81290 Federal Register / Vol. 85, No. 241 / Tuesday, December 15, 2020 / Rules and Regulations 

1 84 FR 20472 (May 9, 2019). 

DEPARTMENT OF TRANSPORTATION 

Federal Railroad Administration 

49 CFR Parts 219, 240 and 242 

[Docket No. FRA–2018–0053, Notice No. 2] 

RIN 2130–AC40 

Qualification and Certification of 

Locomotive Engineers; Miscellaneous 

Revisions 

AGENCY: Federal Railroad 

Administration (FRA), Department of 

Transportation (DOT). 

ACTION: Final rule; technical 

amendment. 

SUMMARY: FRA is revising its regulation 

governing the qualification and 

certification of locomotive engineers to 

make it consistent with its regulation for 

the qualification and certification of 

conductors. The changes include: 

Amending the program submission 

process; handling engineer and 

conductor petitions for review with a 

single FRA review board (Operating 

Crew Review Board or OCRB); and 

revising the filing requirements for 

petitions to the OCRB. To ensure 

consistency throughout its regulations, 

FRA is also making conforming 

amendments to its regulations governing 

the control of alcohol and drug use, and 

the qualification and certification of 

conductors. The changes would reduce 

regulatory burdens on the railroad 

industry while maintaining the existing 

level of safety. 

DATES: This regulation is effective 

January 14, 2021. 

ADDRESSES: For access to the docket to 

read background documents or 

comments received, go to http://

www.regulations.gov at any time. 

FOR FURTHER INFORMATION CONTACT: 

Christian Holt, Staff Director-Operating 

Practices Division, U.S. Department of 

Transportation, Federal Railroad 

Administration, 1200 New Jersey 

Avenue SE, Washington, DC 20590 

(telephone: 202–366–0978); or Alan H. 

Nagler, Senior Attorney, U.S. 

Department of Transportation, Federal 

Railroad Administration, Office of Chief 

Counsel, 1200 New Jersey Avenue SE, 

Washington, DC 20590 (telephone: 202– 

493–6038). 

SUPPLEMENTARY INFORMATION: 

Table of Contents for Supplementary 

Information 

I. Executive Summary 

II. Discussion of General Comments and 

Conclusions 

A. Remote Control Operators and 

Operations 

B. Defining Main Track 

C. Newly Hired Employee 

D. Preventing Public Disclosure of 

Confidential Information 

E. General Docketing and Service Concerns 

F. Issues Beyond the Scope of This 

Rulemaking 

G. Minor Revisions Identified 

H. Rejecting the Addition of 

Implementation Dates 

III. Section-by-Section Analysis 

IV. Regulatory Impact and Notices 

A. Executive Orders 12866 and 13771 and 

DOT Regulatory Policies and Procedures 

B. Regulatory Flexibility Act and Executive 

Order 13272; Regulatory Flexibility 

Certification 

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 

I. Executive Summary 

On May 9, 2019, FRA issued a notice 

of proposed rulemaking (NPRM) to 

amend title 49 Code of Federal 

Regulations (CFR) part 240, 

Qualification and Certification of 

Locomotive Engineers (part 240).1 In 

response to that NPRM, FRA received 

three written comments. 

This final rule responds to those 

comments and amends part 240 by: 

Making part 240 more consistent with 

the language in 49 CFR part 242, 

Qualification and Certification of 

Conductors (part 242); creating two 

provisions under which railroads may 

issue temporary locomotive engineer 

certifications; merging FRA’s 

locomotive engineer and conductor 

review boards; adopting aspects of part 

242 for locomotive engineer 

certification; providing labor 

representatives with the ability to 

provide input on a railroad’s part 240 

program; and allowing for and 

encouraging the use of electronic 

document submission of a railroad’s 

part 240 program. This final rule also 

makes technical amendments to part 

242 to: (1) Make the requirement for 

calibration of audiometers used during 

hearing tests for conductors the same as 

the requirement in part 240 for 

locomotive engineers; and (2) conform 

the definition of ‘‘main track’’ in part 

242 to the definition of ‘‘main track’’ in 

part 240. 

Additionally, this final rule makes 

conforming amendments to title 49 CFR 

part 219, Control of Alcohol and Drug 

Use (part 219) to update two crossreferences to part 240. Updating these 

references is necessary to ensure 

consistency between part 219 and part 

240, as amended. 

The final rule will create new costs. 

First, each locomotive engineer 

certification manager will need to 

review the amendments made to part 

240 to ensure compliance is maintained. 

Second, amendments to part 240 will 

require each railroad to provide a copy 

of its part 240 plan to the president of 

each labor organization whenever the 

railroad files a submission, 

resubmission, or makes a material 

modification to its plan. Third, a 

railroad will need to maintain service 

records for certified locomotive 

engineers who are not performing 

service that requires locomotive 

engineer certification. For the 20-year 

period of analysis, the cost of the final 

rule will be $233,779 (undiscounted), 

$171,764 (PV 7%), and $200,775 (PV 

3%). 

The final rule will also create cost 

savings. First, adding clarity in part 240 

and conforming language in part 240 to 

part 242 will reduce stakeholder burden 

related to review and compliance with 

part 240. Second, it will reduce the 

burden on a railroad when providing 

another railroad with information about 

a former employee’s prior service 

records. Third, it will update the 

program submission process to allow for 

electronic document submission, which 

will reduce stakeholder paperwork and 

submission costs related to part 240 

program submissions and locomotive 

engineer certification petitions. Fourth, 

it will remove the requirement for 

railroads to obtain a waiver from the 

annual testing requirements for certified 

locomotive engineers who are not 

performing service that requires 

certification. For the 20-year period of 

analysis, the cost savings of the final 

rule will be $12.3 million 

(undiscounted), $6.9 million (PV 7%), 

and $9.4 million (PV 3%). 

As shown in Table ES.1, the 

regulatory evaluation quantifies the 

economic impact of the final rule in 

terms of cost savings and new costs 

accruing to stakeholders. For the 20-year 

period of analysis, the final rule will 

result in a net cost savings of $12.0 

million (undiscounted), $6.8 million 

(PV 7%), and $9.2 million (PV 3%). 

This final rule is an Executive Order 

(E.O.) 13771 deregulatory action. Details 

on the estimated costs of this final rule 

can be found in the rule’s economic 

analysis. 

Federal Register / Vol. 85, No. 241 / Tuesday, December 15, 2020 / Rules and Regulations 81291 

2The labor organizations that submitted the Labor 

Comments are: The American Train Dispatchers 

Association; the Brotherhood of Locomotive 

Engineers and Trainmen; the Brotherhood of 

Maintenance of Way Employes Division; the 

Brotherhood of Railroad Signalmen; the 

Brotherhood Railway Carmen Division; the 

International Association of Sheet Metal, Air, Rail 

and Transportation Workers—Transportation 

Division; and the National Conference of Firemen 

& Oilers District, Local 32BJ/SEIU. 3 84 FR 20479. 

TABLE ES.1—FINAL RULE: NEW COSTS, COST SAVINGS, AND NET COST SAVINGS; 20-YEAR PERIOD

Cost of proposed rule Undiscounted Present value 

7% 

Annualized 

7% 

Present value 

3% 

Annualized 

3% 

New Costs:.

Review amendments .................................................... $118,383 $110,638 $10,443 $114,935 $7,725 

Provide copy of part 240 plan to labor organization .... 2,263 1,199 113 1,683 5,657 

Maintain service records ............................................... 113,133 59,927 5,657 84,157 5,657 

Total new costs ..................................................... 233,779 171,764 16,213 200,775 19,039 

Cost Savings 

Conforming part 240 to part 242 .................................. 11,838,340 6,709,732 633,351 9,070,417 609,675 

Former employee paperwork ........................................ 113,133 59,927 5,657 84,157 5,657 

Petition submission process ......................................... 109,620 58,066 5,481 81,543 5,481 

Plan submission process .............................................. 6,800 3,602 340 5,058 340 

Government cost savings ............................................. 92,448 48,970 4,622 60,933 4,096 

Removing waiver requirement ...................................... 113,133 59,927 5,657 84,157 5,657 

Total cost savings .................................................. 12,273,475 6,940,223 655,108 9,386,266 630,904 

Net Cost Savings ................................................................. 12,039,696 6,768,459 638,895 9,185,491 611,866

The final rule will create benefits. 

First, the final rule will amend the part 

240 program submission process to 

require railroads to solicit labor input, 

providing for fully informed decisions 

by railroads. Second, it affords railroads 

additional time and flexibility to 

comply with some regulatory 

requirements. Third, it creates certain 

provisions that allow for temporary 

locomotive engineer certificates. Fourth, 

electronic filing will make information 

more accessible to interested 

stakeholders and the public. Because 

FRA lacks sufficient information related 

to these four benefits, this analysis 

could not accurately quantify these 

benefits. Therefore, the rule’s economic 

analysis qualitatively explains benefits. 

The final rule will also reduce 

Governmental administrative costs, 

including mailing, filing, and storing 

costs related to amendments to part 240, 

by allowing the Government and 

stakeholders to transmit and store 

documents electronically. 

II. Discussion of General Comments 

and Conclusions 

FRA received three written comments 

in response to the NPRM. The 

Association of American Railroads and 

the American Short Line and Regional 

Railroad Association submitted one set 

of joint comments (collectively referred 

to as ‘‘Railroad Commenters’’). A second 

set of joint comments was submitted by 

a group of seven labor organizations 

(collectively referred to as ‘‘Labor 

Commenters’’).2 The American 

Association of Nurse Practitioners 

submitted the third comment. 

Some of the specific comments are 

discussed in the Section-by-Section 

Analysis or in the Regulatory Impact 

and Notices portion of this final rule 

directly with the provisions and 

statements to which they specifically 

relate. Other comments apply more 

generally to the final rule as a whole, 

and FRA is discussing them here. Please 

note that the order in which the 

comments are discussed in this 

document, whether by issue or by 

commenter, is not intended to reflect 

the significance of the comment raised 

or the standing of the commenter. 

A. Remote Control Operators and 

Operations 

In the NPRM, FRA proposed several 

changes to part 240 to clarify the 

locomotive engineer certification 

requirements for remote control 

operators, including defining ‘‘remote 

control operator (RCO),’’ ‘‘operator 

control unit (OCU),’’ and ‘‘remote 

control locomotive (RCL).’’ 

FRA received two comments that 

opposed FRA’s changes related to 

certification of RCOs. Labor 

Commenters asserted that FRA should 

not address RCO issues in this 

rulemaking because the proposed 

changes would not be conforming 

changes to part 242 and would thus be 

beyond the scope of this rulemaking. 

Labor Commenters also recommended 

FRA address remote control safety and 

operational issues to a much greater 

degree than proposed. Railroad 

Commenters asserted that the RCO 

proposed changes are unnecessary, 

create confusion, and potentially create 

new administrative burdens. 

FRA’s Response 

FRA was persuaded by the comments 

that the proposed changes regarding 

RCOs were not strictly conforming 

changes and that the proposed changes 

had the potential to create unforeseen 

problems. Considering that the 

regulated community understands how 

to certify RCOs under the current 

regulatory requirements, and the intent 

of the proposed changes was to ‘‘catch 

up [with] industry practice’’ in 

implementing the existing regulations,3

FRA is not adopting the proposed 

clarifying requirements regarding 

remote control operations in this final 

rule. 

B. Defining Main Track 

In the NPRM, FRA proposed to revise 

part 240’s definition of ‘‘main track’’ to 

be the same as the definition in part 242 

by revising the existing definition to 

include a reference to positive train 

control (PTC) as a method of operation 

that would make a track a ‘‘main track.’’ 

Railroad Commenters noted that they 

opposed making this conforming change 

because PTC is not a method of 

operation. 

FRA’s Response 

In considering these comments, FRA 

recognizes that it did not explain the 

inclusion of PTC as a method of 

operation in the part 242 rulemaking 

notices. Upon further review, FRA 

agrees with the comment that PTC is not 

a method of operation but rather is a 

technology that helps enforce 

compliance with a railroad’s method(s) 

81292 Federal Register / Vol. 85, No. 241 / Tuesday, December 15, 2020 / Rules and Regulations 

4 54 FR 50890 (Dec. 11, 1989) (see proposed 49 

CFR 240.63). 

5 54 FR at 50930. 

6 56 FR 28228, 28230 (June 19, 1991). 7 49 CFR 209.11. 

governing train operations. For this 

reason, the final rule does not make any 

changes to the definition of main track 

in part 240. 

C. Newly Hired Employee 

In the NPRM, FRA proposed to delete 

the definition for the term ‘‘newly hired 

employee’’ because the term is not used 

in part 240. Labor Commenters noted 

that although the term ‘‘newly hired 

employee’’ is not used in part 240, the 

terms ‘‘newly hired engineer’’ and 

‘‘newly hired conductor’’ are used in 

parts 240 and 242, respectively. Labor 

Commenters explain that these existing 

terms ‘‘establish the benchmark by 

which a railroad may rely upon 

qualification determinations made by a 

prior railroad employer of a candidate 

for certification.’’ Accordingly, Labor 

Commenters suggest that instead of 

deleting the existing definition of 

‘‘newly hired employee,’’ FRA change 

the term to ‘‘newly hired’’ and integrate 

it into reporting and accident analysis 

requirements in a future rulemaking. 

FRA’s Response 

FRA reviewed the regulatory history 

to determine the origins of the 

definition of ‘‘newly hired employee’’ 

and whether deleting the term as 

proposed would be the correct 

approach. FRA notes that the term is not 

used or defined in part 242. FRA found 

that its original 1989 proposal for part 

240 contained a section titled ‘‘Content 

and duration of student training 

programs.’’ 4 As proposed in the 1989 

NPRM, § 240.63 contained a 

requirement for training applicable only 

to ‘‘newly hired employees.’’ 5 However, 

in the final rule implementing the 1989 

NPRM, FRA explained that a premise of 

FRA’s original proposal was that every 

engineer would be trained, tested, and 

evaluated using the same criteria so that 

the regulatory requirements would 

resemble a motor vehicle licensing 

scheme employed by State governments 

for issuance of commercial truck driver 

licenses.6 The final rule implementing 

this initial proposal, however, took a 

more individualized, railroad-centric 

approach that allowed each railroad to 

formulate a program for setting 

qualification standards and submitting 

that program to FRA for approval. As 

such, the final rule did not adopt 

proposed § 240.63 or any similar 

requirement. FRA, however, 

erroneously adopted the unnecessary 

definition of ‘‘newly hired employee’’ 

into the 1991 final rule implementing 

the original 1989 proposal. Thus, the 

definition is a legacy term left over from 

the original 1989 NPRM and is not 

applicable to part 240 as it currently 

exists. 

FRA recognizes that, as Labor 

Commenters note, existing § 240.225(a) 

refers to a ‘‘newly hired engineer’’ and 

existing § 242.215 refers to a ‘‘newly 

hired conductor.’’ Those undefined 

terms, however, are not equivalent to 

the term ‘‘newly hired employee’’ (e.g., 

a newly hired engineer must be a 

previously certified locomotive 

engineer, while a newly hired employee 

could be an individual who has no prior 

railroad experience or has less than one 

year of railroad transportation service). 

Accordingly, in this final rule, FRA is 

deleting the existing definition of 

‘‘newly hired employee’’ from part 240 

as proposed. 

D. Preventing Public Disclosure of 

Confidential Information 

In the NPRM, FRA proposed to have 

parties submit part 240 petitions for 

FRA review of railroads’ certification 

decisions (§ 240.403) through DOT’s 

public docket website at 

www.regulations.gov. Labor 

Commenters ask that FRA revise its 

proposal to include procedures for a 

party to request that certain information 

filed in these proceedings be protected 

from public disclosure (e.g., personally 

identifiable information and medical 

records). Labor Commenters note that 

locomotive engineers typically file 

petitions under § 240.403 on their own 

behalf or petitions are filed by local 

union representatives, not an attorney. 

Labor Commenters cite to the Federal 

Rules of Civil Procedure as an example 

of how this information could be 

protected. 

FRA’s Response 

Although FRA recognizes the Labor 

Commenters’ concern about the 

importance of protecting personal 

information from public disclosure, 

FRA notes that the Agency’s regulations 

already include procedures for any 

person submitting documents or 

information to FRA to request 

confidential treatment of that 

information.7 Accordingly, FRA finds it 

is unnecessary to include any additional 

procedures in part 240. FRA notes that 

the existing filing procedures have been 

utilized in both parts 240 and 242 for 

years, and FRA is unaware of any 

concern raised that it failed to provide 

confidential treatment of information 

upon request in any such filing under 

part 240 or 242. The changes FRA 

proposed to § 240.403(b)(2) and that are 

being adopted in this final rule are 

limited to moving the Agency’s docket 

management procedures from the oldfashioned, paper dockets kept at FRA’s 

headquarters to modern, electronic 

dockets that are web-based. 

FRA’s changes to § 240.403 will not 

only align it with the corresponding 

procedures in part 242 (§ 242.505) but 

also with the administrative hearing 

filing procedures in both parts 240 and 

242 (§§ 240.407 and 242.507). Those 

filing procedures have been in place for 

many years and FRA believes the 

procedures are sufficient to enable filers 

to request protection of personally 

identifiable information, including 

medical records, with minimal burden. 

In proceedings under § 240.403, FRA 

uses the Federal Government’s on-line 

docket system at www.regulations.gov. 

That docket system maintains a privacy 

and security notice on its website that 

warns users that the material and 

personally identifiable information filed 

in a document may be publicly 

disclosed in a docket or on the internet. 

Under the existing procedures of 

§ 240.403 and with FRA’s amendments 

to that section, a party must decide for 

itself if there is personally identifiable 

information or other types of 

information that should be kept 

confidential, and it is that party’s duty 

to request confidentiality. FRA notes 

that social security numbers or 

employee identification numbers are not 

generally necessary in any filings under 

§ 240.403. Accordingly, FRA encourages 

parties to redact those numbers from 

any documents submitted to a docket. 

As noted, FRA’s procedures for 

requesting confidential treatment of any 

document or portion of any document 

are in 49 CFR 209.11. Parties should 

follow the procedures specified in that 

regulation when requesting that FRA 

treat information or documents 

submitted as confidential information. 

In general, when requesting confidential 

treatment of information in a filing, a 

party should include in its filing a 

description of each item redacted or not 

disclosed and the rationale for each 

non-disclosure (e.g., contains medical 

information). FRA will then contact the 

party to obtain any information 

indicated as redacted if FRA believes it 

is relevant to issuance of a decision. 

Questions regarding confidential 

treatment can be directed to FRA’s 

Office of the Chief Counsel. 

E. General Docketing and Service 

Concerns 

Labor Commenters raised several 

general docketing and service concerns. 

Federal Register / Vol. 85, No. 241 / Tuesday, December 15, 2020 / Rules and Regulations 81293 

8 84 FR at 20473. 

For instance, the commenters indicate 

that some labor representatives and 

members have experienced problems 

associated with uploading large files or 

multiple files to Regulations.gov. 

Similarly, the commenters state that 

some labor representatives have 

experienced difficulty emailing large 

files to parties (including FRA) as an 

alternative form of service from mailing 

copies of the documents. The labor 

organizations also seek FRA’s answer to 

the question of how their members and 

labor representatives are to determine 

that service/delivery of emails is 

completed. 

FRA’s Response 

Just like petitions submitted in 

conductor certification cases, petitions 

to the OCRB for the review of a 

railroad’s decision to deny, recertify, or 

revoke a locomotive engineer’s 

certification may be hand delivered or 

mailed, and may additionally be 

submitted by fax or electronically, 

consistent with the standards and 

requirements established by the Federal 

Docket Management System and posted 

on the Regulations.gov website. 

The process for filing a petition to the 

OCRB requires filing in a docket that 

does not yet exist as the petition itself 

serves as a request to open a new nonrulemaking docket. To open a new nonrulemaking docket, a filer first 

electronically submits a document to a 

pre-existing docket called a ‘‘shell 

docket.’’ This is accomplished by going 

to Regulations.gov and entering FRA’s 

shell docket number ‘‘FRA–2007–0003’’ 

in the search box. This will open a 

window for the shell docket and allow 

a filer to click on ‘‘Comment Now.’’ The 

filer will then enter the required 

information and upload one or more 

files. While entering something in the 

comment box is required, FRA 

recommends that filers only use the 

comments box to list the documents 

they are filing, as the documents they 

upload will contain their argument(s) 

and supporting documentation. After 

entering the information and uploading 

any documents, there is an opportunity 

to preview the information submitted 

and to receive a receipt. Whether 

submitting a petition by mail, 

electronically, or by other method, FRA 

recommends that the party retain a 

receipt or other proof of the petition’s 

filing date. Further, once a docket is 

created for a petition, FRA recommends 

the filing party return to Regulations.gov 

and sign up for email alerts to keep 

updated on any changes or additions 

that occur in the docket folder. 

Typically, the filing party will know 

that FRA received the submission when 

FRA sends an acknowledgment letter 

notifying the party of the petition’s 

assigned docket number. If the petition 

is deficient because it does not meet the 

minimum requirements or arrangements 

need to be made to handle confidential 

information, FRA will contact the filing 

party and provide further instructions 

before issuing an acknowledgment letter 

with the docket number. 

Labor Commenters expressed concern 

that some labor representatives and 

members have experienced problems 

uploading large files or multiple files to 

Regulations.gov. FRA is aware that 

Regulations.gov has imposed a size limit 

on uploaded files. Regulations.gov has a 

‘‘help’’ tab, and the user can choose 

‘‘FAQs’’ in the drop-down menu. One of 

the FAQs asks ‘‘how many files can I 

upload to the comment form’’ and the 

answer provided is ‘‘up to 20 files, but 

each file cannot exceed 10MB.’’ The 

answer also clarifies that valid file types 

include: .bmp, .docx, .gif, .jpeg, .jpg, 

.pdf, .png, .pptx, .rtf, .sgml, .tif, .tiff, .txt, 

.wpd, .xlsx, and .xml. Parties have 

several options for overcoming this size 

limitation. For example, in some cases 

it is possible for a filer to split the files 

and then upload them onto 

Regulations.gov. Another option would 

be to file as many documents as possible 

through uploading at FRA’s shell docket 

on Regulations.gov, and leave a 

comment in the comment box 

describing the large files that cannot be 

uploaded and how the filing party 

intends to submit those files. For 

example, a comment could be entered 

stating that a large video file will be 

provided to FRA on a memory storage 

device sent through the mail, such as a 

USB memory stick. Comments can also 

request FRA contact the commenter to 

discuss other arrangements, such as 

emailing the file or providing FRA with 

a way to download the document from 

a cloud-based file hosting service such 

as Dropbox. Although FRA can 

currently receive CD–ROM and DVD– 

ROM disks, the readers for these disks 

are becoming antiquated and therefore 

more difficult for FRA to access reliably. 

Documents that are not in an acceptable 

format, including files on proprietary 

software that FRA does not license to 

use, will need conversion to an 

acceptable format or other arrangements 

will be required that will allow FRA to 

review the files. If a file cannot be 

placed in a docket or viewed by FRA, 

the file cannot be made part of the 

administrative record, and therefore 

cannot be considered by FRA in 

reviewing the petition. 

Similarly, Labor Commenters state 

that some labor representatives have 

experienced difficulty emailing large 

files to parties or FRA as an alternative 

form of service from mailing copies of 

the documents. Serving documents 

under FRA’s administrative procedures 

should be no different than serving 

documents on parties in Federal court 

litigation. That is why the definition of 

the term ‘‘serve or service’’ in part 240 

states that the term has the same 

meaning given in Rule 5 of the Federal 

Rules of Civil Procedure. Service of 

documents on another party is the 

responsibility of the party performing 

service. If files are too large to email, the 

party performing service must make 

arrangements to perform the service by 

mail or other mutually agreed upon 

method with the party to be served. A 

party performing service by email has a 

duty to choose an option for service 

where it receives a receipt automatically 

or it can ask the receiving party to reply 

that receipt was completed 

satisfactorily. Without proof of 

completeness, service cannot be proven, 

and is thus presumably incomplete. Any 

questions regarding files, filing, and 

service should be directed to FRA’s 

Office of the Chief Counsel. 

F. Issues Beyond the Scope of This 

Rulemaking 

In the NPRM, FRA explained that 

issues that go beyond conforming FRA’s 

locomotive engineer regulation with 

FRA’s conductor certification regulation 

and updating and clarifying the existing 

requirements for locomotive engineer 

certification, are best saved for a 

separate, future rulemaking.8 In 

response to the NPRM, FRA received 

several comments which FRA has 

determined go beyond the scope of this 

rulemaking and are best saved for such 

a separate, future rulemaking. 

The American Association of Nurse 

Practitioners (AANP) commented that 

the definition of medical examiners 

should include nurse practitioners. 

AANP commented that nurse 

practitioners are authorized to become 

certified medical examiners under the 

Federal Motor Carrier Safety 

Administration’s (FMCSA) regulations 

and the National Transportation Safety 

Board (NTSB) includes nurse 

practitioners in the category of medical 

professionals who should be eligible for 

training and certification as 

transportation medical examiners for 

medical fitness for duty tests. FRA finds 

that the issue of whether nurse 

practitioners should be included in the 

definition of medical examiners is best 

saved for a separate, future rulemaking, 

as the issue is complex, and FRA 

expects additional commenters would 

81294 Federal Register / Vol. 85, No. 241 / Tuesday, December 15, 2020 / Rules and Regulations 

9 49 CFR 390.103 through 390.115. 10See 84 FR at 20473–95. 

have submitted comments if FRA had 

provided notice of this issue in the 

NPRM. In addition, FRA notes that if a 

nurse practitioner is a licensed or 

certified technician, the nurse 

practitioner is permitted to perform the 

vision and hearing acuity examinations 

required in parts 240 and 242. However, 

both parts 240 and 242 require a 

medical examiner, who is defined as a 

person licensed as a doctor of medicine 

or doctor of osteopathy, to conduct any 

medical evaluation to determine if the 

locomotive engineer or conductor 

candidate can operate safely in the 

event the candidate fails the vision or 

hearing acuity examination. Although 

AANP’s comment indicates that nurse 

practitioners can be trained and 

certified to perform those type of 

medical evaluations, beyond the 

standard testing, AANP did not address 

the fact that FMCSA has medical 

examiner certification requirements in 

its regulations, while FRA does not.9

Accordingly, this issue is not addressed 

in this final rule. 

Railroad Commenters raised several 

issues that are beyond the scope of this 

rulemaking and, as such, FRA is not 

addressing them in this final rule. For 

instance, Railroad Commenters advocate 

that FRA should amend its approach 

regarding requirements for joint 

operations territory, even though FRA 

explained in the NPRM that it was not 

proposing any changes to the 

requirements in § 240.229 because doing 

so would not conform part 240 to part 

242. 

Labor Commenters also raised several 

issues that are best saved for a separate, 

future rulemaking and thus FRA is not 

addressing them in this final rule. For 

instance, Labor Commenters advocated 

for amending § 240.129, so that instead 

of requiring that a certified engineer be 

given an operational monitoring 

observation and unannounced 

compliance test within 30 days of return 

to service following a period of not 

performing a service that requires 

engineer certification, the certified 

engineer be provided 30 working trips 

or tours of duty in engineer service 

following a return before such testing. 

Labor Commenters also suggested that 

FRA amend its denial and revocation 

procedures, §§ 240.219(c) and 

240.307(c)(11), to require each railroad 

to provide more specificity in its 

decision as to the citation allegedly 

violated, and notify the person in 

writing of the right to request FRA 

review and the applicable time limits. 

Since these proposals go beyond the 

scope of this rulemaking, which FRA 

intended merely to conform part 240 to 

part 242 and clarify part 240’s existing 

requirements, FRA declines to address 

them in this final rule. Labor 

Commenters also included a history and 

analysis of international legal issues that 

go beyond the scope of this rulemaking. 

G. Minor Revisions Identified 

With this final rule, FRA is making 

many minor revisions that were 

proposed in the NPRM to fix 

grammatical errors, typographical 

errors, reference errors, and superfluous 

language and citations. These revisions 

include the following sections: 

240.11(d); 240.207(b); 240.209(b) and 

(c); 240.211(b); 240.215(e); 240.217(a) 

and (d); 240.225(b); 240.305(b)(2); 

240.307(g) and (i); 240.309(b)(4) and 

(e)(1), (2), (8), and (9); and appendix D. 

FRA identified these amendments as 

proposed in the NPRM and received no 

comments in response. Accordingly, 

FRA is adopting the proposed revisions 

without further discussion in this final 

rule. 

