69166 Federal Register / Vol. 75, No. 217 / Wednesday, November 10, 2010 / Proposed Rules 

DEPARTMENT OF TRANSPORTATION 

Federal Railroad Administration 

49 CFR Part 242 

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

RIN 2130–AC08 

Conductor Certification 

AGENCY: Federal Railroad 

Administration (FRA), Department of 

Transportation (DOT). 

ACTION: Notice of proposed rulemaking 

(NPRM). 

SUMMARY: FRA proposes to prescribe 

regulations for certification of 

conductors, as required by the Rail 

Safety Improvement Act of 2008. The 

proposed rule would require railroads to 

have a formal program for certifying 

conductors. As part of that program, 

railroads would be required to have a 

formal process for training prospective 

conductors and determining that all 

persons are competent before permitting 

them to serve as a conductor. FRA is 

proposing this regulation to ensure that 

only those persons who meet minimum 

Federal safety standards serve as 

conductors, to reduce the rate and 

number of accidents and incidents, and 

to improve railroad safety. Although 

this NPRM does not propose any 

specific amendments to the regulation 

governing locomotive engineer 

certification, it does highlight areas in 

that regulation that may require 

conforming changes. 

DATES: Written Comments: Written 

comments on the proposed rule must be 

received by January 10, 2011. Comments 

received after that date will be 

considered to the extent possible 

without incurring additional expense or 

delay. FRA anticipates being able to 

determine these matters without a 

public hearing. However, if prior to 

December 10, 2010, FRA receives a 

specific request for a public hearing 

accompanied by a showing that the 

party is unable to adequately present his 

or her position by written statement, a 

hearing will be scheduled and FRA will 

publish a supplemental notice in the 

Federal Register to inform interested 

parties of the date, time, and location of 

any such hearing. 

ADDRESSES: You may submit comments 

identified by the docket number FRA– 

2009–0035 by any one of the following 

methods: 

• Fax: 1–202–493–2251; 

• Mail: U.S. Department of 

Transportation, Docket Operations, M– 

30, West Building Ground Floor, Room 

W12–140, 1200 New Jersey Avenue, SE., 

Washington, DC 20590; 

• Hand Delivery: U.S. Department of 

Transportation, Docket Operations, 

West Building Ground Floor, Room 

W12–140, 1200 New Jersey Avenue, SE., 

Washington, DC 20590, between 9 a.m. 

and 5 p.m., Monday through Friday, 

except Federal holidays; or 

• Electronically through the Federal 

eRulemaking Portal, http:// 

www.regulations.gov. Follow the online 

instructions for submitting comments. 

Instructions: All submissions must 

include the agency name, docket name 

and docket number or Regulatory 

Identification Number (RIN) for this 

rulemaking (2130–AC08). Note that all 

comments received will be posted 

without change to http:// 

www.regulations.gov, including any 

personal information provided. Please 

see the Privacy Act heading in the 

SUPPLEMENTARY INFORMATION section of 

this document for Privacy Act 

information related to any submitted 

comments or materials. 

Docket: For access to the docket to 

read background documents or 

comments received, go to http:// 

www.regulations.gov at any time or to 

U.S. Department of Transportation, 

Docket Operations, M–30, West 

Building Ground Floor, Room W12–140, 

1200 New Jersey Avenue, SE., 

Washington, DC, between 9 a.m. and 5 

p.m., Monday through Friday, except 

Federal holidays. 

FOR FURTHER INFORMATION CONTACT: 

Mark H. McKeon, Special Assistant to 

the Associate Administrator for Railroad 

Safety/Chief Safety Officer, U.S. 

Department of Transportation, Federal 

Railroad Administration, Mail Stop 25, 

West Building 3rd Floor West, Room 

W35–334, 1200 New Jersey Avenue, SE., 

Washington, DC 20590 (telephone: 202– 

493–6350); or John Seguin, Trial 

Attorney, U.S. Department of 

Transportation, Federal Railroad 

Administration, Office of Chief Counsel, 

RCC–10, Mail Stop 10, West Building 

3rd Floor, Room W31–217, 1200 New 

Jersey Avenue, SE., Washington, DC 

20590 (telephone: 202–493–6045). 

SUPPLEMENTARY INFORMATION: 

I. Statutory Background 

Pursuant to the Rail Safety 

Improvement Act of 2008 § 402, Public 

Law 110–432, 122 Stat. 4884, (Oct. 16, 

2008) (codified at 49 U.S.C. 20163) 

(hereinafter ‘‘RSIA’’) Congress required 

the Secretary of Transportation 

(Secretary) to prescribe regulations to 

establish a program requiring the 

certification of train conductors. The 

Secretary delegated this authority to the 

Federal Railroad Administrator. 49 CFR 

1.49(oo). 

Section 20163(a) of 49 U.S.C. (Section 

402 of the RSIA) provides that: 

The Secretary of Transportation shall 

prescribe regulations to establish a program 

requiring the certification of train 

conductors. In prescribing such regulations, 

the Secretary shall require that train 

conductors be trained, in accordance with 

the training standards developed pursuant to 

section 20162. 

Section 20163(b) provides that ‘‘[i]n 

developing the regulations required by 

subsection (a), the Secretary may 

consider the requirements of section 

20135(b) through (e).’’ The requirements 

in 49 U.S.C. 20135 concern the 

certification of locomotive engineers. 

Section 20162(a)(2) of 49 U.S.C. 

(Section 401 of the RSIA) provides that: 

‘‘(a) IN GENERAL.—The Secretary of 

Transportation shall, not later than 1 year 

after the date of enactment of the Rail Safety 

Improvement Act of 2008, establish— 

* * * 

(2) a requirement that railroad carriers, 

contractors, and subcontractors develop and 

submit training and qualification plans to the 

Secretary for approval, including training 

programs and information deemed necessary 

by the Secretary to ensure that all safetyrelated railroad employees receive 

appropriate training in a timely manner. 

***’’ 

Section 20162(b) of 49 U.S.C. provides 

that ‘‘[t]he Secretary shall review and 

approve the plans required under 

subsection (a)(2) utilizing an approval 

process required for programs to certify 

the qualification of locomotive 

engineers pursuant to part 240 of title 

49, Code of Federal Regulations.’’ 

II. RSAC Overview 

In March 1996, FRA established the 

Railroad Safety Advisory Committee 

(RSAC), which provides a forum for 

collaborative rulemaking and program 

development. RSAC includes 

representatives from all of the agency’s 

major stakeholder groups, including 

railroads, labor organizations, suppliers 

and manufacturers, and other interested 

parties. A list of RSAC members 

follows: 

American Association of Private Railroad Car 

Owners (AARPCO); 

American Association of State Highway & 

Transportation Officials (AASHTO); 

American Chemistry Council; 

American Petroleum Institute; 

American Public Transportation Association 

(APTA); 

American Short Line and Regional Railroad 

Association (ASLRRA); 

American Train Dispatchers Association 

(ATDA); 

Association of American Railroads (AAR); 

Association of Railway Museums (ARM); 


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Association of State Rail Safety Managers 

(ASRSM); 

Brotherhood of Locomotive Engineers and 

Trainmen (BLET); 

Brotherhood of Maintenance of Way 

Employes Division (BMWED); 

Brotherhood of Railroad Signalmen (BRS); 

Chlorine Institute; 

Federal Transit Administration (FTA);* 

Fertilizer Institute; 

High Speed Ground Transportation 

Association (HSGTA); 

Institute of Makers of Explosives; 

International Association of Machinists and 

Aerospace Workers; 

International Brotherhood of Electrical 

Workers (IBEW); 

Labor Council for Latin American 

Advancement (LCLAA);* 

League of Railway Industry Women;* 

National Association of Railroad Passengers 

(NARP); 

National Association of Railway Business 

Women;* 

National Conference of Firemen & Oilers; 

National Railroad Construction and 

Maintenance Association; 

National Railroad Passenger Corporation 

(Amtrak); 

National Transportation Safety Board 

(NTSB);* 

Railway Supply Institute (RSI); 

Safe Travel America (STA); 

Secretaria de Comunicaciones y Transporte;* 

Sheet Metal Workers International 

Association (SMWIA); 

Tourist Railway Association Inc.; 

Transport Canada;* 

Transport Workers Union of America (TWU); 

Transportation Communications 

International Union/BRC (TCIU/BRC); 

Transportation Security Administration 

(TSA); and 

United Transportation Union (UTU). 

*Indicates associate, non-voting membership. 

When appropriate, FRA assigns a task 

to RSAC, and after consideration and 

debate, RSAC may accept or reject the 

task. If accepted, RSAC establishes a 

working group that possesses the 

appropriate expertise and representation 

of interests to develop recommendations 

to FRA for action on the task. These 

recommendations are developed by 

consensus. The working group may 

establish one or more task forces or 

other subgroups to develop facts and 

options on a particular aspect of a given 

task. The task force, or other subgroup, 

reports to the working group. If a 

working group comes to consensus on 

recommendations for action, the 

package is presented to RSAC for a vote. 

If the proposal is accepted by a simple 

majority of RSAC, the proposal is 

formally recommended to FRA. FRA 

then determines what action to take on 

the recommendation. Because FRA staff 

play an active role at the working group 

level in discussing the issues and 

options and in drafting the language of 

the consensus proposal, and because the 

RSAC recommendation constitutes the 

consensus of some of the industry’s 

leading experts on a given subject, FRA 

is often favorably inclined toward the 

RSAC recommendation. However, FRA 

is in no way bound to follow the 

recommendation and the agency 

exercises its independent judgment on 

whether the recommended rule achieves 

the agency’s regulatory goals, is soundly 

supported, and is in accordance with 

applicable policy and legal 

requirements. Often, FRA varies in some 

respects from the RSAC 

recommendation in developing the 

actual regulatory proposal or final rule. 

Any such variations would be noted and 

explained in the rulemaking document 

issued by FRA. If the working group or 

RSAC is unable to reach consensus on 

recommendations for action, FRA 

resolves the issue(s) through traditional 

rulemaking proceedings or other action. 

III. RSAC Conductor Certification 

Working Group 

On December 10, 2008, the RSAC 

accepted a task (No. 08–07) entitled 

‘‘Conductor Certification.’’ The purpose 

of this task was defined as follows: ‘‘To 

develop regulations for certification of 

railroad conductors, as required by the 

Rail Safety Improvement Act of 2008 

(Act), and to consider any appropriate 

related amendments to existing 

regulations.’’ The task called for the 

RSAC Conductor Certification Working 

Group (Working Group) to perform the 

following: 

• Review safety data bearing on 

opportunities for reducing risk 

associated with the duties performed by 

freight and passenger conductors. 

• Assist FRA in developing 

regulations responsive to the legislative 

mandate. 

• Consider any revisions to 49 CFR 

Part 240 appropriate to conform and 

update the certification programs for 

locomotive engineers and conductors. 

The task also listed issues requiring 

specific report: 

• What requirements for training and 

experience are appropriate? 

• What classifications of conductors 

should be recognized? 

• To what extent do existing 

requirements and procedures for 

certification of locomotive engineers 

provide a model for conductor 

certification? 

• To what extent should unsafe 

conduct occurring while a locomotive 

engineer affect certification status as a 

conductor, and vice versa? 

• Starting with the locomotive 

engineer certification model, what 

opportunities are available for 

simplifying appeals from decertification 

decisions of the railroads? 

The Working Group was formed from 

interested organizations that are 

members of the RSAC. In addition to 

FRA, the following organizations 

contributed members: 

AAR, including members from BNSF 

Railway Company (BNSF), Canadian 

National Railway (CN), Canadian Pacific 

Railway (CP), CSX Transportation, Inc. 

(CSX), Iowa Interstate Railroad, LTD, 

Kansas City Southern Railway (KCS), 

Northeast Illinois Regional Commuter 

Railroad Corporation (METRA), Norfolk 

Southern Railway Company (NS), and 

Union Pacific Railroad (UP); 

The National Railroad Passenger 

Corporation (Amtrak); 

APTA, including members from Long 

Island Rail Road (LIRR), Metro-North 

Railroad (MNCW), Southeastern 

Pennsylvania Transportation Authority 

(SEPTA), Southern California Regional 

Rail Authority (Metrolink), and Transit 

Solutions Group (TSG); 

ASLRRA, including members from 

Anacostia Rail Holdings (ARH), Genesee 

& Wyoming Inc. (GNWR), Omnitrax Inc. 

(Omnitrax), Rio Grande Pacific 

Corporation (RGP), and WATCO 

Companies, Inc. (WATCO); 

BLET; 

National Railroad Construction & 

Maintenance Association, including 

members from Herzog Transit Services 

(Herzog); 

NTSB; 

TWU; and 

UTU. 

DOT’s John A. Volpe National 

Transportation Systems Center (Volpe 

Center) also contributed members to the 

Working Group. 

The Working Group convened 6 times 

on the following dates and locations: 

• July 21–23, 2009 in Washington, 

DC; 

• August 25–27, 2009 in Overland 

Park, KS; 

• September 15–17, 2009 in Colorado 

Springs, CO; 

• October 20–22, 2009 in Arlington, 

VA; 

• November 17–19, 2009 in 

Scottsdale, AZ; and 

• December 16–18, 2009 in 

Washington, DC. 

To aid the Working Group in its 

development of recommendations for 

certification of conductors, FRA 

prepared draft regulatory text, which it 

distributed prior to the July meeting. 

The draft text closely followed 49 CFR 

part 240 which governs the qualification 

and certification of locomotive 

engineers. 

During each meeting, Working Group 

members made recommendations 

regarding changes and additions to the 

draft text. Following each meeting, FRA 


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1Paragraph (a) of this section has been slightly 

modified from the version voted on by the Working 

Group and full RSAC. The modification is meant to 

clarify that only those persons that meet the 

minimum safety standards in this proposed rule 

would be permitted to serve as conductors. 

2This section has been modified from the version 

of the section voted on by the Working Group and 

full RSAC, including the removal of paragraphs (a) 

and (b). Those paragraphs addressed preemption of 

State law which FRA now believes would be 

unnecessary because 49 U.S.C. 20106 and other 

Federal railroad safety statutes sufficiently address 

the preemptive effect of FRA’s regulations. 

Providing a separate Federal regulatory provision 

concerning the regulation’s preemptive effect would 

be duplicative and unnecessary. 

considered all of the recommendations 

and revised the draft text accordingly. 

Minutes of each of these meetings are 

part of the docket in this proceeding and 

are available for public inspection. 

Having worked closely with the RSAC 

in developing its recommendations, 

FRA believes that the RSAC has 

effectively addressed concerns with 

regard to the certification of conductors. 

FRA has greatly benefited from the 

open, informed exchange of information 

during the meetings. The Working 

Group reached consensus on all of its 

recommended regulatory provisions. On 

March 18, 2010, the Working Group 

presented its recommendations to the 

full RSAC for concurrence. All of the 

members of the full RSAC in attendance 

at the March meeting accepted the 

regulatory recommendations submitted 

by the Working Group. Thus, the 

Working Group’s recommendations 

became the full RSAC’s 

recommendations to FRA. 

As contemplated by the Working 

Group’s task statement, the 

promulgation of the conductor 

certification regulation opens up 

consideration of conforming changes to 

49 CFR part 240, ‘‘Qualification and 

certification of locomotive engineers.’’ 

Such changes could include amending 

the program submission process, adding 

49 CFR 218, subpart F violations as 

revocable offenses, and handling 

engineer and conductor petitions for 

review with a single FRA board. 

Although FRA intended for the Working 

Group to consider changes to part 240 

during its July–December meetings, the 

Working Group was unable to undertake 

that task. Moreover, members of the 

Working Group felt that it would be 

more efficient to discuss changes to part 

240 after the conductor certification 

regulation is finalized and comments 

are received. Therefore, FRA expects the 

Working Group to continue meeting 

after publication of this NPRM and to 

provide recommendations that address 

both the comments to this NPRM and 

conforming changes to part 240. 

In addition to the conductor 

certification Working Group, interested 

parties should also be aware that other 

RSAC working groups are currently 

meeting to discuss potential FRA 

regulations which may impact the 

conductor certification regulation. The 

Medical Standards for Safety-Critical 

Personnel Working Group (RSAC Task 

No.: 06–03), for example, is developing 

recommendations for a FRA medical 

standards regulation. That regulation, if 

promulgated, could supersede some of 

the medically-related requirements in 

the conductor certification regulation. 

Further, the Training Standards 

Working Group (RSAC Task No.: 10–01) 

is developing recommendations for a 

FRA training regulation. While FRA 

does not expect that such a training 

regulation would supersede the training 

requirements in the conductor 

certification regulation, FRA does not 

know at this time what the final training 

regulation will provide. Some 

modification of the training 

requirements in this proposed part (e.g., 

removal of the task analysis 

requirement) may be necessary to 

conform to the final requirements of the 

training regulation. 

IV. Section-by-Section Analysis 

Subpart A—General 

Subpart A of the proposal contains 

the general provisions of the rule, 

including a formal statement of the 

rule’s purpose and scope. The subpart 

also provides that this proposed rule 

would not constrain a railroad’s ability 

to prescribe additional or more stringent 

requirements for its conductors that are 

not inconsistent with this proposed 

rule. 

Section 242.1 Purpose and Scope 

This section, derived from 49 CFR 

240.1, provides that the proposed rule 

prescribes minimum standards for the 

eligibility, training, testing, certification 

and monitoring of persons who serve as 

‘‘conductors.’’ This section indicates that 

the purpose of the proposed rule is to 

ensure that only those persons who 

meet minimum Federal safety standards 

serve as conductors, to reduce the rate 

and number of accidents and incidents, 

and to improve railroad safety.1

Despite the fact that a person may 

have a job classification title other than 

that of conductor, the conductor 

certification requirements of this 

proposed rule would apply to that 

person if he or she meets the definition 

of conductor. That definition (and who 

would be covered by the definition) is 

discussed in more detail in the section 

analysis for proposed § 242.7 below. 

Section 242.3 Application and 

Responsibility for Compliance 

This section is derived, essentially 

verbatim, from 49 CFR 240.3. The 

section provides that the proposed rule 

would apply to all railroads with two 

exclusions. The first exclusion 

addresses several types of operations 

that occur on tracks that are not part of 

the general railroad system. This 

exclusion would encompass operations 

commonly described as tourist, scenic, 

or excursion service to the extent that 

they occur on tracks that are not part of 

the general railroad system. This 

exclusion also addresses operations that 

occur within the confines of industrial 

installations commonly referred to as 

‘‘plant railroads’’ and typified by 

operations such as those in steel mills 

that do not go beyond the plant’s 

boundaries and that do not involve the 

switching of rail cars for entities other 

than themselves. 

The second exclusion covers rapid 

transit operations in an urban area that 

are not connected to the general system. 

It should be noted, however, that some 

rapid transit type operations, given their 

links to the general system, are within 

FRA’s jurisdiction and FRA specifically 

intends to have this proposed rule apply 

to those rapid transit type operations. 

This proposed rule is not intended to 

have any effect on FRA’s jurisdiction. 

Since this proposed rule is intended to 

apply to the same railroads covered by 

part 240, one should refer to the 

preamble discussions of 49 CFR 240.3 in 

64 FR 60966, 60974 (Nov. 8, 1999), 63 

FR 50626, 50636–50637 (Sept. 22, 

1998), and 56 FR 28228, 28240 (June 19, 

1991) for a more detailed analysis of the 

applicability of this proposed rule. 

Section 242.5 Effect and Construction 

This section addresses several legal 

issues.2 Paragraph (a) addresses the 

relationship of this proposed rule to 

preexisting legal relationships. 

Paragraph (b) states that FRA does not 

intend to alter the authority of a railroad 

to initiate disciplinary sanctions against 

its employees by issuance of this 

proposed rule. 

Paragraph (c) of this section addresses 

the issue of ‘‘flowback.’’ The term 

flowback has been used in the industry 

to describe a situation where an 

employee leaves his or her current 

position to return to a previously held 

position or craft. An example of 

flowback occurs when a person who 

holds the position of a conductor 

subsequently qualifies for the position 

of locomotive engineer, and at some 

later point in time the person finds it 

necessary or preferable to revert back to 

a conductor position. The reasons for 


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3The reference to § 242.213 in § 242.5(c) was not 

considered by the Working Group or the full RSAC, 

but was added by FRA to clarify this proposed 

rule’s position on flowback. 

4The definition of this term was not considered 

by the Working Group or the full RSAC. However, 

the use of term in part 240 has generated some 

confusion and, therefore, FRA hopes to avoid any 

confusion in this proposed rule by defining the 

term. 

reverting back to the previous craft may 

derive from personal choice or a less 

voluntary nature; e.g., downsizing. 

Many collective bargaining 

agreements address the issue of 

flowback. As a general matter, FRA does 

not intend to create or prohibit the right 

to flowback or take a position on 

whether flowback is desirable. However, 

paragraph (c) of this section must be 

read in conjunction with § 242.213, 

which limits flowback in certain 

situations.3 As described in the section 

analysis for that section below, a person 

who holds a conductor and locomotive 

engineer certificate and who has had his 

or her locomotive engineer certificate 

revoked could not work as a conductor 

during the period of revocation. In 

addition, a person who holds a 

conductor and locomotive engineer 

certificate and who has had his or her 

conductor certification revoked for 

certain violations could not work as a 

locomotive engineer during the period 

of revocation. 

Paragraph (d) of this section addresses 

employee rights. The intent of the 

proposed rule is to explicitly preserve 

any remedy already available to the 

person and not to create any new 

entitlements. FRA expects that 

employees would benefit from this 

paragraph by referring to it should a 

railroad use this regulation as an 

inappropriate explanation for ignoring 

an employee’s rights or remedies. A 

railroad must consider whether any 

procedural rights or remedies available 

to the employee would be inconsistent 

with this part. 

Section 242.7 Definitions 

This section contains the definitions 

that FRA proposes to employ in this 

rule. Most of the definitions are taken 

essentially verbatim from 49 CFR part 

240 and have been thoroughly analyzed 

in that rulemaking. Parties seeking a 

detailed analysis of those definitions 

should refer to the part 240 rulemaking 

documents. See, 54 FR 50890 (Dec. 11, 

1989), 56 FR 28228 (June 19, 1991), 58 

FR 18982 (Apr. 9, 1993), 60 FR 53133 

(Oct. 12, 1995), 63 FR 50626 (Sept. 22, 

1998), 73 FR 80349 (Dec. 31, 2008), and 

74 FR 68173 (Dec. 23, 2009). Some of 

the definitions in this proposed rule, 

however, are not found in part 240 or 

have been substantively modified from 

their use in part 240. Those definitions 

are analyzed below. 

As mentioned above, potential 

rulemakings involving medical 

standards and 49 CFR part 219 (Control 

of Alcohol and Drug Use) may impact 

many of the definitions in part 240 and 

proposed part 242. For example, 

definitions relating to medical standards 

(e.g., ‘‘medical examiner’’) and drug and 

alcohol control (e.g., ‘‘substance abuse 

disorder’’) in parts 240 and 242 may be 

superseded by definitions provided in 

those rulemakings. However, until those 

rulemakings are promulgated, the 

definitions in parts 240 and 242 will 

control. 

Conductor 

Although the RSIA requires FRA to 

establish a program for the certification 

of conductors, the Act does not define 

the term ‘‘conductor.’’ Without guidance 

from the Act, FRA proposes, and RSAC 

recommended, that the definition of 

‘‘conductor’’ be based on the generally 

understood responsibilities of that 

position, similar to Part 240’s approach 

to defining locomotive engineer. This 

proposed rule defines conductor as ‘‘the 

crewmember in charge of a train or yard 

crew as defined in part 218 of this 

chapter.’’ Part 218 defines ‘‘train or yard 

crew’’ as: 

‘‘one or more railroad employees assigned 

a controlling locomotive, under the charge 

and control of one crew member; called to 

perform service covered by Section 2 of the 

Hours of Service Act; involved with the train 

or yard movement of railroad rolling 

equipment they are to work with as an 

operating crew; reporting and working 

together as a unit that remains in close 

contact if more than one employee; and 

subject to the railroad operating rules and 

program of operational tests and inspections 

required in §§ 217.9 and 217.11 of this 

chapter.’’ 

As the use of the singular form of 

‘‘crewmember’’ suggests, FRA’s 

proposed definition mandates that only 

one person could be in charge of the 

train or yard crew and that person 

would be deemed the conductor for 

purposes of this proposed regulation 

only. Moreover, in some circumstances, 

a locomotive engineer, including a 

remote control operator, would be 

required to be certified as both a 

locomotive engineer under 49 CFR part 

240 and as a conductor under this 

proposed rule. See proposed 49 CFR 

242.213(d) and (e). All other train or 

yard crew members (e.g., assistant 

conductors, brakemen, hostlers, 

trainmen, switchmen, utility persons, 

flagmen, yard helpers, and others who 

might have different job titles but 

perform similar duties and are not in 

charge of a train or yard crew) do not 

fall within the definition of ‘‘conductor’’ 

for purposes of this proposed rule. 

Ineligible or Ineligibility 4

The term ‘‘ineligible’’ or ‘‘ineligibility,’’ 

which is not used in part 240, means 

that a person is legally disqualified from 

serving as a certified conductor. The 

term is broadly defined to cover a 

number of circumstances in which a 

person may not serve as a certified 

conductor. Revocation of certification 

pursuant to § 242.407 and denial of 

certification pursuant to § 242.401 are 

two examples in which a person would 

be ineligible to serve as a conductor. A 

period of ineligibility may end when a 

condition or conditions are met—for 

example, when a person meets the 

conditions to serve as a conductor 

following an alcohol or drug violation 

pursuant to proposed § 242.115. 

Job Aid 

The term ‘‘job aid,’’ which is not used 

in part 240, is defined as information 

regarding other than main track physical 

characteristics that supplements the 

operating instructions of the territory 

over which the locomotive or train 

movement will occur. The terms ‘‘main 

track’’ and ‘‘physical characteristics’’ are 

discussed below. 

The term ‘‘job aid’’ is broadly defined 

in this proposed rule. A job aid would 

consist of information that could be 

obtained from a variety of sources, 

including but not limited to, training on 

the territory pursuant to proposed 

§ 242.119, maps, charts or visual aids of 

the territory, or a person or persons to 

contact who are qualified on the 

territory and who can describe the 

physical characteristics of the territory. 

While each railroad would have 

flexibility in how it conveys the 

information in a job aid to a conductor, 

the job aid would, at a minimum have 

to cover the characteristics of the 

territory over which the locomotive or 

train movement will occur including: 

permanent close clearances, location of 

permanent derails and switches, 

assigned radio frequencies in use and 

special instructions required for 

movement, if any, and railroadidentified unique operating conditions. 

Pursuant to proposed 

§ 242.121(c)(4)(v), each railroad would 

be required to test conductors and 

conductor candidates on the use of any 

job aid that a railroad could provide a 

conductor. Proposed § 242.301(d) 

describes the conditions under which a 

railroad should provide a conductor 

with a job aid. 


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Main Track 

The term ‘‘main track’’ is defined as a 

track upon which the operation of trains 

is governed by one or more of the 

following methods of operation: 

timetable; mandatory directive; signal 

indication; positive train control as 

defined in 49 CFR part 236; or any form 

of absolute or manual block system. 

That definition mirrors the definition of 

‘‘main track’’ in 49 CFR part 240, but 

also includes a reference to positive 

train control. 

Medical Examiner 

The term ‘‘medical examiner’’ is 

defined as a person licensed as a doctor 

of medicine or doctor of osteopathy. A 

medical examiner could be a qualified 

full-time salaried employee of a 

railroad, a qualified practitioner who 

contracts with the railroad on a fee-forservice or other basis, or a qualified 

practitioner designated by the railroad 

to perform functions in connection with 

medical evaluations of employees. As 

used in this proposed rule, the medical 

examiner would owe a duty to make an 

honest and fully informed evaluation of 

the condition of an employee. 

The only difference between the 

definition of medical examiner in this 

proposed rule and the definition in 49 

CFR part 240 is that under part 240, the 

medical examiner owes ‘‘a duty to the 

railroad.’’ In this proposed rule, 

however, the words ‘‘to the railroad’’ 

have been deleted. This change was 

made to address a concern of some 

Working Group members that a medical 

examiner should not owe a duty to just 

the railroad but rather should owe a 

duty to both the railroad and the 

employee being evaluated. 

On-the-Job Training 

The term ‘‘on-the-job training,’’ which 

is not defined in part 240, means job 

training that occurs in the work place 

(i.e., the employee learns the job while 

doing the job). In this proposed rule, the 

‘‘on-the-job training’’ portion of the 

training program (see proposed 

§ 242.119) would be required to be 

based on a model generally accepted by 

the educational community, and must 

consist of three key components: (1) A 

brief statement describing the tasks and 

related steps the employee must be able 

to perform; (2) a statement of the 

conditions (i.e., tools, equipment, 

documentation, briefings, 

demonstrations, and practice) necessary 

for learning transfer; and (3) a statement 

of the standards by which proficiency 

can be measured through a combination 

of task/step accuracy, completeness, and 

repetition. 

Passenger Conductor 

The term ‘‘passenger conductor’’ is 

defined as a conductor who has also 

received emergency preparedness 

(EPREP) training under 49 CFR part 239. 

Interested parties should note that 

nothing in this proposed rule requires a 

conductor for private/non-revenue 

movements (e.g., business car specials) 

to have the EPREP training. This 

position is consistent with 49 CFR 

239.3(b). 

Physical Characteristics 

The term ‘‘physical characteristics,’’ 

which is not defined in part 240, means 

the actual track profile of and physical 

location for points within a specific 

yard or route that affect the movement 

of a locomotive or train. ‘‘Physical 

characteristics’’ include both main track 

physical characteristics (the term ‘‘main 

track’’ is analyzed above) and other than 

main track physical characteristics. 

Examples of physical characteristics 

could include permanent close 

clearances, location of permanent 

derails and switches, and grade. 

Qualified 

The term ‘‘qualified’’ is defined as a 

person who has successfully completed 

all instruction, training and examination 

programs required by the employer, and 

the applicable parts of this chapter and 

therefore could reasonably be expected 

to be proficient on all safety related 

tasks the person is assigned to perform. 

The definition of ‘‘qualified’’ in this 

proposed rule differs from its definition 

in part 240 in that part 240’s definition 

focuses on a person’s knowledge 

whereas the definition in this proposed 

rule focuses not only on knowledge but 

also on whether the person could 

reasonably be expected to be proficient 

at performing all assigned tasks. The 

revision to the definition of ‘‘qualified’’ 

is an attempt to ensure that a railroad’s 

instruction and training program not 

only provide knowledge of how to 

perform a task but also the ability to 

proficiently perform the task. 

Qualified Instructor 

The term ‘‘qualified instructor,’’ which 

is derived from the definition of 

‘‘instructor engineer’’ in part 240, means 

a person who has demonstrated, 

pursuant to the railroad’s written 

program, an adequate knowledge of the 

subjects under instruction and, where 

applicable, has the necessary operating 

experience to effectively instruct in the 

field. A qualified instructor would be 

required to have the following 

qualifications: 

(1) Is a certified conductor under this 

part; and 

(2) Has been selected as such by a 

designated railroad officer, in 

concurrence with the designated 

employee representative, where present; 

or 

(3) In absence of concurrence 

provided in paragraph (2) of this 

definition, has a minimum of 12 months 

service working as a train service 

employee. 

If a railroad does not have designated 

employee representation, then a person 

employed by the railroad need not 

comply with items (2) or (3) of this 

definition to be a ‘‘qualified instructor.’’ 

Items (2) and (3), while not found in 

part 240’s definition of ‘‘instructor 

engineer,’’ are included here to address 

the concerns of some Working Group 

members that employees, through their 

representatives, should have input in 

the selection of instructors who might 

be viewed as inexperienced (i.e., a 

person with less than 12 months service 

working as a train service employee). 

Remote Control Operator 

The term ‘‘remote control operator’’ 

(RCO) means a certified locomotive 

engineer, as defined in § 240.7 of this 

chapter, certified by a railroad to 

operate remote control locomotives 

pursuant to § 240.107 of this chapter. 

Although this term is not defined in part 

240, FRA intends for the term to have 

the same meaning in this proposed rule 

as it does in part 240. FRA defines the 

term in this proposed rule to avoid any 

confusion as to who this proposed rule 

is referring to when it references a 

remote control operator. 

The definition of RCO recommended 

by the Working Group used the word 

‘‘trained’’ instead of ‘‘certified.’’ FRA, 

however, believes the definition in this 

proposed part should to be consistent 

with the definition of RCO in 49 CFR 

218.93. Thus, FRA replaced the word 

‘‘trained’’ with ‘‘certified’’ in this 

proposed rule to parallel 49 CFR 218.93. 

Substance Abuse Disorder 

The term ‘‘substance abuse disorder’’ 

refers to a psychological or physical 

dependence on alcohol or a drug or 

another identifiable and treatable 

mental or physical disorder involving 

the abuse of alcohol or drugs as a 

primary manifestation. A substance 

abuse disorder is ‘‘active’’ within the 

meaning of this proposed rule if the 

person (1) is currently using alcohol or 

other drugs, except under medical 

supervision consistent with the 

restrictions described in § 219.103 of 

this chapter or (2) has failed to 

successfully complete primary 

treatment or successfully participate in 


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5The draft recommended by the Working Group 

and the full RSAC used the term ‘‘Substance Abuse 

Profession.’’ That was a clerical error on FRA’s part 

and the term has been corrected in this NPRM to 

read ‘‘Substance Abuse Professional.’’ 

6FRA deleted paragraphs (a) and (b) of this 

section from the version considered by the Working 

Group and full RSAC. FRA believes those 

paragraphs are superfluous in light of the proposed 

dates provided in other sections of the NPRM 

regarding submission and approval of railroad 

programs. 

aftercare as directed by a Substance 

Abuse Professional (SAP). 

The definition of substance abuse 

disorder in this proposed rule is the 

same as the definition in part 240 except 

in two respects. First, part 240’s 

definition refers to an ‘‘EAP Counselor’’ 

rather than a SAP. Since SAPs have 

more stringent credential, knowledge, 

training, and continuing education 

requirements than EAPs, SAPs may be 

better qualified to direct a person’s 

treatment or aftercare. Second, part 240 

uses the phrase ‘‘is currently using 

alcohol and other drugs’’ when 

describing active substance abuse 

disorders. The proposed rule would 

revise that phrase to read ‘‘is currently 

using alcohol or other drugs.’’ FRA is 

proposing the revision to clarify its 

intent that a person with an active 

substance abuse disorder could be using 

alcohol or other drugs. 

The proposed definition for 

‘‘substance abuse disorder’’ is similar to 

the language employed to govern 

disposition of employees referred to an 

employee assistance program under the 

‘‘co-worker report’’ (bypass) provision of 

the alcohol/drug regulations. It 

describes the condition of chemical 

dependency, as determined by an 

appropriate professional. Reference is 

made to other disorders involving abuse 

of alcohol and other drugs (i.e., ‘‘another 

identifiable and treatable mental or 

physical disorder involving the abuse of 

alcohol or drugs as a primary 

manifestation’’) to avoid disputes 

concerning diagnoses of ‘‘underlying’’ 

problems. The crux of the definition is 

that a person making uncontrolled use 

of alcohol or drugs is not a suitable 

candidate for the highly sensitive duties 

entrusted to a conductor. Since 

chemical dependency typically involves 

or has the potential for poly-drug abuse, 

the appropriate long-term therapy is 

abstinence from alcohol and all other 

drugs, except those taken under medical 

supervision. 

