Certification of Signal Employees, 35632-35691 [2023-10773]

Download as PDF 35632 Federal Register / Vol. 88, No. 104 / Wednesday, May 31, 2023 / Proposed Rules DEPARTMENT OF TRANSPORTATION Federal Railroad Administration 49 CFR Part 246 [Docket No. FRA–2022–0020, Notice No. 1] RIN 2130–AC92 Certification of Signal Employees Federal Railroad Administration (FRA), Department of Transportation (DOT). ACTION: Notice of proposed rulemaking (NPRM). AGENCY: FRA proposes regulations for the certification of signal employees, pursuant to the authority granted in section 402 of the Rail Safety Improvement Act of 2008. DATES: Comments on the proposed rule must be received by July 31, 2023. FRA will consider comments received after that date to the extent practicable. ADDRESSES: Comments: Comments related to Docket No. FRA–2022–0020 may be submitted by going to https:// www.regulations.gov and following the online instructions for submitting comments. Instructions: All submissions must include the agency name, docket number (FRA–2022–0020), and Regulatory Identification Number (RIN) for this rulemaking (2130–AC92). All comments received will be posted without change to https:// www.regulations.gov; this includes any personal information. 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 and follow the online instructions for accessing the docket. SUMMARY: lotter on DSK11XQN23PROD with PROPOSALS3 FOR FURTHER INFORMATION CONTACT: Gabe Neal, Staff Director, Signal, Train Control, and Crossings Division, U.S. Department of Transportation, Federal Railroad Administration, telephone: (816) 516–7168, email: Gabe.Neal@ dot.gov; or Kathryn Gresham, Attorney Adviser, U.S. Department of Transportation, Federal Railroad Administration, telephone: (202) 577– 7142, email: kathryn.gresham@dot.gov. SUPPLEMENTARY INFORMATION: Abbreviations and Terms Used in This Document AAR—Association of American Railroads VerDate Sep<11>2014 21:03 May 30, 2023 Jkt 259001 ASLRRA—American Short Line and Regional Railroad Association CE—Categorical Exclusion CFR—Code of Federal Regulations DAC—Drug and alcohol counselor DOT—United States Department of Transportation EA—Environmental Assessment EIS—Environmental Impact Statement FRA—Federal Railroad Administration IRFA—Initial Regulatory Flexibility Analysis NEPA—National Environmental Policy Act NPRM—Notice of Proposed Rulemaking OMB—United States Office of Management and Budget PRA—The Paperwork Reduction Act PTC—Positive Train Control PV—Present Value RIN—Regulatory Identification Number RSAC—Railroad Safety Advisory Committee RSIA—Rail Safety Improvement Act of 2008 SAP—Substance Abuse Professional STB—The Surface Transportation Board U.S.C.—United States Code Table of Contents for Supplementary Information I. Executive Summary II. Legal Authority III. Background IV. Section-by-Section Analysis V. Regulatory Impact and Notices A. Executive Order 12866 B. Regulatory Flexibility Act and Executive Order 13272 C. Paperwork Reduction Act D. Federalism Implications E. International Trade Impact Assessment F. Environmental Impact G. Executive Order 12898 (Environmental Justice) H. Unfunded Mandates Reform Act of 1995 I. Energy Impact J. Privacy Act Statement K. Executive Order 13175 (Tribal Consultation) I. Executive Summary Purpose of the Regulatory Action FRA proposes to require railroads to develop programs for the certification of signal employees and to submit those written certification programs to FRA for approval prior to implementation. Signal employees are responsible for the installation, testing, troubleshooting, repair, and maintenance of railroad signal systems which, for purposes of this proposed rule, include highway-rail and pathway grade crossing warning systems, unusual contingency detection devices, broken rail detection systems, power-assisted switches, and switch point indicators. Under this proposed rule, railroads would be required to verify and document that each signal employee 1 has the requisite knowledge, skills, safety record, and abilities to safely perform all of the safety-related signal 1 Although ‘‘signal employees’’ are also referred to as ‘‘signalmen,’’ those terms are synonymous. PO 00000 Frm 00002 Fmt 4701 Sfmt 4702 employee duties mandated by Federal laws and regulations, prior to certification. In addition, railroads would be required to have formal processes for revoking certification (either temporarily or permanently) for signal employees who violate specified minimum requirements. FRA is proposing this regulation in response to the Rail Safety Improvement Act of 2008 (RSIA), which required the Secretary of Transportation (Secretary) to submit a report to Congress addressing whether certification of ‘‘certain crafts or classes’’ of railroad employees or contractors, including signal employees, was necessary to ‘‘reduce the number and rate of accidents and incidents or to improve railroad safety.’’ If the Secretary determined it was necessary to require the certification of certain crafts or classes to improve railroad safety, section 402 of the RSIA authorized the Secretary to prescribe such regulations. The Secretary submitted a report to Congress on November 4, 2015,2 stating that, based on FRA’s preliminary research, signal employees were one of the most viable candidate railroad crafts for certification, particularly with the introduction of Positive Train Control (PTC) technology. Given the safety critical role of signal employees in facilitating safe railroad operations, FRA determined that railroad safety is expected to be improved if signal employees were required to satisfy certain standards and be certified by each railroad whose signal systems they install, troubleshoot, repair, test, or maintain. Summary of Major Provisions This proposed rule would require railroads to develop written programs for certifying individuals who work as signal employees on their territories and to submit those written certification programs to FRA for approval prior to implementation. FRA would issue a letter to the railroad when it approves a certification program that explains the basis for approval and a program would not be considered approved until the approval letter is issued. FRA is proposing to require Class I railroads (including the National Railroad Passenger Corporation), and railroads providing commuter service, to submit their written certification programs to FRA no later than eight (8) months after the final rule effective date. Class II and Class III railroads would be 2 A copy of this November 4, 2015 Report to Congress has been posted in the rulemaking docket at: https://www.regulations.gov/document/FRA2022-0020-0001. E:\FR\FM\31MYP3.SGM 31MYP3 Federal Register / Vol. 88, No. 104 / Wednesday, May 31, 2023 / Proposed Rules required to submit their written certification plans sixteen (16) months after the final rule effective date. New railroads that begin operation after the final rule effective date would be required to submit their written certification programs to FRA and obtain FRA approval before installing their signal systems and commencing operations. In addition, railroads seeking to materially modify their FRAapproved certification programs would be required to obtain FRA approval prior to modifying their programs. Railroads would be required to evaluate certification candidates in multiple areas, including prior safety conduct as a motor vehicle operator, prior safety conduct with other railroads, substance abuse disorders and alcohol/drug rules compliance, and vision and hearing acuity. The proposed rule also contains minimum requirements for the training provided to candidates for signal employee certification. These proposed requirements are intended to ensure signal employees receive sufficient training before they are certified to work on signal systems. These proposed requirements are also intended to ensure that certified signal employees periodically receive recurring training on railroad signal system standards, test procedures, operating rules and procedures, and orders governing the installation, operation, testing, troubleshooting, repair, and maintenance of railroad signal systems, as well as comprehensive training on new signal systems and technology before they are introduced on the railroads where they work. With the exception of individuals designated as certified signal employees prior to FRA approval of the railroad’s signal employee certification program, the proposed rule would prohibit railroads from certifying signal employees for intervals longer than three (3) years. This three-year limitation, which would be consistent with the 36-month maximum period for certifying locomotive engineers in 49 CFR 240.217(c) and the 36-month maximum period for certifying conductors in 49 CFR 240.201(c), would allow for periodic re-evaluation of certified signal employees to verify their continued compliance with FRA’s minimum safety requirements. Subpart D of this proposed rule addresses the process and criteria for denying and revoking certification. Proposed § 246.301 describes the process a railroad would be required to undergo before it denies an individual certification or recertification. This process would include providing the certification candidate with the information that forms the basis for the denial decision and giving the candidate an opportunity to rebut such evidence. When a railroad denies an individual certification or recertification, it must issue its decision in writing and the decision must comply with certain requirements provided in the proposed rule. A railroad could only revoke a signal employee’s certification if one of eleven events occurs. Generally, for the first revocable event that is not related to a signal employee’s use of drugs or alcohol, the individual’s certification would be revoked for 30 days. If an individual accumulates more of these violations in a given time period, the revocation period (period of ineligibility) would become increasingly longer. If a railroad acquires reliable information that a certified signal employee has violated an operating rule or practice requiring decertification under the proposed rule, it must suspend the signal employee’s certification immediately while it determines whether certification revocation is warranted. In such circumstances, signal employees would be entitled to a hearing. Similar to a railroad’s decision to deny an individual certification, a railroad’s decision to revoke a signal employee’s certification would be required to comply with certain requirements. Finally, if an intervening cause prevented or materially impaired a signal employee’s ability to comply with a railroad operating rule or practice, the railroad would not revoke the signal employee’s certification. Subpart E of this proposed rule discusses the dispute resolution process for individuals who wish to challenge a 35633 railroad’s decision to deny certification, deny recertification, or revoke certification. This dispute resolution process mirrors the process used for locomotive engineers and conductors under 49 CFR parts 240 and 242, respectively. Finally, the proposed rule contains two appendices. Appendix A discusses the procedures that a person seeking certification or recertification should follow to furnish a railroad with information concerning their motor vehicle driving record. Appendix B provides guidance on the procedures railroads should employ in administering the vision and hearing requirements under §§ 246.117 and 246.118. Costs and Benefits FRA analyzed the economic impact of this proposed rule. FRA estimated the costs estimated to be incurred by railroads and the Government. FRA also estimated the benefits of fewer signal employee-caused accidents. FRA is proposing regulations establishing a formal certification process for railroad signal employees. As part of that process, railroads would be required to develop a program meeting specific requirements for training current and prospective signal employees, documenting and verifying that the holder of the certificate has achieved certain training and proficiency, and creating a comprehensive record, including of safety compliance infractions, that other railroads can review when considering individuals for certification. This proposed regulation would ensure that signal employees are properly trained, are qualified to perform their duties, and meet Federal safety standards. Additionally, this proposed regulation is expected to improve railroad safety by reducing the rate of accidents/incidents. FRA estimates the 10-year costs of the proposed rule to be $8.3 million, discounted at 7 percent. The estimated annualized costs would be $1.2 million discounted at 7 percent. The following table shows the total costs of this proposed rule, over the 10-year analysis period. lotter on DSK11XQN23PROD with PROPOSALS3 TOTAL 10-YEAR DISCOUNTED COSTS [2020 dollars] 3 Present value 7% ($) Category Development of Certification Program ............................................................. Certification Eligibility Requirements ............................................................... Recertification Eligibility Requirements ............................................................ VerDate Sep<11>2014 21:03 May 30, 2023 Jkt 259001 PO 00000 Frm 00003 Fmt 4701 Sfmt 4702 1,140,385 87,507 203,790 Present value 3% ($) 1,168,920 100,380 259,653 E:\FR\FM\31MYP3.SGM 31MYP3 Annualized 7% ($) 162,365 12,459 29,015 Annualized 3% ($) 137,033 11,768 30,439 35634 Federal Register / Vol. 88, No. 104 / Wednesday, May 31, 2023 / Proposed Rules TOTAL 10-YEAR DISCOUNTED COSTS—Continued [2020 dollars] 3 Present value 7% ($) Category Present value 3% ($) Annualized 7% ($) Annualized 3% ($) Training ............................................................................................................ Knowledge Testing .......................................................................................... Vision and Hearing .......................................................................................... Monitoring Operational Performance ............................................................... Railroad Oversight Responsibilities ................................................................. Certification Card ............................................................................................. Petitions and Hearings .................................................................................... Government Administrative Cost ..................................................................... 2,079,835 746,865 1,097,523 832,102 267,530 103,175 42,451 1,653,360 2,379,911 898,884 1,320,891 994,414 326,714 124,175 50,731 1,914,063 296,122 106,337 156,263 118,473 38,090 14,690 6,044 235,401 278,998 105,377 154,849 116,576 38,301 14,557 5,947 224,387 Total .......................................................................................................... 8,277,337 9,566,001 1,178,507 1,121,427 This rule would reduce the likelihood of an accident occurring due to signal employee error. FRA has analyzed accidents over the past 10 years to categorize those where signal employee training and certification would have impacted the accident. FRA then estimated benefits based on that analysis. The following table shows the estimated 10-year quantifiable benefits of the proposed rule. The total 10-year estimated benefits would be $2.9 million (PV, 7%) and annualized benefits would be $0.4 million (PV, 7%). TOTAL 10-YEAR DISCOUNTED BENEFITS [2020 dollars] Present value 7% ($) lotter on DSK11XQN23PROD with PROPOSALS3 Category Present value 3% ($) Annualized 7% ($) Annualized 3% ($) Grade Crossing Accidents ............................................................................... Train Accidents/Incidents ................................................................................. Business Benefits from Fewer Activation Failures .......................................... 1,766,028 989,123 159,526 2,064,676 1,156,391 186,503 251,443 140,829 22,713 242,043 135,564 21,864 Total .......................................................................................................... 2,914,678 3,407,570 414,985 399,471 This proposed rule would also provide unquantifiable benefits. FRA has quantified the monetary impact from accidents which is reported on FRA accident forms. However, some accident costs are not required to be reported on FRA accident forms (e.g., environmental impact). That impact may account for additional benefits not quantified in this analysis. If these costs were realized, accidents affected by this proposed rulemaking could have much greater economic impact than estimated quantitative benefit estimates. There is also a chance of a high impact event due to signal employee error. This could involve fatalities, injuries, and environmental damage, as well as impact railroads, communities, and the public. FRA has not estimated the likelihood of such an accident, but this proposed rule is expected to reduce the risk of an accident of that magnitude. 3 Numbers in this table and subsequent tables may not sum due to rounding. VerDate Sep<11>2014 21:03 May 30, 2023 Jkt 259001 II. Legal Authority Pursuant to the Rail Safety Improvement Act of 2008, Public Law 110–432, sec. 402, 122 Stat. 4884 (Oct. 16, 2008) (hereinafter ‘‘RSIA’’), the Secretary of Transportation (Secretary) was required to submit a report to Congress addressing whether certification of certain crafts or classes of employees, including signal repair and maintenance employees, was necessary to reduce the number and rate of accidents and incidents or to improve railroad safety.4 If the Secretary determined it was necessary to require the certification of certain crafts or classes of employees to reduce the number and rate of accidents and incidents or to improve railroad safety, section 402 of the RSIA stated the Secretary may prescribe such regulations. The Secretary delegated this authority to the Federal Railroad Administrator. 49 CFR 1.89. In response to the RSIA, the Secretary submitted a report to Congress on November 4, 2015, stating that, based on FRA’s preliminary research, dispatchers and signal employees were potentially the most viable candidate railroad crafts for certification. Based on the analysis in Section III below, the Federal Railroad Administrator has determined that it is necessary to require the certification of signal employees to improve railroad safety. III. Background 1. Roles and Responsibilities of Signal Employees Railroad signal employees play an integral role in ensuring the safety of railroad operations, as well as the safety of highway motorists. They are responsible for the installation, testing, troubleshooting, repair, and maintenance of signal systems, as defined in proposed 49 CFR 246.7, which railroads utilize to direct train movements. Signal employees must also use specialized test and maintenance equipment to complete safety critical 4 See also 49 U.S.C. 20103 (providing FRA’s general authority to ‘‘prescribe regulations and issue orders for every area of railroad safety’’). PO 00000 Frm 00004 Fmt 4701 Sfmt 4702 E:\FR\FM\31MYP3.SGM 31MYP3 Federal Register / Vol. 88, No. 104 / Wednesday, May 31, 2023 / Proposed Rules lotter on DSK11XQN23PROD with PROPOSALS3 tasks on mechanical, electrical, and electronic signal equipment. The work performed by signal employees can generally be divided into two categories: construction and maintenance. On larger railroads, some signal employees work in groups (often referred to as ‘‘gangs’’) under the direct supervision and oversight of an experienced signal employee to construct, install, and upgrade signal systems and signal system subsystems and components. Some signal employees also work in ‘‘gangs’’ under the direct supervision and oversight of an experienced signal employee to make repairs to the signal system, while other signal employees (often referred to as ‘‘signal maintainers’’) are tasked with inspecting and testing signal systems and performing minor and emergency repairs as needed. The implementation of complex PTC system technology requires increasingly sophisticated work by signal employees. PTC systems provide another layer of safety to existing signal systems, many of which have been place for many decades. In addition, PTC systems are interoperable with each other, as well as with existing signal systems. Therefore, signal employees need to understand the relationship between signal and PTC systems and the communication medium and how these systems operate, function, and react to a myriad of circumstances. Signal systems and PTC systems are also continually upgraded, so the development and implementation of these systems need to be properly understood and monitored by both FRA and railroad signal employees. 2. FRA History of Certification On January 4, 1987, an Amtrak train collided with a Conrail train in Chase, Maryland, resulting in 16 deaths and 174 injuries. At the time, it was the deadliest train accident in Amtrak’s history. The subsequent investigation by the National Transportation Safety Board concluded that the probable cause of the accident was the impairment of the Conrail engineer who was under the influence of marijuana at the time of the collision.5 Following this accident, Congress passed the Rail Safety Improvement Act of 1988, Public Law 100–342, 4, 102 Stat. 624, 625 (1988), which instructed the Secretary of Transportation (Secretary) to ‘‘issue such rules, regulations, orders, and standards as may be necessary to establish a program 5 Railroad Accident Report: Rear-end Collision of Amtrak Passenger Train 94, the Colonial and Consolidated Rail Corporation Freight Train ENS– 121, on the Northeast Corridor, Chase, Maryland, January 4, 1987 (144 Nat’l Transp. Safety Bd. 1988). VerDate Sep<11>2014 21:03 May 30, 2023 Jkt 259001 requiring the licensing or certification of any operator of a locomotive, including any locomotive engineer.’’ On June 19, 1991, FRA published a final rule establishing a certification system for locomotive engineers and requiring railroads to ensure that they only certify individuals who met minimum qualification standards.6 In order to minimize governmental intervention, FRA opted for a certification system where the railroads issue the certificates as opposed to a government-run licensing system. This final rule, published in 49 CFR part 240 (part 240), created certification requirements for engineers that addressed various areas including vision and hearing acuity; training, knowledge, and performance skills; and prior safety conduct. Seventeen years later, Congress passed the RSIA, which mandated the creation of a certification system for conductors. On November 9, 2011, FRA published a final rule requiring railroads to have certification programs for conductors and to ensure that all certified conductors satisfy minimum Federal safety standards.7 The conductor certification rule, published in 49 CFR part 242 (part 242), was largely modeled after part 240 with some deviations based on the different job classifications. Part 242 also included some organizational improvements which made the regulation more streamlined than part 240. 3. Statutory Background for Signal Employee Certification In addition to requiring certification for conductors, the RSIA required the Secretary to submit a report to Congress addressing whether certain other railroad crafts or classes of employees would benefit from certification. Specifically, section 402(b) of the RSIA requires that the Secretary issue a report to Congress ‘‘about whether the certification of certain crafts or classes of railroad carrier or railroad carrier contractor or subcontractor employees is necessary to reduce the number and rate of accidents and incidents or to improve railroad safety.’’ As part of that report, section 402(c) specifically requires the Secretary to consider ‘‘signal repair and maintenance employees’’ as one of the railroad crafts for certification. After identifying a railroad craft or class for which certification is necessary, pursuant to the report to Congress discussed above, section 402(d) authorizes the Secretary to ‘‘prescribe regulations requiring the 6 56 7 76 PO 00000 FR. 28227 (June 19, 1991). FR 69801 (Nov. 9, 2011). Frm 00005 Fmt 4701 Sfmt 4702 35635 certification of certain crafts or classes of employees that the Secretary determines . . . are necessary to reduce the number and rate of accidents and incidents or to improve railroad safety.’’ 4. Report to Congress On November 4, 2015, the Secretary submitted the report to Congress required under the RSIA. The report stated that, based on FRA’s preliminary research, dispatchers and signal repair employees were the most viable candidates for certification, particularly with the introduction of Positive Train Control (PTC) technology. In reaching this determination with respect to signal employees, the Secretary cited a variety of factors. The report noted that signal employees perform safety-sensitive work as shown by signal employees being covered under the Hours of Service laws. Signal employees are also subject to regular and pre-employment random drug and alcohol testing. In 2012 and 2013, signal employees had a positive drug testing rate that was considerably higher than that of their train and engine service counterparts. Annual drug and alcohol testing data submitted to FRA in 2012 and 2013 showed a 0.75-percent random positive drug rate for signal employees, as compared to a 0.30-percent random positive drug rate for train and engine service employees.8 The report also noted that the greatest proportion of contractors covered under the Hours of Service laws are signal employees, who tend to switch employers more frequently than other crafts of employees. In addition, the report noted that frequent job-hopping by signal employees makes it even more important to track their violations and any disqualifications that may result. However, 49 CFR parts 240 and 242 require a five-year alcohol and drug background check, as well as disqualification of employees for specified alcohol and drug test violations and for refusing such testing. If such requirements are included in a signal employee certification program, they could help prevent signal employees with active substance abuse disorders from ‘‘job hopping’’ from one employer to another and reduce the safety risk of having individuals with 8 Testing results submitted to FRA in 2020 and 2021 showed a 0.81-percent random violation (drug and alcohol positives and refusals) rate and a 0.79percent pre-employment violation rate for signal employees, as compared to a 0.49-percent random positive drug testing rate and a 0.55-percent preemployment positive drug testing rate for train and engine service employees. E:\FR\FM\31MYP3.SGM 31MYP3 35636 Federal Register / Vol. 88, No. 104 / Wednesday, May 31, 2023 / Proposed Rules untreated substance abuse disorders working as signal employees. Another important factor in the report was the nature of the work signal employees perform on wayside signal and train control systems, which are safety-critical for freight and passenger rail operations. The report noted that, in the coming decade, the rail industry will likely lose many experienced signal employees to retirement, while growth in freight, commuter, and intercity passenger rail will require that more signal employees are hired and trained. The report also summarized the challenges posed by PTC system implementation, while noting the ‘‘increasingly sophisticated work’’ involved in the implementation of complex PTC system technology by signal employees.9 In particular, the report noted that ‘‘signal employees will be required to differentiate between a vital and non-vital PTC system 10 and to address the technicalities of using standalone or overlay PTC systems.’’ 11 This combination of factors led to the report’s conclusion that signal employees are a potentially viable candidate craft for certification. lotter on DSK11XQN23PROD with PROPOSALS3 5. RSAC Working Group 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. 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. On April 21, 2017, a task statement regarding certification of signal employees was presented to the RSAC by email but no vote was taken. On 9 See 2015 DOT Report to Congress on Certification of Railroad Crafts at 3. 10 PTC systems vary widely in complexity and sophistication based on the level of automation and functionality they implement, the system architecture used, the wayside system upon which they are based (i.e., non-signaled, block signal, cab signal, etc.), and the degree of train control they are capable of assuming. Vital systems are reliable and built upon failsafe principles, while non-vital systems are reliable but not guaranteed to provide failsafe operation. 11 See 2015 DOT Report to Congress on Certification of Railroad Crafts at 3. An overlay system relies upon and supplements an existing wayside signal system or redundant method of operation. A standalone system replaces the existing method of operation. VerDate Sep<11>2014 21:03 May 30, 2023 Jkt 259001 April 24, 2019, the RSAC accepted a task (No. 19–03) entitled, ‘‘Certification of Railroad Signal Employees.’’ 12 The purpose of the task was ‘‘[t]o consider whether rail safety would be enhanced by developing guidance, voluntary standards, and/or draft regulatory language for the certification of railroad signal installation, repair, and maintenance workers.’’ The task called for the RSAC Signal Employee Working Group (Working Group) to perform the following actions: —Review critical tasks performed by railroad signalmen for safe train operations, particularly with the introduction of Positive Train Control (PTC) technology; —Review training duration, content, and methodology for new hires and continuing education. —Review background checks designed to prevent railroad signalmen with active substance abuse disorders from ‘‘job-hopping’’ from one employer to another. The revised task statement also asked the Working Group to address the following issues, if appropriate: —What requirements for training and experience are appropriate? —What classifications of signalmen should be recognized, if any? —To what extent do existing requirements and procedures for the certification of locomotive engineers and conductors provide a model for signalmen certification? —What types of unsafe conduct should affect railroad signalmen’s certification status? —Do the existing locomotive engineer and conductor certifications provide an adequate model for handling appeals from decertification decisions of the railroads? The Working Group, which included representatives from the Association of American Railroads (AAR), American Public Transportation Association (APTA), American Short Line and Regional Railroad Association (ASLRRA), Brotherhood of Railroad Signalmen (BRS), SMART Transportation, Commuter Rail Coalition, and National Railroad Construction & Maintenance Association, held its first and only meeting on September 5, 2019 in Washington, DC At this meeting, the Working Group reviewed the task statement from the RSAC, discussed 12 At the same meeting, the RSAC also accepted a task (No. 19–02) titled ‘‘Certification of Train Dispatchers.’’ A separate RSAC Working Group was formed to address this task and FRA plans to issue a related proposed rule that would establish certification requirements for dispatchers. PO 00000 Frm 00006 Fmt 4701 Sfmt 4702 some of the safety-critical tasks performed by signal employees, and debated whether certification of signal employees would be beneficial to railroad safety. At the end of the meeting, action items were assigned and the next meeting was tentatively scheduled for January 2020. However, on December 16, 2019, the presidents of the American Train Dispatchers Association, BRS, and the International Brotherhood of Electrical Workers (collectively the ‘‘Unions’’) sent a letter to the FRA Administrator requesting that the RSAC task be withdrawn from consideration. The letter stated the Unions were involved in numerous activities and were not able to give the task proper attention. AAR and ASLRRA advised the unions that they were not opposed to this request. In response to this letter, FRA withdrew the task from the RSAC and the Working Group became inactive. 6. Public Outreach In 2021, FRA revisited the issue of establishing certification requirements for signal employees. The agency assembled subject matter experts from FRA, the International Brotherhood of Electrical Workers (IBEW) and the Brotherhood of Railroad Signalmen to exchange facts or information regarding the tasks performed by signal employees. Those parties met virtually several times between May 5, 2021 and June 30, 2021. As part of FRA’s outreach, a list of tasks performed by signal employees was developed. These tasks generally involved: vital equipment design validation, installation, calibration, testing, maintenance, and repair (interlockings, grade crossings, wayside signal systems, PTC, etc.). FRA reviewed each task to determine whether correctly performing the task was critical to railroad safety; what were the potential consequences if errors were made while performing the task; and whether there were any recent examples of issues or concerns with respect to the task. After performing this analysis, FRA concluded that the vast majority of tasks performed by signal employees (80–90% of the listed tasks) were critical to railroad safety with potentially catastrophic consequences, such as accidents, injuries, and/or deaths, if the tasks were not performed properly. During FRA’s outreach, the benefits of certification based on the experience of stakeholders with engineer and conductor certification under 49 CFR parts 240 and 242 were also discussed. Some of the main benefits of E:\FR\FM\31MYP3.SGM 31MYP3 lotter on DSK11XQN23PROD with PROPOSALS3 Federal Register / Vol. 88, No. 104 / Wednesday, May 31, 2023 / Proposed Rules certification that were identified include: —Creating a minimum standard for training to ensure that the training encompasses all skills and proficiencies necessary to properly perform all safety-related signal employee functions; —Establishing a record of safety compliance that will follow a signal employee if they wish to become certified by another railroad and that can be used to review a signal employee’s performance and potential training needs; —Requiring certain safety checks, such as identifying active substance abuse disorders, that can minimize the risks posed by job hopping; and —Establishing a system for individuals to dispute a railroad’s decision to deny or revoke certification with the aim of creating a fair and consistent process for all parties. Based on these meetings, FRA concluded that requiring certification for signal employees would be an important tool to ensure signal employees performing safety-sensitive tasks are adequately trained and qualified and have a documented record of performance that is accessible to prospective employers. Following this initial outreach, FRA held a follow-up conversation with BRS and IBEW, on March 3, 2022, and individuals from the BRS and IBEW informed FRA of elements that they believe would be beneficial in a signal employee certification program. During this conversation, which was held in videoconference format, FRA asked the attendees to provide individualized feedback on how similar or different a signal employee certification rule should be to FRA’s locomotive engineer and conductor certification rules found in 49 CFR parts 240 and 242. FRA heard that the agency needs to ensure that comprehensive training is provided to signal employees as the current training is inadequate. FRA also heard that railroads are not providing enough training on new equipment and new technology for signal employees. It was also noted that, in some cases, signal employees are being required to use new equipment and new technology without having received any prior training on the equipment or technology. On March 7, 2022, FRA had a conversation with the railroad industry, including Norfolk Southern Corporation (NS), ASLRRA, and AAR. During this conversation, which was conducted in a videoconference format, FRA also asked for individualized feedback on how VerDate Sep<11>2014 21:03 May 30, 2023 Jkt 259001 FRA’s locomotive engineer and conductor certification regulations in 49 CFR parts 240 and 242 could be improved upon with respect to signal employee certification. Specifically, FRA asked for feedback on any regulatory provisions in 49 CFR parts 240 and 242 that, in their experience, may have been difficult to implement, as well as whether FRA should explore any changes to these regulatory provisions. AAR expressed opposition to FRA’s proposal to issue regulations requiring certification of signal employees arguing that there was not a safety benefit to certification. In addition, NS questioned the need for certification regulations in the absence of any identified gaps in coverage by existing railroad training programs. ASLRRA expressed concern that FRA’s proposal to issue regulations requiring certification of dispatchers and signal employees would result in a big paperwork burden with little benefit. In addition, ASLRRA asserted that most shortline railroads do not have signal systems. With respect to grade crossings, ASLRRA asserted that most shortline railroads rely on contractors to maintain their grade crossing warning systems. After this conversation, FRA provided a short list of written questions to AAR and ASLRRA. While AAR did not provide additional feedback in response to FRA’s list of questions, ASLRRA responded to FRA’s list of written questions by email on April 13, 2022, a copy of which has been placed in the docket.13 On March 8, 2022, FRA staff had a follow-up conversation with BRS and IBEW to receive information on the types of errors and grade crossing and signal violations that should result in a railroad revoking a signal employee’s certification. During this conversation, which was conducted in a videoconference format, FRA heard that it might be appropriate to revoke a signal employee’s certification in response to willful violations. 7. Contractors FRA considered whether railroad contractors (and subcontractors) should be authorized to certify their employees. FRA did not, however, include that option in this proposed rule. Instead, consistent with FRA’s engineer and conductor certification regulations, this proposed rule requires railroads to 13 A record of public contact summarizing this meeting has been posted in the rulemaking docket at: https://www.regulations.gov/document/FRA2022-0020-0003. PO 00000 Frm 00007 Fmt 4701 Sfmt 4702 35637 develop and submit certification programs to FRA for approval and then implement their FRA-approved certification programs. FRA is proposing to adopt this approach because railroads are ultimately held responsible for the actions (or failure to act) of their employees, contractors, and subcontractors when engaged in railroad operations. FRA acknowledges that signal employee tasks are being subcontracted out by railroads to companies that specialize in this work. However, railroads are generally most knowledgeable about the signal systems that have been deployed on their territories. Therefore, railroads are best suited to develop certification programs that are needed to ensure all signal employees responsible for installing, troubleshooting, testing, repair, or maintenance of railroad signal systems, as defined in § 246.7, have been properly trained and certified on: (a) all applicable Federal rail safety laws, regulations, and orders governing the installation, testing, repair, and maintenance of these systems; and (b) all railroad rules and procedures promulgated to implement those Federal rail safety laws, regulations, and orders. In addition, by keeping certification programs in-house, railroads can implement quality control measures to ensure that their FRAapproved certification programs are being implemented properly. Nonetheless, FRA is soliciting comment on the approach adopted in this proposed rule, which would require railroads to develop and implement FRA-approved signal employee certification programs. To ease any potential burden, especially on Class III railroads, the proposed rule would allow all railroads to choose between conducting the training or using a training program conducted by a third party, which would be adopted and ratified by the railroad. In addition, contractors that employ signal employees could help railroads comply with the requirements in this proposed rule by providing information about their signal employees’ compliance with some of the proposed regulatory requirements. For example, contractors could provide information about their signal employees’ compliance with the vision and hearing acuity requirements in the proposed rule. Under this proposed rule, however, railroads would ultimately be responsible for ensuring that certified signal employees are installing, testing, maintaining, and repairing their signal systems. E:\FR\FM\31MYP3.SGM 31MYP3 lotter on DSK11XQN23PROD with PROPOSALS3 35638 Federal Register / Vol. 88, No. 104 / Wednesday, May 31, 2023 / Proposed Rules 8. Interaction With Other FRA Regulations While developing this proposed rule, FRA has been mindful of other regulations that may touch upon topics covered in this proposed rule, including FRA’s training, qualification, and oversight regulations in 49 CFR part 243 (part 243); railroad safety risk reduction programs (SSP/RRP) in 49 CFR parts 270 and 271 (parts 270 and 271); and fatigue risk management programs (FRMP) in parts 270 and 271. However, FRA finds that this proposed rule would complement, rather than duplicate, those regulations. Signal employees are currently included in part 243’s requirements for training, qualification, and oversight for safety-related railroad employees. However, part 243 does not require railroads to have formal processes in place for promptly removing signal employees from service if they violate one or more basic regulatory standards that could have a significant negative impact on the safety of rail operations. FRA’s proposed signal employee certification requirements have been drafted to help address this void, as well as prevent signal employees who have been fired for committing one or more of the revocable events discussed in the proposed rule from ‘‘job hopping’’ and quickly resuming safety-sensitive service at a different railroad that is unaware of the signal employee’s prior violation(s) of FRA’s rail safety regulations. As codified in parts 270 and 271, FRA requires Class I railroads, railroads with inadequate safety performance, and passenger rail operations to implement railroad safety risk reduction programs. A railroad safety risk reduction program is a comprehensive, system-oriented approach to safety that determines an operation’s level of risk by identifying and analyzing identified hazards and developing strategies to mitigate risks associated with those hazards. In this background, FRA is using the term ‘‘railroad safety risk reduction programs’’ to include both a ‘‘system safety program’’ (SSP) that is required for certain passenger rail operations 14 and a ‘‘risk reduction program’’ (RRP) that is required for a limited number of other rail operations.15 Although a railroad safety risk reduction program might address a railroad’s safety hazards and risks associated with its signal 14 49 CFR 270.3 (requiring the application of the system safety program rule to certain passenger rail operations). 15 49 CFR 271.3 (requiring the application of the risk reduction program rule to certain rail operations). VerDate Sep<11>2014 21:03 May 30, 2023 Jkt 259001 employees, the framework established by these programs neither directly addresses the risks associated with signal systems nor establishes an industry-wide approach. First, not every railroad is required to have a railroad safety risk reduction program. Indeed, FRA estimates that fewer than 100 railroads (out of approximately 750 railroads under FRA’s jurisdiction) will be required to develop a railroad safety risk reduction program over the next 10 years. Second, even if a railroad is required to have a railroad safety risk reduction program through which it identifies the risks associated with installing, testing, maintaining, and repairing signal systems, the railroad may decide not to implement mitigations to eliminate or reduce those specific risks. Parts 270 and 271 permit railroads to prioritize risks.16 Whether a railroad is required to have a program that mitigates risks associated with signal systems will depend on how the railroad prioritizes risks for mitigation and how effectively that mitigation would promote continuous safety improvement compared to mitigation of other identified hazards and risks. Thus, even if signal systems are identified as a risk, a railroad may not implement mitigations to eliminate or reduce that risk. Accordingly, this proposed rule may complement the SSP/RRP requirements but does not duplicate those requirements. Without this proposed rule, railroads may not be required to implement mitigations to address identified safety risks associated with signal systems across the entire industry. With respect to FRMPs,17 an FRMP is a comprehensive, system-oriented approach to safety in which a railroad determines its fatigue risk by identifying and analyzing applicable hazards and developing plans to mitigate, if not eliminate, those risks. Like the SSP/RRP rules, the FRMP rule is part of FRA’s continual efforts to improve rail safety and satisfies the statutory mandate of Section 103 of the RSIA.18 Like the SSP/RRP requirements, there is no guarantee that any railroad covered by the regulation will use an FRMP to address signal issues. As with the SSP/RRP rules, a covered railroad must identify fatigue hazards, assess the risks associated with those fatigue 16 See e.g., 49 CFR 270.5 (definition of ‘‘risk-based hazard management’’) and 271.103(b)(3). 17 On June 13, 2022, FRA published a final rule adding a FRMP to the railroad safety risk reduction program requirements in parts 270 and 271. 85 FR 83484. 18 Codified at 49 U.S.C. 20156. PO 00000 Frm 00008 Fmt 4701 Sfmt 4702 hazards, and prioritize those risks for mitigation purposes. It is possible that other fatigue risks, not associated with signal systems, might rank higher, in which case the risk associated with signal systems might not be promptly mitigated. Further, because the FRMP requirements would apply only to those railroads required to comply with the SSP/RRP requirements, an FRMP would not be required of every railroad. Thus, like the SSP/RRP rules, this proposed rule is complementary to the FRMP final rule and is not duplicative. IV. Section-by-Section Analysis Subpart A—General Subpart A of the proposed rule contains general provisions, including a formal statement of the proposed rule’s purpose and scope. The subpart also provides that this proposed rule does not constrain the ability of a railroad to prescribe additional or more stringent requirements for its signal employees that are not inconsistent with this proposed rule. Section 246.1 Purpose and Scope This proposed section, derived from 49 CFR 240.1 and 242.1, indicates that the purpose of the proposed rule is to ensure that only those persons who meet minimum Federal safety standards serve as certified signal employees, to reduce the rate and number of accidents and incidents, and to improve railroad safety. Even though a person may have a job title other than signal employee, the requirements of this proposed rule would apply to that person if they meet the definition of ‘‘signal employee’’ without regard to the class or craft of the employee or the manner in which the employee is compensated, if at all. The definition of ‘‘signal employee,’’ and an explanation of who is covered by the definition, are discussed in more detail in the section-by-section analysis for § 246.7, below. Section 246.3 Application and Responsibility for Compliance The extent of FRA’s jurisdiction, and the agency’s exercise of that jurisdiction, is well-established. See 49 CFR part 209, app. A. This proposed application and responsibility for compliance section is consistent with FRA’s Statement of Agency Policy Concerning Enforcement of the Federal Railroad Safety Laws in appendix A to 49 CFR part 209 (Policy Statement). This proposed section, derived from 49 CFR 240.3 and 242.3, provides that the proposed rule would apply to all railroads with four exceptions. E:\FR\FM\31MYP3.SGM 31MYP3 lotter on DSK11XQN23PROD with PROPOSALS3 Federal Register / Vol. 88, No. 104 / Wednesday, May 31, 2023 / Proposed Rules Paragraph (a)(1) of this section notes that this proposed rule would not apply to railroads that do not have a signal system, as defined in § 246.7. In paragraph (a)(2), FRA proposes to exempt 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. Further explanation of what is meant by the term ‘‘plant railroad’’ is provided in the section-by-section analysis for § 246.7. In paragraph (a)(3), FRA is also proposing to exclude ‘‘tourist, scenic, historic, and excursion operations conducted only on track used exclusively for that purpose . . . and only on track inside an installation that is insular.’’ In other words, FRA is proposing to exclude tourist, scenic, historic, or excursion operations conducted only on track where there is no freight, intercity passenger, or commuter passenger railroad operations on the track. In addition, FRA is proposing to consider insularity when determining whether the requirements of this proposed rule apply to a tourist, scenic, historic, or excursion operation. As explained in the Policy Statement, FRA considers a railroad to be ‘‘insular’’ if its operations are limited to a separate enclave in such a way that there is no reasonable expectation that the safety of any member of the public (except a business guest, a licensee of the tourist operation or an affiliated entity, or a trespasser) would be affected by the operation. A railroad is not considered insular if one or more of the following exists on its line: (a) A public highwayrail grade crossing that is in use; (b) an at-grade rail crossing that is in use; (c) a bridge over a public road or waters used for commercial navigation; or (d) a common corridor with a railroad (i.e., its operations are within 30 feet of those of any railroad). In addition, when determining insularity for purposes of this proposed rule, FRA would consider whether a public pathway grade crossing is located on the railroad line. FRA is proposing to add this criterion to the determination of insularity for purposes of this proposed rule, in recognition of the potential safety risks associated with the use of public pathway grade crossings by members of the general public. FRA believes that applying the proposed regulatory requirements in this part to signal employees who work on non-insular passenger rail operations off the general system is warranted by VerDate Sep<11>2014 21:03 May 30, 2023 Jkt 259001 the potential risk to passengers associated with accidents involving heavy motor vehicles. FRA acknowledges that a passenger railroad off the general system may be considered non-insular, yet have only private grade crossings on its line of railroad. Due to the non-insular status of the railroad, signal employees who install, maintain, test, or repair trainactivated warning devices at those private grade crossings or who install, maintain, test, or repair signal systems on its line would be subject to this rule. The final proposed exclusion in § 246.3(a)(4) covers rapid transit operations in an urban area that are not connected to the general railroad system of transportation. It should, however, be noted that FRA exercises jurisdiction over some rapid transit type operations, given their links to the general railroad system of transportation, such as rapid transit operations conducted on track used for freight, intercity passenger, or commuter passenger railroad operations, during a block of time during which a general system railroad is not operating (temporal separation). Thus, this proposed rule would apply to persons who perform work on signal systems for those rapid transit type operations. Paragraph (b) is intended to clarify that any person, as defined in § 246.7 (including a railroad employee or employee of a railroad contractor) who performs a function required by this part will be held responsible for compliance. Section 246.5 Effect and Construction This proposed section is derived from 49 CFR 240.5 and 242.5. Paragraph (a) addresses the relationship of this proposed rule to preexisting legal relationships. Paragraph (b) states that FRA does not intend to alter the authority of a railroad to initiate disciplinary sanctions against its employees by issuance of this proposed rule. Paragraph (c) of this section is intended to note that, 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. The term ‘‘flowback’’ has been used in the industry to describe a situation where an employee leaves their current position to return to a previously held position or craft. The reasons for reverting back to the previous craft may derive from personal choice or a less voluntary nature (such as downsizing). Many collective bargaining agreements address the issue of flowback. However, paragraph (c) must be read in conjunction with PO 00000 Frm 00009 Fmt 4701 Sfmt 4702 35639 § 246.213, which would limit flowback in certain situations (i.e., when a certificate is revoked due to an alcohol or drug violation). Paragraph (d) of this proposed section addresses employee rights. The proposed rule would explicitly preserve any remedy already available to the person and would not create any new entitlements. Section 246.7 Definitions This section defines a number of terms that have specific meaning in this proposed part. Some of these terms have definitions that are similar to, but may not exactly mirror, definitions used elsewhere in this chapter. Contractor, as defined in this proposed part, would include prime contractors, as well as subcontractors. This definition, which mirrors the definition of ‘‘contractor’’ in 49 CFR part 243, has been included in this section to help explain FRA’s intent that the requirements of this part which apply to railroad contractors are also intended to apply to railroad subcontractors as well. Disable, as defined in this proposed part, would mean to render a device [or system] incapable of proper and effective action or to materially impair the functioning of that device. In the interest of consistency, this proposed definition is very similar to the definition of ‘‘disable’’ provided in § 218.53 of FRA’s railroad operating practices regulations. However, for purposes of this proposed part, the term ‘‘disable’’ would include situations in which a device or system is lawfully rendered incapable of proper and effective action. Consistent with parts 240 and 242, FRA proposes to define ‘‘drug’’ as any substance (other than alcohol) that has known mind- or function-altering effects on an individual, specifically including any psychoactive substance and including, but not limited to, controlled substances. This term is intended to refer to substances that have a significant potential for abuse and/or dependence. Normal ingestion of caffeine in beverages and use of nicotine from tobacco products, even though involving some degree of habituation or dependence, are not intended to be included within the definition. In this proposed part, the terms ‘‘ineligible’’ and ‘‘ineligibility’’ would be catch-all terms that not only encompass revocation and denial of certification, but also cover other situations in which a signal employee would be legally disqualified from serving as a signal employee. For example, a certified signal employee E:\FR\FM\31MYP3.SGM 31MYP3 lotter on DSK11XQN23PROD with PROPOSALS3 35640 Federal Register / Vol. 88, No. 104 / Wednesday, May 31, 2023 / Proposed Rules may voluntarily refer him or herself for substance abuse counseling or treatment under 242.115(c). If the signal employee then refuses to complete a course of action recommended under the provisions of 49 CFR 219.1003, that would not be an operating rule or procedure, or type of alcohol or drug violation that would require revocation (nor would it require denial of certification). Rather the signal employee 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 219.1003 that the person could safely return to duty under certain conditions. In this proposed part, mentor would be defined as a certified signal employee who has at least one year of experience as a certified signal employee. FRA is proposing to define the term, ‘‘mentor,’’ to help clarify that a mentor provides direct supervision and oversight over the work of one or more signal employees. In this proposed part, person would take on the same meaning as it does in FRA’s other safety rules. The proposed definition is intended to clarify that this term does not apply merely to individual persons. Instead, the term would mean ‘‘an entity of any type covered under 1 U.S.C. 1’’ and the proposed definition goes into detail regarding the types of people and entities that are covered. FRA proposes a definition of plant railroad to aid in the understanding of the application of this part pursuant to section 246.3(a)(1). The definition coincides with FRA’s longstanding explanation of how the agency will not exercise jurisdiction over a plant railroad that does not operate on the general system of transportation and does not move cars for other entities. See 49 CFR part 209, app. A. Although the RSIA required FRA to issue a report to Congress on whether the certification of certain crafts or classes of railroad carrier or railroad carrier contractor or subcontractor employees, including ‘‘signal repair and maintenance employees,’’ is necessary to reduce the number and rate of accidents and incidents or to improve railroad safety, the RSIA did not define the term, ‘‘signal repair and maintenance employees.’’ In the absence of such a definition in the RSIA, FRA proposes to use the streamlined term, ‘‘signal employee.’’ FRA also proposes to define this streamlined term, ‘‘signal employee,’’ as a person who is engaged in installing, VerDate Sep<11>2014 21:03 May 30, 2023 Jkt 259001 troubleshooting, testing, repair, or maintenance of railroad signal systems, highway-rail and pathway grade crossing warning systems, unusual contingency detection devices, powerassisted switches, broken rail detection systems, and switch-point indicators, as well as other safety-related devices, appliances, and systems installed on the railroad in signaled or non-signaled territory. This proposed definition is generally consistent with the definition of ‘‘signal employee’’ in the hours of service law but includes the terms ‘‘troubleshooting’’ and ‘‘testing’’ which are not found in the statutory definition.19 Consistent with parts 240 and 242, the term ‘‘substance abuse disorder’’ is defined as 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. This proposed definition would include drug and alcohol users who engage in abuse patterns which result in ongoing safety risks and violations. A substance abuse disorder is ‘‘active’’ within the meaning of this proposed rule if the person (1) is currently using alcohol or other drugs, except under medical supervision consistent with the restrictions described in § 219.103 of this chapter or (2) has failed to successfully complete primary treatment or successfully participate in aftercare as directed by a Substance Abuse Professional (SAP) or Drug and Alcohol Counselor (DAC). Section 246.9 Waivers This proposed section, derived from 49 CFR 240.9 and 242.9, provides the proposed requirements for a person seeking a waiver of any section of this proposed rule. Section 246.11 Penalties and Consequences for Noncompliance This proposed section, derived from 49 CFR 240.11 and 242.11, explains that FRA may impose civil penalties on any person, including a railroad or a contractor providing goods or services to a railroad, that violates any 19 49 U.S.C. 21101(4). The hours of service law defines ‘‘signal employee’’ as ‘‘an individual who is engaged in installing, repairing, or maintaining signal systems.’’ 49 U.S.C. 21101(4). While FRA believes ‘‘troubleshooting’’ and ‘‘testing’’ would fall under the terms ‘‘installing, repairing, or maintaining’’ in the hours of service law definition, FRA wanted to make explicit in this rule that ‘‘troubleshooting’’ and ‘‘testing’’ are included in the definition of ‘‘signal employee.’’ The addition of ‘‘troubleshooting’’ and ‘‘testing’’ in the proposed definition in this rule is not intended to capture a broader group of employees than provided in the hours of service law. PO 00000 Frm 00010 Fmt 4701 Sfmt 4702 requirement of this proposed rule. Any person who violates a requirement of this proposed rule may be subject to civil penalties between the minimum and maximum amounts authorized by statute and adjusted for inflation per violation. Individuals may be subject to penalties for willful violations only. Where a pattern of repeated violations, or a grossly negligent violation creates an imminent hazard of death or injury, or causes death or injury, an aggravated maximum penalty may be assessed.20 Finally, a person may be subject to criminal penalties under 49 U.S.C. 21311 for knowingly and willfully falsifying reports required by these proposed regulations. Consistent with FRA’s final rule regarding the removal of civil penalty schedules from the CFR (84 FR 23730 (May 23, 2019)), FRA will not publish a civil penalty schedule for this rule in the CFR, but plans to publish a civil penalty schedule on its website. Penalty schedules are statements of agency policy, thus notice and comment are not required prior to their issuance, nor are they required to be published in the CFR. See 5 U.S.C. 553(b)(3)(A). Nevertheless, commenters are invited to suggest the types of actions or omissions under each regulatory section that would subject a person to the assessment of a civil penalty. Commenters are also invited to recommend what penalty amounts may be appropriate, based upon the relative seriousness of each type of violation. Subpart B—Program and Eligibility Requirements Section 246.101 Certification Program Required This proposed section, derived from 49 CFR 240.101 and 242.101, would require railroads to have written certification programs comprised of multiple elements, each of which comports with specific regulatory provisions in the proposed rule related to that element. In addition to these required elements, paragraph (b)(1) would require railroads who elect to classify their certified signal employees into multiple occupational categories (and, in some cases, subcategories) to explain and discuss each category or subcategory of certified signal employees. Paragraph (c) would require railroads to maintain version control for their certification programs. Therefore, railroads would be required to maintain an up-to-date, detailed list or index 20 Please visit FRA’s website for the current aggravated maximum penalty amount at https:// railroads.dot.gov/. E:\FR\FM\31MYP3.SGM 31MYP3 Federal Register / Vol. 88, No. 104 / Wednesday, May 31, 2023 / Proposed Rules tracking every change made to their certification programs. FRA would encourage railroads to maintain a redlined version of their certification programs to reflect changes that have been made over the years in context. lotter on DSK11XQN23PROD with PROPOSALS3 Section 246.103 FRA Review of Certification Programs This proposed section, derived from 49 CFR 240.103 and 242.103, describes the process for the submission and review of signal employee certification programs. Paragraph (a) of this section applies to railroads that have a signal system, as defined in § 246.7, in operation prior to the effective date of the final rule and provides the deadlines for when these railroads would be required to submit their certification programs to FRA. (Paragraph (a) would not, however, apply to railroads that are exempted by § 246.3(a)). The submission schedule in paragraph (a) would require Class I railroads and commuter service railroads to submit their programs earlier than Class II railroads, Class III railroads, and railroads not otherwise classified. The separate deadlines would help space out the initial influx of programs FRA will receive after the final rule goes into effect, to allow FRA to issue approval and disapproval decisions in a more timely manner. FRA also presumes that, in general, Class I railroads and commuter service railroads will have more resources to devote to creating these programs and will be better positioned to create and draft them more quickly. Paragraph (b) of this section would only apply to railroads that commence operations after the effective date of the final rule. Prior to installing, implementing, or operating any signal system as defined in § 246.7, these railroads would be required to submit their signal employee certification program to FRA and obtain FRA approval. Paragraph (c) of this section provides that railroads would submit their programs and their requests for approval (which are described in greater detail in § 246.106(a)) by uploading them to FRA’s secure document submission site. This will allow for more efficient processing and will significantly reduce the risk of a program submission getting lost. FRA will need basic information from each railroad before setting up the user’s account. In order to provide secure access, information regarding the points of contact will be required. It is anticipated that FRA will be able to approve or disapprove all or part of a program and generate automated VerDate Sep<11>2014 21:03 May 30, 2023 Jkt 259001 notifications by email to a railroad’s points of contact. FRA does not intend to develop a secure document submission site that would allow confidential materials to be identified and not shared with the general public. This is because FRA does not expect the information in a program to be confidential or proprietary, particularly since each railroad would be required to share the program submission, resubmission, or material modification with the president of each labor organization that represents the railroad’s certified signal employees and the program will be available on FRA’s website. See § 246.103(d) and (j). Accordingly, FRA does not at this time believe it is necessary to develop a document submission system to address confidential materials. When a railroad submits its certification program to FRA, paragraph (d) of this section would require the railroad to also submit a copy of the program and the request for approval to the president of each labor organization that represents the railroad’s signal employees and to all of the railroad’s signal employees who would be subject to this part. The railroad’s submission to FRA must include a statement affirming that it has provided a copy of the program and the request for approval to the president of each labor organization that represents its signal employees and to all of the railroad’s signal employees who would be subject to this part. In addition, the railroad would be required to include a list of the names and email addresses of each labor organization president who received a copy of the program. Paragraph (e) of this section explains who would be allowed to comment on these programs. For signal employees who are members of a labor union, any comments must be submitted by a designated representative. Signal employees who are not members of a labor union would, however, be permitted to personally submit comments on their railroad’s certification program. FRA anticipates that comments submitted through this process will assist the agency in determining whether a program conforms to the requirements set forth in this rule, and thus, FRA will not make a decision on a program until after the 45-day comment period in paragraph (e)(1) has passed. Paragraph (f) of this section states FRA’s aspirational goal to decide on whether to approve a program within 90 days of the date that the program is submitted. However, this would only be a goal and not a deadline for the agency. PO 00000 Frm 00011 Fmt 4701 Sfmt 4702 35641 Paragraph (f)(3) explains that if FRA is unable to issue a decision on the program within 90 days, the program will not be considered approved on the 91st day. A certification program will not be approved until FRA issues a letter notifying the railroad that its program has been approved. While FRA will make every effort to issue approval and disapproval letters within 90 days, FRA recognizes that this will not always be possible. It may be especially difficult for FRA to meet this goal during the initial implementation of the final rule issued in this rulemaking when FRA expects to receive many certification programs within a relatively short period of time. Paragraph (g) of this section addresses the process for railroads who wish to materially modify their previously approved programs. If a railroad wishes to materially modify its certification program, it must submit two documents to FRA: (1) a description of how it intends to modify its current program (this constitutes the request for approval required under § 246.106(a)); and (2) a copy of the modified program. Paragraph (g)(1) defines a ‘‘material modification’’ as a modification that ‘‘would affect the program’s conformance with this part.’’ This definition is taken from 49 CFR 240.103(h)(1) and 242.103(i)(1) and is intentionally broad to cover many different types of program modifications. FRA recognizes that there may be some desire among some interested parties to have a more specific definition of ‘‘material modification’’ in the regulation. Thus, FRA welcomes any comments on suggested changes to the proposed definition of ‘‘material modification.’’ Paragraph (g)(3) explains that the process for submission and review of material modifications mirrors the process for submission and review of initial certification programs. Railroads would be required to submit their material modifications to FRA in conformance with paragraph (c) of this section and would be required to send a copy of the material modification description and the modified program to all required parties referenced in paragraph (d) of this section. Certain interested parties would be allowed to comment on the modification in conformance with paragraph (e) of this section, and FRA would issue a letter either approving or disapproving the material modification in conformance with paragraph (f) of this section. If FRA approves the material modification, the railroad could begin implementing the modification and the modified program would replace the original program. If E:\FR\FM\31MYP3.SGM 31MYP3 lotter on DSK11XQN23PROD with PROPOSALS3 35642 Federal Register / Vol. 88, No. 104 / Wednesday, May 31, 2023 / Proposed Rules FRA disapproves the material modification, the railroad would not be allowed to implement the modification and the original program must remain in effect. If a railroad’s material modification submission contains multiple modifications, FRA reserves the right to approve some modifications while disapproving other modifications. In such an instance, the railroad could only begin implementing those modifications that FRA has approved. Paragraph (h) of this section describes the process to resubmit a program or material modification that was previously disapproved by FRA. Paragraph (h)(2) notes that the process for submission and review of resubmitted programs and material modifications mirrors the process for submission and review of initial certification programs. Railroads would resubmit their initial programs or material modifications to FRA in conformance with paragraph (c) of this section and would send a copy of the resubmitted program or material modification to all required parties referenced in paragraph (d) of this section. Certain interested parties would be allowed to comment on the resubmitted program or material modification in conformance with paragraph (e) of this section and FRA would issue a letter either approving or disapproving the resubmitted program or material modification in conformance with paragraph (f) of this section. Railroads would, however, remain responsible for maintaining their signal systems, as defined in § 246.7, in compliance with Federal regulations even if rail operations cease or have not yet been initiated. Paragraph (h)(3) provides the deadlines, if any, for when a railroad must resubmit its certification program or material modification to FRA. For railroads that have installed or implemented a signal system, as defined in § 246.7, prior to the effective date of the final rule (legacy railroads), if their initial certification program is disapproved by FRA, the railroad would be required to resubmit its program within 30 days of the date FRA notified the railroad that its program was deficient. If a legacy railroad fails to resubmit its program within 30 days and continues operations, FRA may use its enforcement discretion to determine whether enforcement action against the railroad is warranted. FRA believes a 30-day deadline is needed for legacy railroads because § 246.105(a) allows legacy railroads to continue operations while they await FRA approval of their programs. Thus, without a deadline, legacy railroads VerDate Sep<11>2014 21:03 May 30, 2023 Jkt 259001 could purposely delay coming into compliance with the final rule issued in this rulemaking by taking months or even years to resubmit their programs. In contrast, railroads that begin operations after the effective date of the final rule cannot begin operations until FRA approves their program. Likewise, no railroad (legacy or non-legacy) can implement a material modification to its program until FRA has approved the modification. In these scenarios, a deadline is unnecessary because the railroad has every incentive to resubmit its programs or material modifications in a timely manner. However, while there is no FRA-imposed deadline in these scenarios, FRA still recommends that railroads provide their resubmissions within 30 days of being notified of deficiencies. Paragraph (i) of this section acknowledges that FRA reserves the right to revisit its prior approval of a certification program. In certain circumstances, including an audit of a certification program, FRA may discover that it made an error when it previously approved a program. This paragraph allows FRA to rescind a wrongful prior approval while also providing the railroads with certain rights. Paragraph (i)(3) notes that the process for submission and review of programs whose prior approval has been rescinded mirrors the process for submission and review of initial certification programs and resubmission of initially disapproved programs. Railroads would resubmit their programs to FRA in conformance with paragraph (c) of this section and they would send a copy of the resubmitted program to all required parties referenced in paragraph (d) of this section. Certain interested parties would be allowed to comment on the resubmitted program in conformance with paragraph (e) of this section, and FRA would issue a letter either approving or disapproving the resubmitted program in conformance with paragraph (f) of this section. Paragraphs (i)(6) and (i)(7) allow for a grace period where a rescinded program may remain in effect for a certain period of time. However, once FRA approves a resubmitted program, the resubmitted program must replace the rescinded program. In addition, a rescinded program can no longer remain in effect if FRA has twice disapproved the railroad’s resubmitted program. This latter scenario is best explained through an example: On February 10th, FRA notifies ABC Railroad (ABC) that FRA is rescinding its prior approval of the railroad’s signal employee certification program. On March 10th, ABC PO 00000 Frm 00012 Fmt 4701 Sfmt 4702 resubmits its program to FRA. On June 10th, FRA disapproves ABC’s resubmitted program. On July 10th, ABC sends FRA its second resubmitted program. On October 10th, FRA issues a letter once again disapproving ABC’s program. In this example, ABC’s rescinded program could remain in effect between February 10th and October 10th. However, after October 10th, the rescinded program could no longer be in effect. If ABC continued to operate its signal system after October 10th, when it did not have an FRAapproved certification program, FRA could find that the railroad failed to implement a program. In such cases, FRA would determine the appropriate enforcement approach to achieve compliance, including civil penalties and/or an emergency order. In exercising its enforcement discretion, FRA may consider such factors as the number and extent of the remaining deficiencies in the program and whether the railroad made good faith efforts to address the deficiencies in its resubmissions. Finally, paragraph (j) of this section notes that the following documents would be made available on FRA’s website (railroads.dot.gov): (1) certification programs and material modifications submitted by the railroads; (2) any comments to the submissions from the railroads; and (3) the letters from FRA approving or disapproving a program or a material modification. While parts 240 and 242 do not currently require the posting of these documents on FRA’s website, the current practice with respect to locomotive engineer and conductor certification programs has been for FRA to post comments on a railroad’s submission, as well as FRA approval and disapproval letters, on its website. Paragraph (j) of this section in this proposed rule is intended to make the proposed review and approval process for railroad signal employee certification programs as transparent as possible. Section 246.105 Implementation Schedule for Certification Programs This section, derived from 49 CFR 240.201 and 242.105, contains the timetable for implementing this proposed rule. Paragraph (a) of this section acknowledges railroads that have installed or implemented a signal system, as defined in § 246.7, prior to the effective date of the final rule may continue their rail operations while they await FRA’s approval of their certification programs. However, if FRA disapproves a legacy railroad’s certification program twice (the initial E:\FR\FM\31MYP3.SGM 31MYP3 lotter on DSK11XQN23PROD with PROPOSALS3 Federal Register / Vol. 88, No. 104 / Wednesday, May 31, 2023 / Proposed Rules submission and the first resubmission), the railroad will no longer be in compliance with the rule if it continues to operate its signal system without an FRA-approved program. In such a scenario, FRA could find that the railroad has failed to implement a program and would determine the appropriate enforcement approach to achieve compliance, including civil penalties and/or an emergency order. In exercising this enforcement discretion, FRA may consider such factors as the number and extent of the remaining deficiencies in the program and whether the railroad made good faith efforts to comply with the requirements of the rule through its submitted program. Paragraph (b) provides that any nonlegacy railroad (a railroad that did not have any signal system, as defined in § 246.7, installed or implemented prior to the effective date of the final rule) may not install or implement a signal system until FRA has approved its signal employee certification program. Paragraph (c) of this section would require railroads to designate as certified signal employees, in writing, all persons authorized by the railroad to perform the duties of each category or subcategory of certified signal employee identified by the railroad pursuant to § 246.107 as of the effective date of the final rule. Similarly, paragraph (d) of this section would require railroads to designate as certified signal employees, in writing, all such persons authorized by the railroad to perform the duties of certified signal employees pursuant to § 246.107 between the effective date of the final rule and the date FRA approves the railroad’s certification program. Railroads would also be required to issue a certificate to each person they designate. This designation system is modeled after the system used when parts 240 and 242 first went into effect. This system allows ‘‘legacy signal employees’’ to obtain certificates so that when their railroad’s program is approved, they will be considered ‘‘previously certified signal employees’’ when the time comes for them to be recertified through the railroad’s signal employee certification program. Therefore, the recertifying railroad will not have to provide legacy certified signal employees with the kind of basic training that would be given to individuals with little to no signal experience. In other words, a person with 20 years of experience as a signal employee most likely does not need to take a ‘‘Signal 101’’ course that provides a basic overview of signal systems and related technology. Instead, this person would be better served by undergoing VerDate Sep<11>2014 21:03 May 30, 2023 Jkt 259001 continuing education training as described in §§ 246.107(b)(2) and 246.119(j). Paragraph (e) of this section states that after the final rule has been in effect for eight months, no person would be permitted to serve as a certified signal employee unless that person has been certified. Paragraph (f) of this section requires each railroad to make formal determinations concerning those individuals it has designated as certified signal employees within three years after FRA’s approval of the railroad’s certification program. Pursuant to this paragraph, a designated signal employee may serve as a certified signal employee for up to three years from the date of FRA’s approval of the program. At the end of three years, however, the designated signal employee can no longer serve as a certified signal employee unless they successfully complete the tests and evaluations provided in subpart B of this rule (i.e., the full certification process). Thus, individuals who are designated as certified signal employees under paragraphs (c) and (d) of this section could be certified for more than three years before they have to complete the railroad’s full certification process. For example, if a person is designated as a certified signal employee on September 1, 2024, and FRA approves the railroad’s certification program on September 1, 2025, the signal employee would not have to go through the full certification process and get recertified until September 1, 2028 (four years from the date the individual was designated by the railroad as a certified signal employee). Railroads should note that they may not test and evaluate a designated signal employee or signal employee certification candidate under subpart B of this rule until they have a certification program approved by FRA pursuant to § 246.103. In order to test and evaluate all of its designated signal employees by the end of the three-year period, a large railroad would likely have to begin that process well in advance of the end of the threeyear period. For example, paragraph (f), which is derived from the designation provisions in parts 240 and 242, would permit a railroad to test and evaluate one-third of its designated signal employees within one year of the approval date of the railroad’s certification program; another one-third within two years of the program’s approval date; and the final one-third within three years of the program’s approval date. To address the issue of designated signal employees who would be eligible to retire within three years of the date PO 00000 Frm 00013 Fmt 4701 Sfmt 4702 35643 FRA approves their railroad’s certification program, FRA is proposing paragraphs (f)(1) through (3) in this section since it would not be an efficient use of railroad resources to conduct the full certification process for a designated signal employee who is going to retire before the end of their designation period. Paragraph (f)(1) provides that a designated signal employee, 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 three years from the date FRA approves the railroad’s certification program, may request in writing that the railroad not perform the full certification progress on that designated signal employee until three years from the date FRA approves the railroad’s program. Paragraph (f)(2) would allow the railroad to honor the designated signal employee’s request. Thus, paragraphs (f)(1) and (2) allow designated signal employees to serve as signal employees for the full designation 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 designation period 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 designated signal employees properly request that the railroad wait to recertify them at the end of the designation period, but then do not retire by the end of the designation period, the railroad might not be able to recertify everyone in time and would risk violating this rule. In recognition of that risk and the need to give railroads some flexibility to comply with the rule, paragraph (f)(2) also provides that a railroad granting any request to delay performance of the full certification process must grant the request of all eligible persons ‘‘to every extent possible.’’ In addition, paragraph (f)(3) provides that a designated signal employee who is also subject to recertification under part 240 or 242 may not make a request under paragraph (f)(1) of this section. This provision recognizes that railroads would likely want to have concurrent certification processes for certifying a person who will be both a certified signal employee and a certified locomotive engineer or conductor. Thus, it would not be appropriate, in that instance, for a designated signal employee who is already subject to recertification under part 240 or 242 to E:\FR\FM\31MYP3.SGM 31MYP3 35644 Federal Register / Vol. 88, No. 104 / Wednesday, May 31, 2023 / Proposed Rules lotter on DSK11XQN23PROD with PROPOSALS3 make a request to delay the full signal employee certification process. Paragraph (g) of this section provides that after FRA approves a railroad’s certification program, the railroad cannot certify or recertify a person as a signal employee unless that person has been tested and evaluated in accordance with the procedures provided in subpart B of this rule. In other words, after FRA approves a railroad’s program, that railroad can no longer designate persons as certified signal employees under paragraph (c) or (d) of this section. Section 246.106 Requirements for Certification Programs This proposed section, derived from Appendix B to part 240 and Appendix B to part 242, provides both the proposed organizational requirements and a narrative description of the submission required under §§ 246.101 and 246.103. FRA is not proposing to require railroad submissions to be made on a specific form. Instead, FRA proposes to prescribe only minimal constraints on the organization and manner of presenting information. Paragraph (a) of this section addresses what must be included in a railroad’s submission to FRA. Specifically, the railroad must include two documents in its submission: (1) a request for approval; and (2) the certification program. If a railroad is submitting its initial certification program, the request for approval can be a brief document that simply states the railroad is submitting its initial signal employee certification program to FRA for approval. However, if a railroad is making a material modification or modifications to a signal employee certification program that has previously been approved by FRA, the request for approval must describe how the railroad intends to modify its program. In addition, the railroad must provide a copy of the modified certification program that identifies all of the proposed changes from the last FRA-approved version of the program, as required by section 246.103(g). Paragraph (b) of this section would require that signal employee certification programs be divided into six sections, each dealing with a different subject matter, and that the railroad identify the appropriate person to be contacted in the event FRA needs to discuss some aspect of the railroad’s program. Paragraph (b)(1) would require railroads to include basic contact information in Section One of their certification programs and to address whether the railroad elects to accept responsibility for training persons not previously certified as signal employees. VerDate Sep<11>2014 21:03 May 30, 2023 Jkt 259001 However, for railroads that elect to classify their certified signal employees into more than one occupational category or subcategory by class, task, location, or other suitable terminology, paragraph (b)(1) would require the railroad to provide detailed information about each occupational category (and subcategory, if applicable) of certified signal service in Section One of its certification program. Paragraph (b)(2) would require railroads to address in Section Two of their certification programs how they will provide continuing education for certified signal employees. A matter of particular concern to FRA is how each railroad will ensure that certified signal employees receive sufficient training on new signal systems and related technology that are deployed on the railroad’s territory. While a railroad would have the latitude to select the specific subject matters to be covered, the duration of continuing education sessions, the methods of presenting the information, and the frequency with which continuing education will be provided, the railroad must describe in this section how it will use that latitude to ensure that its certified signal employees receive up-to-date and comprehensive training on new signal systems and related technology so as to comply with the training standards set forth in § 246.119(j). However, time and circumstances can diminish both abstract knowledge and the proper application of that knowledge to discrete events. Time and circumstances can also alter the value of previously obtained knowledge and the application of that knowledge. Therefore, certified signal employees also need to have their fundamental knowledge of applicable Federal laws and regulations, as well as railroad signal system safety rules and practices, refreshed periodically. Therefore, the railroad must also describe in Section Two how it will ensure that its certified signal employees remain knowledgeable concerning the safe discharge of their responsibilities, in accordance with the standard set forth in § 246.119(j). Section Three of the certification program must address requirements for the testing and evaluation of previously certified signal employees. Paragraph (b)(3)(i) would require railroads to address how their certification programs will comply with the standards found in § 246.121. Section 246.121 would require railroads, when seeking a demonstration of the signal employee’s knowledge, to employ a written or electronic test containing