H. Rejecting the Addition of 

Implementation Dates 

In the NPRM, FRA raised the issue of 

whether the final rule should include 

any implementation dates beyond the 

final rule’s effective date. For example, 

FRA asked for comments considering 

whether the NPRM adequately 

addressed the time necessary for each 

railroad to incorporate into its part 240 

program the changes required in this 

rulemaking. Labor Commenters 

suggested that FRA use a two-tiered 

implementation approach that would 

provide Class I, intercity passenger, and 

commuter railroads with six months 

from the date of publication to amend 

part 240 programs and provide all other 

railroads subject to part 240 one year. 

Railroad Commenters did not comment 

on this issue. After considering the 

comments and the revisions to part 240 

being adopted in this final rule, FRA has 

concluded that the revisions will not, by 

themselves, require material 

modifications to a railroad’s part 240 

certification program. Thus, no railroad 

will be obligated to file its complete part 

240 program with FRA after only 

making any necessary modifications 

resulting from this final rule. Further, as 

the Railroad Commenters did not 

request an implementation schedule, 

and the regulatory revisions will not 

result in material modifications to a 

railroad’s program, it is unnecessary to 

create an implementation schedule. 

Similarly, in the NPRM, FRA 

proposed amending § 240.403 to shorten 

the time limit for filing a denial of 

certification petition with the OCRB 

from 180 days to 120 days, and asked 

whether FRA should delay 

implementation of that shortened time 

limit. FRA did not receive any 

comments in response to this question. 

Accordingly, FRA has concluded that 

delaying implementation of that 

shortened time period is not necessary. 

Consequently, if a railroad’s denial 

decision is on or after the effective date 

of this final rule, any petition in 

response to that denial decision must be 

filed with FRA within 120 days. 

III. Section-by-Section Analysis 

This section responds to public 

comments and identifies any changes 

made from the provisions as proposed 

in the NPRM. Provisions that received 

no comment, and are otherwise being 

finalized as proposed, are not discussed 

again here.10

Part 219 

While drafting the final rule, FRA 

identified two cross-references in part 

219 that required updating to reflect the 

part 240 amendments. As discussed 

below, the final rule revises these crossreferences in §§ 219.25 and 219.1003 to 

ensure they conform with part 240, as 

amended. Although the NPRM did not 

specifically propose these revisions, 

they are both non-substantive in nature 

and within the scope of the rulemaking 

because they merely conform part 219 

with part 240 as amended by the final 

rule. 

Section 219.25 Previous Employer 

Drug and Alcohol Checks 

Paragraph (b) of this section contains 

a cross-reference to former § 240.119(c), 

which this final rule is redesignating as 

§ 240.119(e). FRA is therefore revising 

paragraph (b) to update the crossreference from § 240.119(c) to 

§ 240.119(e). This section and the 

revised cross-reference refer to the 

requirement for a railroad that is 

considering initially certifying or 

recertifying a locomotive engineer to 

review the person’s records from the 

previous 60 consecutive months and 

consider any Federal alcohol and drug 

violations. 

Section 219.1003 Referral Program 

Conditions 

Paragraph (j) of this section contains 

a cross-reference to former § 240.119(e), 

which this final rule is redesignating as 

§ 240.119(g). FRA is therefore revising 

paragraph (j) to update the crossreference from § 240.119(e) to 

§ 240.119(g). This section and the 

revised cross-reference refer to the 

Federal Register / Vol. 85, No. 241 / Tuesday, December 15, 2020 / Rules and Regulations 81295 

11See 84 FR at 20474–78. 

12The RSAC provides a forum for collaborative 

rulemaking and program development. RSAC 

includes representatives from all of the agency’s 

major stakeholder groups, including railroads and 

labor organizations. For more information regarding 

the RSAC process and the conduct of the Working 

Group, see 76 FR 69802, 69802–69804 (Nov. 9, 

2011). 

13 84 FR 20472, 20476 (May 9, 2019). 

14 84 FR at 20475. 

15 75 FR at 69170 (Nov. 10, 2010). 

16 76 FR at 69806 (Nov. 9, 2011). 

various referral programs allowed in 

part 219 and explains when 

confidentiality is waived. 

Part 240 

Section 240.7 Definitions 

FRA is amending this section by: (1) 

Adding definitions for ‘‘conductor,’’ 

‘‘drug and alcohol counselor,’’ 

‘‘ineligible or ineligibility,’’ ‘‘on-the-job 

training (OJT),’’ ‘‘physical 

characteristics,’’ ‘‘plant railroad,’’ 

‘‘Substance Abuse Professional,’’ 

‘‘territorial qualifications,’’ and ‘‘tourist, 

scenic, historic, or excursion operations 

that are not part of the general system 

of transportation’’; (2) revising the 

definitions of ‘‘file, filed and filing,’’ 

‘‘FRA Representative,’’ ‘‘instructor 

engineer,’’ ‘‘medical examiner,’’ 

‘‘qualified,’’ ‘‘railroad rolling stock,’’ 

and ‘‘substance abuse disorder’’; (3) 

removing the definitions for ‘‘EAP 

Counselor’’ and ‘‘newly hired 

employee’’; and (4) replacing the 

defined term ‘‘service’’ with the term 

‘‘serve or service.’’ These amendments 

will make the definitions in part 240 

consistent with the definitions in part 

242 and, rather than republish the 

analysis provided for those definitions, 

FRA references the analysis as proposed 

in the NPRM.11

Instructor Engineer 

In the NPRM, FRA proposed to revise 

the definition of ‘‘instructor engineer’’ 

to make it as similar as possible to the 

definition of ‘‘qualified instructor’’ in 

part 242, by: (1) Establishing a role for 

employee representative participation; 

and (2) establishing methods for 

identifying instructors through railroad 

and employee representative 

coordination, as well as by the railroad 

unilaterally. 

Although FRA received comments on 

the proposed changes to this definition, 

FRA is adopting the revised definition 

as proposed. Thus, the analysis 

provided in the NPRM is applicable. 

The following is a summary of the 

comments received and FRA’s 

responses. 

Railroad Commenters reiterated 

concerns raised by at least one Railroad 

Safety Advisory Committee (RSAC) 

Conductor Certification Working Group 

(RSAC Working Group or Working 

Group) 12 member that FRA addressed 

in the NPRM.13 Railroad Commenters 

objected to the proposed requirement 

that, for each railroad that has 

designated employee representation, if 

the railroad seeks to designate a person 

as an instructor engineer when the 

designated employee representative 

declines to provide concurrence, the 

railroad would be required to select 

only a person who has a minimum of 12 

months of service working in the class 

of service for which the person is 

designated to instruct. FRA disagrees 

with the Railroad Commenters that FRA 

did not provide a basis for justifying this 

proposed requirement. FRA’s view is 

based on the understanding that an 

instructor is typically not a railroad 

officer or supervisor, but instead a 

person with current, relevant experience 

who can be counted on to impart 

knowledge and demonstrate safetyrelated tasks through OJT training.14

FRA views instructor engineers as 

mentors that would not be directly 

testing or making certification decisions. 

When the conductor certification rule 

was first proposed in 2010, FRA 

explained that the purpose of the 

additional requirements was to allow 

employees, through their 

representatives, to have input in the 

selection of instructors who might be 

viewed as inexperienced. FRA’s 

position was that if the railroad selected 

a person to instruct, but the person had 

less than 12 months of service working 

in the class of service, it is fair to 

presume the person might lack the 

experience necessary to instruct.15 The 

conductor rule does not absolutely 

prohibit the railroad from selecting a 

person that lacks the 12-month 

experience requirement, but instead 

requires the railroad to work with the 

employees’ representative(s) in the 

instructor selection process, unless the 

employees lack such representation. 

Considering the mentor relationship, if 

a location lacks experienced engineers 

and the railroad’s employees are 

represented, the designated employee 

representative would have an interest in 

selecting those engineers who would be 

in the best position to help fellow 

colleagues get the proper instruction 

needed to obtain or retain certification. 

Also in response to AAR’s and 

ASLRRA’s comment, FRA believes it is 

helpful to recall that, in the conductor 

rule, the minimum of 12-months’ 

service working as a train service 

employee may be at any time during 

that person’s career.16 Likewise, in the 

engineer context, FRA reads the 12- 

month experience requirement in the 

class of service for which the person 

will instruct to pertain also to the 

collective number of months over the 

person’s career, and not just the 

previous 12 months. 

Medical Examiner 

FRA is revising the definition of 

‘‘medical examiner’’ to be the same as 

the definition of ‘‘medical examiner’’ in 

part 242 by removing the portion of the 

definition stating that the medical 

examiner owes ‘‘a duty to the railroad.’’ 

Instead, consistent with part 242, FRA 

is amending the definition to state ‘‘the 

medical examiner owes a duty to make 

an honest and fully informed evaluation 

of the condition of an employee.’’ 

Newly Hired Employee 

As discussed in Section II.C, above, 

FRA is deleting the definition of ‘‘newly 

hired employee’’ because that term is 

not used (or necessary) in part 240. 

Qualified 

As proposed in the NPRM, FRA is 

revising the definition of ‘‘qualified’’ to 

be the same as the definition of 

‘‘qualified’’ in part 242. Under the 

proposed definition, a qualified person 

is a person who has successfully 

completed all instruction, training, and 

examination programs required by the 

employer and the applicable parts of 

this chapter, and therefore may 

reasonably be expected to be proficient 

on all safety-related tasks the person is 

assigned to perform. The existing 

definition in part 240 focuses on an 

individual’s knowledge, whereas the 

definition as proposed in the NPRM and 

adopted in this final rule focuses not 

only on the individual’s knowledge 

through completion of training plan 

requirements but also on whether the 

individual could reasonably be expected 

to be proficient at performing all 

assigned tasks. The update to the 

definition of ‘‘qualified’’ is to ensure a 

railroad’s instruction and training 

program not only provides knowledge of 

how to perform a task, but also 

adequately prepares an individual to 

perform the task proficiently. For 

example, a qualified locomotive 

engineer would need to be taught the 

railroad’s rules and procedures for 

performing different types of brake tests. 

An individual who receives only 

classroom training would be expected to 

have the requisite knowledge to perform 

the brake tests, and an individual who 

is provided OJT or hands-on training 

would be expected to perform the tasks 

on the brake test proficiently. Without 

both instruction and hands-on practice, 

81296 Federal Register / Vol. 85, No. 241 / Tuesday, December 15, 2020 / Rules and Regulations 

the person could not be expected to be 

qualified to perform brake tests. 

Labor Commenters questioned 

whether FRA’s proposed definition of 

‘‘qualified’’ would have a negative 

impact by lowering the standard for 

what it means to be qualified. Labor 

Commenters suggested that FRA’s 

proposed definition is subject to 

multiple interpretations, including one 

that would mean the railroad is no 

longer required to provide instruction, 

training, and examination so that the 

candidate for qualification has a 

foundation from which qualification— 

actual knowledge and proficiency—can 

be demonstrated. Labor Commenters 

proposed an alternative definition for 

‘‘qualified,’’ asking that FRA consider it 

to mean ‘‘a person who has 

demonstrated actual knowledge and 

proficiency of the subject on which the 

person is qualified by successfully 

completing all instruction, training and 

examination programs required by the 

railroad and the applicable parts of this 

chapter.’’ 

FRA concluded that Labor 

Commenters’ alternative definition of 

‘‘qualified’’ would stray from this rule’s 

purpose of conforming part 240 with 

part 242, and FRA does not view the 

conforming definition as lowering the 

standard of the meaning of 

‘‘qualification.’’ Although FRA’s change 

to the definition focuses on proficiency 

in safety-related tasks over knowledge, 

the analysis in determining whether 

someone is qualified is the same. If the 

person passes all required training and 

examination, then the presumption is 

the person has the knowledge necessary 

to complete any necessary tasks 

proficiently. If a person is asked to 

perform a task that exceeds the training 

provided, the person could not be 

expected to have the required 

knowledge and the person would 

therefore not be qualified to perform 

that task safely. For these reasons, FRA 

is adopting the proposed definition 

without change from the NPRM. 

Section 240.103 Approval of Design of 

Individual Railroad Programs by FRA 

FRA is making three changes to this 

section, which will make the filing and 

FRA approval process for individual 

railroads’ part 240 programs the same as 

for conductor certification programs 

under § 242.103. First, FRA is revising 

paragraph (a) to clarify that the primary 

method for a railroad to submit its 

certification program is by email to 

FRAOPCERTPROG@dot.gov. Previously, 

FRA would wait until a railroad 

contacted FRA and asked to submit its 

program electronically. It is more 

efficient to publish this FRA email 

address and encourage electronic filing. 

FRA expects that there are few railroads 

that do not have sufficient internet 

access to submit a certification program 

by email, but is leaving the mailing 

option open for those smaller entities 

whose internet service may still be 

unreliable. The revisions were not 

proposed in the NPRM, but they address 

an issue of agency policy or procedure 

previously addressed in appendix B to 

part 240. FRA expects that by moving 

this information from an appendix to 

this section, railroads will find the 

information more easily and will spend 

less time figuring out the submission 

process. 

Second, FRA is revising paragraphs 

(b) and (c) of this section to require 

railroads to provide a copy of their 

program submissions, resubmissions, 

and material modifications to the 

president of each labor organization that 

represents the railroad’s certified 

locomotive engineers. The revision will 

also allow any designated representative 

of certified locomotive engineers to 

submit comments to FRA on the 

railroad’s submission within 45 days of 

the railroad’s filing with FRA. Although 

FRA, not the commenters, will decide 

whether to approve a railroad’s 

submission, FRA expects comments will 

be useful in determining whether the 

railroad’s program conforms to the 

criteria in this final rule. 

The final revisions to paragraphs (b) 

and (c) of this section are different from 

the proposed rule. For instance, in the 

NPRM, FRA used the term ‘‘serve or 

service,’’ which is defined in this part 

and refers to the legal issue of service of 

process during adjudication. Because 

the exchange of certification programs 

and comments to those certification 

programs are not adjudicatory matters, 

FRA is revising these requirements to 

reflect that each railroad and labor 

organization president must provide, 

not serve, its documents to each other, 

and affirm to FRA that it has done so, 

without the need to abide by strict legal 

rules for service of process. FRA is not 

specifying the methods that a railroad or 

president of a labor organization must 

use to provide documents to the other 

party, as FRA expects each party to use 

those methods it uses in the normal 

course of business with each other. 

Also, FRA is adding an email address to 

make it easier for parties to submit 

programs or comments to programs. 

Further, although the NPRM proposed 

that each railroad affirm that it provided 

a copy of its program to the president 

of each labor organization that 

represents the railroad’s employees 

subject to this part, the labor 

organization presidents would have 

been required to certify that they sent 

their comments to the railroad; thus, for 

consistency, FRA is requiring that both 

parties must affirm that they provided 

the other party with a copy of the 

documents they submit to FRA under 

this requirement. Finally, FRA is 

making technical amendments to 

§ 242.103 so that the locomotive 

engineer and conductor certification 

rules use the same language. 

Third, in paragraph (h) (which revises 

former paragraph (e) and is the same as 

paragraph (i) of § 242.103), FRA is 

requiring a railroad intending to make 

material modifications to its FRAapproved program to submit to FRA a 

description of its intended material 

modification 60 days before 

implementing the modification (as 

opposed to the prior requirement to do 

so 30 days in advance). This revision 

will allow time for the labor 

organizations to comment on the 

proposed modification(s) under 

paragraph (c) of this section and for FRA 

to consider any comments from the 

relevant labor organizations. 

In response to the proposed revisions 

to this section, Labor Commenters 

requested that FRA amend the final rule 

to clarify that a representative labor 

organization has the right to comment 

on the entirety of a railroad’s program— 

even when a particular filing is a 

resubmission or a material 

modification—and that such comments 

will be considered by FRA. FRA is 

declining to amend the requirement to 

make this clarification as doing so 

would not conform the requirement to 

the parallel requirement in part 242. 

However, despite the lack of an explicit 

option to comment on the entirety of a 

railroad’s program, FRA invites any 

person, including any labor 

organization, to inform FRA’s Chief 

Safety Officer of any safety concern 

regarding a railroad’s certification 

program at any time. 

Section 240.107 Types of Service 

The only change to this section is to 

the heading. The section heading is 

changed from ‘‘Criteria for designation 

of classes of service,’’ to the same 

section heading in its part 242 

counterpart. 

FRA is not making several other 

changes that were proposed to this 

section because, as explained in the 

discussion of specific comments and 

conclusions, above, FRA is not adding 

additional types of service that identify 

remote control operators. See Section 

II.A. 

Federal Register / Vol. 85, No. 241 / Tuesday, December 15, 2020 / Rules and Regulations 81297 

17See 84 FR at 20479–80. 18See 84 FR at 20480–81. 

19 74 FR 68173 (Dec. 23, 2009). 

20See 84 FR at 20481–82. 

21 In the NPRM, FRA erroneously cited to 

paragraph (c) instead of (d) in the Section-bySection Analysis, although the regulatory text of the 

proposed rule contained the correct paragraph cite. 

84 FR at 20482, 20509. 

22See 84 FR at 20482. 

23See the discussion of 49 CFR 242.117(i)(3) in 

the Section-by-Section Analysis, below. 

Section 240.111 Individual’s Duty To 

Furnish Data on Prior Safety Conduct as 

Motor Vehicle Operator 

FRA is amending several 

requirements in § 240.111 to clarify that, 

for purposes of motor vehicle driving 

record checks and the reporting of 

certain motor vehicle incidents, the 

requirements apply equally to a person 

with a foreign-issued driver license as to 

a person with a U.S.-issued driver 

license. The final rule differs from the 

proposed version as the proposal 

contained an incorrect reference in 

§ 240.111(h) to § 240.115(b)(1) and (2) 

when the reference should have read 

§ 240.115(h)(1) and (2). No comments 

were received recommending specific 

changes to this section and the final rule 

is otherwise identical to the proposed 

rule; thus, the analysis provided in the 

NPRM is applicable.17

Section 240.115 Criteria for 

Consideration of Prior Safety Conduct 

as a Motor Vehicle Operator 

This section provides the 

requirements and procedures a railroad 

must follow when evaluating an 

engineer’s or engineer candidate’s prior 

conduct as a motor vehicle operator. 

FRA is revising this section in its 

entirety to be consistent with 

paragraphs (a) through (f), and (n) and 

(o) of § 242.111. The final rule is 

identical to the proposed rule; thus, the 

analysis provided in the NPRM is 

applicable.18

Labor Commenters requested 

alternative language to proposed 

paragraphs (c) and (d) of this section. As 

proposed, paragraphs (c) and (d) would 

provide a 60-day grace period for 

obtaining motor vehicle operator 

records, if the records were timely 

requested. The labor organizations 

expressed concern that the proposed 

language could lead to an unintended 

consequence whereby a railroad could 

create a temporary locomotive engineer 

workforce, with each person 

temporarily certified for a 60-day 

period. Although theoretically possible, 

FRA does not share the labor 

organizations’ concerns that the grace 

period provided for obtaining motor 

vehicle operator records will encourage 

any railroad to create a temporary 

engineer workforce. The proposed 

amendment, which FRA is adopting in 

this final rule, will apply to a person 

who has met all the other qualifications 

for certification but is solely missing the 

motor vehicle records check 

requirement. The proposed and final 

rule amendments to this section do not 

revise the determinations required as a 

prerequisite to certification or 

recertification in § 240.203, including 

the knowledge testing, performance 

skills testing, and vision and hearing 

acuity evaluation requirements. Thus, to 

take advantage of the flexibility FRA 

proposed and is making final in this 

rulemaking, each person that a railroad 

would want to certify temporarily must 

already have fulfilled all the 

qualification requirements, except that 

the railroad has not yet obtained the 

motor vehicle records to ensure the 

person did not incur any alcohol- or 

drug-related convictions that might 

indicate the person has an active 

substance abuse disorder. A railroad 

that invests the resources necessary to 

certify a person should want to 

complete the process by obtaining the 

motor vehicle operator records, which 

would allow the railroad to certify the 

person for up to three years, not 

temporarily certify the person for 60 

days. Further, paragraph (e) prevents a 

railroad from perpetually certifying or 

recertifying the same person without 

obtaining the required motor vehicle 

driving records and conducting an 

evaluation of those records. Thus, to 

create a temporary certification 

workforce, a railroad would need to 

employ an available group of people 

who are qualified for certification 

except that they are each missing motor 

vehicle operator records. The theoretical 

situation is too remote to consider it a 

reason not to conform the two 

certification rules in this manner. 

Section 240.117 Criteria for 

Consideration of Operating Rules 

Compliance Data 

The requirements in this section 

provide the criteria and procedures a 

railroad must follow to evaluate an 

engineer’s or engineer candidate’s 

compliance with specific types of 

operating rules and practices. FRA is 

revising this section to improve clarity 

and conform the section to the 

corresponding provisions of the 

conductor certification rule in 

§ 242.403. No comments were received 

recommending specific changes to this 

section and the final rule is identical to 

the proposed rule other than for an edit 

to paragraph (d) of this section to 

remove introductory text, including the 

phrase ‘‘[e]xcept as provided for in 

paragraph (i) of this section.’’ FRA is 

removing as unnecessary introductory 

text from corresponding § 242.403(d) in 

the conductor certification rule, and 

FRA removed paragraph (i) from this 

section through a rulemaking that was 

effective February 22, 2010.19 For these 

reasons, the analysis provided in the 

NPRM is applicable.20

Section 240.121 Criteria for Vision and 

Hearing Acuity Data 

This section contains the 

requirements for visual and hearing 

acuity railroads must incorporate into 

their locomotive engineer certification 

programs. FRA is amending paragraphs 

(a) and (d) 21 of this section to conform 

to § 242.117(a) and (i). These revisions 

will update part 240’s testing 

procedures and standards for the 

hearing acuity requirements. No 

comments were received recommending 

specific changes to this section and the 

final rule is identical to the proposed 

rule except for the revision to paragraph 

(d)(3), explained below; thus, the 

analysis provided in the NPRM is 

applicable.22

FRA is changing proposed paragraph 

(d)(3) to eliminate the reference to the 

American National Standards Institute 

(ANSI) 2004 standard for calibration of 

audiometric devices. Existing paragraph 

(d) of this section references the ANSI 

1969 calibration standard for 

audiometric devices (ANSI S3.6–1969, 

‘‘Specifications for Audiometers’’). The 

companion provision in part 242, 

however, cites the 2004 version of 

ANSI’s calibration standard.23

Accordingly, in the NPRM, FRA 

proposed to update the ANSI standard 

referenced in paragraph (d) to the 2004 

standard to conform to part 242. 

However, ANSI revised the standard 

in 2018 and FRA expects ANSI will 

continue to revise the standard in the 

future. The audiometers covered by the 

ANSI standard are devices designed for 

use in determining the hearing 

threshold level of an individual in 

comparison with a selected hearing 

threshold level for reference. The ANSI 

standard provides specifications and 

tolerances for pure tone, speech, and 

masking signals and describes the 

minimum test capabilities of different 

types of audiometers. 

To make clear that audiometers are 

not subject to a single industry standard, 

versions of which may change with 

time, FRA is amending this paragraph to 

remove the specific citation to the 1969 

version of ANSI S3.6 and not adopt the 

81298 Federal Register / Vol. 85, No. 241 / Tuesday, December 15, 2020 / Rules and Regulations 

24 84 FR at 20482–83. 

25Contractors and Class II and III railroads that 

are not intercity or commuter passenger railroads 

with 400,000 total employee work hours annually 

or more are required to submit their Part 243 

programs by May 1, 2021. 85 FR 10 (Jan. 2, 2020). 

26See 84 FR at 20482–83. 

27See 84 FR at 20487–89. 28See 84 FR at 20490–94. 

proposed specific citation to the 2004 

ANSI standard. Instead, this paragraph 

now expressly provides for use of a 

formal industry standard, such as ANSI 

S3.6. This change will allow a licensed 

or certified audiologist, or a technician 

responsible to that licensed or certified 

audiologist, the flexibility to use an 

audiometer calibrated to a formal 

industry standard, whether the standard 

is an older version of ANSI S3.6, a 

newer version of the standard, or a 

similar industry standard issued by an 

organization other than ANSI. 

Separately, FRA is amending 

paragraph (b) to remove an unnecessary 

heading, ‘‘[f]itness requirement.’’ FRA 

discovered the technical error in 

preparing the final rule, and this 

correction makes the locomotive 

engineer rule consistent with an 

identical change to the conductor rule. 

Section 240.123 Training 

This section requires railroads to 

provide their certified locomotive 

engineers initial and continuing 

education to ensure each engineer 

maintains the necessary knowledge, 

skill, and ability to carry out the duties 

of a locomotive engineer. FRA is 

revising this section’s heading to be the 

same as that for § 242.119 (Training). 

FRA also is amending this section’s text 

to be similar to § 242.119’s, and to relate 

the training and education requirements 

of part 240 to the requirements of 49 

CFR part 243 (part 243) for the training, 

qualification, and oversight of safetyrelated railroad employees. 

Railroad Commenters objected to the 

proposed language amending 

§ 240.123(c), providing that initial 

training of an untrained person must 

comply with § 243.101 of this chapter. 

Railroad Commenters stated that such a 

revision would require a railroad to 

resubmit its part 243 program to FRA 

even though FRA did not identify any 

specific deficiencies with existing 

railroad training plans for locomotive 

engineers. FRA addressed this issue in 

the NPRM and the analysis in the 

proposed rule provides additional 

background not repeated in the 

discussion below.24

In summary, FRA is adding the crossreference to part 243 to conform the rule 

to the parallel part 242 requirement and 

believes the cross-reference is helpful as 

a reminder of the requirement in part 

243. Because there is an existing 

requirement, FRA is not creating a new 

burden. Locomotive engineer and 

conductor training programs have been, 

and continue to be, sufficiently robust to 

meet the part 243 standards. These 

certification training programs are 

already required to be submitted to FRA 

for review and approval under parts 240 

and 242, and thus railroads are exempt 

from submitting them under part 243, 

unless a railroad’s plan did not provide 

sufficient detail regarding the OJT 

components (§ 243.103(b)). When that is 

the case, the railroad is only required to 

supplement the certification training 

program with the updated OJT portion 

as a material modification, as required 

in §§ 240.103(e) and 242.103(i). 

FRA expects each railroad to evaluate 

the OJT components in its part 240 

training program and supplement its 

certification program only if necessary. 

The deadlines for implementing the 

modifications are governed by part 243. 

Please note that FRA amended the 

implementation deadlines for 

compliance with § 243.101; 

consequently, railroads and other 

employers that employ locomotive 

engineers were required to modify 

locomotive engineer OJT programs 

beginning January 1, 2020, depending 

on the size of the railroad operation.25

No additional comments were 

received recommending specific 

changes to this section and the final rule 

is identical to the proposed rule; thus, 

the analysis provided in the NPRM is 

applicable.26

Section 240.307 Revocation of 

Certification 

This section provides the procedures 

a railroad must follow to revoke a 

certified locomotive engineer’s 

certification. FRA is amending this 

section to clarify its intent and make it 

the same as § 242.407, which addresses 

the revocation of conductor 

certifications. As discussed in Section 

II.F, above, Labor Commenters 

recommended specific changes to 

paragraph (c)(11) of this section. As 

noted in Section II.F, FRA has 

determined that those suggestions are 

beyond the scope of this rulemaking. No 

other comments were received 

recommending specific changes to this 

section and the final rule is identical to 

the proposed rule; thus, the analysis 

provided in the NPRM is applicable.27

Section 240.308 Multiple Certifications 

Proposed paragraph (d) contained an 

unnecessary heading, ‘‘[p]assenger 

railroad operations,’’ based on its 

corresponding provision in the 

conductor certification rule, 

§ 242.213(e). FRA discovered the 

technical error in preparing the final 

rule and is correcting § 242.213(e). 

Accordingly, FRA is not adopting the 

heading proposed in paragraph (d) of 

this section for consistency with the 

conductor rule, and is instead making 

clear in the rule text that this paragraph 

applies to passenger train operations. 

Subpart E—Dispute Resolution 

Procedures 

Subpart E details the opportunities 

and procedures for an individual to 

appeal a decision by a railroad to deny 

certification or recertification or to 

revoke an individual’s locomotive 

engineer certification. In the NPRM, 

FRA proposed some changes to the 

appeals process contained in §§ 240.401 

through 240.411. The comments 

received recommending specific 

changes to this subpart are addressed in 

section II.A, above, or in the Section-BySection analysis, below. However, the 

final rule is identical to the proposed 

rule; thus, the analysis provided in the 

NPRM is applicable.28

Section 240.401 Review Board 

Established 

This section provides that an 

individual who is denied certification or 

recertification or has his or her engineer 

certification revoked, and believes that 

a railroad incorrectly determined that he 

or she failed to meet the ‘‘qualification’’ 

requirements of part 240, may petition 

FRA to review the railroad’s decision. 

