# Certification of Signal Employees > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/fr%3A2023-10773 ## Record - **Collection:** Federal Register - **Document type:** Proposed Rule - **Published:** May 31, 2023 - **Citation:** 88 FR 35632 ## Text DEPARTMENT OF TRANSPORTATION Federal Railroad Administration 49 CFR Part 246 [Docket No. FRA-2022-0020, Notice No. 1] RIN 2130-AC92 Certification of Signal Employees AGENCY: Federal Railroad Administration (FRA), Department of Transportation (DOT). ACTION: Notice of proposed rulemaking (NPRM). SUMMARY: FRA proposes regulations for the certification of signal employees, pursuant to the authority granted in section 402 of the Rail Safety Improvement Act of 2008. DATES: Comments on the proposed rule must be received by July 31, 2023. FRA will consider comments received after that date to the extent practicable. ADDRESSES: Comments: Comments related to Docket No. FRA-2022-0020 may be submitted by going to https://www.regulations.gov and following the online instructions for submitting comments. Instructions: All submissions must include the agency name, docket number (FRA-2022-0020), and Regulatory Identification Number (RIN) for this rulemaking (2130-AC92). All comments received will be posted without change to https://www.regulations.gov; this includes any personal information. Please see the Privacy Act heading in the SUPPLEMENTARY INFORMATION section of this document for Privacy Act information related to any submitted comments or materials. Docket: For access to the docket to read background documents or comments received, go to https://www.regulations.gov and follow the online instructions for accessing the docket. FOR FURTHER INFORMATION CONTACT: Gabe Neal, Staff Director, Signal, Train Control, and Crossings Division, U.S. Department of Transportation, Federal Railroad Administration, telephone: (816) 516-7168, email: Gabe.Neal@dot.gov; or Kathryn Gresham, Attorney Adviser, U.S. Department of Transportation, Federal Railroad Administration, telephone: (202) 577-7142, email: kathryn.gresham@dot.gov. SUPPLEMENTARY INFORMATION: Abbreviations and Terms Used in This Document AAR—Association of American Railroads ASLRRA—American Short Line and Regional Railroad Association CE—Categorical Exclusion CFR—Code of Federal Regulations DAC—Drug and alcohol counselor DOT—United States Department of Transportation EA—Environmental Assessment EIS—Environmental Impact Statement FRA—Federal Railroad Administration IRFA—Initial Regulatory Flexibility Analysis NEPA—National Environmental Policy Act NPRM—Notice of Proposed Rulemaking OMB—United States Office of Management and Budget PRA—The Paperwork Reduction Act PTC—Positive Train Control PV—Present Value RIN—Regulatory Identification Number RSAC—Railroad Safety Advisory Committee RSIA—Rail Safety Improvement Act of 2008 SAP—Substance Abuse Professional STB—The Surface Transportation Board U.S.C.—United States Code Table of Contents for Supplementary Information I. Executive Summary II. Legal Authority III. Background IV. Section-by-Section Analysis V. Regulatory Impact and Notices A. Executive Order 12866 B. Regulatory Flexibility Act and Executive Order 13272 C. Paperwork Reduction Act D. Federalism Implications E. International Trade Impact Assessment F. Environmental Impact G. Executive Order 12898 (Environmental Justice) H. Unfunded Mandates Reform Act of 1995 I. Energy Impact J. Privacy Act Statement K. Executive Order 13175 (Tribal Consultation) I. Executive Summary Purpose of the Regulatory Action FRA proposes to require railroads to develop programs for the certification of signal employees and to submit those written certification programs to FRA for approval prior to implementation. Signal employees are responsible for the installation, testing, troubleshooting, repair, and maintenance of railroad signal systems which, for purposes of this proposed rule, include highway-rail and pathway grade crossing warning systems, unusual contingency detection devices, broken rail detection systems, power-assisted switches, and switch point indicators. Under this proposed rule, railroads would be required to verify and document that each signal employee 1 has the requisite knowledge, skills, safety record, and abilities to safely perform all of the safety-related signal employee duties mandated by Federal laws and regulations, prior to certification. In addition, railroads would be required to have formal processes for revoking certification (either temporarily or permanently) for signal employees who violate specified minimum requirements. 1 Although “signal employees” are also referred to as “signalmen,” those terms are synonymous. FRA is proposing this regulation in response to the Rail Safety Improvement Act of 2008 (RSIA), which required the Secretary of Transportation (Secretary) to submit a report to Congress addressing whether certification of “certain crafts or classes” of railroad employees or contractors, including signal employees, was necessary to “reduce the number and rate of accidents and incidents or to improve railroad safety.” If the Secretary determined it was necessary to require the certification of certain crafts or classes to improve railroad safety, section 402 of the RSIA authorized the Secretary to prescribe such regulations. The Secretary submitted a report to Congress on November 4, 2015, 2 stating that, based on FRA's preliminary research, signal employees were one of the most viable candidate railroad crafts for certification, particularly with the introduction of Positive Train Control (PTC) technology. Given the safety critical role of signal employees in facilitating safe railroad operations, FRA determined that railroad safety is expected to be improved if signal employees were required to satisfy certain standards and be certified by each railroad whose signal systems they install, troubleshoot, repair, test, or maintain. 2 A copy of this November 4, 2015 Report to Congress has been posted in the rulemaking docket at: https://www.regulations.gov/document/FRA-2022-0020-0001. Summary of Major Provisions This proposed rule would require railroads to develop written programs for certifying individuals who work as signal employees on their territories and to submit those written certification programs to FRA for approval prior to implementation. FRA would issue a letter to the railroad when it approves a certification program that explains the basis for approval and a program would not be considered approved until the approval letter is issued. FRA is proposing to require Class I railroads (including the National Railroad Passenger Corporation), and railroads providing commuter service, to submit their written certification programs to FRA no later than eight (8) months after the final rule effective date. Class II and Class III railroads would be required to submit their written certification plans sixteen (16) months after the final rule effective date. New railroads that begin operation after the final rule effective date would be required to submit their written certification programs to FRA and obtain FRA approval before installing their signal systems and commencing operations. In addition, railroads seeking to materially modify their FRA-approved certification programs would be required to obtain FRA approval prior to modifying their programs. Railroads would be required to evaluate certification candidates in multiple areas, including prior safety conduct as a motor vehicle operator, prior safety conduct with other railroads, substance abuse disorders and alcohol/drug rules compliance, and vision and hearing acuity. The proposed rule also contains minimum requirements for the training provided to candidates for signal employee certification. These proposed requirements are intended to ensure signal employees receive sufficient training before they are certified to work on signal systems. These proposed requirements are also intended to ensure that certified signal employees periodically receive recurring training on railroad signal system standards, test procedures, operating rules and procedures, and orders governing the installation, operation, testing, troubleshooting, repair, and maintenance of railroad signal systems, as well as comprehensive training on new signal systems and technology before they are introduced on the railroads where they work. With the exception of individuals designated as certified signal employees prior to FRA approval of the railroad's signal employee certification program, the proposed rule would prohibit railroads from certifying signal employees for intervals longer than three (3) years. This three-year limitation, which would be consistent with the 36-month maximum period for certifying locomotive engineers in 49 CFR 240.217(c) and the 36-month maximum period for certifying conductors in 49 CFR 240.201(c), would allow for periodic re-evaluation of certified signal employees to verify their continued compliance with FRA's minimum safety requirements. Subpart D of this proposed rule addresses the process and criteria for denying and revoking certification. Proposed § 246.301 describes the process a railroad would be required to undergo before it denies an individual certification or recertification. This process would include providing the certification candidate with the information that forms the basis for the denial decision and giving the candidate an opportunity to rebut such evidence. When a railroad denies an individual certification or recertification, it must issue its decision in writing and the decision must comply with certain requirements provided in the proposed rule. A railroad could only revoke a signal employee's certification if one of eleven events occurs. Generally, for the first revocable event that is not related to a signal employee's use of drugs or alcohol, the individual's certification would be revoked for 30 days. If an individual accumulates more of these violations in a given time period, the revocation period (period of ineligibility) would become increasingly longer. If a railroad acquires reliable information that a certified signal employee has violated an operating rule or practice requiring decertification under the proposed rule, it must suspend the signal employee's certification immediately while it determines whether certification revocation is warranted. In such circumstances, signal employees would be entitled to a hearing. Similar to a railroad's decision to deny an individual certification, a railroad's decision to revoke a signal employee's certification would be required to comply with certain requirements. Finally, if an intervening cause prevented or materially impaired a signal employee's ability to comply with a railroad operating rule or practice, the railroad would not revoke the signal employee's certification. Subpart E of this proposed rule discusses the dispute resolution process for individuals who wish to challenge a railroad's decision to deny certification, deny recertification, or revoke certification. This dispute resolution process mirrors the process used for locomotive engineers and conductors under 49 CFR parts 240 and 242, respectively. Finally, the proposed rule contains two appendices. Appendix A discusses the procedures that a person seeking certification or recertification should follow to furnish a railroad with information concerning their motor vehicle driving record. Appendix B provides guidance on the procedures railroads should employ in administering the vision and hearing requirements under §§ 246.117 and 246.118. Costs and Benefits FRA analyzed the economic impact of this proposed rule. FRA estimated the costs estimated to be incurred by railroads and the Government. FRA also estimated the benefits of fewer signal employee-caused accidents. FRA is proposing regulations establishing a formal certification process for railroad signal employees. As part of that process, railroads would be required to develop a program meeting specific requirements for training current and prospective signal employees, documenting and verifying that the holder of the certificate has achieved certain training and proficiency, and creating a comprehensive record, including of safety compliance infractions, that other railroads can review when considering individuals for certification. This proposed regulation would ensure that signal employees are properly trained, are qualified to perform their duties, and meet Federal safety standards. Additionally, this proposed regulation is expected to improve railroad safety by reducing the rate of accidents/incidents. FRA estimates the 10-year costs of the proposed rule to be $8.3 million, discounted at 7 percent. The estimated annualized costs would be $1.2 million discounted at 7 percent. The following table shows the total costs of this proposed rule, over the 10-year analysis period. Total 10-Year Discounted Costs [2020 dollars] 3 Category Present value 7% ($) Present value 3% ($) Annualized 7% ($) Annualized 3% ($) Development of Certification Program 1,140,385 1,168,920 162,365 137,033 Certification Eligibility Requirements 87,507 100,380 12,459 11,768 Recertification Eligibility Requirements 203,790 259,653 29,015 30,439 Training 2,079,835 2,379,911 296,122 278,998 Knowledge Testing 746,865 898,884 106,337 105,377 Vision and Hearing 1,097,523 1,320,891 156,263 154,849 Monitoring Operational Performance 832,102 994,414 118,473 116,576 Railroad Oversight Responsibilities 267,530 326,714 38,090 38,301 Certification Card 103,175 124,175 14,690 14,557 Petitions and Hearings 42,451 50,731 6,044 5,947 Government Administrative Cost 1,653,360 1,914,063 235,401 224,387 Total 8,277,337 9,566,001 1,178,507 1,121,427 This rule would reduce the likelihood of an accident occurring due to signal employee error. FRA has analyzed accidents over the past 10 years to categorize those where signal employee training and certification would have impacted the accident. FRA then estimated benefits based on that analysis. 