Conductor Certification

DEPARTMENT OF TRANSPORTATION

Federal Railroad Administration

49 CFR Part 242

[Docket No. FRA-2009-0035, Notice No. 1]

RIN 2130-AC08

Conductor Certification

AGENCY:

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

ACTION:

Notice of proposed rulemaking (NPRM).

SUMMARY:

FRA proposes to prescribe regulations for certification of conductors, as required by the Rail Safety Improvement Act of 2008. The proposed rule would require railroads to have a formal program for certifying conductors. As part of that program, railroads would be 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 proposing 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 NPRM 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:

Written Comments: Written comments on the proposed rule must be received by January 10, 2011. Comments received after that date will be considered to the extent possible without incurring additional expense or delay. FRA anticipates being able to determine these matters without a public hearing. However, if prior to December 10, 2010, FRA receives a specific request for a public hearing accompanied by a showing that the party is unable to adequately present his or her position by written statement, a hearing will be scheduled and FRA will publish a supplemental notice in the

Federal Register

to inform interested parties of the date, time, and location of any such hearing.

ADDRESSES:

You may submit comments identified by the docket number FRA-2009-0035 by any one of the following methods:

•

Fax:

1-202-493-2251;

•

Mail:

U.S. Department of Transportation, Docket Operations, M-30, West Building Ground Floor, Room W12-140, 1200 New Jersey Avenue, SE., Washington, DC 20590;

•

Hand Delivery:

U.S. Department of Transportation, Docket Operations, West Building Ground Floor, Room W12-140, 1200 New Jersey Avenue, SE., Washington, DC 20590, between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays; or

• Electronically through the Federal eRulemaking Portal,

http://www.regulations.gov

. Follow the online instructions for submitting comments.

Instructions:

All submissions must include the agency name, docket name and docket number or Regulatory Identification Number (RIN) for this rulemaking (2130-AC08). Note that all comments received will be posted without change to

http://www.regulations.gov,

including any personal information provided. Please see the Privacy Act heading in the

SUPPLEMENTARY INFORMATION

section of this document for Privacy Act information related to any submitted comments or materials.

Docket:

For access to the docket to read background documents or comments received, go to

http://www.regulations.gov

at any time or to U.S. Department of Transportation, Docket Operations, M-30, West Building Ground Floor, Room W12-140, 1200 New Jersey Avenue, SE., Washington, DC, between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays.

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, Mail Stop 25, West Building 3rd Floor West, Room W35-334, 1200 New Jersey Avenue, SE., Washington, DC 20590 (telephone: 202-493-6350); or John Seguin, Trial Attorney, U.S. Department of Transportation, Federal Railroad Administration, Office of Chief Counsel, RCC-10, Mail Stop 10, West Building 3rd Floor, Room W31-217, 1200 New Jersey Avenue, SE., Washington, DC 20590 (

telephone:

202-493-6045).

SUPPLEMENTARY INFORMATION:

I. Statutory Background

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

Section 20163(a) of 49 U.S.C. (Section 402 of the RSIA) provides that:

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

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

Section 20162(a)(2) of 49 U.S.C. (Section 401 of the RSIA) provides that:

“(a) IN GENERAL.—The Secretary of Transportation shall, not later than 1 year after the date of enactment of the Rail Safety Improvement Act of 2008, establish—

* * *

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

Section 20162(b) of 49 U.S.C. provides that “[t]he Secretary shall review and approve the plans required under subsection (a)(2) utilizing an approval process required for programs to certify the qualification of locomotive engineers pursuant to part 240 of title 49, Code of Federal Regulations.”

II. RSAC Overview

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

American Association of Private Railroad Car Owners (AARPCO);

American Association of State Highway & Transportation Officials (AASHTO);

American Chemistry Council;

American Petroleum Institute;

American Public Transportation Association (APTA);

American Short Line and Regional Railroad Association (ASLRRA);

American Train Dispatchers Association (ATDA);

Association of American Railroads (AAR);

Association of Railway Museums (ARM);

Association of State Rail Safety Managers (ASRSM);

Brotherhood of Locomotive Engineers and Trainmen (BLET);

Brotherhood of Maintenance of Way Employes Division (BMWED);

Brotherhood of Railroad Signalmen (BRS);

Chlorine Institute;

Federal Transit Administration (FTA);*

Fertilizer Institute;

High Speed Ground Transportation Association (HSGTA);

Institute of Makers of Explosives;

International Association of Machinists and Aerospace Workers;

International Brotherhood of Electrical Workers (IBEW);

Labor Council for Latin American Advancement (LCLAA);*

League of Railway Industry Women;*

National Association of Railroad Passengers (NARP);

National Association of Railway Business Women;*

National Conference of Firemen & Oilers;

National Railroad Construction and Maintenance Association;

National Railroad Passenger Corporation (Amtrak);

National Transportation Safety Board (NTSB);*

Railway Supply Institute (RSI);

Safe Travel America (STA);

Secretaria de Comunicaciones y Transporte;*

Sheet Metal Workers International Association (SMWIA);

Tourist Railway Association Inc.;

Transport Canada;*

Transport Workers Union of America (TWU);

Transportation Communications International Union/BRC (TCIU/BRC);

Transportation Security Administration (TSA); and

United Transportation Union (UTU).

*Indicates associate, non-voting membership.

When appropriate, FRA assigns a task to RSAC, and after consideration and debate, RSAC may accept or reject the task. If accepted, RSAC establishes a working group that possesses the appropriate expertise and representation of interests to develop recommendations to FRA for action on the task. These recommendations are developed by consensus. The working group may establish one or more task forces or other subgroups to develop facts and options on a particular aspect of a given task. The task force, or other subgroup, reports to the working group. If a working group comes to consensus on recommendations for action, the package is presented to RSAC for a vote. If the proposal is accepted by a simple majority of RSAC, the proposal is formally recommended to FRA. FRA then determines what action to take on the recommendation. Because FRA staff play an active role at the working group level in discussing the issues and options and in drafting the language of the consensus proposal, and because the RSAC recommendation constitutes the consensus of some of the industry's leading experts on a given subject, FRA is often favorably inclined toward the RSAC recommendation. However, FRA is in no way bound to follow the recommendation and the agency exercises its independent judgment on whether the recommended rule achieves the agency's regulatory goals, is soundly supported, and is in accordance with applicable policy and legal requirements. Often, FRA varies in some respects from the RSAC recommendation in developing the actual regulatory proposal or final rule. Any such variations would be noted and explained in the rulemaking document issued by FRA. If the working group or RSAC is unable to reach consensus on recommendations for action, FRA resolves the issue(s) through traditional rulemaking proceedings or other action.

III. RSAC Conductor Certification Working Group

On December 10, 2008, the RSAC accepted a task (No. 08-07) entitled “Conductor Certification.” The purpose of this task was defined as follows: “To develop regulations for certification of railroad conductors, as required by the Rail Safety Improvement Act of 2008 (Act), and to consider any appropriate related amendments to existing regulations.” The task called for the RSAC Conductor Certification Working Group (Working Group) to perform the following:

• Review safety data bearing on opportunities for reducing risk associated with the duties performed by freight and passenger conductors.

• Assist FRA in developing regulations responsive to the legislative mandate.

• Consider any revisions to 49 CFR Part 240 appropriate to conform and update the certification programs for locomotive engineers and conductors.

The task also listed issues requiring specific report:

• What requirements for training and experience are appropriate?

• What classifications of conductors should be recognized?

• To what extent do existing requirements and procedures for certification of locomotive engineers provide a model for conductor certification?

• To what extent should unsafe conduct occurring while a locomotive engineer affect certification status as a conductor, and vice versa?

• Starting with the locomotive engineer certification model, what opportunities are available for simplifying appeals from decertification decisions of the railroads?

