VIA E-MAIL ONLY

Mr. Larry E. Jameson

AVP Operating Rules & Regulations

ejameson@kcsouthern.com

October 9, 2020

Dear Mr. Jameson: 

This letter responds to the submission from the Kansas City Southern Railway Company

(KCSR), dated and emailed on September 17, 2020, to the Federal Railroad Administration 

(FRA) seeking approval of material modifications to its approved Program of Certification for 

Locomotive Engineers and Remote Control Operators (Part 240 Program), dated October 4, 

2013. As KCSR explained in its cover letter accompanying the revised program submission, for 

more than two years, KCSR has been certifying locomotive engineers from its commonly 

controlled affiliates1 by following procedures approved by FRA in 2018, which materially 

modified KCSR’s approved 2013 program. However, on August 28, 2020, the U.S. Court of 

Appeals for the District of Columbia Circuit granted a Petition for Review as to FRA’s approval 

of KCSR’s use of the modified program to train Kansas City Southern de Mexico (KCSM) 

engineers and vacated and remanded FRA’s decision approving the 2018 material modifications 

of KCSR’s approved Part 240 Program.2 The Court directed FRA to either offer a fuller

explanation of the agency’s reasoning at the time of the agency action or deal with the problem 

afresh by taking new agency action. FRA chose the latter option, and KCSR submitted new 

material modifications to its approved 2013 Part 240 Program addressing the procedures KCSR 

would follow when certifying locomotive engineers from KCSM. 

KCSR’s submission states that, on September 17, 2020, the railroad provided a copy of its 

program modifications to Mr. Dennis R. Pierce, President of the Brotherhood of Locomotive 

Engineers and Trainmen (BLET), and Mr. Jeremy R. Ferguson, President of the International 

Association of Sheet Metal, Air, Rail, and Transportation Workers - Transportation Division 

(SMART-TD), by email and overnight delivery. On October 2, 2020, FRA received a jointly 

filed comment from BLET and SMART-TD on the program modifications. 

FRA’s procedures for submission and approval of programs are described in appendix B to 49 

CFR part 240 (Part 240). FRA rigorously reviewed the material modifications submitted for 

approval, carefully considering each proposed modification, and comparing the previously 

approved program to the current submission. This resulted in FRA’s Certification Program 

 

1 Texas Mexican Railway Company (Tex-Mex) and KCSM.

2 Brotherhood of Locomotive Engineers and Trainmen, et.al., v. FRA, et al., 972 F.3d 83 (D.C. Cir. 2020).
2

Manager and Operating Practices Division Staff Director speaking to you about the amended 

Part 240 Program – to understand KCSR’s rationale for the program modifications and to 

discuss modifications that could strengthen the training program element’s safety procedures, 

which ultimately led KCSR to make additional revisions to its submission.

KCSR’s principal, material modification to its 2013 approved Part 240 Program is the addition 

of Section 7, which provides the procedures KCSR will follow when certifying KCSM 

engineers. KCSR’s purpose in certifying KCSM engineers is to allow trains to be operated 

between the Laredo International Rail Bridge and the Laredo Yard, approximately 9.2 miles, 

without switching train crews on the bridge. The track is relatively flat and operated under yard 

limits subject to 49 C.F.R. § 218.35, i.e., maximum speed may not exceed 20 miles per hour. 

KCSR clarifies in Section 7 that KCSM is an affiliate of KCSR, and that KCSM’s 

“transportation function” reports to KCSR’s Chief Safety Officer.

The purpose of FRA’s locomotive engineer certification regulations in Part 240 is to ensure that 

only qualified persons, certified by a railroad, operate a locomotive or train. FRA’s central 

concern is rail safety. Thus, the question that arises from the material modifications submitted 

by KCSR is whether any person who has not been previously certified by a U.S. railroad, but

has extensive operating experience as a locomotive engineer in another country, can be certified 

as a locomotive engineer by a U.S. railroad through an abbreviated training program.3 FRA 

closely reviewed KCSR’s amended program and the comments from the unions, and determined 

that the amended program conforms with the requirements of Part 240 for the reasons discussed 

below. Accordingly, FRA approves KCSR’s revised Part 240 program. 