3 Numbers in this table and subsequent tables may not sum due to rounding. The following table shows the estimated 10-year quantifiable benefits of the proposed rule. The total 10-year estimated benefits would be $2.9 million (PV, 7%) and annualized benefits would be $0.4 million (PV, 7%). Total 10-Year Discounted Benefits [2020 dollars] Category Present value 7% ($) Present value 3% ($) Annualized 7% ($) Annualized 3% ($) Grade Crossing Accidents 1,766,028 2,064,676 251,443 242,043 Train Accidents/Incidents 989,123 1,156,391 140,829 135,564 Business Benefits from Fewer Activation Failures 159,526 186,503 22,713 21,864 Total 2,914,678 3,407,570 414,985 399,471 This proposed rule would also provide unquantifiable benefits. FRA has quantified the monetary impact from accidents which is reported on FRA accident forms. However, some accident costs are not required to be reported on FRA accident forms ( e.g., environmental impact). That impact may account for additional benefits not quantified in this analysis. If these costs were realized, accidents affected by this proposed rulemaking could have much greater economic impact than estimated quantitative benefit estimates. There is also a chance of a high impact event due to signal employee error. This could involve fatalities, injuries, and environmental damage, as well as impact railroads, communities, and the public. FRA has not estimated the likelihood of such an accident, but this proposed rule is expected to reduce the risk of an accident of that magnitude. II. Legal Authority Pursuant to the Rail Safety Improvement Act of 2008, Public Law 110-432, sec. 402, 122 Stat. 4884 (Oct. 16, 2008) (hereinafter “RSIA”), the Secretary of Transportation (Secretary) was required to submit a report to Congress addressing whether certification of certain crafts or classes of employees, including signal repair and maintenance employees, was necessary to reduce the number and rate of accidents and incidents or to improve railroad safety. 4 If the Secretary determined it was necessary to require the certification of certain crafts or classes of employees to reduce the number and rate of accidents and incidents or to improve railroad safety, section 402 of the RSIA stated the Secretary may prescribe such regulations. The Secretary delegated this authority to the Federal Railroad Administrator. 49 CFR 1.89. In response to the RSIA, the Secretary submitted a report to Congress on November 4, 2015, stating that, based on FRA's preliminary research, dispatchers and signal employees were potentially the most viable candidate railroad crafts for certification. Based on the analysis in Section III below, the Federal Railroad Administrator has determined that it is necessary to require the certification of signal employees to improve railroad safety. 4 See also 49 U.S.C. 20103 (providing FRA's general authority to “prescribe regulations and issue orders for every area of railroad safety”). III. Background 1. Roles and Responsibilities of Signal Employees Railroad signal employees play an integral role in ensuring the safety of railroad operations, as well as the safety of highway motorists. They are responsible for the installation, testing, troubleshooting, repair, and maintenance of signal systems, as defined in proposed 49 CFR 246.7, which railroads utilize to direct train movements. Signal employees must also use specialized test and maintenance equipment to complete safety critical tasks on mechanical, electrical, and electronic signal equipment. The work performed by signal employees can generally be divided into two categories: construction and maintenance. On larger railroads, some signal employees work in groups (often referred to as “gangs”) under the direct supervision and oversight of an experienced signal employee to construct, install, and upgrade signal systems and signal system subsystems and components. Some signal employees also work in “gangs” under the direct supervision and oversight of an experienced signal employee to make repairs to the signal system, while other signal employees (often referred to as “signal maintainers”) are tasked with inspecting and testing signal systems and performing minor and emergency repairs as needed. The implementation of complex PTC system technology requires increasingly sophisticated work by signal employees. PTC systems provide another layer of safety to existing signal systems, many of which have been place for many decades. In addition, PTC systems are interoperable with each other, as well as with existing signal systems. Therefore, signal employees need to understand the relationship between signal and PTC systems and the communication medium and how these systems operate, function, and react to a myriad of circumstances. Signal systems and PTC systems are also continually upgraded, so the development and implementation of these systems need to be properly understood and monitored by both FRA and railroad signal employees. 2. FRA History of Certification On January 4, 1987, an Amtrak train collided with a Conrail train in Chase, Maryland, resulting in 16 deaths and 174 injuries. At the time, it was the deadliest train accident in Amtrak's history. The subsequent investigation by the National Transportation Safety Board concluded that the probable cause of the accident was the impairment of the Conrail engineer who was under the influence of marijuana at the time of the collision. 5 5 Railroad Accident Report: Rear-end Collision of Amtrak Passenger Train 94, the Colonial and Consolidated Rail Corporation Freight Train ENS-121, on the Northeast Corridor, Chase, Maryland, January 4, 1987 (144 Nat'l Transp. Safety Bd. 1988). Following this accident, Congress passed the Rail Safety Improvement Act of 1988, Public Law 100-342, 4, 102 Stat. 624, 625 (1988), which instructed the Secretary of Transportation (Secretary) to “issue such rules, regulations, orders, and standards as may be necessary to establish a program requiring the licensing or certification of any operator of a locomotive, including any locomotive engineer.” On June 19, 1991, FRA published a final rule establishing a certification system for locomotive engineers and requiring railroads to ensure that they only certify individuals who met minimum qualification standards. 6 In order to minimize governmental intervention, FRA opted for a certification system where the railroads issue the certificates as opposed to a government-run licensing system. This final rule, published in 49 CFR part 240 (part 240), created certification requirements for engineers that addressed various areas including vision and hearing acuity; training, knowledge, and performance skills; and prior safety conduct. 6 56 FR. 28227 (June 19, 1991). Seventeen years later, Congress passed the RSIA, which mandated the creation of a certification system for conductors. On November 9, 2011, FRA published a final rule requiring railroads to have certification programs for conductors and to ensure that all certified conductors satisfy minimum Federal safety standards. 7 The conductor certification rule, published in 49 CFR part 242 (part 242), was largely modeled after part 240 with some deviations based on the different job classifications. Part 242 also included some organizational improvements which made the regulation more streamlined than part 240. 7 76 FR 69801 (Nov. 9, 2011). 3. Statutory Background for Signal Employee Certification In addition to requiring certification for conductors, the RSIA required the Secretary to submit a report to Congress addressing whether certain other railroad crafts or classes of employees would benefit from certification. Specifically, section 402(b) of the RSIA requires that the Secretary issue a report to Congress “about whether the certification of certain crafts or classes of railroad carrier or railroad carrier contractor or subcontractor employees is necessary to reduce the number and rate of accidents and incidents or to improve railroad safety.” As part of that report, section 402(c) specifically requires the Secretary to consider “signal repair and maintenance employees” as one of the railroad crafts for certification. After identifying a railroad craft or class for which certification is necessary, pursuant to the report to Congress discussed above, section 402(d) authorizes the Secretary to “prescribe regulations requiring the certification of certain crafts or classes of employees that the Secretary determines . . . are necessary to reduce the number and rate of accidents and incidents or to improve railroad safety.” 4. Report to Congress On November 4, 2015, the Secretary submitted the report to Congress required under the RSIA. The report stated that, based on FRA's preliminary research, dispatchers and signal repair employees were the most viable candidates for certification, particularly with the introduction of Positive Train Control (PTC) technology. In reaching this determination with respect to signal employees, the Secretary cited a variety of factors. The report noted that signal employees perform safety-sensitive work as shown by signal employees being covered under the Hours of Service laws. Signal employees are also subject to regular and pre-employment random drug and alcohol testing. In 2012 and 2013, signal employees had a positive drug testing rate that was considerably higher than that of their train and engine service counterparts. Annual drug and alcohol testing data submitted to FRA in 2012 and 2013 showed a 0.75-percent random positive drug rate for signal employees, as compared to a 0.30-percent random positive drug rate for train and engine service employees. 8 8 Testing results submitted to FRA in 2020 and 2021 showed a 0.81-percent random violation (drug and alcohol positives and refusals) rate and a 0.79-percent pre-employment violation rate for signal employees, as compared to a 0.49-percent random positive drug testing rate and a 0.55-percent pre-employment positive drug testing rate for train and engine service employees. The report also noted that the greatest proportion of contractors covered under the Hours of Service laws are signal employees, who tend to switch employers more frequently than other crafts of employees. In addition, the report noted that frequent job-hopping by signal employees makes it even more important to track their violations and any disqualifications that may result. However, 49 CFR parts 240 and 242 require a five-year alcohol and drug background check, as well as disqualification of employees for specified alcohol and drug test violations and for refusing such testing. If such requirements are included in a signal employee certification program, they could help prevent signal employees with active substance abuse disorders from “job hopping” from one employer to another and reduce the safety risk of having individuals with untreated substance abuse disorders working as signal employees. Another important factor in the report was the nature of the work signal employees perform on wayside signal and train control systems, which are safety-critical for freight and passenger rail operations. The report noted that, in the coming decade, the rail industry will likely lose many experienced signal employees to retirement, while growth in freight, commuter, and intercity passenger rail will require that more signal employees are hired and trained. The report also summarized the challenges posed by PTC system implementation, while noting the “increasingly sophisticated work” involved in the implementation of complex PTC system technology by signal employees. 9 In particular, the report noted that “signal employees will be required to differentiate between a vital and non-vital PTC system 10 and to address the technicalities of using standalone or overlay PTC systems.” 11 This combination of factors led to the report's conclusion that signal employees are a potentially viable candidate craft for certification. 9 See 2015 DOT Report to Congress on Certification of Railroad Crafts at 3. 10 PTC systems vary widely in complexity and sophistication based on the level of automation and functionality they implement, the system architecture used, the wayside system upon which they are based ( i.e., non-signaled, block signal, cab signal, etc.), and the degree of train control they are capable of assuming. Vital systems are reliable and built upon failsafe principles, while non-vital systems are reliable but not guaranteed to provide failsafe operation. 11 See 2015 DOT Report to Congress on Certification of Railroad Crafts at 3. An overlay system relies upon and supplements an existing wayside signal system or redundant method of operation. A standalone system replaces the existing method of operation. 5. RSAC Working Group In March 1996, FRA established the Railroad Safety Advisory Committee (RSAC), which provides a forum for collaborative rulemaking and program development. RSAC includes representatives from all of the agency's major stakeholder groups, including railroads, labor organizations, suppliers and manufacturers, and other interested parties. When appropriate, FRA assigns a task to RSAC, and after consideration and debate, RSAC may accept or reject the task. If accepted, RSAC establishes a working group that possesses the appropriate expertise and representation of interests to develop recommendations to FRA for action on the task. On April 21, 2017, a task statement regarding certification of signal employees was presented to the RSAC by email but no vote was taken. On April 24, 2019, the RSAC accepted a task (No. 19-03) entitled, “Certification of Railroad Signal Employees.” 12 The purpose of the task was “[t]o consider whether rail safety would be enhanced by developing guidance, voluntary standards, and/or draft regulatory language for the certification of railroad signal installation, repair, and maintenance workers.” The task called for the RSAC Signal Employee Working Group (Working Group) to perform the following actions: 12 At the same meeting, the RSAC also accepted a task (No. 19-02) titled “Certification of Train Dispatchers.” A separate RSAC Working Group was formed to address this task and FRA plans to issue a related proposed rule that would establish certification requirements for dispatchers. —Review critical tasks performed by railroad signalmen for safe train operations, particularly with the introduction of Positive Train Control (PTC) technology; —Review training duration, content, and methodology for new hires and continuing education. —Review background checks designed to prevent railroad signalmen with active substance abuse disorders from “job-hopping” from one employer to another. The revised task statement also asked the Working Group to address the following issues, if appropriate: —What requirements for training and experience are appropriate? —What classifications of signalmen should be recognized, if any? —To what extent do existing requirements and procedures for the certification of locomotive engineers and conductors provide a model for signalmen certification? —What types of unsafe conduct should affect railroad signalmen's certification status? —Do the existing locomotive engineer and conductor certifications provide an adequate model for handling appeals from decertification decisions of the railroads? The Working Group, which included representatives from the Association of American Railroads (AAR), American Public Transportation Association (APTA), American Short Line and Regional Railroad Association (ASLRRA), Brotherhood of Railroad Signalmen (BRS), SMART Transportation, Commuter Rail Coalition, and National Railroad Construction & Maintenance Association, held its first and only meeting on September 5, 2019 in Washington, DC At this meeting, the Working Group reviewed the task statement from the RSAC, discussed some of the safety-critical tasks performed by signal employees, and debated whether certification of signal employees would be beneficial to railroad safety. At the end of the meeting, action items were assigned and the next meeting was tentatively scheduled for January 2020. However, on December 16, 2019, the presidents of the American Train Dispatchers Association, BRS, and the International Brotherhood of Electrical Workers (collectively the “Unions”) sent a letter to the FRA Administrator requesting that the RSAC task be withdrawn from consideration. The letter stated the Unions were involved in numerous activities and were not able to give the task proper attention. AAR and ASLRRA advised the unions that they were not opposed to this request. In response to this letter, FRA withdrew the task from the RSAC and the Working Group became inactive. 