The Working Group was formed from interested organizations that are members of the RSAC. In addition to FRA, the following organizations contributed members:

AAR, including members from BNSF Railway Company (BNSF), Canadian National Railway (CN), Canadian Pacific Railway (CP), CSX Transportation, Inc. (CSX), Iowa Interstate Railroad, LTD, Kansas City Southern Railway (KCS), Northeast Illinois Regional Commuter Railroad Corporation (METRA), Norfolk Southern Railway Company (NS), and Union Pacific Railroad (UP);

The National Railroad Passenger Corporation (Amtrak);

APTA, including members from Long Island Rail Road (LIRR), Metro-North Railroad (MNCW), Southeastern Pennsylvania Transportation Authority (SEPTA), Southern California Regional Rail Authority (Metrolink), and Transit Solutions Group (TSG);

ASLRRA, including members from Anacostia Rail Holdings (ARH), Genesee & Wyoming Inc. (GNWR), Omnitrax Inc. (Omnitrax), Rio Grande Pacific Corporation (RGP), and WATCO Companies, Inc. (WATCO);

BLET;

National Railroad Construction & Maintenance Association, including members from Herzog Transit Services (Herzog);

NTSB;

TWU; and

UTU.

DOT's John A. Volpe National Transportation Systems Center (Volpe Center) also contributed members to the Working Group.

The Working Group convened 6 times on the following dates and locations:

• July 21-23, 2009 in Washington, DC;

• August 25-27, 2009 in Overland Park, KS;

• September 15-17, 2009 in Colorado Springs, CO;

• October 20-22, 2009 in Arlington, VA;

• November 17-19, 2009 in Scottsdale, AZ; and

• December 16-18, 2009 in Washington, DC.

To aid the Working Group in its development of recommendations for certification of conductors, FRA prepared draft regulatory text, which it distributed prior to the July meeting. The draft text closely followed 49 CFR part 240 which governs the qualification and certification of locomotive engineers.

During each meeting, Working Group members made recommendations regarding changes and additions to the draft text. Following each meeting, FRA

considered all of the recommendations and revised the draft text accordingly. Minutes of each of these meetings are part of the docket in this proceeding and are available for public inspection.

Having worked closely with the RSAC in developing its recommendations, FRA believes that the RSAC has effectively addressed concerns with regard to the certification of conductors. FRA has 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.

As contemplated by the Working Group's task statement, the promulgation of the conductor certification regulation opens up consideration of conforming changes to 49 CFR part 240, “Qualification and certification of locomotive engineers.” Such changes could include amending the program submission process, adding 49 CFR 218, subpart F violations as revocable offenses, and handling engineer and conductor petitions for review with a single FRA board. Although FRA intended for the Working Group to consider changes to part 240 during its July-December 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 and comments are received. Therefore, FRA expects the Working Group to continue meeting after publication of this NPRM and to provide recommendations that address both the comments to this NPRM and 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 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 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 proposed part (

e.g.,

removal of the task analysis requirement) may be necessary to conform to the final requirements of the training regulation.

IV. Section-by-Section Analysis

Subpart A—General

Subpart A of the proposal contains the general provisions of the rule, including a formal statement of the rule's purpose and scope. The subpart also provides that this proposed rule would not constrain a railroad's ability to prescribe additional or more stringent requirements for its conductors that are not inconsistent with this proposed rule.

Section 242.1 Purpose and Scope

This section, derived from 49 CFR 240.1, provides that the proposed rule 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 proposed 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.

1

1

Paragraph (a) of this section has been slightly modified from the version voted on by the Working Group and full RSAC. The modification is meant to clarify that only those persons that meet the minimum safety standards in this proposed rule would be permitted to serve as conductors.

Despite the fact that a person may have a job classification title other than that of conductor, the conductor certification requirements of this proposed rule would apply to that person if he or she meets the definition of conductor. That definition (and who would be covered by the definition) is discussed in more detail in the section analysis for proposed § 242.7 below.

Section 242.3 Application and Responsibility for Compliance

This section is derived, essentially verbatim, from 49 CFR 240.3. The section provides that the proposed rule would apply to all railroads with two exclusions. The first exclusion addresses several types of operations that occur on tracks that are not part of the general railroad system. This exclusion would 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. This exclusion also addresses 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.

The second 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 proposed rule apply to those rapid transit type operations. This proposed rule is not intended to have any effect on FRA's jurisdiction. Since this proposed 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 proposed rule.

Section 242.5 Effect and Construction

This section addresses several legal issues.

2

Paragraph (a) addresses the relationship of this proposed rule to preexisting legal relationships. Paragraph (b) states that FRA does not intend to alter the authority of a railroad to initiate disciplinary sanctions against its employees by issuance of this proposed rule.

2

This section has been modified from the version of the section voted on by the Working Group and full RSAC, including the removal of paragraphs (a) and (b). Those paragraphs addressed preemption of State law which FRA now believes would be unnecessary because 49 U.S.C. 20106 and other Federal railroad safety statutes sufficiently address the preemptive effect of FRA's regulations. Providing a separate Federal regulatory provision concerning the regulation's preemptive effect would be duplicative and unnecessary.

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.

3

As described in the section analysis for that section below, a person who holds a conductor and locomotive engineer certificate and who has had his or her locomotive engineer certificate revoked could not work as a conductor during the period of revocation. In addition, a person who holds a conductor and locomotive engineer certificate and who has had his or her conductor certification revoked for certain violations could not work as a locomotive engineer during the period of revocation.

3

The reference to § 242.213 in § 242.5(c) was not considered by the Working Group or the full RSAC, but was added by FRA to clarify this proposed rule's position on flowback.

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

Section 242.7 Definitions

This section contains the definitions that FRA proposes to employ 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 proposed 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 proposed 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 proposes, 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 proposed rule defines conductor as “the crewmember in charge of a train or yard crew as defined in part 218 of this chapter.” Part 218 defines “train or yard crew” as:

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

As the use of the singular form of “crewmember” suggests, FRA's proposed definition mandates that only one person could be in charge of the train or yard crew and that person would be deemed the conductor for purposes of this proposed regulation only. Moreover, in some circumstances, a locomotive engineer, including a remote control operator, would be required to be certified as both a locomotive engineer under 49 CFR part 240 and as a conductor under this proposed rule.

See

proposed 49 CFR 242.213(d) and (e). 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 proposed rule.

Ineligible or Ineligibility

4

4

The definition of this term was not considered by the Working Group or the full RSAC. However, the use of term in part 240 has generated some confusion and, therefore, FRA hopes to avoid any confusion in this proposed rule by defining the term.

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 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 proposed § 242.115.

Job Aid

The term “job aid,” which is not used in part 240, is defined as information regarding other than main track physical characteristics that supplements the operating instructions of the territory over which the locomotive or train movement will occur. The terms “main track” and “physical characteristics” are discussed below.

The term “job aid” is broadly defined in this proposed rule. A job aid would consist of information that could be obtained from a variety of sources, including but not limited to, training on the territory pursuant to proposed § 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 would have flexibility in how it conveys the information in a job aid to a conductor, the job aid would, at a minimum have to cover the characteristics of the territory over which the locomotive or train movement will occur including: permanent close clearances, location of permanent derails and switches, assigned radio frequencies in use and special instructions required for movement, if any, and railroad-identified unique operating conditions.

Pursuant to proposed § 242.121(c)(4)(v), each railroad would be required to test conductors and conductor candidates on the use of any job aid that a railroad could provide a conductor. Proposed § 242.301(d) describes the conditions under which a railroad should 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 could 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 proposed rule, the medical examiner would owe 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 proposed 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 proposed 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 work place (

i.e.,

the employee learns the job while doing the job). In this proposed rule, the “on-the-job training” portion of the training program (

see

proposed § 242.119) would be required to be based on a model generally accepted by the educational community, and must consist of three key components: (1) A brief statement describing the tasks and related steps the employee must be able to perform; (2) a statement of the conditions (

i.e.,

tools, equipment, documentation, briefings, demonstrations, and practice) necessary for learning transfer; and (3) a statement of the standards by which proficiency can be measured through a combination of task/step accuracy, completeness, and repetition.

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 proposed 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.

Qualified

The term “qualified” is defined as a person who has successfully completed all instruction, training and examination programs required by the employer, and the applicable parts of this chapter and therefore could reasonably be expected to be proficient on all safety related tasks the person is assigned to perform. The definition of “qualified” in this proposed 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 proposed 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 revision to the definition of “qualified” is an attempt to ensure that a railroad's instruction and training program not only provide knowledge of how to perform a task but also the ability to proficiently perform the task.

Qualified Instructor

The term “qualified instructor,” which is derived from the definition of “instructor engineer” in part 240, means a person who has demonstrated, pursuant to the railroad's written program, an adequate knowledge of the subjects under instruction and, where applicable, has the necessary operating experience to effectively instruct in the field. A qualified instructor would be 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).