The proposed definition explains that 

the disorder would be considered 

‘‘active’’ within the meaning of the rule 

if the person is not currently abstaining 

from use of alcohol and drugs (except 

under medical supervision consistent 

with FRA’s alcohol/drug regulations) or 

has not participated in treatment as 

required. FRA is aware that many 

individuals abuse alcohol and drugs, 

with consequent ill-effects on their 

health and potential implications for 

fitness, without fitting within common 

definitions of chemical dependency. 

However, degrees of abuse are difficult 

to define; and significant disagreements 

prevail with regard to appropriate 

therapeutic responses. Accordingly, 

FRA has not required withholding of 

certification for patterns of abuse that 

fall short of chemical dependency. At 

the same time, FRA does not intend to 

convey that the concept of chemical 

dependency need meet the most rigid 

test used in any particular segment of 

the health care or mental health 

communities. The critical point here 

with respect to safety is that conductors 

not be in the grip of uncontrolled abuse 

patterns that, if addressed through 

treatment and permanent abstinence, 

could be put behind them. 

Substance Abuse Professional (SAP) 

The term ‘‘Substance Abuse 

Professional’’ (SAP)5 means a person 

who meets the qualifications of a SAP, 

as provided in 49 CFR Part 40. Pursuant 

to this proposed rule, the SAP would 

owe a duty to the railroad to make an 

honest and fully informed evaluation of 

the condition and progress of an 

employee. FRA notes that the duty 

owed by a SAP does not parallel the 

duty owed by a ‘‘medical examiner’’ (see 

above) in the proposed rule recommend 

by the full RSAC. As currently written, 

a medical examiner would owe a duty 

to both the railroad and the employee 

being evaluated while a SAP would owe 

a duty only to the railroad. FRA 

welcomes comments as to whether a 

SAP should owe a duty to both the 

employee being evaluated and the 

railroad (i.e., whether the words ‘‘to the 

railroad’’ should be deleted from the 

definition of SAP). 

Territorial Qualifications 

The term ‘‘territorial qualifications’’ 

means possessing the necessary 

knowledge concerning a railroad’s 

operating rules and timetable special 

instructions including familiarity with 

applicable main track and other than 

main track physical characteristics of 

the territory over which the locomotive 

or train movement will occur. Although 

not defined in part 240, the term is 

derived from part 240’s requirement 

that, with certain exceptions, a 

locomotive engineer may not operate a 

locomotive over a territory unless the 

engineer is ‘‘qualified on the physical 

characteristics of the territory.’’ See 49 

CFR 240.231. Pursuant to § 242.301 of 

this proposed rule, a person could not 

serve as a conductor unless the person 

was certified and possessed the 

necessary territorial qualifications for 

the applicable territory. 

Section 242.9 Waivers 

This section tracks the regulatory 

language in 49 CFR 240.9 and provides 

the proposed requirements for a person 

seeking a waiver of any section of this 

proposed rule. After review, however, 

FRA believes this section is unnecessary 

because 49 CFR part 211 sufficiently 

addresses the waiver process. FRA 

welcomes comments as to whether this 

proposed section should be removed. 

Section 242.11 Penalties and 

Consequences for Noncompliance 

This section tracks the regulatory 

language in 49 CFR 240.11 and provides 

minimum and maximum civil penalty 

amounts determined in accordance with 

the Federal Civil Penalties Inflation 

Adjustment Act of 1990, Public Law 

101–410 Stat. 890, 28 U.S.C. 2461 note, 

as amended by the Debt Collection 

Improvement Act of 1996 Public Law 

104–134, April 26, 1996, and the RSIA. 

Section 242.13 Information Collection 

Requirements 

This section lists the sections of the 

proposed rule which contain 

information collection requirements. 

Subpart B—Program and Eligibility 

Requirements 

This subpart contains the basic 

elements of the conductor certification 

program required by this proposed rule. 

Based on the RSIA’s requirement for 

‘‘certification’’ of conductors and FRA’s 

experience with certification of 

locomotive engineers, this rulemaking 

proposes to adopt a certification system 

(i.e., FRA sets eligibility criteria but 

leaves it to the railroads to evaluate 

candidates by those standards) rather 

than a traditional licensing system (i.e., 

a government agency sets eligibility 

criteria and evaluates candidates). As 

with part 240, this proposed rule affords 

railroads considerable discretion in the 

daily administration of their 

certification programs. 

Section 242.101 Certification Program 

Required 

This section proposes to require 

railroads to have a written program 

composed of six elements, each of 

which comports with specific 

provisions relating to that element.6 To 

give the railroads time to put their 

conductor programs into place and to 

accommodate the fact that many 


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7FRA has made some modifications to paragraph 

(a) of this section from the version considered by 

the Working Group and full RSAC. FRA believes 

those modifications are necessary to ensure a 

sensible schedule and future implementation of the 

conductor certification regulation. 

railroads perform training and 

certification of locomotive engineers at 

the beginning of each calendar year, 

FRA is proposing to make January 1, 

2012, the effective date of the final rule. 

FRA is proposing that date based on 

FRA’s anticipation that the Final Rule 

will be published in early 2011. The rest 

of the dates proposed in this rule (e.g., 

dates by which each railroad must 

grandfather its eligible conductors in 

§ 242.105) are based on the proposed 

effective date of January 1, 2012. 

Interested parties should note that FRA 

cannot guarantee any of the dates 

proposed in this NPRM. The dates have 

been included merely to generate 

discussion regarding the amount of time 

needed to implement a conductor 

certification program once a Final Rule 

has been published. FRA welcomes 

comments on the dates proposed in this 

NPRM. 

Section 242.103 Approval of Design of 

Individual Railroad Programs by FRA 

This section proposes to require each 

railroad to submit its certification 

program to FRA for approval in 

accordance with a schedule to be 

provided in the final rule. The proposed 

schedule for submissions in paragraph 

(a) would require Class I railroads, 

Amtrak, the commuter railroads, and 

Class II railroads to submit their 

programs at an earlier date than the 

Class III railroads or others not 

classified elsewhere.7 The format and 

contents of the submission are 

discussed at length in appendix B to 

this proposed rule. 

Unlike part 240, this proposed rule 

would require railroads to serve a copy 

of their submissions, resubmissions and 

material modifications on the president 

of each labor organization that 

represents the railroad’s certified 

conductors. Within 45 days of the filing 

of any of those submissions with FRA, 

any designated representative of 

certified conductors could submit 

comments on the railroad’s submissions 

to FRA. Although FRA, and not the 

commenters, would determine whether 

a railroad’s submission was approved, 

FRA expects that comments would be 

useful in determining whether the 

railroad’s program conforms to the 

criteria set forth in this proposed rule. 

This section also proposes to require 

each railroad to indicate how it intends 

to acquire future conductors. If a 

railroad accepts the responsibility for 

training a previously uncertified person 

to become a conductor, the railroad 

must explain its training regimen for 

such trainees, including provisions for 

relying on an outside training 

organization to provide the actual 

training. 

The proposed rule provides 30 days 

for FRA review and approval of railroad 

programs. FRA is proceeding in this 

manner because most railroads have 

existing programs, including locomotive 

engineer certification programs, 

intended to accomplish a similar goal 

that can be easily modified. The quality 

of such programs is generally good and 

the problems that may be encountered 

would not likely involve basic design 

flaws and generally would not surface 

until FRA has had time to observe the 

actual administration of the program. In 

screening all submissions FRA should 

be able to quickly detect any substantial 

deficiencies. Given the quality of 

existing programs, FRA sees little value 

in delaying implementation of the 

programs for time-consuming agency 

review. FRA may, of course, disapprove 

any program during the review cycle or 

at a later date. FRA will explain any 

deficiencies in writing. This section 

proposes to require a timely railroad 

response to an FRA disapproval action 

as a railroad will have no more than 30 

days to revise and resubmit its program. 

Section 242.105 Schedule for 

Implementation 

This section contains the timetable for 

implementation of the proposed rule. 

Paragraphs (a) and (b) of this section 

would require that railroads, in writing, 

designate as certified conductors all 

persons authorized by the railroad to 

perform the duties of a conductor as of 

the effective date of the final rule, or 

authorized between the effective date of 

the final rule and dates specified in 

paragraph (d) or (f) of this section, and 

to issue a certificate to each person it 

designates. The mandatory designation 

requirement of this section is included 

to address the concerns of some 

Working Group members that railroads 

should not be given the discretion to 

engage in disparate treatment of its 

employees (i.e., designate and provide a 

certificate to some people who are 

authorized to perform the duties of a 

conductor as of the effective date of the 

final rule but not others). 

Paragraph (c) of this section would 

require each railroad to make formal 

determinations concerning those 

employees it has ‘‘grandfathered’’ (i.e., 

designated as conductors) within 36 

months of the date for compliance by its 

class of railroad. Pursuant to that 

paragraph, a grandfathered conductor 

could serve as a conductor for up to 36 

months from the date of compliance for 

the railroad (i.e., the date specified in 

paragraph (d) or (e) of this section). At 

the end of the 36 months, however, the 

grandfathered conductor could no 

longer serve as a conductor unless he or 

she successfully completed the tests and 

evaluations provided in subpart B of 

this proposed rule (i.e., the full 

certification process). 

In order to test and evaluate all of its 

grandfathered conductors by the end of 

the 36-month period, a large railroad 

would likely have to begin that process 

well in advance of the end of the 36 

months. For example, paragraph (c), 

which is derived from part 240’s 

grandfathering provision, would permit 

a railroad to test and evaluate one-third 

of its grandfathered conductors within 

12 months of the railroad’s date of 

compliance; another one-third within 24 

months of its date of compliance; and 

the final one-third within 36 months of 

its date of compliance. 

Some of the Working Group members 

raised concerns about grandfathered 

conductors who would be eligible to 

retire within 36 months of the date for 

compliance by their class of railroad. 

Specifically, some members did not 

believe it was an efficient use of 

resources to perform the full 

certification process on a grandfathered 

conductor who was going to retire 

before the end of the 36-month 

grandfathering period. To address those 

concerns, subparagraph (c)(1) provides 

that a grandfathered conductor, who is 

eligible to receive a retirement pension 

in accordance with the terms of an 

applicable agreement or with the terms 

of the Railroad Retirement Act (45 

U.S.C. 231) within 36-months prior to 

the date they would be required to be 

tested and evaluated under subpart B of 

this proposed rule, may request, in 

writing, that the railroad not perform 

the full certification process on that 

grandfathered conductor until 36 

months from the date of required testing 

and evaluation. 

Paragraph (c)(2) provides that, upon 

receipt of that written request, a railroad 

may wait to perform the full 

certification process on the person 

making the request until the end of the 

36-month grandfathering period. Thus, 

paragraphs (c)(1) and (c)(2) would allow 

grandfathered conductors to serve as 

conductors for the full 36-month 

grandfathering period and then retire 

before being subjected to the full 

certification process. 

While it is in the railroads’ interest 

not to perform the full certification 

process for a person who is going to 

retire once the grandfathering period 


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8As an alternative to the NDR, some members of 

the Working Group suggested that motor vehicle 

operator information could be obtained from the 

National Crime Information Center (NCIC) run by 

the Federal Bureau of Investigation. However, FRA 

does believe the NCIC is an appropriate option 

since the information provided by the NCIC cannot 

be limited to just motor vehicle data. 

expires and thus in their interest to 

grant as many requests as possible, it 

may not be feasible to accommodate 

every request that is made. If, for 

example, a significant number of 

grandfathered conductors on a railroad 

properly request that the railroad wait to 

recertify them at the end of the 

grandfathering period, but then do not, 

in fact, retire by the expiration of the 36- 

month grandfathering period, the 

railroad might not be able to certify 

everyone in time and would risk 

violating this proposed rule. In 

recognition of that risk and the need to 

give the railroads some flexibility to 

comply with the proposed rule, 

paragraph (c)(2) also provides that a 

railroad that grants any request must 

grant the request of all eligible persons 

‘‘to every extent possible.’’ 

In addition, paragraph (c)(3) provides 

that a grandfathered conductor who is 

also subject to recertification under part 

240 may not make a request under 

subparagraph (c)(1) of this section. That 

provision recognizes that railroads 

would likely want to have concurrent 

certification processes for certifying a 

person who will be both a certified 

locomotive engineer and a conductor 

and thus it would not be appropriate, in 

that instance, for a grandfathered 

conductor who is already subject to 

recertification under part 240 to make a 

request to delay the full conductor 

certification process. 

Paragraphs (d), (e), and (f) provide 

that after specified dates, no railroad 

could certify or recertify a person as a 

conductor and no person could serve as 

a conductor unless that person had been 

tested and evaluated in accordance with 

the procedures provided in subpart B of 

the proposed rule and issued a 

certificate. 

Section 242.107 Types of Service 

This section proposes to create two 

types of conductor service: Conductor 

and passenger conductor. As indicated 

in the definition section of this 

proposed rule, a ‘‘passenger conductor’’ 

is a ‘‘conductor’’ who has also received 

emergency preparedness training under 

49 CFR part 239. 

Paragraph (c) of this section, derived 

from 49 CFR 240.107(e), proposes to 

prohibit a railroad from reclassifying the 

certification of any type of certified 

conductor to a different type of 

conductor certification during the 

period in which the certification is 

otherwise valid except when a 

conductor completes 49 CFR part 239 

emergency training and is certified as a 

passenger conductor. For example, this 

proposed rule would prohibit a railroad 

from requiring a passenger conductor to 

exchange his or her passenger conductor 

certificate for a conductor certificate 

during the period in which the 

passenger conductor certificate is 

otherwise valid. 

While this proposed rule would 

prohibit the practice of reclassification, 

it would not prevent the railroads from 

pursuing other measures to ensure the 

safe performance of conductor service. 

For example, the proposed rule would 

not prevent a railroad from placing 

restrictions on a certificate pursuant to 

paragraph (d) of this section. It should 

be noted, however, that while paragraph 

(d) would permit a railroad to place 

restrictions on a certificate, any 

restrictions would be applied and 

reviewed in accordance with internal 

railroad rules, procedures and 

processes. Proposed part 242 would not 

govern the issuance or review of 

restrictions as that would be a matter 

handled under a railroad’s internal 

discipline system or collective 

bargaining agreement. See § 242.5(a), 

(b), and (d). 

Section 242.109 Determinations 

Required for Certification and 

Recertification 

This section lists the proposed 

determinations required for evaluating a 

candidate’s eligibility to be certified or 

recertified. Since motor vehicle data is 

required to be sent to the railroad rather 

than to the candidate, paragraphs (d) 

and (e) of this section would require a 

railroad to provide a candidate for 

certification or recertification an 

opportunity to review and comment on 

any record which contains adverse 

information. This review would avoid 

the potential for reliance on records that 

were somehow erroneously associated 

with a candidate. 

Section 242.111 Prior Safety Conduct 

As Motor Vehicle Operator 

This section, derived from 49 CFR 

240.111 and 240.115, provides the 

proposed requirements and procedures 

that a railroad would have to follow 

when evaluating a conductor or 

conductor candidate’s prior conduct as 

a motor vehicle operator. Although 

some members of the Working Group 

suggested that information regarding the 

prior safety conduct as a motor vehicle 

operator was unnecessary in 

determining whether a person should be 

certified as a conductor, FRA believes 

that the prior safety conduct of a motor 

vehicle operator is one indicator of that 

person’s drug and/or alcohol use and 

therefore an important piece of 

information for a railroad to consider. 

Pursuant to this section, each person 

seeking certification or recertification as 

a conductor would have to request in 

writing that the chief of each driver 

licensing agency that issued him or her 

a driver’s license within the preceding 

five years provide a copy of the person’s 

driving record to the railroad. Unlike 

part 240, this proposed rule would not 

require individuals to also request 

motor vehicle operator information from 

the National Driver Registry (NDR). It is 

FRA’s understanding that, based on the 

NDR statute and regulation (see 49 

U.S.C. chapter 303 and 23 CFR 1327), 

railroads are prohibited from running 

NDR checks or requesting NDR 

information from individuals seeking 

employment as certified conductors.8

During the Working Group meetings, 

members of the Working Group raised 

concerns about conductor candidates 

who had properly requested motor 

vehicle operator information but were 

unable to be certified or recertified as 

conductors because of a delay or mix-up 

by a driver licensing agency in sending 

the required information to the railroad. 

To address that concern, paragraphs (c) 

and (d) of this section would require a 

railroad to certify or recertify a person 

for 60 days if the person: (1) Requested 

the required information at least 60 days 

prior to the date of the decision to 

certify or recertify; and (2) otherwise 

meets the eligibility requirements 

provided in § 242.109 of this proposed 

rule. If a railroad certifies or recertifies 

a person for 60 days pursuant to 

paragraphs (c) or (d) but is unable to 

obtain and evaluate the required 

information during those 60 days, the 

person would be ineligible to perform as 

a conductor until the information can be 

evaluated. However, if a person is 

simply unable to obtain the required 

information, that person or the 

certifying or recertifying railroad could 

petition for a waiver from FRA (see 49 

CFR part 211). During the pendency of 

the waiver request, a railroad would 

have to certify or recertify a person if 

the person otherwise meets the 

eligibility requirements of § 242.109 of 

this proposed rule. 

Paragraph (l) of this section would 

require certified conductors or persons 

seeking initial certification to notify the 

employing railroad of motor vehicle 

incidents described in paragraph (n) of 

this section within 48 hours of the 

conviction or completed state action to 

cancel, revoke, suspend, or deny a 


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motor vehicle driver’s license. The 

paragraph also provides that, for 

purposes of conductor certification, a 

railroad could not have a more 

restrictive company rule requiring an 

employee to report a conviction or 

completed state action to cancel, revoke, 

or deny a motor vehicle drivers license 

in less than 48 hours. 

The reasoning behind paragraph (l) 

involves several intertwined objectives. 

As a matter of fairness, a railroad should 

not revoke, deny, or otherwise make a 

person ineligible for certification until 

that person had received due process 

from the state agency taking the action 

against the motor vehicle license. 

Otherwise, action pursuant to this part 

might be deemed premature since the 

American judicial system is based on 

the concept of a person being innocent 

until proven guilty. Further, by not 

requiring reporting until 48 hours after 

the completed state action, the proposed 

rule would have the practical effect of 

ensuring that a required referral to a 

SAP under paragraph (o) of this section 

would not occur prematurely. Interested 

parties should note however, that 

paragraph (l) would not prevent an 

eligible person from choosing to 

voluntarily self-refer pursuant to 

§ 242.115(d)(3). Nor would it prevent 

the railroad from referring the person to 

a SAP pursuant to § 240.115 if other 

information exists that identifies the 

person as possibly having a substance 

abuse disorder. Further, the restriction 

would apply only to actions taken 

against a person’s certificate and would 

have no effect on a person’s right to be 

employed by that railroad. 

As mentioned above, paragraph (o) of 

this section would require that if such 

a motor vehicle incident described in 

paragraph (n) is identified, the railroad 

would be required to provide the data 

to its SAP along with ‘‘any information 

concerning the person’s railroad service 

record.’’ Furthermore, the person would 

have to be referred for evaluation to 

determine if the person had an active 

substance abuse disorder. If the person 

has such a disorder, the person could 

not be currently certified. Alternatively, 

even if the person is evaluated as not 

currently affected by an active substance 

abuse disorder, the railroad would be 

required, on recommendation of the 

SAP, to condition certification upon 

participation in any needed aftercare 

and/or follow-up testing for alcohol or 

drugs, or both. The intent of this 

provision is to use motor vehicle 

records to expose conductors or 

conductor candidates who may have 

active substance abuse disorders and 

make sure they are referred for 

evaluation and any necessary treatment 

before allowing them to perform safety 

sensitive service. 

Section 242.113 Prior Safety Conduct 

as an Employee of a Different Railroad 

This section of the proposed rule, 

which is derived from 49 CFR 240.113 

and 240.205, proposes a process for 

requesting information regarding the 

candidate’s prior safety conduct, if any, 

as an employee of a different railroad. 

Section 242.115 Substance Abuse 

Disorders and Alcohol Drug Rules 

Compliance 

This proposed section, which is 

derived from 49 CFR 240.119 and 

240.205, would address two separate 

dimensions of the alcohol/drug problem 

in relation to conductors—(1) active 

substance abuse disorders and (2) 

specific alcohol/drug regulatory 

violations. This section and § 242.111 

address certain situations in which 

inquiry must be made into the 

possibility that the individual has an 

active substance abuse disorder if the 

individual is to obtain or retain a 

certificate. The fact that specific 

instances are cited in this section would 

not exclude the general duty of the 

railroad to take reasonable and 

proportional action in other appropriate 

cases. Declining job performance, 

extreme mood swings, irregular 

attendance and other indicators may, to 

the extent not immediately explicable, 

indicate the need for a SAP evaluation. 

Paragraph (a) would require each 

railroad to address both dimensions of 

this issue in its program. Paragraphs (b) 

and (c) would require each railroad to 

determine that a person initially 

certifying or a conductor recertifying 

meets the eligibility requirements of this 

section. Additionally, each railroad 

would be required to retain the 

documents used to make that 

determination. 

Paragraph (d) provides that a person 

with an active substance abuse disorder 

could not be currently certified as a 

conductor. This means that appropriate 

action would have to be taken with 

respect to a certificate (whether denial 

or suspension) whenever the existence 

of an active substance abuse disorder 

comes to the official attention of the 

railroad, with the exception discussed 

below. Paragraph (d) would also provide 

a mechanism for an employee to 

voluntarily self-refer for substance abuse 

counseling or treatment. 

Paragraph (e) would address conduct 

constituting a violation of § 219.101 or 

§ 219.102 of the alcohol/drug 

regulations. Section 219.101 prohibits 

any employee from going or remaining 

on duty in covered service while using, 

possessing, or being under the influence 

of or impaired by alcohol or a controlled 

substance or with a blood alcohol 

concentration of .04% or more. This is 

conduct that specifically and directly 

threatens safety in a way that is wholly 

unacceptable, regardless of its genesis 

and regardless of whether it has 

occurred previously. In its more extreme 

forms, such conduct is punishable as a 

felony under the criminal laws of the 

United States (18 U.S.C. 341 et seq.) and 

a number of states. 

Section 219.102 prohibits use of a 

controlled substance by a covered 

employee, at any time, on or off duty, 

except under the exception for approved 

medical use. Abuse of marijuana, 

cocaine, amphetamines, and other 

controlled substances poses 

unacceptable risks to safety. However, 

where on-the-job use, possession, or 

impairment is not established, as is 

most often the case where urinalysis is 

the means of detection (e.g., through a 

random drug test which can detect 

drugs remaining in the system for some 

period after actual use), this violation is 

marginally less serious than a § 219.101 

violation. 

Under the alcohol/drug regulations, 

whenever a violation of § 219.101 or 

§ 219.102 is established based on 

authorized or mandated chemical 

testing, the employee must be removed 

from service and may not return until 

after a SAP evaluation, any needed 

treatment, or a negative return-to-duty 

test, and is subject to follow-up testing 

(§ 219.104). This structure suggests an 

absolute minimum for action when a 

conductor is determined to have 

violated one of these prohibitions. 

Considering the need both for general 

and specific deterrence with respect to 

future unsafe conduct, additional action 

should be premised on the severity of 

the violation and whether the same 

individual has prior violations. 

One key consideration in evaluating 

this conduct and appropriate responses 

is the duration of retrospective review. 

This proposed rule would require 

railroads to consider conduct that 

occurred within the period of 60 

consecutive months prior to the review. 

This is the same period proposed in this 

rule as the maximum period of 

ineligibility for certification following 

repeated alcohol/drug violations and is 

the same period used in part 240. 

Use of a 5-year cycle reflects 

anecdotal experience in the railroad 

industry indicating that conduct 

committed as much as 5 years before 

may tend to predict future alcohol or 

drug abuse behavior (and recognizes the 

reality that most individual violations 

are probably not detected). It also 


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reflects a certain confidence in the 

resilience of human nature—i.e., a 

reasonable expectation that the person 

who remains in compliance for that 

period of time will not again be found 

in violation. Of course, railroads would 

retain the flexibility to consider prior 

conduct (including conduct more than 5 

years prior) in determining whom they 

will hire as conductors. 

Interested parties should note that 

conduct violative of the FRA 

proscriptions against alcohol and drugs 

need not occur while the person is 

serving in the capacity of a conductor in 

order to be considered. For instance, an 

employee who violated § 219.101 while 

working as a brakeman and then sought 

conductor certification six months later 

(under the provision described below) 

would not be currently eligible for 

certification. The same is true under 

part 240—an employee who violates 

§ 219.101 while working as a brakeman 

and then seeks locomotive engineer 

certification six months later would not 

be eligible for certification at that time. 

The railroad’s responsibility would not 

be limited to periodic recertification. 

This proposed rule would prompt a 

review of certification status for any 

conduct in violation of § 219.101 or 

§ 219.102. 

The proposed rule requires a 

determination of ineligibility for a 

period of 9 months for an initial 

violation of § 219.101. This parallels the 

9-month disqualification in 

§ 240.119(c)(4)(iii) and for a refusal to 

cooperate in post-accident or random 

testing. FRA does not believe that a 

conductor should be able to seek the 

shelter of a collective bargaining 

agreement or more lenient company 

policy in the case of a clear on-the-job 

violation, insofar as Federal eligibility to 

serve as a conductor is concerned. 

Specifying a period of ineligibility 

would serve the interest of deterrence 

while giving further encouragement to 

co-workers to deal with the problem 

before it is detected by management. 

In order to preserve and encourage coworker referrals, the 9-month period 

would be waived only in the case of a 

qualifying co-worker report (see 

§ 219.405). FRA believes that this 

distinction in treatment is warranted as 

a strong inducement to participation 

because co-worker referral programs 

help identify troubled employees prior 

to those employees getting into 

accidents. A strong inducement to refer 

a co-worker is a worthy goal if it may 

contribute to a reduction in accidents 

and incidents. Although we do not 

know how many actual co-worker 

reports may be generated, the intended 

result would be served if an atmosphere 

of intolerance for drug abusing behavior 

is reinforced in the workplace and 

violators know that they may be turned 

in by their colleagues if they report for 

duty impaired. 

In the case of a second violation of 

§ 219.101, the conductor would be 

ineligible for a period of 5 years. Given 

railroad employment practices and 

commitment to alcohol/drug 

compliance, it is likely, of course, that 

any individual so situated may also be 

permanently dismissed from 

employment. However, it is important 

that the employing railroad also follow 

through and revoke the certificate under 

this rule so that the conductor could not 

go to work for another railroad within 

the 5-year period using the unexpired 

certificate issued by the first railroad as 

the basis for certification. These 

proposed sanctions mirror the sanctions 

in § 240.119. 

Under this proposed rule, one 

violation of § 219.102 within the 5-year 

window would require only temporary 

suspension and the minimum response 

described in § 242.115(f) (referral for 

evaluation, treatment as necessary, 

negative return-to-duty test, and 

appropriate follow-up). This parallels 

the approach in part 240 and reflects 

FRA’s wish not to undercut the 

therapeutic approach to drug abuse 

employed by many railroads. This 

approach would permit first-time 

positive drug tests to be handled in a 

non-punitive manner that concentrates 

on remediation of any underlying 

substance abuse problem and avoids the 

adversarial process associated with 

investigations, grievances and 

arbitrations under the Railway Labor 

Act and collective bargaining 

agreements. A second violation of 

§ 219.102 would subject the employee to 

a mandatory 2-year period of 

ineligibility. A third violation within 5 

years would lead to a 5-year period of 

ineligibility. This proposed rule would 

also address violations of §§ 219.101 

and 219.102 in combination. A person 

violating § 219.101 after a prior 

§ 219.102 violation would be ineligible 

for 3 years; and the same would be true 

for the reverse sequence. 

Refusals and failures to participate in 

chemical tests would be treated as if the 

test were positive. A refusal or failure to 

provide a breath or body fluid sample 

for testing under the requirements of 49 

CFR part 219 when instructed to do so 

by a railroad representative shall be 

treated, for purposes of ineligibility 

under this section, in the same manner 

as a violation of: (1) § 219.101, in the 

case of a refusal or failure to provide a 

breath sample (49 CFR subpart D), or a 

blood specimen for mandatory postaccident toxicological testing (49 CFR 

subpart C)); or (2) § 219.102, in the case 

of a refusal or failure to provide a urine 

specimen for testing. 

Interested parties should note that if 

a person, covered by 49 CFR part 219, 

refuses to provide a breath or a body 

fluid specimen or specimens when 

required to by the railroad under a 

mandatory provision of 49 CFR part 

219, then the railroad, apart from any 

action it would take under proposed 

part 242, is required to remove that 

person from covered service and 

disqualify that person from working in 

covered service for 9 months. See, 49 

CFR 219.104 and 219.107; see also, 49 

CFR § 219 subpart H and 49 CFR 40.191 

and 40.261. 

Proposed § 242.115(f) would prescribe 

the conditions under which employees 

may be certified or recertified after a 

determination that the certification 

should be denied, suspended, or 

revoked, due to a violation of § 219.101 

or § 219.102 of the alcohol/drug 

regulations. These conditions mirror the 

conditions in § 240.119(d) and closely 

parallel the return-to-duty provisions of 

the alcohol/drug rule. Interested parties 

should note that the proposed 

regulation would not require 

compensation of the employee for the 

time spent in this testing, which is a 

condition precedent to retention of the 

certificate; but the issue of 

compensation would ultimately be 

resolved by reference to the collective 

bargaining agreement or other terms and 

conditions of employment under the 

Railway Labor Act. Moreover, a railroad 

that intends to withdraw its conditional 

certification would have to afford the 

conductor the hearing procedures 

provided by § 242.407 if the conductor 

did not waive his or her right to the 

hearing. 

Proposed paragraph (g) would ensure 

that a conductor, like any other covered 

employee, could self-refer for treatment 

under the alcohol/drug rule (§ 219.403) 

before being detected in violation of 

alcohol/drug prohibitions and would be 

entitled to confidential handling of that 

referral and subsequent treatment. This 

means that a railroad would not 

normally receive notice of any 

substance abuse disorder identified by 

the SAP. However, the paragraph would 

also require that the railroad policy 

must (rather than may) provide that 

confidentiality is waived if the 

conductor fails to participate 

successfully in treatment as directed by 

the SAP, to the extent that the railroad 

must receive notice that the employee 

has an active substance abuse disorder 

so that appropriate certificate action can 

be taken. The effect of this provision is 


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9Subparagraphs (d)(1) and (d)(2) have been 

modified somewhat from the language 

recommended by the RSAC to clarify the scope of 

what the training plan and curriculum need to 

cover. 

that the certification status of a 

conductor who seeks help and 

cooperates in treatment would not be 

affected, unless the conductor fails to 

follow through. 

Section 242.117 Vision and Hearing 

Acuity 

This section contains proposed 

requirements for visual and hearing 

acuity testing that a railroad must 

incorporate in its conductor certification 

program. The proposed visual 

requirements are the same as those 

provided in 49 CFR 240.121. The testing 

procedures and standards for the 

proposed hearing requirements, 

however, are more stringent than those 

contained in 49 CFR 240.121 and were 

derived from the procedures and 

standards provided in 49 CFR part 227. 

Although some individuals may not 

be able to meet the threshold acuity 

levels in this proposed rule, they may be 

able to compensate in other ways that 

will permit them to function at an 

appropriately safe level despite their 

physical limitations. Paragraph (j) of 

this section would permit a railroad to 

have procedures whereby doctors can 

evaluate such individuals and make 

discrete determinations about each 

person’s ability to compensate for his or 

her physical limitations. If the railroad’s 

medical examiner concluded that an 

individual had compensated for his or 

her limitations and could safely serve as 

a conductor on that railroad, the 

railroad could certify that person under 

this proposed regulation once the 

railroad possessed the medical 

examiner’s professional medical 

opinion to that effect. 

Paragraph (k) of this proposed section, 

would address the issue of how soon 

after learning of a deterioration of his or 

her best correctable vision or hearing a 

certified conductor would have to notify 

the railroad of the deterioration. FRA is 

concerned with the safe performance of 

conductor service, not whether a person 

can notify a railroad within a set time 

frame. Thus, FRA proposes, and the 

RSAC recommended, to require 

notification ‘‘prior to any subsequent 

performance as a conductor.’’ Certified 

conductors should note that willful 

noncompliance with this requirement 

could result in enforcement action. 

As mentioned above it is possible that 

a regulation recommended by the 

Medical Standards Working Group and 

adopted by FRA could supersede the 

hearing and vision standards and 

requirements in this proposed rule. 

Section 242.119 Training 

This section, in compliance with the 

training requirements of the RSIA, 

proposes to require railroads to provide 

initial and periodic training of 

conductors. That training would be 

necessary to ensure conductors have the 

knowledge, skills, and abilities 

necessary to competently and safely 

perform all of the safety-related duties 

mandated by Federal laws, regulations, 

and orders. 

Paragraph (c) of this proposed section 

would require railroads to document a 

conductor’s knowledge of, and ability to 

comply with, Federal railroad safety 

laws and regulations, and railroad rules 

used to implement them. In addition, 

that paragraph would require railroads 

to document that a conductor 

demonstrated that he or she is qualified 

on the physical characteristics of the 

railroad, or its pertinent segments, over 

which that person will perform service. 

This section would require railroads to 

review and modify their training 

program whenever new safety-related 

railroad laws, regulations, technologies, 

procedures, or equipment are 

introduced into the workplace. 

Under this section, railroads would 

have latitude to design and develop the 

training and delivery methods they will 

employ; but paragraphs (d), (e), and (f) 

provide proposed requirements for 

railroads that elect to train a previously 

untrained person to be a conductor. 

Pursuant to paragraph (d),9 a railroad 

that makes this election would be 

required to perform a task analysis in 

order to ensure completeness when 

developing training courses for both 

initial and periodic training courses, 

and on-the-job training standards for 

new conductors. Subparagraph (d)(1) of 

this section would permit a railroad to 

demonstrate that a task analysis, or 

portions of a task analysis, was 

performed for a program developed 

prior to the effective date of the 

regulation. 

In the context of this proposed rule, 

a task analysis is the analysis of how 

conductor tasks are accomplished, 

including a detailed description of both 

manual and mental activities, durations, 

frequency, allocation, complexity, 

environmental conditions, necessary 

clothing and equipment, and any other 

unique factors involved in or required 

for one or more people to perform a 

given task. A task analysis is typically 

performed by a group of subject matter 

experts (SMEs) and a skilled 

educational specialist. In some cases, 

SMEs are also skilled as educational 

specialists. This group of SMEs should 

develop task lists, then the subtasks and 

steps. A task does not always have 

subtasks, but unless it is very simple, it 

will always have steps. The ‘‘natural’’ 

progression would be for the 

employer(s) to develop their learning 

objectives and on-the-job standards from 

this list. For purposes of this proposed 

rule, railroads should review all of the 

Federal requirements (such as 49 CFR 

Part 215 Appendix D, 49 CFR Part 218, 

49 CFR Part 219 Subpart D, 49 CFR 

Parts 220, 232, and 241, hazardous 

materials handling and documentation 

requirements, etc.) when developing 

their task list in order to ensure the task 

analysis is complete from an FRA 

perspective. FRA intends to review the 

railroad task analyses with its own 

SMEs. 