6. Public Outreach In 2021, FRA revisited the issue of establishing certification requirements for signal employees. The agency assembled subject matter experts from FRA, the International Brotherhood of Electrical Workers (IBEW) and the Brotherhood of Railroad Signalmen to exchange facts or information regarding the tasks performed by signal employees. Those parties met virtually several times between May 5, 2021 and June 30, 2021. As part of FRA's outreach, a list of tasks performed by signal employees was developed. These tasks generally involved: vital equipment design validation, installation, calibration, testing, maintenance, and repair (interlockings, grade crossings, wayside signal systems, PTC, etc.). FRA reviewed each task to determine whether correctly performing the task was critical to railroad safety; what were the potential consequences if errors were made while performing the task; and whether there were any recent examples of issues or concerns with respect to the task. After performing this analysis, FRA concluded that the vast majority of tasks performed by signal employees (80-90% of the listed tasks) were critical to railroad safety with potentially catastrophic consequences, such as accidents, injuries, and/or deaths, if the tasks were not performed properly. During FRA's outreach, the benefits of certification based on the experience of stakeholders with engineer and conductor certification under 49 CFR parts 240 and 242 were also discussed. Some of the main benefits of certification that were identified include: —Creating a minimum standard for training to ensure that the training encompasses all skills and proficiencies necessary to properly perform all safety-related signal employee functions; —Establishing a record of safety compliance that will follow a signal employee if they wish to become certified by another railroad and that can be used to review a signal employee's performance and potential training needs; —Requiring certain safety checks, such as identifying active substance abuse disorders, that can minimize the risks posed by job hopping; and —Establishing a system for individuals to dispute a railroad's decision to deny or revoke certification with the aim of creating a fair and consistent process for all parties. Based on these meetings, FRA concluded that requiring certification for signal employees would be an important tool to ensure signal employees performing safety-sensitive tasks are adequately trained and qualified and have a documented record of performance that is accessible to prospective employers. Following this initial outreach, FRA held a follow-up conversation with BRS and IBEW, on March 3, 2022, and individuals from the BRS and IBEW informed FRA of elements that they believe would be beneficial in a signal employee certification program. During this conversation, which was held in videoconference format, FRA asked the attendees to provide individualized feedback on how similar or different a signal employee certification rule should be to FRA's locomotive engineer and conductor certification rules found in 49 CFR parts 240 and 242. FRA heard that the agency needs to ensure that comprehensive training is provided to signal employees as the current training is inadequate. FRA also heard that railroads are not providing enough training on new equipment and new technology for signal employees. It was also noted that, in some cases, signal employees are being required to use new equipment and new technology without having received any prior training on the equipment or technology. On March 7, 2022, FRA had a conversation with the railroad industry, including Norfolk Southern Corporation (NS), ASLRRA, and AAR. During this conversation, which was conducted in a videoconference format, FRA also asked for individualized feedback on how FRA's locomotive engineer and conductor certification regulations in 49 CFR parts 240 and 242 could be improved upon with respect to signal employee certification. Specifically, FRA asked for feedback on any regulatory provisions in 49 CFR parts 240 and 242 that, in their experience, may have been difficult to implement, as well as whether FRA should explore any changes to these regulatory provisions. AAR expressed opposition to FRA's proposal to issue regulations requiring certification of signal employees arguing that there was not a safety benefit to certification. In addition, NS questioned the need for certification regulations in the absence of any identified gaps in coverage by existing railroad training programs. ASLRRA expressed concern that FRA's proposal to issue regulations requiring certification of dispatchers and signal employees would result in a big paperwork burden with little benefit. In addition, ASLRRA asserted that most shortline railroads do not have signal systems. With respect to grade crossings, ASLRRA asserted that most shortline railroads rely on contractors to maintain their grade crossing warning systems. After this conversation, FRA provided a short list of written questions to AAR and ASLRRA. While AAR did not provide additional feedback in response to FRA's list of questions, ASLRRA responded to FRA's list of written questions by email on April 13, 2022, a copy of which has been placed in the docket. 13 13 A record of public contact summarizing this meeting has been posted in the rulemaking docket at: https://www.regulations.gov/document/FRA-2022-0020-0003. On March 8, 2022, FRA staff had a follow-up conversation with BRS and IBEW to receive information on the types of errors and grade crossing and signal violations that should result in a railroad revoking a signal employee's certification. During this conversation, which was conducted in a videoconference format, FRA heard that it might be appropriate to revoke a signal employee's certification in response to willful violations. 7. Contractors FRA considered whether railroad contractors (and subcontractors) should be authorized to certify their employees. FRA did not, however, include that option in this proposed rule. Instead, consistent with FRA's engineer and conductor certification regulations, this proposed rule requires railroads to develop and submit certification programs to FRA for approval and then implement their FRA-approved certification programs. FRA is proposing to adopt this approach because railroads are ultimately held responsible for the actions (or failure to act) of their employees, contractors, and subcontractors when engaged in railroad operations. FRA acknowledges that signal employee tasks are being subcontracted out by railroads to companies that specialize in this work. However, railroads are generally most knowledgeable about the signal systems that have been deployed on their territories. Therefore, railroads are best suited to develop certification programs that are needed to ensure all signal employees responsible for installing, troubleshooting, testing, repair, or maintenance of railroad signal systems, as defined in § 246.7, have been properly trained and certified on: (a) all applicable Federal rail safety laws, regulations, and orders governing the installation, testing, repair, and maintenance of these systems; and (b) all railroad rules and procedures promulgated to implement those Federal rail safety laws, regulations, and orders. In addition, by keeping certification programs in-house, railroads can implement quality control measures to ensure that their FRA-approved certification programs are being implemented properly. Nonetheless, FRA is soliciting comment on the approach adopted in this proposed rule, which would require railroads to develop and implement FRA-approved signal employee certification programs. To ease any potential burden, especially on Class III railroads, the proposed rule would allow all railroads to choose between conducting the training or using a training program conducted by a third party, which would be adopted and ratified by the railroad. In addition, contractors that employ signal employees could help railroads comply with the requirements in this proposed rule by providing information about their signal employees' compliance with some of the proposed regulatory requirements. For example, contractors could provide information about their signal employees' compliance with the vision and hearing acuity requirements in the proposed rule. Under this proposed rule, however, railroads would ultimately be responsible for ensuring that certified signal employees are installing, testing, maintaining, and repairing their signal systems. 8. Interaction With Other FRA Regulations While developing this proposed rule, FRA has been mindful of other regulations that may touch upon topics covered in this proposed rule, including FRA's training, qualification, and oversight regulations in 49 CFR part 243 (part 243); railroad safety risk reduction programs (SSP/RRP) in 49 CFR parts 270 and 271 (parts 270 and 271); and fatigue risk management programs (FRMP) in parts 270 and 271. However, FRA finds that this proposed rule would complement, rather than duplicate, those regulations. Signal employees are currently included in part 243's requirements for training, qualification, and oversight for safety-related railroad employees. However, part 243 does not require railroads to have formal processes in place for promptly removing signal employees from service if they violate one or more basic regulatory standards that could have a significant negative impact on the safety of rail operations. FRA's proposed signal employee certification requirements have been drafted to help address this void, as well as prevent signal employees who have been fired for committing one or more of the revocable events discussed in the proposed rule from “job hopping” and quickly resuming safety-sensitive service at a different railroad that is unaware of the signal employee's prior violation(s) of FRA's rail safety regulations. As codified in parts 270 and 271, FRA requires Class I railroads, railroads with inadequate safety performance, and passenger rail operations to implement railroad safety risk reduction programs. A railroad safety risk reduction program is a comprehensive, system-oriented approach to safety that determines an operation's level of risk by identifying and analyzing identified hazards and developing strategies to mitigate risks associated with those hazards. In this background, FRA is using the term “railroad safety risk reduction programs” to include both a “system safety program” (SSP) that is required for certain passenger rail operations 14 and a “risk reduction program” (RRP) that is required for a limited number of other rail operations. 15 Although a railroad safety risk reduction program might address a railroad's safety hazards and risks associated with its signal employees, the framework established by these programs neither directly addresses the risks associated with signal systems nor establishes an industry-wide approach. 14 49 CFR 270.3 (requiring the application of the system safety program rule to certain passenger rail operations). 15 49 CFR 271.3 (requiring the application of the risk reduction program rule to certain rail operations). First, not every railroad is required to have a railroad safety risk reduction program. Indeed, FRA estimates that fewer than 100 railroads (out of approximately 750 railroads under FRA's jurisdiction) will be required to develop a railroad safety risk reduction program over the next 10 years. Second, even if a railroad is required to have a railroad safety risk reduction program through which it identifies the risks associated with installing, testing, maintaining, and repairing signal systems, the railroad may decide not to implement mitigations to eliminate or reduce those specific risks. Parts 270 and 271 permit railroads to prioritize risks. 16 Whether a railroad is required to have a program that mitigates risks associated with signal systems will depend on how the railroad prioritizes risks for mitigation and how effectively that mitigation would promote continuous safety improvement compared to mitigation of other identified hazards and risks. Thus, even if signal systems are identified as a risk, a railroad may not implement mitigations to eliminate or reduce that risk. 16 See e.g., 49 CFR 270.5 (definition of “risk-based hazard management”) and 271.103(b)(3). Accordingly, this proposed rule may complement the SSP/RRP requirements but does not duplicate those requirements. Without this proposed rule, railroads may not be required to implement mitigations to address identified safety risks associated with signal systems across the entire industry. With respect to FRMPs, 17 an FRMP is a comprehensive, system-oriented approach to safety in which a railroad determines its fatigue risk by identifying and analyzing applicable hazards and developing plans to mitigate, if not eliminate, those risks. Like the SSP/RRP rules, the FRMP rule is part of FRA's continual efforts to improve rail safety and satisfies the statutory mandate of Section 103 of the RSIA. 18 17 On June 13, 2022, FRA published a final rule adding a FRMP to the railroad safety risk reduction program requirements in parts 270 and 271. 85 FR 83484. 