Conductor Certification, 69802-69867 [2011-28175]

Agencies

• Federal Railroad Administration
• DEPARTMENT OF TRANSPORTATION

[Federal Register Volume 76, Number 217 (Wednesday, November 9, 2011)]
[Rules and Regulations]
[Pages 69802-69867]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2011-28175]



[[Page 69801]]

Vol. 76

Wednesday,

No. 217

November 9, 2011

Part II





Department of Transportation





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Federal Railroad Administration





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49 CFR Part 242





Conductor Certification; Final Rule

Federal Register / Vol. 76 , No. 217 / Wednesday, November 9, 2011 / 
Rules and Regulations

[[Page 69802]]


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DEPARTMENT OF TRANSPORTATION

Federal Railroad Administration

49 CFR Part 242

[Docket No. FRA-2009-0035; Notice No. 2]
2130-AC08


Conductor Certification

AGENCY: Federal Railroad Administration (FRA), Department of 
Transportation (DOT).

ACTION: Final rule.

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SUMMARY: FRA is prescribing regulations for certification of 
conductors, as required by the Rail Safety Improvement Act of 2008. 
This rule requires railroads to have a formal program for certifying 
conductors. As part of that program, railroads are 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 issuing 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 rule 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: Effective Date: The rule is effective January 1, 2012.

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, 
RRS-1, Mail Stop 25, 1200 New Jersey Avenue SE., Washington, DC 20590 
(telephone: (202) 493-6350); Joseph D. Riley, Railroad Safety 
Specialist (OP)-Operating Crew Certification, U.S. Department of 
Transportation, Federal Railroad Administration, Mail Stop-25, Room 
W38-323, 1200 New Jersey Avenue SE., Washington, DC 20590 (telephone: 
(202) 493-6318); 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 Sec.  402 of the Rail Safety Improvement Act of 2008, 
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 (AAPRCO);
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);
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

[[Page 69803]]

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 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 effectively addressed concerns with regard 
to the certification of conductors. FRA 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.
    Based on the recommendations of the RSAC, FRA published a Notice of 
Proposed Rulemaking (NPRM) in the Federal Register on November 10, 
2010. See 75 FR 69166. In the NPRM, FRA solicited public comment on the 
proposed rule and notified the public of its option to request a public 
hearing on the NPRM. In addition, FRA also invited comment on a number 
of specific issues related to the proposed requirements for the purpose 
of developing the final rule.
    In response to the NPRM, FRA received written comments from AAR, 
Amsted Rail, Amtrak, APTA, ASLRRA, BLET, NYMTA, SEPTA, and UTU.\1\ FRA 
then met with the Working Group on May 12, 2011 to discuss the 
comments. Minutes of that meeting are part of the docket in this 
proceeding and are available for public inspection.
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    \1\ BLET and UTU submitted joint comments. Accordingly, those 
comments will be referred to as BLET/UTU comments.
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    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

[[Page 69804]]

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 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. 
Therefore, FRA expects the Working Group to continue meeting after 
publication of this final rule and to provide recommendations that 
address 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 potential 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 and Plans 
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 rule may be necessary to conform to the 
final requirements of the training regulation.

IV. General Summary of the Comments

    As noted above, FRA received written comments on the NPRM from 
various interested parties. Following the submission of those comments, 
FRA convened the Working Group to consider and discuss the comments. As 
a result, certain of those comments have been superseded by changes 
made in the rule text from the NPRM to this final rule, and they should 
not necessarily be understood to reflect the positions of the 
commenters with respect to the requirements of the final rule. FRA is 
summarizing the comments received and is responding to them in this 
document so that FRA's positions are clearly understood.