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 proposed rule as it does in part 240. FRA defines the term in this proposed rule to avoid any confusion as to who this proposed rule is referring to when it references a remote control operator.

The definition of RCO recommended by the Working Group used the word “trained” instead of “certified.” FRA, however, believes the definition in this proposed part should to be consistent with the definition of RCO in 49 CFR 218.93. Thus, FRA replaced the word “trained” with “certified” in this proposed rule to parallel 49 CFR 218.93.

Substance Abuse Disorder

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. A substance abuse disorder is “active” within the meaning of this proposed rule if the person (1) is currently using alcohol or other drugs, except under medical supervision consistent with the restrictions described in § 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).

The definition of substance abuse disorder in this proposed 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. Since SAPs have more stringent credential, knowledge, training, and continuing education requirements than EAPs, SAPs 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 proposed rule would revise that phrase to read “is currently using alcohol or other drugs.” FRA is proposing the revision to clarify its intent that a person with an active substance abuse disorder could be using alcohol

or

other drugs.

The proposed definition for “substance abuse disorder” is similar to the language employed to govern disposition of employees referred to an employee assistance program under the “co-worker report” (bypass) provision of the alcohol/drug regulations. It describes the condition of chemical dependency, as determined by an appropriate professional. Reference is made to other disorders involving abuse of alcohol and other drugs (

i.e.,

“another identifiable and treatable mental or physical disorder involving the abuse of alcohol or drugs as a primary manifestation”) to avoid disputes concerning diagnoses of “underlying” problems. The crux of the definition is that a person making uncontrolled use of alcohol or drugs is not a suitable candidate for the highly sensitive duties entrusted to a conductor. Since chemical dependency typically involves or has the potential for poly-drug abuse, the appropriate long-term therapy is abstinence from alcohol and all other drugs, except those taken under medical supervision.

The proposed definition explains that the disorder would be 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) or has not participated in 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. However, degrees of abuse are difficult to define; and significant disagreements prevail with regard to appropriate therapeutic responses. Accordingly, FRA has not required withholding of certification for patterns of abuse that fall short of chemical dependency. At the same time, FRA does not intend to convey that the concept of chemical dependency need meet the most rigid test used in any particular segment of the health care or mental health communities. 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)

5

means a person who meets the qualifications of a SAP, as provided in 49 CFR Part 40. Pursuant to this proposed rule, the SAP would owe a duty to the railroad to make an honest and fully informed evaluation of the condition and progress of an employee. FRA notes that the duty owed by a SAP does not parallel the duty owed by a “medical examiner” (

see

above) in the proposed rule recommend by the full RSAC. As currently written, a medical examiner would owe a duty to both the railroad and the employee being evaluated while a SAP would owe a duty only to the railroad. FRA welcomes comments as to whether a SAP should owe a duty to both the employee being evaluated and the railroad (

i.e.,

whether the words “to the railroad” should be deleted from the definition of SAP).

5

The draft recommended by the Working Group and the full RSAC used the term “Substance Abuse Profession.” That was a clerical error on FRA's part and the term has been corrected in this NPRM to read “Substance Abuse Professional.”

Territorial Qualifications

The term “territorial qualifications” means possessing the necessary knowledge concerning a railroad's operating rules and timetable special instructions including familiarity with applicable

main track and other than main track physical characteristics

of the territory over which the locomotive or train movement will occur. Although not defined in part 240, the term is derived from part 240's requirement that, with certain exceptions, a locomotive engineer may not operate a locomotive over a territory unless the engineer is “qualified on the physical characteristics of the territory.”

See

49 CFR 240.231. Pursuant to § 242.301 of this proposed rule, a person could not serve as a conductor unless the person was certified and possessed the necessary territorial qualifications for the applicable territory.

Section 242.9 Waivers

This section tracks the regulatory language in 49 CFR 240.9 and provides the proposed requirements for a person seeking a waiver of any section of this proposed rule. After review, however, FRA believes this section is unnecessary because 49 CFR part 211 sufficiently addresses the waiver process. FRA welcomes comments as to whether this proposed section should be removed.

Section 242.11 Penalties and Consequences for Noncompliance

This section tracks the regulatory language in 49 CFR 240.11 and provides minimum and maximum civil penalty amounts determined in accordance with the Federal Civil Penalties Inflation Adjustment Act of 1990, Public Law 101-410 Stat. 890, 28 U.S.C. 2461 note, as amended by the Debt Collection Improvement Act of 1996 Public Law 104-134, April 26, 1996, and the RSIA.

Section 242.13 Information Collection Requirements

This section lists the sections of the proposed 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 proposed rule. Based on the RSIA's requirement for “certification” of conductors and FRA's experience with certification of locomotive engineers, this rulemaking proposes to adopt 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 proposed rule affords railroads considerable discretion in the daily administration of their certification programs.

Section 242.101 Certification Program Required

This section proposes to require railroads to have a written program composed of six elements, each of which comports with specific provisions relating to that element.

6

To give the railroads time to put their conductor programs into place and to accommodate the fact that many

railroads perform training and certification of locomotive engineers at the beginning of each calendar year, FRA is proposing to make January 1, 2012, the effective date of the final rule. FRA is proposing that date based on FRA's anticipation that the Final Rule will be published in early 2011. The rest of the dates proposed in this rule (

e.g.,

dates by which each railroad must grandfather its eligible conductors in § 242.105) are based on the proposed effective date of January 1, 2012. Interested parties should note that FRA cannot guarantee any of the dates proposed in this NPRM. The dates have been included merely to generate discussion regarding the amount of time needed to implement a conductor certification program once a Final Rule has been published. FRA welcomes comments on the dates proposed in this NPRM.

6

FRA deleted paragraphs (a) and (b) of this section from the version considered by the Working Group and full RSAC. FRA believes those paragraphs are superfluous in light of the proposed dates provided in other sections of the NPRM regarding submission and approval of railroad programs.

Section 242.103 Approval of Design of Individual Railroad Programs by FRA

This section proposes to require each railroad to submit its certification program to FRA for approval in accordance with a schedule to be provided in the final rule. The proposed schedule for submissions in paragraph (a) would require 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.

7

The format and contents of the submission are discussed at length in appendix B to this proposed rule.

7

FRA has made some modifications to paragraph (a) of this section from the version considered by the Working Group and full RSAC. FRA believes those modifications are necessary to ensure a sensible schedule and future implementation of the conductor certification regulation.

Unlike part 240, this proposed rule would require 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, would determine whether a railroad's submission was approved, FRA expects that comments would be useful in determining whether the railroad's program conforms to the criteria set forth in this proposed rule.

This section also proposes to require each railroad to indicate how it intends to acquire 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 proposed 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 proposes to require 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.

Section 242.105 Schedule for Implementation

This section contains the timetable for implementation of the proposed rule. Paragraphs (a) and (b) of this section would require that railroads, in writing, designate as certified conductors all persons authorized by the railroad to perform the duties of a conductor as of the effective date of the final rule, or authorized between the effective date of the final rule and dates specified in paragraph (d) or (f) of this section, and to issue a certificate to each person it designates. The mandatory designation requirement of this section is included to address the concerns of some Working Group members that railroads should not be given the discretion to 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 would require each railroad to make formal determinations concerning those employees it has “grandfathered” (

i.e.,

designated as conductors) within 36 months of the date for compliance by its class of railroad. Pursuant to that paragraph, a grandfathered conductor could 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 grandfathered conductor could no longer serve as a conductor unless he or she successfully completed the tests and evaluations provided in subpart B of this proposed rule (

i.e.,

the full certification process).

In order to test and evaluate all of its grandfathered conductors by the end of the 36-month period, a large railroad would 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 grandfathering provision, would permit a railroad to test and evaluate one-third of its grandfathered 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 grandfathered 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 grandfathered conductor who was going to retire before the end of the 36-month grandfathering period. To address those concerns, subparagraph (c)(1) provides that a grandfathered conductor, who is eligible to receive a retirement pension in accordance with the terms of an applicable agreement or with the terms of the Railroad Retirement Act (45 U.S.C. 231) within 36-months prior to the date they would be required to be tested and evaluated under subpart B of this proposed rule, may request, in writing, that the railroad not perform the full certification process on that grandfathered 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 grandfathering period. Thus, paragraphs (c)(1) and (c)(2) would allow grandfathered conductors to serve as conductors for the full 36-month grandfathering 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 grandfathering 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 grandfathered conductors on a railroad properly request that the railroad wait to recertify them at the end of the grandfathering period, but then do not, in fact, retire by the expiration of the 36-month grandfathering period, the railroad might not be able to certify everyone in time and would risk violating this proposed rule. In recognition of that risk and the need to give the railroads some flexibility to comply with the proposed 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 grandfathered conductor who is also subject to recertification under part 240 may not make a request under subparagraph (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 grandfathered 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 could certify or recertify a person as a conductor and no person could serve as a conductor unless that person had been tested and evaluated in accordance with the procedures provided in subpart B of the proposed rule and issued a certificate.