18 Codified at 49 U.S.C. 20156. Like the SSP/RRP requirements, there is no guarantee that any railroad covered by the regulation will use an FRMP to address signal issues. As with the SSP/RRP rules, a covered railroad must identify fatigue hazards, assess the risks associated with those fatigue hazards, and prioritize those risks for mitigation purposes. It is possible that other fatigue risks, not associated with signal systems, might rank higher, in which case the risk associated with signal systems might not be promptly mitigated. Further, because the FRMP requirements would apply only to those railroads required to comply with the SSP/RRP requirements, an FRMP would not be required of every railroad. Thus, like the SSP/RRP rules, this proposed rule is complementary to the FRMP final rule and is not duplicative. IV. Section-by-Section Analysis Subpart A—General Subpart A of the proposed rule contains general provisions, including a formal statement of the proposed rule's purpose and scope. The subpart also provides that this proposed rule does not constrain the ability of a railroad to prescribe additional or more stringent requirements for its signal employees that are not inconsistent with this proposed rule. Section 246.1 Purpose and Scope This proposed section, derived from 49 CFR 240.1 and 242.1, indicates that the purpose of the proposed rule is to ensure that only those persons who meet minimum Federal safety standards serve as certified signal employees, to reduce the rate and number of accidents and incidents, and to improve railroad safety. Even though a person may have a job title other than signal employee, the requirements of this proposed rule would apply to that person if they meet the definition of “signal employee” without regard to the class or craft of the employee or the manner in which the employee is compensated, if at all. The definition of “signal employee,” and an explanation of who is covered by the definition, are discussed in more detail in the section-by-section analysis for § 246.7, below. Section 246.3 Application and Responsibility for Compliance The extent of FRA's jurisdiction, and the agency's exercise of that jurisdiction, is well-established. See 49 CFR part 209, app. A. This proposed application and responsibility for compliance section is consistent with FRA's Statement of Agency Policy Concerning Enforcement of the Federal Railroad Safety Laws in appendix A to 49 CFR part 209 (Policy Statement). This proposed section, derived from 49 CFR 240.3 and 242.3, provides that the proposed rule would apply to all railroads with four exceptions. Paragraph (a)(1) of this section notes that this proposed rule would not apply to railroads that do not have a signal system, as defined in § 246.7. In paragraph (a)(2), FRA proposes to exempt operations that occur within the confines of industrial installations commonly referred to as “plant railroads” and typified by operations such as those in steel mills that do not go beyond the plant's boundaries and that do not involve the switching of rail cars for entities other than themselves. Further explanation of what is meant by the term “plant railroad” is provided in the section-by-section analysis for § 246.7. In paragraph (a)(3), FRA is also proposing to exclude “tourist, scenic, historic, and excursion operations conducted only on track used exclusively for that purpose . . . and only on track inside an installation that is insular.” In other words, FRA is proposing to exclude tourist, scenic, historic, or excursion operations conducted only on track where there is no freight, intercity passenger, or commuter passenger railroad operations on the track. In addition, FRA is proposing to consider insularity when determining whether the requirements of this proposed rule apply to a tourist, scenic, historic, or excursion operation. As explained in the Policy Statement, FRA considers a railroad to be “insular” if its operations are limited to a separate enclave in such a way that there is no reasonable expectation that the safety of any member of the public (except a business guest, a licensee of the tourist operation or an affiliated entity, or a trespasser) would be affected by the operation. A railroad is not considered insular if one or more of the following exists on its line: (a) A public highway-rail grade crossing that is in use; (b) an at-grade rail crossing that is in use; (c) a bridge over a public road or waters used for commercial navigation; or (d) a common corridor with a railroad ( i.e., its operations are within 30 feet of those of any railroad). In addition, when determining insularity for purposes of this proposed rule, FRA would consider whether a public pathway grade crossing is located on the railroad line. FRA is proposing to add this criterion to the determination of insularity for purposes of this proposed rule, in recognition of the potential safety risks associated with the use of public pathway grade crossings by members of the general public. FRA believes that applying the proposed regulatory requirements in this part to signal employees who work on non-insular passenger rail operations off the general system is warranted by the potential risk to passengers associated with accidents involving heavy motor vehicles. FRA acknowledges that a passenger railroad off the general system may be considered non-insular, yet have only private grade crossings on its line of railroad. Due to the non-insular status of the railroad, signal employees who install, maintain, test, or repair train-activated warning devices at those private grade crossings or who install, maintain, test, or repair signal systems on its line would be subject to this rule. The final proposed exclusion in § 246.3(a)(4) covers rapid transit operations in an urban area that are not connected to the general railroad system of transportation. It should, however, be noted that FRA exercises jurisdiction over some rapid transit type operations, given their links to the general railroad system of transportation, such as rapid transit operations conducted on track used for freight, intercity passenger, or commuter passenger railroad operations, during a block of time during which a general system railroad is not operating (temporal separation). Thus, this proposed rule would apply to persons who perform work on signal systems for those rapid transit type operations. Paragraph (b) is intended to clarify that any person, as defined in § 246.7 (including a railroad employee or employee of a railroad contractor) who performs a function required by this part will be held responsible for compliance. Section 246.5 Effect and Construction This proposed section is derived from 49 CFR 240.5 and 242.5. Paragraph (a) addresses the relationship of this proposed rule to preexisting legal relationships. Paragraph (b) states that FRA does not intend to alter the authority of a railroad to initiate disciplinary sanctions against its employees by issuance of this proposed rule. Paragraph (c) of this section is intended to note that, as a general matter, FRA does not intend to create or prohibit the right to “flowback” or take a position on whether “flowback” is desirable. The term “flowback” has been used in the industry to describe a situation where an employee leaves their current position to return to a previously held position or craft. The reasons for reverting back to the previous craft may derive from personal choice or a less voluntary nature (such as downsizing). Many collective bargaining agreements address the issue of flowback. However, paragraph (c) must be read in conjunction with § 246.213, which would limit flowback in certain situations ( i.e., when a certificate is revoked due to an alcohol or drug violation). Paragraph (d) of this proposed section addresses employee rights. The proposed rule would explicitly preserve any remedy already available to the person and would not create any new entitlements. Section 246.7 Definitions This section defines a number of terms that have specific meaning in this proposed part. Some of these terms have definitions that are similar to, but may not exactly mirror, definitions used elsewhere in this chapter. Contractor, as defined in this proposed part, would include prime contractors, as well as subcontractors. This definition, which mirrors the definition of “contractor” in 49 CFR part 243, has been included in this section to help explain FRA's intent that the requirements of this part which apply to railroad contractors are also intended to apply to railroad subcontractors as well. Disable, as defined in this proposed part, would mean to render a device [or system] incapable of proper and effective action or to materially impair the functioning of that device. In the interest of consistency, this proposed definition is very similar to the definition of “disable” provided in § 218.53 of FRA's railroad operating practices regulations. However, for purposes of this proposed part, the term “disable” would include situations in which a device or system is lawfully rendered incapable of proper and effective action. Consistent with parts 240 and 242, FRA proposes to define “drug” as any substance (other than alcohol) that has known mind- or function-altering effects on an individual, specifically including any psychoactive substance and including, but not limited to, controlled substances. This term is intended to refer to substances that have a significant potential for abuse and/or dependence. Normal ingestion of caffeine in beverages and use of nicotine from tobacco products, even though involving some degree of habituation or dependence, are not intended to be included within the definition. In this proposed part, the terms “ineligible” and “ineligibility” would be catch-all terms that not only encompass revocation and denial of certification, but also cover other situations in which a signal employee would be legally disqualified from serving as a signal employee. For example, a certified signal employee may voluntarily refer him or herself for substance abuse counseling or treatment under 242.115(c). If the signal employee then refuses to complete a course of action recommended under the provisions of 49 CFR 219.1003, that would not be an operating rule or procedure, or type of alcohol or drug violation that would require revocation (nor would it require denial of certification). Rather the signal employee would simply remain “ineligible” until a railroad determined that the person no longer had a substance abuse disorder, or the person re-entered a substance abuse program and it had been determined under the provisions of 49 CFR 219.1003 that the person could safely return to duty under certain conditions. In this proposed part, mentor would be defined as a certified signal employee who has at least one year of experience as a certified signal employee. FRA is proposing to define the term, “mentor,” to help clarify that a mentor provides direct supervision and oversight over the work of one or more signal employees. In this proposed part, person would take on the same meaning as it does in FRA's other safety rules. The proposed definition is intended to clarify that this term does not apply merely to individual persons. Instead, the term would mean “an entity of any type covered under 1 U.S.C. 1” and the proposed definition goes into detail regarding the types of people and entities that are covered. FRA proposes a definition of plant railroad to aid in the understanding of the application of this part pursuant to section 246.3(a)(1). The definition coincides with FRA's longstanding explanation of how the agency will not exercise jurisdiction over a plant railroad that does not operate on the general system of transportation and does not move cars for other entities. See 49 CFR part 209, app. A. Although the RSIA required FRA to issue a report to Congress on whether the certification of certain crafts or classes of railroad carrier or railroad carrier contractor or subcontractor employees, including “signal repair and maintenance employees,” is necessary to reduce the number and rate of accidents and incidents or to improve railroad safety, the RSIA did not define the term, “signal repair and maintenance employees.” In the absence of such a definition in the RSIA, FRA proposes to use the streamlined term, “signal employee.” FRA also proposes to define this streamlined term, “signal employee,” as a person who is engaged in installing, troubleshooting, testing, repair, or maintenance of railroad signal systems, highway-rail and pathway grade crossing warning systems, unusual contingency detection devices, power-assisted switches, broken rail detection systems, and switch-point indicators, as well as other safety-related devices, appliances, and systems installed on the railroad in signaled or non-signaled territory. This proposed definition is generally consistent with the definition of “signal employee” in the hours of service law but includes the terms “troubleshooting” and “testing” which are not found in the statutory definition. 19 19 49 U.S.C. 21101(4). The hours of service law defines “signal employee” as “an individual who is engaged in installing, repairing, or maintaining signal systems.” 49 U.S.C. 21101(4). While FRA believes “troubleshooting” and “testing” would fall under the terms “installing, repairing, or maintaining” in the hours of service law definition, FRA wanted to make explicit in this rule that “troubleshooting” and “testing” are included in the definition of “signal employee.” The addition of “troubleshooting” and “testing” in the proposed definition in this rule is not intended to capture a broader group of employees than provided in the hours of service law. Consistent with parts 240 and 242, the term “substance abuse disorder” is defined as a psychological or physical dependence on alcohol or a drug or another identifiable and treatable mental or physical disorder involving the abuse of alcohol or drugs as a primary manifestation. This proposed definition would include drug and alcohol users who engage in abuse patterns which result in ongoing safety risks and violations. A substance abuse disorder is “active” within the meaning of this proposed rule if the person (1) is currently using alcohol or other drugs, except under medical supervision consistent with the restrictions described in § 219.103 of this chapter or (2) has failed to successfully complete primary treatment or successfully participate in aftercare as directed by a Substance Abuse Professional (SAP) or Drug and Alcohol Counselor (DAC). Section 246.9 Waivers This proposed section, derived from 49 CFR 240.9 and 242.9, provides the proposed requirements for a person seeking a waiver of any section of this proposed rule. Section 246.11 Penalties and Consequences for Noncompliance This proposed section, derived from 49 CFR 240.11 and 242.11, explains that FRA may impose civil penalties on any person, including a railroad or a contractor providing goods or services to a railroad, that violates any requirement of this proposed rule. Any person who violates a requirement of this proposed rule may be subject to civil penalties between the minimum and maximum amounts authorized by statute and adjusted for inflation per violation. Individuals may be subject to penalties for willful violations only. Where a pattern of repeated violations, or a grossly negligent violation creates an imminent hazard of death or injury, or causes death or injury, an aggravated maximum penalty may be assessed. 