§ 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 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.
[85 FR 81310, Dec. 15, 2020]