Paragraphs (g), (h), (i), (j), and (k) of 

this section contain the proposed 

requirements with respect to acquiring 

familiarity with the physical 

characteristics of a territory. Except for 

the requirements in paragraphs (j) and 

(k), the requirements parallel those in 

part 240. Paragraphs (j) and (k) of this 

section would require railroads to 

designate in their programs the time 

period in which a conductor must be 

absent from a territory or yard, before 

requalification on physical 

characteristics is required and the 

procedures used to qualify or requalify 

a person on the physical characteristics. 

Paragraphs (l) and (m) would require 

railroads to perform initial instructional 

briefings to ensure that each of its 

conductors have knowledge of the 

Federal railroad safety laws, regulations, 

and orders that relate to the safetyrelated tasks the employees are assigned 

to perform. The purpose of the proposed 

instructional briefing requirement is to 

ensure accountability for both railroads 

and conductors. For many years, FRA 

has encountered situations in which 

railroad employees have been noncompliant with Federal requirements, 

but FRA was unable to determine 

whether one of the root causes of the 

non-compliance was inadequate 

training. FRA intends to remedy this 

issue by requiring railroads to perform 

these instructional briefings. FRA would 

also expect railroads to provide this 

information to new employees as part of 

their formal training program. In 

paragraph (n) of this section, FRA 

proposes to permit each railroad to 

demonstrate that it has met the 

requirements of paragraphs (l) and (m) 

through prior training records. 

Paragraph (o) would require each 

railroad to provide for the continuing 

education of certified conductors to 

ensure that each conductor maintains 

the necessary knowledge concerning 


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railroad safety and operating rules and 

compliance with all applicable Federal 

regulations, including, but not limited 

to, hazardous materials, passenger train 

emergency preparedness, brake system 

safety standards, pre-departure 

inspection procedures, and passenger 

equipment safety standards, and 

physical characteristics of a territory. 

This proposed paragraph, which is 

derived from 49 CFR 240.123(b), was 

included in several drafts reviewed by 

the Working Group but was not in the 

draft voted on by the Working Group or 

full RSAC. FRA has included it in this 

NPRM because we suspect that it was 

inadvertently omitted and believe that 

continuing education is critical for 

conductors. FRA welcomes comments 

on this paragraph. 

Section 242.121 Knowledge Testing 

This section, derived from 49 CFR 

240.125 and 240.209, would require 

railroads to provide for the initial and 

periodic testing of conductors. That 

testing would have to effectively 

examine and measure a conductor’s 

knowledge of five subject areas: Safety 

and operating rules; timetable 

instructions; compliance with all 

applicable Federal regulations; the 

physical characteristics of the territory 

on which a person will be or is 

currently serving as a conductor; and 

the use of any job aid that a railroad 

may provide a conductor. 

Under this section, railroads would 

have discretion to design the tests that 

will be employed; for most railroads 

that will entail some modification of 

their existing ‘‘book of rules’’ 

examination to include new subject 

areas. This section does not specify 

things like the number of questions to 

be asked or the passing score to be 

obtained. However, it does propose that 

the test not be conducted with open 

reference books unless use of such 

materials is part of a test objective and 

the test be in written or electronic form. 

Moreover, since the testing effort 

selected by the railroad must be 

submitted to FRA for approval, the 

exercise of the discretion being afforded 

railroads by this section would be 

monitored by FRA. To address a 

concern of some of the members of the 

Working Group that persons being 

tested were unable to obtain 

clarification of test questions by 

someone who possessed knowledge of a 

relevant territory, paragraph (e) of this 

proposed section would require 

railroads to provide the person(s) being 

tested with an opportunity to consult 

with a supervisory employee, who 

possesses territorial qualifications for 

the territory, to explain a question. 

Section 242.123 Monitoring 

Operational Performance 

This proposed section, derived from 

49 CFR 240.129 and 240.303, contains 

the proposed requirements for 

conducting unannounced compliance 

tests. 

Paragraph (b) of this section would 

require each railroad to have a program 

to monitor the conduct of its conductors 

by performing unannounced operating 

rules compliance tests. 

Paragraph (c) provides that each 

conductor would have to be given at 

least one unannounced compliance test 

in each calendar year by a railroad 

officer who meets the requirements of 

49 CFR 217.9(b)(1). 

Paragraph (d) provides the operational 

tests that conductors and passenger 

conductors would have to be tested on. 

That paragraph would also allow 

passenger conductors who do not 

require compliance with 49 CFR 218 

subpart F, except under emergency 

circumstances, to meet the annual, 

unannounced test requirement with 

annual training. 

Paragraph (e) of this section would 

require railroads to indicate the types of 

actions they will take in the event they 

find deficiencies with a conductor’s 

performance during an unannounced 

compliance test. FRA believes it is up to 

each railroad to decide the appropriate 

action to take in light of various factors, 

including collective bargaining 

agreements. Further, FRA believes that 

the vast majority of railroads have 

adequate policies to deal with 

deficiencies with a conductor’s 

performance and have handled them 

appropriately for many years. 

To avoid restricting the options 

available to the railroads and employee 

representatives to develop processes for 

handling test failures, FRA designed 

this proposal to be as flexible as 

possible. There are a variety of actions 

and approaches that a railroad could 

take in response to a test failure and 

FRA does not want to stifle a railroad’s 

ability to adopt an approach that is best 

for its organization. Some of the actions 

railroads could consider include: 

develop and provide formal remedial 

training for conductors who fail tests or 

have deficiencies in their performance; 

automatically download event recorder 

data, if relevant, upon a test failure or 

deficient performance in order to 

preserve evidence of the failure/ 

deficiency; and require two supervisors 

to accompany a retest. Each railroad 

could also consider implementing a 

formal procedure whereby a conductor 

is given the opportunity to explain, in 

writing, the factors that he or she 

believes caused their test failure or 

performance deficiencies. This 

explanation may allow a railroad to 

determine what areas of training to 

focus on or perhaps discover that the 

reason for the failure/deficiency was 

due to something other than a lack of 

skills. FRA believes there are numerous 

other approaches that could and should 

be considered and evaluated by 

railroads and their employees. FRA 

realizes that a railroad’s list of actions 

it will take in response to a test failure 

or deficient performance could be 

expansive given the various 

circumstances that could contribute to a 

test failure or deficient performance. 

Paragraphs (b) and (f) of this section 

recognize that some certified conductors 

may not be performing a service that 

requires conductor certification and 

thus a railroad may not be able to 

provide those conductors with the 

annual, unannounced compliance test. 

For example a certified conductor may 

be on furlough, in military service, off 

with an extended illness, or working in 

another service. Unlike part 240, which 

requires railroads to seek a waiver from 

FRA’s Safety Board for engineers it is 

unable to annually test, this proposed 

section would not require railroads to 

give an unannounced compliance test to 

conductors who are not performing 

service requiring certification. However, 

when the certified conductor returns to 

certified service, he or she would have 

to be tested within 30 days of their 

return. Moreover, the railroad would 

have to retain a written record 

documenting certain dates regarding a 

conductor’s service. 

Section 242.125 Certification 

Determinations Made by Other 

Railroads 

This section, derived from 49 CFR 

240.225, provides the proposed 

requirements that would apply when a 

certified or previously certified 

conductor is about to begin service for 

a different railroad. The section would 

permit the hiring railroad to rely on 

determinations made by another 

railroad concerning a person’s 

certification. However, the section 

would require a railroad’s certification 

program to address how the railroad 

will administer the training of 

previously uncertified conductors with 

extensive operating experience or 

previously certified conductors who 

have had their certification expire. In 

both these instances, FRA is providing 

a railroad with the opportunity to 

shorten the on-the-job training that 

might be required if a person is treated 

as having no operational experience. If 

a railroad’s certification program fails to 


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10FRA has made two clarifying changes to the 

language of § 242.207(a)(3) that were not considered 

by the Working Group or the full RSAC: (1) The 

words ‘‘either the’’ were added between ‘‘and’’ and 

‘‘year’’; and (2) the word ‘‘the’’ was added between 

‘‘of’’ and ‘‘person.’’ 

specify how to train a previously 

certified engineer hired from another 

railroad, then the railroad would have to 

require the newly hired conductor to 

take the hiring railroad’s entire training 

program. 

Section 242.127 Reliance on 

Qualification Requirements of Other 

Countries 

This section, derived from 49 CFR 

240.227, proposes to provide Canadian 

railroads that operate in the United 

States and U.S. railroads that conduct 

joint operations with Canadian railroads 

the option to rely on the system of 

conductor certification established by 

the Canadian Government as long as the 

conductor is employed by a Canadian 

railroad. 

Subpart C—Administration of the 

Certification Program 

Section 242.201 Time Limitations for 

Certification 

This section, derived from 49 CFR 

240.217, contains various time 

constraints that FRA proposes to 

preclude railroads from relying on stale 

information when evaluating a 

candidate for certification or 

recertification. Although some members 

of the Working Group advocating for 

extending the certification period from 

3 years to 5 years, FRA could not 

discern the safety justification for doing 

so. FRA has, however, extended the 

period provided in 49 CFR 240.217(a)(2) 

upon which a railroad could rely on a 

visual and hearing acuity examination 

from 366 days to 450 days. The 450 days 

corresponds to the requirement in 49 

CFR 227.109 that railroads must offer 

employees included in a hearing 

conservation program a hearing test at 

an interval not to exceed 450 days. 

Section 242.203 Retaining Information 

Supporting Determinations 

This section, derived from 49 CFR 

240.215, contains the proposed record 

keeping requirements for railroads that 

certify conductors. While both 49 CFR 

240.215 and this section permit 

railroads to retain records electronically, 

paragraph (g) of this section proposes 

more specific requirements regarding 

the electronic storage system used to 

retain the records than those found in 

§ 240.215. In that paragraph, FRA 

proposes minimum standards for 

electronic record-keeping provisions 

that a railroad would have to utilize to 

maintain the records required by this 

section electronically. 

FRA recognizes the growing 

prevalence of electronic records, and 

acknowledges the unique challenges 

that electronic transmission, storage, 

and retrieval of records can present. 

FRA also recognizes the need to 

maintain the integrity and security of 

records stored electronically. Thus, FRA 

believes that more specific requirements 

for electronic storage systems than those 

found in § 240.215 are needed. Further, 

to allow for future advances in 

technology, FRA is proposing electronic 

record storage provisions in paragraph 

(g) that are technology-neutral. 

Section 242.205 Identification of 

Certified Persons and Record Keeping 

This proposed section, derived from 

49 CFR 240.221, would require each 

railroad to maintain a list of its certified 

conductors. Although derived from 

§ 240.221, this section also contains 

some significant differences. Unlike 

§ 240.221(c) which requires the railroad 

responsible for controlling joint 

operations territory to maintain a list of 

all engineers certified to operate in the 

joint operations, paragraph (b) of this 

section would require the railroad who 

employs conductors working in joint 

operations territory to maintain the list. 

With respect to engineers, FRA has 

found that, under actual industry 

practices, the controlling railroad 

seldom qualifies foreign engineers over 

its trackage. Rather, the controlling 

railroad usually qualifies the employing 

railroad’s designated supervisor of 

locomotive engineers (DSLEs) on its 

territory and allows those DSLEs to 

qualify their own engineers on the 

controlling railroad’s trackage. 

Considering that practice, the 

employing railroad would be better able 

to maintain the list of conductors it 

qualifies on the controlling railroad. 

Additionally, the employing railroad 

has more of an interest in keeping track 

of its conductors that are qualified on 

the controlling railroad. Should an 

employing railroad order a crew for a 

train that will operate over the 

controlling railroad, and the crew is not 

qualified, the train would have to stop 

at the controlling railroad. Moreover, it 

is much easier for the employing 

railroad to keep the list updated as it 

qualifies conductors or it removes 

conductors who have lost qualification 

because of time limitations. This section 

also differs from § 240.221 in that this 

section would make it unlawful for a 

railroad to knowingly or an individual 

to willfully make a false entry on the list 

or to falsify the list. Similar language is 

found in § 240.215(i) but not in 

§ 240.221. 

While both § 240.221 and this section 

permit railroads to retain records 

electronically, paragraph (e) of this 

section proposes more specific 

requirements regarding the electronic 

storage system used to retain the records 

than those found in § 240.215(f) and 

would not require a railroad to obtain 

FRA approval to maintain the records 

electronically. The electronic storage 

requirements in paragraph (e) of this 

section track those in § 242.203(g). 

Section 242.207 Certificate 

Components 

This proposed section, derived from 

49 CFR 240.223, contains the proposed 

requirements for the certificate that each 

conductor must carry. To address the 

privacy concerns of some Working 

Group members, FRA’s proposal for 

what must be on the certificate slightly 

differs from the certificate requirements 

in Part 240. While § 240.223(a)(3) 

requires locomotive engineer certificates 

to include ‘‘the person’s name, date of 

birth and employee identification 

number, and either a physical 

description or photograph of the 

person,’’ proposed § 242.207(a)(3) would 

require conductor certificates to include 

‘‘the person’s name, employee 

identification number, and either the 

year of birth or photograph of the 

person.’’ 10

As currently written, this proposed 

section would not require a conductor’s 

certificate to include a physical 

description or photograph of the 

conductor as is required in part 240. 

FRA is considering requiring a 

conductor’s certificate to include a 

physical description or photograph of 

the conductor. FRA believes that 

requirement would enable FRA 

inspectors, railroad officers, and police 

officers to quickly verify that the person 

in possession of the certificate is in fact 

the person listed on the certificate. FRA 

welcomes comments on that proposal. 

While FRA expects that, in the future, 

§ 240.223(a)(3) will be amended to 

conform to § 242.207(a)(3), FRA notes 

that pursuant to proposed § 242.213(n), 

a single certificate issued to a person 

that is certified as both a conductor and 

a locomotive engineer would have to 

comply, for now, with § 242.207 and 

§ 240.223. 

Section 242.209 Maintenance of the 

Certificate 

This section, derived from 49 CFR 

240.305(b), (c) and (e), proposes to 

require conductors to: Have their 

certificates in their possession while on 

duty as a conductor; display their 


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11Appendix E was not considered by the Working 

Group or the full RSAC. It was added by FRA to 

assist interested parties in determining the 

application of revocable events. 

certificates when requested to do so by 

FRA representatives, State inspectors 

authorized under 49 CFR 212, and 

certain railroad officers; and notify a 

railroad if he or she is called to serve as 

a conductor in a service that would 

cause them to exceed their certificate 

limits. Although State inspectors 

authorized under 49 CFR 212 could be 

considered ‘‘FRA representatives,’’ they 

were mentioned separately in this 

section to ensure that there would be no 

dispute regarding their authority. 

Section 242.211 Replacement of 

Certificates 

This proposed section, derived from 

49 CFR 240.301, would require railroads 

to have a system for the prompt 

replacement of certificates when 

necessary. Unlike § 240.301, which does 

not address the question of who will 

bear the cost of a replacement 

certificate, this section proposes that 

certificates will be replaced by the 

railroad at no cost to the conductor. 

While FRA expected that the railroad 

would bear the cost for a replacement 

locomotive engineer certificate under 

part 240, a few Working Group members 

indicated that some locomotive 

engineers had been charged (or asked by 

a railroad to pay) for replacement 

certificates. The provision in this 

proposed part clarifies that the railroad 

would bear the cost of replacement 

certificates. 

To address the concerns of some 

Working Group members that a full 

replacement certificate can take some 

time to generate and provide to a 

conductor, paragraph (b) of this section 

proposes to permit railroads to issue 

temporary replacement certificates. The 

paragraph describes what the certificate 

would have to contain and who could 

authorize the temporary replacement. 

The temporary replacement certificate 

could be delivered electronically (e.g., 

faxed, e-mailed, etc.) and would be 

valid for no more than 30 days. 

Section 242.213 Multiple 

Certifications 

This proposed section would permit a 

person to hold certification for multiple 

types of conductor service and/or 

certification for both conductor and 

locomotive engineer service. A railroad 

would only need to issue one certificate 

to a person with multiple certifications. 

However, a certificate issued to a person 

certified as a conductor and locomotive 

engineer would not only have to comply 

with proposed § 242.207 but also with 

§ 240.223. To the extent possible, a 

railroad that issued multiple certificates 

to a person would have to coordinate 

the expiration date of those certificates. 

With the exception of a situation in 

which a conductor is removed from a 

train for a medical, police, or other such 

emergency, this section would require 

that a locomotive engineer, including a 

RCO, who is operating without an 

assigned certified conductor to either 

be: (1) Certified as both a locomotive 

engineer and a conductor; or (2) 

accompanied by a certified conductor 

who will attach to the crew ‘‘in a 

manner similar to that of an 

independent assignment.’’ Since a lone 

engineer/RCO would be serving as and 

performing duties as both locomotive 

engineer and conductor, FRA believes, 

and the Working Group and full RSAC 

voted to recommend, that the engineer/ 

RCO must hold dual certification or be 

accompanied by a certified conductor. 

The language concerning how an 

accompanying conductor would attach 

to the crew conveys FRA’s intent that 

this proposed regulation be neutral on 

the issue of crew consist (i.e., how many 

crewmembers must be on a train). 

During the RSAC process, 

representatives of FRA, the railroads, 

and labor engaged in extensive 

discussions regarding the potential 

effect of proposed 49 CFR 242.213 

(‘‘Multiple certifications’’) on the issue 

of crew consist. It is FRA’s intent that 

this proposed conductor certification 

regulation, including section 242.213, 

be neutral on the crew consist issue. 

Nothing in the proposed part 242 

should be read as FRA’s endorsement of 

any particular crew consist 

arrangement. 

In instances where a person, who is 

serving as both the conductor and the 

engineer (i.e., a lone engineer or RCO), 

is involved in a revocable event, 

railroads may be faced with determining 

which certification to revoke. For 

example, a railroad that finds that a 

RCO, who is certified both as an 

engineer and as a conductor but who 

was not accompanied by a certified 

conductor, has failed to comply with 

prohibitions against tampering with a 

locomotive mounted safety device 

would have to determine whether to 

revoke the person’s conductor 

certification pursuant to § 242.403(e)(5) 

or the person’s locomotive engineer 

certification pursuant to § 240.117(e)(5). 

To address that situation, FRA is 

considering adding a provision to this 

proposed section which would require 

railroads to make the determination as 

to which certification to revoke based 

on the work the person was performing 

at the time the conduct occurred. This 

determination would be similar to the 

determination made under the reporting 

requirements in this proposed rule 

(§ 242.215(f)) and under part 225 in 

which railroads determine whether an 

accident was caused by poorly 

performing what is traditionally 

considered a conductor’s job function 

(e.g., switch handling, derail handling, 

etc.) or whether it was caused by poorly 

performing what is traditionally 

considered a locomotive engineer’s job 

function (e.g., operation of the 

locomotive, braking, etc.). FRA 

welcomes comments on that proposed 

provision. 

This section also addresses the 

consequences of certification denial or 

revocation for a conductor who is 

certified to perform multiple types of 

conductor service or both conductor and 

locomotive engineer service. A person 

who holds a current conductor and/or 

locomotive engineer certificate from 

more than one railroad would have to 

immediately notify the other certifying 

railroad(s) if he or she is denied 

engineer or conductor recertification or 

has his or her conductor or engineer 

certification revoked by another 

railroad. 

Pursuant to this section, a person 

certified to perform multiple types of 

conductor service and who has had any 

of those certifications revoked would 

not be permitted to perform any type of 

conductor service during the period of 

revocation. Likewise, a person who 

holds a conductor and locomotive 

engineer certificate and has his or her 

engineer certificate revoked would not 

be permitted to work as a conductor 

during the period of revocation. 

Similarly, a person who holds a 

conductor and engineer certificate and 

has his or her conductor certification 

revoked for violation of 

§§ 242.403(e)(1)–(e)(5) or (e)(12) would 

not be permitted to work as an engineer 

during the period of revocation. 

However, a person who holds a 

conductor and engineer certificate and 

has his or her conductor certification 

revoked for a violation of 

§§ 242.403(e)(6)–(e)(11) (i.e., violations 

involving provisions of part 218, 

subpart F) would be permitted to work 

as an engineer during the period of 

revocation. To aid interested parties, 

FRA has included a table in Appendix 

E 11 to this proposed rule which 

explains, in a spreadsheet-style form, 

when a person certified as both an 

engineer and conductor would be 

permitted to work following a 

certification revocation. 

Currently under part 240, an engineer 

cannot have his or her certificate 


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12The phrase ‘‘[e]xcept as provided in paragraph 

(c) or (d) of this section’’ in paragraph (a) was not 

considered by the Working Group or the full RSAC, 

but has been added to clarify the section. 

revoked for violations of part 218, 

subpart F. While part 240 may be 

amended in the future to include part 

218, subpart F violations as revocable 

events, this proposed rule recognizes 

that it would be unfair to prohibit a 

person from working as an engineer for 

a violation that currently would not 

result in the revocation of his or her 

engineer certificate. This section also 

proposes that, in determining the period 

in which a person may not work as a 

locomotive engineer due to a revocation 

of his or her conductor certification, 

only violations of §§ 242.403(e)(1)–(e)(5) 

or (e)(12) may be counted. To assist 

railroads in determining the correct 

period, paragraph (h)(1) of this section 

provides a hypothetical scenario and an 

explanation of how the period would be 

calculated. 

To avoid treating a person who only 

holds one certification differently than a 

person who holds multiple 

certifications, this section would 

prohibit a person who has had his or her 

locomotive engineer certification 

revoked from obtaining a conductor 

certificate during the revocation. 

Likewise, a person who has had his or 

her conductor certification revoked for 

violations of §§ 242.403(e)(1)–(e)(5) or 

(e)(12) would be prohibited from 

obtaining a locomotive engineer 

certificate during the period of 

revocation. With respect to denial of 

certification or recertification, this 

section provides that a railroad that 

denies a person locomotive engineer 

certification or recertification would not 

be permitted, solely on the basis of the 

denial, to deny or revoke that person’s 

conductor certification or recertification 

and vice versa. 

Section 242.215 Railroad Oversight 

Responsibilities 

This section, derived from 49 CFR 

240.309, proposes to require Class I 

(including the National Railroad 

Passenger Corporation and a railroad 

providing commuter service) and Class 

II railroads to conduct an annual review 

and analysis of its program for 

responding to detected instances of poor 

safety conduct by certified conductors. 

FRA has formulated the information 

collection requirements of this proposed 

section to ensure that railroads collect 

data on conductor safety behavior and 

feed that information into its 

operational monitoring efforts, thereby 

enhancing safety. 

This section would require Class I 

(including the National Railroad 

Passenger Corporation and a railroad 

providing commuter service) and II 

railroads to have an internal auditing 

plan to keep track of 8 distinct kinds of 

events that involve poor safety conduct 

by conductors. For each event, the 

railroad would have to indicate what 

response it took to that situation. The 

railroad would evaluate this 

information, together with data showing 

the results of annual operational testing 

and the causation of FRA reportable 

train accidents, to determine what 

additional or different efforts, if any, are 

needed to improve the safety 

performance of that railroad’s certified 

conductors. FRA is not proposing to 

require that a railroad furnish this data 

or its analysis of the data to FRA. 

Instead, FRA is proposing to require that 

the railroad be prepared to submit such 

information when requested. 

For purposes of the reporting 

requirement in this section, an instance 

of poor safety conduct involving a 

person who holds both a conductor and 

engineer certification would only have 

to be reported once (i.e., either under 49 

CFR 240.309 or this section). The 

determination as to where to report the 

instance of poor safety conduct would 

be based on the work the person was 

performing at the time the conduct 

occurred. This determination would be 

similar to the determination made under 

part 225 in which railroads determine 

whether an accident was caused by 

poorly performing what is traditionally 

considered a conductor’s job function 

(e.g., switch handling, derail handling, 

etc.) or whether it was caused by poorly 

performing what is traditionally 

considered a locomotive engineer’s job 

function (e.g., operation of the 

locomotive, braking, etc.). 

Subpart D—Territorial Qualification 

and Joint Operations 

Section 242.301 Requirements for 

Territorial Qualification 

This proposed section, derived from 

49 CFR 240.229 and 240.231, explains 

the requirements for territorial 

qualification. Paragraph (a) of this 

section provides that, except for two 

circumstances,12 a railroad, including a 

railroad that employs conductors 

working in joint operations territory, 

could not permit or require a person to 

serve as a conductor unless that railroad 

determines that the person is a certified 

conductor and possesses the necessary 

territorial qualifications. 

Paragraph (a) reflects the Working 

Group and full RSAC recommendation 

to realign the burden for determining 

which party is responsible for allowing 

an unqualified person to operate in joint 

operations. While part 240 puts the 

burden on the controlling railroad, this 

proposed rule puts the burden on the 

employing railroad. This change is 

based on the experiences of the Working 

Group members who believe that an 

inordinate amount of the liability 

currently rests with the controlling 

railroad. The perceived unfairness rests 

on the fact that it is not always feasible 

for the controlling railroad to make all 

of the determinations proposed in 

§ 242.119. The employing railroad may 

provide the controlling railroad with a 

long list of hundreds or thousands of 

locomotive engineers that it deems 

eligible for joint operations; following 

up on a long, and ever changing list is 

made much more difficult since a 

controlling railroad would not control 

the personnel files of the conductors on 

this list. 

The proposed realignment would lead 

to a sharing of the burden among a 

controlling railroad, an employing 

railroad and an employing railroad’s 

conductor. Although a controlling 

railroad would be obligated to make 

sure the person is qualified, paragraph 

(a) would require that an employing 

railroad make these same 

determinations before calling a person 

to serve in joint operations. Paragraph 

(b) of this section would require a 

conductor to notify a railroad when the 

person is being asked to exceed his or 

her territorial qualifications. That 

paragraph parallels § 242.209(b) of this 

proposed rule. 

Paragraphs (c) and (d) propose 

requirements for situations where a 

conductor lacks territorial qualification 

on main track and other than main track 

physical characteristics. On main track, 

the conductor would have to be assisted 

by a person who is (1) a certified 

conductor or certified locomotive 

engineer and (2) meets the territorial 

qualification requirements for the main 

track physical characteristics. On other 

than main track, the conductor, where 

practicable, would have to be assisted 

by a person who is a certified conductor 

and meets the territorial qualification 

requirements for other than main track 

physical characteristics. Where not 

practicable, the conductor would have 

to be provided with an appropriate, upto-date job aid. Two points should be 

made about the other than main track 

proposal in paragraph (d) of this section. 

First, the person assisting the conductor 

could be the locomotive engineer as 

long as the engineer is also a certified 

conductor and meets the territorial 

qualification requirements for the other 

than main track physical characteristics. 

Second, FRA does not intend for the 


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proposed requirements of § 242.301(d) 

to apply to sidings. 

Subpart E—Denial and Revocation of 

Certification 

This subpart parallels part 240’s 

approach to adverse decisions 

concerning certification (i.e., decisions 

to deny certification or recertification 

and revoke certification). With respect 

to denials, the approach of this 

proposed rule is predicated principally 

on the theory that decisions to deny 

certification or recertification would 

come at the conclusion of a prescribed 

evaluation process which would be 

conducted in accordance with the 

provisions set forth in this subpart. 

Thus, this proposed rule and part 240 

contain specific procedures designed to 

assure that a person, in jeopardy of 

being denied certification or 

recertification, would be given a 

reasonable opportunity to explore and 

respond to the negative information that 

might serve as the basis for being denied 

certification or recertification. 

When considering revocation, this 

proposed rule contemplates that 

decisions to revoke certification would 

only occur for the reasons specified in 

this subpart. Since revocation decisions 

by their very nature involve a clear 

potential for factual disagreement, this 

subpart is structured to ensure that such 

decisions would come only after a 

certified conductor had been afforded 

an opportunity for an investigatory 

hearing at which the presiding officer 

would determine whether there was 

sufficient evidence to establish that the 

conductor’s conduct warranted 

revocation of his or her certification. 

This subpart also includes the 

concept of certificate suspension. 

Certificate suspension would be 

employed in instances where there is 

reason to think the certificate should be 

revoked or made conditional but time is 

needed to resolve the situation. 

Certificate suspension would be 

applicable in instances where a person 

is awaiting an investigatory hearing to 

determine whether that person violated 

certain provisions of FRA’s alcohol and 

drug control rules or engaged in 

operational misconduct and situations 

in which the person is being evaluated 

or treated for an active substance abuse 

disorder. 

While this proposed subpart follows 

part 240’s approach to adverse decisions 

concerning certification, it does include 

some modifications to the processes in 

part 240. Those modifications are 

discussed below. 

Section 242.401 Denial of Certification 

This section, derived from 49 CFR 

240.219, proposes minimum procedures 

that must be accorded to a certification 

candidate before a railroad denies the 

candidate certification or recertification. 

Except for two changes, the provisions 

in this section mirror the provisions in 

§ 240.219 including: Providing a 

certification candidate with a reasonable 

opportunity to explain or rebut adverse 

information; and notifying a candidate 

of an adverse decision and providing a 

written explanation of the basis for its 

decision within 10 days. 

This section differs from § 240.219 in 

two ways. First, this section would 

require that a written explanation of an 

adverse decision be ‘‘served’’ on a 

certification candidate (see definition of 

service in § 242.7). Use of the defined 

term, rather than part 240’s more 

general phrase ‘‘mailed or delivered,’’ 

not only makes this proposed rule 

internally consistent but would likely 

help FRA in determining whether a 

petition seeking review of a denial 

decision was filed within 120 days of 

the date the denial was served on the 

petitioner (see § 242.503(c)). Second, 

paragraph (d) of this section, which is 

not included in § 240.219, would 

prohibit a railroad from denying 

certification based on a failure to 

comply with § 242.403(e)(1)–(11) if 

sufficient evidence exists to establish 

that an intervening cause prevented or 

materially impaired the conductor’s 

ability to comply with those sections. 

Paragraph (d) parallels the intervening 

cause exception for revocation in 

§ 242.407(i)(1). FRA welcomes 

comments on whether the intervening 

cause exception in paragraph (d) should 

be modified to include certification and 

recertification requirements in addition 

to the revocable events in § 242.403. For 

example, paragraph (d) could be 

modified to read as follows: A railroad 

shall not determine that a person failed 

to meet the eligibility requirements of 

this part and shall not deny the person’s 

certification if sufficient evidence exists 

to establish that an intervening cause 

prevented or materially impaired the 

conductor’s ability to comply with the 

railroad operating rule or practice or 

certification or recertification 

requirement which forms the basis for 

denying the person certification or 

recertification. 

As a supplement to this proposed 

section, FRA is considering whether to 

add two provisions which FRA believes 

would improve the transparency of the 

certification denial process and improve 

FRA’s ability to adjudicate petitions 

seeking review of a railroad’s denial 

decision pursuant to subpart E of this 

proposed rule. One of the challenges 

that FRA faces when reviewing denial 

decisions in the locomotive engineer 

context is that, unlike revocation 

decisions which are usually 

accompanied by a documentary record 

and transcript generated at a railroad 

hearing, no such hearing is required for 

denial decisions and often there is little 

or no documentary record. 

To overcome that challenge, FRA is 

considering two additional provisions. 

First, FRA is considering adding the 

following sentence to paragraph (a) of 

this section: The railroad shall provide 

the conductor candidate with any 

written documents or records, including 

written statements, which support its 

pending denial decision. Second, FRA 

is considering adding the following 

sentence to paragraph (c) of this section: 

The basis for a railroad’s denial decision 

shall address any explanation or 

rebuttal information that the conductor 

candidate may have provided in writing 

pursuant to paragraph (a) of this section. 

FRA welcomes comments on those 

proposed provisions. 

Section 242.403 Criteria for Revoking 

Certification 

This section, derived from 49 CFR 

240.117 and 240.305, proposes the 

circumstances under which a conductor 

may have his or her certification 

revoked. In addition, paragraph (b) of 

this section would make it unlawful to 

fail to comply with any of the events 

listed in paragraph (e) of this section 

(i.e., events which would require a 

railroad to initiate revocation action). 

Paragraph (b) would be needed so that 

FRA could initiate enforcement action. 

For example, FRA might want to initiate 

enforcement action in the event that a 

railroad fails to initiate revocation 

action or a person is not a certified 

conductor under this part. 

Paragraph (c)(1) of this section 

proposes that a certified conductor who 

fails to comply with the events listed in 

paragraph (e) of this section would have 

his or her conductor certification 

revoked. Paragraph (c)(2) proposes that 

a certified conductor, who is 

monitoring, piloting, or instructing a 

conductor, could have his or her 

certification revoked if he or she fails to 

take ‘‘appropriate action’’ to prevent a 

violation of paragraph (e) of this section. 

As explained in paragraph (c)(2), 

‘‘appropriate action’’ does not mean that 

a supervisor, pilot, or instructor must 

prevent a violation from occurring at all 

costs, but rather the duty may be met by 

warning the conductor or engineer, as 

appropriate, of a potential or foreseeable 

violation. The term ‘‘appropriate action’’ 


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13For a detailed analysis of part 218, interested 

parties should review the notice of proposed 

rulemaking (71 FR 60372 (Oct. 12, 2006)), the final 

rule (73 FR 8442 (Feb. 13, 2008)), and the response 

to petitions for reconsideration (73 FR 33888 (June 

16, 2008)) issued in that rulemaking. 

14When considered by the Working Group and 

full RSAC, the title of this section was ‘‘Periods of 

revocation.’’ FRA has modified that title to describe 

more clearly what the section would cover. 

is also used in paragraph (e) of this 

section as well as 49 CFR 240.117(c)(2). 

Paragraph (c)(3) proposes that a 

person who is a certified conductor but 

is called by a railroad to perform the 

duty of a train crew member other than 

that of conductor or locomotive 

engineer would not have his or her 

certification revoked based on actions 

taken or not taken while performing that 

duty. For example, a person who is 

called to be the crew’s brakeman and 

who does not serve as a conductor or 

locomotive engineer during that tour of 

duty could not have his or her 

certification revoked for a violation 

listed in paragraph (e) of this section. 

Interested parties should note that the 

exemption would not apply to 

violations of § 242.403(e)(12) so that 

conductors working in other capacities 

who violate certain alcohol and drug 

rules would have their certification 

revoked for the appropriate period 

pursuant to §§ 242.403 and 242.115. 

Paragraph (d) proposes that the time 

frame for considering operating rule 

compliance would only apply to 

conduct described in paragraphs (e)(1) 

through (e)(11) of this section and not 

paragraph (e)(12). When alcohol and 

drug violations are at issue, the window 

in which prior operating rule 

misconduct will be evaluated would be 

dictated by § 242.115 and not limited to 

the 36 month period prescribed in this 

paragraph. This proposed rule would 

require that certification reviews 

consider alcohol and drug misconduct 

that occurred within a period of 60 

consecutive months prior to the review 

pursuant to § 242.115(e). 