20 Finally, a person may be subject to criminal penalties under 49 U.S.C. 21311 for knowingly and willfully falsifying reports required by these proposed regulations. 20 Please visit FRA's website for the current aggravated maximum penalty amount at https://railroads.dot.gov/. Consistent with FRA's final rule regarding the removal of civil penalty schedules from the CFR (84 FR 23730 (May 23, 2019)), FRA will not publish a civil penalty schedule for this rule in the CFR, but plans to publish a civil penalty schedule on its website. Penalty schedules are statements of agency policy, thus notice and comment are not required prior to their issuance, nor are they required to be published in the CFR. See 5 U.S.C. 553(b)(3)(A). Nevertheless, commenters are invited to suggest the types of actions or omissions under each regulatory section that would subject a person to the assessment of a civil penalty. Commenters are also invited to recommend what penalty amounts may be appropriate, based upon the relative seriousness of each type of violation. Subpart B—Program and Eligibility Requirements Section 246.101 Certification Program Required This proposed section, derived from 49 CFR 240.101 and 242.101, would require railroads to have written certification programs comprised of multiple elements, each of which comports with specific regulatory provisions in the proposed rule related to that element. In addition to these required elements, paragraph (b)(1) would require railroads who elect to classify their certified signal employees into multiple occupational categories (and, in some cases, subcategories) to explain and discuss each category or subcategory of certified signal employees. Paragraph (c) would require railroads to maintain version control for their certification programs. Therefore, railroads would be required to maintain an up-to-date, detailed list or index tracking every change made to their certification programs. FRA would encourage railroads to maintain a redlined version of their certification programs to reflect changes that have been made over the years in context. Section 246.103 FRA Review of Certification Programs This proposed section, derived from 49 CFR 240.103 and 242.103, describes the process for the submission and review of signal employee certification programs. Paragraph (a) of this section applies to railroads that have a signal system, as defined in § 246.7, in operation prior to the effective date of the final rule and provides the deadlines for when these railroads would be required to submit their certification programs to FRA. (Paragraph (a) would not, however, apply to railroads that are exempted by § 246.3(a)). The submission schedule in paragraph (a) would require Class I railroads and commuter service railroads to submit their programs earlier than Class II railroads, Class III railroads, and railroads not otherwise classified. The separate deadlines would help space out the initial influx of programs FRA will receive after the final rule goes into effect, to allow FRA to issue approval and disapproval decisions in a more timely manner. FRA also presumes that, in general, Class I railroads and commuter service railroads will have more resources to devote to creating these programs and will be better positioned to create and draft them more quickly. Paragraph (b) of this section would only apply to railroads that commence operations after the effective date of the final rule. Prior to installing, implementing, or operating any signal system as defined in § 246.7, these railroads would be required to submit their signal employee certification program to FRA and obtain FRA approval. Paragraph (c) of this section provides that railroads would submit their programs and their requests for approval (which are described in greater detail in § 246.106(a)) by uploading them to FRA's secure document submission site. This will allow for more efficient processing and will significantly reduce the risk of a program submission getting lost. FRA will need basic information from each railroad before setting up the user's account. In order to provide secure access, information regarding the points of contact will be required. It is anticipated that FRA will be able to approve or disapprove all or part of a program and generate automated notifications by email to a railroad's points of contact. FRA does not intend to develop a secure document submission site that would allow confidential materials to be identified and not shared with the general public. This is because FRA does not expect the information in a program to be confidential or proprietary, particularly since each railroad would be required to share the program submission, resubmission, or material modification with the president of each labor organization that represents the railroad's certified signal employees and the program will be available on FRA's website. See § 246.103(d) and (j). Accordingly, FRA does not at this time believe it is necessary to develop a document submission system to address confidential materials. When a railroad submits its certification program to FRA, paragraph (d) of this section would require the railroad to also submit a copy of the program and the request for approval to the president of each labor organization that represents the railroad's signal employees and to all of the railroad's signal employees who would be subject to this part. The railroad's submission to FRA must include a statement affirming that it has provided a copy of the program and the request for approval to the president of each labor organization that represents its signal employees and to all of the railroad's signal employees who would be subject to this part. In addition, the railroad would be required to include a list of the names and email addresses of each labor organization president who received a copy of the program. Paragraph (e) of this section explains who would be allowed to comment on these programs. For signal employees who are members of a labor union, any comments must be submitted by a designated representative. Signal employees who are not members of a labor union would, however, be permitted to personally submit comments on their railroad's certification program. FRA anticipates that comments submitted through this process will assist the agency in determining whether a program conforms to the requirements set forth in this rule, and thus, FRA will not make a decision on a program until after the 45-day comment period in paragraph (e)(1) has passed. Paragraph (f) of this section states FRA's aspirational goal to decide on whether to approve a program within 90 days of the date that the program is submitted. However, this would only be a goal and not a deadline for the agency. Paragraph (f)(3) explains that if FRA is unable to issue a decision on the program within 90 days, the program will not be considered approved on the 91st day. A certification program will not be approved until FRA issues a letter notifying the railroad that its program has been approved. While FRA will make every effort to issue approval and disapproval letters within 90 days, FRA recognizes that this will not always be possible. It may be especially difficult for FRA to meet this goal during the initial implementation of the final rule issued in this rulemaking when FRA expects to receive many certification programs within a relatively short period of time. Paragraph (g) of this section addresses the process for railroads who wish to materially modify their previously approved programs. If a railroad wishes to materially modify its certification program, it must submit two documents to FRA: (1) a description of how it intends to modify its current program (this constitutes the request for approval required under § 246.106(a)); and (2) a copy of the modified program. Paragraph (g)(1) defines a “material modification” as a modification that “would affect the program's conformance with this part.” This definition is taken from 49 CFR 240.103(h)(1) and 242.103(i)(1) and is intentionally broad to cover many different types of program modifications. FRA recognizes that there may be some desire among some interested parties to have a more specific definition of “material modification” in the regulation. Thus, FRA welcomes any comments on suggested changes to the proposed definition of “material modification.” Paragraph (g)(3) explains that the process for submission and review of material modifications mirrors the process for submission and review of initial certification programs. Railroads would be required to submit their material modifications to FRA in conformance with paragraph (c) of this section and would be required to send a copy of the material modification description and the modified program to all required parties referenced in paragraph (d) of this section. Certain interested parties would be allowed to comment on the modification in conformance with paragraph (e) of this section, and FRA would issue a letter either approving or disapproving the material modification in conformance with paragraph (f) of this section. If FRA approves the material modification, the railroad could begin implementing the modification and the modified program would replace the original program. If FRA disapproves the material modification, the railroad would not be allowed to implement the modification and the original program must remain in effect. If a railroad's material modification submission contains multiple modifications, FRA reserves the right to approve some modifications while disapproving other modifications. In such an instance, the railroad could only begin implementing those modifications that FRA has approved. Paragraph (h) of this section describes the process to resubmit a program or material modification that was previously disapproved by FRA. Paragraph (h)(2) notes that the process for submission and review of resubmitted programs and material modifications mirrors the process for submission and review of initial certification programs. Railroads would resubmit their initial programs or material modifications to FRA in conformance with paragraph (c) of this section and would send a copy of the resubmitted program or material modification to all required parties referenced in paragraph (d) of this section. Certain interested parties would be allowed to comment on the resubmitted program or material modification in conformance with paragraph (e) of this section and FRA would issue a letter either approving or disapproving the resubmitted program or material modification in conformance with paragraph (f) of this section. Railroads would, however, remain responsible for maintaining their signal systems, as defined in § 246.7, in compliance with Federal regulations even if rail operations cease or have not yet been initiated. Paragraph (h)(3) provides the deadlines, if any, for when a railroad must resubmit its certification program or material modification to FRA. For railroads that have installed or implemented a signal system, as defined in § 246.7, prior to the effective date of the final rule (legacy railroads), if their initial certification program is disapproved by FRA, the railroad would be required to resubmit its program within 30 days of the date FRA notified the railroad that its program was deficient. If a legacy railroad fails to resubmit its program within 30 days and continues operations, FRA may use its enforcement discretion to determine whether enforcement action against the railroad is warranted. FRA believes a 30-day deadline is needed for legacy railroads because § 246.105(a) allows legacy railroads to continue operations while they await FRA approval of their programs. Thus, without a deadline, legacy railroads could purposely delay coming into compliance with the final rule issued in this rulemaking by taking months or even years to resubmit their programs. In contrast, railroads that begin operations after the effective date of the final rule cannot begin operations until FRA approves their program. Likewise, no railroad (legacy or non-legacy) can implement a material modification to its program until FRA has approved the modification. In these scenarios, a deadline is unnecessary because the railroad has every incentive to resubmit its programs or material modifications in a timely manner. However, while there is no FRA-imposed deadline in these scenarios, FRA still recommends that railroads provide their resubmissions within 30 days of being notified of deficiencies. Paragraph (i) of this section acknowledges that FRA reserves the right to revisit its prior approval of a certification program. In certain circumstances, including an audit of a certification program, FRA may discover that it made an error when it previously approved a program. This paragraph allows FRA to rescind a wrongful prior approval while also providing the railroads with certain rights. Paragraph (i)(3) notes that the process for submission and review of programs whose prior approval has been rescinded mirrors the process for submission and review of initial certification programs and resubmission of initially disapproved programs. Railroads would resubmit their programs to FRA in conformance with paragraph (c) of this section and they would send a copy of the resubmitted program to all required parties referenced in paragraph (d) of this section. Certain interested parties would be allowed to comment on the resubmitted program in conformance with paragraph (e) of this section, and FRA would issue a letter either approving or disapproving the resubmitted program in conformance with paragraph (f) of this section. Paragraphs (i)(6) and (i)(7) allow for a grace period where a rescinded program may remain in effect for a certain period of time. However, once FRA approves a resubmitted program, the resubmitted program must replace the rescinded program. In addition, a rescinded program can no longer remain in effect if FRA has twice disapproved the railroad's resubmitted program. This latter scenario is best explained through an example: On February 10th, FRA notifies ABC Railroad (ABC) that FRA is rescinding its prior approval of the railroad's signal employee certification program. On March 10th, ABC resubmits its program to FRA. On June 10th, FRA disapproves ABC's resubmitted program. On July 10th, ABC sends FRA its second resubmitted program. On October 10th, FRA issues a letter once again disapproving ABC's program. In this example, ABC's rescinded program could remain in effect between February 10th and October 10th. However, after October 10th, the rescinded program could no longer be in effect. If ABC continued to operate its signal system after October 10th, when it did not have an FRA-approved certification program, FRA could find that the railroad failed to implement a