FRA is amending this section to 

delegate initial responsibility for 

adjudicating denial of locomotive 

engineer certification or recertification 

and revocation disputes to FRA’s OCRB. 

Accordingly, the Locomotive Engineer 

Review Board (LERB), which previously 

had this responsibility, will merge into 

the OCRB, which also has the 

responsibility for adjudicating denial of 

conductor certification or recertification 

and revocation disputes. 

Labor Commenters requested that 

FRA ‘‘provide confirmation that (1) the 

Review Board will be comprised of an 

odd number of senior FRA staff 

members with pertinent experience, and 

(2) the number of Review Board 

members will be provided by FRA 

order.’’ Labor Commenters made this 

request while acknowledging FRA’s 

position, as stated in the NPRM, that the 

number of board members is an issue of 

internal agency organization, procedure, 

or practice that is normally left for an 

agency to decide. Such internal agency 

decisions are authorized even if made 

Federal Register / Vol. 85, No. 241 / Tuesday, December 15, 2020 / Rules and Regulations 81299 

29See Section II.F. 

without notice to the public. See 5 

U.S.C. 553(b)(3)(A). Accordingly, FRA 

declines to adopt the Labor 

Commenters’ specific suggestions in this 

final rule. The revisions to § 240.401 

make the section the same as the 

corresponding section in part 242 

(§ 242.501). The revisions do not, 

however, change FRA’s right to use any 

number of FRA employees as OCRB 

members, in coordination with Agency 

resources and priorities. 

Section 240.403 Petition Requirements 

This section provides the 

requirements for obtaining FRA review 

of a railroad’s decision to deny 

certification, deny recertification, or 

revoke an individual’s locomotive 

engineer certification. FRA is revising 

this section to make it the same as the 

corresponding provision in part 242 

(§ 242.503). The final rule will provide 

a single process for aggrieved parties to 

submit FRA locomotive engineer 

petitions under part 240 and conductor 

certification petitions under part 242. 

FRA is revising paragraph (b) so that 

a person filing a petition under part 240 

will need to file the same information 

and documentation that is required 

under part 242. The final rule is 

different than the NPRM in that FRA 

did not propose revisions to paragraph 

(b)(5) or (6). Existing paragraph (b)(5) 

requires that a petitioner provide a copy 

of all written documents in the 

petitioner’s possession that document 

the railroad’s decision that is being 

challenged. FRA is revising paragraph 

(b)(5) to add that a petitioner is required 

to provide a copy of all written 

documents that are reasonably available 

to the petitioner that document the 

railroad’s decision. Without a complete 

record, the OCRB may not be able to 

determine whether a railroad’s decision 

was improper. FRA wants petitioners to 

request a complete copy of the 

documents the railroad used in making 

its decision and, by revising this 

requirement, FRA is requiring 

petitioners to request a copy of any 

documents from the investigative 

hearing or railroad’s denial decision that 

were not provided to them voluntarily. 

However, FRA recognizes that a 

petitioner cannot provide the OCRB 

with documents that the railroad refuses 

to provide. In that case, when a 

petitioner requests documents from a 

railroad and is denied those documents, 

the petitioner should explain that 

situation in the petition and provide the 

Board with any corroborating 

documents to substantiate that claim. 

Paragraph (b)(6) is the same, existing 

requirement, but an ‘‘and’’ was added to 

the end because it is no longer the last 

item in the list of paragraph (b)’s 

petition requirements. 

FRA is revising paragraph (c) to 

require that a petition for review of a 

railroad’s revocation or denial decision 

be filed with FRA within 120 days of 

the date the railroad serves the decision 

on the petitioner. This revision will 

make this provision of part 240 the same 

as the corresponding provision in part 

242 (see § 242.503(c)). The labor 

organizations’ comment requests that 

FRA not reduce the time limit for 

petitioning FRA on a railroad’s denial of 

certification or recertification from 180 

days to 120 days. The labor 

organizations’ comment contends that 

the longer period is appropriate because 

it is often difficult to obtain a complete 

record. FRA does not agree with this 

comment for several reasons. FRA 

believes that 120 days is itself a 

significant period for an aggrieved 

locomotive engineer or locomotive 

engineer candidate to consider whether 

to request FRA review and submit 

necessary supporting materials. Part 242 

has always imposed this 120-day time 

limit and FRA has not previously heard 

that the time limit is too short. To the 

extent a party finds it difficult to obtain 

the decision record from the railroad, 

FRA offers that the party may file its 

petition with any documents it has and 

add a description in the petition of the 

missing documents. FRA expects each 

railroad to submit any missing evidence 

it relied on in making its denial 

decision, even if the railroad chooses 

not to submit an argument in response 

to the petition. By making FRA aware of 

missing documents, the OCRB can 

follow up as appropriate. Further, 

although the regulatory text plainly 

describes the different deadlines for 

petitioning FRA to review a railroad’s 

decision to deny certification or 

recertification and to review a railroad’s 

decision to revoke certification, some 

locomotive engineers and their 

representatives have claimed the 

different deadlines have confused them 

into filing a late petition, believing the 

deadline to be within 180 days of a 

railroad’s revocation decision instead of 

the required 120 days. The final rule 

amendment will eliminate any such 

confusion. 

Section 240.405 Processing 

Certification Review Petitions 

FRA is revising this section, which 

details how petitions for review will be 

handled by FRA, to make it the same as 

the corresponding provision in part 242 

(§ 242.505). FRA received comments on 

this section, some of which are 

addressed in the discussion of specific 

comments and conclusions, above, in 

the section addressing issues beyond the 

scope of this rulemaking.29 Two 

comments and one additional revision 

are addressed below. 

FRA received a comment from AAR 

and ASLRRA objecting to proposed 

§ 240.405(d)(2) requiring service of a 

copy of a railroad’s response to an 

OCRB petition on petitioner’s 

representative, if any. The AAR and 

ASLRRA suggest that this revision 

would establish a new burden because 

the change would require railroads to 

track down and provide service to the 

person’s representative at the railroad’s 

on-the-property hearing even if that is 

not the same person who assisted the 

individual in filing an OCRB petition. 

FRA believes the commenters 

misunderstood the proposal. FRA never 

intended the proposal to be construed as 

requiring service on a representative 

that no longer appears to be 

representing the person. FRA’s reference 

to service on petitioner’s representative, 

if any, is a reference to any 

representative identified in the petition. 

FRA is aware that some petitioners file 

a petition without identifying a 

representative in the petition. When that 

happens, this final rule will only require 

the railroad to serve the petitioner with 

a copy of the railroad’s response. 

FRA received a comment from labor 

organizations objecting to proposed 

§ 240.405(l) because, unlike the rule for 

the LERB, the proposal did not include 

the requirement that every OCRB 

decision contain findings of fact on 

which the decision is based. In the 

NPRM, FRA explained that removal of 

the requirement is necessary because 

issuing findings of fact may not be 

appropriate for, or relevant to, some 

decisions. The revision also conforms to 

the OCRB’s requirement in § 242.505(l). 

FRA notes that the labor organizations’ 

comment recommends amending the 

regulation by providing flexibility to the 

OCRB to exclude findings of fact ‘‘where 

such findings are not appropriate or 

relevant,’’ which also seems to result in 

the same outcome. For these reasons, 

FRA is issuing the final rule as 

proposed. 

FRA is revising proposed § 240.405(i) 

to clarify the OCRB’s standard of review 

for procedural issues. The final rule will 

require that when considering 

procedural issues, the Board will 

determine whether the petitioner 

suffered substantial harm that was 

caused by the failure to adhere to the 

dictated procedures for making the 

railroad’s decision. The restated 

standard uses active voice and removes 

the passive voice language that similarly 

81300 Federal Register / Vol. 85, No. 241 / Tuesday, December 15, 2020 / Rules and Regulations 

30 84 FR at 20493–94. 

31 84 FR 23730. 

32 5 U.S.C. 553(b)(3)(A). 

33See 84 FR at 20494. 34 84 FR at 20518. 

explained that the Board will determine 

whether substantial harm was caused 

the petitioner by the railroad’s failure to 

adhere to the dictated procedures. 

Although the Board will apply the 

revised standard in the same way as 

before, the final rule is expected to help 

the parties better understand the 

standard. 

Section 240.411 Appeals 

FRA is amending paragraphs (a) and 

(f) so that the instructions for appealing 

to the Administrator are the same in 

both parts 240 and 242 (§ 242.511). In 

the NPRM, FRA proposed to revise this 

section so that an aggrieved party 

requesting an appeal to the 

Administrator would file a copy of the 

appeal with the Administrator in 

addition to filing a copy in the docket.30

Although no comments were received 

regarding this section, FRA is revising 

the filing requirements so that an 

aggrieved party will only need to file 

one copy of an appeal with FRA, instead 

of the proposed two copies. With the 

elimination of paper dockets, it is much 

easier for FRA to know when a 

document is added to an existing 

docket. Parties that are filing an appeal, 

whether under paragraph (a) or (f), 

would already have a docket number 

and would be expected to know how to 

file a document, as they would have 

already filed at least once, and probably 

several times, in that same docket kept 

electronically at www.regulations.gov. 

Rather than revising this section to 

require a party to file with FRA in two 

different places, FRA is amending both 

parts 240 and 242 so that an aggrieved 

party needs to file its appeal only in the 

electronic, public docket. 

Appendix A 

In the NPRM, FRA stated that it 

would likely need to make 

corresponding changes in the final rule 

to appendix A to part 240 (appendix A), 

which then contained the schedule of 

civil penalties for violations of part 240. 

Meanwhile, as published on May 23, 

2019, FRA removed and reserved 

appendix A, as FRA moved all its 

schedules of civil penalties from the 

CFR to FRA’s website.31 Thus, there is 

no need to amend appendix A and it 

will remain reserved. 

Nonetheless, FRA will modify the 

schedule of civil penalties on its website 

at www.railroads.dot.gov as necessary to 

reflect the requirements of the final rule. 

Because such penalty schedules are 

statements of agency policy, notice and 

comment are not required before their 

issuance.32 In addition, FRA invited but 

did not receive any comments on the 

civil penalties for violations of part 240. 

Appendix B 

As explained in the NPRM, appendix 

B to part 240 (appendix B) provides 

both the organizational requirements 

and a narrative description of the 

submission required under §§ 240.101 

and 240.103. FRA is updating job titles 

and clarifying requirements in appendix 

B. In the NPRM, FRA proposed revising 

appendix B to provide railroads with 

the option to file their part 240 program 

submissions electronically by adopting 

language from part 242’s appendix B. As 

a matter of agency policy or procedure, 

FRA decided that the certification 

program submission process could be 

further streamlined. FRA accomplished 

this streamlining by adding an email 

address for direct electronic submission 

of a railroad’s engineer certification 

program. There is no secure website for 

uploading a railroad submission, so 

FRA eliminated the proposed language 

in the appendix requesting information 

to set up a secure account for such a 

submission. Email is the primary 

method of railroad submission, and the 

publication of FRA’s email address for 

such submission should make the 

submission process easier for each 

railroad that must submit. Although 

FRA is not making similar conforming 

changes to part 242’s appendix B, FRA 

revised § 242.103 to provide the same 

email address and submission 

information for conductor certification 

programs as for locomotive engineer 

certification programs in revised 

§ 240.103. Therefore, under both rules, 

railroad submission of certification 

programs should primarily be 

completed by email, without regard to 

the size of the paper or the need to mail 

FRA contact information to arrange for 

electronic submission. 

Two comments recommending 

specific changes to appendix B are 

discussed below. FRA is revising 

appendix B based on one of the 

comments. Otherwise, the analysis 

provided in the NPRM is applicable.33

FRA received a comment from AAR 

and ASLRRA objecting to the proposed 

revision requiring a railroad to comply 

with requirements for training 

organizations or learning institutions in 

§ 243.111 of this chapter if the railroad 

were to train another railroad’s 

employees. The comment refers 

specifically to the proposed language for 

amending appendix B, ‘‘Section 5 of the 

Submission: Training, Testing, and 

Evaluating Persons Not Previously 

Certified.’’ 34 In appendix B, Section 5, 

FRA proposed that a railroad that plans 

to accept responsibility for the initial 

training of locomotive engineers may 

authorize another railroad or a nonrailroad entity to perform the actual 

training effort if the other entity 

complies with the requirements for 

training organizations and learning 

institutions in § 243.111 of this chapter. 

The comment suggests that many small 

railroads work together when training 

their employees and may, for example, 

allow one railroad to conduct an 

operating rules class for the employees 

of multiple railroads. FRA is also aware 

that some railroads, especially Class I 

railroads, have robust training programs 

administered at specific training centers 

that could potentially accommodate 

appropriate training for employees of 

other railroads. The railroad 

associations indicate the revision would 

result in a new burden that could create 

inefficiencies and costs, and thereby 

adversely affect safety. After considering 

the comment, FRA has removed the 

reference equating a railroad that is not 

training its own employees with a 

training organization or learning 

institution. FRA believes that while 

these entities may share some common 

features, a railroad that has an approved 

training program is not a training 

organization or learning institution, and 

therefore does not have an obligation to 

comply with 49 CFR 243.111. FRA will 

nonetheless continue to monitor the 

practice of unaffiliated railroads 

providing training for any other 

railroad’s employees, to help ensure the 

appropriateness of such training. 

FRA received a comment from the 

labor organizations requesting that FRA 

revise appendix B to underscore that a 

railroad’s certification program should 

explain, in detail, how its OJT program 

ensures training on the manual 

dexterity, cognitive ability, and humanmachine interface skills necessary to be 

considered qualified. Appendix B, 

‘‘Section 3 of the Submission: Training 

Persons Previously Certified,’’ mentions 

OJT in a list of the type of formal 

training necessary for effective 

evaluation of a railroad’s training 

program. FRA expects the program to 

include the subject matter covered, the 

frequency and duration of the training 

sessions, and the type of formal training 

employed, as well as specify which 

aspects of the program are voluntary or 

mandatory. Testing each certified 

person or candidate is required to 

determine whether the person is 

qualified to do the work, and passing 

Federal Register / Vol. 85, No. 241 / Tuesday, December 15, 2020 / Rules and Regulations 81301 

such training is proof that the person’s 

training is effective. FRA does not 

believe a person would be able to pass 

operational monitoring or skill 

performance testing without having all 

the skills the labor organizations 

mention in their comment as necessary. 

In addition, FRA believes that manual 

dexterity and cognitive ability may be 

difficult to measure, train, or test; thus, 

adding them as necessary requirements 

could be correspondingly difficult for 

railroads to implement. For these 

reasons, FRA is not revising appendix B 

in response to this comment. 

Part 242 

Section 242.7 Definitions 

FRA is amending the definition of 

‘‘main track’’ after discovering a 

technical error while addressing a 

comment on the text in an identical 

provision in part 240. FRA recognizes 

that it did not explain the inclusion of 

PTC as a method of operation in the part 

242 rulemaking notices. Upon further 

review, FRA agrees with Railroad 

Commenters that PTC is not a method 

of operation but rather is a technology 

that helps enforce compliance with a 

railroad’s method(s) governing train 

operations. For this reason, FRA is 

removing the reference to PTC, as 

defined in 49 CFR part 236, to correct 

the technical error. 

FRA is amending the definition of 

‘‘Substance abuse disorder’’ so that the 

locomotive engineer and conductor 

certification rules use the same 

language. In the NPRM, FRA proposed 

that part 240 conform to the definition 

in part 242. After the NPRM’s 

publication, FRA decided that the 

definition in part 242 is improved by 

moving the word ‘‘successfully’’ in both 

places it is found in the definition 

without changing its meaning. 

Section 242.103 Approval of Design of 

Individual Railroad Programs by FRA 

FRA is making technical amendments 

to § 242.103 so that the locomotive 

engineer and conductor certification 

rules use the same language. For 

example, FRA is revising paragraph (b) 

so that, like § 240.103(a), both rules 

reference that the primary method for a 

railroad to submit its certification 

programs is by email to 

FRAOPCERTPROG@dot.gov. FRA is also 

clarifying that mailing will remain an 

option, although FRA expects that 

option will be exercised only by those 

smaller railroads that do not have 

internet access suitable for emailing the 

program. 

The NPRM proposed certain 

requirements found in this section for 

adoption in § 240.103. However, as FRA 

described above in the analysis for 

§ 240.103(b) and (c), some minor 

changes were made to improve the 

clarity of the proposed requirements to 

the locomotive engineer rule and FRA is 

making technical amendments to the 

conductor rule so the two certification 

rules contain the same requirements. 

For instance, FRA is revising paragraphs 

(c) and (d) of this section to require 

railroads to provide a copy of their 

program submissions, resubmissions, 

and material modifications to the 

president of each labor organization that 

represents the railroad’s certified 

conductors, rather than serve a copy. 

FRA is finalizing this change to part 242 

because the term ‘‘serve or service,’’ 

which is defined in this part, refers to 

the legal issue of service of process 

during adjudication and the exchange of 

certification programs and comments to 

those certification programs are not 

adjudicatory matters. Thus, FRA is 

revising these requirements to reflect 

that each railroad and labor organization 

president must provide, not serve, its 

documents to each other, and affirm to 

FRA that it has done so, without the 

need to abide by strict legal rules for 

service of process. FRA is not specifying 

the methods that a railroad or president 

of a labor organization must use to 

provide documents to the other party as 

FRA expects each party to use those 

methods it uses in the normal course of 

business with each other. Also, FRA is 

adding an email address to make it 

easier for parties to submit programs or 

comments to programs. Finally, 

although part 242 required that each 

railroad affirm that it provided a copy 

of its program to the president of each 

labor organization that represents the 

railroad’s employees subject to this part, 

the labor organization presidents were 

required to certify that they sent their 

comment to the railroad; hence, for 

consistency, FRA is requiring that both 

parties affirm they provided the other 

party with a copy of the documents they 

submit to FRA under this requirement. 

Section 242.117 Vision and Hearing 

Acuity 

FRA is amending paragraph (g) to 

remove an unnecessary heading, 

‘‘[f]itness requirement.’’ FRA discovered 

the technical error in preparing the final 

rule, and this correction makes the 

conductor rule consistent with an 

identical change to the locomotive 

engineer rule. 

FRA is amending paragraph (h)(3) to 

correct the reference from appendix E to 

appendix D to this part. FRA discovered 

the technical error in preparing the final 

rule, and this correction makes the 

reference to appendix D consistent with 

the other references to appendix D in 

this section. 

FRA is amending paragraph (i)(3) for 

consistency with corresponding changes 

to 49 CFR 240.121(d). Section 

242.117(i)(3) referenced the 2004 

version of the ANSI calibration standard 

for audiometric devices (ANSI S3.6– 

2004, ‘‘Specifications for Audiometers’’) 

whereas 49 CFR 240.121(d) cited the 

1969 version of that standard. See the 

discussion of 49 CFR 240.121(d) in the 

Section-by-Section Analysis, above. 

Further, ANSI revised this standard in 

2018 and FRA expects ANSI will 

continue to revise the standard in the 

future. The audiometers covered by the 

ANSI standard are devices designed for 

use in determining the hearing 

threshold level of an individual in 

comparison with a selected hearing 

threshold level for reference. The ANSI 

standard provides specifications and 

tolerances for pure tone, speech, and 

masking signals and describes the 

minimum test capabilities of different 

types of audiometers. 

To make clear that audiometers are 

not subject to a single industry standard, 

versions of which may change with 

time, FRA is amending this paragraph to 

remove the specific citation to the 2004 

version of ANSI S3.6 and instead 

provide for use of a formal industry 

standard, such as ANSI S3.6. This will 

allow a licensed or certified audiologist, 

or a technician responsible to that 

licensed or certified audiologist, the 

flexibility to use an audiometer 

calibrated to a formal industry standard, 

whether the standard is an older version 

of ANSI S3.6, a newer version of the 

standard, or a similar industry standard, 

whether or not issued by ANSI. 

Section 242.213 Multiple Certifications 

FRA is amending paragraph (e) to 

remove an unnecessary heading, 

‘‘[p]assenger railroad operations,’’ and is 

instead making clear in the rule text that 

this paragraph applies to passenger train 

operations. FRA discovered the 

technical error in preparing the final 

rule, and this correction makes the 

conductor rule consistent with its 

corresponding provision in the 

locomotive engineer rule. 

Section 242.403 Criteria for Revoking 

Certification 

FRA is revising § 242.403(d) to 

remove unnecessary introductory text. 

FRA is making a corresponding 

technical revision to § 240.117(d) to 

remove the same text. No substantive 

change is intended. 

81302 Federal Register / Vol. 85, No. 241 / Tuesday, December 15, 2020 / Rules and Regulations 

Section 242.503 Petition Requirements 

FRA is revising § 242.503(c)(2) so that 

the locomotive engineer and conductor 

certification rules use the same 

language. The change reverses the 

phrase ‘‘timely file’’ to ‘‘file timely’’ to 

match the language in § 240.403(c)(2) 

without changing its meaning. 

Section 242.505 Processing 

Certification Review Petitions 

FRA is revising § 242.505(i) to clarify 

the OCRB’s standard of review for 

procedural issues and make the 

standard the same as in § 240.405(i). 

The final rule requires that, when 

considering procedural issues, the 

Board determines whether the petitioner 

suffered substantial harm that was 

caused by the failure to adhere to the 

dictated procedures for making the 

railroad’s decision. The restated 

standard uses active voice and removes 

the passive voice language that similarly 

explained that the Board will determine 

whether substantial harm was caused 

the petitioner by the railroad’s failure to 

adhere to the dictated procedures. 

Although the Board will apply the 

revised standard in the same way as 

before, the final rule is expected to help 

the parties better understand the 

standard. 

FRA is also making certain technical 

revisions to this section. Specifically, 

FRA is revising paragraphs (h) through 

(k) to remove unnecessary introductory 

text and is revising paragraph (k) to 

replace the word ‘‘regulation’’ with 

‘‘part.’’ These technical revisions do not 

affect the meaning of this section. 

Section 242.511 Appeals 

FRA is amending paragraphs (a) and 

(f) so that the instructions for appealing 

to the Administrator are the same in 

both parts 240 and 242. FRA is revising 

the filing requirements to eliminate the 

requirement for an aggrieved party to 

file two copies of an appeal rather than 

one. With the elimination of paper 

dockets, it is much easier for FRA to 

know when a document is added to an 

existing docket. Parties that are filing an 

appeal, whether under paragraph (a) or 

(f), would already have a docket number 

and would be expected to know how to 

file a document, as they would have 

already filed at least once, and probably 

several times, in that same docket kept 

electronically at www.regulations.gov. 

Filing in the docket will be sufficient to 

notify FRA, and the final rule will 

eliminate the requirement to file a 

separate copy with the Administrator. 

Appendix E to Part 242—Application of 

Revocable Events 

FRA is amending appendix E to part 

242 so that both part 240 and part 242 

will contain the same table that 

explains, in spreadsheet-style form, 

when an individual certified as both an 

engineer and conductor will be 

permitted to work following a 

certification revocation. In the NPRM, 

FRA proposed adding the same table to 

part 240 that is found in appendix E to 

part 242, and designating it as new 

appendix G to part 240. However, in 

adding the table to part 240, FRA made 

slight changes to include some citations 

to the different periods of revocation 

that may be applied in part 240 when 

a locomotive engineer has a drug or 

alcohol violation, as only the conductor 

citations were in the part 242 version of 

the table. The table in appendix E to 

part 242 is expected to continue to be 

a useful reference, and this nonsubstantive revision will conform part 

240 with part 242. FRA considered not 

revising appendix E to part 242 but was 

concerned that any differences between 

the two appendices might lead to 

confusion. The appendices are intended 

to be identical, insofar as practical, to 

promote proper understanding and 

application of both regulations. 

IV. Regulatory Impact and Notices 

A. Executive Orders 12866 and 13771 

and DOT Regulatory Policies and 

Procedures 

This final rule is a non-significant 

regulatory action and has been 

evaluated in accordance with existing 

policies and procedures under E.O. 

12866 and DOT’s Administrative 

Rulemaking, Guidance, and 

Enforcement Procedures in 49 CFR part 

5. The rule is non-significant under the 

policies and procedures of E.O. 12866 

and under DOT’s Rulemaking 

Procedures. This final rule is also an 

E.O. 13771 deregulatory action. 

The primary purpose of the final rule 

is to reduce the differences between 

FRA’s two operating crew certification 

regulations and to make engineer 

certification more efficient. Some of the 

amendments address the part 240 

certification review and program 

submission processes. Other changes 

reduce the burden on the regulated 

community by addressing compliance 

difficulties noted through experience 

enforcing part 240. Further, some 

changes codify longstanding agency 

interpretations of whether a railroad or 

individual meets and maintains 

compliance with part 240 requirements. 

FRA has prepared and placed in the 

docket (Docket No. FRA–2018–0053) a 

regulatory evaluation. The regulatory 

evaluation details estimated costs and 

costs savings that railroads subject to 

the final rule are likely to incur over a 

twenty-year period. The table below 

summarizes the costs, cost savings, and 

net cost savings estimated to come from 

issuing the final rule. For the 20-year 

period of analysis, the cost of the final 

rule will be $233,779 (undiscounted), 

$171,764 (PV 7%), and $200,775 (PV 

3%). The total cost savings of the final 

rule over 20 years will be $12.3 million 

(undiscounted), $6.9 million (PV 7%), 

and $9.4 million (PV 3%). For the 20- 

year period of analysis, the final rule 

will result in a net cost savings of $12.0 

million (undiscounted), $6.8 million 

(PV 7%), and $9.2 million (PV 3%). 

TABLE 1—SUMMARY OF THE FINAL RULE’S TOTAL NEW COSTS, TOTAL COST SAVINGS, NET COST SAVINGS (TWENTYYEAR PERIOD), PV 7 PERCENT AND PV 3 PERCENT

Cost of proposed rule Undiscounted Present value 

7% 

Annualized 

7% 

Present value 

3% 

Annualized 

3% 

New Costs: 

Review amendments .................................................... $118,383 $110,638 $10,443 $114,935 $7,725 

Provide a copy of part 240 plan to labor organization 2,263 1,199 113 1,683 5,657 

Maintain service records ............................................... 113,133 59,927 5,657 84,157 5,657 

Total new costs ..................................................... 233,779 171,764 16,213 200,775 19,039 

Cost Savings: 

Conforming part 240 to part 242 .................................. 11,838,340 6,709,732 633,351 9,070,417 609,675 

Former employee paperwork ........................................ 113,133 59,927 5,657 84,157 5,657 

Petition submission process ......................................... 109,620 58,066 5,481 81,543 5,481 

Federal Register / Vol. 85, No. 241 / Tuesday, December 15, 2020 / Rules and Regulations 81303 

35 44 U.S.C. 3501 et seq. 

36The revisions to the estimates under OMB 

control number 2130–0533 are due to adding 

conforming language in Part 240 to Part 242. Also, 

burden requirements under § 240.308 are covered 

under OMB control number 2130–0544 (§ 242.213). 

37Throughout the tables in this document, the 

dollar equivalent cost is derived from the Surface 

Transportation Board’s Full Year Wage A&B data 

series using the appropriate employee group hourly 

wage rate that includes 75-percent overhead 

charges. 

TABLE 1—SUMMARY OF THE FINAL RULE’S TOTAL NEW COSTS, TOTAL COST SAVINGS, NET COST SAVINGS (TWENTYYEAR PERIOD), PV 7 PERCENT AND PV 3 PERCENT—Continued 

Cost of proposed rule Undiscounted Present value 

7% 

Annualized 

7% 

Present value 

3% 

Annualized 

3% 

Plan submission process .............................................. 6,800 3,602 340 5,058 340 

Government cost savings ............................................. 92,448 48,970 4,622 60,933 4,096 

Removing waiver requirement ...................................... 113,133 59,927 5,657 84,157 5,657 

Total cost savings .................................................. 12,273,475 6,940,223 655,108 9,386,266 630,904 

Net Cost Savings ................................................... 12,039,696 6,768,459 638,895 9,185,491 611,866 

The final rule will create benefits, 

though FRA did not monetize them. 

