the design of its own
testing policies (including the number of
questions each test will contain, how each
required subject matter will be covered,
weighting (if any) to be given to particular
subject matter responses, selection of passing
scores, and the manner of presenting the test
information). The railroad must describe in
this section how it will use that latitude to
assure that its conductors will demonstrate
their knowledge concerning the safe
discharge of their responsibilities so as to
comply with the performance standard set
forth in § 242.121.
Section 242.117 provides a railroad
latitude to rely on the professional medical
opinion of the railroad’s medical examiner
concerning the ability of a person with
substandard acuity to safely perform as a
conductor. The railroad must describe in this
section how it will assure that its medical
examiner has sufficient information
concerning the railroad’s operations to
effectively form appropriate conclusions
about the ability of a particular individual to
safely perform as a conductor.
Section 4 of the Submission: Training,
Testing, and Evaluating Persons Not
Previously Certified
Unless a railroad has made an election not
to accept responsibility for conducting the
initial training of persons to be conductors,
the fourth section of the request must contain
information concerning the railroad’s
program for educating, testing, and
evaluating persons not previously trained as
conductors. As provided for in § 242.119(d),
a railroad that is issuing an initial
certification to a person to be a conductor
must have a program for the training, testing,
and evaluating of its conductors to assure
that they acquire the necessary knowledge
and skills concerning operating rules and
practices, familiarity with physical
characteristics of the territory, and relevant
Federal safety rules.
Section 242.119 establishes a performance
standard and gives a railroad latitude in
selecting how it will meet that standard. A
railroad must describe in this section how it
will use that latitude to assure that its
conductors will acquire sufficient knowledge
and skill and demonstrate their knowledge
and skills concerning the safe discharge of
their responsibilities. This section must
contain the same level of detail concerning
initial training programs as that described for
each of the components of the overall
program contained in sections 2 through 4 of
this Appendix. A railroad that plans to
accept responsibility for the initial training of
conductors may authorize another railroad or
a non-railroad entity to perform the actual
training effort. The authorizing railroad may
submit a training program developed by that
authorized trainer but the authorizing
railroad remains responsible for assuring that
such other training providers adhere to the
training program submitted. Railroads that
elect to rely on other entities, to conduct
training away from the railroad’s own
territory, must indicate how the student will
be provided with the required familiarization
with the physical characteristics for its
territory.

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Section 5 of the Submission: Monitoring
Operational Performance by Certified
Conductors
The fifth section of the request must
contain information concerning the railroad’s
program for monitoring the operation of its
certified conductors. As provided for in
§ 242.123, each railroad must have a program
for the ongoing monitoring of its conductors
to assure that they perform in conformity
with the railroad’s operating rules and
practices and relevant Federal safety rules.
Section 6 of the Submission: Procedures for
Routine Administration of the Conductor
Certification Program
The final section of the request must
contain a summary of how the railroad’s
program and procedures will implement the
various specific aspects of the regulatory
provisions that relate to routine
administration of its certification program for
conductors. At a minimum this section needs
to address the procedural aspects of the rule’s
provisions identified in the following
paragraph.
Section 242.109 provides that each railroad
must have procedures for review and
comment on adverse prior safety conduct,
but allows the railroad to devise its own
system within generalized parameters.
Sections 242.111, 242.115 and 242.403
require a railroad to have procedures for
evaluating data concerning prior safety
conduct as a motor vehicle operator and as
railroad workers, yet leave selection of many
details to the railroad. Sections 242.109,
242.201, and 242.401 place a duty on the
railroad to make a series of determinations
but allow the railroad to select what
procedures it will employ to assure that all
of the necessary determinations have been
made in a timely fashion; who will be
authorized to conclude that person will or
will be not certified; and how it will
communicate adverse decisions.
Documentation of the factual basis the
railroad relied on in making determinations
under §§ 242.109, 242.117, 242.119 and
242.121 is required, but these sections permit
the railroad to select the procedures it will
employ to accomplish compliance with these
provisions. Sections 242.125 and 242.127
permit reliance on certification/qualification
determinations made by other entities and
permit a railroad latitude in selecting the
procedures it will employ to assure
compliance with these provisions. Similarly,
§ 242.301 permits the use of railroad selected
procedures to meet the requirements for
certification of conductors performing service
in joint operations territory. Sections 242.211
and 242.407 allow a railroad a certain degree
of discretion in complying with the
requirements for replacing lost certificates or
the conduct of certification revocation
proceedings.
This section of the request should outline
in summary fashion the manner in which the
railroad will implement its program so as to
comply with the specific aspects of each of
the rule’s provisions described in the
preceding paragraph.
FRA Review
The submissions made in conformity with
this appendix will be deemed approved

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69865

within 30 days after the required filing date
or the actual filing date whichever is later.
No formal approval document will be issued
by FRA. FRA has taken the responsibility for
notifying a railroad when it detects problems
with the railroad’s program. FRA retains the
right to disapprove a program that has
obtained approval due to the passage of time
as provided for in section § 242.103.
Rather than establish rigid requirements for
each element of the program, FRA has given
railroads discretion to select the design of
their individual programs within a specified
context for each element. The rule, however,
provides a good guide to the considerations
that should be addressed in designing a
program that will meet the performance
standards of this rule.
In reviewing program submissions, FRA
will focus on the degree to which a particular
program deviates from the norms identified
in its rule. To the degree that a particular
program submission materially deviates from
the norms set out in its rule, FRA’s review
and approval process will be focused on
determining the validity of the reasoning
relied on by a railroad for selecting its
alternative approach and the degree to which
the alternative approach is likely to be
effective in producing conductors who have
the knowledge and ability to safely perform
as conductors.