program. In such cases, FRA would determine the appropriate enforcement approach to achieve compliance, including civil penalties and/or an emergency order. In exercising its enforcement discretion, FRA may consider such factors as the number and extent of the remaining deficiencies in the program and whether the railroad made good faith efforts to address the deficiencies in its resubmissions. Finally, paragraph (j) of this section notes that the following documents would be made available on FRA's website ( railroads.dot.gov ): (1) certification programs and material modifications submitted by the railroads; (2) any comments to the submissions from the railroads; and (3) the letters from FRA approving or disapproving a program or a material modification. While parts 240 and 242 do not currently require the posting of these documents on FRA's website, the current practice with respect to locomotive engineer and conductor certification programs has been for FRA to post comments on a railroad's submission, as well as FRA approval and disapproval letters, on its website. Paragraph (j) of this section in this proposed rule is intended to make the proposed review and approval process for railroad signal employee certification programs as transparent as possible. Section 246.105 Implementation Schedule for Certification Programs This section, derived from 49 CFR 240.201 and 242.105, contains the timetable for implementing this proposed rule. Paragraph (a) of this section acknowledges railroads that have installed or implemented a signal system, as defined in § 246.7, prior to the effective date of the final rule may continue their rail operations while they await FRA's approval of their certification programs. However, if FRA disapproves a legacy railroad's certification program twice (the initial submission and the first resubmission), the railroad will no longer be in compliance with the rule if it continues to operate its signal system without an FRA-approved program. In such a scenario, FRA could find that the railroad has failed to implement a program and would determine the appropriate enforcement approach to achieve compliance, including civil penalties and/or an emergency order. In exercising this enforcement discretion, FRA may consider such factors as the number and extent of the remaining deficiencies in the program and whether the railroad made good faith efforts to comply with the requirements of the rule through its submitted program. Paragraph (b) provides that any non-legacy railroad (a railroad that did not have any signal system, as defined in § 246.7, installed or implemented prior to the effective date of the final rule) may not install or implement a signal system until FRA has approved its signal employee certification program. Paragraph (c) of this section would require railroads to designate as certified signal employees, in writing, all persons authorized by the railroad to perform the duties of each category or subcategory of certified signal employee identified by the railroad pursuant to § 246.107 as of the effective date of the final rule. Similarly, paragraph (d) of this section would require railroads to designate as certified signal employees, in writing, all such persons authorized by the railroad to perform the duties of certified signal employees pursuant to § 246.107 between the effective date of the final rule and the date FRA approves the railroad's certification program. Railroads would also be required to issue a certificate to each person they designate. This designation system is modeled after the system used when parts 240 and 242 first went into effect. This system allows “legacy signal employees” to obtain certificates so that when their railroad's program is approved, they will be considered “previously certified signal employees” when the time comes for them to be recertified through the railroad's signal employee certification program. Therefore, the recertifying railroad will not have to provide legacy certified signal employees with the kind of basic training that would be given to individuals with little to no signal experience. In other words, a person with 20 years of experience as a signal employee most likely does not need to take a “Signal 101” course that provides a basic overview of signal systems and related technology. Instead, this person would be better served by undergoing continuing education training as described in §§ 246.107(b)(2) and 246.119(j). Paragraph (e) of this section states that after the final rule has been in effect for eight months, no person would be permitted to serve as a certified signal employee unless that person has been certified. Paragraph (f) of this section requires each railroad to make formal determinations concerning those individuals it has designated as certified signal employees within three years after FRA's approval of the railroad's certification program. Pursuant to this paragraph, a designated signal employee may serve as a certified signal employee for up to three years from the date of FRA's approval of the program. At the end of three years, however, the designated signal employee can no longer serve as a certified signal employee unless they successfully complete the tests and evaluations provided in subpart B of this rule ( i.e., the full certification process). Thus, individuals who are designated as certified signal employees under paragraphs (c) and (d) of this section could be certified for more than three years before they have to complete the railroad's full certification process. For example, if a person is designated as a certified signal employee on September 1, 2024, and FRA approves the railroad's certification program on September 1, 2025, the signal employee would not have to go through the full certification process and get recertified until September 1, 2028 (four years from the date the individual was designated by the railroad as a certified signal employee). Railroads should note that they may not test and evaluate a designated signal employee or signal employee certification candidate under subpart B of this rule until they have a certification program approved by FRA pursuant to § 246.103. In order to test and evaluate all of its designated signal employees by the end of the three-year period, a large railroad would likely have to begin that process well in advance of the end of the three-year period. For example, paragraph (f), which is derived from the designation provisions in parts 240 and 242, would permit a railroad to test and evaluate one-third of its designated signal employees within one year of the approval date of the railroad's certification program; another one-third within two years of the program's approval date; and the final one-third within three years of the program's approval date. To address the issue of designated signal employees who would be eligible to retire within three years of the date FRA approves their railroad's certification program, FRA is proposing paragraphs (f)(1) through (3) in this section since it would not be an efficient use of railroad resources to conduct the full certification process for a designated signal employee who is going to retire before the end of their designation period. Paragraph (f)(1) provides that a designated signal employee, who is eligible to receive a retirement pension in accordance with the terms of an applicable agreement or with the terms of the Railroad Retirement Act (45 U.S.C. 231) within three years from the date FRA approves the railroad's certification program, may request in writing that the railroad not perform the full certification progress on that designated signal employee until three years from the date FRA approves the railroad's program. Paragraph (f)(2) would allow the railroad to honor the designated signal employee's request. Thus, paragraphs (f)(1) and (2) allow designated signal employees to serve as signal employees for the full designation period and then retire before being subjected to the full certification process. While it is in the railroads' interest not to perform the full certification process for a person who is going to retire once the designation period expires, and thus, in their interest to grant as many requests as possible, it may not be feasible to accommodate every request that is made. If, for example, a significant number of designated signal employees properly request that the railroad wait to recertify them at the end of the designation period, but then do not retire by the end of the designation period, the railroad might not be able to recertify everyone in time and would risk violating this rule. In recognition of that risk and the need to give railroads some flexibility to comply with the rule, paragraph (f)(2) also provides that a railroad granting any request to delay performance of the full certification process must grant the request of all eligible persons “to every extent possible.” In addition, paragraph (f)(3) provides that a designated signal employee who is also subject to recertification under part 240 or 242 may not make a request under paragraph (f)(1) of this section. This provision recognizes that railroads would likely want to have concurrent certification processes for certifying a person who will be both a certified signal employee and a certified locomotive engineer or conductor. Thus, it would not be appropriate, in that instance, for a designated signal employee who is already subject to recertification under part 240 or 242 to make a request to delay the full signal employee certification process. Paragraph (g) of this section provides that after FRA approves a railroad's certification program, the railroad cannot certify or recertify a person as a signal employee unless that person has been tested and evaluated in accordance with the procedures provided in subpart B of this rule. In other words, after FRA approves a railroad's program, that railroad can no longer designate persons as certified signal employees under paragraph (c) or (d) of this section. Section 246.106 Requirements for Certification Programs This proposed section, derived from Appendix B to part 240 and Appendix B to part 242, provides both the proposed organizational requirements and a narrative description of the submission required under §§ 246.101 and 246.103. FRA is not proposing to require railroad submissions to be made on a specific form. Instead, FRA proposes to prescribe only minimal constraints on the organization and manner of presenting information. Paragraph (a) of this section addresses what must be included in a railroad's submission to FRA. Specifically, the railroad must include two documents in its submission: (1) a request for approval; and (2) the certification program. If a railroad is submitting its initial certification program, the request for approval can be a brief document that simply states the railroad is submitting its initial signal employee certification program to FRA for approval. However, if a railroad is making a material modification or modifications to a signal employee certification program that has previously been approved by FRA, the request for approval must describe how the railroad intends to modify its program. In addition, the railroad must provide a copy of the modified certification program that identifies all of the proposed changes from the last FRA-approved version of the program, as required by section 246.103(g). Paragraph (b) of this section would require that signal employee certification programs be divided into six sections, each dealing with a different subject matter, and that the railroad identify the appropriate person to be contacted in the event FRA needs to discuss some aspect of the railroad's program. Paragraph (b)(1) would require railroads to include basic contact information in Section One of their certification programs and to address whether the railroad elects to accept responsibility for training persons not previously certified as signal employees. However, for railroads that elect to classify their certified signal employees into more than one occupational category or subcategory by class, task, location, or other suitable terminology, paragraph (b)(1) would require the railroad to provide detailed information about each occupational category (and subcategory, if applicable) of certified signal service in Section One of its certification program. Paragraph (b)(2) would require railroads to address in Section Two of their certification programs how they will provide continuing education for certified signal employees. A matter of particular concern to FRA is how each railroad will ensure that certified signal employees receive sufficient training on new signal systems and related technology that are deployed on the railroad's territory. While a railroad would have the latitude to select the specific subject matters to be covered, the duration of continuing education sessions, the methods of presenting the information, and the frequency with which continuing education will be provided, the railroad must describe in this section how it will use that latitude to ensure that its certified signal employees receive up-to-date and comprehensive training on new signal systems and related technology so as to comply with the training standards set forth in § 246.119(j). However, time and circumstances can diminish both abstract knowledge and the proper application of that knowledge to discrete events. Time and circumstances can also alter the value of previously obtained knowledge and the application of that knowledge. Therefore, certified signal employees also need to have their fundamental knowledge of applicable Federal laws and regulations, as well as railroad signal system safety rules and practices, refreshed periodically. Therefore, the railroad must also describe in Section Two how it will ensure that its certified signal employees remain knowledgeable concerning the safe discharge of their responsibilities, in accordance with the standard set forth in § 246.119(j). Section Three of the certification program must address requirements for the testing and evaluation of previously certified signal employees. Paragraph (b)(3)(i) would require railroads to address how their certification programs will comply with the standards found in § 246.121. Section 246.121 would require railroads, when seeking a demonstration of the signal employee's knowledge, to employ a written or electronic test containing objective questions that address the following subject matters: (i) compliance with all applicable Federal railroad safety laws, regulations, and orders governing signal systems and related technology; (ii) compliance with all applicable railroad safety and operating rules; and (iii) compliance with all applicable railroad standards, procedures, and instructions for the