A. Definitions

1. Substance Abuse Professional (SAP)
    FRA solicited comments whether a SAP should owe a duty to both the 
employee being evaluated and the railroad. FRA noted that in the NPRM, 
the duty owed by a SAP did not parallel the duty owed by a ``medical 
examiner.'' BLET/UTU commented that a SAP should owe a duty to both the 
employee and the railroad and that the definition should be revised 
accordingly.
    After reviewing the comment regarding SAPs and the comments 
regarding the drug and alcohol rules proposed in the NPRM, FRA finds 
that the definition and use of the term ``SAP'' in the NPRM appears to 
be causing confusion within the industry and may interfere with DOT's 
drug and alcohol rules contained in parts 40 and 219. Under DOT's 
alcohol and drug rules, a SAP is only used when referencing the 
counseling requirements that follow a Federal drug or alcohol violation 
(e.g., a part 219 violation). In the NPRM, however, a SAP is required 
both for evaluations stemming from Federal violations and evaluations 
stemming from incidents that are not the result of a Federal violation 
(e.g., motor vehicle alcohol or drug incidents indentified pursuant to 
Sec.  242.111). Moreover, the definition of SAP in the NPRM goes beyond 
the definition of the term in part 40, which does not reference duties 
owed by a SAP.
    To avoid interfering with the established rules and definitions 
contained in DOT's drug and alcohol regulations and to avoid confusion 
in the industry regarding what is required for Federal and non-Federal 
violations; FRA is making three changes to the regulation proposed in 
the NPRM. First, FRA is deleting the reference to a duty in the 
definition of SAP. Second, the term SAP in part 242 will only be used 
in connection with counseling requirements stemming from a Federal 
violation. For example, the term SAP will be used in Sec.  242.115(f) 
which discusses the follow-up that must occur after a part 219 
violation, but the term will not be used in Sec.  242.111 which 
concerns evaluations stemming from motor vehicle alcohol or drug 
incidents. Third, for those sections of part 242 which address drug and 
alcohol evaluation requirements not involving a Federal violation, the 
term SAP will be replaced with the term ``Drug and Alcohol Counselor'' 
(DAC).\2\ As used in the final rule, a DAC will be required to meet the 
exact same qualifications as a SAP. FRA believes these changes will 
avoid interfering with parts 40 and 219 while requiring the same 
qualification and credentialing requirements for persons evaluating 
substance abuse disorders as that proposed in the NPRM.
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    \2\ With respect to employee self-referrals under Sec.  
242.115(d), FRA acknowledges that the plain language of 49 CFR 
219.403(b)(4) requires a SAP recommendation for the return to 
service of an employee who has entered a voluntary self-referral 
program. However, FRA has indicated that either a SAP or an Employee 
Assistance Program (EAP) Counselor may perform the assessment and 
provide any necessary recommendations for the return to service of 
an employee who has entered a voluntary self-referral program. See 
Part 219 Alcohol/Drug Program Compliance Manual at https://www.fra.dot.gov/downloads/safety/ADComplianceMan.pdf. Moreover, 
Sec.  240.119(e) references an EAP in connection with voluntary 
self-referrals for locomotive engineers. Accordingly, in this final 
rule, the term DAC will be used with respect to employee self-
referrals rather than SAP.
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2. Medical Examiner
    BLET/UTU commented that the proposed definition of ``medical 
examiner'' should be amended to explicitly state that a medical 
examiner owes a duty to the employee and the railroad. FRA believes 
that this revision is unnecessary given the plain language of the 
regulation and the statement provided in the NPRM preamble addressing 
this issue. As FRA stated in the NPRM (75 FR 69166, 69170 (Nov. 10, 
2010)) and in the section-by-section analysis to this final rule:

    Under this rule, the medical examiner owes 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 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 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.
3. Job Aid
    SEPTA raised a concern with FRA's proposed definition of ``job 
aid.'' According to SEPTA, job aids provide information or guidance on 
how to perform a multitude of tasks, and railroads must have the 
flexibility to determine the scope of their use. SEPTA asserts that the 
specific reference to ``physical characteristics'' in the definition of 
``job aid'' is unduly prescriptive and creates the potential for 
misinterpretations and erroneous limitations on the use of such tools. 
Based on that reading, SEPTA expressed concern that the proposed 
definition could be considered a prohibition on railroads from using a 
job aid for

[[Page 69805]]