objective questions that address the following subject matters: (i) compliance with all PO 00000 Frm 00014 Fmt 4701 Sfmt 4702 applicable Federal railroad safety laws, regulations, and orders governing signal systems and related technology; (ii) compliance with all applicable railroad safety and operating rules; and (iii) compliance with all applicable railroad standards, procedures, and instructions for the installation, operation, testing, maintenance, troubleshooting, and repair of the railroad’s signal systems and related technology. In addition, the test must also include a practical demonstration component. Paragraph (b)(3)(ii) would also require railroads, in their certification programs, to explain their procedures for testing vision and hearing acuity and for ensuring that their medical examiners have sufficient knowledge to make determinations on whether candidates for signal employee certification or recertification can safely work as certified signal employees. Section Four of the certification program would address the requirements for training, testing, and evaluating persons not previously certified as signal employees. Railroads that elect, in Section One of the certification programs, to not take responsibility for training persons not previously certified as signal employees can skip this section. Paragraph (b)(4) would require railroads that elect to provide training to persons who have not been previously certified as signal employees to provide details in Section Four for how they will train, test, and evaluate these individuals to ensure they acquire and demonstrate sufficient knowledge and skills to safely perform the job of a certified signal employee. Paragraph (b)(4)(i) would also require railroads to discuss in Section Four its procedures for mentoring candidates for signal employee certification, in accordance with § 246.124. Paragraph (b)(4)(ii) would require railroads to include the same level of detail in Section Four of their certification programs as that provided in Sections Two and Three of their programs. Therefore, railroads would be required to address both the training requirements found in § 246.119 and the knowledge testing requirements in § 246.121. If a railroad intends to rely on another entity to provide training to persons not previously certified as signal employees, paragraph (b)(4)(iii) would require the railroad to explain in Section Four how the railroad will ensure that the training provided by another entity adheres to the railroad’s certification program. Specifically, the railroad would be required to explain how persons not previously certified as signal employees will be given the required training on E:\FR\FM\31MYP3.SGM 31MYP3 Federal Register / Vol. 88, No. 104 / Wednesday, May 31, 2023 / Proposed Rules lotter on DSK11XQN23PROD with PROPOSALS3 the railroad’s signal systems and related technology. Paragraph (b)(5) would require railroads to discuss in Section Five of their certification programs how the railroad will monitor the operational performance of its certified signal employees in accordance with § 246.123. In particular, the railroad must discuss the processes and procedures it will use for ensuring that such monitoring and testing is performed. This includes a description of the scoring system the railroad will employ during monitoring observations and unannounced tests. Finally, paragraph (b)(6) would require railroads to address in Section Six of their certification programs how the railroad will perform routine administration of the program. This section must include summaries of how the program will comply with the various provisions listed in paragraph (b)(6) that contain procedural requirements for railroad certification programs. Section 246.107 Signal Service Classifications This proposed section would permit, but not require, railroads to issue certificates for one or more occupational categories or subcategories of certified signal employee service. While some railroads with only one type of signal employee service might not have any interest in certifying multiple types of signal employee service, larger railroads that have already established multiple categories of signal employee service (such as signal maintainers, signal inspectors, locomotive signal/electrical technicians, etc.) on their territories may find it beneficial to issue certificates for multiple types of signal employee service. Therefore, by allowing railroads to classify their certified signal employees into multiple occupational categories or subcategories, FRA would give railroads the flexibility to shape the structure of their certification programs to highlight the specific tasks and responsibilities for each category and subcategory of certified signal employee working on their territories. A railroad that classifies its certified signal employees into separate categories, such as signal maintainers, signal inspectors, and locomotive signal/electrical technicians, would be permitted to issue specific certificates for each category of signal employee service. This proposed section would also allow railroads to certify signal employees for signal system work on specific railroad divisions or subdivisions, as opposed to issuing one universal signal employee certificate VerDate Sep<11>2014 21:03 May 30, 2023 Jkt 259001 that would certify the signal employee to perform signal system work anywhere on the certifying railroad’s territory. As further explained in the Section-bySection Analysis of § 246.106(b), railroads that choose to classify their certified signal employees into multiple occupational categories and subcategories would be required by § 246.106(b)(1)(iv) to provide detailed information about each occupational category (and subcategory, if applicable) of its certified signal employees. Paragraph (b) of this section would require certified signal employees to immediately notify the railroad (or their employer, if they are not employed by a railroad) if they are called to work on a signal system or signal-related technology on which they have not been certified. When notified that a certified signal employee has been called to work on a signal system or signal-related technology on which the employee has not been certified, paragraph (c) would prohibit the railroad from requiring the certified signal employee to work on the signal system or signal-related technology unless the certified signal employee is allowed to work under the direct oversight and supervision of a mentor in accordance with § 246.124. Section 246.109 Determinations Required for Certification and Recertification This proposed section lists the determinations that would be required for evaluating a candidate’s eligibility to be certified or recertified. The reference to § 246.303 in paragraph (a)(2) of this section is to ensure railroads determine whether a candidate is eligible to hold a certification by reviewing any prior revocations addressed in subpart D of this rule. Despite the reference in paragraph (a)(1) of this section to provisions in §§ 246.111 and 246.113 requiring a review of safety conduct information from the preceding five years, § 246.113(g)(1) would not permit a railroad to consider information concerning safety conduct that occurred prior to the effective date of the final rule issued in this rulemaking. Even though this provision would result in a railroad’s evaluation of less than five years’ worth of information for some signal employees early on in the rule’s effective period, it is included in part 246 for the same reason similar provisions were included in parts 240 and 242—namely, that all signal employees should be permitted to start with a ‘‘clean slate’’ for certification purposes as a matter of basic fairness. See 56 FR 28228, 28242 (June 19, 1991). PO 00000 Frm 00015 Fmt 4701 Sfmt 4702 35645 Paragraph (b) of this section would provide flexibility to railroads and signal employees or signal employee candidates in obtaining the information required by §§ 246.111 and 246.113. For example, in some states, railroads may be able to obtain motor vehicle operator data for signal employees and signal employee candidates through background checks. Section 246.111 Prior Safety Conduct as Motor Vehicle Operator This proposed section, derived from 49 CFR 240.111, 240.115, and 242.111, would provide the requirements and procedures that a railroad would be required to follow when evaluating a certified signal employee or certification candidate’s prior safety conduct as a motor vehicle operator. 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 signal employee would be required to request in writing that the chief of each driver licensing agency that issued them 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). Based on the NDR statute and regulation (see 49 U.S.C. chapter 303 and 23 CFR part 1327), railroads are prohibited from running NDR checks or requesting NDR information from individuals seeking employment as certified signal employees. Paragraphs (b) and (c) 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 § 246.109(a)(1) through (5). If a railroad certifies or recertifies a person for 60 days pursuant to paragraphs (b) and (c) but is unable to obtain and evaluate the required information during those 60 days, the person would be ineligible to perform as a certified signal employee 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 be required to certify or recertify a person if the person E:\FR\FM\31MYP3.SGM 31MYP3 lotter on DSK11XQN23PROD with PROPOSALS3 35646 Federal Register / Vol. 88, No. 104 / Wednesday, May 31, 2023 / Proposed Rules otherwise meets the eligibility requirements of § 246.109(a)(1) through (5). Paragraph (k) of this section would require certified signal employees or persons seeking certification as signal employees to notify their employer (if employed by a railroad or contractor to a railroad), all prospective certifying railroads (if applicable), and all railroads with whom the person holds a signal employee certificate of motor vehicle incidents described in paragraph (m) of this section within 48 hours of the conviction or completed State action to cancel, revoke, suspend, or deny their motor vehicle driver’s license for such incidents. Paragraph (k) would also prohibit railroads from having a more restrictive company rule requiring certified signal employees or persons seeking signal employee certification to report a conviction or completed State action to cancel, revoke, or deny a motor vehicle driver’s license in less than 48 hours. The reasoning behind proposed paragraph (k) 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 has received due process from the State agency taking the action against the motor vehicle license. 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 drug and alcohol counselor (DAC) under paragraph (n) of this section would not occur prematurely. However, proposed paragraph (k) would not prevent an eligible person from choosing to voluntarily self-refer. Nor would it prevent the railroad from referring the person for an evaluation under an internal railroad policy if other information exists that identifies the person as possibly having a substance abuse disorder. Paragraph (n) of this section would provide that if a motor vehicle incident described in paragraph (m) is identified, the railroad would be required to provide the data to its DAC along with ‘‘any information concerning the person’s railroad service record.’’ Furthermore, the person would have to be referred for evaluation to determine whether the person has an active substance abuse disorder. If the person has an active substance abuse disorder, the person would not be eligible for certification. However, even if it is determined that the person is not currently affected by an active substance abuse disorder, the railroad would be VerDate Sep<11>2014 21:03 May 30, 2023 Jkt 259001 required, if recommended by a DAC, to condition certification upon participation in any needed aftercare and/or follow-up testing for alcohol or drugs or both. The intent of this proposed provision is to use motor vehicle records to identify signal employees or candidates for signal employee certification 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. Any testing performed as a result of a DAC’s recommendation under paragraph (n) would be done under company authority, not Federal. However, the testing would be required to comply with the ‘‘technical standards’’ of part 219, subpart H, and part 40. Paragraph (n)(5) is intended to clarify that failure to cooperate in the DAC evaluation discussed in paragraphs (n)(2) of this section would result in the person being ineligible to perform as a certified signal employee until such time as the person cooperates in the evaluation. Section 246.113 Prior Safety Conduct With Other Railroads This proposed section, which is derived from 49 CFR 240.113, 240.205, and 242.113, would establish a process for certification candidates to request information about their prior safety conduct when employed or certified by another railroad. Except as otherwise provided by the retroactive time limit contained in paragraph (g) of this section, this section would require railroads to review records provided by railroads that previously employed or certified the certification candidate regarding the candidate’s prior compliance with §§ 246.115 and 246.303 within the previous five years, as well as the candidate’s motor vehicle driving record within the previous three years. Paragraph (b) of this section contains an exception that if a certification candidate has not been employed or certified by any other railroad in the previous five years, they do not have to submit a request pursuant to paragraph (c) of this section. Such candidates, however, must notify the railroad where they are seeking certification of this fact. This exception should help minimize any burden arising from these proposed requirements. For certification candidates who do not qualify for the exception provided in paragraph (b), paragraph (c) would require the certification candidate to submit a written request to each railroad that employed or certified the candidate PO 00000 Frm 00016 Fmt 4701 Sfmt 4702 within the previous five years. As indicated earlier, the written request would direct the previous railroad employer or certifying railroad to provide information about the certification candidate’s prior compliance with §§ 246.115 and 246.303 within the previous five years, as well as the candidate’s motor vehicle driving record within the previous three years from the date of the written request. In addition, railroads would be required by paragraph (e) to comply with written requests for records of prior safety conduct submitted by former employees or certified signal employees pursuant to this section within 30 days after receipt of such requests. Railroads that are unable to provide information about prior safety conduct within 30 days would be required by paragraph (f) to either: (1) provide a written explanation of why the railroad cannot provide the information within the requested time frame, along with an estimate of how much time will be needed to supply the requested information; or (2) provide an adequate explanation for why the railroad cannot provide the information requested. In the event a railroad seeking to certify or recertify a certification candidate receives a written statement from another railroad pursuant to paragraph (f) of this section, which explains that the railroad cannot provide the information requested, the railroad seeking to certify or recertify the certification candidate would be deemed to have complied with the eligibility determination required by paragraph (a) of this section, provided the railroad retains a copy of the other railroad’s written statement in its records. Similarly, in the event a railroad seeking to certify or recertify a certification candidate does not receive a written response from other railroads, the railroad would be deemed to have complied with the eligibility determination required by paragraph (a) of this section provided the railroad retains a copy of its written request for this information in its records. Section 246.115 Substance Abuse Disorders and Alcohol Drug Rules Compliance This proposed section, which is derived from 49 CFR 240.119, 240.205, and 242.115, addresses: (1) active substance abuse disorders; and (2) specific alcohol/drug regulatory violations. As noted earlier, annual drug and alcohol testing data submitted to FRA revealed that signal employees had E:\FR\FM\31MYP3.SGM 31MYP3 lotter on DSK11XQN23PROD with PROPOSALS3 Federal Register / Vol. 88, No. 104 / Wednesday, May 31, 2023 / Proposed Rules a random violation rate (drug and alcohol positives and refusals) and a pre-employment violation rate that was considerably higher than their train and engine service counterparts. Therefore, this section and § 246.111 address certain situations in which inquiry must be made into the possibility that the individual has an active substance abuse disorder if the individual is to obtain or retain a certificate. The fact that specific instances are cited in this section would not preclude the general duty of the railroad to take reasonable and proportional action in other appropriate cases. Declining job performance, extreme mood swings, irregular attendance and other indicators may, to the extent not immediately explicable, indicate the need for an evaluation under internal policies of the railroad. The purpose of identifying conditions is not to require (and does not require) a railroad to order an evaluation any time a listed condition is exhibited. Rather, FRA is simply providing guidance here as to conditions that may, given the context, call for an evaluation under internal policies of the railroad. Moreover, FRA remains vigilant of harassment and intimidation and will take appropriate action if such conduct is discovered. Paragraph (a) of this section would require railroads to determine that a person initially certifying, or a signal employee recertifying, meets the eligibility requirements of this section. In addition, each railroad would be required by § 246.203 to retain the documents used to make that determination. Paragraph (c) of this section would prohibit a person with an active substance abuse disorder from being certified as a signal employee. This means appropriate action must be taken with respect to a certificate (whether denial or suspension) whenever the existence of an active substance abuse disorder comes to the official attention of the railroad, with the exception discussed below. Paragraph (c) would also provide a mechanism for an employee to voluntarily self-refer for substance abuse counseling or treatment. Paragraph (d) would address conduct constituting a violation of § 219.101 or § 219.102 of the alcohol/drug regulations. Section 219.101(a)(1) prohibits regulated employees from using or possessing alcohol or any controlled substance when the employee is on duty and subject to performing regulated service for a railroad. Section 219.101(a)(2) prohibits regulated employees from reporting for VerDate Sep<11>2014 21:03 May 30, 2023 Jkt 259001 regulated service, or going on or remaining on duty in regulated service, while under the influence of (or impaired by) alcohol or while having a breath or blood alcohol concentration of 0.04 or more. A regulated employee is also prohibited from using alcohol either within four hours of reporting for regulated service or after receiving notice to report for regulated service, whichever is less. This is conduct that specifically and directly threatens safety in a way that is wholly unacceptable, regardless of its genesis and regardless of whether it has occurred previously. In its more extreme forms, such conduct is punishable as a felony under the criminal laws of the United States (18 U.S.C. 341 et seq.) and a number of states. Section 219.102 prohibits use of a controlled substance by a regulated employee, at any time, whether on or off duty, except for approved medical use. Abuse of marijuana, cocaine, amphetamines, and other controlled substances poses unacceptable risks to safety. Under the alcohol/drug regulations, whenever a violation of § 219.101 or § 219.102 is established, based on authorized or mandated chemical testing, the employee must be removed from service and may not return until after an SAP evaluation, any needed treatment and/or education, and a negative return-to-duty test, and is subject to follow-up testing (as required by § 219.104). These requirements constitute an absolute minimum standard for action when a signal employee is determined to have violated one of these prohibitions. Considering the need both for general and specific deterrence with respect to future unsafe conduct, additional action should be premised on the severity of the violation and whether the same individual has had prior violations. This proposed rule would require railroads to consider conduct that occurred within the period of five consecutive years prior to the review. This is the same period provided in this proposed rule as the maximum period of ineligibility for certification following repeated alcohol/drug violations and is the same period used in parts 240 and 242. Use of a 5-year cycle reflects railroad industry experience indicating that conduct committed as much as 5 years before may tend to predict future alcohol or drug abuse behavior. For example, in analyzing data submitted to FRA between 2017 and 2021, FRA found that railroad employees returning to duty from previous drug or alcohol violations were approximately five times more likely to test positive than PO 00000 Frm 00017 Fmt 4701 Sfmt 4702 35647 other railroad employees. Of course, railroads would retain the flexibility to consider prior conduct (including conduct more than 5 years prior) in determining whom they will hire as signal employees. Conduct violative of the FRA proscriptions against alcohol and drugs need not occur while the person is serving in the capacity of a signal employee in order to be considered. For instance, an employee who violated § 219.101 while working as a conductor and then sought signal employee certification six months later (under the provision described below) would not be eligible for certification. The same is true under part 240—an employee who violates § 219.101 while working as a brakeman and then seeks locomotive engineer certification six months later would not be eligible for certification at that time. The responsibility of the railroad would therefore not be limited to periodic recertification. This proposed rule would require a review of certification status for any conduct in violation of § 219.101 or § 219.102. The proposed rule would require a determination of ineligibility for a period of 9 months for an initial violation of § 219.101. This would parallel the 9-month ineligibility period in §§ 240.119(c)(4)(iii) and 242.115(e)(4)(iii). Specifying a period of ineligibility serves the interest of deterrence while giving further encouragement to deal with the problem before it is detected by management. In order to preserve and encourage referrals, the nine-month period could only be waived in the case of a qualifying referral (see § 219.1001). FRA believes that this distinction in treatment, which is also found in part 242, is warranted as a strong inducement to participation because referral programs help identify troubled employees before those employees get into accidents and incidents. In the case of a second violation of § 219.101, the signal employee would be ineligible for a period of five years. Given railroad employment practices and commitment to alcohol/drug compliance, it is likely that any individual so situated may also be permanently dismissed from employment. However, it would be important that the employing railroad follow through and revoke the certificate under this proposed rule, so the signal employee could not go to work for another railroad (or railroad contractor) within the five-year period using the unexpired certificate issued by the first railroad as the basis for certification. These proposed sanctions E:\FR\FM\31MYP3.SGM 31MYP3 lotter on DSK11XQN23PROD with PROPOSALS3 35648 Federal Register / Vol. 88, No. 104 / Wednesday, May 31, 2023 / Proposed Rules mirror the sanctions in §§ 240.119 and 242.115. Under this proposed rule, one violation of § 219.102 within the 5-year window would require only temporary suspension and the minimum response described in § 246.115(e) (referral for evaluation, treatment as necessary, negative return-to-duty test, and appropriate follow-up). This parallels the approach taken in parts 240 and 242 and reflects FRA’s intent to not undercut the therapeutic approach to drug abuse employed by many railroads. This approach permits first-time positive drug tests to be handled in a non-punitive manner that concentrates on remediation of any underlying substance abuse problem and avoids the adversarial process associated with investigations, grievances, and arbitrations under the Railway Labor Act and collective bargaining agreements. A second violation of § 219.102 would subject the employee to a mandatory two-year period of ineligibility. A third violation within five years would lead to a five-year period of ineligibility. This proposed rule also addresses violations of §§ 219.101 and 219.102 in combination. A person violating § 219.101 after a prior § 219.102 violation would be ineligible for three years; and the same would be true for the reverse sequence. This mirrors the ineligibility period for locomotive engineers and conductors who have one § 219.101 violation and one § 219.102 violation. See 49 CFR 240.119(e)(4)(ii) and 242.115(e)(4)(ii). Refusals to participate in chemical tests would be treated as if the test were positive. A refusal to provide a breath or body fluid sample for testing under the requirements of 49 CFR part 219 when instructed to do so by a railroad representative would be treated, for purposes of ineligibility under this section, in the same manner as a violation of: (1) § 219.101, in the case of a refusal to provide a breath sample for alcohol testing, or a blood specimen for mandatory post-accident toxicological testing; or (2) § 219.102, in the case of a refusal to provide a body fluid specimen for drug testing. Interested parties should, however, note that 49 CFR part 40, subpart I, discusses medical conditions under which an individual’s failure to provide a sufficient sample would not be deemed a refusal. In addition, subpart G of FRA’s alcohol and drug regulations excuses employees from compliance with the requirement to participate in random drug and alcohol testing if the employee can substantiate a medical emergency involving the employee or an VerDate Sep<11>2014 21:03 May 30, 2023 Jkt 259001 immediate family member. See 49 CFR 219.617. If an employee covered by 49 CFR part 219 refuses to provide a breath or body fluid specimen or specimens when required to by a railroad pursuant to a mandatory provision of 49 CFR part 219, then the railroad (apart from any action it takes under part 246) would be required to remove that employee from regulated service and disqualify the employee from working in regulated service for nine months. See 49 CFR 219.104 and 219.107; see also, 49 CFR part 219, subpart H, and 49 CFR 40.191 and 40.261. The employee would also be prohibited by § 246.213(c) from working as a certified signal employee for any other railroad during this 9month period. Paragraph (e) prescribes the conditions under which employees may be certified or recertified after a determination that the certification should be denied, suspended, or revoked, due to a violation of § 219.101 or § 219.102 of FRA’s alcohol/drug regulations. These conditions are derived from the conditions in §§ 240.119(d) and 242.115(f) and closely parallel the return-to-duty provisions of the alcohol/drug rule. The proposed regulation would not require compensation of the employee for the time spent in this testing, which is a condition precedent to retention of the certificate; but the issue of compensation would ultimately be resolved by reference to the collective bargaining agreement or other terms and conditions of employment under the Railway Labor Act. Moreover, the railroad that intends to withdraw its conditional certification would be required to afford the signal employee the hearing procedures provided by § 246.307 if the signal employee does not waive their right to the hearing. Paragraph (f) would ensure that a signal employee, like any other covered employee, can self-refer for treatment under the alcohol/drug rule (49 CFR 219.1003) before being detected in violation of alcohol/drug prohibitions and would be entitled to confidential handling of that referral and subsequent treatment. This means that a railroad would not normally receive notice from the DAC of any substance abuse disorder identified as a result of a voluntary self-referral under 49 CFR 219.1003. However, paragraph (f) would also require that the railroad policy provide that confidentiality is waived if the signal employee at any time refuses to cooperate in a recommended course of counseling or treatment, to the extent that the railroad must receive notice that the employee has an active substance PO 00000 Frm 00018 Fmt 4701 Sfmt 4702 abuse disorder so that appropriate certificate action can be taken. The effect of this proposed provision is that the certification status of a signal employee who seeks help and cooperates in treatment would not be affected, unless the signal employee fails to follow through. Section 246.117 Vision Acuity This proposed section, derived from 49 CFR 240.121, 240.207, and 242.117, contains the requirements for vision acuity testing that a railroad would have to incorporate in its signal employee certification program. This section differs from its analogous sections in 49 CFR parts 240 and 242 in that 40 CFR parts 240 and 242 address the requirements of vision and hearing acuity in the same section. However, FRA determined that for this proposed rule, it could more clearly present these requirements if they are in two separate sections: one section for vision acuity (§ 246.117) and one section for hearing acuity (§ 246.118). Paragraph (c) of this section contains the general vision standards that a person would