installation, operation, testing, maintenance, troubleshooting, and repair of the railroad's signal systems and related technology. In addition, the test must also include a practical demonstration component. Paragraph (b)(3)(ii) would also require railroads, in their certification programs, to explain their procedures for testing vision and hearing acuity and for ensuring that their medical examiners have sufficient knowledge to make determinations on whether candidates for signal employee certification or recertification can safely work as certified signal employees. Section Four of the certification program would address the requirements for training, testing, and evaluating persons not previously certified as signal employees. Railroads that elect, in Section One of the certification programs, to not take responsibility for training persons not previously certified as signal employees can skip this section. Paragraph (b)(4) would require railroads that elect to provide training to persons who have not been previously certified as signal employees to provide details in Section Four for how they will train, test, and evaluate these individuals to ensure they acquire and demonstrate sufficient knowledge and skills to safely perform the job of a certified signal employee. Paragraph (b)(4)(i) would also require railroads to discuss in Section Four its procedures for mentoring candidates for signal employee certification, in accordance with § 246.124. Paragraph (b)(4)(ii) would require railroads to include the same level of detail in Section Four of their certification programs as that provided in Sections Two and Three of their programs. Therefore, railroads would be required to address both the training requirements found in § 246.119 and the knowledge testing requirements in § 246.121. If a railroad intends to rely on another entity to provide training to persons not previously certified as signal employees, paragraph (b)(4)(iii) would require the railroad to explain in Section Four how the railroad will ensure that the training provided by another entity adheres to the railroad's certification program. Specifically, the railroad would be required to explain how persons not previously certified as signal employees will be given the required training on the railroad's signal systems and related technology. Paragraph (b)(5) would require railroads to discuss in Section Five of their certification programs how the railroad will monitor the operational performance of its certified signal employees in accordance with § 246.123. In particular, the railroad must discuss the processes and procedures it will use for ensuring that such monitoring and testing is performed. This includes a description of the scoring system the railroad will employ during monitoring observations and unannounced tests. Finally, paragraph (b)(6) would require railroads to address in Section Six of their certification programs how the railroad will perform routine administration of the program. This section must include summaries of how the program will comply with the various provisions listed in paragraph (b)(6) that contain procedural requirements for railroad certification programs. Section 246.107 Signal Service Classifications This proposed section would permit, but not require, railroads to issue certificates for one or more occupational categories or subcategories of certified signal employee service. While some railroads with only one type of signal employee service might not have any interest in certifying multiple types of signal employee service, larger railroads that have already established multiple categories of signal employee service (such as signal maintainers, signal inspectors, locomotive signal/electrical technicians, etc.) on their territories may find it beneficial to issue certificates for multiple types of signal employee service. Therefore, by allowing railroads to classify their certified signal employees into multiple occupational categories or subcategories, FRA would give railroads the flexibility to shape the structure of their certification programs to highlight the specific tasks and responsibilities for each category and subcategory of certified signal employee working on their territories. A railroad that classifies its certified signal employees into separate categories, such as signal maintainers, signal inspectors, and locomotive signal/electrical technicians, would be permitted to issue specific certificates for each category of signal employee service. This proposed section would also allow railroads to certify signal employees for signal system work on specific railroad divisions or subdivisions, as opposed to issuing one universal signal employee certificate that would certify the signal employee to perform signal system work anywhere on the certifying railroad's territory. As further explained in the Section-by-Section Analysis of § 246.106(b), railroads that choose to classify their certified signal employees into multiple occupational categories and subcategories would be required by § 246.106(b)(1)(iv) to provide detailed information about each occupational category (and subcategory, if applicable) of its certified signal employees. Paragraph (b) of this section would require certified signal employees to immediately notify the railroad (or their employer, if they are not employed by a railroad) if they are called to work on a signal system or signal-related technology on which they have not been certified. When notified that a certified signal employee has been called to work on a signal system or signal-related technology on which the employee has not been certified, paragraph (c) would prohibit the railroad from requiring the certified signal employee to work on the signal system or signal-related technology unless the certified signal employee is allowed to work under the direct oversight and supervision of a mentor in accordance with § 246.124. Section 246.109 Determinations Required for Certification and Recertification This proposed section lists the determinations that would be required for evaluating a candidate's eligibility to be certified or recertified. The reference to § 246.303 in paragraph (a)(2) of this section is to ensure railroads determine whether a candidate is eligible to hold a certification by reviewing any prior revocations addressed in subpart D of this rule. Despite the reference in paragraph (a)(1) of this section to provisions in §§ 246.111 and 246.113 requiring a review of safety conduct information from the preceding five years, § 246.113(g)(1) would not permit a railroad to consider information concerning safety conduct that occurred prior to the effective date of the final rule issued in this rulemaking. Even though this provision would result in a railroad's evaluation of less than five years' worth of information for some signal employees early on in the rule's effective period, it is included in part 246 for the same reason similar provisions were included in parts 240 and 242—namely, that all signal employees should be permitted to start with a “clean slate” for certification purposes as a matter of basic fairness. See 56 FR 28228, 28242 (June 19, 1991). Paragraph (b) of this section would provide flexibility to railroads and signal employees or signal employee candidates in obtaining the information required by §§ 246.111 and 246.113. For example, in some states, railroads may be able to obtain motor vehicle operator data for signal employees and signal employee candidates through background checks. Section 246.111 Prior Safety Conduct as Motor Vehicle Operator This proposed section, derived from 49 CFR 240.111, 240.115, and 242.111, would provide the requirements and procedures that a railroad would be required to follow when evaluating a certified signal employee or certification candidate's prior safety conduct as a motor vehicle operator. FRA believes that the prior safety conduct of a motor vehicle operator is one indicator of that person's drug and/or alcohol use and therefore an important piece of information for a railroad to consider. Pursuant to this section, each person seeking certification or recertification as a signal employee would be required to request in writing that the chief of each driver licensing agency that issued them a driver's license within the preceding five years provide a copy of the person's driving record to the railroad. Unlike part 240, this proposed rule would not require individuals to also request motor vehicle operator information from the National Driver Registry (NDR). Based on the NDR statute and regulation ( see 49 U.S.C. chapter 303 and 23 CFR part 1327), railroads are prohibited from running NDR checks or requesting NDR information from individuals seeking employment as certified signal employees. Paragraphs (b) and (c) of this section would require a railroad to certify or recertify a person for 60 days if the person: (1) requested the required information at least 60 days prior to the date of the decision to certify or recertify; and (2) otherwise meets the eligibility requirements provided in § 246.109(a)(1) through (5). If a railroad certifies or recertifies a person for 60 days pursuant to paragraphs (b) and (c) but is unable to obtain and evaluate the required information during those 60 days, the person would be ineligible to perform as a certified signal employee until the information can be evaluated. However, if a person is simply unable to obtain the required information, that person or the certifying or recertifying railroad could petition for a waiver from FRA ( see 49 CFR part 211). During the pendency of the waiver request, a railroad would be required to certify or recertify a person if the person otherwise meets the eligibility requirements of § 246.109(a)(1) through (5). Paragraph (k) of this section would require certified signal employees or persons seeking certification as signal employees to notify their employer (if employed by a railroad or contractor to a railroad), all prospective certifying railroads (if applicable), and all railroads with whom the person holds a signal employee certificate of motor vehicle incidents described in paragraph (m) of this section within 48 hours of the conviction or completed State action to cancel, revoke, suspend, or deny their motor vehicle driver's license for such incidents. Paragraph (k) would also prohibit railroads from having a more restrictive company rule requiring certified signal employees or persons seeking signal employee certification to report a conviction or completed State action to cancel, revoke, or deny a motor vehicle driver's license in less than 48 hours. The reasoning behind proposed paragraph (k) involves several intertwined objectives. As a matter of fairness, a railroad should not revoke, deny, or otherwise make a person ineligible for certification until that person has received due process from the State agency taking the action against the motor vehicle license. Further, by not requiring reporting until 48 hours after the completed State action, the proposed rule would have the practical effect of ensuring that a required referral to a drug and alcohol counselor (DAC) under paragraph (n) of this section would not occur prematurely. However, proposed paragraph (k) would not prevent an eligible person from choosing to voluntarily self-refer. Nor would it prevent the railroad from referring the person for an evaluation under an internal railroad policy if other information exists that identifies the person as possibly having a substance abuse disorder. Paragraph (n) of this section would provide that if a motor vehicle incident described in paragraph (m) is identified, the railroad would be required to provide the data to its DAC along with “any information concerning the person's railroad service record.” Furthermore, the person would have to be referred for evaluation to determine whether the person has an active substance abuse disorder. If the person has an active substance abuse disorder, the person would not be eligible for certification. However, even if it is determined that the person is not currently affected by an active substance abuse disorder, the railroad would be required, if recommended by a DAC, to condition certification upon participation in any needed aftercare and/or follow-up testing for alcohol or drugs or both. The intent of this proposed provision is to use motor vehicle records to identify signal employees or candidates for signal employee certification who may have active substance abuse disorders and make sure they are referred for evaluation and any necessary treatment before allowing them to perform safety sensitive service. Any testing performed as a result of a DAC's recommendation under paragraph (n) would be done under company authority, not Federal. However, the testing would be required to comply with the “technical standards” of part 219, subpart H, and part 40. Paragraph (n)(5) is intended to clarify that failure to cooperate in the DAC evaluation discussed in paragraphs (n)(2) of this section would result in the person being ineligible to perform as a certified signal employee until such time as the person cooperates in the evaluation. Section 246.113 Prior Safety Conduct With Other Railroads This proposed section, which is derived from 49 CFR 240.113, 240.205, and 242.113, would establish a process for certification candidates to request information about their prior safety conduct when employed or certified by another railroad. Except as otherwise provided by the retroactive time limit contained in paragraph (g) of this section, this section would require railroads to review records provided by railroads that previously employed or certified the certification candidate regarding the candidate's prior compliance with §§ 246.115 and 246.303 within the previous five years, as well as the candidate's motor vehicle driving record within the previous three years. Paragraph (b) of this section contains an exception that if a certification candidate has not been employed or certified by any other railroad in the previous five years, they do not have to submit a request pursuant to paragraph (c) of this section. Such candidates, however, must notify the railroad where they are seeking certification of this fact. This exception should help minimize any burden arising from these proposed requirements. For certification candidates who do not qualify for the exception provided in paragraph (b), paragraph (c) would require the certification candidate to submit a written request to each railroad that employed or certified the candidate within the previous five years. As indicated earlier, the written request would direct the previous railroad employer or certifying railroad to provide information about the certification candidate's prior compliance with §§ 246.115 and 246.303 within the previous five years, as