anything other than physical characteristics familiarization.
    FRA believes that the commenter is applying the term ``job aid,'' 
as used in part 242, beyond its intended scope. The term only applies 
to specific information that would be provided in specific situations 
(i.e., information regarding other than main track physical 
characteristics that is required to be provided only in situations 
where a conductor lacks territorial qualification on other than main 
track physical characteristics and it is not practicable for the 
conductor to be assisted by a conductor who meets the territorial 
qualification requirements). As defined, the term ``job aid'' would not 
prohibit additional information from being included in a job aid. 
Moreover, the use of the term ``job aid'' in this rule is not intended 
to prohibit the use of information or guidance which is not covered by 
the term's definition, regardless of whether the information or 
guidance is called a job aid. Because FRA does not believe that the 
proposed definition could be considered a prohibition on a railroad 
using a job aid for anything other than physical characteristics 
familiarization, FRA has adopted the proposed definition in this final 
rule.
4. On-the-Job Training
    SEPTA commented that the proposed definition of ``on-the-job 
training'' should be replaced by a definition of that term as developed 
by the RSAC Training Standards and Plans Working Group. At the Working 
Group meetings, FRA informed the Working Group that it would conform to 
the requirements developed by the Training Standards and Plans Working 
Group where appropriate. The proposed definition in the NPRM mirrored 
the definition developed by the Training Standards and Plans Working 
Group except the Training Standards definition included ``on-the-job 
training'' components in the regulatory text rather than in the 
definition as provided in the NPRM. In this final rule, FRA has adopted 
the more concise definition of ``on-the-job training'' developed by 
Training Standards and Plans Working Group and has moved the components 
to the regulatory text. See 49 CFR 242.119(d)(2).
5. Conductor
    SEPTA commented that the definition of ``conductor'' should be 
revised to read: ``Conductor means the crewmember in charge of a train 
or yard crew as defined in part 218 of this chapter, when the train or 
yard crew consists of more than one crew member.'' The definition of 
conductor was the subject of lengthy discussions during the Working 
Group meetings and the recommendation of the Working Group was adopted 
in the NPRM. The NPRM is focused on the functions that a person 
performs and not on the person's job title. SEPTA's definition, 
however, would diverge significantly from the approach taken in the 
NPRM. For example, by SEPTA's definition, a one-person remote control 
operator job would not have a conductor but a two-person job would. 
Thus, SEPTA's definition would mean that a remote control operator in a 
one-person job would not have engaged in a revocable event for any 49 
CFR part 218, subpart F violation. FRA believes that such a loophole in 
the regulation could lead to a less safe working environment for 
railroad employees.
    The definition of ``conductor'' is a fundamental element of the 
conductor certification regulation and FRA does not discern any safety-
related reason to modify it. Accordingly, FRA has adopted the 
definition, as proposed in the NPRM, in this final rule.
6. Ineligible and Ineligibility
    SEPTA commented that the use of the terms ``ineligible'' and 
``ineligibility'' should be limited to two situations: (1) Initial 
certification, where an individual is being considered for 
certification but may not qualify for certification at that time; and 
(2) recertification, where an individual is currently certified and due 
for recertification, but certain circumstances outside the scope of 
``prohibited conduct'' would prohibit recertification until the 
situation is resolved.
    As used in the NPRM, the terms ``ineligible'' and ``ineligibility'' 
are catch-all terms that not only encompass revocation and denial of 
certification (including the two situations highlighted by SEPTA) but 
also cover other situations. For example, a certified conductor may 
voluntarily refer him or herself for substance abuse counseling or 
treatment under 242.115(d). If the conductor refuses to complete a 
course of action recommended under the provisions of 49 CFR 219.403, 
that would not be an operating rule or procedure, or type of alcohol or 
drug violation that would require revocation (nor would it constitute a 
denial of certification situation). Rather the conductor would simply 
remain ``ineligible'' until a railroad determined that the person no 
longer had a substance abuse disorder, or the person re-entered a 
substance abuse program and it had been determined under the provisions 
of 49 CFR 219.403 that the person could safely return to duty under 
certain conditions. Thus, to capture all situations where a conductor 
may be legally disqualified from serving as a conductor, FRA believes 
it is useful to define and use the terms ``ineligible'' and 
``ineligibility.''
    BLET/UTU commented that the definition of ``ineligible'' and 
``ineligibility'' should be revised to state that a period of 
ineligibility ``shall begin only after a person has been afforded the 
applicable due process established by either Sec.  242.109(e), Sec.  
242.115(f) or Subpart E and shall end when the condition or conditions 
contained therein are met.'' FRA believes that BLET/UTU's proposal 
could have an adverse impact on railroad safety because the proposal 
could potentially allow a conductor, involved in a revocable event, to 
continue to serve as a conductor until the railroad concludes its 
hearing and issues a decision. Accordingly, FRA declines to implement 
the proposal and determines that the definition of ``ineligible'' and 
``ineligibility'' as proposed in the NPRM will be adopted in this final 
rule.
7. Qualified Instructor
    SEPTA commented that the definition of ``qualified instructor'' 
should be replaced with the definition of ``designated instructor'' 
developed by the RSAC Training Standards and Plans Working Group. In 
the alternative, SEPTA commented that: FRA needs to provide references 
validating the correlation of 12 months of experience with 
instructional competency, craft qualifications or subject matter 
expertise; and define or clarify whether the term ``train service'' is 
limited to certified conductors or whether the term also includes 
engineers, brakeman, assistant conductors, etc.
    The definition of ``designated instructor'' developed by the RSAC 
Training Standards and Plans Working Group refers to:

    A person designated as such by an employer, training 
organization, or learning institution, who has demonstrated, 
pursuant to the training program submitted by the employer, training 
organization, or learning institution, an adequate knowledge of the 
subject matter under instruction and, where applicable, has the 
necessary experience to effectively provide formal training.

    Although this final rule generally conforms to the provisions and 
terms developed by the Training Standards and Plans Working Group, FRA 
believes that it is appropriate to go beyond those requirements with 
respect to definition of a ``qualified instructor.'' The definitions of 
``qualified instructor'' in the NPRM and ``designated instructor''

[[Page 69806]]

developed by the Training Standards and Plans Working Group are similar 
to one another with two exceptions. Unlike ``designated instructor,'' 
the definition of ``qualified instructor'' requires the instructor to 
be a certified conductor, and in the case of a railroad that has 
designated employee representation, to be designated by the railroad 
with concurrence of the designated employee representative or have a 
minimum of 12 months service working as a train service employee. As 
stated in the NPRM, these additional requirements were 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). FRA 
believes that the requirements will help contribute to a better 
trained, and thus safer, workforce. Accordingly, FRA declines to modify 
the definition of ``qualified instructor'' to the definition of 
``designated instructor'' that was developed by the RSAC Training 
Standards and Plans Working Group.
    SEPTA's comment demonstrates the need to clarify the meaning of the 
term ``train service employee.'' For purposes of the definition of 
``qualified instructor'' in this final rule, FRA intends for the term 
``train service employee'' to include those persons that have 
traditionally been known as certified engineers, conductors, brakemen, 
yard helpers, and yardmen. The minimum of 12 months service working as 
a train service employee may be at any time during that person's 
career.

B. Waivers

    FRA solicited comments whether Sec.  242.9 of the NPRM dealing with 
waivers should be removed as unnecessary in light of the fact that 49 
CFR part 211 addresses the waiver process. While all three commenters 
on this section; SEPTA, AAR and BLET/UTU, agreed that the waiver 
process was covered by part 211, AAR and SEPTA indicated that they were 
indifferent to the elimination of Sec.  242.9. However, UTU/BLET 
suggested that it may be helpful to laypeople, who may not be aware of 
the contents of 49 CFR part 211, to retain the reference to the waiver 
process in Sec.  242.9. FRA agrees that Sec.  242.9 may be helpful to 
some people and therefore, has retained that section in this final 
rule.