Section 242.107 Types of Service

This section proposes to create two types of conductor service: Conductor and passenger conductor. As indicated in the definition section of this proposed 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), proposes to prohibit 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 proposed rule would prohibit 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 proposed rule would prohibit the practice of reclassification, it would not prevent the railroads from pursuing other measures to ensure the safe performance of conductor service. For example, the proposed rule would 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) would permit a railroad to place restrictions on a certificate, any restrictions would be applied and reviewed in accordance with internal railroad rules, procedures and processes. Proposed part 242 would 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 proposed determinations required for evaluating a candidate's eligibility to be certified or recertified. Since motor vehicle data is required to be sent to the railroad rather than to the candidate, paragraphs (d) and (e) of this section would 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 would avoid the potential for reliance on records that were somehow erroneously associated with a candidate.

Section 242.111 Prior Safety Conduct As Motor Vehicle Operator

This section, derived from 49 CFR 240.111 and 240.115, provides the proposed requirements and procedures that a railroad would have to 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 would have to request in writing that the chief of each driver licensing agency that issued him or her a driver's license within the preceding five years provide a copy of the person's driving record to the railroad. Unlike part 240, this proposed 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 1327), railroads are prohibited from running NDR checks or requesting NDR information from individuals seeking employment as certified conductors.

8

8

As an alternative to the NDR, some members of the Working Group suggested that motor vehicle operator information could be obtained from the National Crime Information Center (NCIC) run by the Federal Bureau of Investigation. However, FRA does believe the NCIC is an appropriate option since the information provided by the NCIC cannot be limited to just motor vehicle data.

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 would require a railroad to certify or recertify a person for 60 days if the person: (1) Requested the required information at least 60 days prior to the date of the decision to certify or recertify; and (2) otherwise meets the eligibility requirements provided in § 242.109 of this proposed 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 would be 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 proposed rule.

Paragraph (l) of this section would require 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 could not have a more restrictive company rule requiring an employee to report a conviction or completed state action to cancel, revoke, or deny a motor vehicle drivers license in less than 48 hours.

The reasoning behind paragraph (l) involves several intertwined objectives. As a matter of fairness, a railroad should not revoke, deny, or otherwise make a person ineligible for certification until that person had received due process from the state agency taking the action against the motor vehicle license. Otherwise, action pursuant to this part might be deemed premature since the American judicial 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 proposed rule would have the practical effect of ensuring that a required referral to a SAP under paragraph (o) of this section would not occur prematurely. Interested parties should note however, that paragraph (l) would not prevent an eligible person from choosing to voluntarily self-refer pursuant to § 242.115(d)(3). Nor would it prevent the railroad from referring the person to a SAP pursuant to § 240.115 if other information exists that identifies the person as possibly having a substance abuse disorder. Further, the restriction would apply only to actions taken against a person's certificate and would have no effect on a person's right to be employed by that railroad.

As mentioned above, paragraph (o) of this section would require that if such a motor vehicle incident described in paragraph (n) is identified, the railroad would be required to provide the data to its SAP 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, on recommendation of the SAP, 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.

Section 242.113 Prior Safety Conduct as an Employee of a Different Railroad

This section of the proposed rule, which is derived from 49 CFR 240.113 and 240.205, proposes 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 proposed section, which is derived from 49 CFR 240.119 and 240.205, would address 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 a SAP evaluation.

Paragraph (a) would require each railroad to address both dimensions of this issue in its program. Paragraphs (b) and (c) would require each railroad to determine that a person initially certifying or a conductor recertifying meets the eligibility requirements of this section. Additionally, each railroad would be required to retain the documents used to make that determination.

Paragraph (d) provides that a person with an active substance abuse disorder could not be currently certified as a conductor. This means that appropriate action would have to 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) would also provide a mechanism for an employee to voluntarily self-refer for substance abuse counseling or treatment.

Paragraph (e) would address conduct constituting a violation of § 219.101 or § 219.102 of the alcohol/drug regulations. Section 219.101 prohibits any employee from going 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. 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. However, where on-the-job use, possession, or impairment is not established, as is most often the case where urinalysis is the means of detection (

e.g.,

through a random drug test which can detect drugs remaining in the system for some period after actual use), this violation is marginally less serious than a § 219.101 violation.

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 (§ 219.104). This structure suggests an absolute minimum for action when a conductor is determined to have violated one of these prohibitions. Considering the need both for general and specific deterrence with respect to future unsafe conduct, additional action should be premised on the severity of the violation and whether the same individual has prior violations.

One key consideration in evaluating this conduct and appropriate responses is the duration of retrospective review. This proposed rule would require railroads to consider conduct that occurred within the period of 60 consecutive months prior to the review. This is the same period proposed 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 would 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 proposed rule would prompt a review of certification status for any conduct in violation of § 219.101 or § 219.102.

The proposed 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) and for a refusal to cooperate in post-accident or random testing. 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 would serve the interest of deterrence while giving further encouragement to co-workers to deal with the problem before it is detected by management.

In order to preserve and encourage co-worker referrals, the 9-month period would be waived only in the case of a qualifying co-worker report (

see

§ 219.405). FRA believes that this distinction in treatment is warranted as a strong inducement to participation because co-worker referral programs help identify troubled employees prior to those employees getting into accidents. A strong inducement to refer a co-worker is a worthy goal if it may contribute to a reduction in accidents and incidents. Although we do not know how many actual co-worker reports may be generated, the intended result would be served if an atmosphere of intolerance for drug abusing behavior is reinforced in the workplace and violators know that they may be turned in 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 proposed sanctions mirror the sanctions in § 240.119.

Under this proposed 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 in part 240 and reflects FRA's wish not to undercut the therapeutic approach to drug abuse employed by many railroads. This approach would permit first-time positive drug tests to be handled in a non-punitive manner that concentrates on remediation of any underlying substance abuse problem and avoids the adversarial process associated with investigations, grievances and arbitrations under the Railway Labor Act and collective bargaining agreements. A second violation of § 219.102 would subject the employee to a mandatory 2-year period of ineligibility. A third violation within 5 years would lead to a 5-year period of ineligibility. This proposed rule would also address 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 and failures to participate in chemical tests would be treated as if the test were positive. A refusal or failure 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 shall be 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 or failure to provide a breath sample (49 CFR subpart D), or a blood specimen for mandatory post-accident toxicological testing (49 CFR subpart C)); or (2) § 219.102, in the case of a refusal or failure to provide a urine specimen for testing.

Interested parties should 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 would take under proposed 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 § 219 subpart H and 49 CFR 40.191 and 40.261.

Proposed § 242.115(f) would prescribe 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 mirror the conditions in § 240.119(d) and closely parallel the return-to-duty provisions of the alcohol/drug rule. Interested parties should note that the proposed regulation would not require compensation of the employee for the time spent in this testing, which is a condition precedent to retention of the certificate; but the issue of compensation would ultimately be resolved by reference to the collective bargaining agreement or other terms and conditions of employment under the Railway Labor Act. Moreover, a railroad that intends to withdraw its conditional certification would have to afford the conductor the hearing procedures provided by § 242.407 if the conductor did not waive his or her right to the hearing.

Proposed paragraph (g) would ensure that a conductor, like any other covered employee, could 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 of any substance abuse disorder identified by the SAP. However, the paragraph would also require 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 SAP, 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 would not be affected, unless the conductor fails to follow through.

Section 242.117 Vision and Hearing Acuity

This section contains proposed requirements for visual and hearing acuity testing that a railroad must incorporate in its conductor certification program. The proposed visual requirements are the same as those provided in 49 CFR 240.121. The testing procedures and standards for the proposed hearing requirements, however, 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.

Although some individuals may not be able to meet the threshold acuity levels in this proposed 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 would permit 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 proposed regulation once the railroad possessed the medical examiner's professional medical opinion to that effect.