be required to satisfy in order to be certified as a signal employee unless they are determined to have sufficient vision acuity under paragraph (d) of this section. The standards in paragraph (c) mirror the vision acuity standards for locomotive engineers and conductors in 49 CFR parts 240 and 242. FRA is proposing that certified signal employees should have to satisfy certain vision standards, with the ability to distinguish between colors being particularly important. However, FRA requests comments on whether vision acuity standards for certified signal employees are necessary, and if so, whether they should be as strict as the standards for locomotive engineers and conductors. Although some individuals may not be able to meet the threshold acuity levels in paragraph (c) of this section, they may be able to compensate in other ways that will permit them to function at an appropriately safe level despite their physical limitations. Paragraph (d) of this section permits a railroad to have procedures whereby doctors can evaluate such individuals and make discrete determinations about each person’s ability to compensate for their physical limitations. If the railroad’s medical examiner concludes that an individual has compensated for their limitations and could safely serve as a certified signal employee, the railroad could certify that person under this proposed regulation if the railroad obtains the medical examiner’s professional medical opinion to that E:\FR\FM\31MYP3.SGM 31MYP3 Federal Register / Vol. 88, No. 104 / Wednesday, May 31, 2023 / Proposed Rules lotter on DSK11XQN23PROD with PROPOSALS3 effect. If necessary, medical examiners could condition their opinion on certain circumstances or restrictions, such as the use of corrective lens. Paragraph (e) of this section describes what documents the railroad would be required to keep on file with respect to vision acuity testing. Railroads would be required to retain these records for individuals who the railroad certifies as signal employees, as well as those individuals for whom the railroad denies certification. Paragraph (g) of this section addresses the issue of vision deterioration. Once certified signal employees become aware that their vision has deteriorated, they must notify the railroad before performing any subsequent service as a certified signal employee. FRA presumes that certified signal employees would most likely become aware of deterioration in their vision either through their own personal observation or through examination by a medical professional. Should this occur, before a certified signal employee can return to service, they must be reexamined. If upon reexamination, the railroad’s medical examiner concludes that the certified signal employee still satisfies the vision acuity standards in this part, the certified signal employee would be allowed to return to service. However, if the medical examiner concludes that the certified signal employee no longer satisfies these requirements, the railroad must deny the person’s certification in accordance with § 246.301, regardless of how much time remains before the signal employee’s current certificate expires. Certified signal employees should note that willful noncompliance with the notification requirement in this paragraph could result in enforcement action. Section 246.118 Hearing Acuity This proposed section, derived from 49 CFR 240.121, 240.207, and 242.117, contains the requirements for hearing acuity testing that a railroad would be required to incorporate in its signal employee program. Paragraph (c) of this section contains the general hearing standards that a person must satisfy in order to be certified as a signal employee unless they are determined to have sufficient hearing acuity under paragraph (d) of this section. The standards in paragraph (c) mirror the hearing acuity standards for locomotive engineers and conductors in 49 CFR parts 240 and 242. FRA is considering whether hearing acuity standards are necessary for certified signal employees and if so, whether they need to be as stringent as the standards for engineers and VerDate Sep<11>2014 21:03 May 30, 2023 Jkt 259001 conductors. FRA proposes that certified signal employees should have to satisfy certain hearing standards and it seems logical for these standards to be consistent with the hearing standards for engineers and conductors. However, FRA requests comments on whether hearing acuity standards for certified signal employees are necessary, and if so, whether they should be as strict as the standards for locomotive engineers and conductors. Although some individuals may not be able to meet the threshold acuity levels in paragraph (c) of this section, they may be able to compensate in other ways that will permit them to function at an appropriately safe level despite their physical limitations. Paragraph (d) of this section would permit a railroad to have procedures whereby doctors can evaluate such individuals and make discrete determinations about each person’s ability to compensate for their physical limitations. If the railroad’s medical examiner concludes that an individual has compensated for their limitations and could safely serve as a certified signal employee, the railroad could certify that person under this regulation once the railroad possesses the medical examiner’s professional medical opinion to that effect. If necessary, medical examiners could condition their opinion on certain circumstances or restrictions, such as the use of a hearing aid. Paragraph (e) of this section describes what documents the railroad would be required to keep on file with respect to hearing acuity testing. Railroads would be required to retain these records for both individuals who the railroad certifies as signal employees and those individuals for whom the railroad denies certification. Paragraph (g) of this section addresses the issue of hearing deterioration. Once certified signal employees become aware that their hearing has deteriorated, they would be required to notify the railroad before performing any subsequent service as a certified signal employee. FRA presumes certified signal employees would most likely become aware of deterioration in their hearing either through their own personal observation or through examination by a medical professional. Before a certified signal employee could return to service, they would have to be reexamined. If upon reexamination, the railroad’s medical examiner concludes that the certified signal employee still satisfies the hearing acuity standards in this part, the certified signal employee could return to service. However, if the medical examiner concludes that the certified signal employee no longer satisfies these PO 00000 Frm 00019 Fmt 4701 Sfmt 4702 35649 requirements, the railroad would be required to deny the person’s certification in accordance with § 246.301, regardless of how much time remains before the signal employee’s current certificate expires. Certified signal employees should note that willful noncompliance with the notification requirement in this paragraph could result in enforcement action. Section 246.119 Training Requirements This proposed section, derived from 49 CFR 240.123, 240.213, and 242.119, would require railroads to provide initial and periodic training to signal employees. Such training is necessary to ensure certified signal employees have the knowledge, skills, and abilities necessary to safely perform all of the safety-related duties mandated by Federal law, regulations, and orders. Paragraph (b) of this section would require railroads to address in their certification programs whether the railroad will accept responsibility for training persons who have not been previously certified as signal employees and thus obtain authority to provide initial signal employee certification or whether the railroad will only recertify signal employees who were previously certified by other railroads. If a railroad accepts responsibility for training persons who have not been previously certified as signal employees, paragraph (c) of this section would require the railroad to state in its certification program whether it will conduct the training or whether the railroad will employ a training program that has been adopted and ratified by the railroad, but will be conducted by another entity on its behalf. Under this section, railroads would have latitude to design and develop the training and delivery methods they will employ; but paragraphs (d), (e), and (f) of this section contain proposed requirements for railroads that elect to train persons who have not been previously certified as signal employees. Pursuant to paragraph (d), a railroad that makes this election would be required to determine how training will be structured, developed, and delivered, including an appropriate combination of classroom, simulator, computer-based, correspondence, practical demonstration, on-the-job training, or other formal training. Paragraph (d)(3) would also require railroads to review and modify their training programs whenever new safety-related railroad laws, regulations, orders, and procedures are issued, as well as whenever new signal systems, E:\FR\FM\31MYP3.SGM 31MYP3 lotter on DSK11XQN23PROD with PROPOSALS3 35650 Federal Register / Vol. 88, No. 104 / Wednesday, May 31, 2023 / Proposed Rules technologies, software, or equipment are introduced into the workplace. Paragraph (f) of this section provides the requirements a person not previously certified as a signal employee would have to satisfy in order to become a certified signal employee. Paragraph (f)(2) states the person must demonstrate on-the-job proficiency by successfully completing the tasks, and using the signal systems and technology necessary, to be a certified signal employee on the railroad. A certification candidate may perform these tasks under the direct onsite supervision of a certified signal employee who has at least one year of experience as a signal employee. FRA requests comments, including any supporting data, on whether this ‘‘one year of experience’’ requirement for certified signal employees supervising certification candidates is sufficient. The final proposed requirement, found in paragraph (f)(3), is that the previously uncertified person must demonstrate their knowledge of the railroad’s signal systems, technologies, software, and equipment deployed on the railroad’s territory. If the railroad uses a written test to fulfill this requirement, paragraph (f)(3) would require the railroad to provide the person(s) being tested with an opportunity to consult with a qualified instructor to explain a test question. This requirement is equivalent to 49 CFR 242.119(f) and is included so that certification candidates being tested can obtain clarification of test questions from someone who possesses knowledge of the signal systems, technologies, software and equipment deployed in the relevant territory. Paragraph (g) of this section would require railroads to retain written documentation of the listed determinations. Paragraph (g)(1) would only apply to people who have not been previously certified as signal employees, whereas paragraph (g)(2) would apply to all persons seeking signal employee certification. Paragraph (h) would require all railroads, regardless of their election in paragraph (b) of this section, to provide comprehensive training on the installation, operation, testing, maintenance, and repair of the signal systems and related technology deployed on their territory. (This training must include training on both signal software and signal equipment.) In order to implement this requirement, paragraph (h) requires railroads to address in their certification program how such training will be provided and how the railroad will ensure that each certified signal employee receives this VerDate Sep<11>2014 21:03 May 30, 2023 Jkt 259001 comprehensive training before the employee is required to install, operate, test, maintain, or repair any signal system or related technology deployed on the railroad’s territory. Paragraph (h)(3) would also require railroads to discuss in their programs the maximum amount of time that a certified signal employee can be absent from performing various types of safetysensitive work on signal systems before refresher training will be required. This provision is intended to require railroads to address situations in which a certified signal employee may have been working on signal system installations for an extended period and was not involved in the intricacies of maintenance and repair of those systems during that time. This time period cannot exceed twelve months. However, railroads would be allowed to choose a shorter time period if they desire. Paragraph (j) of this section would require each railroad to provide for the continuing education of their certified signal employees to ensure each certified signal employee maintains the necessary knowledge and skills concerning compliance with all applicable Federal laws, regulations, and orders; compliance with all applicable railroad signal system safety and operating rules; and compliance with all applicable standards, procedures, and instructions for the installation, operation, testing, maintenance, troubleshooting, and repair of new and existing signal systems and new and existing signalrelated technology deployed on its territory. Given the formal annual review and analysis of railroad certification programs that each Class I railroad, commuter railroad, and Class II railroad would be required by § 246.215 to conduct, FRA anticipates that these railroads will address issues identified during the annual review and analysis of their certification programs in their continuing education programs. Thus, FRA expects the annual review and analysis required by § 246.215 will help improve the overall quality of the railroads’ training programs. Paragraph (k) is intended to ensure that each certified signal employee receives comprehensive training on the installation, operation, testing, maintenance, and repair of new signal systems (including software and equipment) and new signal-related technology deployed on the railroad’s territory before the employee is required to install, operate, test, maintain, or repair any such system or signal-related technology. PO 00000 Frm 00020 Fmt 4701 Sfmt 4702 Section 246.121 Knowledge Testing This proposed section, derived from 49 CFR 240.125, 240.209, and 242.121, would require railroads to provide for the initial and periodic testing of certified signal employees. Paragraph (b) of this section outlines the general requirements for such testing. This testing will have to effectively examine and measure a signal employee’s knowledge of: (a) all applicable Federal railroad safety laws, regulations, and orders governing signal systems and related technology, (b) all applicable railroad safety and operating rules, and (c) all applicable railroad standards, procedures, and instructions for the installation, operation, testing, maintenance, troubleshooting, and repair of the railroad’s signal systems and related technology. Under this section, railroads would have discretion to design the tests that will be employed; for most railroads that would entail some modification of their existing ‘‘book of rules’’ examination to include new subject areas. This section does not specify the minimum number of questions to be asked or the passing score to be obtained. However, it would require that the test be conducted without open reference books unless use of such materials is part of a test objective. Also, this section would require that knowledge testing include a practical demonstration component, with other test components in written or electronic form. Since the testing procedures and requirements selected by the railroad would be submitted to FRA for approval, FRA expects the railroad would describe how it will exercise its discretion to ensure certified signal employees on its territory demonstrate their knowledge concerning the safe discharge of their responsibilities. FRA would also monitor the exercise of discretion being afforded to railroads by this section. Paragraph (c) of this section mirrors 49 CFR 242.121(e) and would require the railroad to provide the person(s) being testing with an opportunity to consult with a qualified instructor to explain one or more test questions. Paragraph (d) of this section states that if a person fails a test, the railroad cannot allow that person to serve as a certified signal employee until they achieve a passing score on reexamination. The railroad would decide how much time, if any, mut pass after a test failure before a certification candidate can be reexamined. Furthermore, the railroad would decide what additional training, if any, a candidate would receive after a test E:\FR\FM\31MYP3.SGM 31MYP3 Federal Register / Vol. 88, No. 104 / Wednesday, May 31, 2023 / Proposed Rules lotter on DSK11XQN23PROD with PROPOSALS3 failure. The railroad would also decide whether there should be a limit on the number of times a candidate could retake a test, and if so, the number of test retakes the railroad will allow. Section 246.123 Monitoring Operational Performance This proposed section, derived from 49 CFR 240.129 and 242.123, contains proposed requirements for conducting unannounced compliance tests. Paragraph (a) of this section would require each railroad to describe in its certification program how it will monitor the conduct of its certified signal employees by performing unannounced compliance tests on the railroad’s signal standards, test procedures, and Federal regulations concerning signal systems, as well as monitoring the performance of signalrelated tasks. Paragraph (a)(3) would require railroads to indicate the types of actions they will take if they identify deficiencies in a certified signal employee’s performance during an unannounced compliance test. FRA believes it is up to each railroad to decide the appropriate action to take in light of various factors, including collective bargaining agreements. Further, FRA believes that the vast majority of railroads have adequate policies to deal with deficiencies in a signal employee’s performance and have handled them appropriately for many years. To avoid restricting the options available to the railroads and employee representatives to develop processes for handling test failures, FRA designed this regulation to be as flexible as possible. There are a variety of actions and approaches that a railroad could take, such as developing and providing formal remedial training for certified signal employees who fail tests or have deficiencies in their performance. Railroads could also implement formal procedures whereby certified signal employees are given the opportunity to explain, in writing, the factors that they believe caused their test failure or performance deficiency. These explanations could help railroads identify areas of training on which to focus or perhaps discover that the reason for the failure/deficiency was due to something other than a lack of skills. FRA believes there are numerous other approaches that could be considered and evaluated by railroads and their certified signal employees. FRA does not want to stifle a railroad’s ability to adopt an approach that is best for its organization. Paragraph (a)(4) would require railroads to describe how they will VerDate Sep<11>2014 21:03 May 30, 2023 Jkt 259001 monitor the performance of signalrelated tasks by their certified signal employees. For example, railroad monitoring could include unaccompanied, post-installation inspections of signal cut-overs (conducted within three days of the installation) to verify that the certified signal employee properly installed and tested the signal system in accordance with the railroad’s signal standards. Paragraph (b) of this section provides proposed requirements for these unannounced compliance tests, including signal system tests that must be performed and who would be allowed to conduct the tests. Paragraph (b)(3) specifies that each railroad would be required to give each of its certified signal employees at least one unannounced compliance test each calendar year, except as provided in paragraph (d) of this section. FRA recognizes that before these unannounced compliance tests can be performed in conformance with this section, a railroad’s certification program must first be approved by FRA. Thus, at the latest, FRA expects railroads to perform these unannounced compliance tests on all of their certified signal employees during the calendar year immediately following the year their certification program is first approved by FRA. For example, if FRA approves one railroad’s program in January 2025 and another railroad’s program in December 2025, both of these railroads would be required to perform unannounced compliance tests on all of their certified signal employees starting in 2026. While FRA would encourage these railroads to commence the unannounced tests after their programs are approved in 2025, FRA recognizes it may not be practical to perform unannounced tests on all of their certified signal employees by the end of 2025, especially for the railroad whose program was not approved until December 2025. Paragraph (c) of this section reflects FRA’s recognition that some certified signal employees may not be performing tasks that require certification. Therefore, a railroad would not be required to provide those certified signal employees with an annual, unannounced compliance test. For example, a certified signal employee may be on furlough, in military service, off with an extended illness, or working in another craft. In situations like these where a certified signal employee is not performing tasks that require certification, the railroad would not have to give an unannounced compliance test. However, when the PO 00000 Frm 00021 Fmt 4701 Sfmt 4702 35651 certified signal employee resumes work on signal systems that requires certification, they would have to be given an unannounced compliance test within 30 days. Moreover, the railroad would be required to retain a written record documenting the dates on which the certified signal employee stopped performing tasks requiring certification, the date the certified signal employee resumed performing signal system work requiring certification, and the date the certified signal employee received their unannounced compliance test following their resumption of signal system work requiring certification. Section 246.124 Mentoring This proposed section would require railroads to include, in their certification programs, procedures for mentoring signal employees who have not been certified by the railroad (such as newly-hired signal employees who were certified by their previous employers). By allowing for the mentoring of these signal employees, railroads can allow uncertified signal employees to perform signal work under the direct oversight and supervision of a mentor until these signal employees are certified by the railroad. After a railroad’s certification program has been approved by FRA, paragraph (b) of this section would require that the railroad assign either a signal employee that it has certified pursuant to this part or a signal employee who is working under the direct observation and supervision of a mentor to perform work on a signal system or signal-related technology that requires certification. Therefore, if the railroad assigns a signal employee that it has not certified to perform work on a signal system or signal-related technology that requires certification, paragraph (b) would require the railroad to assign a mentor who can directly oversee and supervise the work performed by the signal employee. Paragraph (c) of this section would only apply to railroads who elect to classify their certified signal employees into more than one occupational category or subcategory, in accordance with § 246.107. These railroads would be required by paragraph (c) to address in their certification programs how mentoring will be provided for certified signal employees who move into a different occupational category or subcategory of certified signal service. Paragraph (e) of this section reflects FRA’s intent that mentors must be held accountable for the work performed by the signal employees who are working under their direct oversight and supervision. Therefore, paragraph (e) E:\FR\FM\31MYP3.SGM 31MYP3 35652 Federal Register / Vol. 88, No. 104 / Wednesday, May 31, 2023 / Proposed Rules would require railroads to address in their certification programs how they will hold mentors accountable for the work performed by signal employees who are working under their direct oversight and supervision. Section 246.125 Certification Determinations Made by Other Railroads This section of the proposed rule, derived from 49 CFR 240.225 and 242.125, contains requirements that would apply when a certified or previously certified signal employee is about to begin work for a different railroad. This section would allow a railroad to rely on determinations made by another railroad concerning a person’s certification. As noted previously in the discussion above related to § 246.124, railroads would be required to provide mentoring for signal employees with some signal system work experience who have not been certified by the railroad. However, this section would also require railroads to address in their certification programs how they will administer training for previously uncertified signal employees with extensive signal experience or previously certified signal employees who have had their certification expire. In both scenarios, FRA would allow the railroad to reduce the on-the-job training that might otherwise be required if these signal employees were treated as having no signal system work experience. However, if a railroad’s certification program fails to specify how the railroad will train a previously certified signal employee hired from another railroad, all signal employees hired by that railroad would be required to take the hiring railroad’s entire training program (regardless of the signal employee’s prior certification status). Subpart C—Administration of the Certification Program lotter on DSK11XQN23PROD with PROPOSALS3 Section 246.201 Certification Time Limitations for This proposed section, derived from 49 CFR 240.217 and 242.201, contains various time constraints that preclude railroads from relying on stale information when evaluating a candidate for certification or recertification. For example, when making a determination of eligibility based on prior safety conduct on a different railroad pursuant to § 246.113, paragraph (a)(1) would prohibit a railroad from relying on information provided more than one year before the railroad’s certification decision. However, paragraph (b) goes on to VerDate Sep<11>2014 21:03 May 30, 2023 Jkt 259001 explain that the time constraints listed in paragraph (a) would not apply to railroads who are making certification or recertification decisions based on the eligibility determination that have already been made by another railroad in accordance with § 246.125. Paragraph (c) would prohibit a railroad from certifying a person as a signal employee for more than three years except for those individuals who are designated as certified signal employees under § 246.105(c) or (d). When a railroad designates a person as a certified signal employee under § 246.105(c) or (d), that certification can last for three years after the date that FRA initially approves the railroad’s certification program. This could, however, lead to situations where a certificate could be valid for more than three years. For example, if a railroad designates a person as a certified signal employee in January 2025, but FRA does not approve the railroad’s certification program until January 2026, the signal employee’s certification could last until January 2029 (four years in total). However, any subsequent recertifications for that signal employee could only last for three years. In other words, if the signal employee in the previous example got recertified in January 2029, that certificate would expire no later than January 2032. Paragraph (d) would require railroads to issue certificates that comply with § 246.207 to their certified signal employees within 30 days from the date of the railroad’s decision to certify or recertify that person. Section 246.203 Retaining Information Supporting Determinations This proposed section, derived from 49 CFR 240.215 and 242.203, contains recordkeeping requirements for railroads that employ certified signal employees. Paragraph (b) lists the documents that railroads would be required to retain for each of their certified signal employees and certification candidates, while paragraph (e) would require railroads to retain these records for six (6) years from the date of the certification, recertification, denial, or revocation decision. Paragraph (e) would also require railroads to make these records available to FRA representatives, upon request, in a timely manner. Paragraph (f) would prohibit railroads and individuals from falsifying records that railroads are required to retain pursuant to this section. Paragraph (g) contains minimum standards for electronic recordkeeping with which railroads would be required to comply to maintain electronic versions of the PO 00000 Frm 00022 Fmt 4701 Sfmt 4702 required records. These minimum standards for electronic recordkeeping are virtually identical to the electronic recordkeeping standards contained in 49 CFR 242.203. Section 246.205 List of Certified Signal Employees and Recordkeeping This proposed section, derived from 49 CFR 240.221 and 242.205, would require a railroad to maintain a list of its certified signal employees. Paragraph (b) of this section would also require railroads to update their lists of certified signal employees at least annually and to make its list of certified signal employees available, upon request, to FRA representatives in a timely manner. Paragraph (c) contains minimum standards for electronic recordkeeping with which railroads would be required to comply, in order to maintain an electronic version of the list of certified signal employees required by this section. These minimum standards are similar to the electronic recordkeeping standards contained in 49 CFR 242.205. Paragraph (d) would prohibit railroads and individuals from falsifying the list of certified signal employees that railroads are required to maintain pursuant to this section. Section 246.207 Certificate Requirements This proposed section contains proposed requirements for the certificate that each certified signal employee would be required to carry. The requirements in paragraphs (a)–(e) of this section, which pertain to the proposed minimum content for certificates and authorization of the person who would be designated to sign the certificates, are derived from 49 CFR 240.223 and 242.207. Paragraph (a) of this section specifies that railroads have the option of issuing certificates electronically or in paper form. Paragraph (a)(1) would require that the signal employee certificate identify the railroad issuing the certificate. Therefore, a certified signal employee who works for more than one railroad would be required to have a separate certificate for each railroad with whom the signal employee is certified. For railroads who choose to classify their certified signal employees into occupational categories or subcategories, pursuant to § 246.107, paragraph (a)(2) would require the railroad to indicate the specific signal employee category(ies) or subcategory(ies) for which the person has been certified. Paragraph (a)(7) would require the certificate to be signed by an individual who has been designated by the railroad E:\FR\FM\31MYP3.SGM 31MYP3 Federal Register / Vol. 88, No. 104 / Wednesday, May 31, 2023 / Proposed Rules as an authorized signatory of signal employee certificates, as described in paragraph (c) of this section. Electronic signatures are permitted under this proposed rule. In addition, paragraph (e) of this section would prohibit railroads and individuals from falsifying certificates. Paragraphs (f) and (i) are derived from 49 CFR 240.305 and 242.209. These paragraphs would require signal employees to have their certificates in their possession while on duty, display their certificates when requested by an FRA representative, State inspectors 21 authorized under 49 CFR part 212, or certain railroad officers, and to notify a railroad if they are called to serve as a signal employee in a service that would cause the employee to exceed their certificate limits. Paragraph (g), derived from 49 CFR 240.301 and 242.211(a), would require a railroad to promptly replace a certified signal employee’s certificate at no cost to the employee, if the certificate is lost, stolen, mutilated, or becomes unreadable. However, unlike § 242.211(b), this section does not contain detailed requirements for temporary replacement certificates. Temporary replacement certificates generally contain most of the information provided on official certificates. Therefore, it does not appear to be especially burdensome for railroads to issue temporary certificates to replace certificates that have been lost, stolen, mutilated, or become unreadable. Nonetheless, by refraining from proposing a formal process for the issuance of temporary replacement certificates, FRA would allow railroads to decide how and when to issue temporary replacement certificates to signal employees. FRA is soliciting comment on this proposed approach. Section 246.213 Certifications 22 Multiple lotter on DSK11XQN23PROD with PROPOSALS3 This proposed section, derived from 49 CFR 240.308 and 242.213, establishes how railroads would handle certified signal employees who are also certified in another railroad craft. FRA recognizes that while it is fairly common for an 21 Although State inspectors authorized under 49 CFR part 212 could be considered FRA representatives, they are mentioned separately in this section to ensure there is no dispute regarding their authority. 