C. Certification Program

    FRA solicited comments as to whether the amount of time proposed 
for implementing a conductor certification program (based on the dates 
provided) is appropriate. FRA did not receive any written comments on 
this issue but did receive feedback during the May 12, 2011 Working 
Group meeting regarding an extension of the effective date of the rule. 
However, FRA believes its proposed approach is reasonable and thus, the 
time periods proposed in the NPRM will be adopted in this final rule.

D. Schedule of Implementation

    AAR seeks confirmation that: ``Any employee can be designated as a 
conductor under the grandfather provision through June 1, 2012. Any 
employee designated as a conductor under the grandfather provision can 
serve as a conductor until June 1, 2015, without being tested and 
evaluated pursuant to subpart B and issued a certificate pursuant to 
section 242.207.'' AAR's summary of the designation provisions in Sec.  
242.105 is not entirely accurate. With respect to the time period for 
designating conductors, only persons authorized by a railroad to 
perform the duties of conductor between January 1, 2012 and June 1, 
2012 for Class I and II railroads and January 1, 2012 and October 1, 
2012 for Class III railroads, will be designated as conductors. With 
respect to the time period a person designated as a conductor may serve 
without being tested and evaluated, a person designated as a conductor 
pursuant to Sec.  242.105 may not serve as a conductor after June 1, 
2015 for Class I and II railroads and October 1, 2015 for Class III 
railroads without being tested and evaluated pursuant to Subpart B. 
However, after March 1, 2012, each railroad must issue a certificate 
that complies with Sec.  242.207 to each person that it designates. 
Moreover, subject to the provisions of Sec.  242.105(c)(1)-(3), a 
railroad may test and evaluate its designated conductors under subpart 
B before the 36-month designation period has expired. Railroads should 
note that they may not test and evaluate a designated conductor or 
conductor candidate under subpart B of this rule or revoke a 
conductor's certificate, including a designated conductor's 
certificate, until they have a certification program approved by the 
FRA pursuant to Sec.  242.103.

E. Prior Safety Conduct as a Motor Vehicle Operator

    SEPTA commented that additional language should be added to the 
regulation that specifies that a delay in receipt of the required 
driving records be due to acts or omissions by the driver licensing 
agency, and the 60-day extension is limited to those cases where delays 
are beyond the control of the individual. According to SEPTA, the 
absence of such language could force railroads to impose more severe 
time restrictions on the driving record information requirements, 
effectively penalizing the majority of employees for the sake of the 
few who attempt to beat the system and remain in a safety-critical 
environment while affected by an active substance abuse disorder. While 
FRA acknowledges SEPTA's concern, FRA has not seen any evidence that 
the submission of incorrect or misleading information to driver's 
license agencies is a common problem. If FRA finds such evidence, FRA 
will consider amending part 242 to address the issue. Interested 
parties should note that any person who knowingly and willfully 
falsifies a record or report required by part 242 may be subject to 
criminal penalties. See Sec.  242.11.
    BLET/UTU commented that they expect that, in the application of 
proposed Sec.  242.111(f) which addresses petitions to the waive motor 
vehicle check requirements, the Railroad Safety Board would require a 
notarized declaration, affidavit or some other form of sworn statement 
that no Sec.  242.111(n) incident has occurred within the preceding 36 
months as a condition precedent for granting the waiver petition. Based 
on that expectation, BLET/UTU suggested that such a requirement could 
be written directly into the rule, thereby relieving the Railroad 
Safety Board of the burden of having to handle these matters. FRA 
declines to adopt this suggestion as FRA cannot speak to what the 
Railroad Safety Board may require with respect to a waiver of certain 
requirements of Sec.  242.111. Moreover, it is beyond the scope of this 
rulemaking to remove a railroad's right to petition the Railroad Safety 
Board for a waiver of the FRA's regulatory requirements.
    AAR commented that a paragraph (o)(5) should be added to Sec.  
242.111 that would permit railroads to offer the assistance of a 
licensed counselor, social worker, or psychologist with expertise in 
the assessment of people with substance abuse disorders as an 
alternative to a SAP. According to AAR, the employee could use a SAP if 
the employee so desired, but the railroad

[[Page 69807]]

would be able to offer the employee a choice.
    Pursuant to Sec.  242.111 of the NPRM, railroad employees would be 
evaluated for substance abuse disorders by a person (i.e., a Drug and 
Alcohol Counselor who meets the credentialing and qualification 
requirements of a SAP) with more stringent credentialing and knowledge 
requirements than an EAP Counselor (currently used in part 240) or the 
type of person proposed by AAR. FRA believes that requiring more 
stringent credentialing and knowledge requirements will improve 
employee confidence in the evaluation process. Moreover, AAR's proposal 
could open up the possibility of harassment and intimidation of an 
employee who does not choose to be evaluated by a person who has less 
stringent credentialing and knowledge requirements than a SAP. 
Accordingly, FRA declines to adopt the paragraph proposed by AAR.
    AAR commented that it appears that FRA intends for DOT's 
requirement for direct observation of urine collection to apply to 
follow-up testing required as a result of motor vehicle alcohol and 
drug violations. AAR would agree with that position and suggested that 
FRA should make clear, both in this regulation and Part 240, that where 
follow-up testing is required by federal rules, all federal testing 
requirements, including direct observation, apply.
    It is not FRA's intention for DOT's requirement for direct 
observation of urine collection to apply to follow-up testing required 
as a result of motor vehicle alcohol and drug violations. A motor 
vehicle alcohol/drug incident requiring follow-up testing is not a 
Federal part 219 violation. As such, this incident does not meet the 
criteria justifying direct observation as provided by 49 CFR 40.67. 
Interested parties should note, however, that direct observation of 
urine collection for follow-up testing may be recommended by a Drug and 
Alcohol Counselor as necessary.

