Conductor Certification, 69166-69219 [2010-27642]

Agencies

• Federal Railroad Administration
• DEPARTMENT OF TRANSPORTATION

[Federal Register Volume 75, Number 217 (Wednesday, November 10, 2010)]
[Proposed Rules]
[Pages 69166-69219]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2010-27642]



[[Page 69165]]

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Part II





Department of Transportation





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Federal Railroad Administration



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49 CFR Part 242



Conductor Certification; Proposed Rule

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

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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).

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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, 
https://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 https://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 https://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 Sec.  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 
safety-related 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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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\
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    \1\ Paragraph (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.
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    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 Sec.  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.
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    \2\ This 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.
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    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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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 Sec.  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.
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    \3\ The reference to Sec.  242.213 in Sec.  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.
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    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 Sec. Sec.  
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\
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    \4\ The 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.
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    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 Sec.  242.407 and denial of 
certification pursuant to Sec.  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 Sec.  
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 Sec.  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 railroad-
identified unique operating conditions.
    Pursuant to proposed Sec.  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 Sec.  
242.301(d) describes the conditions under which a railroad should 
provide a conductor with a job aid.

[[Page 69170]]

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-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 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 Sec.  
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 Sec.  240.7 of this chapter, 
certified by a railroad to operate remote control locomotives pursuant 
to Sec.  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 Sec.  219.103 
of this chapter or (2) has failed to successfully complete primary 
treatment or successfully participate in

[[Page 69171]]

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).
---------------------------------------------------------------------------

    \5\ The 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.''
---------------------------------------------------------------------------

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 Sec.  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

[[Page 69172]]

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 
Sec.  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.
---------------------------------------------------------------------------

    \6\ FRA 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.
---------------------------------------------------------------------------

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.
---------------------------------------------------------------------------

    \7\ FRA 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.
---------------------------------------------------------------------------

    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

[[Page 69173]]

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 Sec.  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\
---------------------------------------------------------------------------

    \8\ As 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.
---------------------------------------------------------------------------

    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 Sec.  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 Sec.  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

[[Page 69174]]

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 Sec.  242.115(d)(3). Nor 
would it prevent the railroad from referring the person to a SAP 
pursuant to Sec.  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 
Sec.  242.111 address certain situations in which inquiry must be made 
into the possibility that the individual has an