Paragraph (k) of this proposed section, would address 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, FRA proposes, and the RSAC recommended, to require 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 supersede the hearing and vision standards and requirements in this proposed rule.

Section 242.119 Training

This section, in compliance with the training requirements of the RSIA, proposes to require railroads to provide initial and periodic training of conductors. That training would be necessary to ensure conductors have the knowledge, skills, and abilities necessary to competently and safely perform all of the safety-related duties mandated by Federal laws, regulations, and orders.

Paragraph (c) of this proposed section would require 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 would require 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 would require 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 would have latitude to design and develop the training and delivery methods they will employ; but paragraphs (d), (e), and (f) provide proposed requirements for railroads that elect to train a previously untrained person to be a conductor. Pursuant to paragraph (d),

9

a railroad that makes this election would be required to perform a

task analysis

in order to ensure completeness when developing training courses for both initial and periodic training courses, and on-the-job training standards for new conductors. Subparagraph (d)(1) of this section would permit a railroad to demonstrate that a task analysis, or portions of a task analysis, was performed for a program developed prior to the effective date of the regulation.

9

Subparagraphs (d)(1) and (d)(2) have been modified somewhat from the language recommended by the RSAC to clarify the scope of what the training plan and curriculum need to cover.

In the context of this proposed rule, a

task analysis

is the analysis of how conductor tasks are accomplished, including a detailed description of both manual and mental activities, durations, frequency, allocation, complexity, environmental conditions, necessary clothing and equipment, and any other unique factors involved in or required for one or more people to perform a given task. A task analysis is typically performed by a group of subject matter experts (SMEs) and a skilled educational specialist. In some cases, SMEs are also skilled as educational specialists. This group of SMEs should develop task lists, then the subtasks and steps. A task does not always have subtasks, but unless it is very simple, it will always have steps. The “natural” progression would be for the employer(s) to develop their learning objectives and on-the-job standards from this list. For purposes of this proposed rule, railroads should review all of the Federal requirements (such as 49 CFR Part 215 Appendix D, 49 CFR Part 218, 49 CFR Part 219 Subpart D, 49 CFR Parts 220, 232, and 241, hazardous materials handling and documentation requirements,

etc.

) when developing their task list in order to ensure the task analysis is complete from an FRA perspective. FRA intends to review the railroad task analyses with its own SMEs.

Paragraphs (g), (h), (i), (j), and (k) of this section contain the proposed 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 would 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.

Paragraphs (l) and (m) would require railroads to perform initial instructional briefings to ensure that each of its conductors have knowledge of the Federal railroad safety laws, regulations, and orders that relate to the safety-related tasks the employees are assigned to perform. The purpose of the proposed instructional briefing requirement is to ensure accountability for both railroads and conductors. For many years, FRA has encountered situations in which railroad employees have been non-compliant with Federal requirements, but FRA was unable to determine whether one of the root causes of the non-compliance was inadequate training. FRA intends to remedy this issue by requiring railroads to perform these instructional briefings. FRA would also expect railroads to provide this information to new employees as part of their formal training program. In paragraph (n) of this section, FRA proposes to permit each railroad to demonstrate that it has met the requirements of paragraphs (l) and (m) through prior training records.

Paragraph (o) would require 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 proposed paragraph, which is derived from 49 CFR 240.123(b), was included in several drafts reviewed by the Working Group but was not in the draft voted on by the Working Group or full RSAC. FRA has included it in this NPRM because we suspect that it was inadvertently omitted and believe that continuing education is critical for conductors. FRA welcomes comments on this paragraph.

Section 242.121 Knowledge Testing

This section, derived from 49 CFR 240.125 and 240.209, would require railroads to provide for the initial and periodic testing of conductors. That testing would 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 would 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 propose that the test not be conducted with open reference books unless use of such materials is part of a test objective and the test be in written or electronic form. Moreover, 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 would 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 proposed section would require railroads to provide the person(s) being tested with an opportunity to consult with a supervisory employee, who possesses territorial qualifications for the territory, to explain a question.

Section 242.123 Monitoring Operational Performance

This proposed section, derived from 49 CFR 240.129 and 240.303, contains the proposed requirements for conducting unannounced compliance tests.

Paragraph (b) of this section would require each railroad to have a program to monitor the conduct of its conductors by performing unannounced operating rules compliance tests.

Paragraph (c) provides that each conductor would have to 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 would have to be tested on. That paragraph would also allow 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.

Paragraph (e) of this section would require railroads to indicate the types of actions they will take in the event they find deficiencies with a conductor's performance during an unannounced compliance test. FRA believes it is up to each railroad to decide the appropriate action to take in light of various factors, including collective bargaining agreements. Further, FRA believes that the vast majority of railroads have adequate policies to deal with deficiencies with a conductor's performance and have handled them appropriately for many years.

To avoid restricting the options available to the railroads and employee representatives to develop processes for handling test failures, FRA designed this proposal 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 proposed section would 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 certified service, he or she would have to be tested within 30 days of their return. Moreover, the railroad would have to retain a written record documenting certain dates regarding a conductor's service.

Section 242.125 Certification Determinations Made by Other Railroads

This section, derived from 49 CFR 240.225, provides the proposed requirements that would apply when a certified or previously certified conductor is about to begin service for a different railroad. The section would permit the hiring railroad to rely on determinations made by another railroad concerning a person's certification. However, the section would require 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 would have to 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, proposes to provide Canadian railroads that operate in the United States and U.S. railroads that conduct joint operations with Canadian railroads the option to rely on the system of conductor certification established by the Canadian Government as long as the conductor is employed by a Canadian railroad.

Subpart C—Administration of the Certification Program

Section 242.201 Time Limitations for Certification

This section, derived from 49 CFR 240.217, contains various time constraints that FRA proposes to preclude railroads from relying on stale information when evaluating a candidate for certification or recertification. Although some members of the Working Group advocating 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 49 CFR 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 49 CFR 227.109 that railroads must offer employees included in a hearing conservation program a hearing test at an interval not to exceed 450 days.

Section 242.203 Retaining Information Supporting Determinations

This section, derived from 49 CFR 240.215, contains the proposed record keeping requirements for railroads that certify conductors. While both 49 CFR 240.215 and this section permit railroads to retain records electronically, paragraph (g) of this section proposes more specific requirements regarding the electronic storage system used to retain the records than those found in § 240.215. In that paragraph, FRA proposes minimum standards for electronic record-keeping provisions that a railroad would 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, FRA is proposing electronic record storage provisions in paragraph (g) that are technology-neutral.

Section 242.205 Identification of Certified Persons and Record Keeping

This proposed section, derived from 49 CFR 240.221, would require 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 would require the railroad who employs conductors working in joint operations territory to maintain the list.

With respect to engineers, FRA has found that, under actual industry practices, the controlling railroad seldom qualifies foreign engineers over its trackage. Rather, the controlling railroad usually qualifies the employing railroad's designated supervisor of locomotive engineers (DSLEs) on its territory and allows those DSLEs to qualify their own engineers on the controlling railroad's trackage. Considering that practice, the employing railroad would be better able to maintain the list of conductors it qualifies on the controlling railroad. Additionally, the employing railroad has more of an interest in keeping track of its conductors that are qualified on the controlling railroad. Should an employing railroad order a crew for a train that will operate over the controlling railroad, and the crew is not qualified, the train would have to stop at the controlling railroad. Moreover, it is much easier for the employing railroad to keep the list updated as it qualifies conductors or it removes conductors who have lost qualification because of time limitations. This section also differs from § 240.221 in that this section would make 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 proposes more specific requirements regarding the electronic storage system used to retain the records than those found in § 240.215(f) and would 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 proposed section, derived from 49 CFR 240.223, contains the proposed requirements for the certificate that each conductor must carry. To address the privacy concerns of some Working Group members, FRA's proposal for what must be on the certificate slightly differs from the certificate requirements in Part 240. While § 240.223(a)(3) requires locomotive engineer certificates to include “the person's name, date of birth and employee identification number, and either a physical description or photograph of the person,” proposed § 242.207(a)(3) would require conductor certificates to include “the person's name, employee identification number, and either the year of birth or photograph of the person.”

10

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FRA has made two clarifying changes to the language of § 242.207(a)(3) that were not considered by the Working Group or the full RSAC: (1) The words “either the” were added between “and” and “year”; and (2) the word “the” was added between “of” and “person.”