Appendix C to Part 242—Procedures
for Obtaining and Evaluating Motor
Vehicle Driving Record Data
The purpose of this appendix is to outline
the procedures available to individuals and
railroads for complying with the
requirements of §§ 242.109 and 242.111 of
this part. Those provisions require that
railroads consider the motor vehicle driving
record of each person prior to issuing him or
her certification or recertification as a
conductor.
To fulfill that obligation, a railroad must
review a certification candidate’s recent
motor vehicle driving record. Generally, that
will be a single record on file with the state
agency that issued the candidate’s current
license. However, it can include multiple
records if the candidate has been issued a
motor vehicle driving license by more than
one state agency or foreign country.
Access to State Motor Vehicle Driving
Record Data
The right of railroad workers, their
employers, or prospective employers to have
access to a state motor vehicle licensing
agency’s data concerning an individual’s
driving record is controlled by state law.
Although many states have mechanisms
through which employers and prospective
employers such as railroads can obtain such
data, there are some states in which privacy
concerns make such access very difficult or
impossible. Since individuals generally are
entitled to obtain access to driving record
data that will be relied on by a state motor
vehicle licensing agency when that agency is
taking action concerning their driving
privileges, FRA places responsibility on
individuals, who want to serve as conductors
to request that their current state drivers

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licensing agency or agencies furnish such
data directly to the railroad considering
certifying them as a conductor. Depending on
the procedures adopted by a particular state
agency, this will involve the candidate’s
either sending the state agency a brief letter
requesting such action or executing a state
agency form that accomplishes the same
effect. It will normally involve payment of a
nominal fee established by the state agency
for such a records check. In rare instances,
when a certification candidate has been
issued multiple licenses, it may require more
than a single request.
Once the railroad has obtained the motor
vehicle driving record(s), the railroad must

afford the prospective conductor an
opportunity to review that record and
respond in writing to its contents in
accordance with the provisions of § 242.401.
The review opportunity must occur before
the railroad evaluates that record. The
railroad’s required evaluation and
subsequent decision making must be done in
compliance with the provisions of this part.

Appendix D to Part 242—Medical
Standards Guidelines
(1) The purpose of this appendix is to
provide greater guidance on the procedures

Accepted tests

that should be employed in administering the
vision and hearing requirements of § 242.117.
(2) In determining whether a person has
the visual acuity that meets or exceeds the
requirements of this part, the following
testing protocols are deemed acceptable
testing methods for determining whether a
person has the ability to recognize and
distinguish among the colors used as signals
in the railroad industry. The acceptable test
methods are shown in the left hand column
and the criteria that should be employed to
determine whether a person has failed the
particular testing protocol are shown in the
right hand column.
Failure criteria

Pseudoisochromatic Plate Tests
American Optical Company 1965 ............................................................
AOC—Hardy-Rand-Ritter plates—second edition ...................................
Dvorine—Second edition ..........................................................................
Ishihara (14 plate) ....................................................................................
Ishihara (16 plate) ....................................................................................
Ishihara (24 plate) ....................................................................................
Ishihara (38 plate) ....................................................................................
Richmond Plates 1983 .............................................................................

5 or more errors on plates 1–15.
Any error on plates 1–6 (plates 1–4 are for demonstration—test plate 1
is actually plate 5 in book).
3 or more errors on plates 1–15.
2 or more errors on plates 1–11.
2 or more errors on plates 1–8.
3 or more errors on plates 1–15.
4 or more errors on plates 1–21.
5 or more errors on plates 1–15.

Multifunction Vision Tester
Keystone Orthoscope ...............................................................................
OPTEC 2000 ............................................................................................
Titmus Vision Tester .................................................................................
Titmus II Vision Tester .............................................................................

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(3) In administering any of these protocols,
the person conducting the examination
should be aware that railroad signals do not
always occur in the same sequence and that
‘‘yellow signals’’ do not always appear to be
the same. It is not acceptable to use ‘‘yarn’’
or other materials to conduct a simple test to
determine whether the certification
candidate has the requisite vision. No person
shall be allowed to wear chromatic lenses
during an initial test of the person’s color
vision; the initial test is one conducted in
accordance with one of the accepted tests in
the chart and § 242.117(h)(3).
(4) An examinee who fails to meet the
criteria in the chart, may be further evaluated
as determined by the railroad’s medical
examiner. Ophthalmologic referral, field

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Any
Any
Any
Any

error.
error.
error.
error.

testing, or other practical color testing may be
utilized depending on the experience of the
examinee. The railroad’s medical examiner
will review all pertinent information and,
under some circumstances, may restrict an
examinee who does not meet the criteria for
serving as a conductor at night, during
adverse weather conditions or under other
circumstances. The intent of § 242.117(j) is
not to provide an examinee with the right to
make an infinite number of requests for
further evaluation, but to provide an
examinee with at least one opportunity to
prove that a hearing or vision test failure
does not mean the examinee cannot safely
perform as a conductor. Appropriate further
medical evaluation could include providing
another approved scientific screening test or

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a field test. All railroads should retain the
discretion to limit the number of retests that
an examinee can request but any cap placed
on the number of retests should not limit
retesting when changed circumstances would
make such retesting appropriate. Changed
circumstances would most likely occur if the
examinee’s medical condition has improved
in some way or if technology has advanced
to the extent that it arguably could
compensate for a hearing or vision
deficiency.
(5) Conductors who wear contact lenses
should have good tolerance to the lenses and
should be instructed to have a pair of
corrective glasses available when on duty.

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69867

Issued in Washington, DC, on October 26,
2011.
Joseph C. Szabo,
Administrator.
[FR Doc. 2011–28175 Filed 11–8–11; 8:45 am]

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BILLING CODE 4910–06–P