Paragraph (e) proposes 12 kinds of 

rule infractions that could result in 

certification revocation. The infractions 

listed in paragraphs (e)(1)-(e)(5) and 

(e)(12) derive from the revocable events 

provided in 49 CFR 240.117(e) but have 

been modified to account for a 

conductor’s duties. For example, 

paragraphs (e)(1) and (e)(2) recognize 

that a conductor does not operate the 

train and thus those subparagraphs 

would only require a conductor to take 

‘‘appropriate action’’ to prevent an 

engineer from failing to control a 

locomotive or train in accordance with 

a signal or to adhere to speed 

limitations. As explained in those 

subparagraphs, ‘‘appropriate action’’ 

does not mean that a conductor must 

prevent a violation from occurring at all 

costs; but rather the duty may be met by 

warning the engineer of a potential or 

foreseeable violation. Moreover, 

paragraph (e)(2) recognizes that a 

conductor who is not in the operating 

cab should not be held to held to the 

same responsibility with respect to 

monitoring train speed as a conductor 

who is located in the operating cab. 

Interested parties should note that 

with respect to paragraph (e)(4), a 

conductor would be considered to have 

occupied main track or a segment of 

main track without proper authority or 

permission if the conductor failed to 

stop and protect/flag a crossing on main 

track when required to do so pursuant 

to a railroad operating rule or practice, 

including a mandatory directive. 

The infractions listed in paragraphs 

(e)(6)–(e)(11) of this section describe 

violations of part 218, subpart F which 

are not listed as revocable events in part 

240. For the reasons listed below, FRA 

proposes, and the RSAC recommended, 

that violations of part 218, subpart F 

should be revocable events for 

conductors. In the future, FRA expects 

to review whether those violations 

should also be revocable events for 

locomotive engineers. Subpart F of part 

218 requires that each railroad have in 

effect certain operating rules concerning 

shoving or pushing movements, 

equipment left out to foul a track, 

switches, and derails.13 The operating 

rules identified in part 218, subpart F 

are not only considered core 

competencies for conductors but are 

also designed to address the most 

frequently caused human factor 

accidents. Human factors are the leading 

cause of train accidents, accounting for 

38 percent of the total in 2005. Human 

factors also contribute to employee 

injuries. Subpart F violations account 

for approximately 43% of all human 

factor caused accidents. From 2005– 

2009, there were approximately 2,227 

accidents due to Subpart F violations. 

Those accidents resulted in 

approximately 13 fatalities, 363 injured, 

and $104,855,224 in damages. 

In addition to the 12 kinds of 

revocable events proposed in this 

NPRM, FRA welcomes comments as to 

whether a violation of the final rule in 

49 CFR part 220 (‘‘Restrictions on 

Railroad Operating Employees’ Use of 

Cellular Telephones and Other 

Electronic Devices’’) should constitute a 

revocable event for conductors and 

locomotive engineers. In the NPRM for 

49 CFR part 220 (75 FR 27672, 27678 

(May 18, 2010)), FRA noted that it was 

‘‘considering amending 49 CFR part 240 

* * * to add violations of this subpart 

as a basis for revoking a locomotive 

engineer’s certification’’ and requested 

comments on the issue. However, since 

the issue deals with revocation of 

certification, FRA believes that the issue 

is more appropriately addressed in the 

conductor and locomotive engineer 

rules. Comments regarding whether 

FRA should use its other enforcement 

tools (e.g., monetary civil penalty 

against an individual, disqualification of 

an individual from performing safetysensitive service, etc.) instead of 

mandating revocation would be 

particularly helpful as would comments 

describing how a railroad would acquire 

the necessary evidence to revoke a 

conductor’s and/or locomotive 

engineer’s certification for violation of 

49 CFR part 220. 

Paragraph (e)(13) of this section, 

which does not have a counterpart in 

part 240, would prohibit a railroad from 

denying or revoking an employee’s 

certification based upon additional 

conditions or operational restrictions 

imposed pursuant to § 242.107(d). Thus, 

a railroad could not revoke a 

conductor’s certificate for an alleged 

violation of a railroad rule or practice 

that was more stringent than the 

condition or restrictions required by this 

proposed part. In the future, FRA 

expects to review whether a similar 

provision should also apply to 

locomotive engineers. 

Paragraph (f) of this section proposes 

that if a single incident contravenes 

more than one operating rule or practice 

listed in paragraph (e) of this section, 

that event would be treated as a single 

violation. Moreover, paragraph (f) 

proposes that a conductor may have his 

or her certification revoked for 

violations that occur during properly 

conducted operational compliance tests. 

However, violations that occur during 

an improperly conducted operational 

compliance test would not be 

considered for revocation purposes. 

Section 242.405 Periods of 

Ineligibility14

This proposed section, derived from 

§ 240.117, describes how a railroad 

would determine the period of 

ineligibility (e.g., for revocation or 

denial of certification) that a conductor 

or conductor candidate would have to 

undergo. With respect to revocation, 

this section proposes that once a 

railroad has determined that a 

conductor has failed to comply with its 

safety rule concerning one or more 

events listed in § 242.403(e), two 

consequences would occur. First, the 

railroad would be required to revoke the 


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15Following the Working Group meetings, FRA 

changed the word ‘‘revocation’’ in the beginning of 

paragraph (c) to the word ‘‘ineligibility’’ to 

accurately reflect the scope of that paragraph. 

16 If, as in the example, the revocation calculation 

results in any fraction of a day (e.g., 7.5 days), then 

round the number up. Thus, the conductor in the 

example would be eligible for reinstatement in 8 

days. 

conductor’s certification for a period of 

time provided in this section. Second, 

that revocation would initiate a period 

during which the conductor would be 

subject to an increasingly more severe 

response if additional revocable events 

occur in the next 24 to 36 months. 

Except for incidents occurring on 

other than main track where restricted 

speed or the operational equivalent is in 

effect, the standard periods of 

revocation proposed in this section 

track the periods provided in part 240: 

1 event = revocation for 30 days; 2 

events within 24 months of each other 

= 6 months; 3 events within 36 months 

of each other = 1 year; and 4 events 

within 36 months of each other = 3 

years. This section notes, however, that 

violations of § 219.101 (Alcohol & 

Drugs) could result in different periods 

of ineligibility and in those cases, the 

longest period of revocation would 

control. FRA has included a table in 

Appendix E to this proposed rule which 

provides the revocation periods in a 

spreadsheet-style form. The table should 

be useful in determining the correct 

period of revocation. 

The period of revocation in both part 

240 and this proposed rule is based on 

a floating window. Hence, under this 

proposed rule and part 240, if a second 

offense occurs 25 months after the first 

offense, the revocation period would be 

the same as a first offense; however, if 

a third offense occurs within 36 months 

of the first offense, the revocation period 

would be one year. The anomaly will be 

that a person’s certificate could be 

revoked twice for one month under 

paragraph (a)(3)(ii) of this section but 

that the third incident could result in a 

one year revocation under paragraph 

(a)(3)(iv) of this section without the 

benefit of the interim six month 

revocation period under paragraph 

(a)(3)(iii). 

This section also contains two 

provisions which would reduce the 

period of ineligibility if certain criteria 

are met. The first provision, which is 

contained in paragraph (a)(3)(i) of this 

section, proposes that ‘‘on other than 

main track where restricted speed or the 

operational equivalent thereof is in 

effect,’’ the periods of revocation for 

violations of certain provisions of 

§ 242.403(e) shall be reduced by one 

half provided that another revocable 

event has not occurred within the 

previous 12 months. That provision, 

which does not have an equivalent 

provision in part 240, recognizes that 

some violations which occur on other 

than main track where slower speeds 

are in effect may pose less of a danger 

to safety than violations that occur on 

main track and thus a reduced period of 

revocation is warranted. The second 

provision, which may reduce the period 

of ineligibility if certain criteria are met, 

is contained in paragraph (c) of this 

section.15 That provision, which 

parallels § 240.117(h), proposes that a 

person whose conductor certification is 

denied or revoked would be eligible for 

grant or reinstatement of the certificate 

prior to the expiration of the initial 

period of revocation if, among other 

things, at least one half of the initial 

period of ineligibility has elapsed. 

In certain instances, both proposed 

provisions may apply to a conductor 

who has had his or her certification 

revoked. For example, if a conductor’s 

certification is revoked for a violation of 

proposed § 242.403(e)(6) which 

occurred on other than main track 

where restricted speed is in effect and 

it is the only revocation that the 

conductor has ever had, then, under 

§ 242.405(a)(3)(i), the revocation period 

would be 15 days. Moreover, if the 

conductor meets the criteria in 

§ 242.405(c), then the conductor would 

be eligible for reinstatement of his or her 

certificate in 8 days.16

Paragraph (b) of this section proposes 

that all periods of revocation may 

consist of training. While that provision 

is not explicitly stated in part 240, it is 

certainly not prohibited and is included 

in this proposed rule to make the rule 

clear. 

Section 242.407 Process for Revoking 

Certification 

This proposed section, derived from 

49 CFR 240.307, provides the 

procedures a railroad would have to 

follow if it acquires reliable information 

regarding a conductor’s violation of 

§ 242.115(e) or § 242.403(e). 

Paragraph (b)(1) of this section 

provides that upon receipt of reliable 

information regarding a violation of 

§ 242.403(e), a railroad would have to 

suspend the person’s certificate. 

Paragraph (b)(2) provides that prior to or 

upon suspending the person’s 

certificate, the railroad would have to 

provide either oral or written notice of 

the reason for the suspension, the 

pending revocation, and an opportunity 

for a hearing. If the initial notice was 

verbal, then the notice would have to be 

promptly confirmed in writing. The 

amount of time the railroad has to 

confirm the notice in writing would 

depend on whether or not a collective 

bargaining agreement is applicable. In 

the absence of such an agreement, a 

railroad would have 96 hours to provide 

this important information. Interested 

parties should note that if a notice of 

suspension is amended after a hearing is 

convened and/or does not contain 

citations to all railroad rules and 

practices that may apply to a potentially 

revocable event, the Operating Crew 

Review Board, if asked to review the 

revocation decision, might subsequently 

find that that constituted procedural 

error pursuant to § 242.505. 

Paragraphs (b)(3)–(b)(7) and 

paragraphs (c), (d), (e), and (f) of this 

section provide the proposed 

requirements and procedures for 

conducting or waiving a railroad 

hearing regarding the alleged revocable 

event. Except for paragraph (b)(4), 

discussed below, those proposed 

requirements mirror the hearing 

requirements in part 240. 

Although the requirements in 

paragraph (c) regarding the written 

decision issued in a railroad hearing 

track the requirements in part 240, FRA 

is considering modifying those 

requirements to ensure that clearer and 

more detailed decisions are issued. 

Clearer and more detailed decisions 

would allow a conductor to understand 

exactly why his or her certification was 

revoked and would allow the Operating 

Crew Review Board to have a more 

detailed understanding of the case if it 

is asked to review the revocation 

decision pursuant to subpart E of this 

proposed rule. Specifically, FRA is 

considering requiring the decision to: 

(1) State whether the railroad official 

found that a revocable event occurred 

and the applicable period of revocation 

with a citation to 49 CFR 242.405 

(Periods of revocation); (2) contain an 

explanation of the factual findings and 

citations to all applicable railroad rules 

and practices; (3) not cite a railroad rule 

or practice that was not cited in the 

written notice of suspension; and (4) be 

served on the employee and the 

employee’s representative, if any, with 

the railroad to retain proof of that 

service. FRA welcomes comments on 

those proposals. 

Pursuant to paragraph (b)(4) of this 

section, no later than the convening of 

a hearing, the railroad convening the 

hearing would have to provide the 

person with a copy of the written 

information and list of witnesses the 

railroad would present at the hearing. If 

requested, a recess to the start of the 

hearing would be granted if the copy of 

the written information list of witnesses 

is not provided until just prior to the 


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69184 Federal Register / Vol. 75, No. 217 / Wednesday, November 10, 2010 / Proposed Rules 

convening of the hearing. If the 

information that led to the suspension 

of a conductor’s certificate pursuant to 

§ 242.407(b)(1) was provided through 

statements of an employee of the 

convening railroad, the railroad would 

have to make that employee available 

for examination during the hearing. 

Examination may be telephonic where it 

is impractical to provide the witness at 

the hearing. 

The provisions in paragraph (b)(4) of 

this section were added to address the 

concerns of some members of the 

Working Group that engineers were not 

being provided with information and/or 

witnesses necessary to defend 

themselves at the hearing under part 

240. Interested parties should note that 

even if a railroad conducts a hearing 

pursuant to the procedures in an 

applicable collective bargaining 

agreement pursuant to paragraph (d) of 

this section, the railroad would still 

have to comply with the provisions of 

paragraph (b)(4). It is FRA’s 

understanding that, except for an 

employee of the convening railroad 

whose statements led to a suspension 

under § 242.407(b)(1), a railroad would 

not, in fact, be required to call to testify 

every witness that it includes on the list 

provided pursuant to paragraph (b)(4). 

If, for example, a railroad believes that 

it has provided sufficient evidence 

during a hearing to prove its case and 

that calling a witness on its list to testify 

would be unduly repetitive, then the 

railroad would not be obligated to call 

that witness. Of course, the opposing 

party could request that the witness be 

produced to testify but the hearing 

officer would have the authority 

pursuant to § 242.407(c)(6) to determine 

whether the witness’ testimony would 

be unduly repetitive or so extensive and 

lacking in relevancy that its admission 

would impair the prompt, orderly, and 

fair resolution of the proceeding. FRA 

welcomes comments on its 

understanding of paragraph (b)(4). 

Paragraph (g) would require a railroad 

to revoke an employee’s conductor 

certification if it discovers that another 

railroad has revoked that person’s 

conductor certification. The hearing 

requirement in this proposed rule is 

satisfied when any single railroad holds 

a revocation hearing. 

Paragraph (h) would credit the period 

of certificate suspension prior to the 

commencement of a hearing required 

under this section towards satisfying 

any applicable revocation period 

imposed in accordance with the 

provisions of proposed § 242.405. 

Paragraph (i) proposes two specific 

defenses for railroad supervisors and 

hearing officers to consider when 

deciding whether to suspend or revoke 

a person’s certificate due to an alleged 

revocable event. Pursuant to paragraph 

(i), either defense would have to be 

proven by sufficient evidence. 

Paragraph (i)(1) of this section 

proposes that a person’s certificate 

would not be revoked when there is 

sufficient evidence of an intervening 

cause that prevented or materially 

impaired the person’s ability to comply. 

For example, a railroad should consider 

assertions that a conductor in the 

operating cab failed to take appropriate 

action to prevent the engineer from 

failing to control the locomotive in 

accordance with a signal indication that 

requires a complete stop before passing 

it because of defective equipment. 

Similar to the defense of defective 

equipment, the actions of other people 

could sometimes be an intervening 

cause. For instance, a dispatcher or a 

train crew member could relay incorrect 

information to the conductor who 

reasonably relied on it in making a 

prohibited train movement. 

Conductors and railroad managers 

need to note that not all equipment 

failures or errors caused by others 

would serve to absolve the person from 

certification action under this proposed 

rule. The factual issues of each 

circumstance would have to be analyzed 

on a case-by-case basis. For example, a 

broken speedometer would not be an 

intervening factor in a violation of 

§ 242.403(e)(3) (failure to perform 

certain required brake tests). 

Paragraph (i)(2) of this section 

proposes to provide a railroad with the 

discretion necessary to decide not to 

revoke a conductor’s certification for an 

event that violates § 242.403(e)(1) 

through (e)(11) under certain limited 

circumstances. However, that 

subparagraph does not permit a railroad 

to use its discretion to dismiss 

violations indiscriminately. That is, 

FRA would only permit railroads to 

excuse violations when two criteria are 

met. First, the violation would have to 

be of a minimal nature; for example, on 

high speed track at the bottom of a steep 

grade, the engineer makes clear to the 

conductor, who is in the cab, that the 

engineer knows the correct speed limit 

without the conductor saying anything 

about speed, but the front of the lead 

unit in a four unit consist hauling 100 

cars enters a speed restriction at 10 

miles per hour over speed while the 

third unit and the balance of the train 

enters the speed restriction at the proper 

speed, and maintains that speed for the 

remainder of the train. If more of the 

locomotive or train consist enters the 

speed restriction in violation, a railroad 

that is willing to consider mitigating 

circumstances would need to consider 

whether the violation was truly of a 

minimal nature. 

In contrast, a violation could not be 

considered of a minimal nature if a 

conductor fundamentally violated the 

operating rules. For example, if a 

conductor failed to perform or have 

knowledge that a required brake test 

was performed, even if the train was 

only traveling a short distance, then the 

event could not be considered of a 

minimal nature. In situations where the 

proposed rule had been fundamentally 

violated, a railroad would not have the 

discretion to excuse the violation. 

Second, for paragraph (i)(2) to apply, 

sufficient evidence would have to be 

presented to prove that the violation did 

not have either a direct or potential 

effect on rail safety. That defense would 

certainly not apply to a violation that 

actually caused a collision or injury 

because that would be a direct effect on 

rail safety. It would also not apply to a 

violation that, given the factual 

circumstances surrounding the 

violation, could have resulted in a 

collision or injury because that would 

be a potential effect on rail safety. For 

instance, an example used to illustrate 

the term ‘‘minimal nature’’ described a 

situation involving a train that had the 

first two locomotives enter a speed 

restriction too fast, yet the balance of the 

train was in compliance with the speed 

restriction; since the train in that 

example would not be endangering 

other trains because it had the authority 

to travel on that track at a particular 

speed, there would be no direct or 

potential effect on rail safety caused by 

that violation. 

In contrast, if a train failed to stop 

short of a banner, which was acting as 

a signal requiring a complete stop before 

passing it, during a locomotive engineer 

efficiency test, that striking of a banner 

might have no direct effect on rail safety 

but it has a potential effect since a 

banner would be simulating a railroad 

car or another train. Meanwhile, there 

would be a difference between passing 

a banner versus making an incidental 

touching of the banner. If a locomotive 

or train barely touched a banner so that 

the locomotive or train did not run over 

the banner, break the banner, or cause 

the banner to fall down, that incidental 

touching could be considered a minimal 

nature violation that did not have any 

direct or potential effect on rail safety. 

This is because such an incidental 

touching is not likely to cause damage 

to equipment or injuries to crew 

members even if the banner were 

another train. Although it is arguable 

that if the banner were a person the 

touching could be fatal, FRA is willing 


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17 In a modification to the regulatory text 

considered by the Working Group and the full 

RSAC, FRA has removed a reference to a minimum 

number of OCRB members in paragraph (c) of this 

section. The number of board members will be 

provided by FRA order. 

to allow railroads the discretion to 

consider this type of scenario in the 

context of excusing a violation pursuant 

to paragraph (i)(2); of course, if the 

banner was in fact a person in the 

manner described in the example, the 

railroad would not have the discretion 

to apply paragraph (i)(2). 

Similarly, if a train has received oral 

and written authority to occupy a 

segment of main track, the oral authority 

refers to the correct train number but 

refers to the wrong locomotive because 

someone transposed the numbers, the 

conductor’s violation in not catching 

this error before entering the track 

without proper authority could be 

considered of a minimal nature with no 

direct or potential effect on rail safety. 

Since the railroad would be aware of the 

whereabouts of this train, the additional 

risk to safety of this paperwork mistake 

may practically be zero. Under the same 

scenario, where there are no other trains 

or equipment operating within the 

designated limits, there may be no 

potential effect on rail safety as well as 

no direct effect. 

Paragraph (j) of this section proposes 

to require railroads to keep records of 

those violations in which they must not 

or elect not to revoke a conductor’s 

certificate pursuant to paragraph (i) of 

this section. Paragraph (j)(1) would 

require railroads to keep records even 

when they decide not to suspend a 

conductor’s certificate due to a 

determination pursuant to paragraph (i). 

Paragraph (j)(2) would require railroads 

to keep records even when they make 

their determination prior to the 

convening of the hearing held pursuant 

to § 242.407. 

Paragraph (k) addresses concerns that 

problems could arise if FRA disagrees 

with a railroad’s decision not to 

suspend a conductor’s certificate for an 

alleged misconduct event pursuant to 

§ 242.403(e). As long as a railroad makes 

a good faith determination after a 

reasonable inquiry, the railroad should 

have a defense to civil enforcement for 

making what the agency believes to be 

an incorrect determination. However, 

railroads should note that if they do not 

conduct a reasonable inquiry or act in 

good faith, they would be subject to 

civil penalty enforcement under this 

proposed rule. In addition, even if a 

railroad does not take what FRA 

considers appropriate revocation action, 

FRA could still take enforcement action 

against a person responsible for the noncompliance by assessing a civil penalty 

pursuant to § 242.403 of this proposed 

rule or issuing an order prohibiting an 

individual from performing safetysensitive functions in the rail industry 

for a specified period pursuant to 49 

CFR part 209, subpart D. 

Subpart F—Dispute Resolution 

Procedures 

This subpart details the opportunities 

and procedures for a person to appeal a 

decision by a railroad to deny 

certification or recertification or to 

revoke a conductor’s certification. As 

stated in the RSAC Task Statement, one 

of the issues requiring specific report 

from the Working Group was ‘‘[s]tarting 

with the locomotive engineer 

certification model, what opportunities 

are available for simplifying appeals 

from decertification decisions of the 

railroads?’’ Since its first meeting in July 

of 2009, the Working Group devoted a 

considerable amount of time to 

researching, discussing and proposing 

ideas to simplify the appeals process. 

While the appeals process proposed in 

this subpart, which received unanimous 

consent by the Working Group and was 

recommended by the full RSAC, 

essentially follows the appeals process 

in part 240, some important 

modifications are proposed. Those 

proposed modifications are discussed 

below. 

Section 242.501 Review Board 

Established 

This section, derived from 49 CFR 

240.401, provides that a person who has 

been denied certification or 

recertification or has had his or her 

conductor certification revoked could 

petition FRA to review the railroad’s 

decision. Pursuant to this section, FRA 

proposes to delegate initial 

responsibility for adjudicating such 

disputes to an Operating Crew Review 

Board (OCRB). Although creation of the 

OCRB would require issuance of an 

internal FRA order, FRA expects that 

the OCRB would mirror the make-up of 

the Locomotive Engineer Review Board 

(LERB), which is currently used by FRA 

to adjudicate disputes under part 240.17

As mentioned above, FRA expects that, 

if and when conforming changes are 

made to part 240, all references to the 

LERB in part 240 would be changed to 

the OCRB and the OCRB would handle 

both conductor and locomotive engineer 

disputes. 

Section 242.503 Petition Requirements 

This section, derived from 49 CFR 

240.403, provides the proposed 

requirements for obtaining FRA review 

of a railroad’s decision to deny 

certification, deny recertification, or 

revoke certification. Those requirements 

contained in paragraphs (a)–(c) include 

the need to seek review in a timely 

fashion once the adverse decision is 

rendered by the railroad. Interested 

parties should note that the ‘‘petitioner’’ 

referred to in paragraph (b) of this 

section is the person who had his or her 

certificate revoked, not an employee 

representative who may respond on the 

petitioner’s behalf. If the petitioner is 

represented by someone, the petitioner 

is encouraged to also provide the 

representative’s name, mailing address, 

daytime telephone number, and e-mail 

address (if available) in the petition. 

As currently proposed, paragraph 

(b)(5) of this section would require a 

petitioner to supplement his or her 

petition with ‘‘a copy of all written 

documents in the petitioner’s 

possession or reasonably available to the 

petitioner that document’’ the railroad’s 

decision. In an effort to clarify that 

requirement with respect to petitions 

seeking review of a railroad decision 

which is based on a failure to comply 

with any drug or alcohol related rules or 

a return-to-service agreement, FRA is 

considering adding a provision to 

paragraph (b) of this section which 

would provide that: ‘‘If the petitioner is 

requesting review of a railroad decision 

which is based on a failure to comply 

with any drug or alcohol related rules or 

a return-to-service agreement, then the 

petitioner shall supplement his or her 

petition with all relevant written 

documents, including the information 

under 49 CFR 40.329 that laboratories, 

medical review officers, and other 

service agents are required to release to 

employees. The petitioner should 

provide written explanation in the 

petition if written documents that 

should be reasonably available to the 

petitioner are not supplied.’’ FRA 

welcomes comments on that proposed 

provision. 

Paragraph (c) of this section proposes 

to give the OCRB discretion to grant a 

request for additional time that is made 

prior to the expiration of the period 

originally prescribed. As the OCRB 

could exercise its discretion under this 

proposed rule only for ‘‘cause shown,’’ a 

party would have to demonstrate some 

justification for the Board to grant an 

extension of time. Similarly, if the 

deadline in paragraph (c) is completely 

missed, the movant, under paragraph 

(c)(2), would have to allege facts 

constituting ‘‘excusable neglect’’ and the 

mere assertion of excusable neglect, 

unsupported by facts, would be 

insufficient. Excusable neglect would 

require a demonstration of good faith on 


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69186 Federal Register / Vol. 75, No. 217 / Wednesday, November 10, 2010 / Proposed Rules 

18The proposed rule considered by the Working 

Group and full RSAC would have required the 

railroad to ‘‘provide’’ a copy of the information to 

the petitioner. To clarify the obligation of the 

railroad, FRA has changed the word ‘‘provide’’ to 

‘‘serve’’ and added that petitioner’s representative, if 

any, also be served. 

19FRA has made some modifications to 

paragraphs (f)–(j) from the draft recommended by 

the Working Group and full RSAC. The 

modifications are necessary to clarify the authority 

of the OCRB and the standards of review the OCRB 

would utilize. 

the part of the party seeking an 

extension of time and some reasonable 

basis for noncompliance within the time 

specified in the rules. Absent a showing 

along these lines, relief would be 

denied. 

Paragraph (d) of this section explains 

that a decision by the OCRB to deny a 

petition for untimeliness or lack of 

compliance with the requirements of 

§ 242.503 could be appealed directly to 

the Administrator. Ordinarily, an appeal 

to the Administrator could occur only 

after a case has been heard by FRA’s 

hearing officer. 

One difference between this proposed 

section and § 240.403 is the time by 

which a petition seeking review of a 

railroad’s decision would have to be 

filed. Part 240 contains different times 

depending on whether a person is 

seeking review of a revocation decision 

(120 days) or a denial decision (180 

days). This proposed section, however, 

provides that a petition seeking review 

of a revocation or denial decision would 

have to be filed with FRA within 120 

days of the date the decision was served 

on the petitioner. Another difference 

between this proposed section and 

§ 240.403 is that, under this section, the 

OCRB’s discretion to consider untimely 

filed petitions would now be extended 

to petitions seeking review of a 

railroad’s decision to deny certification 

or recertification. 

Section 242.505 Processing 

Certification Review Petitions 

This proposed section, derived from 

49 CFR 240.405, details how petitions 

for review would be handled by FRA. 

Upon receipt of the petition, FRA 

proposes to provide the person written 

acknowledgement of the filing and 

provide a copy of the filing to the 

railroad. The railroad would then have 

60 days from its date of receipt to 

respond, if it desires to comment on the 

matter. If the railroad commented on the 

matter, any material would have to be 

submitted in writing and a copy served 

on the petitioner and petitioner’s 

representative, if any.18

Based on the written record, FRA staff 

would analyze the railroad decision and 

make a recommendation to the OCRB. 

The OCRB would determine whether 

the denial or revocation of certification 

was improper under the regulation. As 

indicated in paragraph (a), it would be 

FRA’s goal to issue OCRB decisions 

within 180 days from the date FRA has 

received all the information from the 

parties. FRA’s ability to achieve that 

goal would depend on the number of 

petitions filed and agency resources 

available to handle those petitions in 

any given period. Further, that goal will 

depend on whether FRA receives all 

available evidence. If the petition and/ 

or railroad’s response do not contain all 

available evidence, including but not 

limited to, the complete hearing 

transcript with exhibits and color copies 

of all photographic evidence (if 

available), then it is FRA’s intention that 

the OCRB will render a decision within 

180 days from the date that all available 

evidence is received. 

While the handling of petitions by 

FRA would be the same under § 240.405 

and this proposed section, this section, 

unlike § 240.405, includes, in 

paragraphs (f)–(j), the proposed process 

and standards of review that the OCRB 

would utilize when considering a 

petition. Those standards are the same 

standards used by the LERB to review 

locomotive engineer petitions.19 The 

standards were added to this proposed 

rule to address a concern of some 

members of the Working Group that 

railroads and petitioners would not 

know what standard of review the 

OCRB would use in considering 

petitions. 

Like the LERB, the OCRB would only 

determine whether a railroad’s decision 

was based on an incorrect 

determination. If a railroad conducted 

hearing was so unfair that it caused a 

petitioner substantial harm, the OCRB 

could grant the petition; however, the 

OCRB’s review would not be intended 

to correct all procedural wrongs 

committed by the railroad. Also like the 

LERB, the decision-making power of the 

OCRB would be limited to approving 

the railroad decision, overturning the 

railroad decision, or returning the case 

to the railroad for additional fact 

finding. The OCRB would not be 

empowered to mitigate the 

consequences of a railroad decision, if 

that decision was valid under this 

proposed regulation. The OCRB would 

only be empowered to make 

determinations concerning 

qualifications under this regulation. The 

contractual consequences, if any, of 

those determinations would have to be 

resolved under dispute resolution 

mechanisms that do not directly involve 

FRA. For example, FRA could not order 

a railroad to alter its seniority rosters or 

make an award of back pay to 

accommodate a finding that a railroad 

wrongfully denied certification. 

Interested parties should note that 

promulgation of this proposed rule, as 

currently written, would necessarily 

require the OCRB and LERB to 

determine whether a railroad revoked 

the correct certificate of a person who 

holds both an engineer and conductor 

certification. For example, in a case in 

which a railroad found that a person 

who holds both a conductor and 

engineer certification violated a railroad 

rule involving a failure to comply with 

the provisions of 49 CFR 218.99 (i.e., a 

part 218, subpart F violation) but 

revoked that person’s engineer 

certification, the OCRB, if petitioned, 

would have to find that the revocation 

decision was improper because, 

currently, an engineer cannot have his 

or her part 240 certification revoked for 

violations of part 218, subpart F. 

Paragraph (l) of this section would 

require the OCRB’s written decision to 

be served on the petitioner, including 

the petitioner’s representative, if any, 

and the railroad. That paragraph has 

been modified from the paragraph 

considered by the Working Group and 

the full RSAC to require that the 

decision be served on the parties, not 

just provided to them. Moreover, the 

modified paragraph does not contain a 

requirement that every decision include 

findings of fact which may not be 

appropriate or relevant to some 

decisions. 

Section 242.507 Request for a Hearing 

This section, which parallels 49 CFR 

240.407, provides that a party who has 

been adversely affected by an OCRB 

decision would have the opportunity to 

request an administrative proceeding as 

prescribed in proposed § 242.509. In 

addition, this section details the 

proposed requirements for requesting 

such a proceeding. 

Paragraph (c) of this section provides 

that a party who fails to request an 

administrative hearing in a timely 

fashion would lose the right to further 

administrative review since the OCRB’s 

decision would constitute final agency 

action. 

As noted in paragraph (e) of this 

section, FRA would not schedule 

hearings or set an agenda for the 

proceeding. FRA would merely arrange 

for the appointment of a presiding 

officer and it would be the presiding 

officer’s duty to schedule a hearing for 

the earliest practicable date. 


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Section 242.509 Hearings 

This section, which parallels 49 CFR 

240.409, describes the proposed 

authority of the presiding officer to 

conduct an administrative hearing and 

the procedures by which the 

administrative hearing would be 

governed. Like § 240.409, the 

proceeding provided by this section 

would afford an aggrieved party a de 

novo hearing at which the relevant facts 

would be adduced and the correct 

application of this proposed part would 

be applied. 

In instances when the issues are 

purely legal, or when only limited 

factual matters are necessary to 

determine issues, paragraph (c) of this 

section proposes that the presiding 

officer could determine the issues 

following an evidentiary hearing only 

on the disputed factual issues, if any. 

The presiding officer could therefore 

grant full or partial summary judgment. 

Paragraph (d) of this section proposes 

that the presiding officer may authorize 

discovery. It also proposes to authorize 

the presiding officer to sanction willful 

noncompliance with permissible 

discovery requests. Paragraph (e) would 

require that documents in the nature of 

pleadings be signed. This signature 

would constitute a certification of 

factual and legal good faith. Paragraph 

(f) proposes a requirement for service 

and for certificates of service. The 

presiding officer’s authority to address 

noncompliance with a law or directive 

is expressed in paragraph (g). This 

provision is intended to ensure that the 

presiding officer would have the 

authority to control the proceeding so 

that an efficient and fair hearing would 

result. 

Paragraph (h) states the right of each 

party to appear and be represented. 

Paragraph (i) would protect witnesses 

by ensuring their right of representation 

and their right to have their 

representative question them. Paragraph 

(j) would allow any party to request 

consolidation or separation of hearings 

of two or more petitions when to do so 

would be appropriate under established 

jurisprudential standards. This option is 

intended to allow more efficient 

determination of petitions in cases 

where a joint hearing would be 

advantageous. 

Under paragraph (k), the presiding 

officer could, with certain exceptions, 

extend periods for action required in the 

proceedings, provided substantial 

prejudice would not result to a party. 

The proposed authority to deny a 

request for extension submitted after the 

expiration of the period involved shows 

the preference for use of this authority 

as a tool to alleviate unforeseen or 

unnecessary burdens, and not as a 

remedy for inexcusable neglect. 

Paragraph (l) would establish a 

motion as the appropriate method for 

requesting action by the presiding 

officer. That paragraph would also 

provide the form of motions and the 

response period for written motions. 

Paragraph (m) would provide rules for 

the mode of hearing and record 

maintenance, including requirements 

for sworn testimony, verbatim record 

(including oral testimony and 

argument), and inclusion of evidence or 

substitutes therefor in the record. 

Paragraph (n) would direct the presiding 

officer to employ specific rules of 

evidence as guidelines for the 

introduction of evidence and permits 

the presiding officer to determine what 

evidence may be received. Further, 

paragraph (o) proposes additional 

powers the presiding officer may 

exercise during the proceedings. 

Paragraph (p) would provide that the 

petitioner before the OCRB, the railroad 

that took the certification action at 

issue, and the FRA are mandatory 

parties to the administrative proceeding. 

Paragraph (q) would require the party 

requesting the hearing to carry the 

burden of proof. The actions of the 

conductor and the railroad would be at 

issue in the hearing—not the actions of 

the OCRB. Thus, it is appropriate that 

the conductor and the railroad fill the 

roles of petitioner and respondent for 

the hearing. In addition, the burden 

each party would have if they were the 

hearing petitioner is articulated in 

paragraph (q). 

Paragraph (r) would provide that FRA 

would be a mandatory party in the 

proceeding. In all proceedings, FRA 

would initially be considered a 

respondent. If, based on evidence 

acquired after the filing of a petition for 

hearing, FRA were to conclude that the 

public interest in safety was more 

closely aligned with the position of the 

petitioner than the respondent, FRA 

could request that the hearing officer 

exercise his or her inherent authority to 

realign parties for good cause shown. 

However, FRA anticipates that such a 

situation would occur rarely, if ever. 

Since FRA could realign itself, FRA 

wants to caution future parties that FRA 

represents the interests of the 

government; hence, parties and their 

representatives would have to be careful 

to avoid ethical dilemmas that might 

arise due to FRA’s ability to realign 

itself. 

Paragraphs (s)–(u) would provide the 

providing officer with authority to close 

the record and issue a decision. 