As currently written, this proposed section would not require a conductor's certificate to include a physical description or photograph of the conductor as is required in part 240. FRA is considering requiring a conductor's certificate to include a physical description or photograph of the conductor. FRA believes that 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. FRA welcomes comments on that proposal.

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 proposed § 242.213(n), a single certificate issued to a person that is certified as both a conductor and a locomotive engineer would 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), proposes to require 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 212, and certain railroad officers; and notify a railroad if he or she is called to serve as a conductor in a service that would cause them to exceed their certificate limits. Although State inspectors authorized under 49 CFR 212 could be considered “FRA representatives,” they were mentioned separately in this section to ensure that there would be no dispute regarding their authority.

Section 242.211 Replacement of Certificates

This proposed section, derived from 49 CFR 240.301, would require 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 proposes 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 proposed 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 proposes to permit railroads to issue temporary replacement certificates. The paragraph describes what the certificate would have to contain and who could authorize the temporary replacement. The temporary replacement certificate could be delivered electronically (

e.g.,

faxed, e-mailed, etc.) and would be valid for no more than 30 days.

Section 242.213 Multiple Certifications

This proposed section would permit a person to hold certification for multiple types of conductor service and/or certification for both conductor and locomotive engineer service. A railroad would only need to issue one certificate to a person with multiple certifications. However, a certificate issued to a person certified as a conductor and locomotive engineer would not only have to comply with proposed § 242.207 but also with § 240.223. To the extent possible, a railroad that issued multiple certificates to a person would 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 would require that a locomotive engineer, including a RCO, who is operating without an assigned certified conductor to either be: (1) Certified as both a locomotive engineer and a conductor; or (2) accompanied by a certified conductor who will attach to the crew “in a manner similar to that of an independent assignment.” Since a lone engineer/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/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 proposed 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 proposed 49 CFR 242.213 (“Multiple certifications”) on the issue of crew consist. It is FRA's intent that this proposed conductor certification regulation, including section 242.213, be neutral on the crew consist issue. Nothing in the proposed 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, FRA is considering adding a provision to this proposed section which would require 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 proposed 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 locomotive, braking,

etc.

). FRA welcomes comments on that proposed provision.

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 would have to 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 would not be permitted to 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 would not be permitted to 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) would not be permitted to 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) would be permitted to work as an engineer during the period of revocation. To aid interested parties, FRA has included a table in Appendix E

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to this proposed rule which explains, in a spreadsheet-style form, when a person certified as both an engineer and conductor would be permitted to work following a certification revocation.

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Appendix E was not considered by the Working Group or the full RSAC. It was added by FRA to assist interested parties in determining the application of revocable events.

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 proposed 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 proposes that, in determining the period in which a person may not work as a locomotive engineer due to a revocation of his or her conductor certification, only violations of §§ 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 would prohibit 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) would be 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 would not be permitted, solely on the basis of the denial, to 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, proposes to require 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 proposed 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 would require 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 8 distinct kinds of events that involve poor safety conduct by conductors. For each event, the railroad would have to indicate what response it took to that situation. The railroad would 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 proposing to require that a railroad furnish this data or its analysis of the data to FRA. Instead, FRA is proposing to require that the railroad be prepared to submit such information when requested.

For purposes of the reporting requirement in this section, an instance of poor safety conduct involving a person who holds both a conductor and engineer certification would only have to 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 would be based on the work the person was performing at the time the conduct occurred. This determination would be 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.

).

Subpart D—Territorial Qualification and Joint Operations

Section 242.301 Requirements for Territorial Qualification

This proposed 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 two circumstances,

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a railroad, including a railroad that employs conductors working in joint operations territory, could not 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.

12

The phrase “[e]xcept as provided in paragraph (c) or (d) of this section” in paragraph (a) was not considered by the Working Group or the full RSAC, but has been added to clarify the section.

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 proposed rule puts the burden on the employing railroad. This change is based on the experiences of the Working Group members who believe that an inordinate amount of the liability currently rests with the controlling railroad. The perceived unfairness rests on the fact that it is not always feasible for the controlling railroad to make all of the determinations proposed in § 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 proposed realignment would lead to a sharing of the burden among a controlling railroad, an employing railroad and an employing railroad's conductor. Although a controlling railroad would be obligated to make sure the person is qualified, paragraph (a) would require that an employing railroad make these same determinations before calling a person to serve in joint operations. Paragraph (b) of this section would require 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 proposed rule.

Paragraphs (c) and (d) propose requirements for situations where a conductor lacks territorial qualification on main track and other than main track physical characteristics. On main track, the conductor would have to be assisted by a person who is (1) a certified conductor or certified locomotive engineer and (2) meets the territorial qualification requirements for the main track physical characteristics. On other than main track, the conductor, where practicable, would have to 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 would have to be provided with an appropriate, up-to-date job aid. Two points should be made about the other than main track proposal in paragraph (d) of this section. First, the person assisting the conductor could 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

proposed requirements of § 242.301(d) to apply to sidings.

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 proposed rule is predicated principally on the theory that decisions to deny certification or recertification would come at the conclusion of a prescribed evaluation process which would be conducted in accordance with the provisions set forth in this subpart. Thus, this proposed rule and part 240 contain specific procedures designed to assure that a person, in jeopardy of being denied certification or recertification, would be given a reasonable opportunity to explore and respond to the negative information that might serve as the basis for being denied certification or recertification.

When considering revocation, this proposed rule contemplates that decisions to revoke certification would 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 would come only after a certified conductor had been afforded an opportunity for an investigatory hearing at which the presiding officer would determine whether there was 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 would 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 would be 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 proposed 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, proposes minimum procedures that must be accorded to a certification candidate before a railroad denies the candidate certification or recertification. Except for two changes, the provisions in this section mirror the 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 differs from § 240.219 in two ways. First, this section would require 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 proposed rule internally consistent but would likely help FRA in determining whether a petition seeking review of a denial decision was filed within 120 days of the date the denial was served on the petitioner (

see

§ 242.503(c)). Second, paragraph (d) of this section, which is not included in § 240.219, would prohibit 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) parallels the intervening cause exception for revocation in § 242.407(i)(1). FRA welcomes comments on whether the intervening cause exception in paragraph (d) should be modified to include certification and recertification requirements in addition to the revocable events in § 242.403. For example, paragraph (d) could be modified to read as follows: 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.

As a supplement to this proposed section, FRA is considering whether to add two provisions which FRA believes would 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 proposed rule. One of the challenges that FRA faces when reviewing denial decisions in the locomotive engineer context is that, unlike revocation decisions which are usually accompanied by a documentary record and transcript generated at a railroad hearing, no such hearing is required for denial decisions and often there is little or no documentary record.

To overcome that challenge, FRA is considering two additional provisions. First, FRA is considering adding the following sentence to paragraph (a) of this section: The railroad shall provide the conductor candidate with any written documents or records, including written statements, which support its pending denial decision. Second, FRA is considering adding 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. FRA welcomes comments on those proposed provisions.

Section 242.403 Criteria for Revoking Certification

This section, derived from 49 CFR 240.117 and 240.305, proposes the circumstances under which a conductor may have his or her certification revoked. In addition, paragraph (b) of this section would make 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) would be 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.

Paragraph (c)(1) of this section proposes 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) proposes that a certified conductor, who is monitoring, piloting, or instructing a conductor, could have his or her certification revoked if he or she fails to take “appropriate action” to prevent a violation of paragraph (e) of this section. As explained in paragraph (c)(2), “appropriate action” does not mean that a supervisor, pilot, or instructor must prevent a violation from occurring at all costs, but rather the duty may be met by warning the conductor or engineer, as appropriate, of a potential or foreseeable violation. The term “appropriate action”

is also used in paragraph (e) of this section as well as 49 CFR 240.117(c)(2).

Paragraph (c)(3) proposes 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 would not apply to violations of § 242.403(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) proposes that the time frame for considering operating rule compliance would only apply 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 would be dictated by § 242.115 and not limited to the 36 month period prescribed in this paragraph. This proposed rule would require 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) proposes 12 kinds 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 subparagraphs would 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 subparagraphs, “appropriate action” does not mean that a conductor must prevent a violation from occurring at all costs; but rather the duty may be met by warning the engineer of a potential or foreseeable violation. Moreover, paragraph (e)(2) recognizes that a conductor who is not in the operating cab should not be held to held to the same responsibility with respect to monitoring train speed as a conductor who is located in the operating cab.