Some non-quantifiable benefits include: 

affording railroads additional time and 

flexibility to comply with some 

regulatory requirements, and creating 

certain provisions that allow for 

temporary locomotive engineer 

certificates. For example, the 

amendments to § 240.103 will afford 

railroads an additional 30 days, 

increasing from 30 days to 60 days, for 

a railroad to submit a description of its 

intended material modification to its 

part 240 plan. This additional time to 

respond to FRA amounts to an 

unquantified benefit to the railroad. In 

addition, the amendments to § 240.115 

will allow for a temporary certification 

lasting 60 days for individuals who have 

properly requested motor vehicle 

operator information needed to certify 

or recertify as a locomotive engineer. 

Such temporary certifications amount to 

an unquantified benefit to workers and 

railroads. That is, under the 

amendments to § 240.115, workers may 

begin work as locomotive engineers 

sooner and railroads will have available 

a larger pool of workers who will be 

qualified to work as locomotive 

engineers. 

The regulatory evaluation compares 

the final rule’s costs and benefits, and 

estimates the final rule will be cost 

beneficial because the rule is expected 

to provide net cost savings and benefits. 

B. Regulatory Flexibility Act and 

Executive Order 13272; Regulatory 

Flexibility Certification 

The final rule will impact 741 

railroads of which 93 percent (690) are 

small entities. Therefore, FRA has 

determined that this final rule will have 

an impact on a substantial number of 

small entities. 

However, FRA has determined that 

the impact on entities affected by the 

final rule will not be significant as the 

final rule is deregulatory. Therefore, the 

impact on entities will be positive, 

taking the form of costs savings that are 

greater than any new costs imposed on 

the entities. 

For the railroad industry over a 20- 

year period, FRA estimates that issuing 

the final rule will result in new costs of 

$171,764 (PV 7%) and $200,775 (PV 

3%). Based on information currently 

available, FRA estimates that $97,905 

(PV 7%) and $114,442 (PV 3%) of the 

total costs associated with 

implementing the final rule will be 

borne by small entities. Therefore, less 

than 60 percent of the final rule’s total 

cost will be borne by small businesses. 

In addition, FRA estimates that the final 

rule will result in cost savings over 20 

years of $6.9 million (PV 7%), and $9.4 

million (PV 3%). For the 20-year period 

of analysis, the final rule will result in 

a net cost savings of $12.0 million 

(undiscounted), $6.8 million (PV 7%), 

and $9.2 million (PV 3%). FRA expects 

that small entities will accrue 94 

percent of the cost savings associated 

with implementing the final rule. 

Thus, pursuant to the Regulatory 

Flexibility Act, 5 U.S.C. 601(b), the FRA 

Administrator hereby certifies that this 

final rule will not have a significant 

economic impact on a substantial 

number of small entities. 

C. Paperwork Reduction Act 

The information collection 

requirements in this final rule are being 

submitted for approval to the Office of 

Management and Budget (OMB) under 

the Paperwork Reduction Act of 1995.35

The sections that contain the new and 

current information collection 

requirements and the estimated time to 

fulfill each requirement are as follows: 

CFR section 36 Respondent universe Total annual responses Average time per 

response 

Total annual 

burden hours 

Total annual 

dollar cost 

equivalent 37

240.9—Waivers ...................................................... 741 railroads ................. 2 waiver petitions .......... 1 hour ............................ 2 $152 

240.101/103—Certification program: Written 

program for certifying qualifications of locomotive engineers—amendments.

741 railroads ................. 25 amendments ............ 5 minutes ...................... 2 152 

—Certification programs for new railroads ..... 5 new railroads ............. 5 programs .................... 1 hour ............................ 5 380 

—Final review and submission of certification 

programs for new railroads.

5 new railroads ............. 5 reviews ....................... 1 hour ............................ 5 380 

(b)(1)—RR provision of copy of certification 

program submission or resubmission to 

president of each labor union representing 

employees simultaneously with filing with 

FRA (See footnote 36).

62 railroads ................... 62 copies ....................... 5 minutes ...................... 5 380 

(b)(2)—RR affirmative statement that it has 

served certification program copy to each 

labor union president (See footnote 36 ).

62 railroads ................... 62 copies ....................... 5 minutes ...................... 5 380 

(c)—RR employee comment on submission, 

resubmission or material modification of RR 

certification program (See footnote 36).

62 railroads ................... 62 comments ................ 8 hours .......................... 496 37,696 

81304 Federal Register / Vol. 85, No. 241 / Tuesday, December 15, 2020 / Rules and Regulations 

CFR section 36 Respondent universe Total annual responses Average time per 

response 

Total annual 

burden hours 

Total annual 

dollar cost 

equivalent 37

(h)—RR material modifications to program 

after initial FRA approval (formerly under 

(e)).

741 railroads ................. 10 modified programs ... 10 minutes .................... 2 152 

240.105(b)—(c) Written reports/determinations of 

DSLE performance skills.

741 railroads ................. 10 reports ...................... 30 minutes .................... 5 575 

240.109/App. C—Prior safety conduct ................... 17,667 candidates ......... 25 responses ................ 5 minutes ...................... 2 116 

240.111/App C—Driver’s license data requests 

from chief of driver licensing agency of any jurisdiction, including foreign countries.

17,667 candidates ......... 17,667 requests ............ 10 minutes .................... 2,945 223,820 

—NDR match—notifications and requests for 

data.

741 railroads ................. 177 notices + 177 requests.5 mins + 5 mins ............ 30 2,010 

—Written response from candidate on driver’s 

license data.

741 railroads ................. 20 cases/comments ...... 10 minutes .................... 3 174 

240.111(g)—Notice to RR of absence of license .. 53,000 candidates ......... 4 letters ......................... 5 minutes ...................... 0.3 19 

240.111(h)—Duty to furnish data on prior safety 

conduct as motor vehicle operator.

741 railroads ................. 100 communications ..... 5 minutes ...................... 8 464 

240.113—Duty to furnish data on prior safety conduct as an employee of a different RR.17,667 candidates ......... 353 requests + 353 responses.5 mins + 5 mins ............ 59 4,130 

240.115(d)—RR temporary certification or recertification of locomotive engineer for 60 days 

after having requested the motor vehicle information specified in paragraph (h) of this section 

(See footnote 36).

741 railroads ................. 25 recertifications .......... 5 minutes ...................... 2 152 

(i)(2)—RR drug and alcohol counselor request of employee’s record of prior counseling or treatment (See footnote 36).17,667 candidates ......... 200 requests + 200 

records.

5 minutes ...................... 33 1,914 

(i)(3)—Conditional certification based on recommendation by DAC of employee 

aftercare and/or follow-up testing for alcohol/drugs (See footnote 36).

17,667 candidates ......... 100 conditional certifications/DAC recommendations.1 hour ............................ 100 5,800 

(i)(4)—RR employee evaluation by DAC as 

having an active substance abuse disorder 

(See footnote 36).

17,667 candidates ......... 100 DAC evaluations .... 1 hour ............................ 100 5,800 

240.117(i)(4)—RR employee completion of training/retraining prior to return to service—records 

(See footnote 36).

53,000 locomotive engineers.400 trained/retrained 

records.

5 minutes ...................... 33 1,914 

240.119(c)—Written records indicating dates that 

the engineer stopped performing or returned to 

certification service + compliance/observation 

test (See footnote 36).

741 railroads ................. 400 records ................... 5 minutes ...................... 33 1,914 

240.119(d)—Self-referral to EAP re: Active substance abuse disorder.53,000 locomotive engineers.150 self-referrals ........... 5 minutes ...................... 13 754 

240.119(e)(3)(ii)—RR notification to person that 

recertification has been denied or revoked (See 

footnote 36).

741 railroads ................. 200 notifications ............ 30 minutes .................... 100 5,800 

240.119(e)(4)(iii)—Locomotive engineer waiver of 

investigation in case of one violation of 

§ 219.101 (See footnote 36).

53,000 locomotive engineers.200 waivers ................... 2 minutes ...................... 7 406 

240.121—Criteria—vision/hearing acuity data— 

new railroads.

5 railroads ..................... 5 copies ......................... 5 minutes ...................... 0.4 32 

—Conditioned certification .............................. 741 railroads ................. 5 reports ........................ 5 minutes ...................... 0.4 48 

—Not meeting standards—Notice by employee.741 railroads ................. 10 notifications .............. 15 minutes .................... 3 174 

240.129(b)—RR documents on file regarding determination made regarding fitness, including 

DAC written document (See footnote 36).

53,000 locomotive engineers.1,000 records ................ 5 hours .......................... 83 6,308 

240.201/221—List of qualified DSLEs ............ 741 railroads ................. 741 updates .................. 5 minutes ...................... 62 4,712 

—List of qualified loco. engineers ................... 741 railroads ................. 741 updated lists ........... 5 minutes ...................... 62 4,712 

240.201/223/301—Loco. engineer certificates ....... 53,000 candidates ......... 17,667 certificates ......... 5 minutes ...................... 1,472 111,872 

240.207—Medical certificate showing hearing/vision standards are met:.53,000 candidates ......... 17,667 certificates ......... 30 minutes .................... 8,834 1,015,910 

—Written determinations waiving use of corrective device.741 railroads ................. 30 determinations ......... 5 minutes ...................... 3 345 

240.219(a)—RR notification letter to employee of 

certification denial + employee written rebuttal 

(See footnote 36).

17,667 candidates ......... 45 letters + 45 responses.30 minutes .................... 45 3,420 

—RR notice/written documents/records to 

candidate that support its pending denial 

decision (See footnote 36).

741 railroads ................. 45 documents/records .. 2 minutes ...................... 2 152 

240.229—Joint operations—notice—not qualified 321 railroads ................. 184 employee calls ....... 5 minutes ...................... 15 870 

240.301(b)—Temporary replacement certificates 

valid for no more than 30 days (See footnote 

36).

741 railroads ................. 600 replacement certificates.30 minutes .................... 300 22,800 

(c)—Engineer’s notice of non-qualification to 

RR.

53,000 engineers or 

candidates.

100 notifications ............ 5 minutes ...................... 8 464 

(d)—Relaying certification denial or revocation status to other certifying railroad.1,060 engineers ............ 2 letters ......................... 15 minutes .................... 1 hour 58 

240.307(a–b)—Notice to engineer of disqualification.741 railroads ................. 1,100 letters .................. 1 hour ............................ 1,100 73,700 

240.307(b)(4)—RR provision to employee of copy 

of written information and list of witnesses that 

it will present at hearing (See footnote 36).

741 railroads ................. 690 copies/list ............... 5 minutes ...................... 58 4,408 

Federal Register / Vol. 85, No. 241 / Tuesday, December 15, 2020 / Rules and Regulations 81305 

38 64 FR 43255, Aug. 10, 1999. 

CFR section 36 Respondent universe Total annual responses Average time per 

response 

Total annual 

burden hours 

Total annual 

dollar cost 

equivalent 37

240.307(b)(5)—RR determination on hearing 

record whether person no longer meets certification requirements of part 240 (See footnote 

36).

741 railroads ................. 690 hearing determinations.1 hour ............................ 690 52,440 

240.307(c)(11)(i)(ii)—RR written decision after 

close of hearing containing findings of fact & 

whether a revocable event occurred (See footnote 36).

741 railroads ................. 690 written decisions .... 30 minutes .................... 345 26,220 

240.307(c)(11)(iii)—RR service of written decision 

on employee and employee’s representative 

(See footnote 36).

741 railroads ................. 690 copies ..................... 5 minutes ...................... 58 4,408 

240.307(f)—Person’s waiver of right to hearing 

under this section (See footnote 36).

741 railroads ................. 750 written waivers ....... 5 minutes ...................... 63 3,654 

240.307(j)—RR update of record with relevant information (See footnote 36).741 railroads ................. 50 updated records ....... 10 minutes .................... 8 608 

240.309—RR oversight resp.: Detected poor safety conduct—annotation.15 railroads ................... 6 annotations ................ 15 minutes .................... 2 116 

—Railroad annual review ................................ 51 railroads ................... 51 reviews ..................... 3 .................................... 153 11,628 

Recordkeeping 

240.205—Data to EAP counselor .......................... 741 railroads ................. 177 records ................... 5 minutes ...................... 15 1,725 

240.209/213—Written tests .................................... 53,000 candidates ......... 17,667 testing record retention.1 minute ........................ 294 22,344 

240.211/213—Performance test ............................ 53,000 candidates ......... 17,667 testing record retention.1 minute ........................ 294 22,344 

240.215—Retaining info. supporting determination 741 railroads ................. 17,667 records .............. 5 minutes ...................... 1,472 111,872 

240.303—Annual operational monitoring observation.53,000 candidates ......... 53,000 testing record retention.1 minute ........................ 883 67,108 

240.303—Annual operating rules compliance test 53,000 candidates ......... 53,000 testing record retention.1 minute ........................ 883 67,108 

240.307(b)(4)—RR hearings/hearing records (See 

footnote 36).

741 railroads ................. 690 hearings/records .... 4 hours .......................... 2,760 209,760 

Total ................................................................ 741 railroads ................. 224,566 responses ....... N/A ................................ 23,964 2,146,751 

All estimates include the time for 

reviewing instructions; searching 

existing data sources; gathering or 

maintaining the needed data; and 

reviewing the information. 

For information or a copy of the 

paperwork package submitted to OMB, 

contact Ms. Hodan Wells, Information 

Collection Clearance Officer, Office of 

Railroad Safety, Federal Railroad 

Administration, at 202–493–0440. 

Organizations and individuals 

desiring to submit comments on the 

collection of information requirements 

should direct them to Ms. Hodan Wells 

via email at Hodan.Wells@dot.gov. 

OMB must make a decision 

concerning the collection of information 

requirements contained in this rule 

between 30 and 60 days after 

publication of this document in the 

Federal Register. Therefore, a comment 

to OMB is best assured of having its full 

effect if OMB receives it within 30 days 

of publication. 

FRA is not authorized to impose a 

penalty on persons for violating 

information collection requirements that 

do not display a current OMB control 

number, if required. The current OMB 

control number for part 240 is 2130– 

0533. 

D. Federalism Implications 

Executive Order 13132, 

‘‘Federalism,’’ 38 requires FRA to 

develop an accountable process to 

ensure ‘‘meaningful and timely input by 

State and local officials in the 

development of regulatory policies that 

have federalism implications.’’ ‘‘Policies 

that have federalism implications’’ are 

defined in the Executive Order to 

include regulations having ‘‘substantial 

direct effects on the States, on the 

relationship between the national 

government and the States, or on the 

distribution of power and 

responsibilities among the various 

levels of government.’’ Under Executive 

Order 13132, the agency may not issue 

a regulation with federalism 

implications that imposes substantial 

direct compliance costs and that is not 

required by statute, unless the Federal 

Government provides the funds 

necessary to pay the direct compliance 

costs incurred by State and local 

governments or the agency consults 

with State and local government 

officials early in the process of 

developing the regulation. Where a 

regulation has federalism implications 

and preempts State law, the agency 

seeks to consult with State and local 

officials in the process of developing the 

regulation. 

FRA has analyzed this final rule 

under the principles and criteria 

contained in Executive Order 13132. 

FRA has determined this final rule will 

not have a substantial direct effect on 

the States or their political subdivisions; 

on the relationship between the Federal 

Government and the States or their 

political subdivisions, or on the 

distribution of power and 

responsibilities among the various 

levels of government. In addition, FRA 

has determined this final rule does not 

impose substantial direct compliance 

costs on State and local governments. 

Therefore, the consultation and funding 

requirements of Executive Order 13132 

do not apply. 

This final rule could have preemptive 

effect by the operation of law under a 

provision of the former Federal Railroad 

Safety Act of 1970, repealed and 

recodified at 49 U.S.C. 20106 (Section 

20106). Section 20106 provides that 

States may not adopt or continue in 

effect any law, regulation, or order 

related to railroad safety or security that 

covers the subject matter of a regulation 

prescribed or order issued by the 

Secretary of Transportation (with 

respect to railroad safety matters) or the 

Secretary of Homeland Security (with 

respect to railroad security matters), 

81306 Federal Register / Vol. 85, No. 241 / Tuesday, December 15, 2020 / Rules and Regulations 

39 42 U.S.C. 4321 et seq. 

40 23 CFR 771.116(b). 

41See 16 U.S.C. 470. 

42See Department of Transportation Act of 1966, 

as amended (Pub. L. 89–670, 80 Stat. 931); 49 U.S.C. 

303. 

43 91 FR 27534 (May 10, 2012). 

44Public Law 104–4, 2 U.S.C. 1531. 

45 66 FR 28355 (May 22, 2001). 

46 82 FR 16093 (Mar. 31, 2017). 

except when the State law, regulation, 

or order qualifies under the ‘‘essentially 

local safety or security hazard’’ 

exception to section 20106. 

In sum, FRA has analyzed this final 

rule in accordance with the principles 

and criteria contained in Executive 

Order 13132. As explained above, FRA 

has determined that this final rule has 

no federalism implications, other than 

the possible preemption of State laws 

under Federal railroad safety statutes, 

specifically 49 U.S.C. 20106. 

Accordingly, FRA has determined that 

preparation of a federalism summary 

impact statement for this final rule is 

not required. 

E. International Trade Impact 

Assessment 

The Trade Agreements Act of 1979 

prohibits Federal agencies from 

engaging in any standards or related 

activities that create unnecessary 

obstacles to the foreign commerce of the 

United States. Legitimate domestic 

objectives, such as safety, are not 

considered unnecessary obstacles. The 

statute also requires consideration of 

international standards and where 

appropriate, that they be the basis for 

U.S. standards. This final rule is purely 

domestic in nature and is not expected 

to affect trade opportunities for U.S. 

firms doing business overseas or for 

foreign firms doing business in the 

United States. 

F. Environmental Impact 

FRA has evaluated this final rule 

consistent with the National 

Environmental Policy Act 39 (NEPA), the 

Council of Environmental Quality’s 

NEPA implementing regulations at 40 

CFR parts 1500–1508, and FRA’s NEPA 

implementing regulations at 23 CFR part 

771 and determined that it is 

categorically excluded from 

environmental review and therefore 

does not require the preparation of an 

environmental assessment (EA) or 

environmental impact statement (EIS). 

Categorical exclusions (CEs) are actions 

identified in an agency’s NEPA 

implementing regulations that do not 

normally have a significant impact on 

the environment and therefore do not 

require either an EA or EIS. 40 CFR 

1508.4. Specifically, FRA has 

determined that this final rule is 

categorically excluded from detailed 

environmental review pursuant to 23 

CFR 771.116(c)(15), ‘‘[p]romulgation of 

rules, the issuance of policy statements, 

the waiver or modification of existing 

regulatory requirements, or 

discretionary approvals that do not 

result in significantly increased 

emissions of air or water pollutants or 

noise.’’ 

The purpose of this rulemaking is to 

make FRA’s regulation governing the 

qualification and certification of 

locomotive engineers consistent with its 

regulation for the qualification and 

certification of conductors. This rule 

does not directly or indirectly impact 

any environmental resources and will 

not result in significantly increased 

emissions of air or water pollutants or 

noise. In analyzing the applicability of 

a CE, FRA must also consider whether 

unusual circumstances are present that 

would warrant a more detailed 

environmental review.40 FRA has 

concluded that no such unusual 

circumstances exist with respect to this 

regulation and the final rule meets the 

requirements for categorical exclusion 

under 23 CFR 771.116(c)(15). 

Pursuant to Section 106 of the 

National Historic Preservation Act and 

its implementing regulations, FRA has 

determined this undertaking has no 

potential to affect historic properties.41

FRA has also determined that this 

rulemaking does not approve a project 

resulting in a use of a resource protected 

by Section 4(f).42

G. Executive Order 12898 

(Environmental Justice) 

Executive Order 12898, Federal 

Actions to Address Environmental 

Justice in Minority Populations and 

Low-Income Populations, and DOT 

Order 5610.2(a) 43 require DOT agencies 

to achieve environmental justice as part 

of their mission by identifying and 

addressing, as appropriate, 

disproportionately high and adverse 

human health or environmental effects, 

including interrelated social and 

economic effects, of their programs, 

policies, and activities on minority 

populations and low-income 

populations. The DOT Order instructs 

DOT agencies to address compliance 

with Executive Order 12898 and 

requirements within the DOT Order in 

rulemaking activities, as appropriate. 

FRA has evaluated this final rule under 

Executive Order 12898 and the DOT 

Order and has determined it will not 

cause disproportionately high and 

adverse human health and 

environmental effects on minority 

populations or low-income populations. 

H. Unfunded Mandates Reform Act of 

1995 

Under section 201 of the Unfunded 

Mandates Reform Act of 1995,44 each 

Federal agency ‘‘shall, unless otherwise 

prohibited by law, assess the effects of 

Federal regulatory actions on State, 

local, and tribal governments, and the 

private sector (other than to the extent 

that such regulations incorporate 

requirements specifically set forth in 

law).’’ Section 202 of the Act (2 U.S.C. 

1532) further requires that ‘‘before 

promulgating any general notice of 

proposed rulemaking that is likely to 

result in the promulgation of any rule 

that includes any Federal mandate that 

may result in expenditure by State, 

local, and tribal governments, in the 

aggregate, or by the private sector, of 

$100,000,000 or more (adjusted 

annually for inflation) in any 1 year, and 

before promulgating any final rule for 

which a general notice of proposed 

rulemaking was published, the agency 

shall prepare a written statement’’ 

detailing the effect on State, local, and 

tribal governments and the private 

sector. This final rule will not result in 

the expenditure, in the aggregate, of 

$100,000,000 or more (as adjusted 

annually for inflation) in in any one 

year, and thus preparation of such a 

statement is not required. 

I. Energy Impact 

Executive Order 13211 requires 

Federal agencies to prepare a Statement 

of Energy Effects for any ‘‘significant 

energy action.’’ 45 FRA has evaluated 

this final rule under Executive Order 

13211 and determined that this rule is 

not a ‘‘significant energy action’’ within 

the meaning of Executive Order 13211. 

Executive Order 13783 requires 

Federal agencies to review regulations 

to determine whether they potentially 

burden the development or use of 

domestically produced energy 

resources, with particular attention to 

oil, natural gas, coal, and nuclear energy 

resources.46 FRA has evaluated this 

final rule under Executive Order 13783 

and determined that this rule will not 

burden the development or use of 

domestically produced energy 

resources. 

List of Subjects 

49 CFR Part 219 

Alcohol abuse, Drug abuse, Drug 

testing, Penalties, Railroad safety, 

Reporting and recordkeeping 

requirements, Safety, Transportation. 

Federal Register / Vol. 85, No. 241 / Tuesday, December 15, 2020 / Rules and Regulations 81307 

49 CFR Part 240 

Administrative practice and 

procedure, Locomotive engineer, 

Penalties, Railroad employees, Railroad 

operating procedures, Railroad safety, 

Reporting and recordkeeping 

requirements. 

49 CFR Part 242 

Administrative practice and 

procedure, Conductor, Penalties, 

Railroad employees, Railroad operating 

procedures, Railroad safety, Reporting 

and recordkeeping requirements. 

The Final Rule 

For the reasons discussed in the 

preamble, FRA amends parts 219, 240, 

and 242 of chapter II, subtitle B of title 

49 of the Code of Federal Regulations as 

follows: 

PART 219—CONTROL OF ALCOHOL 

AND DRUG USE 

■ 1. The authority citation for part 219 

continues to read as follows: 

Authority: 49 U.S.C. 20103, 20107, 20140, 

21301, 21304, 21311; 28 U.S.C. 2461, note; 

Sec. 412, Div. A, Pub. L. 110–432, 122 Stat. 

4889 (49 U.S.C. 20140, note) and 49 CFR 

1.89. 

■ 2. Section 219.25 is amended by 

revising paragraph (b) to read as follows: 

§ 219.25 Previous employer drug and 

alcohol checks. 

* * * * * 

(b) When determining whether a 

person may become or remain certified 

as a locomotive engineer or a conductor, 

a railroad must comply with the 

requirements in § 240.119(e) (for 

engineers) or § 242.115(e) (for 

conductors) of this chapter regarding the 

consideration of Federal alcohol and 

drug violations that occurred within a 

period of 60 consecutive months before 

the review of the person’s records. 

■ 3. Section 219.1003 is amended by 

revising paragraph (j) to read as follows: 

§ 219.1003 Referral program conditions. 

* * * * * 

(j) Locomotive engineers and 

conductors. Consistent with 

§§ 240.119(g) and 242.115(g) of this 

chapter, for a certified locomotive 

engineer, certified conductor, or a 

candidate for engineer or conductor 

certification, the referral program must 

state that confidentiality is waived (to 

the extent the railroad receives from a 

DAC official notice of the active drug 

abuse disorder and suspends or revokes 

the certification, as appropriate) if the 

employee at any time refuses to 

cooperate in a recommended course of 

counseling or treatment. 

* * * * * 

PART 240—QUALIFICATION AND 

CERTIFICATION OF LOCOMOTIVE 

ENGINEERS 

■ 4. The authority citation for part 240 

is revised to read as follows: 

Authority: 44 U.S.C. 3501 et seq.; 49 

U.S.C. 20103, 20107, 20135, 20138, 20162, 

20163, 21301, 21304, 21311; 28 U.S.C. 2461, 

note; and 49 CFR 1.89. 

■ 5. Section 240.1 is amended by 

revising paragraph (c) to read as follows: 

§ 240.1 Purpose and scope. 

* * * * * 

(c) The locomotive engineer 

certification requirements prescribed in 

this part apply to any person who meets 

the definition of locomotive engineer 

contained in § 240.7, regardless of the 

fact that the person may have a job 

classification title other than that of 

locomotive engineer. 

■ 6. Section 240.3 is revised to read as 

follows: 

§ 240.3 Application and responsibility for 

compliance. 

(a) This part applies to all railroads, 

except: 

(1) Railroads that operate only on 

track inside an installation that is not 

part of the general railroad system of 

transportation (i.e., plant railroads, as 

defined in § 240.7); 

(2) Tourist, scenic, historic, or 

excursion operations that are not part of 

the general railroad system of 

transportation as defined in § 240.7; or 

(3) Rapid transit operations in an 

urban area that are not connected to the 

general railroad system of 

transportation. 

(b) Although the duties imposed by 

this part are generally stated in terms of 

the duty of a railroad, each person, 

including a contractor for a railroad, 

who performs any function covered by 

this part must perform that function in 

accordance with this part. 

■ 7. Section 240.5 is revised to read as 

follows: 

§ 240.5 Effect and construction. 

(a) FRA does not intend, by use of the 

term locomotive engineer in this part, to 

alter the terms, conditions, or 

interpretation of existing collective 

bargaining agreements that employ 

other job classification titles when 

identifying a person authorized by a 

railroad to operate a locomotive. 

(b) FRA does not intend by issuance 

of these regulations to alter the authority 

of a railroad to initiate disciplinary 

sanctions against its employees, 

including managers and supervisors, in 

the normal and customary manner, 

including those contained in its 

collective bargaining agreements. 

(c) Except as provided in § 240.308, 

nothing in this part shall be construed 

to create or prohibit an eligibility or 

entitlement to employment in other 

service for the railroad as a result of 

denial, suspension, or revocation of 

certification under this part. 

(d) Nothing in this part shall be 

deemed to abridge any additional 

procedural rights or remedies not 

inconsistent with this part that are 

available to the employee under a 

collective bargaining agreement, the 

Railway Labor Act, or (with respect to 

employment at will) at common law 

with respect to removal from service or 

other adverse action taken as a 

consequence of this part. 

■ 8. Section 240.7 is amended by: 

■ a. Adding in alphabetical order 

definitions for ‘‘Conductor’’ and ‘‘Drug 

and alcohol counselor’’; 

■ b. Removing the definition of ‘‘EAP 

counselor’’; 

■ c. Revising the definitions of ‘‘File, 

filed and filing’’ and ‘‘FRA 

Representative’’; 

■ d. Adding in alphabetical order a 

definition for ‘‘Ineligible or 

ineligibility’’; 

■ e. Revising the definitions of 

‘‘Instructor engineer’’ and ‘‘Medical 

examiner’’; 

■ f. Removing the definition of ‘‘Newly 

hired employee’’; 

■ g. Adding in alphabetical order 

definitions for ‘‘On-the-job training 

(OJT),’’ ‘‘Physical characteristics,’’ and 

‘‘Plant railroad’’; 

■ h. Revising the definitions of 

‘‘Qualified’’ and ‘‘Railroad rolling 

stock’’; 

■ i. Adding in alphabetical order a 

definition for ‘‘Serve or service’’; 

■ j. Removing the definition of 

‘‘Service’’; 

■ k. Revising the definition of 

‘‘Substance abuse disorder’’; and 

■ l. Adding in alphabetical order 

definitions for ‘‘Substance Abuse 

Professional,’’ ‘‘Territorial 

qualifications,’’ and ‘‘Tourist, scenic, 

historic, or excursion operations that are 

not part of the general system of 

transportation.’’ 