Section 242.511 Appeals 

This section, derived from 49 CFR 

240.411, proposes to permit any party 

aggrieved by the presiding officer’s 

decision to file an appeal with the FRA 

Administrator. Paragraph (a) proposes 

that if no appeal is timely filed, the 

presiding officer’s decision would 

constitute final agency action. 

Paragraphs (b)–(f) would allow for a 

reply to the appeal and described the 

Administrator’s authority to conduct the 

proceedings. Interested parties should 

note that the phrase ‘‘except where the 

terms of the Administrator’s decision 

(for example, remanding a case to the 

presiding officer) show that the parties’ 

administrative remedies have not been 

exhausted’’ in paragraph (e) of this 

section is included in this proposed rule 

so that parties would understand that a 

remand, or other intermediate decision, 

would not constitute final agency 

action. The inclusion of this phrase is 

made in deference to those parties that 

are not represented by an attorney or 

who might otherwise be confused as to 

whether any action taken by the 

Administrator should be considered 

final agency action. 

Appendices 

FRA proposes to include at least four 

appendices to this rule. In the final rule, 

Appendix A will contain a penalty 

schedule similar to that FRA has issued 

for all of its existing rules. Because such 

penalty schedules are statements of 

policy, notice and comment are not 

required prior to their issuance. See 5 

U.S.C. 553(b)(3)(A). Nevertheless 

interested parties are welcome to submit 

their views on what penalties may be 

appropriate. 

Proposed Appendix B provides both 

the organizational requirements and a 

narrative description of the submission 

required under §§ 242.101 and 242.103. 

FRA is not proposing to require that 

railroad submissions be made on a 

Federally mandated form. Instead, FRA 

is prescribing only minimal constraints 

on the organization and manner of 

presenting information. FRA would 

require that the submission be divided 

into six sections. FRA would require 

that each section deal with a different 

subject matter and that the railroad 

identify the appropriate person to be 

contacted in the event FRA needs to 

discuss some aspect of the railroad’s 

program. While proposed Appendix B is 

derived from Appendix B to part 240, 

one major difference is that proposed 

Appendix B proposes to require that, 

pursuant to § 242.103, a railroad must 

serve a copy of its submission on the 

president of each labor organization that 


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represents the railroad’s employees 

subject to part 242. 

Interested parties should note that 

FRA is considering the possibility of 

requiring each railroad to provide its 

submission electronically. Such a 

requirement would likely allow FRA to 

review submissions more efficiently and 

eliminate the need to store hardcopies 

of the numerous submissions. FRA 

welcomes comments on this 

consideration. 

Proposed Appendix C, derived from 

Appendix C to part 240, provides a 

narrative discussion of the procedures 

that a person seeking certification or 

recertification would have to follow to 

furnish a railroad with information 

concerning his or her motor vehicle 

driving record. 

Proposed Appendix D, derived from 

Appendix F to part 240, provides a 

narrative discussion of the procedures 

that a railroad would be required to 

employ in administering the vision and 

hearing requirements of § 242.117. The 

main issue addressed in this proposed 

Appendix is the acceptable test methods 

for determining whether a person has 

the ability to recognize and distinguish 

among the colors used as signals in the 

railroad industry. 

Subsequent to the July–December 

Working Group meetings, FRA was 

notified that an additional color vision 

test (Richmond—HRR (4th edition)) 

could be added to the list of acceptable 

tests contained in Appendix F to part 

240 and that some of the listed tests are 

no longer in print. While updating the 

list would appear to fall within the 

purview of the medical standards 

working group, FRA would welcome 

comments on which vision color tests 

should be included both in Appendix F 

to part 240 and in Appendix C to this 

proposed rule. 

Proposed Appendix E provides a table 

describing the application of revocable 

events. The table lists: The revocation 

periods; whether a person would be 

eligible for a reduction of the revocation 

period; and whether a person who is 

certified as both a conductor and an 

engineer could work in either position 

following a certification revocation. 

V. Regulatory Impact and Notices 

1. Executive Order 12866 and DOT 

Regulatory Policies and Procedures 

This proposed rule has been 

evaluated in accordance with existing 

policies and procedures, and 

determined to be non-significant under 

both Executive Order 12866 and DOT 

policies and procedures. See 44 FR 

11034 (February 26, 1979). FRA has 

prepared and placed in Docket No. 

FRA–2009–0035 a regulatory evaluation 

addressing the economic impact of this 

proposed rule. Document inspection 

and copying facilities are available at 

the DOT Central Docket Management 

Facility located in Room W12–140 on 

the Ground level of the West Building, 

1200 New Jersey Avenue, SE., 

Washington, DC 20590. Docket material 

is also available for inspection 

electronically through the Federal 

eRulemaking Portal at http:// 

www.regulations.gov. Photocopies may 

also be obtained by submitting a written 

request to the FRA Docket Clerk at the 

Office of Chief Counsel, RCC–10, Mail 

Stop 10, Federal Railroad 

Administration, 1200 New Jersey 

Avenue, SE., Washington, DC 20590; 

please refer to Docket No. FRA–2009– 

0035. 

As part of the regulatory impact 

analysis, FRA has assessed quantitative 

measurements of the cost streams 

expected to result from the adoption of 

this proposed rule. For the twenty-year 

period analyzed, the estimated 

quantified cost that would be imposed 

on industry totals $83.5 million with a 

present value (PV, 7%) of $42.2 million. 

In addition, FRA would incur 

administrative costs totaling about $15.2 

million, with a PV of $7.6 million. 

Although there are numerous costs or 

burdens in this proposed rule, the 

requirements that are expected to 

impose the largest burdens relate to the 

initial and periodic training, knowledge 

testing, and operational testing. In 

addition, the dispute resolution process 

associated with the denial and 

revocation of conductor certification 

would be a new requirement that would 

impose burdens on the railroad industry 

and FRA. 

As part of the regulatory impact 

analysis, FRA has explained what the 

likely benefits for this proposed rule 

would be, and provided numerical 

assessments of the potential value of 

such benefits. The proposed rulemaking 

is expected to improve railroad safety by 

ensuring that all trains have certified 

and trained conductors. Thus, in 

general, the proposed rule should 

decrease train accidents and incidents 

and associated casualties and damages. 

FRA also anticipates that this proposed 

regulation will decrease switching 

operation casualties and human factorcaused train crew injuries. FRA believes 

the value of the anticipated safety 

benefits will meet or exceed the cost of 

implementing the proposed rule. 

The table below presents the cost 

associated with implementation of the 

proposed rule. 


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2. Regulatory Flexibility Act and 

Executive Order 13272; Initial 

Regulatory Flexibility Assessment 

The Regulatory Flexibility Act (5 

U.S.C. 601 et seq.) and Executive Order 

13272 require a review of proposed and 

final rules to assess their impacts on 

small entities. An agency must prepare 

an initial regulatory flexibility analysis 

(IRFA) unless it determines and certifies 

that a rule, if promulgated, would not 

have a significant impact on a 

substantial number of small entities. 

FRA has not determined whether this 

proposed rule would have a significant 

economic impact on a substantial 

number of small entities. Therefore, 

FRA is publishing this IRFA to aid the 

public in commenting on the potential 

small business impacts of the 

requirements in this NPRM. FRA invites 

all interested parties to submit data and 

information regarding the potential 

economic impact that would result from 

adoption of the proposals in this NPRM. 

FRA will consider all comments 

received in the public comment process 

when making a determination. 

Based on information currently 

available, FRA estimates that about 

8 percent of the total railroad cost 

associated with implementing the 

proposed rule would be borne by small 

entities. Based on very conservative 

assumptions, FRA estimates that the 

cost for this proposed regulation could 

be as high as $83.5 million for the 

railroad industry. In addition, also 

based on conservative assumptions, 

FRA would incur costs that could total 

as much as $15.2 million. FRA also 

estimates that small railroads comprise 

over 90 percent of the number of entities 

impacted directly by this proposed 

regulation. Small railroads generally 

have fewer conductors and operate over 

smaller territories allowing them to 

meet the proposed requirements at 

lower overall cost as well as lower cost 

per conductor. Thus, although a 

substantial number of small entities 

would likely be impacted, the economic 

impact on them would likely not be 

significant. This IRFA is not intended to 

be a stand-alone document. In order to 

get a better understanding of the total 

costs for the railroad industry, which 

forms the base for the estimates in this 

IRFA, or more cost detail on any 

specific requirement, please see the 

Regulatory Impact Analysis (RIA) that 

FRA has placed in the docket for this 

rulemaking. 

In accordance with the Regulatory 

Flexibility Act, an IRFA must contain: 

(1) A description of the reasons why 

action by the agency is being 

considered; 

(2) A succinct statement of the 

objectives of, and the legal basis for, the 

proposed rule; 

(3) A description of, and where 

feasible, an estimate of the number of 

small entities to which the proposed 

rule will apply; 


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69190 Federal Register / Vol. 75, No. 217 / Wednesday, November 10, 2010 / Proposed Rules 

20 ‘‘Table of Size Standards,’’ U.S. Small Business 

Administration, January 31, 1996, Title 13 CFR Part 

121. See also NAICS Codes 482111 and 482112. 21See 68 FR 24891 (May 9, 2003). 

22For further information on the calculation of 

the specific dollar limit, please see 49 CFR part 

1201. 

(4) A description of the projected 

reporting, recordkeeping and other 

compliance requirements of the 

proposed rule, including an estimate of 

the classes of small entities that will be 

subject to the requirement and the type 

of professional skills necessary for 

preparation of the report or record; 

(5) An identification, to the extent 

practicable, of all relevant Federal rules 

that may duplicate, overlap, or conflict 

with the proposed rule; and 

(6) A description of any significant 

alternatives to the proposed rule that 

accomplish the stated objectives of 

applicable statutes and which minimize 

any significant economic impact of the 

proposed rule on small entities. 5 U.S.C. 

603(b), (c). 

1. Reasons for Considering Agency 

Action 

The purpose of this rulemaking is to 

enhance the safety of railroad operations 

by ensuring that only those persons who 

meet minimum Federal safety standards 

serve as conductors, to reduce the rate 

and number of accidents and incidents, 

and to improve railroad safety. 

2. A Succinct Statement of the 

Objectives of, and Legal Basis for, the 

Proposed Rule 

FRA’s proposed regulation for 

conductor certification is intended, inter 

alia, to ensure that only those persons 

who meet minimum Federal safety 

standards serve as train conductors, and 

it accomplishes this by establishing 

Federal requirements for railroads to 

have conductor certification programs. 

These programs must meet or exceed 

FRA’s minimum standards for the 

eligibility, training, testing, certification, 

and monitoring of persons who serve as 

conductors. Included in the eligibility 

determination for new or recertifying 

conductors are vision and hearing 

acuity tests. In addition, a railroad must 

consider prior conduct as a motor 

vehicle operator; substance abuse, 

alcohol, and drug rules compliance; and 

prior safety conduct at a different 

railroad, if applicable. FRA’s proposed 

regulation would also prescribe 

minimum standards for the revocation 

of certification and the dispute 

resolution procedures for appealing 

certification denial or revocation. 

As discussed in Section IV of the 

Supplementary Information portion to 

the preamble, the proposed rule would 

require railroads to have a formal 

program for certifying conductors. FRA 

is proposing this regulation to ensure 

that only those persons who meet 

minimum Federal safety standards serve 

as conductors, to reduce the rate and 

number of accidents and incidents, and 

to improve railroad safety. FRA is also 

issuing this proposed rule to promulgate 

minimum training and certification 

standards for train conductors as 

mandated by RSIA Section 402, Public 

Law 110–432 (October 16, 2008) 

(codified at 9 U.S.C. 20157). 

3. A Description of, and Where Feasible, 

an Estimate of the Number of Small 

Entities to Which the Proposed Rule 

Would Apply 

The ‘‘universe’’ of the entities to be 

considered generally includes only 

those small entities that are reasonably 

expected to be directly regulated by this 

action. For this proposed rulemaking 

there is one type of small entity that is 

potentially affected by this rulemaking: 

Small railroads. 

FRA estimates that approximately 5 

contractors will be developing 

conductor certification programs and 

contracting conductors to railroads. The 

cost associated with certifying 

conductors is a cost that these 

contractors will pass on to the railroads 

contracting their services. 

‘‘Small entity’’ is defined in 5 U.S.C. 

601 as having the same meaning as 

‘‘small business concern’’ under Section 

3 of the Small Business Act. This 

includes any small business concern 

that is independently owned and 

operated, and is not dominant in its 

field of operation. Section 601(4) 

includes nonprofit enterprises that are 

independently owned and operated, and 

are not dominant in their field of 

operations within the definition of 

‘‘small entities.’’ Additionally, 5 U.S.C. 

601(5) defines ‘‘small entities’’ as 

governments of cities, counties, towns, 

townships, villages, school districts, or 

special districts with populations less 

than 50,000. 

The U.S. Small Business 

Administration (SBA) stipulates ‘‘size 

standards’’ for small entities. It provides 

that the largest a for-profit railroad 

business firm may be (and still classify 

as a ‘‘small entity’’) is 1,500 employees 

for ‘‘line-haul operating’’ railroads, and 

500 employees for ‘‘shortline operating’’ 

railroads.20

Federal agencies may adopt their own 

size standards for small entities in 

consultation with SBA and in 

conjunction with public comment. 

Pursuant to the authority provided to it 

by SBA, FRA has published a final 

policy, which formally establishes small 

entities as railroads that meet the line 

haulage revenue requirements of a Class 

III railroad.21 Currently, the revenue 

requirements are $20 million or less in 

annual operating revenue, adjusted 

annually for inflation. The $20 million 

limit (adjusted annually for inflation) is 

based on the Surface Transportation 

Board’s threshold of a Class III railroad 

carrier, which is adjusted by applying 

the railroad revenue deflator 

adjustment.22 The same dollar limit on 

revenues is established to determine 

whether a railroad shipper or contractor 

is a small entity. Governments of cities, 

counties, towns, townships, villages, 

school districts, or special districts with 

populations less than 50,000 are also 

considered small entities under FRA’s 

policy. FRA is proposing to use this 

definition for this rulemaking. Any 

comments received pertinent to its use 

will be addressed in the final rule. 

Small Railroads: 

There are approximately 682 railroads 

meeting the definition of ‘‘small entity’’ 

as described above. FRA estimates that 

approximately 627 of these small 

entities would be impacted by this 

proposed rule. FRA estimates that 

approximately 55 of the 682 small 

railroads would not be impacted 

because they would be exempt from the 

proposed rule. Note, however, that 

approximately 125 of the small railroads 

that would be impacted are subsidiaries 

of large shortline holding companies 

with the expertise and resources 

comparable to larger railroads. Many 

small railroads that would be impacted 

by this rulemaking are members of the 

American Shortline and Regional 

Railroad Association (ASLRRA), which 

actively participated in the development 

of this regulatory proposal. It is very 

likely that the ASLRRA will develop a 

generic conductor certification program 

for their members to use. FRA would 

assist with this effort. 

Small railroads would be required to 

have written programs for certifying 

conductors in accordance with the 

proposed regulation. Given the nature of 

how most small railroads operate and 

the fact that they operate fewer types 

and numbers of trains than larger 

railroads this proposed regulation 

should be less burdensome. Thus, given 

the more limited territory, equipment 

types, number of conductors and/or the 

commodities transported by small 

railroads relative to Class II and Class I 

railroads, implementing and 

maintaining a program for the 

certification of conductors would be 

significantly less burdensome for small 

railroads both overall and on a per 

conductor basis. While FRA does 


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23Calculation: (1 small RR) * [(1 exec hours) * 

($125) + (2 admin hours) * ($21) + (12 RR staff 

hours) * ($42.05) + (0.5 Senior RR staff hours) * 

($75)] = $709. 

recognize that some small railroads do 

not currently have formal conductor 

training and certification programs, FRA 

believes that most small railroads 

currently have informal programs with 

the necessary elements of a formal 

program. FRA requests information 

regarding the number and type of Class 

III railroads that do not have formal 

conductor training and certification 

programs as well as the number of 

conductors employed by such railroads. 

In general, the proposed rule would 

likely burden all small railroads that are 

not exempt from its scope or 

application. However, it would not 

significantly burden many, if any, of 

these entities. More details on the cost 

burdens for small railroads are provided 

below. FRA invites commenters to 

submit information that might assist us 

in assessing the cost impacts on small 

railroads of the proposals during the 

comment process of the NPRM. 

4. A Description of the Projected 

Reporting, Recordkeeping, and Other 

Compliance Requirements of the Rule, 

Including an Estimate of the Classes of 

Small Entities That Will Be Subject to 

the Requirement and the Type of 

Professional Skills Necessary for 

Preparation of the Report or Record 

The impact of this rulemaking would 

come from its numerous proposed 

requirements. However, many of the 

estimated burdens are for small 

paperwork burdens or for processes and 

procedures that would not impact small 

railroads and their conductors as 

frequently or significantly as Class I and 

II railroads and the conductors they 

employ. As discussed above, in general 

the burdens on small railroads should 

be lower per train mile than those on 

Class I and II railroads both for overall 

programs and per conductor. 

Small railroads employ less than 10 

percent of the employees in the railroad 

industry. In fact the percentage of 

employees is probably closer to 7 or 8 

percent. Thus, since most of the 

requirements in this proposed 

regulation are assessed per conductor, 

the burden for each railroad would be 

driven mainly by the number of 

conductors it employs. In general, small 

railroads have fewer conductors and 

would not train or certify as many 

conductors as the large railroads. Small 

railroads would also not need to certify 

any conductors for remote control 

locomotives (RCL) purposes, since they 

do not use RCLs. In addition, the size of 

the territory and level of joint operations 

is likely to be less for smaller railroads 

making the burden per conductor lower. 

This proposed regulation has many 

requirements which are organized by 

subparts. There are numerous burdens 

from this proposed regulation that are 

noted in the RIA for railroads. This 

IRFA will discuss a majority of these 

burdens and their pertinence to small 

railroads below. 

FRA’s RIA estimates the total burden 

for this proposed rule to be $83.5 

million (non-discounted) for the first 20 

years of the rule. As detailed in the 

assessments below, FRA estimates that 

$6.7 million of this burden would be 

borne by small railroads. 

(a) Subpart A—General: 

The requirements in Subpart A do not 

impose any direct burdens on small 

railroads. 

(b) Subpart B—Program and 

Eligibility Requirements: 

This subpart of the proposed rule 

contains the basic elements of the 

proposed conductor certification 

program that would impose the majority 

of the new burden for creating and 

implementing such programs. The 

ASLRRA has indicated that it plans to 

develop a generic program and template 

to facilitate compliance with this federal 

regulation and FRA would gladly 

collaborate in this effort. FRA 

anticipates that almost all of the small 

railroads in need of a program will take 

the shortline generic plan and tailor it 

for their operations. As more fully 

discussed in the RIA, FRA estimates 

that these programs can be developed at 

an average cost of $700 per small 

railroad.23 FRA estimates, that in total, 

small railroads will be burdened with 

approximately $473,000 to develop 

conductor certification programs. FRA 

estimates that it would cost the entire 

railroad industry about $918,000 to 

develop programs. 

The proposed requirements for a 

training program and periodic training 

for recertification, i.e., Section 242.119, 

are among the most significant costs for 

the entire railroad industry imposed by 

this proposal. Railroads generally 

already have formal or informal training 

programs and many offer some degree of 

periodic training. FRA estimates that 

further developing the training 

programs and providing the periodic 

training would cost the railroad 

industry approximately $28 million (not 

discounted) over the 20-year analysis in 

FRA’s RIA. Based on experience and 

discussions at RSAC working group 

meetings, FRA knows that most small 

railroads are currently providing 

training to their conductors and that 

most of that training is on-the-job 

training. FRA estimates that more 

formalized training will have to be 

added to the training programs for small 

railroads. FRA estimates that the small 

railroads will incur almost $2.5 million 

of this cost, making the per railroad 

average approximately $4,000. 

Proposed Section 242.121 requires 

railroads provide initial and periodic 

testing of conductors. That testing 

would have to effectively examine and 

measure a conductor’s knowledge of 

five subject areas: Safety and operating 

rules; timetable instructions; 

compliance with all applicable Federal 

regulations; the physical characteristics 

of the territory on which a person will 

be or is currently serving as a conductor; 

and the use of any job aid that a railroad 

may provide a conductor. FRA’s RIA 

has estimated that this would cost the 

industry $7.4 million (not discounted) 

over the 20-year analysis for the entire 

industry. Since small railroads represent 

approximately 7 to 8 percent of the 

employees in the railroad industry, FRA 

estimates that small railroads will incur 

approximately $554,000 of this cost. 

Proposed Section 242.123 requires 

railroads to conduct unannounced 

compliance tests and inspections. The 

proposed rule would require each 

railroad to have a program to monitor 

the conduct of its conductors by 

performing unannounced operating 

rules compliance tests. FRA’s RIA has 

estimated that this would cost the 

industry $7.7 million (not discounted) 

over the 20-year analysis. Since small 

railroads represent approximately 7 to 8 

percent of the employees in the railroad 

industry, FRA estimates that small 

railroads will incur approximately 

$577,000 of this cost. 

Other proposed requirements in this 

subpart that would impact small 

railroads include: Prior safety conduct 

as a motor vehicle operator, Section 

242.111; substance abuse disorders and 

alcohol drug rules compliance, Section 

242.115; vision and hearing acuity 

testing, Section 242.117; and 

certification determinations made by 

other railroads, Section 242.125. 

The total (non-discounted) cost for 

this subpart is $50.6 million. FRA 

estimates the estimated cost for small 

railroads is about $4.6 million (not 

discounted) over the first twenty-years. 

(c) Subpart C—Administration of the 

Certificate Program: 

This subpart of the proposed rule 

covers the requirements for 

administering a certification program. 

Most of the requirements in this subpart 

are basic requirements necessary for 

having the certificate program, except 

the proposed requirements in Section 

242.215. That section proposes to 


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require only Class I, Class II and all 

passenger railroads to conduct an 

annual review and analysis of their 

programs. Thus, small railroads will 

incur no burden from that proposed 

requirement. 

The total (non-discounted) cost for 

this Subpart C is $7.4 million. However, 

FRA estimates that less 6 percent of this 

will be borne by small railroads given 

that they would not be subject to the 

annual review and analysis 

requirements. Thus, the estimated cost 

for small railroads is about $448,000 

(non-discounted) over the first twentyyears. 

(d) Subpart D—Territorial 

Qualification and Joint Operations: 

This subpart of the proposed rule 

covers the requirements for territorial 

qualification and joint operations. FRA 

estimates that approximately 320 

railroads operate over joint territory. 

FRA further estimates that 

approximately 2 percent of all of the 

conductors industry-wide will be 

qualified for joint territory. However, 

the primary burden from this subpart is 

related to the qualification of new 

conductors. In general, small railroads 

do not have as high a turnover rate for 

employees and therefore should not 

have as many new conductors each 

year. The total (non-discounted) cost for 

this subpart is $17.1 million. Since 

small railroads represent approximately 

7 to 8 percent of the employees in the 

railroad industry, FRA estimates that 

the cost for small railroads is about 

$1,281,000 over the first twenty-years. 

(e) Subpart E—Denial and Revocation 

of Certification: 

This subpart of the proposed rule 

covers the denial and revocation of 

conductor certifications. The estimated 

burdens in this subpart are related to the 

paperwork involved in the denial of 

certification, which often occurs when 

hearing, vision or knowledge tests are 

failed. The majority of the burdens for 

this subpart are associated with the 

process for revocation (Section 242.407). 

The total (non-discounted) cost for this 

subpart is $4.1 million. Since small 

railroads represent approximately 7 to 8 

percent of the employees in the railroad 

industry, FRA estimates the cost for 

small railroads is about $303,000 (not 

discounted) over the first twenty-years. 

(f) Subpart F—Dispute Resolution 

Procedures: 

This subpart of the proposed rule 

primarily deals with the dispute 

resolution procedures, and the 

procedures for a person to appeal a 

decision by a railroad to deny 

certification or recertification or to 

revoke a conductor’s certification. The 

estimated burdens in this subpart are 

related to appeals to FRA’s Review 

Board, requests for administrative 

hearings, and appeals to FRA’s 

Administrator. Based on past experience 

with locomotive engineer appeals, 

administrative hearings, etc., FRA does 

not anticipate many of the cases related 

to this subpart to be from employees of 

small railroads. The total (nondiscounted) cost for this subpart is $19.4 

million. However, most of the costs for 

the requirements in this section are for 

government resources. FRA estimates 

that the non-government share of this 

Subpart’s cost is $4.4 million. FRA 

estimates that less than 2 percent of the 

non-government cost will be borne by 

small railroads. Thus, the estimated cost 

for small railroads is about $88,000 

(non-discounted) over the first twentyyears. 

5. An Identification, to the Extent 

Practicable, of All Relevant Federal 

Rules That May Duplicate, Overlap, or 

Conflict With the Proposed Rule 

FRA is not aware of any relevant 

federal rules that may duplicate, 

overlap, or conflict with the proposed 

rule. Some of the requirements 

proposed in this NPRM are identical or 

very similar to the requirements in 49 

CFR Part 240 for the certification of 

locomotive engineers, however actions 

taken to comply with requirements in 

Part 240 that are identical or very 

similar to those in Part 242 could be 

used to fulfill the requirements in Part 

242, or vice versa, without incurring any 

additional burden. 

6. A Description of Any Significant 

Alternatives to the Proposed Rule That 

Accomplish the Stated Objectives of 

Applicable Statutes and Which 

Minimize Any Significant Economic 

Impact of the Proposed Rule on Small 

Entities 

FRA formed an RSAC working group 

to develop recommendations for 

conductor certification regulations in 

December 2008. The RSAC Working 

Group met for six, multi-day meetings 

over a period of several months. After a 

series of detailed discussions, the RSAC 

Working Group achieved consensus on 

a draft proposed rule in January 2010. 

The full RSAC approved and 

recommended its consensus on March 

18, 2010. 

In Section 242.3 of the proposed 

regulation there is an exclusion for 

operations that occur on track that is not 

part of the general railroad system, 

which generally encompasses 

operations commonly described as 

tourist, scenic or excursion service to 

the extent that they occur on track that 

is not part of the general railroad 

system. FRA estimates that this would 

exclude approximately 55 small and 

very small railroads from the 

requirements of this proposed 

regulation. 

FRA’s proposal would minimize the 

impact to small railroads by delaying 

the implementation of the recertification 

process for the Class III railroads by 12 

months. Thus, small railroads will have 

more time to implement most of the 

requirements of this proposed 

regulation than Class I and Class II 

freight railroads and passenger 

railroads. 

FRA is not aware of any significant 

alternatives to the proposed rule that 

would accomplish the stated objectives 

of RSIA that would minimize the 

economic impact of the proposed rule 

on small entities. 

The process by which this proposed 

rule was developed provided outreach 

to small entities. As noted above in this 

IRFA, this rule was developed in 

consultation with industry 

representatives via RSAC, which 

includes small railroad representatives. 

The RSAC Conductor Certification 

Working Group came to consensus on a 

majority of this proposed regulation in 

January 2010 and the Full RSAC 

approved the draft proposed rule in 

March 2010. Small railroad 

representatives participated in all 

meetings of the Working Group and 

raised issues of concern to small 

railroads. If requested, FRA may hold a 

public hearing. After the comment 

period for this NPRM closes, FRA 

expects to reconvene the Working 

Group to review the comments to the 

docket. At that meeting FRA expects 

that comments will be reviewed and 

considered by the Working Group, 

including any raised concerning 

impacts on small entities and this IRFA. 

3. Paperwork Reduction Act 

The information collection 

requirements in this proposed rule have 

been submitted for approval to the 

Office of Management and Budget 

(OMB) under the Paperwork Reduction 

Act of 1995, 44 U.S.C. 3501 et seq. The 

sections that contain the new 

information collection requirements are 

duly designated, and the estimated time 

to fulfill each requirement is as follows: 


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CFR Section/Subject Respondent universe Total annual responses Average time per 

response 

Total annual 

burden hours 

242.9—Waivers—Petitions ..................... 677 railroads .......................... 10 petitions ............................ 3 hours ................... 30 

242.101/103—Certification Program: 

Written Program for Certifying Conductors.

677 railroads .......................... 678 programs ......................... 160 hrs./581 hrs./ 

15.5 hrs.

16,799 

Approval of Design of Programs 

—Certification Programs for New RRs .. 6 railroads .............................. 6 new prog ............................. 15.5 hours .............. 93 

—Conductor Certification Submission 

Copies to Rail Labor Organizations.

677 railroads .......................... 200 copies ............................. 15 minutes ............. 50 

—Affirmative Statements that Copies of 

Submissions Sent to RLOs.

677 railroads .......................... 200 statements ...................... 15 minutes ............. 50 

—Certified Comments on Submissions 677 railroads .......................... 35 comments ......................... 4 hours ................... 140 

—Certification Programs Disapproved 

by FRA and then Revised.

677 railroads .......................... 10 programs ........................... 4 hours ................... 40 

—Revised Certification Programs Still 

Not Conforming and then Resubmitted.

677 railroads .......................... 3 programs ............................. 2 hours ................... 6 

—Certification Programs Materially 

Modified After Initial FRA Approval.

677 railroads .......................... 50 programs ........................... 2 hours ................... 100 

—Materially Modified Programs Disapproved by FRA & Then Revised.677 railroads .......................... 3 programs ............................. 2 hours ................... 6 

—Revised programs Disapproved and 

Then Resubmitted.

677 railroads .......................... 1 program .............................. 2 hours ................... 2 

242.105—Implementation Schedule 

—Designation of Certified Conductors 

(Class I Railroads).

677 railroads .......................... 48,600 designations ............... 5 minutes ............... 4,050 

—Issued Certificates (1⁄3 each year) ...... 677 railroads .......................... 16,200 certif ........................... 1 hour .................... 16,200

—Designation of Certified Conductors 

(Class II and III Railroads).

677 railroads .......................... 5,400 design .......................... 5 minutes ............... 450 

—Issued Certificates (1⁄3 each year) ...... 677 railroads .......................... 1,800 certif ............................. 1 hour .................... 1,800

—Requests for Delayed Certification ..... 677 railroads .......................... 5,000 request ......................... 30 minutes ............. 2,500 

—Testing/Evaluation to Certify Persons 677 railroads .......................... 1,000 tests ............................. 560 hours ............... 560,000 

—Testing/Evaluation to Certify Conductors (Class III).627 railroads .......................... 100 tests ................................ 400 hours ............... 40,000 

242.107—Types of Service 

—Reclassification to Diff. Type of Cert. 677 railroads .......................... 25 conductor Tests/Evaluations.8 hours ................... 200 

242.109—Opportunity by RRs for Certification Candidates to Review and 

Comment on Prior Safety Record.

677 Railroads ......................... 50 comments ......................... 1 hour .................... 50 

242.111—Prior Safety Conduct As 

Motor Vehicle Operator 

—Eligibility Determinations ..................... 677 Railroads ......................... 1,100 dtrmin ........................... 10 minutes ............. 183 

—Initial Certification for 60 Days ........... 677 Railroads ......................... 75 certific ............................... 10 minutes ............. 13 

—Recertification for 60 Days ................. 677 Railroads ......................... 125 recertif ............................. 10 minutes ............. 21 

—Driver Info. Not Provided and Request for Waiver by Persons/RR.677 Railroads ......................... 25 requests ............................ 2 hours ................... 50 

—Request to Obtain Driver’s License 

Information From Licensing Agency.

54,000 Conductors/Persons .. 18,000 req .............................. 15 minutes ............. 4,500 

—Requests for Additional Information 

From Licensing Agency.

54,000 Conductors/Persons .. 25 requests ............................ 10 minutes ............. 4 

—Notification to RR by Persons of 

Never Having a License.

54,000 Conductors/Persons .. 2 notification ........................... 10 minutes ............. .33 

—Report of Motor Vehicle Incidents ...... 54,000 Conductors ................ 200 reports ............................. 10 minutes ............. 33 

—Evaluation of Driving Record .............. 54,000 Conductors ................ 18,000 eval ............................ 10 minutes ............. 3,000 

—SAP Referral by RR After Report of 

Driving Drug/Alcohol Incident.

677 Railroads ......................... 180 referrals ........................... 5 minutes ............... 15 

—SAP Request and Supply by Persons 

of Prior Counseling or Treatment.

677 Railroads ......................... 5 requests/Records ................ 30 minutes ............. 3 

—Conditional Certifications Recommended by SAP.677 Railroads ......................... 50 certificat ............................ 4 hours ................... 200 

242.113—Prior Safety Conduct As Employee of a Different Railroad.54,000 conductors ................. 360 requests/360 records ...... 15 minutes + 30 

minutes.

270 

242.115—Substance Abuse Disorders 

and Alcohol Drug Rules Compliance 

—Meeting Section’s Eligibility Reqmnt .. 54,000 conductors ................. 18,000 determinations ........... 2 minutes ............... 600 

—Written Documents from SAP Person 

Not Affected by a Disorder.

677 railroads .......................... 400 docs ................................ 30 minutes ............. 200 

—Self-Referral by Conductors for Substance Abuse Counseling.54,000 conductors ................. 10 self-referrals ...................... 10 minutes ............. 2 

—Certification Reviews for Occurrence/ 

Documentation of Prior Alcohol/Drug 

Conduct by Persons/Conductors.

677 railroads .......................... 18,000 reviews ....................... 10 minutes ............. 3,000 


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CFR Section/Subject Respondent universe Total annual responses Average time per 

response 

Total annual 

burden hours 

—Written Determination That Most Recent Incident Has Occurred.677 railroads .......................... 150 determin .......................... 60 minutes ............. 150 

—Notification to Person That Recertification Has Been Denied.677 railroads .......................... 150 notific .............................. 10 minutes ............. 25 

—Persons/Conductors Waiving Investigation.54,000 conductors ................. 100 waivers ............................ 10 minutes ............. 17 

242.117— Vision and Hearing Acuity 

—Determination Vision Standards Met .. 677 railroads .......................... 18,000 deter ........................... 20 minutes ............. 6,000 

—Determination Hearing Stds. Met ....... 677 railroads .......................... 18,000 deter ........................... 20 minutes ............. 6,000 

—Medical Examiner Certificate That 

Person Has Been Examined/Passed 

test.

677 railroads .......................... 18,000 certif ........................... 2 hours ................... 36,000 

—Document Standards Met with Conditions.677 railroads .......................... 50 document .......................... 30 minutes ............. 25 

—Document Standards Not Met ............ 677 railroads .......................... 25 document .......................... 30 minutes ............. 13 

—Notation Person Needs Corrective 

Device (Glasses/Hearing Aid).

677 railroads .......................... 10,000 notes .......................... 10 minutes ............. 1,667 

—Request for Further Medical Evaluation for New Determination.677 railroads .......................... 100 requests + 100 Evals ...... 60 minutes + 2 

hours.

300 

—Request for Second Retest and Another Medical Evaluation.677 railroads .......................... 25 requests + 25 Evals .......... 60 minutes + 2 

hours.

75 

—Copies of Part 242 Provided to RR 

Medical Examiners.

677 railroads .......................... 677 copies ............................. 60 minutes ............. 677 

—Consultations by Medical Examiners 

with Railroad Officer and Issue of 

Conditional Certification.

677 railroads .......................... 100 consults + 100 certif ....... 2 hours + 10 minutes.217 

—Notification by Certified Conductor of 

Deterioration of Vision/Hearing.