Interested parties should note that with respect to paragraph (e)(4), a conductor would be considered to have occupied main track or a segment of main track without proper authority or permission if the conductor failed 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)-(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 proposes, 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.

13

The operating rules identified in part 218, subpart F are not only considered core competencies for conductors but are also designed to address the most frequently caused human factor accidents. Human factors are the leading cause of train accidents, accounting for 38 percent of the total in 2005. Human factors also contribute to employee injuries. Subpart F violations account for approximately 43% 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 injured, and $104,855,224 in damages.

13

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

In addition to the 12 kinds of revocable events proposed in this NPRM, FRA welcomes comments as to whether a violation of the final rule in 49 CFR part 220 (“Restrictions on Railroad Operating Employees' Use of Cellular Telephones and Other Electronic Devices”) should constitute a revocable event for conductors and locomotive engineers. In the NPRM for 49 CFR part 220 (75 FR 27672, 27678 (May 18, 2010)), FRA noted that it was “considering amending 49 CFR part 240 * * * to add violations of this subpart as a basis for revoking a locomotive engineer's certification” and requested comments on the issue. However, since the issue deals with revocation of certification, FRA believes that the issue is more appropriately addressed in the conductor and locomotive engineer rules. Comments regarding whether FRA should use its other enforcement tools (

e.g.,

monetary civil penalty against an individual, disqualification of an individual from performing safety-sensitive service,

etc.

) instead of mandating revocation would be particularly helpful as would comments describing 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.

Paragraph (e)(13) of this section, which does not have a counterpart in part 240, would prohibit 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 was more stringent than the condition or restrictions required by this proposed part. In the future, FRA expects to review whether a similar provision should also apply to locomotive engineers.

Paragraph (f) of this section proposes that if a single incident contravenes more than one operating rule or practice listed in paragraph (e) of this section, that event would be treated as a single violation. Moreover, paragraph (f) proposes that a conductor may have his or her certification revoked for violations that occur during properly conducted operational compliance tests. However, violations that occur during an improperly conducted operational compliance test would not be considered for revocation purposes.

Section 242.405 Periods of Ineligibility

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When considered by the Working Group and full RSAC, the title of this section was “Periods of revocation.” FRA has modified that title to describe more clearly what the section would cover.

This proposed section, derived from § 240.117, describes how a railroad would determine the period of ineligibility (

e.g.,

for revocation or denial of certification) that a conductor or conductor candidate would have to undergo. With respect to revocation, this section proposes that once a railroad has determined that a conductor has failed to comply with its safety rule concerning one or more events listed in § 242.403(e), two consequences would occur. First, the railroad would be required to revoke the

conductor's certification for a period of time provided in this section. Second, that revocation would initiate a period during which the conductor would be subject to an increasingly more severe response 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 proposed in this section track the periods provided in part 240: 1 event = revocation for 30 days; 2 events within 24 months of each other = 6 months; 3 events within 36 months of each other = 1 year; and 4 events within 36 months of each other = 3 years. This section notes, however, that violations of § 219.101 (Alcohol & Drugs) could result in different periods of ineligibility and in those cases, the longest period of revocation would control. FRA has included a table in Appendix E to this proposed rule which provides the revocation periods in a spreadsheet-style form. The table should be useful in determining the correct period of revocation.

The period of revocation in both part 240 and this proposed rule is based on a floating window. Hence, under this proposed rule and part 240, if a second offense occurs 25 months after the first offense, the revocation period would be the same as a first offense; however, if a third offense occurs within 36 months of the first offense, the revocation period would be one year. The anomaly will be that a person's certificate could be revoked twice for one month under paragraph (a)(3)(ii) of this section but that the third incident could result in a one year revocation under paragraph (a)(3)(iv) of this section without the benefit of the interim six month revocation period under paragraph (a)(3)(iii).

This section also contains two provisions which would reduce the period of ineligibility if certain criteria are met. The first provision, which is contained in paragraph (a)(3)(i) of this section, proposes 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) 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.

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That provision, which parallels § 240.117(h), proposes that a person whose conductor certification is denied or revoked would 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.

15

Following the Working Group meetings, FRA changed the word “revocation” in the beginning of paragraph (c) to the word “ineligibility” to accurately reflect the scope of that paragraph.

In certain instances, both proposed 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 proposed § 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.

16

16

If, as in the example, the revocation calculation results in any fraction of a day (

e.g.,

7.5 days), then round the number up. Thus, the conductor in the example would be eligible for reinstatement in 8 days.

Paragraph (b) of this section proposes 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 proposed rule to make the rule clear.

Section 242.407 Process for Revoking Certification

This proposed section, derived from 49 CFR 240.307, provides the procedures a railroad would have to 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 would have to suspend the person's certificate. Paragraph (b)(2) provides that prior to or upon suspending the person's certificate, the railroad would 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 would have to be promptly confirmed in writing. The amount of time the railroad has to confirm the notice in writing would depend on whether or not a collective bargaining agreement is applicable. In the absence of such an agreement, a railroad would 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 that constituted procedural error pursuant to § 242.505.

Paragraphs (b)(3)-(b)(7) and paragraphs (c), (d), (e), and (f) of this section provide the proposed requirements and procedures for conducting or waiving a railroad hearing regarding the alleged revocable event. Except for paragraph (b)(4), discussed below, those proposed requirements mirror the hearing requirements in part 240.

Although the requirements in paragraph (c) regarding the written decision issued in a railroad hearing track the requirements in part 240, FRA is considering modifying those requirements to ensure that clearer and more detailed decisions are issued. Clearer and more detailed decisions would allow a conductor to understand exactly why his or her certification was revoked and would allow the 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 proposed rule. Specifically, FRA is considering requiring 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 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. FRA welcomes comments on those proposals.

Pursuant to paragraph (b)(4) of this section, no later than the convening of a hearing, the railroad convening the hearing would have to provide the person with a copy of the written information and list of witnesses the railroad would present at the hearing. If requested, a recess to the start of the hearing would be granted if the copy of the written information 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 § 242.407(b)(1) was provided through statements of an employee of the convening railroad, the railroad would have to 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 would 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 § 242.407(b)(1), a railroad would 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 would 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 § 242.407(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. FRA welcomes comments on its understanding of paragraph (b)(4).

Paragraph (g) would require 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 proposed rule is satisfied when any single railroad holds a revocation hearing.

Paragraph (h) would credit 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 proposed § 242.405.

Paragraph (i) proposes 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 would have to be proven by sufficient evidence.

Paragraph (i)(1) of this section proposes that a person's certificate would not be revoked when there is sufficient evidence of an intervening cause that prevented or materially impaired the person's ability to comply. For example, a railroad should consider assertions that a conductor in the operating cab failed to take appropriate action to prevent the engineer from failing to control the locomotive in accordance with a signal indication that requires a complete stop before passing it because of defective equipment. Similar to the defense of defective equipment, the actions of other people could sometimes be an intervening cause. For instance, a dispatcher or a train crew member could relay incorrect information to the conductor who reasonably relied on it in making a prohibited train movement.

Conductors and railroad managers need to note that not all equipment failures or errors caused by others would serve to absolve the person from certification action under this proposed rule. The factual issues of each circumstance would 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 proposes to provide 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. However, that subparagraph does not permit a railroad to use its discretion to dismiss violations indiscriminately. That is, FRA would 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 makes clear to the conductor, who is in the cab, that the engineer knows the correct speed limit without the conductor saying 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 for the remainder of the train. If more of the locomotive or train consist enters the speed restriction in violation, a railroad that is willing to consider mitigating circumstances would need to consider whether the violation was truly of a minimal nature.

In contrast, a violation could not be considered of a minimal nature if a conductor fundamentally violated the operating rules. For example, if a conductor failed 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 could not be considered of a minimal nature. In situations where the proposed 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 would have to 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. For instance, an example used to illustrate the term “minimal nature” described a situation involving a train that had the first two locomotives enter a speed restriction too fast, yet the balance of the train was in compliance with the speed restriction; since the train in that example would not be endangering other trains because it had the authority to travel on that track at a particular speed, there would be no direct or potential effect on rail safety caused by that violation.