well as the candidate's motor vehicle driving record within the previous three years from the date of the written request. In addition, railroads would be required by paragraph (e) to comply with written requests for records of prior safety conduct submitted by former employees or certified signal employees pursuant to this section within 30 days after receipt of such requests. Railroads that are unable to provide information about prior safety conduct within 30 days would be required by paragraph (f) to either: (1) provide a written explanation of why the railroad cannot provide the information within the requested time frame, along with an estimate of how much time will be needed to supply the requested information; or (2) provide an adequate explanation for why the railroad cannot provide the information requested. In the event a railroad seeking to certify or recertify a certification candidate receives a written statement from another railroad pursuant to paragraph (f) of this section, which explains that the railroad cannot provide the information requested, the railroad seeking to certify or recertify the certification candidate would be deemed to have complied with the eligibility determination required by paragraph (a) of this section, provided the railroad retains a copy of the other railroad's written statement in its records. Similarly, in the event a railroad seeking to certify or recertify a certification candidate does not receive a written response from other railroads, the railroad would be deemed to have complied with the eligibility determination required by paragraph (a) of this section provided the railroad retains a copy of its written request for this information in its records. Section 246.115 Substance Abuse Disorders and Alcohol Drug Rules Compliance This proposed section, which is derived from 49 CFR 240.119, 240.205, and 242.115, addresses: (1) active substance abuse disorders; and (2) specific alcohol/drug regulatory violations. As noted earlier, annual drug and alcohol testing data submitted to FRA revealed that signal employees had a random violation rate (drug and alcohol positives and refusals) and a pre-employment violation rate that was considerably higher than their train and engine service counterparts. Therefore, this section and § 246.111 address certain situations in which inquiry must be made into the possibility that the individual has an active substance abuse disorder if the individual is to obtain or retain a certificate. The fact that specific instances are cited in this section would not preclude the general duty of the railroad to take reasonable and proportional action in other appropriate cases. Declining job performance, extreme mood swings, irregular attendance and other indicators may, to the extent not immediately explicable, indicate the need for an evaluation under internal policies of the railroad. The purpose of identifying conditions is not to require (and does not require) a railroad to order an evaluation any time a listed condition is exhibited. Rather, FRA is simply providing guidance here as to conditions that may, given the context, call for an evaluation under internal policies of the railroad. Moreover, FRA remains vigilant of harassment and intimidation and will take appropriate action if such conduct is discovered. Paragraph (a) of this section would require railroads to determine that a person initially certifying, or a signal employee recertifying, meets the eligibility requirements of this section. In addition, each railroad would be required by § 246.203 to retain the documents used to make that determination. Paragraph (c) of this section would prohibit a person with an active substance abuse disorder from being certified as a signal employee. This means appropriate action must be taken with respect to a certificate (whether denial or suspension) whenever the existence of an active substance abuse disorder comes to the official attention of the railroad, with the exception discussed below. Paragraph (c) would also provide a mechanism for an employee to voluntarily self-refer for substance abuse counseling or treatment. Paragraph (d) would address conduct constituting a violation of § 219.101 or § 219.102 of the alcohol/drug regulations. Section 219.101(a)(1) prohibits regulated employees from using or possessing alcohol or any controlled substance when the employee is on duty and subject to performing regulated service for a railroad. Section 219.101(a)(2) prohibits regulated employees from reporting for regulated service, or going on or remaining on duty in regulated service, while under the influence of (or impaired by) alcohol or while having a breath or blood alcohol concentration of 0.04 or more. A regulated employee is also prohibited from using alcohol either within four hours of reporting for regulated service or after receiving notice to report for regulated service, whichever is less. This is conduct that specifically and directly threatens safety in a way that is wholly unacceptable, regardless of its genesis and regardless of whether it has occurred previously. In its more extreme forms, such conduct is punishable as a felony under the criminal laws of the United States (18 U.S.C. 341 et seq. ) and a number of states. Section 219.102 prohibits use of a controlled substance by a regulated employee, at any time, whether on or off duty, except for approved medical use. Abuse of marijuana, cocaine, amphetamines, and other controlled substances poses unacceptable risks to safety. Under the alcohol/drug regulations, whenever a violation of § 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 an SAP evaluation, any needed treatment and/or education, and a negative return-to-duty test, and is subject to follow-up testing (as required by § 219.104). These requirements constitute an absolute minimum standard for action when a signal employee is determined to have violated one of these prohibitions. Considering the need both for general and specific deterrence with respect to future unsafe conduct, additional action should be premised on the severity of the violation and whether the same individual has had prior violations. This proposed rule would require railroads to consider conduct that occurred within the period of five consecutive years prior to the review. This is the same period provided in this proposed rule as the maximum period of ineligibility for certification following repeated alcohol/drug violations and is the same period used in parts 240 and 242. Use of a 5-year cycle reflects railroad industry experience indicating that conduct committed as much as 5 years before may tend to predict future alcohol or drug abuse behavior. For example, in analyzing data submitted to FRA between 2017 and 2021, FRA found that railroad employees returning to duty from previous drug or alcohol violations were approximately five times more likely to test positive than other railroad employees. Of course, railroads would retain the flexibility to consider prior conduct (including conduct more than 5 years prior) in determining whom they will hire as signal employees. Conduct violative of the FRA proscriptions against alcohol and drugs need not occur while the person is serving in the capacity of a signal employee in order to be considered. For instance, an employee who violated § 219.101 while working as a conductor and then sought signal employee certification six months later (under the provision described below) would not be eligible for certification. The same is true under part 240—an employee who violates § 219.101 while working as a brakeman and then seeks locomotive engineer certification six months later would not be eligible for certification at that time. The responsibility of the railroad would therefore not be limited to periodic recertification. This proposed rule would require a review of certification status for any conduct in violation of § 219.101 or § 219.102. The proposed rule would require a determination of ineligibility for a period of 9 months for an initial violation of § 219.101. This would parallel the 9-month ineligibility period in §§ 240.119(c)(4)(iii) and 242.115(e)(4)(iii). Specifying a period of ineligibility serves the interest of deterrence while giving further encouragement to deal with the problem before it is detected by management. In order to preserve and encourage referrals, the nine-month period could only be waived in the case of a qualifying referral ( see § 219.1001). FRA believes that this distinction in treatment, which is also found in part 242, is warranted as a strong inducement to participation because referral programs help identify troubled employees before those employees get into accidents and incidents. In the case of a second violation of § 219.101, the signal employee would be ineligible for a period of five years. Given railroad employment practices and commitment to alcohol/drug compliance, it is likely that any individual so situated may also be permanently dismissed from employment. However, it would be important that the employing railroad follow through and revoke the certificate under this proposed rule, so the signal employee could not go to work for another railroad (or railroad contractor) within the five-year period using the unexpired certificate issued by the first railroad as the basis for certification. These proposed sanctions mirror the sanctions in §§ 240.119 and 242.115. 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 § 246.115(e) (referral for evaluation, treatment as necessary, negative return-to-duty test, and appropriate follow-up). This parallels the approach taken in parts 240 and 242 and reflects FRA's intent to not undercut the therapeutic approach to drug abuse employed by many railroads. This approach permits first-time positive drug tests to be handled in a non-punitive manner that concentrates on remediation of any underlying substance abuse problem and avoids the adversarial process associated with investigations, grievances, and arbitrations under the Railway Labor Act and collective bargaining agreements. A second violation of § 219.102 would subject the employee to a mandatory two-year period of ineligibility. A third violation within five years would lead to a five-year period of ineligibility. This proposed rule also addresses violations of §§ 219.101 and 219.102 in combination. A person violating § 219.101 after a prior § 219.102 violation would be ineligible for three years; and the same would be true for the reverse sequence. This mirrors the ineligibility period for locomotive engineers and conductors who have one § 219.101 violation and one § 219.102 violation. See 49 CFR 240.119(e)(4)(ii) and 242.115(e)(4)(ii). Refusals to participate in chemical tests would be treated as if the test were positive. A refusal to provide a breath or body fluid sample for testing under the requirements of 49 CFR part 219 when instructed to do so by a railroad representative would be treated, for purposes of ineligibility under this section, in the same manner as a violation of: (1) § 219.101, in the case of a refusal to provide a breath sample for alcohol testing, or a blood specimen for mandatory post-accident toxicological testing; or (2) § 219.102, in the case of a refusal to provide a body fluid specimen for drug testing. Interested parties should, however, note that 49 CFR part 40, subpart I, discusses medical conditions under which an individual's failure to provide a sufficient sample would not be deemed a refusal. In addition, subpart G of FRA's alcohol and drug regulations excuses employees from compliance with the requirement to participate in random drug and alcohol testing if the employee can substantiate a medical emergency involving the employee or an immediate family member. See 49 CFR 219.617. If an employee covered by 49 CFR part 219 refuses to provide a breath or body fluid specimen or specimens when required to by a railroad pursuant to a mandatory provision of 49 CFR part 219, then the railroad (apart from any action it takes under part 246) would be required to remove that employee from regulated service and disqualify the employee from working in regulated service for nine months. See 49 CFR 219.104 and 219.107; see also, 49 CFR part 219, subpart H, and 49 CFR 40.191 and 40.261. The employee would also be prohibited by § 246.213(c) from working as a certified signal employee for any other railroad during this 9-month period. Paragraph (e) prescribes the conditions under which employees may be certified or recertified after a determination that the certification should be denied, suspended, or revoked, due to a violation of § 219.101 or § 219.102 of FRA's alcohol/drug regulations. These conditions are derived from the conditions in §§ 240.119(d) and 242.115(f) and closely parallel the return-to-duty provisions of the alcohol/drug rule. The proposed regulation would not require compensation of the employee for the time spent in this testing, which is a condition precedent to retention of the certificate; but the issue of compensation would ultimately be resolved by reference to the collective bargaining agreement or other terms and conditions of employment under the Railway Labor Act. Moreover, the railroad that intends to withdraw its conditional certification would be required to afford the signal employee the hearing procedures provided by § 246.307 if the signal employee does not waive their right to the hearing. Paragraph (f) would ensure that a signal employee, like any other covered employee, can self-refer for treatment under the alcohol/drug rule (49 CFR 219.1003) before being detected in violation of alcohol/drug prohibitions and would be entitled to confidential handling of that referral and subsequent treatment. This means that a railroad would not normally receive notice from the DAC of any substance abuse disorder identified as a result of a voluntary self-referral under 49 CFR 219.1003. However, paragraph (f) would also require that the railroad policy provide that confidentiality is waived if the signal employee at any time refuses to cooperate in a recommended course of counseling or treatment, to the extent that the railroad must receive notice that the employee has an active substance abuse disorder so that appropriate certificate action can be taken. The effect of this proposed provision is that the certification status of a signal employee who seeks help and cooperates in treatment would not be affected, unless the signal employee fails to follow through. Section 246.117 Vision Acuity This proposed section, derived from 49 CFR 240.121, 240.207, and 242.117, contains the requirements for vision acuity testing that a railroad would have to incorporate in its signal employee certification p [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/fr%3A2023-10773. Public record. Not legal advice.