The additions and revisions read as 

follows: 

§ 240.7 Definitions. 

* * * * * 

Conductor means the crewmember in 

charge of a ‘‘train or yard crew’’ as 

defined in part 218 of this chapter. 

* * * * * 

81308 Federal Register / Vol. 85, No. 241 / Tuesday, December 15, 2020 / Rules and Regulations 

Drug and alcohol counselor (DAC) 

means a person who meets the 

credentialing and qualification 

requirements of a ‘‘Substance Abuse 

Professional’’ (SAP), as provided in 49 

CFR part 40. 

* * * * * 

File, filed and filing mean submission 

of a document under this part on the 

date when the DOT Docket Clerk or FRA 

receives it, or if sent by mail, the date 

mailing was completed. 

* * * * * 

FRA Representative means the FRA 

Associate Administrator for Railroad 

Safety/Chief Safety Officer and the 

Associate Administrator’s delegate, 

including any safety inspector 

employed by the Federal Railroad 

Administration and any qualified State 

railroad safety inspector acting under 

part 212 of this chapter. 

Ineligible or ineligibility means that a 

person is legally disqualified from 

serving as a certified locomotive 

engineer. The term covers a number of 

circumstances in which a person may 

not serve as a certified locomotive 

engineer. Revocation of certification 

pursuant to § 240.307 and denial of 

certification pursuant to § 240.219 are 

two examples in which a person would 

be ineligible to serve as a certified 

locomotive engineer. A period of 

ineligibility may end when a condition 

or conditions are met. For example, a 

period of ineligibility may end when a 

person meets the conditions to serve as 

a certified locomotive engineer 

following an alcohol or drug violation 

pursuant to § 240.119. 

Instructor engineer, as used in this 

part: 

(1) Means a person who has 

demonstrated, pursuant to the railroad’s 

written program, an adequate 

knowledge of the subjects under 

instruction and, where applicable, has 

the necessary operating experience to 

instruct effectively in the field, and has 

the following qualifications: 

(i) Is a certified locomotive engineer 

under this part; and 

(ii) Has been selected as such by a 

designated railroad officer, in 

concurrence with the designated 

employee representative, where present, 

to teach others proper train handling 

procedures; or 

(iii) In absence of concurrence 

provided in paragraph (1)(ii) of this 

definition, has a minimum of 12 months 

service working in the class of service 

for which the person is designated to 

instruct. 

(2) If a railroad does not have 

designated employee representation, 

then a person employed by the railroad 

need not comply with paragraph (1)(ii) 

or (iii) of this definition to be an 

instructor engineer. 

* * * * * 

Medical examiner means a person 

licensed as a doctor of medicine or 

doctor of osteopathy. A medical 

examiner can be a qualified, full-time 

salaried employee of a railroad, a 

qualified practitioner who contracts 

with the railroad on a fee-for-service or 

other basis, or a qualified practitioner 

designated by the railroad to perform 

functions in connection with medical 

evaluations of employees. As used in 

this rule, the medical examiner owes a 

duty to make an honest and fully 

informed evaluation of the condition of 

an employee. 

On-the-job training (OJT) means job 

training that occurs in the workplace, 

i.e., the employee learns the job while 

doing the job. 

* * * * * 

Physical characteristics means the 

actual track profile of and physical 

location for points within a specific 

yard or route that affect the movement 

of a locomotive or train. Physical 

characteristics includes both main track 

physical characteristics (see definition 

of ‘‘main track’’ in this section) and 

other than main track physical 

characteristics. 

Plant railroad means a plant or 

installation that owns or leases a 

locomotive, uses that locomotive to 

switch cars throughout the plant or 

installation, and is moving goods solely 

for use in the facility’s own industrial 

processes. The plant or installation 

could include track immediately 

adjacent to the plant or installation if 

the plant railroad leases the track from 

the general system railroad and the lease 

provides for (and actual practice entails) 

the exclusive use of that trackage by the 

plant railroad and the general system 

railroad for purposes of moving only 

cars shipped to or from the plant. A 

plant or installation that operates a 

locomotive to switch or move cars for 

other entities, even if solely within the 

confines of the plant or installation, 

rather than for its own purposes or 

industrial processes, will not be 

considered a plant railroad because the 

performance of such activity makes the 

operation part of the general railroad 

system of transportation. 

Qualified means a person who has 

successfully completed all instruction, 

training and examination programs 

required by the employer and the 

applicable parts of this chapter, and that 

the person therefore may reasonably be 

expected to be proficient on all safetyrelated tasks the person is assigned to 

perform. 

* * * * * 

Railroad rolling stock is on-track 

equipment that is either a ‘‘railroad 

freight car’’ (as defined in § 215.5 of this 

chapter) or a ‘‘passenger car’’ (as defined 

in § 238.5 of this chapter). 

* * * * * 

Serve or service, in the context of 

serving documents, has the meaning 

given in Rule 5 of the Federal Rules of 

Civil Procedure as amended. Similarly, 

the computation of time provisions in 

Rule 6 of the Federal Rules of Civil 

Procedure as amended are also 

applicable in this part. See also the 

definition of ‘‘filing’’ in this section. 

* * * * * 

Substance abuse disorder refers to a 

psychological or physical dependence 

on alcohol or a drug, or another 

identifiable and treatable mental or 

physical disorder involving the abuse of 

alcohol or drugs as a primary 

manifestation. A substance abuse 

disorder is ‘‘active’’ within the meaning 

of this part if the person is currently 

using alcohol or other drugs, except 

under medical supervision consistent 

with the restrictions described in 

§ 219.103 of this chapter or has failed to 

complete primary treatment 

successfully or participate in aftercare 

successfully as directed by a DAC or 

SAP. 

Substance Abuse Professional (SAP) 

means a person who meets the 

qualifications of a Substance Abuse 

Professional, as provided in part 40 of 

this title. 

Territorial qualifications means 

possessing the necessary knowledge 

concerning a railroad’s operating rules 

and timetable special instructions, 

including familiarity with applicable 

main track and other than main track 

physical characteristics of the territory 

over which the locomotive or train 

movement will occur. 

Tourist, scenic, historic, or excursion 

operations that are not part of the 

general railroad system of 

transportation means a tourist, scenic, 

historic, or excursion operation 

conducted only on track used 

exclusively for that purpose (i.e., there 

is no freight, intercity passenger, or 

commuter passenger railroad operation 

on the track). 

* * * * * 

■ 9. Section 240.11 is amended by 

revising paragraph (d) to read as 

follows: 

§ 240.11 Penalties and consequences for 

noncompliance. 

* * * * * 

Federal Register / Vol. 85, No. 241 / Tuesday, December 15, 2020 / Rules and Regulations 81309 

(d) In addition to the enforcement 

methods referred to in paragraphs (a), 

(b), and (c) of this section, FRA may also 

address violations of this part by use of 

the emergency order, compliance order, 

and/or injunctive provisions of the 

Federal rail safety laws. 

■ 10. Section 240.103 is revised to read 

as follows: 

§ 240.103 Approval of design of individual 

railroad programs by FRA. 

(a) Each railroad shall submit its 

written certification program and a 

description of how its program 

conforms to the specific requirements of 

this part in accordance with the 

procedures contained in appendix B to 

this part and shall submit this written 

certification program for approval at 

least 60 days before commencing 

operations. The primary method for a 

railroad’s submission is by email to 

FRAOPCERTPROG@dot.gov. For those 

railroads that are unable to send the 

program by email, the program may be 

sent to the Associate Administrator for 

Railroad Safety/Chief Safety Officer, 

Federal Railroad Administration, 1200 

New Jersey Avenue SE, Washington, DC 

20590. 

(b) Each railroad shall: 

(1) Simultaneous with its filing with 

FRA, provide a copy of the submission 

filed pursuant to paragraph (a) of this 

section, a resubmission filed pursuant to 

paragraph (f) of this section, or a 

material modification filed pursuant to 

paragraph (g) of this section to the 

president of each labor organization that 

represents the railroad’s employees 

subject to this part; and 

(2) Include in its submission filed 

pursuant to paragraph (a) of this section, 

a resubmission filed pursuant to 

paragraph (f) of this section, or a 

material modification filed pursuant to 

paragraph (g) of this section a statement 

affirming that the railroad has provided 

a copy to the president of each labor 

organization that represents the 

railroad’s employees subject to this part, 

together with a list of the names and 

addresses of persons provided a copy. 

(c) Not later than 45 days from the 

date of filing a submission pursuant to 

paragraph (a) of this section, a 

resubmission pursuant to paragraph (f) 

of this section, or a material 

modification pursuant to paragraph (g) 

of this section, any designated 

representative of railroad employees 

subject to this part may comment on the 

submission, resubmission, or material 

modification. 

(1) Each comment shall set forth 

specifically the basis upon which it is 

made, and contain a concise statement 

of the interest of the commenter in the 

proceeding; 

(2) Each comment shall be submitted 

by email to FRAOPCERTPROG@dot.gov 

or by mail to the Associate 

Administrator for Railroad Safety/Chief 

Safety Officer, FRA, 1200 New Jersey 

Avenue SE, Washington, DC 20590; and 

(3) The commenter shall affirm that a 

copy of the comment was provided to 

the railroad. 

(d) The submission required by 

paragraph (a) of this section shall state 

the railroad’s election either: 

(1) To accept responsibility for the 

training of student engineers and 

thereby obtain authority for that railroad 

to certify initially a person as an 

engineer in an appropriate class of 

service, or 

(2) To recertify only engineers 

previously certified by other railroads. 

(e) A railroad that elects to accept 

responsibility for the training of student 

engineers shall state in its submission 

whether it will conduct the training 

program or employ a training program 

conducted by some other entity on its 

behalf but adopted and ratified by that 

railroad. 

(f) A railroad’s program is considered 

approved and may be implemented 30 

days after the required filing date (or the 

actual filing date) unless the 

Administrator notifies the railroad in 

writing that the program does not 

conform to the criteria set forth in this 

part. 

(1) If the Administrator determines 

that the program does not conform, the 

Administrator will inform the railroad 

of the specific deficiencies. 

(2) If the Administrator informs the 

railroad of deficiencies more than 30 

days after the initial filing date, the 

original program may remain in effect 

until 30 days after approval of the 

revised program is received so long as 

the railroad has complied with the 

requirements of paragraph (g) of this 

section. 

(g) A railroad shall resubmit its 

program within 30 days after the date of 

such notice of deficiencies. A failure to 

resubmit the program with the 

necessary revisions will be considered a 

failure to implement a program under 

this part. 

(1) The Administrator will inform the 

railroad in writing whether its revised 

program conforms to this part. 

(2) If the program does not conform, 

the railroad shall resubmit its program. 

(h) A railroad that intends to modify 

materially its program after receiving 

initial FRA approval shall submit a 

description of how it intends to modify 

the program in conformity with the 

specific requirements of this part at least 

60 days prior to implementing such a 

change. 

(1) A modification is material if it 

would affect the program’s conformance 

with this part. 

(2) The modification submission shall 

contain a description that conforms to 

the pertinent portion of the procedures 

contained in appendix B of this part. 

(3) The modification submission will 

be handled in accordance with the 

procedures of paragraphs (b) and (c) of 

this section as though it were a new 

program. 

■ 11. Section 240.105 is amended by 

adding paragraph (d) to read as follows: 

§ 240.105 Criteria for selection of 

designated supervisors of locomotive 

engineers. 

* * * * * 

(d) Each railroad is authorized to 

designate a person as a designated 

supervisor of locomotive engineers with 

additional conditions or operational 

restrictions on the service the person 

may perform. 

■ 12. Section 240.107 is amended by 

revising the section heading to read as 

follows: 

§ 240.107 Types of service. 

* * * * * 

■ 13. Section 240.111 is amended by 

revising paragraph (a)(2), revising and 

republishing paragraph (c), and revising 

paragraphs (d), (e), (f), and (h) to read as 

follows: 

§ 240.111 Individual’s duty to furnish data 

on prior safety conduct as motor vehicle 

operator. 

(a) * * * 

(2) Take any additional actions, 

including providing any necessary 

consent required by State, Federal, or 

foreign law to make information 

concerning his or her driving record 

available to that railroad. 

* * * * * 

(c) Each person shall request the 

information required under paragraph 

(b)(1) of this section from: 

(1) The chief of the driver licensing 

agency of any jurisdiction, including a 

State or foreign country, which last 

issued that person a driver’s license; 

and 

(2) The chief of the driver licensing 

agency of any other jurisdiction, 

including states or foreign countries, 

that issued or reissued him or her a 

driver’s license within the preceding 

five years. 

(d) Each person shall request the 

information required under paragraph 

(b)(2) of this section from the Chief, 

National Driver Register, National 

Highway Traffic Safety Administration, 

81310 Federal Register / Vol. 85, No. 241 / Tuesday, December 15, 2020 / Rules and Regulations 

1200 New Jersey Avenue SE, 

Washington, DC 20590 in accordance 

with the procedures contained in 

appendix C of this part unless the 

person’s motor vehicle driving license 

was issued by a State or the District of 

Columbia. 

(e) If the person’s motor vehicle 

driving license was issued by one of the 

driver licensing agencies of a State or 

the District of Columbia, the person 

shall request the chief of that driver 

licensing agency to perform a check of 

the National Driver Register for the 

possible existence of additional 

information concerning his or her 

driving record and to provide the 

resulting information to the railroad. 

(f) If advised by the railroad that a 

driver licensing agency or the National 

Highway Traffic Safety Administration 

has informed the railroad that 

additional information concerning that 

person’s driving history may exist in the 

files of a State agency or foreign country 

not previously contacted in accordance 

with this section, such person shall: 

(1) Request in writing that the chief of 

the driver licensing agency which 

compiled the information provide a 

copy of the available information to the 

prospective certifying railroad; and 

(2) Take any additional action 

required by State, Federal, or foreign 

law to obtain that additional 

information. 

* * * * * 

(h) Each certified locomotive engineer 

or person seeking initial certification 

shall report motor vehicle incidents 

described in § 240.115(h)(1) and (2) to 

the employing railroad within 48 hours 

of being convicted for, or completed 

State action to cancel, revoke, suspend, 

or deny a motor vehicle driver’s license 

for, such violations. For purposes of this 

paragraph (h) and § 240.115(h), ‘‘State 

action’’ means action of the jurisdiction 

that has issued the motor vehicle 

driver’s license, including a foreign 

country. For the purposes of engineer 

certification, no railroad shall require 

reporting earlier than 48 hours after the 

conviction, or completed State action to 

cancel, revoke, or deny a motor vehicle 

driver’s license. 

■ 14. Section 240.113 is revised to read 

as follows: 

§ 240.113 Individual’s duty to furnish data 

on prior safety conduct as an employee of 

a different railroad. 

(a) Except for persons covered by 

§ 240.109(h), each person seeking 

certification or recertification under this 

part shall, within 366 days preceding 

the date of the railroad’s decision on 

certification or recertification: 

(1) Request, in writing, that the chief 

operating officer or other appropriate 

person of the former employing railroad 

provide a copy of that railroad’s 

available information concerning his or 

her service record pertaining to 

compliance or non-compliance with 

§§ 240.111, 240.117, and 240.119 to the 

railroad that is considering such 

certification or recertification; and 

(2) Take any additional actions, 

including providing any necessary 

consent required by State or Federal law 

to make information concerning his or 

her service record available to that 

railroad. 

(b) [Reserved] 

■ 15. Section 240.115 is revised to read 

as follows: 

§ 240.115 Criteria for consideration of 

prior safety conduct as a motor vehicle 

operator. 

(a) Each railroad shall adopt and 

comply with a program meeting the 

requirements of this section. When any 

person (including, but not limited to, 

each railroad, railroad officer, 

supervisor, and employee) violates any 

requirement of a program that complies 

with the requirements of this section, 

that person shall be considered to have 

violated the requirements of this 

section. 

(b) Except as provided in paragraphs 

(c) through (f) of this section, each 

railroad, prior to initially certifying or 

recertifying any person as a locomotive 

engineer for any type of service, shall 

determine that the person meets the 

eligibility requirements of this section 

involving prior conduct as a motor 

vehicle operator. 

(c) A railroad shall initially certify a 

person as a locomotive engineer for 60 

days if the person: 

(1) Requested the information 

required by paragraph (h) of this section 

at least 60 days prior to the date of the 

decision to certify that person; and 

(2) Otherwise meets the eligibility 

requirements provided in § 240.109. 

(d) A railroad shall recertify a person 

as a locomotive engineer for 60 days 

from the expiration date of that person’s 

certification if the person: 

(1) Requested the information 

required by paragraph (h) of this section 

at least 60 days prior to the date of the 

decision to recertify that person; and 

(2) Otherwise meets the eligibility 

requirements provided in § 240.109. 

(e) Except as provided in paragraph (f) 

of this section, if a railroad which 

certified or recertified a person pursuant 

to paragraph (c) or (d) of this section 

does not obtain and evaluate the 

information required pursuant to 

paragraph (h) of this section within 60 

days of the pertinent dates identified in 

paragraph (c) or (d) of this section, that 

person will be ineligible to perform as 

a locomotive engineer until the 

information can be evaluated. 

(f) If a person requests the information 

required pursuant to paragraph (h) of 

this section but is unable to obtain it, 

that person or the railroad certifying or 

recertifying that person may petition for 

a waiver of the requirements of 

paragraph (b) of this section in 

accordance with the provisions of part 

211 of this chapter. A railroad shall 

certify or recertify a person during the 

pendency of the waiver request if the 

person otherwise meets the eligibility 

requirements provided in § 240.109. 

(g) When evaluating a person’s motor 

vehicle driving record, a railroad shall 

not consider information concerning 

motor vehicle driving incidents that 

occurred more than 36 months before 

the month in which the railroad is 

making its certification decision or at a 

time other than that specifically 

provided for in § 240.111, § 240.117, 

§ 240.119, or § 240.205. 

(h) A railroad shall only consider 

information concerning the following 

types of motor vehicle incidents: 

(1) A conviction for, or completed 

State action to cancel, revoke, suspend, 

or deny a motor vehicle driver’s license 

for, operating a motor vehicle while 

under the influence of or impaired by 

alcohol or a controlled substance; or 

(2) A conviction for, or completed 

State action to cancel, revoke, suspend, 

or deny a motor vehicle driver’s license 

for, refusal to undergo such testing as is 

required by State or foreign law when a 

law enforcement official seeks to 

determine whether a person is operating 

a vehicle while under the influence of 

alcohol or a controlled substance. 

(i) If such an incident is identified: 

(1) The railroad shall provide the data 

to the railroad’s DAC, together with any 

information concerning the person’s 

railroad service record, and shall refer 

the person for evaluation to determine 

if the person has an active substance 

abuse disorder; 

(2) The person shall cooperate in the 

evaluation and shall provide any 

requested records of prior counseling or 

treatment for review exclusively by the 

DAC in the context of such evaluation; 

and 

(3) If the person is evaluated as not 

currently affected by an active substance 

abuse disorder, the subject data shall 

not be considered further with respect 

to certification. However, the railroad 

shall, on recommendation of the DAC, 

condition certification upon 

participation in any needed aftercare 

and/or follow-up testing for alcohol or 

Federal Register / Vol. 85, No. 241 / Tuesday, December 15, 2020 / Rules and Regulations 81311 

drugs deemed necessary by the DAC 

consistent with the technical standards 

specified in § 240.119(d)(3). 

(4) If the person is evaluated as 

currently affected by an active substance 

abuse disorder, the provisions of 

§ 240.119(b) will apply. 

(5) If the person fails to comply with 

the requirements of paragraph (i)(2) of 

this section, the person shall be 

ineligible to perform as a locomotive 

engineer until such time as the person 

complies with the requirements. 

■ 16. Section 240.117 is amended by: 

■ a. Revising paragraphs (a), (c)(1) and 

(3), (d), and (e)(5) and (6); 

■ b. Adding paragraph (f)(4); 

■ c. Revising paragraphs (g)(3)(i) and 

(ii); 

■ d. Redesignating paragraph (h) as 

paragraph (i); and 

■ e. Adding new paragraph (h). 

The revisions and additions read as 

follows: 

§ 240.117 Criteria for consideration of 

operating rules compliance data. 

(a) Each railroad shall adopt and 

comply with a program which meets the 

requirements of this section. When any 

person including, but not limited to, 

each railroad, railroad officer, 

supervisor, and employee violates any 

requirement of a program that complies 

with the requirements of this section, 

that person shall be considered to have 

violated the requirements of this 

section. 

* * * * * 

(c)(1) A certified locomotive engineer 

who has demonstrated a failure to 

comply with railroad rules and practices 

described in paragraph (e) of this 

section shall have his or her 

certification revoked. 

* * * * * 

(3) A certified locomotive engineer 

who is called by a railroad to perform 

the duty of a train crew member other 

than that of locomotive engineer or 

conductor shall not have his or her 

certification revoked based on actions 

taken or not taken while performing that 

duty. 

(d) In determining whether a person 

may be or remain certified as a 

locomotive engineer, a railroad shall 

consider as operating rule compliance 

data only conduct described in 

paragraphs (e)(1) through (5) of this 

section that occurred within a period of 

36 consecutive months prior to the 

determination. A review of an existing 

certification shall be initiated promptly 

upon the occurrence and documentation 

of any conduct described in this section. 

(e) * * * 

(5) Failure to comply with 

prohibitions against tampering with 

locomotive mounted safety devices, or 

knowingly operating or permitting to be 

operated a train with an unauthorized 

disabled safety device in the controlling 

locomotive. (See 49 CFR part 218, 

subpart D, and appendix C to part 218); 

or 

(6) Incidents of noncompliance with 

§ 219.101 of this chapter; however, such 

incidents shall be considered as a 

violation only for the purposes of 

paragraphs (g)(2) and (3) of this section. 

(f) * * * 

(4) A railroad shall not be permitted 

to deny or revoke an employee’s 

certification based upon additional 

conditions or operational restrictions 

imposed pursuant to § 240.107(d). 

(g) * * * 

(3) * * * 

(i) In the case of a single incident 

involving violation of one or more of the 

operating rules or practices described in 

paragraphs (e)(1) through (5) of this 

section, the person shall have his or her 

certificate revoked for a period of 30 

calendar days. 

(ii) In the case of two separate 

incidents involving a violation of one or 

more of the operating rules or practices 

described in paragraphs (e)(1) through 

(5) of this section, that occurred within 

24 months of each other, the person 

shall have his or her certificate revoked 

for a period of 180 calendar days. 

* * * * * 

(h) Any or all periods of revocation 

provided in this section may consist of 

training. 

* * * * * 

■ 17. Section 240.119 is revised to read 

as follows: 

§ 240.119 Criteria for consideration of data 

on substance abuse disorders and alcohol/ 

drug rules compliance. 

(a) Program requirement. Each 

railroad shall adopt and comply with a 

program which complies with the 

requirements of this section. When any 

person, including, but not limited to, 

each railroad, railroad officer, 

supervisor, and employee, violates any 

requirement of a program which 

complies with the requirements of this 

section, that person shall be considered 

to have violated the requirements of this 

section. 

(b) Determination requirement. Each 

railroad, prior to initially certifying or 

recertifying any person as a locomotive 

engineer for any type of service, shall 

determine that the person meets the 

eligibility requirements of this section. 

(c) Recordkeeping requirement. In 

order to make the determination 

required under paragraph (d) of this 

section, a railroad shall have on file 

documents pertinent to that 

determination, including a written 

document from its DAC which states his 

or her professional opinion that the 

person has been evaluated as not 

currently affected by a substance abuse 

disorder or that the person has been 

evaluated as affected by an active 

substance abuse disorder. 

(d) Fitness requirement. (1) A person 

who has an active substance abuse 

disorder shall be denied certification or 

recertification as a locomotive engineer. 

(2) Except as provided in paragraph 

(g) of this section, a certified locomotive 

engineer who is determined to have an 

active substance abuse disorder shall be 

ineligible to hold certification. 

Consistent with other provisions of this 

part, certification may be reinstated as 

provided in paragraph (f) of this section. 

(3) In the case of a current employee 

of the railroad evaluated as having an 

active substance abuse disorder 

(including a person identified under the 

procedures of § 240.115), the employee 

may, if otherwise eligible, voluntarily 

self-refer for substance abuse counseling 

or treatment under the policy required 

by § 219.1001(b)(1) of this chapter; and 

the railroad shall then treat the 

substance abuse evaluation as 

confidential except with respect to 

ineligibility for certification. 

(e) Prior alcohol/drug conduct; 

Federal rule compliance. (1) In 

determining whether a person may be or 

remain certified as a locomotive 

engineer, a railroad shall consider 

conduct described in paragraph (e)(2) of 

this section that occurred within a 

period of 60 consecutive months prior 

to the review. A review of certification 

shall be initiated promptly upon the 

occurrence and documentation of any 

incident of conduct described in this 

paragraph (e)(1). 

(2) A railroad shall consider any 

violation of § 219.101 or § 219.102 of 

this chapter and any refusal to provide 

a breath or body fluid sample for testing 

under the requirements of part 219 of 

this chapter when instructed to do so by 

a railroad representative. 

(3) A period of ineligibility described 

in this paragraph (e) shall begin: 

(i) For a person not currently certified, 

on the date of the railroad’s written 

determination that the most recent 

incident has occurred; or 

(ii) For a person currently certified, on 

the date of the railroad’s notification to 

the person that recertification has been 

denied or certification has been 

revoked. 

(4) The period of ineligibility 

described in this section shall be 

determined in accordance with the 

following standards: 

81312 Federal Register / Vol. 85, No. 241 / Tuesday, December 15, 2020 / Rules and Regulations 

(i) In the case of a single violation of 

§ 219.102 of this chapter, the person 

shall be ineligible to hold a certificate 

during evaluation and any required 

primary treatment as described in 

paragraph (f) of this section. In the case 

of two violations of § 219.102 of this 

chapter, the person shall be ineligible to 

hold a certificate for a period of two 

years. In the case of more than two such 

violations, the person shall be ineligible 

to hold a certificate for a period of five 

years. 

(ii) In the case of one violation of 

§ 219.102 of this chapter and one 

violation of § 219.101 of this chapter, 

the person shall be ineligible to hold a 

certificate for a period of three years. 

(iii) In the case of one violation of 

§ 219.101 of this chapter, the person 

shall be ineligible to hold a certificate 

for a period of 9 months (unless 

identification of the violation was 

through a qualifying referral program 

described in § 219.1001 of this chapter 

and the locomotive engineer waives 

investigation, in which case the 

certificate shall be deemed suspended 

during evaluation and any required 

primary treatment as described in 

paragraph (f) of this section). In the case 

of two or more violations of § 219.101 of 

this chapter, the person shall be 

ineligible to hold a certificate for a 

period of five years. 

(iv) A refusal to provide a breath or 

body fluid sample for testing under the 

requirements of part 219 of this chapter 

when instructed to do so by a railroad 

representative shall be treated, for 

purposes of ineligibility under this 

paragraph (e), in the same manner as a 

violation of: 

(A) Section 219.102 of this chapter, in 

the case of a refusal to provide a urine 

specimen for testing; or 

(B) Section 219.101 of this chapter, in 

the case of a refusal to provide a breath 

sample for alcohol testing or a blood 

specimen for mandatory post-accident 

toxicological testing. 

(f) Future eligibility to hold certificate 

following alcohol/drug violation. The 

following requirements apply to a 

person who has been denied 

certification or who has had 

certification suspended or revoked as a 

result of conduct described in paragraph 

(e) of this section: 

(1) The person shall not be eligible for 

grant or reinstatement of the certificate 

unless and until the person has: 

(i) Been evaluated by a SAP to 

determine if the person currently has an 

active substance abuse disorder; 

(ii) Successfully completed any 

program of counseling or treatment 

determined to be necessary by the SAP 

prior to return to service; and 

(iii) In accordance with the testing 

procedures of subpart H of part 219 of 

this chapter, has had an alcohol test 

with an alcohol concentration of less 

than .02 and presented a urine sample 

that tested negative for controlled 

substances assayed. 

(2) A locomotive engineer placed in 

service or returned to service under the 

above-stated conditions shall continue 

in any program of counseling or 

treatment deemed necessary by the SAP 

and shall be subject to a reasonable 

program of follow-up alcohol and drug 

testing without prior notice for a period 

of not more than 60 months following 

return to service. Follow-up tests shall 

include not fewer than 6 alcohol tests 

and 6 drug tests during the first 12 

months following return to service. 