F. Substance Abuse

    BLET/UTU commented that the guidance provided in the NPRM 
concerning circumstances which may indicate the need for a SAP 
evaluation (i.e., ``declining job performance, extreme mood swings, 
[and] irregular attendance'') should be removed from the preamble. 
BLET/UTU assert that the circumstances identified are ambiguous and/or 
subjective concepts which could be exploited by the railroads. FRA 
acknowledges that there could be legitimate reasons why someone might 
exhibit some or all of the conditions identified in the preamble to the 
NPRM. However, those conditions, to the extent not immediately 
explicable, may also indicate a need for an evaluation. The purpose of 
the preamble language is not to require (and does not require) the 
railroads to order an evaluation anytime a listed condition is 
exhibited. Rather, FRA is simply providing guidance as to conditions 
that may, given the context, call for an evaluation under internal 
railroad policies. Moreover, FRA remains vigilant of harassment and 
intimidation and will take appropriate action where such conduct is 
discovered. Accordingly, the guidance in the NPRM has been carried over 
into the final rule.
    BLET/UTU commented that Sec.  242.115(e) of the NPRM contains 
several references to the certification consequence for an employee who 
``refuses or fails'' to provide a breath or body fluid sample. BLET/UTU 
disagrees that a failure to provide a breath or body fluid sample 
should trigger a revocation consequence. According to BLET/UTU, there 
are legitimate medical reasons why a person may be unable to provide a 
breath or body fluid sample citing 49 CFR 40, subpart I which provides 
the medical conditions under which an individual's failure to provide 
an sufficient sample is not deemed a refusal. In addition, BLET/UTU 
notes that subpart G of part 219 excuses a covered employee from 
compliance with the requirement to participate in random drug and 
alcohol testing ``in the case of a documented medical or family 
emergency.'' See 49 CFR 219.603 and 219.609. BLET/UTU understands the 
reference to part 219 in proposed section 242.115(e)(2) as 
incorporating the exceptions set forth in subpart G, and requests that 
the section-by-section analysis for the Final Rule clarify that their 
understanding is correct.
    FRA confirms that the exceptions in part 40, subpart I, and part 
219, subpart G, are included in this final rule's use of the word 
``refuses.'' In other words, there is no ``refusal'' if the failure to 
provide a sufficient sample was the result of a legitimate medical 
explanation under part 40 or if it was a random test and the employee 
had a documented medical or family emergency under part 219. Further, 
to clarify the issue, FRA has removed the words ``or fails'' in the 
final rule. Use of the word ``refuses'' rather than the phrase 
``refuses or fails'' more accurately tracks the provisions of parts 40 
and 219.

G. Vision and Hearing Acuity

    BLET/UTU commented that proposed Sec.  242.117(k) should be amended 
to address concerns that if it is discovered after an incident that a 
conductor's vision or hearing acuity had deteriorated below the 
standard set forth in the NPRM, that conductor, even though he or she 
may not have been aware of the deterioration, may be subjected to 
penalties or enforcement actions for failing to notify the railroad of 
the deterioration prior to the incident. FRA understands BLET/UTU's 
concern and believes it is obvious that a conductor could not have 
enforcement action taken against them for failing to notify the 
railroad of a condition he or she was not aware existed. That is why 
the preamble discussion of this section in the NPRM noted that the 
paragraph at issue ``would address the issue of how soon after learning 
of a deterioration * * * a conductor would have to notify the railroad 
of the deterioration.'' 75 FR 69166, 69176 (Nov. 10, 2010) (emphasis 
added). Because the proposed regulation would not permit enforcement 
action against a conductor for failing to notify a railroad when they 
are not aware that their vision or hearing acuity had deteriorated 
below the standard set forth in the regulation, FRA declines to adopt 
BLET/UTU's proposed amendment.

H. Training

    FRA solicited comments whether to require each railroad to provide 
for the continuing education of certified conductors in Sec.  
242.119(o). Since FRA did not receive any comments on this issue and 
because FRA sees no reason to change its approach, the proposed 
continuing education requirement contained in the NPRM (see 75 FR 
69166, 69176-69177, 69204-69205 (Nov. 10, 2010)) will be adopted in 
this final rule.
    NYMTA, SEPTA and AAR commented that the proposed language in Sec.  
242.119(d)(1) specifying the development of a task analysis should be 
removed. In the Working Group meetings and the preamble to the NPRM, 
FRA indicated that, to the extent possible and appropriate, it would 
conform the training requirements in part 242 to the training 
requirements being developed by the RSAC Training Standards and Plans 
Working Group. Because the RSAC recommendation from the Training 
Standards and Plans Working Group did not require a task analysis and 
FRA believes that the more comprehensive on-the-job training 
requirement included in the final rule (see section-by-section analysis 
of 242.119 below) adequately substitutes for a task analysis 
requirement, FRA has removed the proposed task analysis requirement 
from the final rule.