22 To the extent possible, FRA has attempted to match the section numbers in this proposed rule to analogous sections in the conductor certification rule (49 CFR part 242). Since 49 CFR 242.213 addresses multiple certification issues, FRA is proposing to use section number 246.213 for the multiple certification section in this proposed rule instead of the next sequential section number, which would be 246.209. VerDate Sep<11>2014 21:03 May 30, 2023 Jkt 259001 individual to work as both an engineer and a conductor, it is less common for a signal employee to also work in another craft that requires certification. However, because situations may arise where a certified signal employee is also certified to work in another craft, such as a locomotive engineer or conductor, FRA would like to address how railroads would be required to handle such situations. Paragraph (a) of this section would allow a certified signal employee to become certified in one or more of the other railroad crafts that require certification such as locomotive engineer or conductor. If a person is certified in multiple crafts by the same railroad, paragraph (b) would require the railroad to coordinate the expiration dates of those certificates, to the extent possible. While railroads are not required to have all of a person’s certificates expire at the same time, it would be beneficial from the standpoint of administrating the certification programs if railroads followed this practice. Thus, FRA encourages railroads to coordinate these expiration dates when possible. Paragraph (c) of this section would pertain to signal employees who hold signal employee certificates issued by multiple railroads or who are seeking to become certified signal employees for multiple railroads. Paragraph (c)(1) would require the signal employee to immediately notify their employer(s) and all railroads with whom the signal employee holds a signal employee certificate, if a railroad denies, suspends, or revokes the signal employee’s certification or recertification. Certified signal employees should note that willful noncompliance with the notification requirements in this paragraph will likely result in enforcement action including, but not limited to, disqualification from safety-sensitive service. Paragraph (c)(2) would prohibit an individual from working as a certified signal employee for any railroad while their signal employee certification is suspended or revoked by a railroad, except as provided for in § 246.124(d). For example, if an individual is a certified signal employee with Railroad ABC and Railroad DEF, and ABC suspends and/or revokes the individual’s certificate, that individual would not be able to work as a certified signal employee for DEF, or any other railroad, during the period of suspension and/or revocation. (Section 246.124(d) would, however, allow the individual to perform work on signal systems, if allowed by a railroad’s PO 00000 Frm 00023 Fmt 4701 Sfmt 4702 35653 certification program, under the direct oversight and supervision of a mentor.) Paragraph (c)(3) states that if a person has their signal employee certification suspended or revoked by one railroad and that person attempts to become a certified signal employee with another railroad during the certificate suspension or revocation period, they must notify the railroad from whom they are seeking certification that their signal employee certificate has been suspended or revoked. Therefore, if a person is seeking signal employee certification with Railroad XYX when their signal employee certificate is suspended or revoked by Railroad ABC, they must notify XYZ of their current suspended or revoked certification status. Paragraphs (d), (e), and (f) of this section address how the revocation of a person’s signal employee certification would affect that person’s ability to work in another railroad craft requiring certification and vice versa. If a person’s signal employee certification is revoked because of a drug or alcohol violation, as described in § 246.303(e)(11), then that person would be ineligible to work in any craft requiring certification, such as a locomotive engineer or conductor, for any railroad during the period of revocation. Such person would also be prohibited from obtaining certification in any of those crafts from any railroad while their signal employee certification is revoked. Likewise, if a person’s nonsignal employee certification, such as locomotive engineer or conductor, is revoked because of an alcohol or drug violation, as described in § 219.101 of this chapter, that person will be ineligible to work as a certified signal employee or obtain a signal employee certificate from any railroad during the revocation period. In contrast, if a signal employee’s certification is revoked for a violation that does not involve alcohol or drugs, as described in §§ 246.303(e)(1) through (10), that person would still be able to work in any other railroad craft requiring certification, such as a locomotive engineer or conductor, during the period of revocation, as long as the person is certified in that craft. Likewise, a person could still work as a certified signal employee if their certificate for another railroad craft, such as locomotive engineer or conductor, was revoked due to a violation that did not involve drugs or alcohol. FRA’s reasoning for this line of delineation between revocable events that involve alcohol and drugs and those that do not is rooted in railroad safety. If someone shows up to work as E:\FR\FM\31MYP3.SGM 31MYP3 lotter on DSK11XQN23PROD with PROPOSALS3 35654 Federal Register / Vol. 88, No. 104 / Wednesday, May 31, 2023 / Proposed Rules a certified signal employee under the influence of alcohol or drugs, it stands to reason that they could likely show up to work for another craft, such as a locomotive engineer or conductor, under the influence as well. Thus, it makes sense for an individual’s alcohol or drug violations as a certified signal employee to impact their eligibility to work in another craft that requires certification and vice versa. With respect to revocable events that do not involve alcohol or drugs, FRA finds that the tasks performed by a certified signal employee are so inherently different from the tasks performed in another certified craft, such as an operating crew member, that it does not automatically follow that a person’s revocable event as a certified signal employee indicates they are more likely to also have a revocable event while performing in another craft. Thus, FRA is taking the position that the revocation of a signal employee certificate which does not involve alcohol or drugs should not affect that person’s eligibility to work in another railroad craft requiring certification, and vice versa. However, FRA solicits comments on this issue. Paragraphs (f) and (g) would prohibit a railroad from denying or revoking a signal employee’s certification just because their attempt at certification or recertification in another railroad craft, such as locomotive engineer or conductor, was denied and vice versa. Paragraph (h) would allow a railroad to issue a single certificate to an individual who is certified in multiple railroad crafts that require certification. If a railroad exercises this option, it must ensure that the single certificate contains all of the components required for that craft. Alternatively, railroads are also welcome to issue multiple certificates to an individual who is certified in multiple crafts (one certificate for each craft). Thus, if a person is certified as both a signal employee and conductor, the railroad could issue the person a single certificate for both crafts or it could issue one signal employee certificate and one conductor certificate. Finally, paragraph (i) of this section denotes that if a person is certified in multiple crafts and they are involved in a revocable event, that event can only lead to the revocation of a certificate for a single railroad craft. The railroad would be required to determine which certificate should be revoked based on the work the individual was performing at the time of the event. In such instances, while the railroad may only revoke a certificate for a single craft, that revocation could affect a person’s eligibility to perform other crafts. For VerDate Sep<11>2014 21:03 May 30, 2023 Jkt 259001 example, if a person who is certified as a signal employee and a conductor violates § 246.303(e)(11) while on duty as a signal employee, the railroad should only revoke the person’s signal employee certification. The person’s conductor certification could not be revoked for the incident that occurred while the individual was on duty as a signal employee. However, as discussed in paragraph (d)(1) of this section, this person would not be able to work as a conductor while their signal employee certificate was revoked for this offense. Section 246.215 Railroad Oversight Responsibilities This proposed section, derived from 49 CFR 240.309 and 242.215, would require each Class I railroad (including the National Railroad Passenger Corporation), each railroad providing commuter service, and each Class II railroad to conduct an annual review and analysis of its program for responding to detected instances of poor safety conduct by certified signal employees. FRA has formulated the information collection requirements of this proposed section to ensure that railroads collect data on signal employee safety behavior and feed that information into their operational monitoring efforts, thereby enhancing safety. This section would require each Class I railroad (including the National Railroad Passenger Corporation), railroad providing commuter service, and Class II railroad to have an internal auditing plan to keep track of events involving poor safety conduct by certified signal employees. For each such event, the railroad would be required to indicate how it responded to that event. The railroad would then be required to evaluate this information, together with data showing the results of annual testing and causation of FRA reportable train accident/incidents, to determine whether additional or different actions, if any, are needed to improve the safety performance of its certified signal employees. FRA would not, however, require railroads to furnish this data or their analysis of the data to FRA. Instead, FRA would require that railroads be prepared to submit such information when requested. As set forth in paragraph (i), an instance of poor safety conduct involving a person who is a certified signal employee and is certified in another railroad craft (such as a locomotive engineer or conductor) need only be reported once under the appropriate section of this chapter (e.g., under § 240.309, § 242.215, or under PO 00000 Frm 00024 Fmt 4701 Sfmt 4702 this section). The determination as to where to report the instance of poor safety conduct should be based on the work the person was performing at the time the conduct occurred. This determination is similar to the determination made under part 225, in which railroads determine whether an accident was caused by poor performance of what is traditionally considered a conductor’s job function (e.g., switch handling, derail handling, etc.) or whether it was caused by poor performance of what is traditionally considered a locomotive engineer’s job function (e.g., operation of the locomotive, braking, etc.) Subpart D—Denial and Revocation of Certification This subpart parallels part 240 and part 242’s approach to adverse decisions concerning certification (i.e., decisions to deny certification or recertification and revoke certification). With respect to denials, the approach of this proposed rule is predicated principally on the theory that decisions to deny certification or recertification will come at the conclusion of a prescribed evaluation process which would be conducted in accordance with the provisions set forth in this subpart. Thus, this proposed rule contains specific procedures designed to ensure that a person in jeopardy of being denied certification or recertification would be given a reasonable opportunity to examine and respond to negative information that may serve as the basis for being denied certification or recertification. When considering revocation, this proposed rule contemplates that decisions to revoke certification would only occur for the reasons specified in this subpart. Since revocation decisions by their very nature involve a clear potential for factual disagreement, this subpart is structured to ensure that such decisions would only be made after a certified signal employee has been afforded an opportunity for an investigatory hearing at which the presiding officer would determine whether there is sufficient evidence to establish that the signal employee’s conduct warranted revocation of their certification. This subpart also provides for certificate suspension in certain circumstances. Certificate suspension would be employed in instances where there is reason to think the certificate should be revoked or made conditional but time is needed to resolve the situation. Certificate suspension would be applicable in instances where a person is awaiting an investigatory E:\FR\FM\31MYP3.SGM 31MYP3 Federal Register / Vol. 88, No. 104 / Wednesday, May 31, 2023 / Proposed Rules hearing to determine whether that person violated certain provisions of FRA’s alcohol and drug control rules, or committed a violation of certain signal standards, procedures, or practices, and situations in which the person is being evaluated or treated for an active substance abuse disorder. lotter on DSK11XQN23PROD with PROPOSALS3 Section 246.301 Process for Denying Certification This proposed section, derived from 49 CFR 240.219 and 242.401, establishes minimum procedures that must be offered to a certification candidate before a railroad denies the candidate certification or recertification. Paragraph (a) of this section gives a certification candidate a reasonable opportunity to explain or rebut adverse information, including written documents or records, that the railroad intends to use as the basis for its decision to deny certification or recertification. Paragraph (b) of this section requires that a written explanation of an adverse decision be ‘served’ on a certification candidate within 10 days of the railroad’s decision. Paragraph (b) also requires that the basis for a railroad’s denial decision address any explanation or rebuttal information that the certification candidate may have provided pursuant to paragraph (a) of this section. Paragraph (c) of this section prohibits a railroad from denying certification based on a failure to comply with a railroad test procedure, signal standard, or practice which constitutes a violation under § 246.303(e)(1) through (10) if sufficient evidence exists to establish that an intervening cause prevented or materially impaired the signal employee’s ability to comply with that railroad test procedure, signal standard, or practice. This paragraph is derived from the intervening cause exception for revocation in § 246.307(h). Section 246.303 Criteria for Revoking Certification This proposed section, derived from 49 CFR 240.117, 240.305, and 242.403, provides the circumstances under which a signal employee may have their certification revoked. In addition, paragraph (a) of this section makes it unlawful to fail to comply with any of the railroad test procedures, signal standards and practices described in paragraph (e) of this section. Paragraph (a) is needed so that FRA can initiate enforcement action. For example, FRA might want to initiate enforcement action in the event that a railroad fails to initiate revocation action or a person who is not a certified signal employee violates a railroad test procedure, signal VerDate Sep<11>2014 21:03 May 30, 2023 Jkt 259001 standard or practice described in paragraph (e) of this section. (Railroads should, however, note that they may not revoke a signal employee’s certificate, including a designated signal employee’s certificate, until they have obtained FRA approval of their certification programs pursuant to § 246.103.) Paragraph (b) of this section provides that a certified signal employee who fails to comply with a railroad test procedure, signal standard or practice described in paragraph (e) will have their signal employee certification revoked. Paragraph (c) provides that a certified signal employee who is monitoring, mentoring, or instructing another signal employee could have their certification revoked if the certified signal employee fails to take appropriate action to prevent a violation of a railroad test procedure, signal standard or practice described in paragraph (e) of this section. As explained in paragraph (c), ‘‘appropriate action’’ does not mean that a supervisor, certified signal employee, mentor, or instructor must prevent a violation from occurring at all costs, but rather the duty may be met by warning the signal employee, as appropriate, of a potential or foreseeable violation. Paragraph (d) provides that a certified signal employee who is called by a railroad to perform a duty other than that of a signal employee would not have their signal employee certification revoked based on actions taken or not taken while performing that duty. In general, this paragraph would apply regardless of whether the individual was called to perform a certified craft, such as locomotive engineer or conductor, or a non-certified craft. However, this exemption would not, however, apply to violations described in paragraph (e)(11) of this section. Therefore, certified signal employees working in other capacities that do not require certification, who violate certain alcohol and drug rules would have their signal employee certification revoked for the appropriate period of time pursuant to § 246.115. However, if the certified signal employee was working in another certified craft, such as a locomotive engineer or conductor, at the time of the alcohol or drug violation, their certificate for the craft that they were performing at the time of the violation would be revoked as opposed to their signal employee certificate. If a certified signal employee who is also certified in another craft, such as locomotive engineer or conductor, violates § 219.101 while performing a craft that does not require certification, the railroad must select one, and only PO 00000 Frm 00025 Fmt 4701 Sfmt 4702 35655 one, certificate to revoke. For example, if a person who is a certified signal employee and conductor violates § 219.101 while working as a brakeman, the railroad must decide to revoke either their signal employee or conductor certificate, but it cannot revoke both certificates. Regardless of which certificate the railroad chooses to revoke, however, the person will be unable to work as a signal employee or conductor during the period of revocation. See § 246.213(d). Paragraph (e) provides the eleven types of rule infractions that could result in certification revocation. The infractions listed in paragraphs (e)(1) through (11) are derived in part from the revocable events provided in 49 CFR 242.117(e) but have been modified to account for the duties and responsibilities of a certified signal employee. Paragraph (e)(1) refers to action(s) taken by a certified signal employee that interfere with the normal functioning of a highway-rail grade crossing warning system or signal system, if alternative means of protecting motorists and other crossing users have not already been provided. (For this purpose, railroads shall only consider violations of paragraph (e)(1) that result in an activation failure or false proceed signal.) Paragraph (e)(2) refers to action(s) taken by a certified signal employee that fail to comply with a railroad rule or procedure when removing one or more of the following devices and systems from service: (a) highway-rail or pathway grade crossing warning devices and systems; (b) wayside signal devices and systems; or (c) other devices or systems subject to this part. Similarly, paragraph (e)(3) refers to action(s) taken by a certified signal employee that fail to comply with a railroad rule or procedure when placing these devices and systems in service or restoring them back to service. Paragraph (e)(4) refers to violations involving a certified signal employee’s failure to conduct certain inspections and tests on highway-rail and pathway grade crossing warning devices and systems that are required by railroad rule, signal standard, or railroad procedures. These required inspections and tests would include postinstallation and post-repair testing and inspections that are required by FRA’s grade crossing and signal regulations in parts 234 and 236, as well as inspections and tests that are required after modification or disarrangement of grade crossing warning devices and other types of signal systems. E:\FR\FM\31MYP3.SGM 31MYP3 lotter on DSK11XQN23PROD with PROPOSALS3 35656 Federal Register / Vol. 88, No. 104 / Wednesday, May 31, 2023 / Proposed Rules Paragraph (e)(5) refers to a certified signal employee’s failure to restore power to a train detection or highwayrail or pathway grade crossing warning device or system after manual interruption of the power source. (For violations of this nature, railroads would, however, be directed to consider only those violations that result in activation failure.) Paragraph (e)(6) refers to a certified signal employee’s failure to comply with railroad validation or cutover procedures. Paragraph (e)(7) refers to a certified signal employee’s failure to comply with FRA’s Roadway Worker Protection regulations in 49 CFR part 214. However, for purposes of this part, paragraph (e)(7) would require railroads to consider only those violations that directly involve a certified signal employee who failed to ascertain whether on-track safety was being provided before fouling the railroad track. Paragraphs (e)(8) through (e)(10) refer to a certified signal employee’s failure to comply with FRA’s Railroad Operating Practices regulations related to work performed on, under, or between rolling equipment. Paragraph (e)(11) refers to a certified signal employee’s failure to comply with the alcohol and drug use prohibitions in § 219.101 of FRA’s alcohol and drug regulations. Paragraph (f) proposes a three-year period for considering certified signal employee conduct that failed to comply with a Federal regulation or railroad test procedure, signal standard or practice described in paragraphs (e)(1) through (10) of this section. However, when alcohol and drug violations are at issue, the time period for evaluating prior operating rule misconduct would be dictated by § 246.115, which would establish a period of 60 consecutive months prior to the date of review for such evaluations. Paragraph (g) provides that if a single incident contravenes more than one Federal regulatory provision or railroad test procedure, signal standard, or practice listed in paragraph (e) of this section, the incident would be treated as a single violation. FRA considers a single incident to be a unique identifiable occurrence caused by a certified signal employee’s violation of one or more railroad operating rules or practices listed in paragraph (e). However, a certified signal employee could be involved in more than one incident during a single tour of duty, if the incidents are separated by time, distance, or circumstance. Paragraph (h) provides that a certified signal employee may have their VerDate Sep<11>2014 21:03 May 30, 2023 Jkt 259001 certification revoked for violation of a railroad test procedure, signal standard, or practice listed in paragraph (e) that occurs during a properly conducted monitoring test. However, as reflected in paragraph (i), violations of railroad test procedures, signal standards, or practices that occur during monitoring tests that are not conducted in compliance with this part, the railroad’s testing procedures, or the railroad’s program under § 217.9 will not be considered for revocation purposes. Section 246.305 Periods of Ineligibility This section of the proposed rule, derived from 49 CFR 240.117 and 242.405, describes how a railroad would determine the period of ineligibility (e.g., for revocation or denial of certification) for a certified signal employee or candidate for signal employee certification. Paragraph (a) of this section provides the starting date for a period of ineligibility. For persons who are not certified as signal employees, a period of ineligibility would begin on the date of the railroad’s written determination that an incident involving a potential violation of one or more regulatory requirements in § 246.303(e)(1) through (10) has occurred. For example, if the railroad made a written determination on March 10th that an incident involving a potential violation of one or more regulatory requirements in § 246.303(e)(1) through (10) occurred on March 1st, the period of ineligibility would begin on March 10th for persons who are not certified signal employees. However, for certified signal employees and candidates for signal employee recertification, a period of ineligibility would begin on the date the railroad notifies the candidate for signal employee recertification that recertification has been denied or the date the railroad notifies the certified signal employee that their certification has been suspended. Even though some certified signal employees will be subsequently notified that their certification will be revoked as a result of the incident, the period of ineligibility will begin on the date the railroad notifies the certified signal employee that their certification has been suspended. This is because once a person’s certificate is suspended, they are ineligible to work as a certified signal employee pending a determination as to whether their certification should be revoked. With respect to revocation, paragraph (b) of this section provides that once a railroad determines that a certified signal employee has failed to comply with its test procedures, signal PO 00000 Frm 00026 Fmt 4701 Sfmt 4702 standards, or practices listed in § 246.303(e), two consequences would occur. First, the railroad would be required to revoke the signal employee’s certification for a period of time provided in this section. Second, that revocation would initiate a period during which the signal employee would be subject to an increasingly more severe period of revocation if additional revocable events occur within the next 24 to 36 months. The standard periods of revocation proposed in this section track the revocation periods provided in parts 240 and 242. One revocable event would result in