(3) Return-to-service and follow-up 

alcohol and drug tests shall be 

performed consistent with the 

requirements of subpart H of part 219 of 

this chapter. 

(4) This paragraph (f) does not create 

an entitlement to utilize the services of 

a railroad SAP, to be afforded leave from 

employment for counseling or 

treatment, or to employment as a 

locomotive engineer. Nor does it restrict 

any discretion available to the railroad 

to take disciplinary action based on 

conduct described herein. 

(g) Confidentiality protected. Nothing 

in this part shall affect the responsibility 

of the railroad under § 219.1003(f) of 

this chapter to treat qualified referrals 

for substance abuse counseling and 

treatment as confidential; and the 

certification status of a locomotive 

engineer who is successfully assisted 

under the procedures of that section 

shall not be adversely affected. 

However, the railroad shall include in 

its referral policy, as required pursuant 

to § 219.1003(j) of this chapter, a 

provision that, at least with respect to a 

certified locomotive engineer or a 

candidate for certification, the policy of 

confidentiality is waived (to the extent 

that the railroad shall receive from the 

SAP or DAC official notice of the 

substance abuse disorder and shall 

suspend or revoke the certification, as 

appropriate) if the person at any time 

refuses to cooperate in a recommended 

course of counseling or treatment. 

■ 18. Section 240.121 is amended by 

revising paragraphs (a), (b), and (d) to 

read as follows: 

§ 240.121 Criteria for vision and hearing 

acuity data. 

(a) Each railroad shall adopt and 

comply with a program which complies 

with the requirements of this section. 

When any person, including, but not 

limited to, each railroad, railroad 

officer, supervisor, and employee, 

violates any requirement of a program 

that complies with the requirements of 

this section, that person shall be 

considered to have violated the 

requirements of this section. 

(b) In order to be currently certified as 

a locomotive engineer, except as 

permitted by paragraph (e) of this 

section, a person’s vision and hearing 

shall meet or exceed the standards 

prescribed in this section and appendix 

F to this part. It is recommended that 

each test conducted pursuant to this 

section should be performed according 

to any directions supplied by the 

manufacturer of such test and any 

American National Standards Institute 

(ANSI) standards that are applicable. 

* * * * * 

(d) Except as provided in paragraph 

(e) of this section, each person shall 

have a hearing test or audiogram that 

shows the person’s hearing acuity meets 

or exceeds the following thresholds: The 

person does not have an average hearing 

loss in the better ear greater than 40 

decibels with or without use of a 

hearing aid, at 500 Hz, 1,000 Hz, and 

2,000 Hz. The hearing test or audiogram 

shall meet the requirements of one of 

the following: 

(1) As required in 29 CFR 1910.95(h) 

(Occupational Safety and Health 

Administration); 

(2) As required in § 227.111 of this 

chapter; or 

(3) Conducted using an audiometer 

that meets the specifications of and is 

maintained and used in accordance 

with a formal industry standard, such as 

ANSI S3.6, ‘‘Specifications for 

Audiometers.’’ 

* * * * * 

■ 19. Section 240.123 is amended by 

revising the section heading and 

paragraph (a), revising and republishing 

paragraph (c), and adding paragraphs (e) 

and (f) to read as follows: 

§ 240.123 Training. 

(a) Each railroad shall adopt and 

comply with a program that meets the 

requirements of this section. When any 

person, including, but not limited to, 

each railroad, railroad officer, 

supervisor, and employee, violates any 

requirement of a program that complies 

with the requirements of this section, 

that person shall be considered to have 

violated the requirements of this 

section. 

* * * * * 

(c) A railroad that elects to train a 

previously untrained person to be a 

locomotive engineer shall provide 

initial training that, at a minimum, 

complies with the program 

Federal Register / Vol. 85, No. 241 / Tuesday, December 15, 2020 / Rules and Regulations 81313 

requirements of § 243.101 of this 

chapter and: 

(1) Is composed of classroom, skill 

performance, and familiarization with 

physical characteristics components; 

(2) Includes both knowledge and 

performance skill testing; 

(3) Is conducted under the 

supervision of a qualified class 

instructor; 

(4) Is subdivided into segments or 

periods of appropriate duration to 

effectively cover the following subject 

matter areas: 

(i) Personal safety; 

(ii) Railroad operating rules and 

procedures; 

(iii) Mechanical condition of 

equipment; 

(iv) Train handling procedures 

(including use of locomotive and train 

brake systems); 

(v) Familiarization with physical 

characteristics including train handling; 

and 

(vi) Compliance with Federal railroad 

safety laws, regulations, and orders; and 

(5) Is conducted so that the 

performance skill component shall meet 

the following conditions: 

(i) Be under the supervision of a 

qualified instructor engineer located in 

the same control compartment 

whenever possible; 

(ii) Place the student engineer at the 

controls of a locomotive for a significant 

portion of the time; and 

(iii) Permit the student to experience 

whatever variety of types of trains are 

normally operated by the railroad. 

* * * * * 

(e) A railroad shall designate in its 

program required by this section the 

time period in which a locomotive 

engineer must be absent from a territory 

or yard, before requalification on 

physical characteristics is required. 

(f) A railroad’s program shall include 

the procedures used to qualify or 

requalify a person on the physical 

characteristics. 

■ 20. Section 240.125 is amended by 

revising the section heading and 

paragraph (a), revising and republishing 

paragraph (c), and adding paragraphs 

(e), (f), and (g) to read as follows: 

§ 240.125 Knowledge testing. 

(a) Each railroad shall adopt and 

comply with a program that meets the 

requirements of this section. When any 

person, including, but not limited to, 

each railroad, railroad officer, 

supervisor, and employee, violates any 

requirement of a program that complies 

with the requirements of this section, 

that person shall be considered to have 

violated the requirements of this 

section. 

* * * * * 

(c) The testing methods selected by 

the railroad shall be: 

(1) Designed to examine a person’s 

knowledge of the railroad’s rules and 

practices for the safe operation of trains; 

(2) Objective in nature; 

(3) Administered in written form; 

(4) Cover the following subjects: 

(i) Personal safety practices; 

(ii) Operating practices; 

(iii) Equipment inspection practices; 

(iv) Train handling practices 

including familiarity with the physical 

characteristics of the territory; and 

(v) Compliance with Federal railroad 

safety laws, regulations, and orders; 

(5) Sufficient to accurately measure 

the person’s knowledge of the covered 

subjects; and 

(6) Conducted without open reference 

books or other materials except to the 

degree the person is being tested on his 

or her ability to use such reference 

books or materials. 

* * * * * 

(e) For purposes of paragraph (c) of 

this section, the railroad must provide 

the person(s) being tested with an 

opportunity to consult with a 

supervisory employee, who possesses 

territorial qualifications for the territory, 

to explain a question. 

(f) The documentation shall indicate 

whether the person passed or failed the 

test. 

(g) If a person fails to pass the test, no 

railroad shall permit or require that 

person to function as a locomotive 

engineer prior to that person’s achieving 

a passing score during a reexamination 

of the person’s knowledge. 

■ 21. Section 240.127 is amended by 

revising paragraph (a) to read as follows: 

§ 240.127 Criteria for examining skill 

performance. 

(a) Each railroad shall adopt and 

comply with a program which complies 

with the requirements of this section. 

When any person, including, but not 

limited to, each railroad, railroad 

officer, supervisor, and employee, 

violates any requirement of a program 

that complies with the requirements of 

this section, that person shall be 

considered to have violated the 

requirements of this section. 

* * * * * 

■ 22. Section 240.129 is amended by 

revising paragraphs (a), (b), (c) 

introductory text, (c)(2), (d) introductory 

text, (e) introductory text, and (e)(1) and 

adding paragraph (h) to read as follows: 

§ 240.129 Criteria for monitoring 

operational performance of certified 

engineers. 

(a) Each railroad shall adopt and 

comply with a program which complies 

with the requirements of this section. 

When any person, including, but not 

limited to, each railroad, railroad 

officer, supervisor, and employee, 

violates any requirement of a program 

which complies with the requirements 

of this section, that person shall be 

considered to have violated the 

requirements of this section. 

(b) Each railroad shall have a program 

to monitor the operational performance 

of those it has determined as qualified 

as a locomotive engineer in any class of 

service. The program shall include 

procedures to address the testing of 

certified engineers who are not given 

both an operational monitoring 

observation and an unannounced 

compliance test in a calendar year 

pursuant to paragraph (h) of this 

section. At a minimum, such procedures 

shall include the following: 

(1) A requirement that an operational 

monitoring observation and an 

unannounced compliance test must be 

conducted within 30 days of a return to 

service as a locomotive engineer; and 

(2) The railroad must retain a written 

record indicating the date that the 

engineer stopped performing service 

that requires certification pursuant to 

this part, the date that the engineer 

returned to performing service that 

requires certification pursuant to this 

part, and the dates that the operational 

monitoring observation and the 

unannounced compliance test were 

performed. 

(c) The procedures for the operational 

monitoring observation shall: 

* * * * * 

(2) Be designed so that each engineer 

shall be monitored each calendar year 

by a Designated Supervisor of 

Locomotive Engineers, who does not 

need to be qualified on the physical 

characteristics of the territory over 

which the operational monitoring 

observation will be conducted; 

* * * * * 

(d) The operational monitoring 

observation procedures may be designed 

so that the locomotive engineer being 

monitored either: 

* * * * * 

(e) The unannounced compliance test 

program shall: 

(1) Be designed so that, except for as 

provided in paragraph (h) of this 

section, each locomotive engineer shall 

be given at least one unannounced 

compliance test each calendar year; 

* * * * * 

81314 Federal Register / Vol. 85, No. 241 / Tuesday, December 15, 2020 / Rules and Regulations 

(h) A certified engineer who is not 

performing a service that requires 

certification pursuant to this part need 

not be given an unannounced 

compliance test or operational 

monitoring observation. However, when 

the certified engineer returns to a 

service that requires certification 

pursuant to this part, that certified 

engineer must be tested pursuant to this 

section and § 240.303 within 30 days of 

his or her return. 

■ 23. Section 240.205 is revised to read 

as follows: 

§ 240.205 Procedures for determining 

eligibility based on prior safety conduct. 

(a) Each railroad, prior to initially 

certifying or recertifying any person as 

an engineer for any class of service other 

than student, shall determine that the 

person meets the eligibility 

requirements of § 240.115 involving 

prior conduct as a motor vehicle 

operator, § 240.117 involving prior 

conduct as a railroad worker, and 

§ 240.119 involving substance abuse 

disorders and alcohol/drug rules 

compliance. 

(b) In order to make the determination 

required under paragraph (a) of this 

section, a railroad shall have on file 

documents pertinent to the 

determinations referred to in paragraph 

(a) of this section, including a written 

document from its DAC either reflecting 

his or her professional opinion that the 

person has been evaluated as not 

currently affected by a substance abuse 

disorder or that the person has been 

evaluated as affected by an active 

substance abuse disorder and is 

ineligible for certification. 

■ 24. Section 240.207 is amended by 

revising paragraphs (b)(2) introductory 

text and (b)(2)(i) to read as follows: 

§ 240.207 Procedures for making the 

determination on vision and hearing acuity. 

* * * * * 

(b) * * * 

(2) A written document from its 

medical examiner documenting his or 

her professional opinion that the person 

does not meet one or both acuity 

standards and stating the basis for his or 

her determination that: 

(i) The person can nevertheless be 

certified under certain conditions; or 

* * * * * 

■ 25. Section 240.209 is amended by 

revising paragraphs (b) and (c) to read 

as follows: 

§ 240.209 Procedures for making the 

determination on knowledge. 

* * * * * 

(b) In order to make the determination 

required by paragraph (a) of this section, 

a railroad shall have written 

documentation showing that the person 

either: 

(1) Exhibited his or her knowledge by 

achieving a passing grade in testing that 

complies with this part; or 

(2) Did not achieve a passing grade in 

such testing. 

(c) If a person fails to achieve a 

passing score under the testing 

procedures required by this part, no 

railroad shall permit or require that 

person to operate a locomotive as a 

locomotive or train service engineer 

prior to that person’s achieving a 

passing score during a reexamination of 

his or her knowledge. 

■ 26. Section 240.211 is amended by 

revising paragraph (b) to read as follows: 

§ 240.211 Procedures for making the 

determination on performance skills. 

* * * * * 

(b) In order to make this 

determination, a railroad shall have 

written documentation showing the 

person either: 

(1) Exhibited his or her knowledge by 

achieving a passing grade in testing that 

complies with this part; or 

(2) Did not achieve a passing grade in 

such testing. 

* * * * * 

■ 27. Section 240.215 is amended by 

revising and republishing paragraph (e) 

and revising paragraph (j) to read as 

follows: 

§ 240.215 Retaining information 

supporting determinations. 

* * * * * 

(e) The information concerning 

demonstrated performance skills that 

the railroad shall retain includes: 

(1) The relevant data from the 

railroad’s records concerning the 

person’s success or failure on the 

performance skills test(s) that 

documents the relevant operating facts 

on which the evaluation is based 

including the observations and 

evaluation of the designated supervisor 

of locomotive engineers; 

(2) If a railroad relies on the use of a 

locomotive operations simulator to 

conduct the performance skills testing 

required under this part, the relevant 

data from the railroad’s records 

concerning the person’s success or 

failure on the performance skills test(s) 

that documents the relevant operating 

facts on which the determination was 

based including the observations and 

evaluation of the designated supervisor 

of locomotive engineers; and 

(3) The relevant data from the 

railroad’s records concerning the 

person’s success or failure on tests the 

railroad performed to monitor the 

engineer’s operating performance in 

accordance with § 240.129. 

* * * * * 

(j) Nothing in this section precludes a 

railroad from maintaining the 

information required to be retained 

under this section in an electronic 

format provided that: 

(1) The railroad maintains an 

information technology security 

program adequate to ensure the integrity 

of the electronic data storage system, 

including the prevention of 

unauthorized access to the program 

logic or individual records; 

(2) The program and data storage 

system must be protected by a security 

system that utilizes an employee 

identification number and password, or 

a comparable method, to establish 

appropriate levels of program access 

meeting all of the following standards: 

(i) No two individuals have the same 

electronic identity; and 

(ii) A record cannot be deleted or 

altered by any individual after the 

record is certified by the employee who 

created the record; 

(3) Any amendment to a record is 

either: 

(i) Electronically stored apart from the 

record that it amends; or 

(ii) Electronically attached to the 

record as information without changing 

the original record; 

(4) Each amendment to a record 

uniquely identifies the person making 

the amendment; 

(5) The system employed by the 

railroad for data storage permits 

reasonable access and retrieval of the 

information in usable format when 

requested to furnish data by FRA 

representatives; and 

(6) Information retrieved from the 

system can be easily produced in a 

printed format which can be readily 

provided to FRA representatives in a 

timely manner and authenticated by a 

designated representative of the railroad 

as a true and accurate copy of the 

railroad’s records if requested to do so 

by FRA representatives. 

■ 28. Section 240.217 is amended by 

revising paragraphs (a) and (d) to read 

as follows: 

§ 240.217 Time limitations for making 

determinations. 

(a) A railroad shall not certify or 

recertify a person as a qualified 

locomotive engineer in any class of train 

or engine service, if the railroad is 

making a determination concerning: 

(1) Eligibility and the eligibility data 

being relied on was furnished more than 

366 days before the date of the railroad’s 

certification decision; 

Federal Register / Vol. 85, No. 241 / Tuesday, December 15, 2020 / Rules and Regulations 81315 

(2) Visual and hearing acuity and the 

medical examination being relied on 

was conducted more than 450 days 

before the date of the railroad’s 

recertification decision; 

(3) Demonstrated knowledge and the 

knowledge examination being relied on 

was conducted more than 366 days 

before the date of the railroad’s 

certification decision; 

(4) Demonstrated knowledge and the 

knowledge examination being relied on 

was conducted more than 24 months 

before the date of the railroad’s 

certification decision if the railroad 

administers a knowledge testing 

program pursuant to § 240.125 at 

intervals that do not exceed 24 months; 

or 

(5) Demonstrated performance skills 

and the performance skill testing being 

relied on was conducted more than 366 

days before the date of the railroad’s 

certification decision. 

* * * * * 

(d) A railroad shall issue each person 

designated as a certified locomotive 

engineer a certificate that complies with 

§ 240.223 no later than 30 days from the 

date of its decision to certify or recertify 

that person. 

■ 29. Section 240.219 is amended by 

revising paragraphs (a) and (c) and 

adding paragraph (d) to read as follows: 

§ 240.219 Denial of certification. 

(a) A railroad shall notify a candidate 

for certification or recertification of 

information known to the railroad that 

forms the basis for denying the person 

certification and provide the person a 

reasonable opportunity to explain or 

rebut that adverse information in 

writing prior to denying certification. A 

railroad shall provide the locomotive 

engineer candidate with any written 

documents or records, including written 

statements, related to failure to meet a 

requirement of this part that support its 

pending denial decision. 

* * * * * 

(c) If a railroad denies a person 

certification or recertification, it shall 

notify the person of the adverse decision 

and explain, in writing, the basis for its 

denial decision. The basis for a 

railroad’s denial decision shall address 

any explanation or rebuttal information 

that the locomotive engineer candidate 

may have provided in writing pursuant 

to paragraph (a) of this section. The 

document explaining the basis for the 

denial shall be served on the person 

within 10 days after the railroad’s 

decision and shall give the date of the 

decision. 

(d) A railroad shall not deny the 

person’s certification for failing to 

comply with a railroad operating rule or 

practice that constitutes a violation 

under § 240.117(e)(1) through (5) if 

sufficient evidence exists to establish 

that an intervening cause prevented or 

materially impaired the engineer’s 

ability to comply with that railroad 

operating rule or practice. 

■ 30. Section 240.221 is amended by 

revising paragraphs (d), (e), and (f) to 

read as follows: 

§ 240.221 Identification of qualified 

persons. 

* * * * * 

(d) The listing required by paragraphs 

(a), (b), and (c) of this section shall: 

(1) Be updated at least annually; 

(2) Be available at the divisional or 

regional headquarters of the railroad; 

and 

(3) Be available for inspection or 

copying by FRA during regular business 

hours. 

(e) It shall be unlawful for any 

railroad to knowingly or any individual 

to willfully: 

(1) Make, cause to be made, or 

participate in the making of a false entry 

on the list required by this section; or 

(2) Otherwise falsify such list through 

material misstatement, omission, or 

mutilation. 

(f) Nothing in this section precludes a 

railroad from maintaining the list 

required under this section in an 

electronic format provided that: 

(1) The railroad maintains an 

information technology security 

program adequate to ensure the integrity 

of the electronic data storage system, 

including the prevention of 

unauthorized access to the program 

logic or the list; 

(2) The program and data storage 

system must be protected by a security 

system that utilizes an employee 

identification number and password, or 

a comparable method, to establish 

appropriate levels of program access 

meeting all of the following standards: 

(i) No two individuals have the same 

electronic identity; and 

(ii) An entry on the list cannot be 

deleted or altered by any individual 

after the entry is certified by the 

employee who created the entry; 

(3) Any amendment to the list is 

either: 

(i) Electronically stored apart from the 

entry on the list that it amends; or 

(ii) Electronically attached to the 

entry on the list as information without 

changing the original entry; 

(4) Each amendment to the list 

uniquely identifies the person making 

the amendment; 

(5) The system employed by the 

railroad for data storage permits 

reasonable access and retrieval of the 

information in usable format when 

requested to furnish data by FRA 

representatives; and 

(6) Information retrieved from the 

system can be easily produced in a 

printed format which can be readily 

provided to FRA representatives in a 

timely manner and authenticated by a 

designated representative of the railroad 

as a true and accurate copy of the 

railroad’s records if requested to do so 

by FRA representatives. 

■ 31. Section 240.223 is amended by 

revising and republishing paragraph (a) 

to read as follows: 

§ 240.223 Criteria for the certificate. 

(a) As a minimum, each certificate 

issued in compliance with this part 

shall: 

(1) Identify the railroad or parent 

company that is issuing it; 

(2) Indicate that the railroad, acting in 

conformity with this part, has 

determined that the person to whom it 

is being issued has been determined to 

be qualified to operate a locomotive; 

(3) Identify the person to whom it is 

being issued (including the person’s 

name, employee identification number, 

the year of birth, and either a physical 

description or photograph of the 

person); 

(4) Identify any conditions or 

limitations, including the class of 

service or conditions to ameliorate 

vision or hearing acuity deficiencies, 

that restrict the person’s operational 

authority; 

(5) Show the effective date of each 

certification held; 

(6) Be signed by a supervisor of 

locomotive engineers or other 

individual designated in accordance 

with paragraph (b) of this section; 

(7) Show the date of the person’s last 

operational monitoring event as 

required by §§ 240.129(c) and 

240.303(b), unless that information is 

reflected on supplementary documents 

which the locomotive engineer has in 

his or her possession when operating a 

locomotive; and 

(8) Be of sufficiently small size to 

permit being carried in an ordinary 

pocket wallet. 

* * * * * 

■ 32. Section 240.225 is revised to read 

as follows: 

§ 240.225 Reliance on qualification 

determinations made by other railroads. 

(a) A railroad that is considering 

certification of a person as a qualified 

engineer may rely on determinations 

made by another railroad concerning 

that person’s qualifications. The 

railroad’s certification program shall 

81316 Federal Register / Vol. 85, No. 241 / Tuesday, December 15, 2020 / Rules and Regulations 

address how the railroad will 

administer the training of previously 

uncertified engineers with extensive 

operating experience or previously 

certified engineers who have had their 

certification expire. If a railroad’s 

certification program fails to specify 

how it will train a previously certified 

engineer hired from another railroad, 

then the railroad shall require the newly 

hired engineer to take the hiring 

railroad’s entire training program. 

(b) A railroad relying on another’s 

certification shall determine that: 

(1) The prior certification is still valid 

in accordance with the provisions of 

§§ 240.201, 240.217, and 240.307; 

(2) The prior certification was for the 

same classification of locomotive or 

train service as the certification being 

issued under this section; 

(3) The person has received training 

on and visually observed the physical 

characteristics of the new territory in 

accordance with § 240.123; 

(4) The person has demonstrated the 

necessary knowledge concerning the 

railroad’s operating rules in accordance 

with § 240.125; and 

(5) The person has demonstrated the 

necessary performance skills concerning 

the railroad’s operating rules in 

accordance with § 240.127. 

■ 33. Revise the heading of subpart D to 

read as follows: 

Subpart D—Administration of the 

Certification Program 

■ 34. Section 240.301 is revised to read 

as follows: 

§ 240.301 Replacement of certificates. 

(a) A railroad shall have a system for 

the prompt replacement of lost, stolen 

or mutilated certificates at no cost to 

engineers. That system shall be 

reasonably accessible to certified 

locomotive engineers in need of a 

replacement certificate or temporary 

replacement certificate. 

(b) At a minimum, a temporary 

replacement certificate must identify the 

person to whom it is being issued 

(including the person’s name, 

identification number and year of birth); 

indicate the date of issuance; and be 

authorized by a supervisor of 

locomotive engineers or other 

individual designated in accordance 

with § 240.223(b). Temporary 

replacement certificates may be 

delivered electronically and are valid 

for a period no greater than 30 days. 

■ 35. Section 240.303 is amended by 

revising paragraphs (b) and (c) to read 

as follows: 

§ 240.303 Operational monitoring 

requirements. 

* * * * * 

(b) The program shall be conducted so 

that each locomotive engineer, except as 

provided in § 240.129(h), shall be given 

at least one operational monitoring 

observation by a qualified supervisor of 

locomotive engineers in each calendar 

year. 

(c) The program shall be conducted so 

that each locomotive engineer, except as 

provided in § 240.129(h), shall be given 

at least one unannounced, compliance 

test each calendar year. 

* * * * * 

■ 36. Section 240.305 is amended by 

revising and republishing paragraph (b) 

to read as follows: 

§ 240.305 Prohibited conduct. 

* * * * * 

(b) Each locomotive engineer who has 

received a certificate required under this 

part shall: 

(1) Have that certificate in his or her 

possession while on duty as an 

engineer; and 

(2) Display that certificate upon the 

receipt of a request to do so from: 

(i) A representative of the Federal 

Railroad Administration; 

(ii) A State inspector authorized 

under part 212 of this chapter; 

(iii) An officer of the issuing railroad; 

or 

(iv) An officer of another railroad 

when operating a locomotive or train in 

joint operations territory. 

* * * * * 

■ 37. Section 240.307 is amended by: 

■ a. Revising paragraph (a); 

■ b. Republishing the introductory text 

to paragraph (b); 

■ c. Revising paragraphs (b)(1) and (4); 

■ d. Redesignating paragraphs (b)(5) and 

(6) as paragraphs (b)(6) and (7); 

■ e. Adding a new paragraph (b)(5); and 

■ f. Revising paragraphs (c)(2), (9), and 

(11), (g), (i), and (j)(2). 

The revisions and additions read as 

follows: 

§ 240.307 Revocation of certification. 

(a) Except as provided for in 

§ 240.119(e), a railroad that certifies or 

recertifies a person as a qualified 

locomotive engineer and, during the 

period that certification is valid, 

acquires reliable information regarding 

violation(s) of § 240.117(e) or 

§ 240.119(c) shall revoke the person’s 

engineer certificate. 

(b) Pending a revocation 

determination under this section, the 

railroad shall: 

(1) Upon receipt of reliable 

information regarding violation(s) of 

§ 240.117(e) or § 240.119(c), 

immediately suspend the person’s 

certificate; 

* * * * * 

(4) No later than the convening of the 

hearing and notwithstanding the terms 

of an applicable collective bargaining 

agreement, the railroad convening the 

hearing shall provide the person with a 

copy of the written information and list 

of witnesses the railroad will present at 

the hearing. If requested, a recess to the 

start of the hearing will be granted if 

that information is not provided until 

just prior to the convening of the 

hearing. If the information was provided 

through statements of an employee of 

the convening railroad, the railroad will 

make that employee available for 

examination during the hearing required 

by paragraph (b)(3) of this section. 

Examination may be telephonic where it 

is impractical to provide the witness at 

the hearing; 

(5) Determine, on the record of the 

hearing, whether the person no longer 

meets the certification requirements of 

this part stating explicitly the basis for 

the conclusion reached; 

* * * * * 

(c) * * * 

(2) The hearing shall be conducted by 

a presiding officer, who can be any 

proficient person authorized by the 

railroad other than the investigating 

officer. 

* * * * * 

(9) The record in the proceeding shall 

be closed at the conclusion of the 

hearing unless the presiding officer 

allows additional time for the 

submission of information. In such 

instances, the record shall be left open 

for such time as the presiding officer 

grants for that purpose. 

* * * * * 

(11) The decision shall: 

(i) Contain the findings of fact as well 

as the basis therefor, concerning all 

material issues of fact presented on the 

record and citations to all applicable 

railroad rules and practices; 

(ii) State whether the railroad official 

found that a revocable event occurred 

and the applicable period of revocation 

with a citation to § 240.117 or § 240.119; 

and 

(iii) Be served on the employee and 

the employee’s representative, if any, 

with the railroad to retain proof of that 

service. 

* * * * * 

(g) A railroad that has relied on the 

certification by another railroad under 

the provisions of § 240.227 or § 240.229, 

shall revoke its certification if, during 

the period that certification is valid, the 

railroad acquires information that 

Federal Register / Vol. 85, No. 241 / Tuesday, December 15, 2020 / Rules and Regulations 81317 

convinces it that another railroad has 

revoked its certification in accordance 

with the provisions of this section. The 

requirement to provide a hearing under 

this section is satisfied when any single 

railroad holds a hearing and no 

additional hearing is required prior to a 

revocation by more than one railroad 

arising from the same facts. 

* * * * * 

(i) A railroad: 

(1) Shall not revoke the person’s 

certification as provided for in 

paragraph (a) of this section if sufficient 

evidence exists to establish that an 

intervening cause prevented or 

materially impaired the locomotive 

engineer’s ability to comply with the 

railroad operating rule or practice that 

constitutes a violation under 

§ 240.117(e)(1) through (5); or 

(2) May decide not to revoke the 

person’s certification as provided for in 

paragraph (a) of this section if sufficient 

evidence exists to establish that the 

violation of § 240.117(e)(1) through (5) 

was of a minimal nature and had no 

direct or potential effect on rail safety. 

(j) * * * 

(2) Prior to the convening of the 

hearing provided for in this section. 