[[Page 69808]]

    NYMTA, SEPTA and AAR commented that FRA should remove paragraphs 
(l) and (m) in proposed Sec.  242.119 of the NPRM. Those paragraphs 
proposed to require railroads to perform initial instructional 
briefings with their conductors. In the Working Group meetings and the 
preamble to the NPRM, FRA indicated that, to the extent possible and 
appropriate, it would conform the training requirements in part 242 to 
the training requirements being developed by the RSAC Training 
Standards and Plans Working Group. Because the RSAC recommendation from 
the Training Standards and Plans Working Group did not require initial 
instructional briefings and FRA believes that the initial training 
program requirements included in the final rule (see section-by-section 
analysis of 242.119 below) adequately cover the requirements in the 
proposed paragraphs at issue, FRA has removed paragraphs (l) and (m) in 
proposed Sec.  242.119 of the NPRM from the final rule.
    BLET/UTU commented that Sec.  242.119(n), providing an exception to 
the initial briefing requirements of Sec.  242.119(l) and (m) should be 
deleted and replaced in its entirety with the following: ``Initial 
training shall be conducted in accordance with the requirements of Part 
243.'' Since FRA has not even issued a NPRM relating to part 243, FRA 
cannot use BLET/UTU's proposed language. However, since the RSAC 
Training Standards and Plans Working Group's recommendation to FRA does 
not require initial instructional briefings and FRA believes that the 
initial training program requirements included in the final rule (see 
section-by-section analysis of 242.119 below) adequately cover the 
substance of proposed paragraph (n), FRA has removed paragraph (n) in 
proposed Sec.  242.119 of the NPRM from the final rule.

I. Knowledge Testing

    SEPTA commented that proposed Sec.  242.121(c)(4)(v), which 
requires testing on use of job aids, should be deleted since this 
section includes requirements for an examination on operating rules and 
timetable instructions which would presumably demonstrate an 
individual's ability to use those documents. FRA believes it is an 
important safety measure to ensure that conductors be able to use any 
job aid, as defined by this part, that they may be given. Moreover, FRA 
does not believe that testing on operating rules and timetable 
instructions would necessarily demonstrate an individual's ability to 
use a job aid. Accordingly, FRA declines to delete Sec.  
242.121(c)(4)(v) as proposed in the NPRM.
    BLET/UTU commented that Sec.  242.121(c)(6) of the NPRM, which 
would have required knowledge testing to be 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, should be deleted. While one would expect a conductor to 
refer to his or her written rules and instructions whenever there is 
any uncertainty about what is required by a particular rule, 
instruction or practice, FRA believes that some rules are so 
fundamental to railroad safety, such as compliance with stop signals, 
that a conductor would be expected to know the rule without referring 
to reference materials. Accordingly, FRA declines to delete Sec.  
242.121(c)(6) as proposed in the NPRM.

J. Monitoring Operational Performance

    NYMTA seeks confirmation that: ``Training may be used as a 
substitute to satisfy the annual unannounced test for persons certified 
as passenger conductors pursuant to Sec.  242.107(b)(2) who do not 
require compliance with Part 218, subpart F, except under emergency 
circumstances.'' FRA confirms that training may be used as a substitute 
pursuant to Sec.  242.123(d)(2)(i).
    SEPTA and NYMTA commented that it is not feasible to test each of 
its certified conductors on one or more of the provisions in 49 CFR 
218.99-218.109 because the majority of passenger conductors do not have 
the opportunity to perform part 218 tasks on a regular basis. SEPTA 
recommends revising Sec.  242.123(d)(2)(i) to allow annual training to 
substitute for annual test for all passenger conductors. FRA declines 
to adopt NYMTA and SEPTA's comments in this final rule. FRA believes 
that Sec.  242.123(d)(2)(i) addresses SEPTA and NYMTA's concerns about 
passenger conductors who rarely engage in activities covered by part 
218, subpart F. FRA expects that most passenger conductors will never 
have to engage in activities covered by part 218, subpart F (which is 
what FRA means by the phrase ``compliance with part 218, subpart F'') 
except in emergency circumstances. Accordingly, FRA expects that most 
passenger conductors will be permitted to be given annual training in 
lieu of an unannounced compliance test.
    While not revising Sec.  242.123(d)(2)(i) based on the comment, FRA 
is revising the paragraph to clarify its intent. FRA intended for Sec.  
242.123(d)(2)(i) to state that the annual training exception only 
applies to part 218, subpart F, testing and that a railroad will still 
have to test on Sec.  217.9. The final rule has been revised 
accordingly.
    SEPTA and NYMTA commented that the time limit proposed in Sec.  
242.123(b)(1) and (f) for testing conductors who are returning to 
service should be extended from 30 days to 60 days. They contend that 
this will provide for increased quality observations thereby allowing 
the manager extra opportunities to observe the employee on different 
job assignments. As provided in the preamble to the NPRM, proposed 
paragraphs (b)(1) and (f) address the problem 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. Unlike part 
240, which requires railroads to seek a waiver from FRA's Safety Board 
for engineers that they are unable to annually test, the proposed 
paragraphs would not require railroads to give an unannounced 
compliance test to conductors who are not performing service requiring 
certification. Moreover, the railroads are given approximately a month 
to test those conductors returning to service.
    BLET/UTU commented that the rule should make it clear that the 
employee may work for the 30 days pending the unannounced test and 
thus, asserted that 242.123(f) should be amended as follows: ``However, 
when the certified conductor returns to a service that requires 
certification pursuant to this part, that certified conductor shall not 
be deemed ineligible but must be tested pursuant to this section within 
30 days of his or her return.'' (emphasis added). FRA declines to adopt 
the revisions suggested in the comment. Just as with locomotive 
engineers under part 240, a failure to conduct an unannounced test does 
not affect a conductor's certification (i.e., a railroad's failure to 
give the test to a person would not render that person ineligible to 
serve as a conductor). However, that does not mean the person would not 
be ineligible for another reason. For example, a conductor who is 
determined to have an active substance abuse disorder would be 
ineligible to serve as a conductor regardless of whether the conductor 
had received an unannounced compliance test within 30 days of his or 
her return to conductor service. Since the BLET/UTU's proposed revision 
could be read to prevent a railroad from deeming a person ineligible 
for any reason upon that person's return to conductor service, FRA 
declines to adopt the revision.