677 railroads .......................... 10 notific ................................ 10 minutes ............. 2 

242.119—Training 

—Completion of Training Program ........ 677 railroads .......................... 678 Programs ........................ 37 hours/70 hrs/3 

hrs.

3,801 

—Completion of Training Program by 

Conductors/Persons + Documents.

54,000 Conductors ................ 18,000 Docs/18,000 Cond ..... 1 hour/560 hours ... 10,098,000 

—Training Task Analysis for RRs Training Persons Previously Untrained.677 railroads .......................... 677 analyses .......................... 12 hours/20 hrs./20 

min.

829 

—Modification of Training Program Due 

to New Laws/Regulations.

677 railroads .......................... 30 programs ........................... 4 hours ................... 120 

—Consultation with Supervisory Employee During Written Test.677 railroads .......................... 1,000 consult ......................... 15 minutes ............. 250 

—Familiarization Training Upon Transfer of RR Ownership.677 railroads .......................... 10 trained Conductors ........... 8 hours ................... 80 

—Instructional Briefings on Federal RR 

Safety Laws/Regulations.

677 railroads .......................... 54,000 briefs .......................... 8 hours ................... 432,000 

—Records of Instructional Briefings ....... 677 railroads .......................... 54,000 record ......................... 10 minutes ............. 9,000 

—Continuing Education of Conductors .. 677 railroads .......................... 18,000 cont. trained cond ...... 8 hours ................... 144,000 

242.121—Knowledge Testing 

—Determining Eligibility ......................... 677 railroads .......................... 18,000 deter ........................... 30 minutes ............. 9,000 

—Retests/Re-Examinations ................... 677 railroads .......................... 500 Retests ............................ 8 hours ................... 4,000 

242.123—Monitoring Operational Performance 

—Unannounced Compliance Tests and 

Records.

677 railroads .......................... 18,000 tests + 18,000 recd .... 2 hours + 10 minutes.39,000 

—Return to Service That Requires Unannounced Compliance Test/Record.677 railroads .......................... 1,000 tests + 1,000 records ... 2 hours + 10 minutes.2,167 

242.125/127—Certificate Determination 

by Other Railroads/Other Country 

—Determination Made by RR Relying 

on Another RR’s Certification.

677 railroads .......................... 100 determin .......................... 8.5 hours ................ 850 

—Determination by Another Country ..... 677 railroads .......................... 200 determin .......................... 1 hour .................... 200 

242.203—Retaining Information Supporting Determination—Records.677 railroads .......................... 18,000 recds .......................... 5 minutes ............... 1,500 

—Amended Electronic Records ............. 677 railroads .......................... 20 records .............................. 60 minutes ............. 20 

242.205—List of Certified Conductors 

Working in Joint Territory.

677 railroads .......................... 625 lists .................................. 60 minutes ............. 625 

242.209— Maintenance of Certificates 

—Request to Display Certificate ............ 677 railroads .......................... 2,000 request/displays ........... 2 minutes ............... 67 

—Notification That Request to Serve 

Exceeds Certification.

677 railroads .......................... 1,000 notif .............................. 10 minutes ............. 167 

242.211—Replacement of Certificates .. 677 railroads .......................... 500 certific ............................. 5 minutes ............... 42 

242.213—Multiple Certificates 

—Notification to Engineer That No Conductor Is On Train.677 railroads .......................... 5 notification ........................... 10 minutes ............. 1 


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CFR Section/Subject Respondent universe Total annual responses Average time per 

response 

Total annual 

burden hours 

—Notification of Denial of Certification 

by Individuals Holding Multiple Certifications.

677 railroads .......................... 10 notific ................................ 10 minutes ............. 2 

242.215—RR Oversight Responsibility 

—RR Review and Analysis of Administration of Certification Program.677 railroads .......................... 44 reviews/Analyses .............. 40 hours/1 hour ..... 1,760 

—Report of Findings by RR to FRA ...... 677 railroads .......................... 36 reports ............................... 4 hours ................... 144 

242.301—Determinations—Territorial 

Qualification and Joint Operations.

320 railroads .......................... 1,080 Deter ............................ 15 minutes ............. 270 

—Notification by Persons Who Do Not 

Meet Territorial Qualification.

320 railroads .......................... 500 Notific .............................. 10 minutes ............. 83 

242.401—Notification to Candidate of 

Information That Forms Basis for Denying Certification and Candidate Response.

677 railroads .......................... 40 notific. + 30 responses ..... 60 minutes/60 minutes.70 

—Written Notification of Denial of Certification.677 railroads .......................... 40 notific. ............................... 60 minutes ............. 40 

242.403/405—Criteria for Revoking Certification; Periods of Ineligibility 

—Review of Compliance Conduct ......... 677 railroads .......................... 950 reviews ............................ 10 minutes ............. 158 

—Written Determination That the Most 

Recent Incident Has Occurred.

677 railroads .......................... 950 determin .......................... 60 minutes ............. 950 

242.407—Process for Revoking Certification 

—Revocation for Violations of Section 

242.115(e).

677 railroads .......................... 950 Revoked Certificates ...... 8 hours ................... 7,600 

—Immediate Suspension of Certificate .. 677 railroads .......................... 950 suspend Certificate ......... 1 hour .................... 950 

—Determinations Based on RR Hearing 

Record.

677 railroads .......................... 950 determin .......................... 1 hour .................... 950 

—Hearing Record ................................... 677 railroads .......................... 950 records ............................ 30 minutes ............. 475 

—Written Decisions by RR Official ........ 677 railroads .......................... 950 decisions ......................... 1 hour .................... 950 

—Written Waiver of Right to Hearing .... 54,000 Conductors ................ 425 waivers ............................ 10 minutes ............. 71 

—Revocation of Certification Based on 

Information That Another Railroad 

Has Done So.

677 railroads .......................... 15 revoked Certifications ....... 10 minutes ............. 3 

—Placing Relevant Information in 

Record Prior to Suspending Certification/Convening Hearing.

677 railroads .......................... 100 updated records .............. 1 hour .................... 100 

All estimates include the time for 

reviewing instructions; searching 

existing data sources; gathering or 

maintaining the needed data; and 

reviewing the information. Pursuant to 

44 U.S.C. 3506(c)(2)(B), FRA solicits 

comments concerning: Whether these 

information collection requirements are 

necessary for the proper performance of 

the functions of FRA, including whether 

the information has practical utility; the 

accuracy of FRA’s estimates of the 

burden of the information collection 

requirements; the quality, utility, and 

clarity of the information to be 

collected; and whether the burden of 

collection of information on those who 

are to respond, including through the 

use of automated collection techniques 

or other forms of information 

technology, may be minimized. For 

information or a copy of the paperwork 

package submitted to OMB, contact Mr. 

Robert Brogan, Information Clearance 

Officer, at 202–493–6292, or Ms. Nakia 

Jackson at 202–493–6073. 

Organizations and individuals 

desiring to submit comments on the 

collection of information requirements 

should direct them to Mr. Robert Brogan 

or Ms. Nakia Jackson, Federal Railroad 

Administration, 1200 New Jersey 

Avenue, SE., 3rd Floor, Washington, DC 

20590. Comments may also be 

submitted via e-mail to Mr. Brogan or 

Ms. Jackson at the following address: 

robert.brogan@dot.gov; 

nakia.jackson@dot.gov. 

OMB is required to make a decision 

concerning the collection of information 

requirements contained in this proposed 

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. The final rule will 

respond to any OMB or public 

comments on the information collection 

requirements contained in this proposal. 

FRA is not authorized to impose a 

penalty on persons for violating 

information collection requirements 

which do not display a current OMB 

control number, if required. FRA 

intends to obtain current OMB control 

numbers for any new information 

collection requirements resulting from 

this rulemaking action prior to the 

effective date of the final rule. The OMB 

control number, when assigned, will be 

announced by separate notice in the 

Federal Register. 

4. Federalism Implications 

Executive Order 13132, ‘‘Federalism’’ 

(64 FR 43255, Aug. 10, 1999), 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 that have 

‘‘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 


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necessary to pay the direct compliance 

costs incurred by State and local 

governments, the agency consults with 

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. 

This NPRM has been analyzed in 

accordance with the principles and 

criteria contained in Executive Order 

13132. This proposed rule would not 

have a substantial effect on the States or 

their political subdivisions; it would not 

impose any compliance costs; and it 

would not affect the relationships 

between the Federal government and 

the States or their political subdivisions, 

or the distribution of power and 

responsibilities among the various 

levels of government. Therefore, the 

consultation and funding requirements 

of Executive Order 13132 do not apply. 

However, this proposed rule could 

have preemptive effect by operation of 

law under certain provisions of the 

Federal railroad safety statutes, 

specifically the former Federal Railroad 

Safety Act of 1970, repealed and 

recodified at 49 U.S.C. 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), 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 

proposed rule in accordance with the 

principles and criteria contained in 

Executive Order 13132. As explained 

above, FRA has determined that this 

proposed 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 proposed rule is not required. 

5. International Trade Impact 

Assessment 

The Trade Agreement 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 proposed rulemaking 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. 

6. Environmental Impact 

FRA has evaluated this rule in 

accordance with its ‘‘Procedures for 

Considering Environmental Impacts’’ 

(FRA’s Procedures) (64 FR 28545, May 

26, 1999) as required by the National 

Environmental Policy Act (42 U.S.C. 

4321 et seq.), other environmental 

statutes, Executive Orders, and related 

regulatory requirements. FRA has 

determined that this proposed rule is 

not a major FRA action (requiring the 

preparation of an environmental impact 

statement or environmental assessment) 

because it is categorically excluded from 

detailed environmental review pursuant 

to section 4(c)(20) of FRA’s Procedures. 

See 64 FR 28547 (May 26, 1999). 

In accordance with section 4(c) and 

(e) of FRA’s Procedures, the agency has 

further concluded that no extraordinary 

circumstances exist with respect to this 

regulation that might trigger the need for 

a more detailed environmental review. 

As a result, FRA finds that this 

proposed rule is not a major Federal 

action significantly affecting the quality 

of the human environment. 

7. Unfunded Mandates Reform Act of 

1995 

Pursuant to Section 201 of the 

Unfunded Mandates Reform Act of 1995 

(Pub. L. 104–4, 2 U.S.C. 1531), 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 

$140,800,000 or more in any one 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. The proposed rule will not result 

in the expenditure, in the aggregate, of 

$140,800,000 or more in any one year, 

and thus preparation of such a 

statement is not required. 

8. Energy Impact 

Executive Order 13211 requires 

Federal agencies to prepare a Statement 

of Energy Effects for any ‘‘significant 

energy action.’’ 66 FR 28355 (May 22, 

2001). Under the Executive Order, a 

‘‘significant energy action’’ is defined as 

any action by an agency (normally 

published in the Federal Register) that 

promulgates or is expected to lead to the 

promulgation of a final rule or 

regulation, including notices of inquiry, 

advance notices of proposed 

rulemaking, and notices of proposed 

rulemaking: (1)(i) That is a significant 

regulatory action under Executive Order 

12866 or any successor order, and (ii) is 

likely to have a significant adverse effect 

on the supply, distribution, or use of 

energy; or (2) that is designated by the 

Administrator of the Office of 

Information and Regulatory Affairs as a 

significant energy action. FRA has 

evaluated this NPRM in accordance 

with Executive Order 13211. FRA has 

determined that this NPRM is not likely 

to have a significant adverse effect on 

the supply, distribution, or use of 

energy. Consequently, FRA has 

determined that this NPRM is not a 

‘‘significant energy action’’ within the 

meaning of Executive Order 13211. 

9. Privacy Act 

FRA wishes to inform all potential 

commenters that anyone is able to 

search the electronic form of all 

comments received into any agency 

docket by the name of the individual 

submitting the comment (or signing the 

comment, if submitted on behalf of an 

association, business, labor union, etc.). 

You may review DOT’s complete 

Privacy Act Statement in the Federal 

Register published on April 11, 2000 

(65 FR 19477–78) or you may visit 

http://www.regulations.gov/search/ 

footer/privacyanduse.jsp. 

List of Subjects in 49 CFR Part 242 

Administrative practice and 

procedure, Conductor, Penalties, 

Railroad employees, Railroad operating 

procedures, Railroad safety, Reporting 

and recordkeeping requirements. 

The Proposed Rule 

For the reasons discussed in the 

preamble, FRA proposes to amend 

chapter II, subtitle B of title 49 of the 

Code of Federal Regulations as follows: 


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1. Add a new part 242 to read as 

follows: 

PART 242—QUALIFICATION AND 

CERTIFICATION OF CONDUCTORS 

Subpart A—General 

Sec. 

242.1 Purpose and scope. 

242.3 Application and responsibility for 

compliance. 

242.5 Effect and construction. 

242.7 Definitions. 

242.9 Waivers. 

242.11 Penalties and consequences for 

noncompliance. 

242.13 Information collection 

requirements. 

Subpart B—Program and Eligibility 

Requirements 

242.101 Certification program required. 

242.103 Approval of design of individual 

railroad programs by FRA. 

242.105 Schedule for implementation. 

242.107 Types of service. 

242.109 Determinations required for 

certification and recertification. 

242.111 Prior safety conduct as motor 

vehicle operator. 

242.113 Prior safety conduct as an 

employee of a different railroad. 

242.115 Substance abuse disorders and 

alcohol drug rules compliance. 

242.117 Vision and hearing acuity. 

242.119 Training. 

242.121 Knowledge testing. 

242.123 Monitoring operational 

performance. 

242.125 Certification determinations made 

by other railroads. 

242.127 Reliance on qualification 

requirements of other countries. 

Subpart C—Administration of the 

Certification Program 

242.201 Time limitations for certification. 

242.203 Retaining information supporting 

determinations. 

242.205 Identification of certified persons 

and record keeping. 

242.207 Certificate components. 

242.209 Maintenance of the certificate. 

242.211 Replacement of certificates. 

242.213 Multiple certifications. 

242.215 Railroad oversight responsibilities. 

Subpart D—Territorial Qualification and 

Joint Operations 

242.301 Requirements for territorial 

qualification. 

Subpart E—Denial and Revocation of 

Certification 

242.401 Denial of certification. 

242.403 Criteria for revoking certification. 

242.405 Periods of ineligibility. 

242.407 Process for revoking certification. 

Subpart F—Dispute Resolution Procedures 

242.501 Review board established. 

242.503 Petition requirements. 

242.505 Processing certification review 

petitions. 

242.507 Request for a hearing. 

242.509 Hearings. 

242.511 Appeals. 

APPENDIX A TO PART 242—SCHEDULE OF 

CIVIL PENALTIES 

APPENDIX B TO PART 242—PROCEDURES 

FOR SUBMISSION AND APPROVAL OF 

CONDUCTOR CERTIFICATION 

PROGRAMS 

APPENDIX C TO PART 242—PROCEDURES 

FOR OBTAINING AND EVALUATING 

MOTOR VEHICLE DRIVING RECORD 

DATA 

APPENDIX D TO PART 242—MEDICAL 

STANDARDS GUIDELINES 

APPENDIX E TO PART 242—APPLICATION 

OF REVOCABLE EVENTS 

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

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

28 U.S.C. 2461, note; and 49 CFR 1.49. 

Subpart A—General 

§ 242.1 Purpose and scope. 

(a) The purpose of this part is to 

ensure that only those persons who 

meet minimum Federal safety standards 

serve as conductors, to reduce the rate 

and number of accidents and incidents 

and to improve railroad safety. 

(b) This part prescribes minimum 

Federal safety standards for the 

eligibility, training, testing, certification 

and monitoring of all conductors to 

whom it applies. This part does not 

restrict a railroad from adopting and 

enforcing additional or more stringent 

requirements consistent with this part. 

(c) The conductor certification 

requirements prescribed in this part 

apply to any person who meets the 

definition of conductor contained in 

§ 242.7, regardless of the fact that the 

person may have a job classification title 

other than that of conductor. 

§ 242.3 Application and responsibility for 

compliance. 

(a) This part applies to all railroads, 

except: 

(1) A railroad that operates only on 

track inside an installation that is not 

part of the general railroad system of 

transportation; or 

(2) 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. 

§ 242.5 Effect and construction. 

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

term conductor 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 who is the crew member in 

charge of a movement that requires a 

locomotive engineer. 

(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 § 242.213, 

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. 

§ 242.7 Definitions. 

As used in this part— 

Administrator means the 

Administrator of the FRA or the 

Administrator’s delegate. 

Alcohol means ethyl alcohol (ethanol) 

and includes use or possession of any 

beverage, mixture, or preparation 

containing ethyl alcohol. 

Conductor means the crewmember in 

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

defined in part 218 of this chapter. See 

also the definition of ‘‘passenger 

conductor’’ in this section. 

Controlled substance has the meaning 

assigned by 21 U.S.C. 802 and includes 

all substances listed on Schedules I 

through V as they may be revised from 

time to time (21 CFR parts 1301–1316). 

Drug means any substance (other than 

alcohol) that has known mind or 

function-altering effects on a human 

subject, specifically including any 

psychoactive substance and including, 

but not limited to, controlled 

substances. 

Dual purpose vehicle means a piece of 

on-track equipment that is capable of 

moving railroad rolling stock and may 

also function as roadway maintenance 

equipment. 

File, filed and filing mean submission 

of a document under this part on the 

date when the Docket Clerk receives it, 

or if sent by mail, the date mailing was 

completed. 

FRA means the Federal Railroad 

Administration. 

FRA representative means the FRA 

Associate Administrator for Railroad 


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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 conductor. The 

term covers a number of circumstances 

in which a person may not serve as a 

certified conductor. Revocation of 

certification pursuant to § 242.407 and 

denial of certification pursuant to 

§ 242.401 are two examples in which a 

person would be ineligible to serve as a 

conductor. A period of ineligibility may 

end when a condition or conditions are 

met. For example, when a person meets 

the conditions to serve as a conductor 

following a alcohol or drug violation 

pursuant to § 242.115. 

Job aid means information regarding 

other than main track physical 

characteristics that supplements the 

operating instructions of the territory 

over which the locomotive or train 

movement will occur. See definitions of 

‘‘main track’’ and ‘‘physical 

characteristics’’ in this section. A job aid 

may consist of training on the territory 

pursuant to § 242.119, maps, charts or 

visual aids of the territory, or a person 

or persons to contact who are qualified 

on the territory and who can describe 

the physical characteristics of the 

territory. At a minimum, a job aid must 

cover characteristics of a territory 

including: Permanent close clearances, 

location of permanent derails and 

switches, assigned radio frequencies in 

use and special instructions required for 

movement, if any, and railroadidentified unique operating conditions. 

Joint operations means rail operations 

conducted by more than one railroad on 

the same track regardless of whether 

such operations are the result of— 

(1) Contractual arrangement between 

the railroads, 

(2) Order of a governmental agency or 

a court of law, or 

(3) Any other legally binding 

directive. 

Knowingly means having actual 

knowledge of the facts giving rise to the 

violation or that a reasonable person 

acting in the circumstances, exercising 

due care, would have had such 

knowledge. 

Locomotive means a piece of on-track 

equipment (other than specialized 

roadway maintenance equipment or a 

dual purpose vehicle operating in 

accordance with § 240.104(a)(2) of this 

chapter): 

(1) With one or more propelling 

motors designed for moving other 

equipment; 

(2) With one or more propelling 

motors designed to carry freight or 

passenger traffic or both; or 

(3) Without propelling motors but 

with one or more control stands. 

Locomotive engineer means any 

person who moves a locomotive or 

group of locomotives regardless of 

whether they are coupled to other 

rolling equipment except: 

(1) A person who moves a locomotive 

or group of locomotives within the 

confines of a locomotive repair or 

servicing area as provided for in 

§§ 218.5 and 218.29(a)(1) of this chapter; 

or 

(2) A person who moves a locomotive 

or group of locomotives for distances of 

less than 100 feet and this incidental 

movement of a locomotive or 

locomotives is for inspection or 

maintenance purposes. 

Locomotive engineer certificate means 

a certificate issued pursuant to part 240 

of this chapter. 

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; positive 

train control as defined in part 236 of 

this chapter; or any form of absolute or 

manual block system. 

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 means job training 

that occurs in the work place (i.e., the 

employee learns the job while doing the 

job). In the context of this part, the onthe-job training portion of the training 

program must be based on a model 

generally accepted by the educational 

community, and must consist of the 

following three key components: 

(1) A brief statement describing the 

tasks and related steps the employee 

must be able to perform; 

(2) A statement of the conditions (i.e., 

tools, equipment, documentation, 

briefings, demonstrations, and practice) 

necessary for learning transfer; and 

(3) A statement of the standards by 

which proficiency can be measured 

through a combination of task/step 

accuracy, completeness, and repetition. 

Passenger conductor means a 

conductor who has also received 

emergency preparedness training under 

part 239 of this chapter. See also the 

definition of ‘‘conductor’’ in this section. 

Person means an entity of any type 

covered under 1 U.S.C. 1, including but 

not limited to the following: A railroad; 

a manager, supervisor, official, or other 

employee or agent of a railroad; any 

owner, manufacturer, lessor, or lessee of 

railroad equipment, track, or facilities; 

any independent contractor providing 

goods or services to a railroad; and any 

employee of such owner, manufacturer, 

lessor, lessee, or independent 

contractor. 

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. 

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 safety 

related tasks the person is assigned to 

perform. 

Qualified instructor means a person 

who has demonstrated, pursuant to the 

railroad’s written program, an adequate 

knowledge of the subjects under 

instruction and, where applicable, has 

the necessary operating experience to 

effectively instruct in the field, and has 

the following qualifications: 

(1) Is a certified conductor under this 

part; and 

(2) Has been selected as such by a 

designated railroad officer, in 

concurrence with the designated 

employee representative, where present; 

or 

(3) In absence of concurrence 

provided in paragraph (2) of this 

definition, has a minimum of 12 months 

service working as a train service 

employee. If a railroad does not have 

designated employee representation, 

then a person employed by the railroad 

need not comply with paragraphs (2) or 

(3) of this definition to be a qualified 

instructor. 

Railroad means any form of 

nonhighway ground transportation that 

runs on rails or electromagnetic 

guideways and any entity providing 

such transportation, including: 

(1) Commuter or other short-haul 

railroad passenger service in a 


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metropolitan or suburban area and 

commuter railroad service that was 

operated by the Consolidated Rail 

Corporation on January 1, 1979; and 

(2) High speed ground transportation 

systems that connect metropolitan areas, 

without regard to whether those systems 

use new technologies not associated 

with traditional railroads; but does not 

include rapid transit operations in an 

urban area that are not connected to the 

general railroad system of 

transportation. 

Railroad officer means any 

supervisory employee of a railroad. 

Railroad rolling stock is on-track 

equipment that is either a freight car (as 

defined in § 215.5 of this chapter) or a 

passenger car (as defined in § 238.5 of 

this chapter). 

Remote control operator (RCO) means 

a certified locomotive engineer, as 

defined in § 240.7 of this chapter, 

certified by a railroad to operate remote 

control locomotives pursuant to 

§ 240.107 of this chapter. 

Roadway maintenance equipment is 

on-track equipment powered by any 

means of energy other than hand power 

which is used in conjunction with 

maintenance, repair, construction or 

inspection of track, bridges, roadway, 

signal, communications, or electric 

traction systems. 

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. 

Specialized roadway maintenance 

equipment is roadway maintenance 

equipment that does not have the 

capability to move railroad rolling stock. 

Any alteration of such equipment that 

enables it to move railroad rolling stock 

will require that the equipment be 

treated as a dual purpose vehicle. 

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 

successfully complete primary 

treatment or successfully participate in 

aftercare as directed by a 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. As used in this rule, the SAP 

owes a duty to the railroad to make an 

honest and fully informed evaluation of 

the condition and progress of an 

employee. 

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. 

§ 242.9 Waivers. 

(a) A person subject to a requirement 

of this part may petition the 

Administrator for a waiver of 

compliance with such requirement. The 

filing of such a petition does not affect 

that person’s responsibility for 

compliance with that requirement while 

the petition is being considered. 

(b) Each petition for a waiver under 

this section must be filed in the manner 

and contain the information required by 

part 211 of this chapter. 

(c) If the Administrator finds that a 

waiver of compliance is in the public 

interest and is consistent with railroad 

safety, the Administrator may grant the 

waiver subject to any conditions the 

Administrator deems necessary. 

§ 242.11 Penalties and consequences for 

noncompliance. 

(a) A person who violates any 

requirement of this part or causes the 

violation of any such requirement is 

subject to a civil penalty of at least $650 

and not more than $25,000 per 

violation, except that: Penalties may be 

assessed against individuals only for 

willful violations, and, where a grossly 

negligent violation or a pattern of 

repeated violations has created an 

imminent hazard of death or injury to 

persons, or has caused death or injury, 

a penalty not to exceed $100,000 per 

violation may be assessed. Each day a 

violation continues shall constitute a 

separate offense. See Appendix A to this 

part for a statement of agency civil 

penalty policy. 

(b) A person who violates any 

requirement of this part or causes the 

violation of any such requirement may 

be subject to disqualification from all 

safety-sensitive service in accordance 

with part 209 of this chapter. 

(c) A person who knowingly and 

willfully falsifies a record or report 

required by this part may be subject to 

criminal penalties under 49 U.S.C. 

21311. 

(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. 

§ 242.13 Information collection 

requirements. 

(a) The information collection 

requirements of this Part were reviewed 

by the Office of Management and 

Budget pursuant to the Paperwork 

Reduction Act of 1980 (44 U.S.C. 3501 

et seq.) and are assigned OMB control 

number lll. 

(b) The information collection 

requirements are found in the following 

sections: (TO BE INSERTED IN FINAL 

RULE). 

Subpart B—Program and Eligibility 

Requirements 

§ 242.101 Certification program required. 

(a) After the pertinent date specified 

in § 242.105(d) or (e), each railroad shall 

have a certification program approved 

in accordance with § 242.103 that 

includes: 

(1) A designation of the types of 

service that it determines will be used 

in compliance with the criteria 

established in § 242.107; 

(2) A procedure for evaluating prior 

safety conduct that complies with the 

criteria established in § 242.109; 

(3) A procedure for evaluating visual 

and hearing acuity that complies with 

the criteria established in § 242.117; 

(4) A procedure for training that 

complies with the criteria established in 

§ 242.119; 

(5) A procedure for knowledge testing 

that complies with the criteria 

established in § 242.121; and 

(6) A procedure for monitoring 

operational performance that complies 

with the criteria established in 

§ 242.123. 

(b) Reserved. 

§ 242.103 Approval of design of individual 

railroad programs by FRA. 

(a) Each railroad shall submit its 

written certification program and 

request for approval in accordance with 

the procedures contained in appendix B 

of this part according to the following 

schedule: 

(1) A Class I railroad (including the 

National Railroad Passenger 

Corporation), Class II railroad, or 

railroad providing commuter service 

shall submit a program no later than 

March 30, 2012; and 

(2) A Class III railroad (including a 

switching and terminal or other railroad 


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not otherwise classified) shall submit a 

program no later than July 30, 2012. 

(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. 

(c) Each railroad shall: 

(1) Simultaneous with its filing with 

the FRA, serve 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 

on the president of each labor 

organization that represents the 

railroad’s employees subject to this part; 

and 

(2) Include in their 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 served a 

copy on 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 served. 

(d) Not later than 45 days from the 

date of filing a submission pursuant to 

paragraph (a) or (b) of this section, a 

resubmission pursuant to paragraph (h) 

of this section, or a material 

modification pursuant to paragraph (i) 

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 

to the Associate Administrator for 

Railroad Safety/Chief Safety Officer, 

FRA, 1200 New Jersey Avenue, SE., 

Washington, DC 20590; and 

(3) The commenter shall certify that a 

copy of the comment was served on the 

railroad. 

(e) The submission required by 

paragraph (a) or (b) of this section shall 

state the railroad’s election either: 

(1) To accept responsibility for the 

training of conductors and thereby 

obtain authority for that railroad to 

initially certify a person as a conductor 

in an appropriate type of service; or 

(2) To recertify only conductors 

previously certified by other railroads. 

(f) A railroad that elects to accept 

responsibility for the training of 

conductors 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. 

(g) 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. 

(h) 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. 

(i) A railroad that intends to 

materially modify 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 (g) and (h) of 

this section as though it were a new 

program. 

§ 242.105 Schedule for implementation. 

(a) By March 1, 2012, each railroad 

shall: 

(1) In writing, designate as certified 

conductors all persons authorized by 

the railroad to perform the duties of a 

conductor as of January 1, 2012; and 

(2) Issue a certificate that complies 

with § 242.207 to each person that it 

designates. 

(b) After March 1, 2012, each railroad 

shall: 

(1) In writing, designate as a certified 

conductor any person who has been 

authorized by the railroad to perform 

the duties of a conductor between 

January 1, 2012 and the pertinent date 

in paragraph (d) or (e) of this section; 

and 

(2) Issue a certificate that complies 

with § 242.207 to each person that it 

designates. 

(c) No railroad shall permit or require 

a person, designated as a certified 

conductor under the provisions of 

paragraph (a) or (b) of this section, to 

perform service as a certified conductor 

for more than a 36-month period 

beginning on the pertinent date for 

compliance with the mandatory 

procedures for testing and evaluation set 

forth in the applicable provisions of 

paragraph (d) or (e) of this section 

unless that person has been certified in 

accordance with procedures that 

comply with subpart B of this part. 

(1) Except as provided in paragraph 

(c)(3) of this section, a person who has 

been designated as a certified conductor 

under the provisions of paragraph (a) or 

(b) of this section and who is eligible to 

receive a retirement pension in 

accordance with the terms of an 

applicable agreement or in accordance 

with the terms of the Railroad 

Retirement Act (45 U.S.C. 231) within 

36 months from the pertinent date for 

compliance with the mandatory 

procedures for testing and evaluation set 

forth in the applicable provisions of 

paragraph (d) or (e) of this section, may 

request, in writing, that a railroad not 

recertify that person, pursuant to 

subpart B of this part, until 36 months 

from the pertinent date for compliance 

with the mandatory procedures for 

testing and evaluation set forth in the 

applicable provisions of paragraph (d) 

or (e) of this section. 

(2) Upon receipt of a written request 

pursuant to paragraph (c)(1) of this 

section, a railroad may wait to recertify 

the person making the request until the 

end of the 36-month period described in 

paragraph (c) of this section. If a railroad 

grants any request, it must grant the 

request of all eligible persons to every 

extent possible. 

(3) A person who is subject to 

recertification under part 240 of this 

chapter may not make a request 

pursuant to paragraph (c)(1) of this 

section. 

(d) After June 1, 2012, no Class I 

railroad (including the National 

Railroad Passenger Corporation), Class II 

railroad, or railroad providing 

commuter service shall initially certify 

or recertify a person as a conductor 


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unless that person has been tested and 

evaluated in accordance with 

procedures that comply with subpart B 

of this part and issued a certificate that 

complies with § 242.207. 

(e) After September 1, 2012, no Class 

III railroad (including a switching and 

terminal or other railroad not otherwise 

classified) shall initially certify or 

recertify a person as a conductor unless 

that person has been tested and 

evaluated in accordance with 

procedures that comply with subpart B 

of this part and issued a certificate that 

complies with § 242.207. 

(f) After the applicable dates specified 

in paragraphs (d) and (e) of this section, 

no person shall serve as a conductor in 

any type of service and no railroad shall 

require or permit any person to serve as 

a conductor in any type of service 

unless that person has been tested and 

evaluated in accordance with 

procedures that comply with subpart B 

of this part and issued a certificate that 

complies with § 242.207. 

§ 242.107 Types of service. 

(a) Each railroad’s program shall state 

which of the two types of service 

(conductor and passenger conductor), 

provided for in paragraph (b) of this 

section, that it will cover. 

(b) A railroad may issue certificates 

for either of the following types of 

service: 

(1) Conductor; and 

(2) Passenger conductor. 

(c) A railroad shall not reclassify the 

certification of any type of certified 

conductor to a different type of 

conductor certification during the 

period in which the certification is 

otherwise valid except when a 

conductor completes the emergency 

training identified in part 239 of this 

chapter and is certified as a passenger 

conductor. 

(d) Each railroad is authorized to 

impose additional conditions or 

operational restrictions on the service a 

conductor may perform beyond those 

identified in this section provided those 

conditions or restrictions are not 

inconsistent with this part. 

§ 242.109 Determinations required for 

certification and recertification. 

(a) After the pertinent date specified 

in § 242.105(d) or (e), each railroad, 

prior to initially certifying or 

recertifying any person as a conductor, 

shall, in accordance with its FRAapproved program, determine in writing 

that: 

(1) The individual meets the 

eligibility requirements of §§ 242.111, 

242.113, 242.115 and 242.403; and 

(2) The individual meets the vision 

and hearing acuity standards of 

§ 242.117 (‘‘Vision and hearing acuity’’); 

(3) The individual has the necessary 

knowledge, as demonstrated by 

successfully completing a test that 

meets the requirements of § 242.121 

(‘‘Knowledge testing’’); and 

(4) Where a person has not previously 

been certified, that the person has 

completed a training program that meets 

the requirements of § 242.119 

(‘‘Training’’). 

(b) When evaluating a person’s 

railroad employment record, a railroad 

shall not consider information 

concerning prior railroad safety conduct 

that: 

(1) Occurred prior to the effective date 

of this rule; or 

(2) Occurred at a time other than that 

specifically provided for in §§ 242.111, 

242.115 or 242.403. 

(c) In order to make the determination 

required under paragraph (a) of this 

section, a railroad shall have on file 

documents pertinent to those 

determinations. 

(d) A railroad’s program shall provide 

a candidate for certification or 

recertification a reasonable opportunity 

to review and comment in writing on 

any record which contains information 

concerning the person’s prior safety 

conduct, including information 

pertinent to determinations required 

under § 242.115, if the railroad believes 

the record contains information that 

could be sufficient to render the person 

ineligible for certification under this 

subpart. 

(e) The opportunity for comment shall 

be afforded to the person prior to the 

railroad’s rendering its eligibility 

decision based on that information. Any 

responsive comment furnished shall be 

retained by the railroad in accordance 

with § 242.203. 

(f) The program shall include a 

method for a person to advise the 

railroad that he or she has never been 

a railroad employee or obtained a 

license to drive a motor vehicle. 

Nothing in this section shall be 

construed as imposing a duty or 

requirement that a person have prior 

railroad employment experience or 

obtain a motor vehicle driver’s license 

in order to become a certified 

conductor. 

(g) Nothing in this section, §§ 242.111 

or 242.113 shall be construed to prevent 

persons subject to this part from 

entering into an agreement that results 

in a railroad’s obtaining the information 

needed for compliance with this subpart 

in a different manner than that 

prescribed in §§ 242.111 or 242.113. 

§ 242.111 Prior safety conduct as 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 which 

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), (d), (e) and (f) of this section, after 

the pertinent date specified in 

§ 242.105(d) or (e), each railroad, prior 

to initially certifying or recertifying any 

person as a conductor 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 conductor 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 § 242.109. 

(d) A railroad shall recertify a person 

as a conductor 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 § 242.109. 

(e) Except as provided in paragraph (f) 

of this section, if a railroad who 

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) 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 conductor 

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 § 242.109. 