In contrast, if a train failed to stop short of a banner, which was acting as a signal requiring a complete stop before passing it, during a locomotive engineer efficiency test, that striking of a banner might have no direct effect on rail safety but it has a potential effect since a banner would be 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 touched a banner so that the locomotive or train did 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 did 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 were 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 was 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 proposes to require 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) would require 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) would require railroads to keep records even when they make their 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 should have a defense to 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 would be subject to civil penalty enforcement under this proposed rule. In addition, even if a railroad does not take what FRA considers appropriate revocation action, FRA could still take enforcement action against a person responsible for the non-compliance by assessing a civil penalty pursuant to § 242.403 of this proposed rule or issuing an order prohibiting an individual from performing safety-sensitive functions in the rail industry for a specified period pursuant to 49 CFR 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 proposed in this subpart, which received unanimous consent by the Working Group and was recommended by the full RSAC, essentially follows the appeals process in part 240, some important modifications are proposed. Those proposed modifications are discussed below.

Section 242.501 Review Board Established

This section, derived from 49 CFR 240.401, provides that a person who has been denied certification or recertification or has had his or her conductor certification revoked could petition FRA to review the railroad's decision. Pursuant to this section, FRA proposes to delegate initial responsibility for adjudicating such disputes to an Operating Crew Review Board (OCRB). Although creation of the OCRB would require issuance of an internal FRA order, FRA expects that the OCRB would mirror the make-up of the Locomotive Engineer Review Board (LERB), which is currently used by FRA to adjudicate disputes under part 240.

17

As mentioned above, FRA expects that, if and when conforming changes are made to part 240, all references to the LERB in part 240 would be changed to the OCRB and the OCRB would handle both conductor and locomotive engineer disputes.

Section 242.503 Petition Requirements

17

In a modification to the regulatory text considered by the Working Group and the full RSAC, FRA has removed a reference to a minimum number of OCRB members in paragraph (c) of this section. The number of board members will be provided by FRA order.

This section, derived from 49 CFR 240.403, provides the proposed requirements for obtaining FRA review of a railroad's decision to deny certification, deny recertification, or revoke certification. Those requirements contained in paragraphs (a)-(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 in paragraph (b) of this section is the person who had his or her certificate revoked, not an employee representative who may respond on the 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 e-mail address (if available) in the petition.

As currently proposed, paragraph (b)(5) of this section would require 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. In an effort to clarify that requirement with respect to petitions seeking review of a railroad decision which is based on a failure to comply with any drug or alcohol related rules or a return-to-service agreement, FRA is considering adding a provision to paragraph (b) of this section which would provide that: “If the petitioner is requesting review of a railroad decision which is based on a failure to comply with any drug or alcohol related rules or a return-to-service agreement, then the petitioner shall supplement his or her petition with all relevant written documents, including the information under 49 CFR 40.329 that laboratories, medical review officers, and other service agents are required to release to employees. The petitioner should provide written explanation in the petition if written documents that should be reasonably available to the petitioner are not supplied.” FRA welcomes comments on that proposed provision.

Paragraph (c) of this section proposes to give 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 could exercise its discretion under this proposed rule only for “cause shown,” a party would have to demonstrate some justification for the Board 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 would require 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 specified in the rules. Absent a showing along these lines, relief would 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 could be appealed directly to the Administrator. Ordinarily, an appeal to the Administrator could occur only after a case has been heard by FRA's hearing officer.

One difference between this proposed 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 on whether a person is seeking review of a revocation decision (120 days) or a denial decision (180 days). This proposed section, however, provides that a petition seeking review of a revocation or denial decision would have to be filed with FRA within 120 days of the date the decision was served on the petitioner. Another difference between this proposed section and § 240.403 is that, under this section, the OCRB's discretion to consider untimely filed petitions would now be extended to petitions seeking review of a railroad's decision to deny certification or recertification.

Section 242.505 Processing Certification Review Petitions

This proposed section, derived from 49 CFR 240.405, details how petitions for review would be handled by FRA. Upon receipt of the petition, FRA proposes to provide the person written acknowledgement of the filing and provide a copy of the filing to the railroad. The railroad would then have 60 days from its date of receipt to respond, if it desires to comment on the matter. If the railroad commented on the matter, any material would have to be submitted in writing and a copy served on the petitioner and petitioner's representative, if any.

18

18

The proposed rule considered by the Working Group and full RSAC would have required the railroad to “provide” a copy of the information to the petitioner. To clarify the obligation of the railroad, FRA has changed the word “provide” to “serve” and added that petitioner's representative, if any, also be served.

Based on the written record, FRA staff would analyze the railroad decision and make a recommendation to the OCRB. The OCRB would determine whether the denial or revocation of certification was improper under the regulation. As indicated in paragraph (a), it would 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 would 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 would be the same under § 240.405 and this proposed section, this section, unlike § 240.405, includes, in paragraphs (f)-(j), the proposed process and standards of review that the OCRB would utilize when considering a petition. Those standards are the same standards used by the LERB to review locomotive engineer petitions.

19

The standards were added to this proposed rule to address a concern of some members of the Working Group that railroads and petitioners would not know what standard of review the OCRB would use in considering petitions.

19

FRA has made some modifications to paragraphs (f)-(j) from the draft recommended by the Working Group and full RSAC. The modifications are necessary to clarify the authority of the OCRB and the standards of review the OCRB would utilize.

Like the LERB, the OCRB would only determine whether a railroad's decision was based on an incorrect determination. If a railroad conducted hearing was so unfair that it caused a petitioner substantial harm, the OCRB could grant the petition; however, the OCRB's review would not be intended to correct all procedural wrongs committed by the railroad. Also like the LERB, the decision-making power of the OCRB would be limited to approving the railroad decision, overturning the railroad decision, or returning the case to the railroad for additional fact finding. The OCRB would not be empowered to mitigate the consequences of a railroad decision, if that decision was valid under this proposed regulation. The OCRB would only be empowered to make determinations concerning qualifications under this regulation. The contractual consequences, if any, of those determinations would have to be resolved under dispute resolution mechanisms that do not directly involve FRA. For example, FRA could not 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 proposed rule, as currently written, would necessarily require 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 found that a person who holds both a conductor and engineer certification violated 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 would require the OCRB's written decision to be served on the petitioner, including the petitioner's representative, if any, and the railroad. That paragraph has been modified from the paragraph considered by the Working Group and the full RSAC to require that the decision be served on the parties, not just provided to them. Moreover, the modified 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 would have the opportunity to request an administrative proceeding as prescribed in proposed § 242.509. In addition, this section details the proposed 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 would lose the right to further administrative review since the OCRB's decision would constitute final agency action.

As noted in paragraph (e) of this section, FRA would not schedule hearings or set an agenda for the proceeding. FRA would merely arrange for the appointment of a presiding officer and it would 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 proposed authority of the presiding officer to conduct an administrative hearing and the procedures by which the administrative hearing would be governed. Like § 240.409, the proceeding provided by this section would afford an aggrieved party a

de novo

hearing at which the relevant facts would be adduced and the correct application of this proposed part would be applied.

In instances when the issues are purely legal, or when only limited factual matters are necessary to determine issues, paragraph (c) of this section proposes that the presiding officer could determine the issues following an evidentiary hearing only on the disputed factual issues, if any. The presiding officer could therefore grant full or partial summary judgment.

Paragraph (d) of this section proposes that the presiding officer may authorize discovery. It also proposes to authorize the presiding officer to sanction willful noncompliance with permissible discovery requests. Paragraph (e) would require that documents in the nature of pleadings be signed. This signature would constitute a certification of factual and legal good faith. Paragraph (f) proposes a 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 would have the authority to control the proceeding so that an efficient and fair hearing would result.

Paragraph (h) states the right of each party to appear and be represented. Paragraph (i) would protect witnesses by ensuring their right of representation and their right to have their representative question them. Paragraph (j) would allow 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 proposed 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) would establish a motion as the appropriate method for requesting action by the presiding officer. That paragraph would also provide the form of motions and the response period for written motions.

Paragraph (m) would provide rules for the mode of hearing and record maintenance, including requirements for sworn testimony, verbatim record (including oral testimony and argument), and inclusion of evidence or substitutes therefor in the record. Paragraph (n) would direct 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) proposes additional powers the presiding officer may exercise during the proceedings.

Paragraph (p) would provide that the petitioner before the OCRB, the railroad that took the certification action at issue, and the FRA are manda

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