[[Page 69809]]

K. Time Limitations for Certification

    BLET/UTU commented that the conductor certification rules should be 
consistent with the potential medical standards that are being 
considered by FRA. It is FRA's expectation that where possible and 
appropriate, part 242 will be consistent with any potential medical 
standards rulemaking.

L. Certificate Components

    FRA solicited comments whether to require a conductor's certificate 
to include a physical description or photograph of the conductor. As 
stated in the NPRM, locomotive engineer certificates are required to 
include a physical description or photograph of the engineer pursuant 
to part 240. Moreover, FRA believes that this 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. Since FRA did not receive any 
comments on this issue and because FRA believes it will assist in 
monitoring railroad compliance with certification of conductors, the 
proposed physical description or photograph requirement in the NPRM 
will be adopted in this final rule.

M. Multiple Certifications

    In the NPRM, FRA solicited comments regarding whether to add a 
provision to Sec.  242.213 that would require railroads to make the 
determination as to which certification to revoke, where a person who 
is serving as both the conductor and the engineer is involved in a 
revocable event, based on the work the person was performing at the 
time the conduct occurred. FRA noted that such a determination would be 
similar to the one made under Sec.  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 
or what is traditionally considered a locomotive engineer's job 
function. BLET/UTU supported the addition of the provision, while AAR 
commented that a railroad should be able to revoke both certificates.
    FRA has included the additional provision in Sec.  242.213 of this 
final rule. FRA believes that the provision is necessary to bring 
additional continuity to the revocation process. Moreover, this type of 
determination is not new to the railroads as they already make similar 
determinations under part 225 and agreed to the inclusion of similar 
language in Sec.  242.215(f) of the NPRM. FRA does not believe it is 
necessary to revoke both certificates in such situations because a 
person certified as a conductor and an engineer will not be permitted 
to serve in either position if one of the certificates has been revoked 
for anything other than a part 218, subpart F, violation. With respect 
to part 218, subpart F violations, AAR's comment is not feasible since 
part 240 does not currently permit a person certified as an engineer to 
have his or her engineer certification revoked for a violation of part 
218, subpart F.
    Amtrak, SEPTA, and NYMTA commented on Sec.  242.213's proposed 
requirement that a locomotive engineer, including a RCO, who is 
operating without an assigned certified conductor must be certified as 
both a locomotive engineer and a conductor or be accompanied by a 
certified conductor who will attach to the crew ``in a manner similar 
to that of an independent assignment.'' Amtrak, SEPTA, and NYMTA's 
comments asserted that that requirement should be amended to provide 
exceptions for passenger railroads and train operations in certain 
areas and contexts.
    Amtrak, SEPTA, and NYMTA's comments concern the very definition of 
a conductor. That definition was the subject of lengthy discussions 
during the Working Group meetings and the recommendation of the Working 
Group was adopted in the NPRM. The definition is a fundamental element 
of the conductor certification regulation and FRA does not discern any 
safety-related reason to modify it. Moreover, an exception is built 
into the final rule which address some of the concerns raised in the 
comments. For example, if a 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 without the locomotive engineer 
being a certified conductor to the first location where the conductor 
can be replaced without incurring undue delay. Interested parties 
should also note that movement of a locomotive within the confines of a 
locomotive repair or servicing area or movement of a locomotive less 
than 100 feet for inspection or maintenance purposes would not require 
a certified conductor. Accordingly, Amtrak, SEPTA, and NYMTA's comments 
have not been adopted in this final rule.
    BLET/UTU commented that Sec.  242.213(h)(1) should be amended to 
make clear that when both an engineer and conductor certification are 
revoked for different lengths of time, the revocation periods shall run 
concurrently. BLET/UTU recommended amending Sec.  242.213(h)(1) to read 
as follows:

    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 Sec.  
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 
Sec.  242.403(e)(6) and one violation of Sec.  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 the first 
month of that revocation period (i.e., the period of revocation for 
one violation of Sec.  242.403(e)(1)).