Under FRA’s regulations, a U.S. railroad can certify a person as a locomotive engineer for 

operations over its railroad, even if the person works for a different railroad, and the certifying 

railroad is not required to be affiliated or controlled by the certifying railroad that hosts the 

operation.4 Part 240 does not limit railroads to certifying only their own employees, nor do the 

regulations prohibit a U.S. railroad from certifying a person from a country other than the 

United States. FRA understands from KCSR’s amended program and its cover letter that, for 

purposes of operational safety and FRA enforcement, KCSR is responsible for ensuring that 

KCSM trains operating in the U.S. comply with all Federal railroad safety requirements. In 

fact, the operation of trains by Mexican crews “shall at all times be subject to the exclusive 

direction and control of [KCSR].”5 That means that FRA will hold KCSR – the entity certifying 

and supervising the international crew locomotive engineers – responsible for the actions of any 

KCSM crewmembers operating in the United States. 

 

3 Although Part 240 does allow a U.S. railroad to rely on determinations made by a Canadian railroad that a person 

meets the qualification standards issued by Transport Canada (49 C.F.R. § 240.227) as a matter of reciprocity, 56 

Fed. Reg. 28228, 28250 (June 19, 1991), there is no regulatory prohibition on a U.S. railroad from certifying a 

person from a country other than Canada without a similar reciprocity provision. The absence of a reciprocity 

provision only means that a U.S. railroad must make the qualification determinations. 

4 For example, FRA published an interpretation explaining the option for a controlling railroad to directly certify 

and qualify “foreign” locomotive engineers, i.e., locomotive engineers it does not employ. 73 Fed. Reg. 50883, 

50884 (Aug. 29, 2008). 

5

Interchange Agreement – Laredo, Texas, § 4(b).
3

Because KCSR can certify KCSM engineers, as explained above, the next question is whether 

KCSR can do so through an abbreviated locomotive engineer training program. This is not a 

novel issue. FRA addressed it in 49 C.F.R. § 240.225(a), requiring that a railroad’s certification 

program address how the railroad will administer the training of previously uncertified 

engineers with extensive operating experience or previously certified engineers whose 

certification expired.6 Although FRA regulations do not define how much experience a person 

must have for a railroad to accept that person into an abbreviated locomotive engineer training 

program, FRA finds that KCSR’s description of the prerequisites necessary to be eligible to 

participate in the abbreviated training program describes the type of extensive operating 

experience FRA would expect for such a program. See Modified Program at Section 7 

(requiring “extensive operating experience as a KCSM engineer for a minimum of one year, 

operating the same type of locomotives and equipment as will be operated in the United States” 

and on the job training).

FRA’s approval is also based on the expectation that KCSR’s operation between the 

International Bridge and Laredo Yard, with KCSR-certified KCSM locomotive engineers, will 

maintain the same level of safety and compliance with all Federal rail safety requirements it has 

since July 2018. To date, no KCSM engineers were cited as the cause of any FRA reportable 

accident/incident, and FRA has issued no violations related to KCSM crews. As stated above, 

KCSR is responsible for certifying and supervising the international crew locomotive engineers 

and is thus responsible for the actions of any KCSM crewmembers operating in the United 

States. 

The jointly filed comment from BLET and SMART-TD specifies four reasons why FRA should 

disapprove the program modifications.7 First, the commenters suggest that KCSR may not file 

a certification program on KCSM’s behalf. However, FRA finds that is not the situation; 

instead, as explained above, FRA finds that KCSR is submitting modifications to its Part 240 

Program on its own behalf. 

Second, the commenters claim that FRA lacks the authority to approve a certification program 

that permits KCSM locomotive engineers to be considered as having been previously certified 

 

6 When this requirement became effective, FRA explained that it:

is providing a railroad with the opportunity to shorten the on-the-job training that might be 

required if a person is treated as having no operational experience. If a railroad’s certification 

program fails to specify how to train a previously certified engineer hired from another railroad, 

then the railroad shall require the newly hired engineer to take the hiring railroad’s entire training 

program. By articulating both the problem and mandating a safe solution, it is FRA’s position 

that this modification will save resources.