(g) Individual’s duty. Except for 

persons designated as conductors under 

§ 242.105 (a) or (b) or for persons 


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covered by § 242.109(f), 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) Take the actions required by 

paragraphs (h) through (j) of this section 

to make information concerning his or 

her driving record available to the 

railroad that is considering such 

certification or recertification; and 

(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. 

(h) Each person seeking certification 

or recertification under this part shall 

request, in writing, that the chief of each 

driver licensing agency identified in 

paragraph (i) of this section provide a 

copy of that agency’s available 

information concerning his or her 

driving record to the railroad that is 

considering such certification or 

recertification. 

(i) Each person shall request the 

information required under paragraph 

(h) 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 the person a 

driver’s license within the preceding 

five years. 

(j) If advised by the railroad that a 

driver licensing agency 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. 

(k) Any person who has never 

obtained a motor vehicle driving license 

is not required to comply with the 

provisions of paragraph (h) of this 

section but shall notify the railroad of 

that fact in accordance with procedures 

of the railroad that comply with 

§ 242.109(f). 

(l) Each certified conductor or person 

seeking initial certification shall report 

motor vehicle incidents described in 

paragraphs (n)(1) and (2) of this section 

to the employing railroad within 48 

hours of being convicted for, or 

completed state action to cancel, revoke, 

suspend, or deny a motor vehicle 

drivers license for, such violations. For 

purposes of this paragraph and 

paragraph (n) of this section, ‘‘state 

action’’ means action of the jurisdiction 

that has issued the motor vehicle 

driver’s license, including a foreign 

country. For the purposes of conductor 

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 

drivers license. 

(m) Evaluation of record. When 

evaluating a person’s motor vehicle 

driving record, a railroad shall not 

consider information concerning motor 

vehicle driving incidents that occurred: 

(1) Prior to the effective date of this 

rule; 

(2) More than 36 months before the 

month in which the railroad is making 

its certification decision; or 

(3) At a time other than that 

specifically provided for in §§ 242.111, 

242.115, or 242.403. 

(n) 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 drivers 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. 

(o) If such an incident is identified: 

(1) The railroad shall provide the data 

to the railroad’s SAP, 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 

SAP 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 SAP, 

condition certification upon 

participation in any needed aftercare 

and/or follow-up testing for alcohol or 

drugs deemed necessary by the SAP 

consistent with the technical standards 

specified in § 242.115(f)(3). 

(4) If the person is evaluated as 

currently affected by an active substance 

abuse disorder, the provisions of 

§ 242.115(d) will apply. 

§ 242.113 Prior safety conduct as an 

employee of a different railroad. 

(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) After the pertinent date specified 

in § 242.105(d) or (e), each railroad, 

prior to initially certifying or 

recertifying any person as a conductor 

for any type of service, shall determine 

that the person meets the eligibility 

requirements of this section. 

(c) Except for persons designated as 

conductors under § 242.105(a) or (b) or 

for persons covered by § 242.109(f), 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 

§§ 242.111, 242.115 and 242.403 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. 

§ 242.115 Substance abuse disorders and 

alcohol drug rules compliance. 

(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. 


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(b) After the pertinent date specified 

in § 242.105(d) or (e), each railroad, 

prior to initially certifying or 

recertifying any person as a conductor 

for any type of service, shall determine 

that the person meets the eligibility 

requirements of this section. 

(c) 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 SAP 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 conductor. 

(2) Except as provided in paragraph 

(g) of this section, a certified conductor 

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 § 242.111), the employee 

may, if otherwise eligible, voluntarily 

self-refer for substance abuse counseling 

or treatment under the policy required 

by § 219.403 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 

conductor, 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. 

(2) A railroad shall consider any 

violation of §§ 219.101 or 219.102 of 

this chapter and any refusal or failure 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 section 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; and 

(4) The period of ineligibility 

described in this section shall be 

determined in accordance with the 

following standards: 

(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 ‘‘co-worker report’’ 

as described in § 219.405 of this chapter 

and the conductor waives investigation, 

in which case the certificate shall be 

deemed suspended during evaluation 

and any required primary treatment as 

described in paragraph (f)). 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 or failure 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, in the same 

manner as a violation of: 

(A) Section 219.102 of this chapter, in 

the case of a refusal or failure to provide 

a urine specimen for testing; or 

(B) Section 219.101 of this chapter, in 

the case of a refusal or failure to provide 

a breath sample (part 219, subpart D), or 

a blood specimen for mandatory postaccident toxicological testing (part 219, 

subpart C)). 

(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) Presented a urine sample for 

testing under subpart H of part 219 of 

this chapter that tested negative for 

controlled substances assayed and has 

tested negative for alcohol. 

(2) A conductor placed in service or 

returned to service under the abovestated 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 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 

conductor. 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 § 219.403 of this 

chapter (‘‘Voluntary referral policy’’) to 

treat voluntary referrals for substance 

abuse counseling and treatment as 

confidential; and the certification status 

of a conductor who is successfully 

assisted under the procedures of that 

section shall not be adversely affected. 

However, the railroad shall include in 

its voluntary referral policy required to 

be issued pursuant to § 219.403 of this 

chapter a provision that, at least with 

respect to a certified conductor or a 

candidate for certification, the policy of 

confidentiality is waived (to the extent 

that the railroad shall receive from the 

SAP 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. 


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§ 242.117 Vision and hearing acuity. 

(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) After the pertinent date specified 

in § 242.105(d) or (e), each railroad, 

prior to initially certifying or 

recertifying any person as a conductor 

for any class of service, shall determine 

that the person meets the standards for 

visual acuity and hearing acuity 

prescribed in this section. 

(c) In order to make the determination 

required under paragraph (b) of this 

section, a railroad shall have on file 

either: 

(1) A medical examiner’s certificate 

that the individual has been medically 

examined and meets these acuity 

standards; or 

(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 

(ii) The person’s acuity is such that he 

or she cannot safely perform as a 

conductor even with conditions 

attached. 

(d) Any examination required for 

compliance with this section shall be 

performed by or under the supervision 

of a medical examiner or a licensed 

physician’s assistant such that: 

(1) A licensed optometrist or a 

technician responsible to that person 

may perform the portion of the 

examination that pertains to visual 

acuity; and 

(2) A licensed or certified audiologist 

or a technician responsible to that 

person may perform the portion of the 

examination that pertains to hearing 

acuity. 

(e) If the examination required under 

this section discloses that the person 

needs corrective lenses or a hearing aid, 

or both, either to meet the threshold 

acuity levels established in this section 

or to meet a lower threshold determined 

by the railroad’s medical examiner to be 

sufficient to perform as a conductor, 

that fact shall be noted on the certificate 

issued in accordance with the 

provisions of this part. 

(f) Any person with such a certificate 

notation shall use the relevant 

corrective device(s) while performing as 

a conductor unless the railroad’s 

medical examiner subsequently 

determines in writing that the person 

can safely perform without using the 

device. 

(g) Fitness requirement. 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 E 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) 

(OSHA); 

(2) As required in § 227.111 of this 

chapter; or 

(3) Conducted using an audiometer 

that meets the specifications of and are 

maintained and used in accordance 

with ANSI S3.6–2004 ‘‘Specifications for 

Audiometers.’’ 

(j) A person not meeting the 

thresholds in paragraphs (h) and (i) of 

this section shall, upon request, be 

subject to further medical evaluation by 

a railroad’s medical examiner to 

determine that person’s ability to safely 

perform as a conductor. In accordance 

with the guidance prescribed in 

Appendix D to this part, a person is 

entitled to one retest without making 

any showing and to another retest if the 

person provides evidence substantiating 

that circumstances have changed since 

the last test to the extent that the person 

could now safely perform as a 

conductor. The railroad shall provide its 

medical examiner with a copy of this 

part, including all appendices. If, after 

consultation with a railroad officer, the 

medical examiner concludes that, 

despite not meeting the threshold(s) in 

paragraphs (h) and (i) of this section, the 

person has the ability to safely perform 

as a conductor, the person may be 

certified as a conductor and such 

certification conditioned on any special 

restrictions the medical examiner 

determines in writing to be necessary. 

(k) As a condition of maintaining 

certification, each certified conductor 

shall notify his or her employing 

railroad’s medical department or, if no 

such department exists, an appropriate 

railroad official if the person’s best 

correctable vision or hearing has 

deteriorated to the extent that the 

person no longer meets one or more of 

the prescribed vision or hearing 

standards or requirements of this 

section. This notification is required 

prior to any subsequent performance as 

a conductor. 

§ 242.119 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 which 

complies with the requirements of this 

section, that person shall be considered 

to have violated the requirements of this 

section. 

(b) After the pertinent date specified 

in § 242.105(d) or (e), each railroad, 

prior to the initial issuance of a 

certificate to any person as a conductor, 

shall determine that the person has, in 

accordance with the requirements of 

this section, the knowledge to safely 

perform as a conductor in each type of 

service that the person will be permitted 

to perform. 

(c) In making this determination, a 

railroad shall have written 

documentation showing that: 

(1) The person completed a training 

program that complies with paragraph 

(d) of this section; 

(2) The person demonstrated his or 

her knowledge by achieving a passing 

grade under the testing and evaluation 

procedures of that training program; and 

(3) The person demonstrated that he 

or she is qualified on the physical 


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characteristics of the railroad, or its 

pertinent segments, over which that 

person will perform service. 

(d) A railroad that elects to train a 

previously untrained person to be a 

conductor shall develop an initial 

training program which, at a minimum, 

includes the following: 

(1) Perform a task analysis or 

otherwise demonstrate that a task 

analysis has been performed to identify 

safety-related tasks and steps that must 

be performed proficiently. The 

demonstration of a task analysis for an 

existing program (i.e., a program 

implemented prior to the effective date 

of this part) can be based on the 

production of an existing program with 

defined standards of sufficient detail to 

indicate that an effective task analysis 

was performed. When new safetyrelated railroad laws, regulations, 

orders, technologies, procedures, or 

equipment are introduced into the 

workplace, the railroad must review its 

training program and modify its training 

plan accordingly. 

(2) Determine how training must be 

structured, developed, and delivered, 

including on-the-job training and any 

combination of classroom, simulator, 

computer-based, or other formally 

structured training designed to impart 

the knowledge, skills, and abilities 

identified as necessary to perform each 

task. The curriculum shall include 

knowledge of, and ability to comply 

with, Federal railroad safety laws, 

regulations, and orders, as well as any 

railroad rules and procedures 

promulgated to implement those 

Federal railroad safety laws, regulations, 

and orders. This training shall 

document a person’s knowledge of, and 

ability to comply with, Federal railroad 

safety laws, regulations, and orders, as 

well as railroad rules and procedures. 

(e) Prior to a previously untrained 

person being certified as a conductor, a 

railroad shall require the person to: 

(1) Successfully complete the formal 

initial training program developed 

pursuant to paragraph (d) of this section 

and any associated examinations 

covering the skills and knowledge the 

person will need to possess in order to 

perform the tasks necessary to be a 

conductor; and 

(2) Demonstrate, to the satisfaction of 

the railroad with input from a qualified 

instructor, on-the-job proficiency by 

successfully completing the tasks 

necessary to be a conductor. However, 

a person may perform such tasks under 

the direct onsite supervision of a 

person, who has the necessary operating 

experience, as part of the on-the-job 

training process prior to completing 

such training and passing the field 

evaluation; and 

(3) Demonstrate knowledge of the 

physical characteristics of any assigned 

territory by successfully completing a 

test created by a person qualified on the 

physical characteristics of the territory. 

(f) If a railroad uses a written test for 

purposes of paragraph (e)(3) 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. 

(g) A person may acquire familiarity 

with the physical characteristics of a 

territory through the following methods: 

(1) The methods used by a railroad for 

familiarizing its conductors with new 

territory while starting up a new 

railroad; 

(2) The methods used by a railroad for 

starting operations over newly acquired 

rail lines; or 

(3) The methods used by a railroad for 

reopening of a long unused route. 

(h) The methods listed in paragraph 

(g) of this section shall be described in 

the railroad’s conductor qualification 

program required under this part and 

submitted according to the procedures 

described in Appendix B to this part. 

(i) If ownership of a railroad is being 

transferred from one company to 

another, the conductor(s) of the 

acquiring company may receive 

familiarization training from the selling 

company prior to the acquiring railroad 

commencing operation. 

(j) A railroad shall designate in its 

program required by this section the 

time period in which a conductor must 

be absent from a territory or yard, before 

requalification on physical 

characteristics is required. 

(k) A railroad’s program shall include 

the procedures used to qualify or 

requalify a person on the physical 

characteristics. 

(l) Except as provided by paragraph 

(n) of this section, each railroad shall, 

no later than (DATE 365 DAYS AFTER 

THE DATE OF PUBLICATION OF THE 

FINAL RULE IN THE FEDERAL 

REGISTER), perform initial instructional 

briefings to ensure that each of its 

conductors have knowledge of the 

Federal railroad safety laws that relate 

to the safety-related tasks the employees 

are assigned to perform. 

(m) Initial instructional briefings 

required by this section must: 

(1) Be delivered in a manner 

conducive to ensure learning transfer; 

(2) Include in the briefing a written or 

electronic check-off list containing the 

title and section or subpart of each 

applicable railroad safety law, 

including, but limited to, regulations 

and orders, that the conductor must 

comply with; and 

(3) Require each conductor to 

complete an identical check-off list 

during the instructional briefing, and to 

sign or electronically validate the list at 

the conclusion of the briefing. 

(n) Any railroad that has previously 

informed, briefed, or instructed any of 

its existing conductors on the relevant 

Federal railroad safety laws may choose 

not to perform the initial instructional 

briefing required by paragraph (l) of this 

section, as long as the railroad has 

retained a record containing the 

following information concerning each 

such person: 

(1) The name of the person; 

(2) The name or a description of the 

training during which this information 

was delivered; 

(3) The date the training was 

completed; and 

(4) The name of the railroad officer 

certifying the record(s). 

(o) A railroad shall provide for the 

continuing education of certified 

conductors to ensure that each 

conductor maintains the necessary 

knowledge concerning railroad safety 

and operating rules and compliance 

with all applicable Federal regulations, 

including, but not limited to, hazardous 

materials, passenger train emergency 

preparedness, brake system safety 

standards, pre-departure inspection 

procedures, and passenger equipment 

safety standards, and physical 

characteristics of a territory. 

§ 242.121 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 which 

complies with the requirements of this 

section, that person shall be considered 

to have violated the requirements of this 

section. 

(b) After the pertinent date specified 

in § 242.105(d) or (e), each railroad, 

prior to initially certifying or 

recertifying any person as a conductor 

for any type of service, shall determine 

that the person has, in accordance with 

the requirements of this section, 

demonstrated sufficient knowledge of 

the railroad’s rules and practices for the 

safe movement of trains. 

(c) In order to make the knowledge 

determination required by paragraph (b) 

of this section, a railroad shall have 

procedures for testing a person being 

evaluated for certification as a 

conductor that shall be: 


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(1) Designed to examine a person’s 

knowledge of the railroad’s operating 

rules and practices for the safe 

movement of trains; 

(2) Objective in nature; 

(3) Administered in written or 

electronic form; 

(4) Cover the following subjects: 

(i) Safety and operating rules; 

(ii) Timetable instructions; 

(iii) Compliance with all applicable 

Federal regulations; 

(iv) Physical characteristics of the 

territory on which a person will be or 

is currently serving as a conductor; and 

(v) Use of any job aid that a railroad 

may provide a conductor; 

(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. 

(d) The conduct of the test shall be 

documented in writing and the 

documentation shall contain sufficient 

information to identify the relevant facts 

relied on for evaluation purposes. 

(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 conductor prior 

to that person’s achieving a passing 

score during a reexamination of his or 

her knowledge. 

§ 242.123 Monitoring operational 

performance. 

(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 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 conduct of its certified 

conductors by performing unannounced 

operating rules compliance tests. The 

program shall include procedures to 

address the testing of certified 

conductors who are not given an 

unannounced compliance test in a 

calendar year pursuant to paragraph (f) 

of this section. At a minimum, the 

procedures shall include the following: 

(1) A requirement that an 

unannounced compliance test must be 

conducted within 30 days of a return to 

conductor service; and 

(2) The railroad must retain a written 

record indicating the date that the 

conductor stopped performing service 

that requires certification pursuant to 

this part, the date that the conductor 

returned to performing service that 

requires certification pursuant to this 

part, and the date that the unannounced 

compliance test was performed. 

(c) Except as provided in paragraph (f) 

of this section, each conductor shall be 

given at least one unannounced 

compliance test in each calendar year by 

a railroad officer who meets the 

requirements of § 217.9(b)(1) of this 

chapter. 

(d) The unannounced test program 

shall: 

(1) Test those persons certified as a 

conductor pursuant to § 242.107(b)(1) 

for compliance with one or more 

operational tests in accordance with the 

provisions of § 217.9 of this chapter; and 

one or more provisions of §§ 218.99 

through 218.109 of this chapter; and 

(2) Test those persons certified as a 

passenger conductor pursuant to 

§ 242.107(b)(2) for compliance with one 

or more operational tests in accordance 

with the provisions of § 217.9 of this 

chapter. 

(i) For persons certified as passenger 

conductors pursuant to § 242.107(b)(2) 

who do not require compliance with 

part 218, subpart F of this chapter 

except under emergency circumstances, 

the requirement for an annual, 

unannounced test may be satisfied by 

annual training. 

(ii) [Reserved] 

(e) Each railroad’s program shall 

indicate the action the railroad will take 

in the event that it finds deficiencies 

with a conductor’s performance during 

an unannounced compliance test 

administered in accordance with this 

section. 

(f) A certified conductor who is not 

performing a service that requires 

certification pursuant to this part need 

not be given an unannounced 

compliance test. However, when the 

certified conductor returns to a service 

that requires certification pursuant to 

this part, that certified conductor must 

be tested pursuant to this section within 

30 days of his or her return. 

§ 242.125 Certification determinations 

made by other railroads. 

(a) A railroad that is considering 

certification of a person as a conductor 

may rely on determinations made by 

another railroad concerning that 

person’s certification. The railroad’s 

certification program shall address how 

the railroad will administer the training 

of previously uncertified conductors 

with extensive operating experience or 

previously certified conductors who 

have had their certification expire. If a 

railroad’s certification program fails to 

specify how it will train a previously 

certified conductor hired from another 

railroad, then the railroad shall require 

the newly hired conductor to take the 

hiring railroad’s entire training program. 

(b) A railroad relying on another 

railroad’s certification shall determine 

that: 

(1) The prior certification is still valid 

in accordance with the provisions of 

§§ 242.201 and 242.407; 

(2) The prior certification was for the 

same type of service as the certification 

being issued under this section; 

(3) The person has received training 

on the physical characteristics of the 

new territory in accordance with 

§ 242.119; and 

(4) The person has demonstrated the 

necessary knowledge concerning the 

railroad’s operating rules in accordance 

with § 242.121. 

§ 242.127 Reliance on qualification 

requirements of other countries. 

(a) A Canadian railroad that is 

required to comply with this regulation 

or a railroad that conducts joint 

operations with a Canadian railroad 

may certify that a person is eligible to 

be a conductor provided it determines 

that: 

(1) The person is employed by the 

Canadian railroad; and 

(2) The person meets or exceeds the 

qualifications standards issued by 

Transport Canada for such service. 

Subpart C—Administration of the 

Certification Program 

§ 242.201 Time limitations for certification. 

(a) After the pertinent date in 

§ 242.105(d) or (e), a railroad shall not 

certify or recertify a person as a 

conductor in any type of service, if the 

railroad is making: 

(1) A determination concerning 

eligibility under §§ 242.111, 242.113, 

242.115 and 242.403 and the eligibility 

data being relied on was furnished more 

than 366 days before the date of the 

railroad’s certification decision; 

(2) A determination concerning visual 

and hearing acuity and the medical 

examination being relied on was 

conducted more than 450 days before 

the date of the railroad’s certification 

decision; 

(3) A determination concerning 

demonstrated knowledge and the 


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knowledge examination being relied on 

was conducted more than 366 days 

before the date of the railroad’s 

certification decision; or 

(4) A determination concerning 

demonstrated knowledge and the 

knowledge examination being relied on 

was conducted more than 24 months 

before the date of the railroad’s 

recertification decision if the railroad 

administers a knowledge testing 

program pursuant to § 242.121 at 

intervals that do not exceed 24 months. 

(b) The time limitations of paragraph 

(a) of this section do not apply to a 

railroad that is making a certification 

decision in reliance on determinations 

made by another railroad in accordance 

with paragraph (c)(3) of this section, 

§ 242.125, or § 242.127. 

(c) No railroad shall: 

(1) Permit or require a person, 

designated under § 242.105(a) or (b), to 

perform service as a certified conductor 

for more than the 36-month period 

beginning on the pertinent date for 

compliance with the mandatory 

procedures for testing and evaluation set 

forth in the applicable provisions of 

§ 242.105(d) or (e) unless that person 

has been determined to be eligible in 

accordance with procedures that 

comply with subpart B of this part. 

(2) Certify a person as a conductor for 

an interval of more than 36 months; or 

(3) Rely on a certification issued by 

another railroad that is more than 36 

months old. 

(d) Except as provided for in 

§ 242.105 concerning initial 

implementation of the program, a 

railroad shall issue each person 

designated as a certified conductor a 

certificate that complies with § 242.207 

no later than 30 days from the date of 

its decision to certify or recertify that 

person. 

§ 242.203 Retaining information 

supporting determinations. 

(a) After the pertinent date in 

§ 242.105(d) or (e), a railroad that issues, 

denies, or revokes a certificate after 

making the determinations required 

under § 242.109 shall maintain a record 

for each certified conductor or applicant 

for certification that contains the 

information the railroad relied on in 

making the determinations. 

(b) A railroad shall retain the 

following information: 

(1) Relevant data from the railroad’s 

records concerning the person’s prior 

safety conduct; 

(2) Relevant data furnished by another 

railroad; 

(3) Relevant data furnished by a 

governmental agency concerning the 

person’s motor vehicle driving record; 

(4) Relevant data furnished by the 

person seeking certification concerning 

his or her eligibility; 

(5) The relevant test results data 

concerning hearing and vision acuity; 

(6) If applicable, the relevant data 

concerning the professional opinion of 

the railroad’s medical examiner on the 

adequacy of the person’s hearing or 

vision acuity; 

(7) Relevant data from the railroad’s 

records concerning the person’s success 

or failure of the passage of knowledge 

test(s) under § 242.121; 

(8) A sample copy of the written 

knowledge test or tests administered; 

and 

(9) The relevant data from the 

railroad’s records concerning the 

person’s success or failure on 

unannounced operating rules 

compliance tests the railroad performed 

to monitor the conductor’s performance 

in accordance with § 242.123. 

(c) If a railroad is relying on 

successful completion of an approved 

training program conducted by another 

entity, the relying railroad shall 

maintain a record for each certified 

conductor that contains the relevant 

data furnished by the training entity 

concerning the person’s demonstration 

of knowledge and relied on by the 

railroad in making its determinations. 

(d) If a railroad is relying on a 

certification decision initially made by 

another railroad, the relying railroad 

shall maintain a record for each certified 

conductor that contains the relevant 

data furnished by the other railroad 

which it relied on in making its 

determinations. 

(e) All records required under this 

section shall be retained for a period of 

six years from the date of the 

certification, recertification, denial or 

revocation decision and shall be made 

available to FRA representatives upon 

request during normal business hours. 

(f) 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 record(s) required by this section; 

or 

(2) Otherwise falsify such records 

through material misstatement, 

omission, or mutilation. 

(g) 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. 

§ 242.205 Identification of certified 

persons and record keeping. 

(a) After March 1, 2012, a railroad 

shall maintain a list identifying each 

person designated as a certified 

conductor. That list shall indicate the 

types of service the railroad determines 

each person is authorized to perform 

and date of the railroad’s certification 

decision. 

(b) If a railroad employs conductors 

working in joint operations territory, the 

list shall include person(s) determined 

by that railroad to be certified as 

conductor(s) and possessing the 

necessary territorial qualifications for 

the applicable territory in accordance 

with § 242.301. 

(c) The list required by paragraphs (a) 

and (b) 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. 


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(d) 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. 

(e) Nothing in this section precludes 

a railroad from maintaining the list 

required by 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. 

§ 242.207 Certificate components. 

(a) At 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 eligible to perform as a conductor or 

as a passenger conductor; 

(3) Identify the person to whom it is 

being issued (including the person’s 

name, employee identification number, 

and either the year of birth or 

photograph of the person); 

(4) Identify any conditions or 

limitations, including the type 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 an individual 

designated in accordance with 

paragraph (b) of this section; and 

(7) Be of sufficiently small size to 

permit being carried in an ordinary 

pocket wallet. 

(b) Each railroad shall designate in 

writing any person that it authorizes to 

sign the certificates described in this 

section. The designation shall identify 

such persons by name or job title. 

(c) Nothing in paragraph (a) of this 

section shall prohibit any railroad from 

including additional information on the 

certificate or supplementing the 

certificate through other documents. 

(d) 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 that certificate; or 

(2) Otherwise falsify that certificate 

through material misstatement, 

omission, or mutilation. 

§ 242.209 Maintenance of the certificate. 

(a) Each conductor who has received 

a certificate required under this part 

shall: 

(1) Have that certificate in his or her 

possession while on duty as a 

conductor; 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 serving as a conductor in joint 

operations territory. 

(b) Any conductor who is notified or 

called to serve as a conductor and such 

service would cause the conductor to 

exceed certificate limitations, set forth 

in accordance with subpart B of this 

part, shall immediately notify the 

railroad that he or she is not authorized 

to perform that anticipated service and 

it shall be unlawful for the railroad to 

require such service. 

(c) Nothing in this section shall be 

deemed to alter a certified conductor’s 

duty to comply with other provisions of 

this chapter concerning railroad safety. 

§ 242.211 Replacement of certificates. 

(a) A railroad shall have a system for 

the prompt replacement of lost, stolen 

or mutilated certificates at no cost to 

conductors. That system shall be 

reasonably accessible to certified 

conductors 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 designated supervisor. 

Temporary replacement certificates may 

be delivered electronically and are valid 

for a period no greater than 30 days. 

§ 242.213 Multiple certifications. 

(a) A person may hold certification for 

multiple types of conductor service. 

(b) A person may hold both conductor 

and locomotive engineer certification. 

(c) A railroad that issues multiple 

certificates to a person, shall, to the 

extent possible, coordinate the 

expiration date of those certificates. 

(d) Except as provided in paragraph 

(e) of this section, a locomotive 

engineer, including a remote control 

operator, who is operating a locomotive 

without an assigned certified conductor 

must either be (i) certified as both a 

locomotive engineer under part 240 of 

this chapter and as a conductor under 

this part or (ii) accompanied by a person 

certified as a conductor under this part 

but who will be attached to the crew in 

a manner similar to that of an 

independent assignment. 

(e) Passenger Railroad Operations. If 

the conductor is removed from a 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. 

(f) 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 § 242.401 or 


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§ 240.219 of this chapter or has his or 

her conductor or locomotive engineer 

certification revoked under § 242.407 or 

§ 240.307 of this chapter by another 

railroad. 

(g) A person who is certified to 

perform multiple types of conductor 

service and who has had any of those 

certifications revoked under § 242.407 

may not perform any type of conductor 

service during the period of revocation. 

(h) A person who holds a current 

conductor and locomotive engineer 

certificate and who has had his or her 

conductor certification revoked under 

§ 242.407 for a violation of 

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

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 for a violation of 

§ 242.403(e)(6) through (e)(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 (e)(5) or (e)(12) 

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)). 

(i) 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 of this chapter 

may not work as a conductor during the 

period of revocation. 

(j) A person who has had his or her 

locomotive engineer certification 

revoked under § 240.307 of this chapter 

may not obtain a conductor certificate 

pursuant to this part during the period 

of revocation. 

(k) A person who had his or her 

conductor certification revoked under 

§ 242.407 for violations of 

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

may not obtain a locomotive engineer 

certificate pursuant to part 240 of this 

chapter during the period of revocation. 

(l) A railroad that denies a person 

conductor certification or recertification 

under § 242.401 shall not, solely on the 

basis of that denial, deny or revoke that 

person’s locomotive engineer 

certification or recertification. 

(m) A railroad that denies a person 

locomotive engineer certification or 

recertification under § 240.219 of this 

chapter shall not, solely on the basis of 

that denial, deny or revoke that person’s 

conductor certification or 

recertification. 

(n) In lieu of issuing multiple 

certificates, a railroad may issue one 

certificate to a person who is certified to 

perform multiple types of conductor 

service or is certified as a conductor and 

a locomotive engineer. The certificate 

must comply with § 240.223 of this 

chapter and § 242.207. 

§ 242.215 Railroad oversight 

responsibilities. 

(a) No later than March 31 of each 

year (beginning in calendar year (TO BE 

INSERTED IN FINAL RULE)), each 

Class I railroad (including the National 

Railroad Passenger Corporation and a 

railroad providing commuter service) 

and each Class II railroad shall conduct 

a formal annual review and analysis 

concerning the administration of its 

program for responding to detected 

instances of poor safety conduct by 

certified conductors during the prior 

calendar year. 

(b) Each review and analysis shall 

involve: 

(1) The number and nature of the 

instances of detected poor safety 

conduct including the nature of the 

remedial action taken in response 

thereto; 

(2) The number and nature of FRA 

reported train accidents attributed to 

poor safety performance by conductors; 

(3) The number and type of 

operational monitoring test failures 

recorded by railroad officers who meet 

the requirements of § 217.9(b)(1) of this 

chapter; and 

(4) If the railroad conducts joint 

operations with another railroad, the 

number of conductors employed by the 

other railroad(s) which: were involved 

in events described in this paragraph 

and were determined to be certified and 

to have possessed the necessary 

territorial qualifications for joint 

operations purposes by the controlling 

railroad. 

(c) Based on that review and analysis, 

each railroad shall determine what 

action(s) it will take to improve the 

safety of railroad operations to reduce or 

eliminate future incidents of that nature. 

(d) If requested in writing by FRA, the 

railroad shall provide a report of the 

findings and conclusions reached 

during such annual review and analysis 

effort. 

(e) For reporting purposes, 

information about the nature of detected 

poor safety conduct shall be capable of 

segregation for study and evaluation 

purposes into the following categories: 

(1) Incidents involving 

noncompliance with part 218 of this 

chapter; 

(2) Incidents involving 

noncompliance with part 219 of this 

chapter; 

(3) Incidents involving 

noncompliance with the procedures for 

the safe use of train or engine brakes 

when the procedures are required for 

compliance with the Class I, Class IA, 

Class II, Class III, or transfer train brake 

test provisions of part 232 of this 

chapter or when the procedures are 

required for compliance with the Class 

1, Class 1A, Class II, or running brake 

test provisions of part 238 of this 

chapter; 

(4) Incidents involving 

noncompliance with the railroad’s 

operating rules involving operation of a 

locomotive or train to operate at a speed 

that exceeds the maximum authorized 

limit; 

(5) Incidents involving 

noncompliance with the railroad’s 

operating rules resulting in operation of 

a locomotive or train past any signal, 

excluding a hand or a radio signal 

indication or a switch, that requires a 

complete stop before passing it; 

(6) Incidents involving 

noncompliance with the provisions of 

restricted speed, and the operational 

equivalent thereof, that must be 

reported under the provisions of part 

225 of this chapter; 

(7) Incidents involving occupying 

main track or a segment of main track 

without proper authority or permission; 

and 

(8) Incidents involving the 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 or disabled safety 

device in the controlling locomotive. 

(f) For reporting purposes, an instance 

of poor safety conduct involving a 

person who holds both conductor 

certification pursuant to this part and 

locomotive engineer certification 

pursuant to part 240 of this chapter 

need only be reported once (either 

under 49 CFR 240.309 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 


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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 

hearing officer: 

(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; and 

(3) The number of incidents within 

that total which were detected as a 

result of a scheduled operational 

monitoring effort. 

(ii) [Reserved] 

Subpart D—Territorial Qualification 

and Joint Operations 

§ 242.301 Requirements for territorial 

qualification. 

(a) Except as provided in paragraph 

(c) or (d) of this section, a railroad, 

including a railroad that employs 

conductors working in joint operations 

territory, shall not permit or require a 

person to serve as a conductor unless 

that railroad determines that the person 

is certified as a conductor and possesses 

the necessary territorial qualifications 

for the applicable territory pursuant to 

§ 242.119. 

(b) Each person who is called to serve 

as a conductor shall: 

(1) Meet the territorial qualification 

requirements on the segment of track 

upon which he or she will serve as a 

conductor; and 

(2) Immediately notify the railroad 

upon which he or she is employed if he 

or she does not meet the required 

territorial qualifications. 

(c) If a conductor lacks territorial 

qualification on main track physical 

characteristics required by paragraph (a) 

of this section, he or she shall be 

assisted by a person who is a certified 

conductor or certified locomotive 

engineer and meets the territorial 

qualification requirements for the main 

track physical characteristics. 

(d) If a conductor lacks territorial 

qualification on other than main track 

physical characteristics required by 

paragraph (a) of this section, where 

practicable, he or she shall be assisted 

by a person who is a certified conductor 

and meets the territorial qualification 

requirements for other than main track 

physical characteristics. Where not 

practicable, the conductor should be 

provided an appropriate up-to-date job 

aid. 

Subpart E—Denial and Revocation of 

Certification 

§ 242.401 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. 

(b) This section does not require 

further opportunity to comment if the 

railroad’s denial is based solely on 

factors addressed by §§ 242.111, 

242.115, or 242.403 and the opportunity 

to comment afforded by § 242.109 has 

been provided. 

(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 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 determine that 

a person failed to meet the eligibility 

requirements of this part and shall not 

deny the person’s certification if 

sufficient evidence exists to establish 

that an intervening cause prevented or 

materially impaired the conductor’s 

ability to comply with the railroad 

operating rule or practice which 

constitutes a violation under 

§ 242.403(e)(1) through (e)(11) of this 

part. 

§ 242.403 Criteria for revoking 

certification. 

(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 which 

complies with the requirements of this 

section, that person shall be considered 

to have violated the requirements of this 

section. 

(b) It shall be unlawful to fail to 

comply with any of the railroad rules 

and practices described in paragraph (e) 

of this section. 

(c)(1) A certified conductor 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. 

(2) A certified conductor who is 

monitoring, piloting, or instructing a 

conductor and fails to take appropriate 

action to prevent a violation of 

paragraph (e) of this section shall have 

his or her certification revoked. 

Appropriate action does not mean that 

a supervisor, pilot, or instructor must 

prevent a violation from occurring at all 

costs; the duty may be met by warning 

the conductor or the engineer, as 

appropriate, of a potential or foreseeable 

violation. 

(3) A certified conductor who is 

called by a railroad to perform the duty 

of a train crew member other than that 

of conductor or locomotive engineer 

shall not have his or her certification 

revoked based on actions taken or not 

taken while performing that duty. 

(d) Limitations on consideration of 

prior operating rule compliance data. 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 (e)(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. 


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(e) A railroad shall only consider 

violations of its operating rules and 

practices that involve: 

(1) Failure to take appropriate action 

to prevent the locomotive engineer of 

the train the conductor is assigned to 

from failing to control a locomotive or 

train in accordance with a signal 

indication, excluding a hand or a radio 

signal indication or a switch, that 

requires a complete stop before passing 

it, when the conductor is located in the 

operating cab, or otherwise has 

knowledge of the signal indication. 