revocation for 30 days. Two revocable events within 24 months of each other would result in revocation for six (6) months. Three revocable events within 36 months of each other would result in revocation of one (1) year. Four revocable events within 36 months of each other would result in revocation for three (3) years. While paragraph (c) of this section contains a provision that parallels § 242.405(b) and provides that all periods of revocation may consist of training, paragraph (d) contains a provision that parallels §§ 240.117(h) and 242.405(c). Paragraph (d) provides that a person whose signal employee certification is denied or revoked would be eligible for grant or reinstatement of the certificate prior to the expiration of the initial period of revocation if they can satisfy all of the criteria listed in the paragraph. Section 246.307 Process for Revoking Certification This proposed section, derived from 49 CFR 240.307 and 242.407, provides the procedures a railroad would be required to follow if it acquires reliable information regarding a certified signal employee’s violation of a railroad test procedure, signal standard, or practice described in § 246.303(e) or 246.115(d). Paragraph (b)(1) of this section would require a railroad to suspend a signal employee’s certification immediately, upon receipt of reliable information regarding a violation of a railroad test procedure, signal standard, or practice described in § 246.303(e). Prior to, or upon suspending, the signal employee’s certificate, paragraph (b)(3) would require the railroad to provide either verbal or written notice of the reason for the suspension, the pending revocation, and an opportunity for a hearing. If the initial notice was verbal, then the notice would have to be promptly confirmed in writing. The amount of time the railroad would have to confirm the verbal notice in writing would depend on whether or not a collective bargaining agreement is E:\FR\FM\31MYP3.SGM 31MYP3 lotter on DSK11XQN23PROD with PROPOSALS3 Federal Register / Vol. 88, No. 104 / Wednesday, May 31, 2023 / Proposed Rules in effect and applicable. In the absence of such an agreement, a railroad would have four days to provide written notice. If a notice of suspension is amended after a hearing is convened or does not contain citations to all railroad test procedure, signal standards, and practices that may apply to the potentially revocable event, the Certification Review Board (CRB or Board), if asked to review the revocation decision, might subsequently find that this constitutes procedural error pursuant to § 246.405. Paragraph (b)(5) of this section would require the railroad, no later than the start of the hearing, to provide the signal employee with a copy of the written information and a list of witnesses that the railroad will present at the hearing. If requested, a recess to the start of the hearing would be granted if the written information and list of witnesses is not provided until just prior to the start of the hearing. If the information that led to the suspension of the signal employee’s certificate pursuant to paragraph (b)(1) of this section is provided through statements of an employee of the convening railroad, the railroad would be required to make that employee available for examination during the hearing. Examination may be telephonic or virtual when it is impractical to provide the witness at the hearing. These provisions in paragraph (b)(5) of this section are intended to ensure that signal employees are provided with information and/or witnesses necessary to defend themselves at their hearings. Even if a railroad conducts a hearing pursuant to the procedures in an applicable collective bargaining agreement, the railroad would still have to comply with the provisions of paragraph (b)(5). It is not, however, FRA’s intent to require railroads to call every witness included on the railroad’s list of witnesses to testify at the hearing. If, for example, a railroad believes that it has provided sufficient evidence during a hearing to prove its case and that calling a witness on its list to testify would be unduly repetitive, the railroad would not be obligated to call that witness to testify. Of course, the opposing party could request that the witness be produced to testify, but the hearing officer would have the authority pursuant to paragraph (d)(4) of this section to determine whether the witness’s testimony would be unduly repetitive or have such minimal relevance that its admission would impair the prompt, orderly, and fair resolution of the proceeding. Paragraph (d)(2) of this section provides the presiding officer with the VerDate Sep<11>2014 21:03 May 30, 2023 Jkt 259001 powers necessary to regulate the conduct of the hearing. Thus, a presiding officer would be permitted to deny excessive hearing request delays by the signal employee. Moreover, a presiding officer could find implied consent to postpone a hearing when a signal employee’s witnesses are not available within 10 days of the date the certificate is suspended. However, the CRB may grant a petition on review if the CRB finds that the hearing schedule caused the petitioner substantial harm. Paragraph (e) of this section contains requirements regarding the written decision in a railroad hearing. FRA believes these requirements would ensure that railroads issue clear and detailed decisions. In turn, clear and detailed decisions would allow a signal employee to understand exactly why their certification was revoked and would allow the CRB to have a more detailed understanding of the case if asked to review the revocation decision pursuant to subpart E of this proposed rule. Paragraph (f) credits the period of certificate suspension prior to the commencement of a hearing required under this section towards satisfying any applicable revocation period imposed in accordance with the provisions of § 246.305. For example, if a signal employee’s certificate is suspended on July 1st and on July 11th, the railroad issues a decision to revoke the signal employee’s certificate for 30 days, the time between July 1st and July 11th would count towards the 30-day revocation period. Thus, the signal employee’s certificate would only be revoked for an additional 20 days after the railroad issued its revocation decision. Paragraph (g) would require a railroad to revoke a signal employee’s certification if it discovers that another railroad has revoked that individual’s signal employee certification. The revocation period would coincide with the period of revocation imposed by the railroad that initially revoked the signal employee’s certification. For example, if a signal employee is certified by Railroad ABC and Railroad XYZ, and ABC revokes the signal employee’s certification from November 1st through November 30th, XYZ must revoke the signal employee’s certification through November 30th once it learns of ABC’s revocation. The revocation hearing requirement in this rule would be satisfied if any railroad holds a revocation hearing for the signal employee that arises from the same set of facts. Paragraphs (h) and (i) provide two specific defenses for railroad PO 00000 Frm 00027 Fmt 4701 Sfmt 4702 35657 supervisors and hearing officers to consider when deciding whether to suspend or revoke a person’s certificate due to an alleged revocable event. Pursuant to these provisions, either defense would have to be proven by sufficient evidence. Paragraph (h) would prohibit railroads from revoking a signal employee’s certificate when there is sufficient evidence of an intervening cause that prevented or materially impaired the signal employee’s ability to comply. For example, a railroad should consider assertions that a qualified instructor failed to take appropriate action to prevent an uncertified signal employee or signal employee trainee from using defective equipment. However, FRA does not intend to imply that all equipment failures and errors caused by others will serve to absolve signal employees from certification revocation under this proposed rule. The factual issues presented by each incident would need to be analyzed on a case-by-case basis. Paragraph (i) would allow railroads to exercise discretion when determining whether to revoke a signal employee’s certification ‘‘if sufficient evidence exists to establish that the violation of the railroad test procedure, signal standard, or practice described in § 246.303(e) was of a minimal nature and had no direct or potential effect on rail safety.’’ However, FRA acknowledges that the determination as to whether an incident meets this criterion could be subject to different interpretations. For this reason, paragraph (j) would require railroads to retain information about the evidence relied upon when exercising this discretion. Unless a railroad fails to retain information as required in paragraph (j) or acts in bad faith, FRA does not anticipate taking enforcement action against the railroad even if FRA believes the railroad could have revoked the signal employee’s certification. Paragraph (j) of this section would require railroads to keep records of those violations in which they must not or elect not to revoke a signal employee’s certificate pursuant to paragraph (h) or (i) of this section. Paragraph (k) addresses concerns that problems could arise if FRA disagrees with a railroad’s decision not to suspend a signal employee’s certificate for an alleged violation of a railroad test procedure, signal standard, or practice pursuant to § 246.303(e). As long as a railroad makes a good faith determination after a reasonable inquiry, the railroad will have immunity from civil enforcement for making what the agency believes to be an incorrect determination. However, if railroads do E:\FR\FM\31MYP3.SGM 31MYP3 35658 Federal Register / Vol. 88, No. 104 / Wednesday, May 31, 2023 / Proposed Rules not conduct a reasonable inquiry or act in good faith, they could be subject to civil penalty assessment under this rule. In addition, even if a railroad does not take what FRA considers appropriate revocation action, FRA could still take enforcement action against an individual responsible for the noncompliance by assessing a civil penalty against the individual or issuing an order prohibiting the individual from performing safety-sensitive functions in the rail industry for a specified period of time pursuant to part 209, subpart D. lotter on DSK11XQN23PROD with PROPOSALS3 Subpart E—Dispute Resolution Procedures This subpart details the opportunities and procedures for a person to challenge a railroad’s decision to deny certification or recertification or to revoke a signal employee’s certification. While the proposed dispute resolution process for signal employees largely mirrors the processes for engineers under part 240 and conductors under part 242, FRA proposes some modifications in this proposed rule that will be discussed below. In addition, FRA has undertaken efforts to simplify these regulations to make them clear and comprehensible to all interested parties. Section 246.401 Review Board Established This proposed section, derived from 49 CFR 240.401 and 242.501, provides that a person who is denied certification or recertification or has had their signal employee certification revoked may petition FRA to review the railroad’s decision. Pursuant to this section, FRA delegates initial responsibility for adjudicating such disputes to the CRB. Although creation of the CRB will require issuance of an internal FRA order, FRA anticipates that the CRB will mirror the Operating Crew Review Board (OCRB) which currently adjudicates disputes under parts 240 and 242.23 Under this proposed rule, this newly created Board would adjudicate certification disputes for all certified crafts, including locomotive engineers, conductors, and signal employees. FRA is fully aware that these different job disciplines require different knowledge bases and skill sets. While the specific process for selecting CRB members would be delineated in an FRA order or other internal document, FRA would ensure that the CRB is composed of employees with sufficient backgrounds in these various 23 In a future rulemaking, FRA expects to revise parts 240 and 242 to refer to the CRB instead of the OCRB. VerDate Sep<11>2014 21:03 May 30, 2023 Jkt 259001 disciplines. Only those CRB members with sufficient knowledge of signaling would be able to participate as a voting member on a petition filed under this part. Section 246.403 Petition Requirements This proposed section, derived from 49 CFR 240.403 and 242.503, contains proposed requirements for obtaining FRA review of a railroad’s decision to deny or revoke certification, or deny recertification. Paragraph (b) of this section would require petitioners to seek review in a timely fashion once the adverse decision is served on them. In the interest of consistency and uniformity with parts 240 and 242, petitioners would have 120 days from the date the adverse decision was served upon them to file a petition for review by the CRB. Paragraph (b)(3) would require petitioners to file their petitions through https://www.regulations.gov. Petitioners and their representatives would, however, be well-advised to save some form of proof of filing, in case an error occurs in the regulations.gov system and they have to submit proof that their petition was timely filed. All documents associated with a CRB petition would be posted to the docket on Regulations.gov and all DOT dockets on Regulations.gov are available to the public. You may review DOT’s complete Privacy Act Statement published in the Federal Register on April 11, 2000 (Volume 65, Number 70, Pages 19477–78). Paragraph (b)(4) would require that a petition contain contact information, including an email address, for the petitioner and their representative, if any. The OCRB only communicates with parties via email. Therefore, FRA anticipates the CRB will operate in a similar manner and will only send communications to the parties via email. If a petition only contains an email address for the petitioner’s representative, but not the petitioner, the CRB will only send any necessary communications to the representative. Accordingly, a petition filed in accordance with this part need not include a mailing address for petitioner or their representative, unlike petitions for review filed pursuant to parts 240 and 242. Lastly, if any required contact information for petitioner or their representative, such as a phone number or email address, changes during the pendency of a petition before the CRB, it would be the responsibility of the petitioner or their representative to provide the CRB and the railroad with the new contact information. Paragraph (b)(6) would require petitioners or their representatives to PO 00000 Frm 00028 Fmt 4701 Sfmt 4702 state the facts and arguments in support of their petition. In other words, they would need to explain to the CRB why they think the railroad was incorrect in denying or revoking the petitioner’s certification. Paragraph (b)(7) would require petitioners to submit all documents related to the railroad’s decision that are in their possession or reasonably available to them. This may include the transcript and exhibits from the petitioner’s denial or revocation hearing. In most cases, these documents will be essential to the Board’s ability to make an informed decision on the petition. If neither the petitioner nor the railroad provides these documents, the Board may have to specifically request these documents which would likely to delay the Board’s adjudication of the petition. Therefore, it is in the petitioner’s interest to include these documents as part of their petition. Paragraph (c) of this section is intended to clarify a petitioner’s responsibilities with respect to a petition seeking review of a railroad decision based on petitioner’s alleged failure to comply with a drug or alcoholrelated rule or a return-to-service agreement. If requested by the CRB, paragraph (c) would require a petitioner to supplement the petition with ‘‘a copy of the information under 49 CFR 40.329 that laboratories, medical review officers, and other service agents are required to release to employees.’’ This paragraph would also require a petitioner to provide a written explanation in response to a CRB request if the petitioner does not supply the Board with written documents that should be reasonably available under 49 CFR 40.329. Paragraph (d) of this section would give the CRB discretion to grant a request for additional time to file a petition if certain circumstances are met. As an initial matter, the petitioner would be required to show good cause for granting the extension. Thus, a petitioner would have to demonstrate a reasonable justification for granting the extension of time. This justification should be as detailed as possible to assist the Board in its determination. In addition to showing good cause for an extension, a petitioner would be required to submit their extension request before the deadline for filing their petition or, if the deadline has already passed, they must allege facts constituting ‘‘excusable neglect’’ for failing to meet the deadline. The mere assertion of excusable neglect, unsupported by facts, would be insufficient. Excusable neglect would require a demonstration of good faith on the part of the party seeking an E:\FR\FM\31MYP3.SGM 31MYP3 Federal Register / Vol. 88, No. 104 / Wednesday, May 31, 2023 / Proposed Rules lotter on DSK11XQN23PROD with PROPOSALS3 extension of time, and some reasonable basis for the party’s failure to comply with the time frame specified in this proposed rule. Absent a showing along these lines, relief would be denied. The Board would make determinations on whether ‘‘good cause’’ and/or ‘‘excusable neglect’’ has been shown on a case-by-case basis. Paragraph (e) explains that a decision by the CRB to deny a petition for untimeliness or lack of compliance with the requirements of § 246.303 may be appealed directly to the FRA Administrator. Normally an appeal to the Administrator can only occur after a case has been heard by FRA’s hearing officer. However, petitions that the Board finds to be untimely or incomplete are the two exceptions where a party can skip petitioning the hearing officer and go directly to filing an appeal with the Administrator. Section 246.405 Processing Certification Review Petitions This section of the proposed rule, derived from 49 CFR 240.405 and 242.505, details how petitions for review by the CRB would be handled. Paragraph (a) of this section notes that when FRA receives a CRB petition, FRA would send a written notification to the parties involved in the petition. FRA proposes to send these acknowledgments via email. If a representative files a petition on behalf of a petitioner, the petition must include the petitioner’s email address, if the petitioner also wants to receive the acknowledgment email and any other correspondence (including the Board’s decision) from FRA. The acknowledgment email would include the docket number for the petition so that both parties can access the documents in the case on https:// www.regulations.gov. FRA would not send a copy of the petition to the railroad. Paragraph (b) of this section would provide railroads with the opportunity to respond to a petition. While it is always optional for a railroad to respond to a petitioner’s arguments, if the petitioner did not include relevant documents in their petition, such as hearing transcripts or exhibits, the railroad is required to provide FRA with those documents, even if it does not respond to the arguments in the petition. Railroads would have 60 days, from the date FRA sends the acknowledgment email, to file a response to the petition in the docket on https://www.regulations.gov. Railroads would be permitted to submit responses after the 60-day deadline, but the Board would only review such late filings if VerDate Sep<11>2014 21:03 May 30, 2023 Jkt 259001 practicable. In other words, there is no guarantee that the Board would review a late response prior to issuing a decision; thus, if a railroad wishes to respond to a petition, it should meet the 60-day filing deadline. The railroad could fulfill its requirement to serve a copy of its response on the other parties by sending its response via email to petitioner, petitioner’s representative, and petitioner’s employer (if different from the railroad that revoked petitioner’s certification). Paragraph (c) of this section explains when a case would be referred to the Board, and what authority the Board would have. If a railroad files a response before the 60-day deadline in paragraph (b) of this section, the petition would be referred to the Board upon receipt of the response. Otherwise, the petition would be referred to the Board 60 days after the date the acknowledgment email was sent. The Board would have the authority to grant a petition (rule in favor of the petitioner), deny a petition (rule in favor of the railroad), or dismiss a petition. An example of when the Board would dismiss a petition would be if the respondent railroad did not deny or revoke the petitioner’s certification, and thus, there was no case or controversy before the Board. If there is insufficient evidence in the record for the Board to make a decision on the merits of a petition, the Board may choose to remand a petition or issue an interim order, so that additional fact-finding can occur. Paragraphs (d), (e), and (f) of this section provide the standards of review that the Board would employ for procedural issues, factual issues, and legal issues, respectively. These standards mirror the standards of review used by the OCRB to review locomotive engineer and conductor petitions. The Board would not correct all procedural errors committed by a railroad. Instead, the Board would only grant a petition if the respondent railroad’s procedural error caused substantial harm to the petitioner. For factual issues, the petitioner would be required to show that the respondent railroad did not have substantial evidence to support its decision to deny or revoke the petitioner’s certification. If the Board must decide a legal issue, it would conduct de novo review, meaning that it would not give deference to any decision or interpretation made by the railroad. Paragraph (g) of this section acknowledges that the Board’s decisionmaking power would be limited to granting or denying a petition. In other words, the Board would only be empowered to make determinations PO 00000 Frm 00029 Fmt 4701 Sfmt 4702 35659 concerning qualifications under this proposed regulation. The Board would not be empowered to mitigate the consequences of a railroad decision if the decision is valid under this proposed regulation. The contractual consequences, if any, of these determinations would have to be resolved under dispute resolution mechanisms that do not directly involve FRA. For example, FRA cannot order a railroad to alter its seniority rosters or make an award of back pay, in the event of a finding that a railroad wrongfully denied certification. Paragraph (h) of this section would require the Board to issue a written decision that would be served on all affected parties. FRA would send the decision to the parties by email and it will also be posted in the case’s docket on https://www.regulations.gov. Section 246.407 Request for a Hearing This proposed section, derived from 49 CFR 240.407 and 49 CFR 242.507, provides that a party who has been adversely affected by a CRB decision would have the opportunity to request an administrative proceeding as prescribed in § 246.409. Paragraph (b) of this section contains the instructions and the deadline for submitting a hearing request. Just like CRB petitions, parties would be required to file hearing requests electronically. To file a hearing request, the adversely affected party would upload the request to the docket on https://www.regulations.gov that was used while the case was before the Board. This docket would also be used to file documents while the case is before the hearing officer. After the 20day deadline to file a hearing request has passed, FRA would check the docket on https://www.regulations.gov to see if a hearing request was filed. Paragraph (c) of this section contains a list of elements that would be required for a hearing request, including the docket number assigned to the case when it was before the Board. With respect to the signature requirement in paragraph (c), FRA would accept electronic signatures. Paragraph (d) of this section states that FRA would arrange for the appointment of a presiding officer. The presiding officer would then schedule a hearing for the earliest practicable date. Paragraph (e) of this section provides that a party who fails to request an administrative hearing in a timely fashion would lose the right to further administrative review and the CRB’s decision would constitute final agency action. E:\FR\FM\31MYP3.SGM 31MYP3 lotter on DSK11XQN23PROD with PROPOSALS3 35660 Federal Register / Vol. 88, No. 104 / Wednesday, May 31, 2023 / Proposed Rules Section 246.409 Hearings This section of the proposed rule, derived from 49 CFR 240.409 and 49 CFR 242.509, describes the authority of the presiding officer to conduct an administrative hearing and the procedures by which the administrative hearing would be governed. Paragraph (b) of this section provides that the proceeding would afford an aggrieved party a de novo hearing at which the relevant facts would be adduced and the correct application of this part would be determined. When the issues presented are purely legal, or when only limited factual findings are necessary to determine issues, the presiding officer may determine the issues following an evidentiary hearing only on the disputed factual issues, if any. The presiding officer could then grant full or partial summary judgment. Paragraph (d) of this section provides that the presiding officer may authorize discovery. It would also authorize the presiding officer to sanction willful noncompliance with permissible discovery requests. Paragraph (e) of this section would require that documents in the nature of pleadings be signed. This signature could be electronic and would constitute a certification of factual and legal good faith. Paragraph (f) of this section contains a proposed requirement for service and for certificates of service. Paragraph (g) of this section would give the presiding officer authority to address noncompliance with a law or directive. This provision is intended to ensure that the presiding officer will have the authority to control the proceeding so that an efficient and fair hearing can be conducted. Paragraph (h) of this section states the right of each party to appear and be represented. Paragraph (i) of this section is intended to protect witnesses by ensuring their right of representation and their right to have their representative question them. Paragraph (j) of this section would allow any party to request consolidation or separation of hearings of two or more petitions when appropriate under established jurisprudential standards. This option is intended to allow for more efficient determination of petitions in cases where a joint hearing would be advantageous. Under paragraph (k) of this section, the presiding officer could, with certain exceptions, extend deadlines for action required in the proceedings, provided substantial prejudice would not result to a party. The authority to deny an extension request submitted after a deadline has already passed shows the preference for use of this authority to VerDate Sep<11>2014 21:03 May 30, 2023 Jkt 259001 provide extensions of time as a tool to alleviate unforeseen or unnecessary burdens, and not as a remedy for inexcusable neglect. Paragraph (l) of this section would establish motions as the appropriate method for requesting action by the presiding officer. This paragraph also provides the proposed form of motions and the proposed response period for written motions. Paragraph (m) of this section contains proposed rules for the mode of hearing and record maintenance, including proposed requirements for sworn testimony, verbatim record (including oral testimony and argument), and inclusion of evidence or substitutes therefor in the record. Paragraph (n) of this section would direct the presiding officer to employ specific rules of evidence as guidelines for the introduction of evidence, and would permit the presiding officer to determine what evidence may be received. Further, paragraph (o) of this section provides additional powers the presiding officer may exercise during the proceedings. Paragraph (p) of this section would require that the petitioner before the CRB, the railroad that took the certification action at issue, and FRA serve as mandatory parties to the administrative proceeding. Paragraph (q) of this section explains which party would be the hearing petitioner and which parties would be the respondents. If the Board granted the petition, the railroad would be the hearing petitioner and the signal employee or signal employee candidate would be a respondent. If the Board denied the petition, the signal employee or signal employee candidate would be the hearing petitioner and the railroad would be a respondent. The actions of the signal employee (or certification candidate) and the railroad would be at issue in the hearing—not the actions of the CRB. Thus, it is appropriate that the signal employee and the railroad fill the roles of petitioner and respondent for the hearing. Paragraph (q) also provides that FRA would be a mandatory party in the proceeding. In all proceedings, FRA would initially be considered a corespondent. If, based on evidence acquired after the filing of a hearing petition, FRA concludes that the public interest in safety is more closely aligned with the position of the petitioner than the respondent, FRA could request that the hearing officer exercise their inherent authority to realign parties for good cause shown. However, FRA anticipates that such a situation would rarely occur. FRA would represent the interests of the government; hence, PO 00000 Frm 00030 Fmt 4701 Sfmt 4702 parties and their representatives would have to be careful to avoid ethical dilemmas that might arise due to FRA’s ability to realign itself. Paragraph (q) also notes that the party requesting the hearing would have the burden of proving