64 FR 60966, 60979-60980 (Nov. 8, 1999).

7

In addition, the commenters made two requests that go beyond this program approval process. First, the 

commenters request that FRA order that crew translators are train employees within the meaning of the law and,

therefore, are subject to FRA’s Hours of Service requirements. However, even if FRA could issue such an order, 

FRA is not presented with enough facts to make a specific determination; the application of the Hours of Service 

laws would depend on the nature of the work, if any, performed by the translators. Second, the commenters request 

that FRA conduct a public hearing on KCSR’s submission. FRA declines to hold a public hearing; none are 

provided for by the certification program approval process established by Part 240. Further, FRA does not agree 

with the commenters that the program raises significant safety concerns that would benefit from additional public 

comment.
4

based on their Mexican service. The commenters’ concern appears to arise from references in 

Section 7 of the amended program that contain references to Sections 3 and 4, which apply to 

training, testing, and evaluating persons previously certified as locomotive engineers. FRA 

personnel discussed this issue with KCSR and understands that KCSR intends the references to 

Sections 3 and 4 to illustrate the types of procedures KCSR will use when certifying engineer 

candidates with extensive operating experience for its international operations. FRA further 

understands that KCSR did not intend to identify Mexican engineers as previously certified. 

With this understanding, FRA finds that this issue is adequately addressed in the approved

version of the amended program. 

Third, the commenters raise a concern that, under 49 C.F.R. § 240.127, the skills performance 

test (also known as a “check ride”) for initially certifying a KCSM student engineer as a KCSR 

engineer is inferior and inadequate, as the program requires only a two-hour check ride, while 

the program requires a four-hour check ride for initially certifying non-KCSM student engineers 

considered for promotion to train service engineers and yard service engineers. However, the 

commenters fail to mention that KCSR’s amended program only requires a two-hour check ride 

for initially certifying non-KCSM train service engineers and yard service engineers with 

extensive operating experience. Accordingly, FRA concludes that the two-hour check ride 

length for KCSM student engineers with extensive operating experience is appropriate, as it 

equals the amount of time KCSR’s Part 240 program requires for initially certifying non-KCSM 

train service engineers and yard service engineers with extensive operating experience. 

Fourth, the commenters believe the amended program fails to contain a requirement that a 

KCSM engineer certified by KCSR be operationally fluent in English, and that the “Crew Kit”

8

is flawed. However, it is apparent that KCSR has already considered the matter of ensuring 

adequate communications, by providing for the use of translators, which the commenters noted 

in their submission. Also, KCSM is under a contractual obligation to “arrange for at least one 

[Mexican crewmember operating in the United States] ... to engage in radio communication 

with KCSR in English and Spanish.9 FRA does not require the use of translators by regulation. 

Instead, FRA finds that KCSR is required to abide by all Federal rail safety requirements, 

including proper radio and dispatching procedures. Compliance with railroad radio 

communications is an issue FRA regulates in 49 C.F.R. part 220, and is not addressed by this 

Part 240 program review. Further, although the Crew Kit was submitted with the amended 

program, KCSR made it clear that it was not part of the amended program and, thus, FRA did 

not consider it part of the amended program submission and did not approve it. 

 

8 KCSR submitted with its amended program a 107-page document titled “International Crew Phase 1 Crew Kit,” 

dated October 2018. The Crew Kit states that:

the purpose of Phase 1 is to test the operation of trains by the International Crew in Laredo and Nuevo 

Laredo interchange based on compliance with all United States government regulations and KCS 

Company policies. The goal for the International Crew project is to create a new operational model at the 

Laredo International Rail Bridge that eliminates crew changes to allow trains to move in transit from 

Mexico to the U.S., and vice versa, reducing border congestion and increasing throughput at each location. 

This includes creating and testing the processes and procedures that the International Crew will use during 

the Phase 1 testing timeframe.

Crew Kit at 3.

9 See Interchange Agreement – Laredo, Texas, § 4(e). 
5

Based on FRA’s analysis and railroad safety expertise, FRA finds that KCSR’s amendments, 

revised as of October 6, 2020, to its Part 240 program are consistent with safe operations and 

are hereby approved. Further, the safety record of operations since July 2018, discussed above, 

gives FRA the confidence that KCSR can implement the training program in a manner that will 

result in safe operations. However, if this level of safety or compliance with Federal rail safety 

requirements changes, FRA reserves the right to reopen consideration of FRA’s approval of 

KCSR’s program. 

I request that, upon receipt of this letter, you provide a copy of the approved version of the 

amended program, to Messrs. Pierce and Ferguson. Should you have any questions regarding 

this letter, please contact Mr. Kevin Lewis, FRA’s Certification Program Manager at (918) 557-

0651 or FRAOPCERTPROG@dot.gov.

Sincerely, 

Carolyn Hayward-Williams

Director, Railroad Systems, Technology, & Automation

cc: Mr. Dennis R. Pierce, President-BLET; pierce@ble-t.org

 Mr. Jeremy R. Ferguson, President-SMART-TD; jferguson@smart-union.org