Appropriate action does not mean that 

a conductor must prevent a violation 

from occurring at all costs; the duty may 

be met by warning an engineer of a 

potential or foreseeable violation. 

(2) Failure to take appropriate action 

to prevent the locomotive engineer of 

the train the conductor is assigned to 

from failing to adhere to limitations 

concerning train speed: 

(i) When the conductor is located in 

the operating cab and the speed at 

which the train was operated exceeds 

the maximum authorized limit by at 

least 10 miles per hour. Where restricted 

speed is in effect, railroads shall 

consider only those violations of the 

conditional clause of restricted speed 

rules (i.e., the clause that requires 

stopping within one half of the 

locomotive engineer’s range of vision), 

or the operational equivalent thereof, 

which cause reportable accidents or 

incidents under part 225 of this chapter, 

except for accidents and incidents that 

are classified as ‘‘covered data’’ under 

§ 225.5 of this chapter. Appropriate 

action does not mean that a conductor 

must prevent a violation from occurring 

at all costs; the duty may be met by 

warning an engineer of a potential or 

foreseeable violation. 

(ii) When not in the operating cab, the 

conductor is deemed to have taken 

appropriate action when in compliance 

with all applicable Railroad Operating 

Rules and Special Instructions. 

(3) Failure to perform or have 

knowledge that a required brake test 

was performed pursuant to the Class I, 

Class IA, Class II, Class III, or transfer 

train brake test provisions of part 232 of 

this chapter or the Class 1, Class 1A, 

Class II, or running brake test provisions 

of part 238 of this chapter. 

(4) Occupying main track or a 

segment of main track without proper 

authority or permission. 

(5) Failure to comply with 

prohibitions against tampering with 

locomotive mounted safety devices; 

knowingly fail to take appropriate 

action to prevent the locomotive 

engineer of the train the conductor is 

assigned to from failing to comply with 

prohibitions against tampering with 

locomotive mounted safety devices; or 

knowingly fail to take appropriate 

action to prevent the locomotive 

engineer of the train the conductor is 

assigned to from 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); 

(6) Failure to comply with the 

provisions of § 218.99 of this chapter 

(Shoving or pushing movements). 

Railroads shall only consider those 

violations of § 218.99 of this chapter 

which cause reportable accidents or 

incidents under part 225 of this chapter, 

except for accidents and incidents that 

are classified as ‘‘covered data’’ under 

§ 225.5 of this chapter. 

(7) Failure to comply with the 

provisions of § 218.101 of this chapter 

(Leaving rolling and on-track 

maintenance-of-way equipment in the 

clear). Railroads shall only consider 

those violations of § 218.101 of this 

chapter which cause reportable 

accidents or incidents under part 225 of 

this chapter, except for accidents and 

incidents that are classified as ‘‘covered 

data’’ under § 225.5 of this chapter. 

(8) Failure to comply with the 

provisions of § 218.103 of this chapter 

(Hand-operated switches, including 

crossover switches). Railroads shall only 

consider those violations of § 218.103 of 

this chapter which cause reportable 

accidents or incidents under part 225 of 

this chapter, except for accidents and 

incidents that are classified as ‘‘covered 

data’’ under § 225.5 of this chapter. 

(9) Failure to comply with the 

provisions of § 218.105 of this chapter 

(Additional operational requirements 

for hand-operated main track switches). 

Railroads shall only consider those 

violations of § 218.105 of this chapter 

which cause reportable accidents or 

incidents under part 225 of this chapter, 

except for accidents and incidents that 

are classified as ‘‘covered data’’ under 

§ 225.5 of this chapter. 

(10) Failure to comply with the 

provisions of § 218.107 of this chapter 

(Additional operational requirements 

for hand-operated crossover switches). 

Railroads shall only consider those 

violations of § 218.107 of this chapter 

which cause reportable accidents or 

incidents under part 225 of this chapter, 

except for accidents and incidents that 

are classified as ‘‘covered data’’ under 

§ 225.5 of this chapter. 

(11) Failure to comply with the 

provisions of § 218.109 of this chapter 

(Hand-operated fixed derails). Railroads 

shall only consider those violations of 

§ 218.109 of this chapter which cause 

reportable accidents or incidents under 

part 225 of this chapter, except for 

accidents and incidents that are 

classified as ‘‘covered data’’ under 

§ 225.5 of this chapter. 

(12) Failure to comply with § 219.101 

of this chapter; however such incidents 

shall be considered as a violation only 

for the purposes of § 242.405(a)(2) and 

(3). 

(13) A railroad shall not be permitted 

to deny or revoke an employee’s 

certification based upon additional 

conditions or operational restrictions 

imposed pursuant to § 242.107(d). 

(f)(1) If in any single incident the 

person’s conduct contravened more 

than one operating rule or practice, that 

event shall be treated as a single 

violation for the purposes of this 

section. 

(2) A violation of one or more 

operating rules or practices described in 

paragraphs (e)(1) through (e)(11) of this 

section that occurs during a properly 

conducted operational compliance test 

subject to the provisions of this chapter 

shall be counted in determining the 

periods of ineligibility described in 

§ 242.405. 

(3) An operational test that is not 

conducted in compliance with this part, 

a railroad’s operating rules, or a 

railroad’s program under § 217.9 of this 

chapter, will not be considered a 

legitimate test of operational skill or 

knowledge, and will not be considered 

for certification, recertification or 

revocation purposes. 

§ 242.405 Periods of ineligibility. 

(a) A period of ineligibility described 

in this paragraph shall: 

(1) Begin, for a person not currently 

certified, on the date of the railroad’s 

written determination that the most 

recent incident has occurred; or 

(2) Begin, 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; and 

(3) Be determined according to the 

following standards: 

(i) On other than main track where 

restricted speed or the operational 

equivalent thereof is in effect, the period 

of revocation for a violation of 

§ 242.403(e)(6) through (e)(8), (e)(10), or 

(e)(11) shall be reduced by one half 

provided that another revocable event 

has not occurred within the previous 12 

months. 

(ii) In the case of a single incident 

involving violation of one or more of the 

operating rules or practices described in 

§ 242.403(e)(1) through (e)(11), the 

person shall have his or her certificate 


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revoked for a period of 30 calendar 

days. 

(iii) In the case of two separate 

incidents involving a violation of one or 

more of the operating rules or practices 

described in § 242.403(e)(1) through 

(e)(11), that occurred within 24 months 

of each other, the person shall have his 

or her certificate revoked for a period of 

six months. 

(iv) In the case of three separate 

incidents involving violations of one or 

more of the operating rules or practices, 

described in § 242.403(e)(1) through 

(e)(12), that occurred within 36 months 

of each other, the person shall have his 

or her certificate revoked for a period of 

one year. 

(v) In the case of four separate 

incidents involving violations of one or 

more of the operating rules or practices, 

described in § 242.403(e)(1) through 

(e)(12), that occurred within 36 months 

of each other, the person shall have his 

or her certificate revoked for a period of 

three years. 

(vi) Where, based on the occurrence of 

violations described in § 242.403(e)(12), 

different periods of ineligibility may 

result under the provisions of this 

section and § 242.115, the longest 

period of revocation shall control. 

(b) Any or all periods of revocation 

provided in paragraph (a) of this section 

may consist of training. 

(c) Reduction in period of ineligibility. 

A person whose certification is denied 

or revoked shall be eligible for grant or 

reinstatement of the certificate prior to 

the expiration of the initial period of 

ineligibility only if: 

(1) The denial or revocation of 

certification in accordance with the 

provisions of paragraph (a)(3) of this 

section is for a period of one year or 

less; 

(2) Certification is denied or revoked 

for reasons other than noncompliance 

with § 219.101 of this chapter; 

(3) The person is evaluated by a 

railroad officer and determined to have 

received adequate remedial training; 

(4) The person successfully completes 

any mandatory program of training or 

retraining, if that is determined to be 

necessary by the railroad prior to return 

to service; and 

(5) At least one half the pertinent 

period of ineligibility specified in 

paragraph (a)(3) of this section has 

elapsed. 

§ 242.407 Process for revoking 

certification. 

(a) Except as provided for in 

§ 242.115(g), a railroad that certifies or 

recertifies a person as a conductor and, 

during the period that certification is 

valid, acquires reliable information 

regarding violation(s) of § 242.403(e) or 

§ 242.115(e) of this chapter shall revoke 

the person’s conductor certificate. 

(b) Pending a revocation 

determination under this section, the 

railroad shall: 

(1) Upon receipt of reliable 

information regarding violation(s) of 

§ 242.403(e) or § 242.115(e) of this 

chapter, immediately suspend the 

person’s certificate; 

(2) Prior to or upon suspending the 

person’s certificate, provide notice of 

the reason for the suspension, the 

pending revocation, and an opportunity 

for a hearing before a presiding officer 

other than the investigating officer. The 

notice may initially be given either 

orally or in writing. If given orally, it 

must be confirmed in writing and the 

written confirmation must be made 

promptly. Written confirmation which 

conforms to the notification provisions 

of an applicable collective bargaining 

agreement shall be deemed to satisfy the 

written confirmation requirements of 

this section. In the absence of an 

applicable collective bargaining 

agreement provision, the written 

confirmation must be made within 96 

hours. 

(3) Convene the hearing within the 

deadline prescribed by either paragraph 

(c)(1) of this section or the applicable 

collective bargaining agreement as 

permitted under paragraph (d) of this 

section; 

(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; 

(6) When appropriate, impose the 

pertinent period of revocation provided 

for in § 242.405 or § 242.115; and 

(7) Retain the record of the hearing for 

3 years after the date the decision is 

rendered. 

(c) Except as provided for in 

paragraphs (d), (f), (i) and (j) of this 

section, a hearing required by this 

section shall be conducted in 

accordance with the following 

procedures: 

(1) The hearing shall be convened 

within 10 days of the date the certificate 

is suspended unless the conductor 

requests or consents to delay in the start 

of the hearing. 

(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. 

(3) The presiding officer will exercise 

the powers necessary to regulate the 

conduct of the hearing for the purpose 

of achieving a prompt and fair 

determination of all material issues in 

controversy. 

(4) The presiding officer shall 

convene and preside over the hearing. 

(5) Testimony by witnesses at the 

hearing shall be recorded verbatim. 

(6) All relevant and probative 

evidence shall be received unless the 

presiding officer determines the 

evidence to be unduly repetitive or so 

extensive and lacking in relevancy that 

its admission would impair the prompt, 

orderly, and fair resolution of the 

proceeding. 

(7) The presiding officer may: 

(i) Adopt any needed procedures for 

the submission of evidence in written 

form; 

(ii) Examine witnesses at the hearing; 

(iii) Convene, recess, adjourn or 

otherwise regulate the course of the 

hearing; and 

(iv) Take any other action authorized 

by or consistent with the provisions of 

this part and permitted by law that may 

expedite the hearing or aid in the 

disposition of the proceeding. 

(8) Parties may appear and be heard 

on their own behalf or through 

designated representatives. Parties may 

offer relevant evidence including 

testimony and may conduct such 

examination of witnesses as may be 

required for a full disclosure of the 

relevant facts. 

(9) The record in the proceeding shall 

be closed at 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. 

(10) No later than 10 days after the 

close of the record, a railroad official, 

other than the investigating officer, shall 

prepare and sign a written decision in 

the proceeding. 

(11) The decision shall: 


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(i) Contain the findings of fact as well 

as the basis therefor, concerning all 

material issues of fact presented on the 

record; and 

(ii) Be served on the employee. 

(12) The railroad shall have the 

burden of proving that the conductor’s 

conduct was not in compliance with the 

applicable railroad operating rule or 

practice or part 219 of this chapter. 

(d) A hearing required by this section 

which is conducted in a manner that 

conforms procedurally to the applicable 

collective bargaining agreement shall be 

deemed to satisfy the procedural 

requirements of this section. 

(e) A hearing required under this 

section may be consolidated with any 

disciplinary or other hearing arising 

from the same facts, but in all instances 

a railroad official, other than the 

investigating officer, shall make separate 

findings as to the revocation required 

under this section. 

(f) A person may waive the right to 

the hearing provided under this section. 

That waiver shall: 

(1) Be made in writing; 

(2) Reflect the fact that the person has 

knowledge and understanding of these 

rights and voluntarily surrenders them; 

and 

(3) Be signed by the person making 

the waiver. 

(g) A railroad that has relied on the 

certification by another railroad under 

the provisions of § 242.127 or § 242.301, 

shall revoke its certification if, during 

the period that certification is valid, the 

railroad acquires information which 

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. 

(h) The period of certificate 

suspension prior to the commencement 

of a hearing required under this section 

shall be credited towards satisfying any 

applicable revocation period imposed in 

accordance with the provisions of 

§ 242.405. 

(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 conductor’s 

ability to comply with the railroad 

operating rule or practice which 

constitutes a violation under 

§ 242.403(e)(1) through (e)(11); 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 § 242.403(e)(1) through 

(e)(11) was of a minimal nature and had 

no direct or potential effect on rail 

safety. 

(j) The railroad shall place the 

relevant information in the records 

maintained in compliance with 

§ 242.215 for Class I (including the 

National Railroad Passenger 

Corporation) and Class II railroads, and 

§ 242.203 for Class III railroads if 

sufficient evidence meeting the criteria 

provided in paragraph (i) of this section, 

becomes available either: 

(1) Prior to a railroad’s action to 

suspend the certificate as provided for 

in paragraph (b)(1) of this section; or 

(2) Prior to the convening of the 

hearing provided for in this section; 

(k) Provided that the railroad makes a 

good faith determination after a 

reasonable inquiry that the course of 

conduct provided for in paragraph (i) of 

this section is appropriate, the railroad 

which does not suspend a conductor’s 

certification, as provided for in 

paragraph (b) of this section, is not in 

violation of paragraph (a) of this section. 

Subpart F—Dispute Resolution 

Procedures 

§ 242.501 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 

regulation 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. 

§ 242.503 Petition requirements. 

(a) To obtain review of a railroad’s 

decision to deny certification, deny 

recertification, or revoke certification, a 

person shall file a petition for review 

that complies with this section. 

(b) Each petition shall: 

(1) Be in writing; 

(2) Be submitted in triplicate to the 

Docket Clerk, Office of Chief Counsel, 

Federal Railroad Administration, 1200 

New Jersey Avenue, SE., Washington, 

DC 20590; 

(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 e-mail 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; and 

(6) Be filed in a timely manner. 

(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 the request for extension 

is filed before the expiration of the 

period provided in this paragraph; or 

(2) Provided that the failure to timely 

file 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 § 242.511. 

§ 242.505 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 render a 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 provide the 

railroad with a copy of the petition. 

(c) Within 60 days from the date of 

the notification provided in paragraph 


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(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; 

(2) Serve copy of the information 

being submitted to FRA to the petitioner 

and petitioner’s representative, if any; 

and 

(3) Submit the information in 

triplicate to the Docket Clerk, Federal 

Railroad Administration, 1200 New 

Jersey Avenue, SE., Washington, DC 

20590. 

(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) Standard of review for factual 

issues. 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) Standard of review for procedural 

issues. When considering procedural 

issues, the Board will determine 

whether substantial harm was caused 

the petitioner by virtue of 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) Standard of review for legal issues. 

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 regulation (i.e., based on an 

incorrect determination that the person 

failed to meet the certification 

requirements of this regulation) 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. 

§ 242.507 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 § 242.509. 

(b) To exercise that right, the 

adversely affected party shall, within 20 

days of service of the Board’s decision 

on that party, file a written request 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 Web site at 

http://www.regulations.gov. 

(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. 

(e) Upon receipt of a hearing request 

complying with paragraph (d) of this 

section, FRA shall arrange for the 

appointment of a presiding officer who 

shall schedule the hearing for the 

earliest practicable date. 

§ 242.509 Hearings. 

(a) An administrative hearing for a 

conductor certification petition shall be 

conducted by a presiding officer, who 

can be any person authorized by the 

Administrator, including an 

administrative law judge. 

(b) The presiding officer may exercise 

the powers of the Administrator to 

regulate the conduct of the hearing for 

the purpose of achieving a prompt and 

fair determination of all material issues 

in controversy. 

(c) The presiding officer shall convene 

and preside over the hearing. The 

hearing shall be a de novo hearing to 

find the relevant facts and determine the 

correct application of this part to those 

facts. The presiding officer may 

determine that there is no genuine issue 

covering some or all material facts and 

limit evidentiary proceedings to any 

issues of material fact as to which there 

is a genuine dispute. 

(d) The presiding officer may 

authorize discovery of the types and 

quantities which in the presiding 

officer’s discretion will contribute to a 

fair hearing without unduly burdening 

the parties. The presiding officer may 

impose appropriate non-monetary 

sanctions, including limitations as to 

the presentation of evidence and issues, 

for any party’s willful failure or refusal 

to comply with approved discovery 

requests. 

(e) Every petition, motion, response, 

or other authorized or required 

document shall be signed by the party 

filing the same, or by a duly authorized 

officer or representative of record, or by 

any other person. If signed by such 

other person, the reason therefor must 

be stated and the power of attorney or 

other authority authorizing such other 

person to subscribe the document must 

be filed with the document. The 

signature of the person subscribing any 

document constitutes a certification that 

he or she has read the document; that 

to the best of his or her knowledge, 

information and belief every statement 

contained in the document is true and 

no such statements are misleading; and 

that it is not interposed for delay or to 

be vexatious. 

(f) After the request for a hearing is 

filed, all documents filed or served 

upon one party must be served upon all 

parties. Each party may designate a 

person upon whom service is to be 

made when not specified by law, 

regulation, or directive of the presiding 

officer. If a party does not designate a 

person upon whom service is to be 

made, then service may be made upon 

any person having subscribed to a 

submission of the party being served, 

unless otherwise specified by law, 

regulation, or directive of the presiding 

officer. Proof of service shall accompany 

all documents when they are tendered 

for filing. 

(g) If any document initiating, filed, or 

served in, a proceeding is not in 

substantial compliance with the 

applicable law, regulation, or directive 

of the presiding officer, the presiding 

officer may strike or dismiss all or part 

of such document, or require its 

amendment. 


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(h) Any party to a proceeding may 

appear and be heard in person or by an 

authorized representative. 

(i) Any person testifying at a hearing 

or deposition may be accompanied, 

represented, and advised by an attorney 

or other representative, and may be 

examined by that person. 

(j) Any party may request to 

consolidate or separate the hearing of 

two or more petitions by motion to the 

presiding officer, when they arise from 

the same or similar facts or when the 

matters are for any reason deemed more 

efficiently heard together. 

(k) Except as provided in § 242.507(c) 

and paragraph (u)(4) of this section, 

whenever a party has the right or is 

required to take action within a period 

prescribed by this part, or by law, 

regulation, or directive of the presiding 

officer, the presiding officer may extend 

such period, with or without notice, for 

good cause, provided another party is 

not substantially prejudiced by such 

extension. A request to extend a period 

which has already expired may be 

denied as untimely. 

(l) An application to the presiding 

officer for an order or ruling not 

otherwise specifically provided for in 

this part shall be by motion. The motion 

shall be filed with the presiding officer 

and, if written, served upon all parties. 

All motions, unless made during the 

hearing, shall be written. Motions made 

during hearings may be made orally on 

the record, except that the presiding 

officer may direct that any oral motion 

be reduced to writing. Any motion shall 

state with particularity the grounds 

therefor and the relief or order sought, 

and shall be accompanied by any 

affidavits or other evidence desired to 

be relied upon which is not already part 

of the record. Any matter submitted in 

response to a written motion must be 

filed and served within fourteen (14) 

days of the motion, or within such other 

period as directed by the presiding 

officer. 

(m) Testimony by witnesses at the 

hearing shall be given under oath and 

the hearing shall be recorded verbatim. 

The presiding officer shall give the 

parties to the proceeding adequate 

opportunity during the course of the 

hearing for the presentation of 

arguments in support of or in opposition 

to motions, and objections and 

exceptions to rulings of the presiding 

officer. The presiding officer may permit 

oral argument on any issues for which 

the presiding officer deems it 

appropriate and beneficial. Any 

evidence or argument received or 

proffered orally shall be transcribed and 

made a part of the record. Any physical 

evidence or written argument received 

or proffered shall be made a part of the 

record, except that the presiding officer 

may authorize the substitution of 

copies, photographs, or descriptions, 

when deemed to be appropriate. 

(n) The presiding officer shall employ 

the Federal Rules of Evidence for United 

States Courts and Magistrates as general 

guidelines for the introduction of 

evidence. Notwithstanding paragraph 

(m) of this section, all relevant and 

probative evidence shall be received 

unless the presiding officer determines 

the evidence to be unduly repetitive or 

so extensive and lacking in relevancy 

that its admission would impair the 

prompt, orderly, and fair resolution of 

the proceeding. 

(o) The presiding officer may: 

(1) Administer oaths and affirmations; 

(2) Issue subpoenas as provided for in 

§ 209.7 of this chapter; 

(3) Adopt any needed procedures for 

the submission of evidence in written 

form; 

(4) Examine witnesses at the hearing; 

(5) Convene, recess, adjourn or 

otherwise regulate the course of the 

hearing; and 

(6) Take any other action authorized 

by or consistent with the provisions of 

this part and permitted by law that may 

expedite the hearing or aid in the 

disposition of the proceeding. 

(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. 

The party who is not the hearing 

petitioner will be a respondent. 

(r) FRA will be a mandatory party to 

the administrative hearing. At the start 

of each proceeding, FRA will be a 

respondent. 

(s) The record in the proceeding shall 

be closed at the conclusion of the 

evidentiary hearing unless the presiding 

officer allows additional time for the 

submission of additional evidence. In 

such instances the record shall be left 

open for such time as the presiding 

officer grants for that purpose. 

(t) At the close of the record, the 

presiding officer shall prepare a written 

decision in the proceeding. 

(u) The decision: 

(1) Shall contain the findings of fact 

and conclusions of law, as well as the 

basis for each concerning all material 

issues of fact or law presented on the 

record; 

(2) Shall be served on the hearing 

petitioner and all other parties to the 

proceeding; 

(3) Shall not become final for 35 days 

after issuance; 

(4) Constitutes final agency action 

unless an aggrieved party files an appeal 

within 35 days after issuance; and 

(5) Is not precedential. 

§ 242.511 Appeals. 

(a) Any party aggrieved by the 

presiding officer’s decision may file an 

appeal. The appeal must be filed within 

35 days of issuance of the decision with 

the Federal Railroad Administrator, 

1200 New Jersey Avenue, SE., 

Washington, DC 20590 and 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. 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. 

(b) A party may file a reply to the 

appeal within 25 days of service of the 

appeal. The reply shall be supported by 

reference to applicable laws and 

regulations and with specific reference 

to the record, if the party relies on 

evidence contained in the record. 

(c) The Administrator may extend the 

period for filing an appeal or a response 

for good cause shown, provided that the 

written request for extension is served 

before expiration of the applicable 

period provided in this section. 

(d) The Administrator has sole 

discretion to permit oral argument on 

the appeal. On the Administrator’s own 

initiative or written motion by any 

party, the Administrator may grant the 


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parties an opportunity for oral 

argument. 

(e) The Administrator may remand, 

vacate, affirm, reverse, alter or modify 

the decision of the presiding officer and 

the Administrator’s decision constitutes 

final agency action except where the 

terms of the Administrator’s decision 

(for example, remanding a case to the 

presiding officer) show that the parties’ 

administrative remedies have not been 

exhausted. 

(f) An appeal from an Operating Crew 

Review Board decision pursuant to 

§ 242.503(d) must be filed within 35 

days of issuance of the decision with the 

Federal Railroad Administrator, 1200 

New Jersey Avenue, SE., Washington, 

DC 20590 and 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. 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. 

APPENDIX A TO PART 242— 

SCHEDULE OF CIVIL PENALTIES 

A penalty may be assessed against an 

individual only for a willful violation. The 

Administrator reserves the right to assess a 

penalty of up to $100,000 for any violation 

where circumstances warrant. See 49 CFR 

part 209, Appendix A. 

(Penalty Schedule to be included in 

Final Rule). 

APPENDIX B TO PART 242— 

PROCEDURES FOR SUBMISSION AND 

APPROVAL OF CONDUCTOR 

CERTIFICATION 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 conductor in accordance 

with the requirements of this part. It also 

contains guidance on how FRA will exercise 

its review and approval responsibilities. 

Submission by a Railroad 

As provided for in § 242.101, each railroad 

must have a program for determining the 

certification of each person it permits or 

requires to perform as a conductor or as a 

passenger conductor. Each railroad must 

submit its individual program to FRA for 

approval as provided for in § 242.103. 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 should be submitted in writing on 

standard sized paper (81⁄2 x 11) and can be 

in letter or narrative format. The railroad’s 

submission shall be sent to the Associate 

Administrator for Railroad Safety/Chief 

Safety Officer, FRA. The mailing address for 

FRA is 1200 New Jersey Avenue, SE., 

Washington, DC 20590. Simultaneous with 

its filing with the FRA, each railroad must 

serve a copy of its submission on the 

president of each labor organization that 

represents the railroad’s employees subject to 

this part. 

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 mailing address 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 

to merely 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 mailing address) and a 

statement electing either to accept 

responsibility for educating previously 

untrained persons to be certified conductors 

or recertify only conductors previously 

certified by other railroads. See § 242.103(b). 

If a railroad elects not to conduct the 

training of persons not previously trained to 

be a conductor, the railroad is not obligated 

to submit information on how the previously 

untrained will be trained. A railroad that 

makes this election will be limited to 

recertifying persons initially certified by 

another railroad. A railroad that initially 

elects not to accept responsibility for training 

its own conductors can rescind its initial 

election by obtaining FRA approval of a 

modification of its program. See § 242.103(f). 

If a railroad elects to accept responsibility 

for training persons not previously trained to 

be conductors, the railroad is obligated to 

submit information on how such persons will 

be trained but has no duty to actually 

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 types of service the 

railroad will employ. See § 242.107. 

Section 2 of the Submission: Training 

Persons Previously Certified 

The second section of the request must 

contain information concerning the railroad’s 

program for training previously certified 

conductors. As provided for in § 242.119(o) 

each railroad must have a program for the 

ongoing education of its conductors to assure 

that they maintain the necessary knowledge 

concerning operating rules and practices, 

familiarity with physical characteristics, and 

relevant Federal safety rules. 

Section 242.119(o) 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 conductors remain knowledgeable 

concerning the safe discharge of their 

responsibilities so as to comply with the 

performance standard set forth in 

§ 242.119(o). 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 training 

environment employed (for example, and use 

of classroom, use of computer based training, 

use of film or slide presentations, use of onjob-training) and which aspects of the 

program are voluntary or mandatory. 

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, conductors need to have their 

fundamental knowledge of operating rules 

and procedures 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 

conducting the training. A matter of 

particular concern to FRA is how each 

railroad acts to assure that conductors remain 

knowledgeable about the territory over which 

a conductor is authorized to perform but 

from which the conductor 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 

conductors are authorized to work over. 

Section 3 of the Submission: Testing and 

Evaluating Persons Previously Certified 

The third section of the request must 

contain information concerning the railroad’s 

program for testing and evaluating previously 

certified conductors. As provided for in 

§ 242.121, each railroad must have a program 

for the ongoing testing and evaluating of its 

conductors to assure that they have the 

necessary knowledge and skills concerning 

operating rules and practices, familiarity 

with physical characteristics of the territory, 

and relevant Federal safety rules. Similarly, 

each railroad must have a program for 

ongoing testing and evaluating to assure that 

its conductors have the necessary vision and 

hearing acuity as provided for in § 242.117. 


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Section 242.121 requires 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 performance as a 

conductor. Section 242.121 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) Safety and operating rules; (ii) 

timetable instructions; (iii) physical 

characteristics of the territory; and (iv) 

compliance with all applicable Federal 

regulations. The test must accurately measure 

the person’s knowledge of all of these areas. 

Section 242.121 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 

assure that its conductors will demonstrate 

their knowledge concerning the safe 

discharge of their responsibilities so as to 

comply with the performance standard set 

forth in § 242.121. 

Section 242.117 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 safely perform as a 

conductor. The railroad must describe in this 

section how it will assure that its medical 

examiner has sufficient information 

concerning the railroad’s operations to 

effectively form appropriate conclusions 

about the ability of a particular individual to 

safely perform as a conductor. 

Section 4 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 conductors, 

the fourth section of the request must contain 

information concerning the railroad’s 

program for educating, testing, and 

evaluating persons not previously trained as 

conductors. As provided for in § 242.119(d), 

a railroad that is issuing an initial 

certification to a person to be a conductor 

must have a program for the training, testing, 

and evaluating of its conductors to assure 

that they acquire the necessary knowledge 

and skills concerning operating rules and 

practices, familiarity with physical 

characteristics of the territory, and relevant 

Federal safety rules. 

Section 242.119 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 assure that its 

conductors will acquire sufficient knowledge 

and skill and demonstrate their knowledge 

and skills concerning the safe discharge of 

their 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 

conductors may authorize another railroad or 

a non-railroad entity to perform the actual 

training effort. The authorizing railroad may 

submit a training program developed by that 

authorized trainer but the authorizing 

railroad remains responsible for assuring 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 5 of the Submission: Monitoring 

Operational Performance by Certified 

Conductors 

The fifth section of the request must 

contain information concerning the railroad’s 

program for monitoring the operation of its 

certified conductors. As provided for in 

§ 242.123, each railroad must have a program 

for the ongoing monitoring of its conductors 

to assure that they perform in conformity 

with the railroad’s operating rules and 

practices and relevant Federal safety rules. 

Section 6 of the Submission: Procedures for 

Routine Administration of the Conductor 

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 

conductors. At a minimum this section needs 

to address the procedural aspects of the rule’s 

provisions identified in the following 

paragraph. 

Section 242.109 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 242.111, 242.115 and 242.403 

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 242.109, 

242.201, and 242.401 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 will or 

will be not certified; and how it will 

communicate adverse decisions. 

Documentation of the factual basis the 

railroad relied on in making determinations 

under §§ 242.109, 242.117, 242.119 and 

242.121 is required, but these sections permit 

the railroad to select the procedures it will 

employ to accomplish compliance with these 

provisions. Sections 242.125 and 242.127 

permit reliance on certification/qualification 

determinations made by other entities and 

permit a railroad latitude in selecting the 

procedures it will employ to assure 

compliance with these provisions. Similarly, 

§ 242.301 permits the use of railroad selected 

procedures to meet the requirements for 

certification of conductors performing service 

in joint operations territory. Sections 242.211 

and 242.407 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. 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 § 242.103. 

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 identified 

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 conductors who have 

the knowledge and ability to safely perform 

as conductors. 

APPENDIX C TO PART 242— 

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 §§ 242.109 and 242.111 of 

this part. 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 

conductor. 

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. 


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69218 Federal Register / Vol. 75, No. 217 / Wednesday, November 10, 2010 / Proposed Rules 

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 conductors 

to request that their current state drivers 

licensing agency or agencies furnish such 

data directly to the railroad considering 

certifying them as a conductor. 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. 

Once the railroad has obtained the motor 

vehicle driving record(s), the railroad must 

afford the prospective conductor an 

opportunity to review that record and 

respond in writing to its contents in 

accordance with the provisions of § 242.401. 

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. 

APPENDIX D TO PART 242—MEDICAL 

STANDARDS GUIDELINES 

(1) The purpose of this appendix is to 

provide greater guidance on the procedures 

that should be employed in administering the 

vision and hearing requirements of § 242.117. 

(2) In determining whether a person has 

the visual acuity that meets or exceeds the 

requirements of this part, the following 

testing protocols are deemed acceptable 

testing methods for determining whether a 

person has the ability to recognize and 

distinguish among the colors used as signals 

in the railroad industry. The acceptable test 

methods are shown in the left hand column 

and the criteria that should be employed to 

determine whether a person has failed the 

particular testing protocol are shown in the 

right hand column. 

Accepted tests Failure criteria 

Pseudoisochromatic Plate Tests 

American Optical Company 1965 ............................................................ 5 or more errors on plates 1–15. 

AOC—Hardy-Rand-Ritter plates-second edition ...................................... Any error on plates 1–6 (plates 1–4 are for demonstration—test plate 1 

is actually plate 5 in book). 

Dvorine—Second edition .......................................................................... 3 or more errors on plates 1–15. 

Ishihara (14 plate) .................................................................................... 2 or more errors on plates 1–11. 

Ishihara (16 plate) .................................................................................... 2 or more errors on plates 1–8. 

Ishihara (24 plate) .................................................................................... 3 or more errors on plates 1–15. 

Ishihara (38 plate) .................................................................................... 4 or more errors on plates 1–21. 

Richmond Plates 1983 ............................................................................. 5 or more errors on plates 1–15. 

Multifunction Vision Tester 

Keystone Orthoscope ............................................................................... Any error. 

OPTEC 2000 ............................................................................................ Any error. 

Titmus Vision Tester ................................................................................. Any error. 

Titmus II Vision Tester ............................................................................. Any error. 

(3) In administering any of these protocols, 

the person conducting the examination 

should be aware that railroad signals do not 

always occur in the same sequence and that 

‘‘yellow signals’’ do not always appear to be 

the same. It is not acceptable to use ‘‘yarn’’ 

or other materials to conduct a simple test to 

determine whether the certification 

candidate has the requisite vision. No person 

shall be allowed to wear chromatic lenses 

during an initial test of the person’s color 

vision; the initial test is one conducted in 

accordance with one of the accepted tests in 

the chart and § 242.117(h)(3). 

(4) An examinee who fails to meet the 

criteria in the chart, may be further evaluated 

as determined by the railroad’s medical 

examiner. Ophthalmologic referral, field 

testing, or other practical color testing may be 

utilized depending on the experience of the 

examinee. The railroad’s medical examiner 

will review all pertinent information and, 

under some circumstances, may restrict an 

examinee who does not meet the criteria for 

serving as a conductor at night, during 

adverse weather conditions or under other 

circumstances. The intent of § 242.117(j) is 

not to provide an examinee with the right to 

make an infinite number of requests for 

further evaluation, but to provide an 

examinee with at least one opportunity to 

prove that a hearing or vision test failure 

does not mean the examinee cannot safely 

perform as a conductor. Appropriate further 

medical evaluation could include providing 

another approved scientific screening test or 

a field test. All railroads should retain the 

discretion to limit the number of retests that 

an examinee can request but any cap placed 

on the number of retests should not limit 

retesting when changed circumstances would 

make such retesting appropriate. Changed 

circumstances would most likely occur if the 

examinee’s medical condition has improved 

in some way or if technology has advanced 

to the extent that it arguably could 

compensate for a hearing or vision 

deficiency. 

(5) Conductors who wear contact lenses 

should have good tolerance to the lenses and 

should be instructed to have a pair of 

corrective glasses available when on duty. 


jlentini on DSKJ8SOYB1PROD with PROPOSALS2
Federal Register / Vol. 75, No. 217 / Wednesday, November 10, 2010 / Proposed Rules 69219 

Issued in Washington, DC, on October 8, 

2010. 

Karen J. Rae, 

Deputy Administrator. 

[FR Doc. 2010–27642 Filed 11–9–10; 8:45 am] 

BILLING CODE 4910–06–P 


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