* * * * * 

■ 38. Section 240.308 is added to read 

as follows: 

§ 240.308 Multiple certifications. 

(a) A person may hold both conductor 

and locomotive engineer certification. 

(b) A railroad that issues multiple 

certificates to a person, shall, to the 

extent possible, coordinate the 

expiration date of those certificates. 

(c) Except as provided in paragraph 

(d) of this section, a locomotive 

engineer, including a remote control 

operator, who is operating a locomotive 

without an assigned certified conductor 

must either be: 

(1) Certified as both a locomotive 

engineer under this part and as a 

conductor under part 242 of this 

chapter; or 

(2) Accompanied by a person certified 

as a conductor under part 242 of this 

chapter but who will be attached to the 

crew in a manner similar to that of an 

independent assignment. 

(d) If the conductor is removed from 

a passenger train for a medical, police 

or other such emergency after the train 

departs from an initial terminal, the 

train may proceed to the first location 

where the conductor can be replaced 

without incurring undue delay without 

the locomotive engineer being a 

certified conductor. However, an 

assistant conductor or brakeman must 

be on the train and the locomotive 

engineer must be informed that there is 

no certified conductor on the train prior 

to any movement. 

(e) During the duration of any 

certification interval, a person who 

holds a current conductor and/or 

locomotive engineer certificate from 

more than one railroad shall 

immediately notify the other certifying 

railroad(s) if he or she is denied 

conductor or locomotive engineer 

recertification under § 240.219 or 

§ 242.401 of this chapter or has his or 

her conductor or locomotive engineer 

certification revoked under § 240.307 or 

§ 242.407 of this chapter by another 

railroad. 

(f) A person who holds a current 

conductor and locomotive engineer 

certificate and who has had his or her 

conductor certification revoked under 

§ 242.407 of this chapter for a violation 

of § 242.403(e)(1) through (5) or (12) of 

this chapter may not work as a 

locomotive engineer during the period 

of revocation. However, a person who 

holds a current conductor and 

locomotive engineer certificate and who 

has had his or her conductor 

certification revoked under § 242.407 of 

this chapter for a violation of 

§ 242.403(e)(6) through (11) may work 

as a locomotive engineer during the 

period of revocation. 

(1) For purposes of determining the 

period for which a person may not work 

as a certified locomotive engineer due to 

a revocation of his or her conductor 

certification, only violations of 

§ 242.403(e)(1) through (5) or (12) of this 

chapter will be counted. Thus, a person 

who holds a current conductor and 

locomotive engineer certificate and who 

has had his or her conductor 

certification revoked three times in less 

than 36 months for two violations of 

§ 242.403(e)(6) and one violation of 

§ 242.403(e)(1) would have his or her 

conductor certificate revoked for 1 year, 

but would not be permitted to work as 

a locomotive engineer for one month 

(i.e., the period of revocation for one 

violation of § 242.403(e)(1)). 

(g) A person who holds a current 

conductor and locomotive engineer 

certificate and who has had his or her 

locomotive engineer certification 

revoked under § 240.307 may not work 

as a conductor during the period of 

revocation. 

(h) A person who has had his or her 

locomotive engineer certification 

revoked under § 240.307 may not obtain 

a conductor certificate pursuant to part 

242 of this chapter during the period of 

revocation. 

(i) A person who had his or her 

conductor certification revoked under 

§ 242.407 of this chapter for violations 

of § 242.403(e)(1) through (5) or (12) of 

this chapter may not obtain a 

locomotive engineer certificate pursuant 

to this part 240 during the period of 

revocation. 

(j) A railroad that denies a person 

conductor certification or recertification 

under § 242.401 of this chapter shall 

not, solely on the basis of that denial, 

deny or revoke that person’s locomotive 

engineer certification or recertification. 

(k) A railroad that denies a person 

locomotive engineer certification or 

recertification under § 240.219 shall not, 

solely on the basis of that denial, deny 

or revoke that person’s conductor 

certification or recertification. 

(l) In lieu of issuing multiple 

certificates, a railroad may issue one 

certificate to a person who is certified as 

a conductor and a locomotive engineer. 

The certificate must comply with 

§ 240.223 and § 242.207 of this chapter. 

(m) A person who holds a current 

conductor and locomotive engineer 

certification and who is involved in a 

revocable event under § 240.307 or 

§ 242.407 of this chapter may only have 

one certificate revoked for that event. 

The determination by the railroad as to 

which certificate to revoke for the 

revocable event must be based on the 

work the person was performing at the 

time the event occurred. 

■ 39. Section 240.309 is amended by: 

■ a. Revising paragraphs (b)(4), (e)(1), 

(2), (8), and (9), and (f) through (h); and 

■ b. Adding paragraph (i). 

The revisions and addition read as 

follows: 

§ 240.309 Railroad oversight 

responsibilities. 

* * * * * 

(b) * * * 

(4) If the railroad conducts joint 

operations with another railroad, the 

number of locomotive engineers 

employed by the other railroad(s) that: 

Were involved in events described in 

this paragraph (b) and were determined 

to be certified and to have possessed the 

necessary territorial qualifications for 

joint operations purposes by the 

controlling railroad. 

* * * * * 

(e) * * * 

(1) Incidents involving 

noncompliance with part 218 of this 

chapter; 

(2) Incidents involving 

noncompliance with part 219 of this 

chapter; 

* * * * * 

(8) Incidents involving the failure to 

comply with prohibitions against 

tampering with locomotive mounted 

safety devices, or knowingly operating 

81318 Federal Register / Vol. 85, No. 241 / Tuesday, December 15, 2020 / Rules and Regulations 

or permitting to be operated a train with 

an unauthorized or disabled safety 

device in the controlling locomotive; 

and 

(9) Incidents involving 

noncompliance with the railroad’s 

operating practices (including train 

handling procedures) resulting in 

excessive in-train force levels. 

(f) For reporting purposes, an instance 

of poor safety conduct involving a 

person who holds both conductor 

certification pursuant to part 242 of this 

chapter and locomotive engineer 

certification pursuant to this part need 

only be reported once (either under 

§ 242.215 of this chapter or this section). 

The determination as to where to report 

the instance of poor safety conduct 

should be based on the work the person 

was performing at the time the conduct 

occurred. 

(g) For reporting purposes, each 

category of detected poor safety conduct 

identified in paragraph (b) of this 

section shall be capable of being 

annotated to reflect the following: 

(1) The nature of the remedial action 

taken and the number of events 

subdivided so as to reflect which of the 

following actions was selected: 

(i) Imposition of informal discipline; 

(ii) Imposition of formal discipline; 

(iii) Provision of informal training; or 

(iv) Provision of formal training; and 

(2) If the nature of the remedial action 

taken was formal discipline, the number 

of events further subdivided so as to 

reflect which of the following 

punishments was imposed by the 

railroad: 

(i) The person was withheld from 

service; 

(ii) The person was dismissed from 

employment; or 

(iii) The person was issued demerits. 

If more than one form of punishment 

was imposed only that punishment 

deemed the most severe shall be shown. 

(h) For reporting purposes, each 

category of detected poor safety conduct 

identified in paragraph (b) of this 

section which resulted in the imposition 

of formal or informal discipline shall be 

annotated to reflect the following: 

(1) The number of instances in which 

the railroad’s internal appeals process 

reduced the punishment initially 

imposed at the conclusion of its hearing; 

and 

(2) The number of instances in which 

the punishment imposed by the railroad 

was reduced by any of the following 

entities: The National Railroad 

Adjustment Board, a Public Law Board, 

a Special Board of Adjustment or other 

body for the resolution of disputes duly 

constituted under the provisions of the 

Railway Labor Act. 

(i) For reporting purposes, each 

category of detected poor safety conduct 

identified in paragraph (b) of this 

section shall be capable of being 

annotated to reflect the following: 

(1) The total number of incidents in 

that category; 

(2) The number of incidents within 

that total which reflect incidents 

requiring an FRA accident/incident 

report under part 225 of this chapter; 

and 

(3) The number of incidents within 

that total which were detected as a 

result of a scheduled operational 

monitoring effort. 

■ 40. Section 240.401 is revised to read 

as follows: 

§ 240.401 Review board established. 

(a) Any person who has been denied 

certification, denied recertification, or 

has had his or her certification revoked 

and believes that a railroad incorrectly 

determined that he or she failed to meet 

the certification requirements of this 

part when making the decision to deny 

or revoke certification, may petition the 

Federal Railroad Administrator to 

review the railroad’s decision. 

(b) The Administrator has delegated 

initial responsibility for adjudicating 

such disputes to the Operating Crew 

Review Board. 

(c) The Operating Crew Review Board 

shall be composed of employees of the 

Federal Railroad Administration 

selected by the Administrator. 

■ 41. Section 240.403 is amended by: 

■ a. Revising and republishing 

paragraph (b); 

■ b. Revising paragraphs (c) and (d); and 

■ c. Removing paragraph (e). 

The revisions and addition read as 

follows: 

§ 240.403 Petition requirements. 

* * * * * 

(b) Each petition shall: 

(1) Be in writing; 

(2) Be filed with the Docket Clerk, 

U.S. Department of Transportation, 

Docket Operations (M–30), West 

Building Ground Floor, Room W12–140, 

1200 New Jersey Avenue SE, 

Washington, DC 20590. The form of 

such request may be in written or 

electronic form consistent with the 

standards and requirements established 

by the Federal Docket Management 

System and posted on its website at 

http://www.regulations.gov; 

(3) Contain all available information 

that the person thinks supports the 

person’s belief that the railroad acted 

improperly, including: 

(i) The petitioner’s full name; 

(ii) The petitioner’s current mailing 

address; 

(iii) The petitioner’s daytime 

telephone number; 

(iv) The petitioner’s email address (if 

available); 

(v) The name and address of the 

railroad; and 

(vi) The facts that the petitioner 

believes constitute the improper action 

by the railroad, specifying the locations, 

dates, and identities of all persons who 

were present or involved in the 

railroad’s actions (to the degree known 

by the petitioner); 

(4) Explain the nature of the remedial 

action sought; 

(5) Be supplemented by a copy of all 

written documents in the petitioner’s 

possession or reasonably available to the 

petitioner that document that railroad’s 

decision; 

(6) Be filed in a timely manner; and 

(7) Be supplemented, if requested by 

the Operating Crew Review Board, with 

a copy of the information under 49 CFR 

40.329 that laboratories, medical review 

officers, and other service agents are 

required to release to employees. The 

petitioner must provide written 

explanation in response to an Operating 

Crew Review Board request if written 

documents that should be reasonably 

available to the petitioner are not 

supplied. 

(c) A petition seeking review of a 

railroad’s decision to deny certification 

or recertification or revoke certification 

in accordance with the procedures 

required by § 240.307 filed with FRA 

more than 120 days after the date the 

railroad’s denial or revocation decision 

was served on the petitioner will be 

denied as untimely except that the 

Operating Crew Review Board for cause 

shown may extend the petition filing 

period at any time in its discretion: 

(1) Provided that the request for 

extension is filed before the expiration 

of the period provided in this paragraph 

(c); or 

(2) Provided that the failure to file 

timely was the result of excusable 

neglect. 

(d) A party aggrieved by a Board 

decision to deny a petition as untimely 

or not in compliance with the 

requirements of this section may file an 

appeal with the Administrator in 

accordance with § 240.411. 

■ 42. Section 240.405 is revised to read 

as follows: 

§ 240.405 Processing certification review 

petitions. 

(a) Each petition shall be 

acknowledged in writing by FRA. The 

acknowledgment shall contain the 

docket number assigned to the petition 

and a statement of FRA’s intention that 

the Board will attempt to render a 

Federal Register / Vol. 85, No. 241 / Tuesday, December 15, 2020 / Rules and Regulations 81319 

decision on this petition within 180 

days from the date that the railroad’s 

response is received or from the date 

upon which the railroad’s response 

period has lapsed pursuant to paragraph 

(c) of this section. 

(b) Upon receipt of the petition, FRA 

will notify the railroad that it has 

received the petition and where the 

petition may be accessed. 

(c) Within 60 days from the date of 

the notification provided in paragraph 

(b) of this section, the railroad may 

submit to FRA any information that the 

railroad considers pertinent to the 

petition. Late filings will only be 

considered to the extent practicable. 

(d) A railroad that submits such 

information shall: 

(1) Identify the petitioner by name 

and the docket number of the review 

proceeding and provide the railroad’s 

email address (if available); 

(2) Serve a copy of the information 

being submitted to FRA to the petitioner 

and petitioner’s representative, if any; 

and 

(3) File the information with the 

Docket Clerk, U.S. Department of 

Transportation, Docket Operations (M– 

30), West Building Ground Floor, Room 

W12–140, 1200 New Jersey Avenue SE, 

Washington, DC 20590. The form of 

such information may be in written or 

electronic form consistent with the 

standards and requirements established 

by the Federal Docket Management 

System and posted on its website at 

http://www.regulations.gov. 

(e) Each petition will then be referred 

to the Operating Crew Review Board for 

a decision. 

(f) Based on the record, the Board 

shall have the authority to grant, deny, 

dismiss, or remand the petition. 

(g) If the Board finds that there is 

insufficient basis for granting or denying 

the petition, the Board shall issue an 

order affording the parties an 

opportunity to provide additional 

information or argument consistent with 

its findings. 

(h) When considering factual issues, 

the Board will determine whether there 

is substantial evidence to support the 

railroad’s decision, and a negative 

finding is grounds for granting the 

petition. 

(i) When considering procedural 

issues, the Board will determine 

whether the petitioner suffered 

substantial harm that was caused by the 

failure to adhere to the dictated 

procedures for making the railroad’s 

decision. A finding of substantial harm 

is grounds for reversing the railroad’s 

decision. To establish grounds upon 

which the Board may grant relief, 

Petitioner must show: 

(1) That procedural error occurred; 

and 

(2) The procedural error caused 

substantial harm. 

(j) Pursuant to its reviewing role, the 

Board will consider whether the 

railroad’s legal interpretations are 

correct based on a de novo review. 

(k) The Board will determine whether 

the denial or revocation of certification 

or recertification was improper under 

this part (i.e., based on an incorrect 

determination that the person failed to 

meet the certification requirements of 

this part) and grant or deny the petition 

accordingly. The Board will not 

otherwise consider the propriety of a 

railroad’s decision, i.e., it will not 

consider whether the railroad properly 

applied its own more stringent 

requirements. 

(l) The Board’s written decision shall 

be served on the petitioner, including 

the petitioner’s representative, if any, 

and the railroad. 

■ 43. Section 240.407 is amended by 

revising paragraphs (a) and (c) and 

revising and republishing paragraph (d) 

to read as follows: 

§ 240.407 Request for a hearing. 

(a) If adversely affected by the 

Operating Crew Review Board’s 

decision, either the petitioner before the 

Board or the railroad involved shall 

have a right to an administrative 

proceeding as prescribed by § 240.409. 

* * * * * 

(c) If a party fails to request a hearing 

within the period provided in paragraph 

(b) of this section, the Operating Crew 

Review Board’s decision will constitute 

final agency action. 

(d) If a party elects to request a 

hearing, that person shall submit a 

written request to the Docket Clerk 

containing the following: 

(1) The name, address, telephone 

number, and email address (if available) 

of the respondent and the requesting 

party’s designated representative, if any; 

(2) The specific factual issues, 

industry rules, regulations, or laws that 

the requesting party alleges need to be 

examined in connection with the 

certification decision in question; and 

(3) The signature of the requesting 

party or the requesting party’s 

representative, if any. 

* * * * * 

■ 44. Section 240.409 is amended by 

revising paragraphs (a), (p), and (q) to 

read as follows: 

§ 240.409 Hearings. 

(a) An administrative hearing for a 

locomotive engineer certification 

petition shall be conducted by a 

presiding officer, who can be any person 

authorized by the Administrator, 

including an administrative law judge. 

* * * * * 

(p) The petitioner before the 

Operating Crew Review Board, the 

railroad involved in taking the 

certification action, and FRA shall be 

parties at the hearing. All parties may 

participate in the hearing and may 

appear and be heard on their own behalf 

or through designated representatives. 

All parties may offer relevant evidence, 

including testimony, and may conduct 

such cross-examination of witnesses as 

may be required to make a record of the 

relevant facts. 

(q) The party requesting the 

administrative hearing shall be the 

‘‘hearing petitioner.’’ The hearing 

petitioner shall have the burden of 

proving its case by a preponderance of 

the evidence. Hence, if the hearing 

petitioner is the railroad involved in 

taking the certification action, that 

railroad will have the burden of proving 

that its decision to deny certification, 

deny recertification, or revoke 

certification was correct. Conversely, if 

the petitioner before the Operating Crew 

Review Board is the hearing petitioner, 

that person will have the burden of 

proving that the railroad’s decision to 

deny certification, deny recertification, 

or revoke certification was incorrect. 

Between the petitioner before the 

Operating Crew Review Board and the 

railroad involved in taking the 

certification action, the party who is not 

the hearing petitioner will be a 

respondent. 

* * * * * 

■ 45. Section 240.411 is amended by 

revising paragraphs (a) and (f) to read as 

follows: 

§ 240.411 Appeals. 

(a) Any party aggrieved by the 

presiding officer’s decision may file an 

appeal in the presiding officer’s docket. 

The appeal must be filed within 35 days 

of issuance of the decision. A copy of 

the appeal shall be served on each party. 

The appeal shall set forth objections to 

the presiding officer’s decision, 

supported by reference to applicable 

laws and regulations and with specific 

reference to the record. If no appeal is 

timely filed, the presiding officer’s 

decision constitutes final agency action. 

* * * * * 

(f) An appeal from an Operating Crew 

Review Board decision pursuant to 

§ 240.403(d) must be filed in the Board’s 

docket within 35 days of issuance of the 

decision. A copy of the appeal shall be 

served on each party. The Administrator 

may affirm or vacate the Board’s 

81320 Federal Register / Vol. 85, No. 241 / Tuesday, December 15, 2020 / Rules and Regulations 

decision, and may remand the petition 

to the Board for further proceedings. An 

Administrator’s decision to affirm the 

Board’s decision constitutes final 

agency action. 

■ 46. Revise appendix B to part 240 to 

read as follows: 

Appendix B to Part 240—Procedures 

for Submission and Approval of 

Locomotive Engineer Qualification 

Programs 

This appendix establishes procedures for 

the submission and approval of a railroad’s 

program concerning the training, testing, and 

evaluating of persons seeking certification or 

recertification as a locomotive engineer in 

accordance with the requirements of this part 

(see §§ 240.101, 240.103, 240.105, 240.107, 

240.123, 240.125, 240.127, and 240.129). It 

also contains guidance on how FRA will 

exercise its review and approval 

responsibilities. 

Submission by a Railroad 

As provided for in § 240.101, each railroad 

must have a program for determining the 

certification of each person it permits or 

requires to operate a locomotive. In designing 

its program, a railroad must take into account 

the trackage and terrain over which it 

operates, the system(s) for train control that 

are employed, and the operational design 

characteristics of the track and equipment 

being operated including train length, train 

makeup, and train speeds. Each railroad must 

submit its individual program to FRA for 

approval as provided for in § 240.103. Each 

program must be accompanied by a request 

for approval organized in accordance with 

this appendix. Requests for approval must 

contain appropriate references to the relevant 

portion of the program being discussed. 

Requests can be in letter or narrative format. 

The primary method for a railroad’s 

submission is by email to 

FRAOPCERTPROG@dot.gov. For a railroad 

that is unable to send the program by email, 

the program shall be sent to the Associate 

Administrator for Railroad Safety/Chief 

Safety Officer, Federal Railroad 

Administration, 1200 New Jersey Avenue SE, 

Washington, DC 20590. Simultaneous with 

its filing with FRA, each railroad must 

provide a copy of its submission to the 

president of each labor organization that 

represents the railroad’s employees subject to 

this part. 

A railroad that electronically submits an 

initial program or new portions or revisions 

to an approved program required by this part 

shall be considered to have provided its 

consent to receive approval or disapproval 

notices from FRA by email. FRA may 

electronically store any materials required by 

this part regardless of whether the railroad 

that submits the materials does so by 

delivering the written materials to the 

Associate Administrator and opts not to 

submit the materials electronically. A 

railroad that opts not to submit the materials 

required by this part electronically, but 

provides one or more email addresses in its 

submission, shall be considered to have 

provided its consent to receive approval or 

disapproval notices from FRA by email or 

mail. 

Organization of the Submission 

Each request should be organized to 

present the required information in the 

following standardized manner. Each section 

must begin by giving the name, title, 

telephone number, and email and mailing 

addresses of the person to be contacted 

concerning the matters addressed by that 

section. If a person is identified in a prior 

section, it is sufficient merely to repeat the 

person’s name in a subsequent section. 

Section 1 of the Submission: General 

Information and Elections 

The first section of the request must 

contain the name of the railroad, the person 

to be contacted concerning the request 

(including the person’s name, title, telephone 

number, and email and mailing addresses) 

and a statement electing either to accept 

responsibility for educating previously 

untrained persons to be qualified locomotive 

engineers or recertify only engineers 

previously certified by other railroads. 

§ 240.103(b). 

If a railroad elects not to provide initial 

locomotive engineer training, the railroad is 

obligated to state so in its submission. A 

railroad that makes this election will be 

limited to recertifying persons initially 

certified by another railroad. A railroad that 

makes this election can rescind it by 

obtaining FRA approval of a modification of 

its program. § 240.103(e). 

If a railroad elects to accept responsibility 

for training persons not previously trained to 

be locomotive engineers, the railroad is 

obligated to submit information on how such 

persons will be trained but has no duty to 

conduct such training. A railroad that elects 

to accept the responsibility for the training of 

such persons may authorize another railroad 

or a non-railroad entity to perform the actual 

training effort. The electing railroad remains 

responsible for assuring that such other 

training providers adhere to the training 

program the railroad submits. 

This section must also state which class or 

classes of service the railroad will employ. 

§ 240.107. 

Section 2 of the Submission: Selection of 

Supervisors of Locomotive Engineers 

The second section of the request must 

contain information concerning the railroad’s 

procedure for selecting the person or persons 

it will rely on to evaluate the knowledge, 

skill, and ability of persons seeking 

certification or recertification. As provided 

for in § 240.105, each railroad must have a 

procedure for selecting supervisors of 

locomotive engineers which assures that 

persons so designated can appropriately test 

and evaluate the knowledge, skill, and ability 

of individuals seeking certification or 

recertification. 

Section 240.105 provides a railroad 

latitude to select the criteria and evaluation 

methodology it will rely on to determine 

which person or persons have the required 

capacity to perform as a supervisor of 

locomotive engineers. The railroad must 

describe in this section how it will use that 

latitude and evaluate those it designates as 

supervisors of locomotive engineers so as to 

comply with the performance standard set 

forth in § 240.105(b). The railroad must 

identify, in sufficient detail to permit 

effective review by FRA, the criteria for 

evaluation it has selected. For example, if a 

railroad intends to rely on one or more of the 

following, a minimum level of prior 

experience as an engineer, successful 

completion of a course of study, or successful 

passage of a standardized testing program, 

the submission must state which criteria it 

will employ. 

Section 3 of the Submission: Training 

Persons Previously Certified 

The third section of the request must 

contain information concerning the railroad’s 

program for training previously certified 

locomotive engineers. As provided for in 

§ 240.123(b) each railroad must have a 

program for the ongoing education of its 

locomotive engineers to assure that they 

maintain the necessary knowledge 

concerning personal safety, operating rules 

and practices, mechanical condition of 

equipment, methods of safe train handling 

(including familiarity with physical 

characteristics), and relevant Federal safety 

rules. 

Section 240.123(b) provides a railroad 

latitude to select the specific subject matter 

to be covered, duration of the training, 

method of presenting the information, and 

the frequency with which the training will be 

provided. The railroad must describe in this 

section how it will use that latitude to assure 

that its engineers remain knowledgeable 

concerning the safe discharge of their train 

operation responsibilities so as to comply 

with the performance standard set forth in 

§ 240.123(b). This section must contain 

sufficient detail to permit effective evaluation 

of the railroad’s training program in terms of 

the subject matter covered, the frequency and 

duration of the training sessions, the type of 

formal training employed (including, but not 

limited to, classroom, computer-based, 

correspondence, OJT, simulator, or laboratory 

training) and which aspects of the program 

are voluntary or mandatory. 

Without assistance from automation, safe 

train handling involves both abstract 

knowledge about the appropriate use of 

engine controls and the application of that 

knowledge to trains of differing composition 

traversing varying terrain. Time and 

circumstances have the capacity to diminish 

both abstract knowledge and the proper 

application of that knowledge to discrete 

events. Time and circumstances also have the 

capacity to alter the value of previously 

obtained knowledge and the application of 

that knowledge. In formulating how it will 

use the discretion being afforded, each 

railroad must design its program to address 

both loss of retention of knowledge and 

changed circumstances, and this section of 

the submission to FRA must address these 

matters. 

For example, locomotive engineers need to 

have their fundamental knowledge of train 

operations refreshed periodically. Each 

railroad needs to advise FRA how that need 

is satisfied in terms of the interval between 

attendance at such training, the nature of the 

training being provided, and methods for 

Federal Register / Vol. 85, No. 241 / Tuesday, December 15, 2020 / Rules and Regulations 81321 

conducting the training. A matter of 

particular concern to FRA is how each 

railroad acts to ensure that engineers remain 

knowledgeable about safe train handling 

procedures if the territory over which a 

locomotive engineer is authorized to operate 

is territory from which the engineer has been 

absent. The railroad must have a plan for the 

familiarization training that addresses the 

question of how long a person can be absent 

before needing more education and, once that 

threshold is reached, how the person will 

acquire the needed education. Similarly, the 

program must address how the railroad 

responds to changes such as the introduction 

of new technology, new operating rule books, 

or significant changes in operations 

including alteration in the territory engineers 

are authorized to operate over. 

Section 4 of the Submission: Testing and 

Evaluating Persons Previously Certified 

The fourth section of the request must 

contain information concerning the railroad’s 

program for testing and evaluating previously 

certified locomotive engineers. As provided 

for in §§ 240.125 and 240.127, each railroad 

must have a program for the ongoing testing 

and evaluating of its locomotive engineers to 

ensure that they have the necessary 

knowledge and skills concerning personal 

safety, operating rules and practices, 

mechanical condition of equipment, methods 

of safe train handling (including familiarity 

with physical characteristics), and relevant 

Federal safety rules. Similarly, each railroad 

must have a program for ongoing testing and 

evaluating to ensure that its locomotive 

engineers have the necessary vision and 

hearing acuity as provided for in § 240.121. 

Sections 240.125 and 240.127 require that 

a railroad rely on written procedures for 

determining that each person can 

demonstrate his or her knowledge of the 

railroad’s rules and practices and skill at 

applying those rules and practices for the 

safe operation of a locomotive or train. 

Section 240.125 directs that, when seeking a 

demonstration of the person’s knowledge, a 

railroad must employ a written test that 

contains objective questions and answers and 

covers the following subject matters: (i) 

Personal safety practices; (ii) operating 

practices; (iii) equipment inspection 

practices; (iv) train handling practices 

(including familiarity with the physical 

characteristics of the territory); and (v) 

compliance with relevant Federal safety 

rules. The test must accurately measure the 

person’s knowledge of all of these areas. 

Section 240.125 provides a railroad 

latitude in selecting the design of its own 

testing policies (including the number of 

questions each test will contain, how each 

required subject matter will be covered, 

weighting (if any) to be given to particular 

subject matter responses, selection of passing 

scores, and the manner of presenting the test 

information). The railroad must describe in 

this section how it will use that latitude to 

ensure that its engineers will demonstrate 

their knowledge concerning the safe 

discharge of their train operation 

responsibilities so as to comply with the 

performance standard set forth in § 240.125. 

Section 240.127 directs that, when seeking 

a demonstration of the person’s skill, a 

railroad must employ a test and evaluation 

procedure conducted by a designated 

supervisor of locomotive engineers that 

contains an objective evaluation of the 

person’s skills at applying the railroad’s rules 

and practices for the safe operation of trains. 

The test and evaluation procedure must 

examine the person’s skills in terms of all of 

the following subject matters: (i) Operating 

practices; (ii) equipment inspection practices; 

(iii) train handling practices (including 

familiarity with the physical characteristics 

of the territory); and (iv) compliance with 

relevant Federal safety rules. The test must 

be sufficient to examine effectively the 

person’s skills while operating a train in the 

most demanding type of service which the 

person is likely to encounter in the normal 

course of events once he or she is deemed 

qualified. 