(emphasis added).
    FRA declines to adopt BLET/UTU's amendment. Section 242.213(h) and 
the chart in Appendix E already make clear that the period a person 
cannot not work as an engineer occurs during the period that the 
conductor certification is revoked (i.e., concurrently). Moreover, FRA 
cannot say that the person in the example given in Sec.  242.213(h)(1) 
would not be permitted to work as an engineer for the first month of 
the one year revocation period because the example does not provide the 
exact order of the revocations. Nonetheless, it is FRA's intent that 
the period a conductor could not work as an engineer would occur at the 
beginning of the revocation period. Thus, a person who holds a current 
conductor and locomotive engineer certificate and who has had his or 
her conductor certification revoked twice within 24 months--first for a 
violation of Sec.  242.403(e)(6) and second for a violation of Sec.  
242.403(e)(1)--would have his or her conductor certificate revoked for 
6 months, but would not be permitted to work as a locomotive engineer 
for the first month of that 6-month revocation period (i.e., the period 
of revocation for one violation of Sec.  242.403(e)(1)).

N. Territorial Qualification

    BLET/UTU commented that the provision proposed in Sec.  242.301(c) 
should be amended to state that a person who assists a conductor 
lacking territorial qualification on main track physical 
characteristics may not be an assigned crew member. In support of its 
comment, the BLET/UTU notes that under part 240, a pilot who assists a 
locomotive engineer lacking qualifications on the physical 
characteristics of a territory may not be an assigned crew member. As 
proposed in the NPRM, Sec.  242.301(c) would permit the locomotive 
engineer of a train, who is also certified as a conductor and

[[Page 69810]]

qualified on the physical characteristics of the territory, to assist 
the assigned conductor if the conductor lacks qualification on the 
physical characteristics. BLET/UTU asserts that could lead to a 
situation in which an engineer would be required to simultaneously 
perform the safety-critical responsibilities of two people, including 
some that may be performed in two different physical locations. AAR 
opposed BLET/UTU's amendment. According to AAR, the proposed amendment 
ignores the distinction between an engineer's duties and a conductor's 
duties and that for a move requiring the engineer to assist the 
conductor, the engineer can conduct a job safety briefing that provides 
the conductor with any information necessary to allow a safe move. In 
addition, AAR asserts that the lack of need for a non-crew member pilot 
is supported by the fact that job aids may be used on other than main 
track where it is not practicable to provide an assistant--``whether an 
engineer is providing necessary information pertaining to the territory 
or the conductor is using a job aid, the conductor will have sufficient 
information available to allow for safe operation of the train.''
    Based on the comments received and after further review of the 
issue, FRA has revised the requirements in Sec.  242.301 regarding when 
a conductor lacking territorial qualification on main track physical 
characteristics must be assisted by a person who meets those 
qualifications. The revisions, derived in large part from the pilot 
requirements for locomotive engineers in part 240, provide differing 
requirements depending on whether a conductor has never been qualified 
on main track physical characteristics of the territory over which he 
or she is to serve as a conductor or whether the conductor was 
previously qualified on main track physical characteristics of the 
territory over which he or she is to serve as a conductor, but whose 
qualification has expired.
    For a conductor who has never been qualified on main track physical 
characteristics of the territory over which he or she is to serve as a 
conductor, the final rule requires that the assistant must be a person 
who is certified as a conductor, meets the territorial qualification 
requirements for main track physical characteristics, and is not an 
assigned crew member. For a conductor who was previously qualified on 
main track physical characteristics of the territory over which he or 
she is to serve as a conductor, but whose qualification has expired, 
the Final Rule allows the assistant to be any person, including an 
assigned crewmember other than the locomotive engineer so long as 
serving as the assistant would not conflict with that crewmember's 
other safety sensitive duties, who meets the territorial qualification 
requirements for main track physical characteristics.
    In addition to the revisions as to when an assistant is required on 
main track, the Final Rule includes exceptions as to when an assistant 
is not required on main track. Those exceptions, which are derived from 
49 CFR 240.231(c), apply to movements on a section of main track with 
an average grade of less than 1% over 3 continuous miles and: (1) The 
maximum distance the locomotive or train will be operated does not 
exceed one mile; or (2) the maximum authorized speed for any operation 
on the track does not exceed 20 miles per hour; or (3) operations are 
conducted under operating rules that require every locomotive and train 
to proceed at a speed that permits stopping within one half the range 
of vision of the locomotive engineer.
    FRA believes that these changes will serve the interests of safety, 
address the concerns of the BLET/UTU, provide flexibility for the 
railroads in handling situations which require an assistant, and make 
this Final Rule more consistent with the main track pilot requirements 
in part 240.
    The BLET/UTU also commented that the proposed job aid provision in 
Sec.  242.301(d) should be mandatory and suggested that the last 
sentence of that section should read: ``Where not practicable, the 
conductor shall be provided an accurate job aid prior to entering the 
track.'' It was FRA's intent that the job aid provision of Sec.  
242.301(d) be mandatory and it has been revised accordingly in this 
final rule. FRA declines to adopt the additional suggested revisions as 
it believes that the phrase ``appropriate up-to-date'' used in the NPRM 
encompasses the suggested term ``accurate'' and the ``prior to entering 
the track'' language is unnecessary because a conductor who lacks 
territorial qualification on a segment of track will not be permitted 
to enter that track until they are, where practicable, assisted by a 
certified conductor who is qualified or