Section 240.127 provides a railroad 

latitude in selecting the design of its own 

testing and evaluation procedures (including 

the duration of the evaluation process, how 

each required subject matter will be covered, 

weighing (if any) to be given to particular 

subject matter response, selection of passing 

scores, and the manner of presenting the test 

information). However, the railroad must 

describe the scoring system used by the 

railroad during a skills test administered in 

accordance with the procedures required 

under § 240.211. The description shall 

include the skills to be tested and the weight 

or possible score that each skill will be given. 

The section should also provide information 

concerning the procedures which the railroad 

will follow that achieve the objectives 

described in FRA’s recommended practices 

(see appendix E to this part) for conducting 

skill performance testing. The section also 

gives a railroad the latitude to employ either 

a Type 1 or a Type 2 simulator (properly 

programmed) to conduct the test and 

evaluation procedure. A railroad must 

describe in this section how it will use that 

latitude to assure that its engineers will 

demonstrate their skills concerning the safe 

discharge of their train operation 

responsibilities so as to comply with the 

performance standard set forth in § 240.127. 

Section 240.121 provides a railroad 

latitude to rely on the professional medical 

opinion of the railroad’s medical examiner 

concerning the ability of a person with 

substandard acuity to operate a locomotive 

safely. The railroad must describe in this 

section how it will ensure that its medical 

examiner has sufficient information 

concerning the railroad’s operations to make 

appropriate conclusions about the ability of 

a particular individual to operate a train 

safely. 

Section 5 of the Submission: Training, 

Testing, and Evaluating Persons Not 

Previously Certified 

Unless a railroad has made an election not 

to accept responsibility for conducting the 

initial training of persons to be locomotive 

engineers, the fifth section of the request 

must contain information concerning the 

railroad’s program for educating, testing, and 

evaluating persons not previously trained as 

locomotive engineers. As provided for in 

§ 240.123(c), a railroad that is issuing an 

initial certification to a person to be a 

locomotive engineer must have a program for 

the training, testing, and evaluating of its 

locomotive engineers to ensure that they 

acquire the necessary knowledge and skills 

concerning personal safety, operating rules 

and practices, mechanical condition of 

equipment, methods of safe train handling 

(including familiarity with physical 

characteristics), and relevant Federal safety 

rules. 

Section 240.123 establishes a performance 

standard and gives a railroad latitude in 

selecting how it will meet that standard. A 

railroad must describe in this section how it 

will use that latitude to ensure that its 

engineers will acquire sufficient knowledge 

and skill and demonstrate their knowledge 

and skills concerning the safe discharge of 

their train operation responsibilities. This 

section must contain the same level of detail 

concerning initial training programs as that 

described for each of the components of the 

overall program contained in sections 2 

through 4 of this appendix. A railroad that 

plans to accept responsibility for the initial 

training of locomotive engineers may 

authorize a non-railroad entity to perform the 

actual training effort as long as the other 

entity complies with the requirements for 

training organizations and learning 

institutions in § 243.111 of this chapter. The 

authorizing railroad may submit a training 

program developed by that authorized trainer 

but the authorizing railroad remains 

responsible for ensuring that such other 

training providers adhere to the training 

program submitted. Railroads that elect to 

rely on other entities, to conduct training 

away from the railroad’s own territory, must 

indicate how the student will be provided 

with the required familiarization with the 

physical characteristics for its territory. 

Section 6 of the Submission: Monitoring 

Operational Performance by Certified 

Engineers 

The final section of the request must 

contain information concerning the railroad’s 

program for monitoring the operation of its 

certified locomotive engineers. As provided 

for in § 240.129, each railroad must have a 

program for the ongoing monitoring of its 

locomotive engineers to ensure that they 

operate their locomotives in conformity with 

the railroad’s operating rules and practices 

including methods of safe train handling and 

relevant Federal safety rules. 

Section 240.129 requires that a railroad 

annually observe each locomotive engineer 

demonstrating his or her knowledge of the 

railroad’s rules and practices and skill at 

applying those rules and practices for the 

safe operation of a locomotive or train. 

Section 240.129 directs that the observation 

be conducted by a designated supervisor of 

locomotive engineers but provides a railroad 

latitude in selecting the design of its own 

observation procedures (including the 

duration of the observation process, reliance 

on event recorder downloads that record the 

specifics of train operation, and the specific 

aspects of the engineer’s performance to be 

covered). The section also gives a railroad the 

latitude to employ either a Type 1 or a Type 

2 simulator (properly programmed) to 

conduct monitoring observations. A railroad 

must describe in this section how it will use 

81322 Federal Register / Vol. 85, No. 241 / Tuesday, December 15, 2020 / Rules and Regulations 

that latitude to assure that the railroad is 

monitoring that its engineers demonstrate 

their skills concerning the safe discharge of 

their train operation responsibilities. A 

railroad must also describe the scoring 

system used by the railroad during an 

operational monitoring observation or 

unannounced compliance test administered 

in accordance with the procedures required 

under § 240.303. A railroad that intends to 

employ train operation event recorder tapes 

to comply with this monitoring requirement 

shall indicate in this section how it 

anticipates determining what person was at 

the controls and what signal indications or 

other operational constraints, if any, were 

applicable to the train’s movement. 

Section 7 of the Submission: Procedures for 

Routine Administration of the Engineer 

Certification Program 

The final section of the request must 

contain a summary of how the railroad’s 

program and procedures will implement the 

various specific aspects of the regulatory 

provisions that relate to routine 

administration of its certification program for 

locomotive engineers. At a minimum, this 

section needs to address the procedural 

aspects of the rule’s provisions identified in 

the following paragraph. 

Section 240.109 provides that each railroad 

must have procedures for review and 

comment on adverse prior safety conduct, 

but allows the railroad to devise its own 

system within generalized parameters. 

Sections 240.115, 240.117 and 240.119 

require a railroad to have procedures for 

evaluating data concerning prior safety 

conduct as a motor vehicle operator and as 

railroad workers, yet leave selection of many 

details to the railroad. Sections 240.203, 

240.217, and 240.219 place a duty on the 

railroad to make a series of determinations 

but allow the railroad to select what 

procedures it will employ to assure that all 

of the necessary determinations have been 

made in a timely fashion; who will be 

authorized to conclude that person is or is 

not qualified; and how it will communicate 

adverse decisions. Documentation of the 

factual basis the railroad relied on in making 

determinations under §§ 240.205, 240.207, 

240.209, 240.211, and 240.213 is required, 

but these sections permit the railroad to 

select the procedures it will employ to 

accomplish compliance with these 

provisions. Sections 240.225 and 240.227 

permit reliance on qualification 

determinations made by other entities and 

permit a railroad latitude in selecting the 

procedures it will employ to ensure 

compliance with these provisions. Similarly, 

§ 240.229 permits use of railroad selected 

procedures to meet the requirements for 

certification of engineers performing service 

in joint operations territory. Sections 240.301 

and 240.307 allow a railroad a certain degree 

of discretion in complying with the 

requirements for replacing lost certificates or 

the conduct of certification revocation 

proceedings. 

This section of the request should outline 

in summary fashion the manner in which the 

railroad will implement its program so as to 

comply with the specific aspects of each of 

the rule’s provisions described in the 

preceding paragraph. 

FRA Review 

The submissions made in conformity with 

this appendix will be deemed approved 

within 30 days after the required filing date 

or the actual filing date whichever is later. 

No formal approval document will be issued 

by FRA. The brief interval for review reflects 

FRA’s judgment that railroads generally 

already have existing programs that will meet 

the requirements of this part. FRA has taken 

the responsibility for notifying a railroad 

when it detects problems with the railroad’s 

program. FRA retains the right to disapprove 

a program that has obtained approval due to 

the passage of time as provided for in section 

§ 240.103. 

Rather than establish rigid requirements for 

each element of the program, FRA has given 

railroads discretion to select the design of 

their individual programs within a specified 

context for each element. The rule, however, 

provides a good guide to the considerations 

that should be addressed in designing a 

program that will meet the performance 

standards of this rule. In reviewing program 

submissions, FRA will focus on the degree to 

which a particular program deviates from the 

norms set out in its rule. To the degree that 

a particular program submission materially 

deviates from the norms set out in its rule, 

FRA’s review and approval process will be 

focused on determining the validity of the 

reasoning relied on by a railroad for selecting 

its alternative approach and the degree to 

which the alternative approach is likely to be 

effective in producing locomotive engineers 

who have the knowledge, skill, and ability to 

operate trains safely. 

■ 47. Revise appendix C to part 240 to 

read as follows: 

Appendix C to Part 240—Procedures 

for Obtaining and Evaluating Motor 

Vehicle Driving Record Data 

The purpose of this appendix is to outline 

the procedures available to individuals and 

railroads for complying with the 

requirements of section 4(a) of the Railroad 

Safety Improvement Act of 1988 and 

§§ 240.109, 240.111, and 240.205. Those 

provisions require that railroads consider the 

motor vehicle driving record of each person 

prior to issuing him or her certification or 

recertification as a locomotive engineer. 

To fulfill that obligation, a railroad must 

review a certification candidate’s recent 

motor vehicle driving record. Generally, that 

will be a single record on file with the State 

agency that issued the candidate’s current 

license. However, it can include multiple 

records if the candidate has been issued a 

motor vehicle driving license by more than 

one State agency or foreign country. In 

addition, the railroad must determine 

whether the certification candidate is listed 

in the National Driver Register and, if so 

listed, to review the data that caused the 

candidate to be so listed. 

Access to State Motor Vehicle Driving Record 

Data 

The right of railroad workers, their 

employers, or prospective employers to have 

access to a State motor vehicle licensing 

agency’s data concerning an individual’s 

driving record is controlled by State law. 

Although many States have mechanisms 

through which employers and prospective 

employers such as railroads can obtain such 

data, there are some States in which privacy 

concerns make such access very difficult or 

impossible. Since individuals generally are 

entitled to obtain access to driving record 

data that will be relied on by a State motor 

vehicle licensing agency when that agency is 

taking action concerning their driving 

privileges, FRA places responsibility on 

individuals who want to serve as locomotive 

engineers to request that their current State 

driver licensing agency or agencies furnish 

such data directly to the railroad considering 

certifying them as a locomotive operator. 

Depending on the procedures adopted by a 

particular State agency, this will involve the 

candidate’s either sending the State agency a 

brief letter requesting such action or 

executing a State agency form that 

accomplishes the same effect. It will 

normally involve payment of a nominal fee 

established by the State agency for such a 

records check. In rare instances, when a 

certification candidate has been issued 

multiple licenses, it may require more than 

a single request. 

The National Driver Register 

In addition to seeking an individual State’s 

data, each engineer candidate is required to 

request that a search and retrieval be 

performed of any relevant information 

concerning his or her driving record 

contained in the National Driver Register 

(NDR). The NDR is a system of information 

created by Congress in 1960. In essence, it is 

a nationwide repository of information on 

problem drivers that was created in an effort 

to protect motorists. It is a voluntary State/ 

Federal cooperative program that assists 

motor vehicle driver licensing agencies in 

gaining access to data about actions taken by 

other State agencies concerning an 

individual’s motor vehicle driving record. 

The NDR is designed to address the problem 

that occurs when chronic traffic law 

violators, after losing their license in one 

State travel to and receive licenses in another 

State. Today, each State and the District of 

Columbia are required to send information 

on all revocations, suspensions, and license 

denials within 31 days of receipt of the 

convictions from the courts to the NDR and 

each of these driver licensing agencies has 

the capability to provide NDR’s data. 49 

U.S.C. 30304. The NDR data can also be 

obtained by contacting the National Highway 

Traffic Safety Administration (NHTSA) of the 

Department of Transportation directly. 

The information submitted to NHTSA 

contains, at a minimum, three specific pieces 

of data: The identification of the State 

authority providing the information, the 

name of the person whose license is being 

affected, and the date of birth of that person. 

It may be supplemented by data concerning 

the person’s height, weight, color of eyes, and 

social security account number, if a State 

collects such data. 

Federal Register / Vol. 85, No. 241 / Tuesday, December 15, 2020 / Rules and Regulations 81323 

Access to NDR Data 

Essentially only individuals and State 

licensing agencies, including the District of 

Columbia, can obtain access to the NDR data. 

Since railroads have no direct access to the 

NDR data, FRA requires that individuals 

seeking certification as a locomotive engineer 

request that an NDR search be performed and 

direct that the results be furnished to the 

railroad. FRA requires that each person 

request the NDR information directly from 

NHTSA unless the prospective operator has 

a motor vehicle driver license issued by a 

State motor vehicle licensing agency or the 

District of Columbia. Participating States and 

the District of Columbia can directly access 

the NDR data on behalf of the prospective 

engineer. 

Requesting NHTSA To Perform the NDR 

Check 

The procedures for requesting NHTSA 

performance of an NDR check are as follows: 

1. Each person shall submit a written 

request to the National Highway Traffic 

Safety Administration at the following 

address: Chief, National Driver Register, 

National Highway Traffic Safety 

Administration, 1200 New Jersey Avenue SE, 

Washington, DC 20590. 

2. The request must contain: 

(a) The full legal name; 

(b) Any other names used by the person 

(e.g., nickname or professional name); 

(c) The date of birth; 

(d) Sex; 

(e) Height; 

(f) Weight; 

(g) Color of eyes; and 

(h) Driver’s license number (unless that is 

not available). 

3. The request must authorize NHTSA to 

perform the NDR check and to furnish the 

results of the search directly to the railroad. 

4. The request must identify the railroad to 

which the results are to be furnished, 

including the proper name of the railroad, 

and the proper mailing address of the 

railroad. 

5. The person seeking to become a certified 

locomotive engineer shall sign the request, 

and that signature must be notarized. 

FRA requires that the request be in writing 

and contain as much detail as is available to 

improve the reliability of the data search. 

Any person may supply additional 

information to that being mandated by FRA. 

Furnishing additional information, such as 

the person’s social security account number, 

will help to identify more positively any 

records that may exist concerning the 

requester. Although no fee is charged for 

such NDR checks, a minimal cost may be 

incurred in having the request notarized. The 

requirement for notarization is designed to 

ensure that each person’s right to privacy is 

being respected and that records are only 

being disclosed to legally authorized parties. 

Requesting a State Agency To Perform the 

NDR Check 

As discussed earlier in connection with 

obtaining data compiled by the State agency 

itself, a person can either write a letter to that 

agency asking for the NDR check or can use 

the agency’s forms for making such a request. 

If a request is made by letter the individual 

must follow the same procedures required 

when directly seeking the data from NHTSA. 

Since it would be more efficient for a 

prospective locomotive engineer to make a 

single request for both aspects of the 

information required under this rule, FRA 

anticipates that a State agency inquiry should 

be the predominant method for making these 

NDR checks. Requests to State agencies may 

involve payment of a nominal fee established 

by the State agency for such a records check. 

State agencies normally will respond in 

approximately 30 days or less and advise 

whether there is or is not a listing for a 

person with that name and date of birth. If 

there is a potential match and the inquiry 

State was not responsible for causing that 

entry, the agency normally will indicate in 

writing the existence of a probable match and 

will identify the State licensing agency that 

suspended, revoked or canceled the relevant 

license or convicted the person of one of the 

violations referenced earlier in this appendix. 

Actions When a Probable NDR Match Occurs 

The response provided after performance 

of an NDR check is limited to either a 

notification that no potential record match 

was identified or a notification that a 

potential record match was identified. If the 

latter event occurs, the notification will 

include the identification of the State motor 

vehicle licensing authority which possesses 

the relevant record. If the NDR check results 

indicate a potential match and that the State 

with the relevant data is the same State 

which furnished detailed data (because it had 

issued the person a driving license), no 

further action is required to obtain additional 

data. If the NDR check results indicate a 

potential match and the State with the 

relevant data is different from the State 

which furnished detailed data, it then is 

necessary to contact the individual State 

motor vehicle licensing authority that 

furnished the NDR information to obtain the 

relevant record. FRA places responsibility on 

the railroad to notify the engineer candidate 

and on the candidate to contact the State 

with the relevant information. FRA requires 

the certification candidate to write to the 

State licensing agency and request that the 

agency inform the railroad concerning the 

person’s driving record. If required by the 

State agency, the person may have to pay a 

nominal fee for providing such data and may 

have to furnish written evidence that the 

prospective operator consents to the release 

of the data to the railroad. FRA does not 

require that a railroad or a certification 

candidate go beyond these efforts to obtain 

the information in the control of such a State 

agency, and a railroad may act upon the 

pending certification without the data if an 

individual State agency fails or refuses to 

supply the records. 

If the non-issuing State licensing agency 

does provide the railroad with the available 

records, the railroad must verify that the 

record pertains to the person being 

considered for certification. It is necessary to 

perform this verification because in some 

instances only limited identification 

information is furnished for use in the NDR 

and this might result in data about a different 

person being supplied to the railroad. Among 

the available means for verifying that the 

additional State record pertains to the 

certification candidate are physical 

description, photographs, and handwriting 

comparisons. 

Once the railroad has obtained the motor 

vehicle driving record(s) which, depending 

on the circumstance, may consist of more 

than two documents, the railroad must afford 

the prospective engineer an opportunity to 

review that record and respond in writing to 

its contents in accordance with the 

provisions of § 240.219. The review 

opportunity must occur before the railroad 

evaluates that record. The railroad’s required 

evaluation and subsequent decision making 

must be done in compliance with the 

provisions of this part. 

■ 48. Revise appendix D to part 240 to 

read as follows: 

Appendix D to Part 240—Identification 

of State Agencies That Perform 

National Driver Register Checks 

Under the provisions of § 240.111, each 

person seeking certification or recertification 

as a locomotive operator must request that a 

check of the National Driver Register (NDR) 

be conducted and that the resulting 

information be furnished to his or her 

employer or prospective employer. Under the 

provisions of paragraphs (d) and (e) of 

§ 240.111, each person seeking certification 

or recertification as a locomotive engineer 

must request that the National Highway 

Traffic Safety Administration (NHTSA) 

conduct the NDR check, unless he or she was 

issued a motor vehicle driver license by one 

of the State agencies that perform such 

checks, which today includes all State 

agencies and the District of Columbia. If the 

certification candidate received a license 

from one of the State agencies or the District 

of Columbia, he or she must request the State 

agency to perform the NDR check. Since 

these State agencies can more efficiently 

supply the desired data and, in some 

instances, can provide a higher quality of 

information, FRA requires that certification 

candidates make use of this method in 

preference to contacting NHTSA directly. 

■ 49. Add appendix G to part 240 to 

read as follows: 

81324 Federal Register / Vol. 85, No. 241 / Tuesday, December 15, 2020 / Rules and Regulations 

Appendix G to Part 240—Application 

of Revocable Events 

PART 242—QUALIFICATION AND 

CERTIFICATION OF CONDUCTORS 

■ 50. The authority citation for part 242 

continues to read as follows: 

Authority: 49 U.S.C. 20103, 20107, 20135, 

20138, 20162, 20163, 21301, 21304, 21311; 

28 U.S.C. 2461, note; and 49 CFR 1.89. 

■ 51. Section 242.7 is amended by 

revising the definitions of ‘‘Main track’’ 

and ‘‘Substance abuse disorder’’ to read 

as follows: 

§ 242.7 Definitions. 

* * * * * 

Main track means a track upon which 

the operation of trains is governed by 

one or more of the following methods of 

operation: Timetable; mandatory 

directive; signal indication; or any form 

of absolute or manual block system. 

* * * * * 

Substance abuse disorder refers to a 

psychological or physical dependence 

on alcohol or a drug, or another 

identifiable and treatable mental or 

physical disorder involving the abuse of 

alcohol or drugs as a primary 

manifestation. A substance abuse 

disorder is ‘‘active’’ within the meaning 

of this part if the person is currently 

using alcohol or other drugs, except 

under medical supervision consistent 

with the restrictions described in 

§ 219.103 of this chapter or has failed to 

complete primary treatment 

successfully or participate in aftercare 

successfully as directed by a DAC or 

SAP. 

* * * * * 

■ 52. Section 242.103 is amended by 

revising paragraphs (b), (c)(1) and (2), 

and (d)(2) and (3) to read as follows: 

§ 242.103 Approval of design of individual 

railroad programs by FRA. 

* * * * * 

(b) A railroad commencing operations 

after the pertinent date specified in 

paragraph (a) of this section shall 

submit its written certification program 

and request for approval in accordance 

with the procedures contained in 

appendix B to this part at least 60 days 

prior to commencing operations. The 

primary method for a railroad’s 

submission is by email to 

FRAOPCERTPROG@dot.gov. For those 

railroads that are unable to send the 

program by email, the program may be 

sent to the Associate Administrator for 

Railroad Safety/Chief Safety Officer, 

Federal Railroad Administration, 1200 

New Jersey Avenue SE, Washington, DC 

20590. 

(c) * * * 

(1) Simultaneous with its filing with 

FRA, provide a copy of the submission 

filed pursuant to paragraph (a) or (b) of 

this section, a resubmission filed 

pursuant to paragraph (h) of this 

section, or a material modification filed 

pursuant to paragraph (i) of this section 

to the president of each labor 

organization that represents the 

railroad’s employees subject to this part; 

and 

(2) Include in its submission filed 

pursuant to paragraph (a) or (b) of this 

section, a resubmission filed pursuant to 

paragraph (h) of this section, or a 

material modification filed pursuant to 

paragraph (i) of this section a statement 

affirming that the railroad has provided 

a copy to the president of each labor 

organization that represents the 

railroad’s employees subject to this part, 

together with a list of the names and 

addresses of persons provided a copy. 

(d) * * * 

(2) Each comment shall be submitted 

by email to FRAOPCERTPROG@dot.gov 

or by mail to the Associate 

Administrator for Railroad Safety/Chief 

Safety Officer, FRA, 1200 New Jersey 

Avenue SE, Washington, DC 20590; and 

(3) The commenter shall affirm that a 

copy of the comment was provided to 

the railroad. 

* * * * * 

■ 53. Section 242.117 is amended by 

revising and republishing paragraphs 

(g), (h), and (i) to read as follows: 


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Federal Register / Vol. 85, No. 241 / Tuesday, December 15, 2020 / Rules and Regulations 81325 

§ 242.117 Vision and hearing acuity. 

* * * * * 

(g) In order to be currently certified as 

a conductor, except as permitted by 

paragraph (j) of this section, a person’s 

vision and hearing shall meet or exceed 

the standards prescribed in this section 

and appendix D to this part. It is 

recommended that each test conducted 

pursuant to this section should be 

performed according to any directions 

supplied by the manufacturer of such 

test and any American National 

Standards Institute (ANSI) standards 

that are applicable. 

(h) Except as provided in paragraph (j) 

of this section, each person shall have 

visual acuity that meets or exceeds the 

following thresholds: 

(1) For distant viewing, either: 

(i) Distant visual acuity of at least 20/ 

40 (Snellen) in each eye without 

corrective lenses; or 

(ii) Distant visual acuity separately 

corrected to at least 20/40 (Snellen) with 

corrective lenses and distant binocular 

acuity of at least 20/40 (Snellen) in both 

eyes with or without corrective lenses; 

(2) A field of vision of at least 70 

degrees in the horizontal meridian in 

each eye; and 

(3) The ability to recognize and 

distinguish between the colors of 

railroad signals as demonstrated by 

successfully completing one of the tests 

in appendix D to this part. 

(i) Except as provided in paragraph (j) 

of this section, each person shall have 

a hearing test or audiogram that shows 

the person’s hearing acuity meets or 

exceeds the following thresholds: The 

person does not have an average hearing 

loss in the better ear greater than 40 

decibels with or without use of a 

hearing aid, at 500 Hz, 1,000 Hz, and 

2,000 Hz. The hearing test or audiogram 

shall meet the requirements of one of 

the following: 

(1) As required in 29 CFR 1910.95(h) 

(Occupational Safety and Health 

Administration); 

(2) As required in § 227.111 of this 

chapter; or 

(3) Conducted using an audiometer 

that meets the specifications of and is 

maintained and used in accordance 

with a formal industry standard, such as 

ANSI S3.6, ‘‘Specifications for 

Audiometers.’’ 

* * * * * 

■ 54. Section 242.213 is amended by 

revising and republishing paragraph (e) 

to read as follows: 

§ 242.213 Multiple certifications. 

* * * * * 

(e) If the conductor is removed from 

a passenger train for a medical, police 

or other such emergency after the train 

departs from an initial terminal, the 

train may proceed to the first location 

where the conductor can be replaced 

without incurring undue delay without 

the locomotive engineer being a 

certified conductor. However, an 

assistant conductor or brakeman must 

be on the train and the locomotive 

engineer must be informed that there is 

no certified conductor on the train prior 

to any movement. 

* * * * * 

■ 55. Section 242.403 is amended by 

revising and republishing paragraph (d) 

to read as follows: 

§ 242.403 Criteria for revoking 

certification. 

* * * * * 

(d) In determining whether a person 

may be or remain certified as a 

conductor, a railroad shall consider as 

operating rule compliance data only 

conduct described in paragraphs (e)(1) 

through (11) of this section that 

occurred within a period of 36 

consecutive months prior to the 

determination. A review of an existing 

certification shall be initiated promptly 

upon the occurrence and documentation 

of any conduct described in this section. 

* * * * * 

■ 56. Section 242.503 is amended by 

revising and republishing paragraph (c) 

to read as follows: 

§ 242.503 Petition requirements. 

* * * * * 

(c) A petition seeking review of a 

railroad’s decision to deny certification 

or recertification or revoke certification 

in accordance with the procedures 

required by § 242.407 filed with FRA 

more than 120 days after the date the 

railroad’s denial or revocation decision 

was served on the petitioner will be 

denied as untimely except that the 

Operating Crew Review Board for cause 

shown may extend the petition filing 

period at any time in its discretion: 

(1) Provided that the request for 

extension is filed before the expiration 

of the period provided in this paragraph 

(c); or 

(2) Provided that the failure to file 

timely was the result of excusable 

neglect. 

* * * * * 

■ 57. Section 242.505 is amended by 

revising paragraphs (h), (i) introductory 

text, (j), and (k) to read as follows: 

§ 242.505 Processing certification review 

petitions. 

* * * * * 

(h) When considering factual issues, 

the Board will determine whether there 

is substantial evidence to support the 

railroad’s decision, and a negative 

finding is grounds for granting the 

petition. 

(i) When considering procedural 

issues, the Board will determine 

whether the petitioner suffered 

substantial harm that was caused by the 

failure to adhere to the dictated 

procedures for making the railroad’s 

decision. A finding of substantial harm 

is grounds for reversing the railroad’s 

decision. To establish grounds upon 

which the Board may grant relief, 

Petitioner must show: 

* * * * * 

(j) Pursuant to its reviewing role, the 

Board will consider whether the 

railroad’s legal interpretations are 

correct based on a de novo review. 

(k) The Board will determine whether 

the denial or revocation of certification 

or recertification was improper under 

this part (i.e., based on an incorrect 

determination that the person failed to 

meet the certification requirements of 

this part) and grant or deny the petition 

accordingly. The Board will not 

otherwise consider the propriety of a 

railroad’s decision, i.e., it will not 

consider whether the railroad properly 

applied its own more stringent 

requirements. 

* * * * * 

■ 58. Section 242.511 is amended by 

revising paragraphs (a) and (f) to read as 

follows: 

§ 242.511 Appeals. 

(a) Any party aggrieved by the 

presiding officer’s decision may file an 

appeal in the presiding officer’s docket. 

The appeal must be filed within 35 days 

of issuance of the decision. A copy of 

the appeal shall be served on each party. 

The appeal shall set forth objections to 

the presiding officer’s decision, 

supported by reference to applicable 

laws and regulations and with specific 

reference to the record. If no appeal is 

timely filed, the presiding officer’s 

decision constitutes final agency action. 

* * * * * 

(f) An appeal from an Operating Crew 

Review Board decision pursuant to 

§ 242.503(d) must be filed in the Board’s 

docket within 35 days of issuance of the 

decision. A copy of the appeal shall be 

served on each party. The Administrator 

may affirm or vacate the Board’s 

decision, and may remand the petition 

to the Board for further proceedings. An 

Administrator’s decision to affirm the 

Board’s decision constitutes final 

agency action. 

■ 59. Revise appendix E to part 242 to 

read as follows: 

81326 Federal Register / Vol. 85, No. 241 / Tuesday, December 15, 2020 / Rules and Regulations 

Appendix E to Part 242—Application of 

Revocable Events 

Issued in Washington, DC. 

Quintin C. Kendall, 

Deputy Administrator. 

[FR Doc. 2020–27209 Filed 12–14–20; 8:45 am] 

BILLING CODE 4910–06–P 


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