its case by the preponderance of evidence. Paragraph (r) of this section would give the presiding officer authority to close the record in a case. Paragraph (s) of this section would also give the presiding officer authority to issue a decision and includes proposed requirements for that decision. Section 246.411 Appeals This proposed section, derived from 49 CFR 240.411 and 49 CFR 242.511, would permit any party aggrieved by the presiding officer’s decision to file an appeal with the FRA Administrator. Paragraph (a) of this section provides that if no appeal is timely filed, the presiding officer’s decision would constitute final agency action. The appeal must be filed in the same docket on https://www.regulations.gov used when the case was before the Board and the presiding officer. Paragraph (b) of this section allows for a party to reply to the appeal. Paragraphs (c) and (d) of this section describe the Administrator’s authority to conduct the proceedings of an appeal. Paragraph (e) of this section addresses the Administrator’s options for ruling on an appeal. The phrase ‘‘except where the terms of the Administrator’s decision (for example, remanding a case to the presiding officer) show that the parties’ administrative remedies have not been exhausted’’ is included in this proposed rule because a remand, or other intermediate decision, would not constitute final agency action. The inclusion of this phrase is intended to clarify this potential outcome to those parties who are not represented by an attorney or who might otherwise be confused as to whether any action taken by the Administrator should be considered final agency action. Paragraph (f) of this section provides instructions for handling appeals to the Administrator that come directly from the CRB. The only cases that would be allowed to proceed directly from the Board to the Administrator would be cases in which the Board denied a petition for being untimely or incomplete. If the Administrator vacates and remands the Board’s decision, the case would return to the Board. If the Administrator affirms the Board’s decision, that would constitute final agency action. E:\FR\FM\31MYP3.SGM 31MYP3 Federal Register / Vol. 88, No. 104 / Wednesday, May 31, 2023 / Proposed Rules Appendices V. Regulatory Impact and Notices FRA has included two appendices with this proposed rule. Appendix A, derived from appendix C to part 240 and appendix C to part 242, provides a narrative discussion of the procedures that a person seeking certification or recertification should follow to furnish a railroad with information concerning their motor vehicle driving record. Appendix B, derived from appendix D to part 240 and appendix D to part 242, provides a narrative discussion of the procedures that a railroad would be required to employ when administering the vision and hearing requirements of §§ 246.117 and 246.118. This appendix discusses test methods for determining whether a person has the ability to recognize and distinguish among the colors used as signals in the railroad industry. A. Executive Order 12866 as Amended by Executive Order 14094 This proposed rule is not a significant regulatory action within the meaning of Executive Order 12866 as amended by Executive Order 14094, Modernizing Regulatory Review. Details on the estimated costs of this NPRM can be found in the Regulatory Impact Analysis (RIA), which FRA has prepared and placed in the docket (FRA–2021–0020). FRA is proposing regulations establishing a formal certification process for railroad signal employees. As part of that process, railroads would be required to develop a program for training current and prospective signal employees, documenting and verifying that the holder of the certificate has achieved certain training and proficiency, and creating a record of safety compliance infractions that other railroads can review when considering individuals for certification. This 35661 proposed regulation would ensure that signal employees are properly trained, are qualified to perform their duties, and meet Federal safety standards. Additionally, this proposed regulation is expected to improve railroad safety by reducing the rate of accidents/incidents. The RIA presents estimates of the costs likely to occur over the first 10 years of the proposed rule. The analysis includes estimates of costs associated with development of training programs, initial and periodic training, knowledge testing, and monitoring of operational performance. Additionally, costs are estimated for vision and hearing tests, certification determinations made by other railroads, and Government administrative costs. FRA estimated 10-year costs of $8.3 million discounted at 7 percent. The annualized cost would be $1.2 million discounted at 7 percent. The following table shows the estimated 10-year costs of the proposed rule. TOTAL 10-YEAR DISCOUNTED COSTS [2020 Dollars] Present value 7% ($) Category Present value 3% ($) Annualized 7% ($) Annualized 3% ($) Development of Certification Program ............................................................. Certification Eligibility Requirements ............................................................... Recertification Eligibility Requirements ............................................................ Training ............................................................................................................ Knowledge Testing .......................................................................................... Vision and Hearing .......................................................................................... Monitoring Operational Performance ............................................................... Railroad Oversight Responsibilities ................................................................. Certification Card ............................................................................................. Petitions and Hearings .................................................................................... Government Administrative Cost ..................................................................... 1,140,385 87,507 203,790 2,079,835 746,865 1,097,523 832,102 267,530 103,175 42,451 1,653,360 1,168,920 100,380 259,653 2,379,911 898,884 1,320,891 994,414 326,714 124,175 50,731 1,914,063 162,365 12,459 29,015 296,122 106,337 156,263 118,473 38,090 14,690 6,044 235,401 137,033 11,768 30,439 278,998 105,377 154,849 116,576 38,301 14,557 5,947 224,387 Total .......................................................................................................... 8,277,337 9,566,001 1,178,507 1,121,427 This rule is expected to reduce the likelihood of an accident occurring due to signal employee error. FRA has analyzed accidents over the past 10 years to categorize those where signal employee may have caused the accident. FRA then estimated benefits based on that analysis. The following table shows the estimated 10-year benefits of the proposed rule. The total 10-year estimated benefits would be $2.9 million (PV, 7%) and annualized benefits would be $0.4 million (PV, 7%). TOTAL 10-YEAR DISCOUNTED BENEFITS [2020 Dollars] Present value 7% ($) lotter on DSK11XQN23PROD with PROPOSALS3 Category Present value 3% ($) Annualized 7% ($) Annualized 3% ($) Grade Crossing Accidents ............................................................................... Train Accidents/Incidents ................................................................................. Business Benefits from Fewer Activation Failures .......................................... 1,766,028 989,123 159,526 2,064,676 1,156,391 186,503 251,443 140,829 22,713 242,043 135,564 21,864 Total .......................................................................................................... 2,914,678 3,407,570 414,985 399,471 Additional benefits are discussed, but not quantified, in this analysis. This VerDate Sep<11>2014 21:03 May 30, 2023 Jkt 259001 proposed rule would require railroads to check with prior employers when hiring PO 00000 Frm 00031 Fmt 4701 Sfmt 4702 a new signal employee. This would include a check of their prior safety E:\FR\FM\31MYP3.SGM 31MYP3 35662 Federal Register / Vol. 88, No. 104 / Wednesday, May 31, 2023 / Proposed Rules record and whether the prospective signal employee had their certification revoked in the past. B. Regulatory Flexibility Act and Executive Order 13272 The Regulatory Flexibility Act of 1980 (5 U.S.C. 601 et seq.) and E.O. 13272 (67 FR 53461, Aug. 16, 2002) require agency review of proposed and final rules to assess their impacts on small entities. An agency must prepare an Initial Regulatory Flexibility Analysis (IRFA) unless it determines and certifies that a rule, if promulgated, would not have a significant economic impact on a substantial number of small entities. FRA has not determined whether this proposed rule would have a significant economic impact on a substantial number of small entities. Therefore, FRA prepared this IRFA to facilitate public comment on the potential small business impacts of the requirements in this NPRM. FRA invites all interested parties to submit data and information regarding the potential economic impact on small entities that would result from adoption of the proposals in this NPRM. FRA particularly encourages small entities that could potentially be impacted by the proposed rule to participate in the public comment process. FRA will consider all information and comments received in the public comment process when making a determination of the economic impact on small entities. 1. Reasons for Considering Agency Action lotter on DSK11XQN23PROD with PROPOSALS3 FRA is concerned with accidents caused by signal employee error. Railroads’ signal employee training programs may not be covering all aspects of a signal employee’s job responsibility. Additionally, railroads may not be testing signal employees and ensuring that their knowledge is maintained continuously. This NPRM would require railroads to develop a signal employee certification program. This proposed rule would ensure that railroads examine railroad safety with respect to signal employees. If FRA did not issue the rule as proposed, railroads would be free to hire and train signal employees as they see fit. 2. A Succinct Statement of the Objectives of, and the Legal Basis for, the Proposed Rule 21:03 May 30, 2023 Jkt 259001 3. A Description of, and Where Feasible, an Estimate of the Number of Small Entities to Which the Proposed Rule Would Apply The Regulatory Flexibility Act of 1980 requires a review of proposed and final rules to assess their impact on small entities, unless the Secretary certifies that the rule would not have a significant economic impact on a substantial number of small entities. ‘‘Small entity’’ is defined in 5 U.S.C. 601 as a small business concern that is independently owned and operated and is not dominant in its field of operation. The U.S. Small Business Administration (SBA) has authority to regulate issues related to small businesses, and stipulates in its size standards that a ‘‘small entity’’ in the railroad industry is a for profit ‘‘line-haul railroad’’ that has fewer than 1,500 employees, a ‘‘short line railroad’’ with fewer than 1,500 employees, a ‘‘commuter rail system’’ with annual receipts of less than $16.5 million dollars, or a contractor that performs support activities for railroads with annual receipts of less than $16.5 million.26 Federal agencies may adopt their own size standards for small entities in consultation with SBA and in conjunction with public comment. Under that authority, FRA has published a proposed statement of agency policy that formally establishes ‘‘small entities’’ or ‘‘small businesses’’ as railroads, contractors, and hazardous materials shippers that meet the revenue requirements of a Class III railroad as set forth in 49 CFR 1201.1–1, which is $20 million or less in inflation-adjusted 24 49 U.S.C. 20103. CFR 1.89(a). 26 U.S. Small Business Administration, ‘‘Table of Small Business Size Standards Matched to North American Industry Classification System Codes, August 19, 2019. https://www.sba.gov/sites/default/ files/2019-08/SBA%20Table%20of%20Size%20 Standards_Effective%20Aug%2019,%202019.pdf. annual revenues,27 and commuter railroads or small Governmental jurisdictions that serve populations of 50,000 or less. See 68 FR 24891 (May 9, 2003) (codified at Appendix C to 49 CFR part 209). FRA is using this definition for the proposed rule. When shaping the proposed rule, FRA considered the impact that the proposed rule would have on small entities. The proposed rule would be applicable to all railroads with signal systems. However, some small railroads do not have a signal system as part of their operations. FRA estimates there are 744 Class III railroads, of which 704 operate on the general system. These railroads are of varying size, with some belonging to larger holding companies. Approximately 490 Class III railroads would be impacted by this rulemaking because they have a signal system. The remaining Class III railroads do not have a signal system, thus would have no need for signal employee certification program. 4. A Description of the Projected Reporting, Recordkeeping, and Other Compliance Requirements of the Rule, Including an Estimate of the Class of Small Entities That Would be Subject to the Requirements and the Type of Professional Skill Necessary for Preparation of the Report or Record Railroads would be required to submit information to FRA for approval of signal employee certification programs. For small railroads that choose to develop their own certification programs, they would likely be less complex than larger railroads’ operations. This would ease some of the burden on small railroads. The training program, and annual railroad responsibilities would be prepared by a professional or administrative employee. The type of professional skills needed by an employee responsible for submitting a special approval request includes the ability to plan and organize work. Such an employee would also need good verbal and written communication skills and attention to detail. Summary of Class III Railroad Costs Class III Railroads would have all the same cost components as larger railroads except they would not be required to perform annual railroad oversight responsibilities in accordance with the proposed rule. Therefore, that 25 49 This proposed rule may reduce the rate of signal employee-caused accidents. The annual operational performance monitoring would ensure that signal employees maintain their VerDate Sep<11>2014 knowledge after the initial certification process. FRA is proposing regulations for the certification of signal employees, pursuant to the authority granted in section 402 of the Rail Safety Improvement Act of 2008 (RSIA). Also, the general authority of the Secretary states, in relevant part, that the Secretary ‘‘as necessary, shall prescribe regulations and issue orders for every area of railroad safety supplementing laws and regulations in effect on October 16, 1970.’’ 24 The Secretary delegated this authority to the Federal Railroad Administrator.25 PO 00000 Frm 00032 Fmt 4701 Sfmt 4702 27 The Class III railroad revenue threshold is $40.4 million or less, for 2021. (The Class II railroad threshold is between $40.4 million and $900 million.) See Surface Transportation Board (STB), available at https://www.stb.gov/newscommunications/latest-news/pr-21-16/. E:\FR\FM\31MYP3.SGM 31MYP3 35663 Federal Register / Vol. 88, No. 104 / Wednesday, May 31, 2023 / Proposed Rules cost has been excluded for Class III railroads. The following table shows the annualized cost for Class III railroads over the 10-year analysis period. The total estimated 10-year costs for Class III railroads would be $2.4 million and the annualized cost for all Class III railroads would be $346,052 (PV, 7 percent). TOTAL 10-YEAR AND ANNUALIZED COSTS, CLASS III RAILROADS Present value 7% ($) Category Development of Certification Program .................................................................................................................... Certification Eligibility Requirements ....................................................................................................................... Recertification Eligibility Requirements ................................................................................................................... Training .................................................................................................................................................................... Knowledge Testing .................................................................................................................................................. Vision and Hearing .................................................................................................................................................. Monitoring Operational Performance ....................................................................................................................... Certification Card ..................................................................................................................................................... Petitions and Hearings ............................................................................................................................................ Total .................................................................................................................................................................. The industry trade organization representing small railroads, ASLRRA, reports the average freight revenue per Class III railroad is $4.75 million.28 The following table summarizes the average Annualized 7% ($) 309,067 21,877 50,947 519,959 186,716 1,097,523 208,026 25,794 10,613 2,430,522 44,004 3,115 7,254 74,030 26,584 156,263 29,618 3,672 1,511 346,052 annual costs and revenue for Class III railroads. AVERAGE CLASS III RAILROADS’ COSTS AND REVENUE Total cost for Class III railroads, annualized 7% Number of Class III railroads with signal systems Average annual cost per Class III railroad ($) Average Class III annual revenue ($) Average annual cost as a percent of revenue a b c=a÷b d e=c÷d 346,052 ............................................................................................ 535 647 4,750,000 0.01% lotter on DSK11XQN23PROD with PROPOSALS3 The average annual cost for a Class III railroad impacted by this rule would be $647. This represents a small percentage (0.01%) of the average annual revenue for a Class III railroad. The estimates above show that the burden on Class III railroads would not be a significant economic burden. FRA requests comments on this estimate and will consider all comments when making a determination for the final rule. is in the process of developing. These initiatives include: the implementation of positive train control (PTC) systems by required railroads; 29 training, qualification, and oversight; 30 railroad safety risk reduction programs; 31 and the development of fatigue risk management programs.32 6. A Description of Significant Alternatives to the Rule The alternative of certifying only the training program would require a railroad to enhance their training of signal employees. Training, however, is only a part of the certification process. The additional requirements of this proposed rule would ensure that signal employees’ hearing, vision, prior safety conduct at other railroads, and other aspects have been reviewed and are consistent with railroad safety. 5. Identification, to the Extent Practicable, of All Relevant Federal Rules That May Duplicate, Overlap, or Conflict With the Proposed Rule FRA is not aware of any relevant Federal rule that duplicates, overlaps with, or conflicts with this NPRM. This proposed rule is complementary to, rather than duplicative of, other recent regulatory initiatives FRA has issued or This analysis considered two alternatives to the rule: the baseline approach, and an approach that would certify just the training program. The baseline alternative (no action) would not ensure that signal employees are being properly trained. Without this rule, railroad operations may be less safe if railroads are not providing adequate training to their signal employees. C. Paperwork Reduction Act 28 American Short Line and Regional Railroad Association, Short Line and Regional Railroad Facts and Figures, p. 10 (2017 pamphlet). 29 See generally 49 CFR part 236, subpart I; and press release in which FRA announces full implementation of positive train control (Dec. 29, 2020), available at https://railroads.dot.gov/sites/ fra.dot.gov/files/2020-12/fra1920.pdf. 30 49 CFR part 243. 31 49 CFR parts 270 and 271. 32 85 FR 83484 (Dec. 22, 2020) (proposing to amend 49 CFR parts 270 and 271 to require certain railroads to develop and implement a Fatigue Risk Management Program as one component of the railroads’ larger railroad safety risk reduction programs). 33 44 U.S.C. 3501 et seq. VerDate Sep<11>2014 21:03 May 30, 2023 Jkt 259001 PO 00000 Frm 00033 Fmt 4701 Sfmt 4702 FRA is submitting the information collection requirements in this proposed rule to the Office of Management and Budget (OMB) for approval under the Paperwork Reduction Act of 1995.33 The entire table contains the new information collection requirements and the estimated time to fulfill each requirement are as follows: E:\FR\FM\31MYP3.SGM 31MYP3 35664 Federal Register / Vol. 88, No. 104 / Wednesday, May 31, 2023 / Proposed Rules Respondent universe lotter on DSK11XQN23PROD with PROPOSALS3 CFR section Total annual responses Average time per responses Total annual burden hours Wage rate Total cost equivalent (A) (B) (C) = A * B (D) 34 (E) = C * D 10.00 petition ............ 187.66 plans (14.33 Class I and commuter railroads plans + 3.33 generic program developed by ASLRRA and holding companies plans + 170 Class II and III railroads plans). 2 copies .................... 3 hours ..................... 120 hours + 120 hours + 6 hours. 30.00 ................. 3,139.20 ............ $77.44 115.24 $2,323.20 361,761.41 15 minutes ................ .50 ..................... 77.44 38.72 246.9—Waivers—Petitions ........................... 246.101/.103—Certification program required and FRA review of certification program—Development of signal employee certification program in accordance with this part and procedures contained under § 246.106 (Note: Each certification program includes procedure requirements under § 246.111 through § 246.121.). 553 railroads ............. 553 railroads + ASLRRA and holding companies. —(d)(1) Signal employees certification submission—Copies of the program provided to the president of each rail labor organization (RLO) that represents the railroad’s employees that are subject to this part. —(d)(2) Affirmative statements that the railroad has provided a copy of the program to RLOs. —(e) Comment Period—Affirmed comments on a railroad’s program by any designated representative of employees subject to this part or any directly affected employee who does not have a designated representative. 553 railroads ............. —(g) Material Modifications of FRA-approved program—Railroad to submit a description of how it intends to modify the program and a copy of the modified program to FRA. The paperwork burden for this requirement is outside the scope of the 3-year PRA review period. —(h) Resubmission—Railroad can resubmit its program or material modification as described in paragraph (f)(2) of this section after addressing all of the deficiencies noted by FRA and the resubmission must conform with the procedures and requirements contained in § 246.106. 553 railroads + ASLRRA and holding companies. —(i) Rescinding Prior Approval of Program—Railroad to resubmit its certification program and the program must conform with the procedures and requirements contained in § 246.106. The paperwork burden for this requirement is outside the scope of the 3-year PRA review period. 246.105(c)(1)–(d)(1)—Implementation schedule for certification programs—Designation of certified signal employee. —(c)(2)–(d)(2) Issue a certificate that complies with § 246.207 to each person that it designates. 553 railroads ............. 3,781 designated lists 5 minutes .................. 553 railroads ............. 3,781 issued certificates. 3 minutes .................. —(f) Written requests for delayed certification—Railroad may wait to recertify the person making the request until the end of the three-year period after FRA has approved the railroad’s certification program. FRA anticipates zero submissions. —(g) Testing and evaluation—Railroad shall only certify or recertify a person as a signal employee if that person has been tested and evaluated in accordance with procedures that comply with subpart B of this part. The paperwork burden for testing and evaluation is included in the economic burden and the burden for certificates is included under § 246.105. 246.106—Requirements for Certification Programs—Procedures for Submission and Approval of Dispatcher Certification Programs. The paperwork requirements described in this section are accounted for throughout this table. 246.109(a)—Determinations required for certification and recertification—Eligibility requirements. The paperwork burden for this requirement is covered under § 246.111 through § 246.121 and § 246.303. VerDate Sep<11>2014 21:03 May 30, 2023 553 railroads ............. 2 affirmative statements. 15 minutes ................ .50 ..................... 77.44 38.72 553 railroads ............. 31 comments ............ 4 hours ..................... 124.00 ................ 77.44 9,602.56 77.44 7,310.34 315.08 ................ 77.44 24,399.80 189.05 ................ 77.44 14,640.03 Jkt 259001 PO 00000 4.67 revised plans (3.67 revised plans Class I and commuter railroads + 1 revised plan ASLRRA and holding companies). Frm 00034 Fmt 4701 Sfmt 4702 21 hours + 20 hours 94.40 .................. E:\FR\FM\31MYP3.SGM 31MYP3 35665 Federal Register / Vol. 88, No. 104 / Wednesday, May 31, 2023 / Proposed Rules Respondent universe lotter on DSK11XQN23PROD with PROPOSALS3 CFR section Total annual responses Average time per responses Total annual burden hours Wage rate Total cost equivalent (A) (B) (C) = A * B (D) 34 (E) = C * D 246.111(a)–(c)—Prior safety conduct as motor vehicle operator—Eligibility requirements of this section involving prior conduct as a motor vehicle operator. —(e) If driver information is not obtained as required pursuant to paragraph (g) of this section, that person or the railroad certifying or recertifying that person may petition for a waiver in accordance with the provisions of part 211 of this chapter. 553 railroads ............. 1,706 motor vehicle records. 5 minutes .................. 142.17 ................ 77.44 11,009.64 553 railroads ............. 2 waivers .................. 2 hours ..................... 4.00 ................... 77.44 309.76 —(f) Individual’s duty—Consent to make information concerning driving record available to that railroad. This is usual and customary procedure. The consent form is signed at the time of hiring to make driving information available to the railroad. —(g)–(h) Request to obtain driver’s license information from licensing agency. 553 railroads ............. —(i) Requests for additional information from licensing agency. The paperwork burden for this requirement is included under § 246.111(g)–(h). —(j) Notification to railroad by persons of never having a license. —(k) Report of motor vehicle incidents described in paragraphs (m)(1) and (2) of this section to the employing railroad within 48 hours. —(l)–(m) Evaluation of person’s driving record by railroad. —(n)(1) DAC referral by railroad after report of driving drug/alcohol incident. —(n)(2) DAC request and supply by persons of prior counseling or treatment. —(n)(3) Conditional certifications recommended by DAC. 553 railroads ............. 2 notices ................... 10 minutes ................ 553 railroads ............. 40 self-reports .......... 553 railroads ............. 1,706 motor vehicle record evaluations. 36 DAC referrals ...... 246.113(b)—Prior safety conduct as an employee of a different railroad—Certification candidate has not been employed by any other railroad in the previous five years, they do not have to submit a request in accordance with paragraph (d) of this section, but they must notify the railroad of this fact in accordance with procedures established by the railroad in its certification program. This is usual and customary procedure and therefore there is no paperwork burden. —(c) Person seeking certification or recertification under this part shall submit a written request to each railroad that employed the person within the previous five years. 553 railroads ............. 43.00 requests ......... 15 minutes ................ —(e) and (g) Railroad shall provide the information requested to the railroad designated in the written request. 553 railroads ............. 43.00 records ........... —(f) An explanation shall state why the railroad cannot provide the information within the requested time frame or cannot provide the requested information. FRA anticipates zero submissions. 246.115(a)—Substance abuse disorders and alcohol drug rules compliance—Determination that person meets eligibility requirements. —(b) Written documents from DAC that person is not affected by a disorder. —(c)(3) Fitness requirement—Voluntarily self-referral by signal employee for substance abuse counseling or treatment under the policy required by § 219.1003 of this chapter. —(d)(1)–(d)(2) Prior alcohol/drug conduct; Federal rule compliance. —(d)(3)(i) Written determination that most recent incident has occurred. —(d)(3)(ii) Notification to person that recertification has been denied. 553 railroads ............. VerDate Sep<11>2014 21:03 May 30, 2023 59.00 8,388.03 .33 ..................... 77.44 25.56 10 minutes ................ 6.67 .................... 77.44 516.52 5 minutes .................. 142.17 ............... 71.89 10,220.60 5 minutes .................. 3.00 .................... 115.24 345.72 30 minutes ................ .50 ..................... 115.24 57.62 4 hours ..................... 12.00 .................. 115.24 1,382.88 10.75 ................. 77.44 832.48 15 minutes ................ 10.75 .................. 77.44 832.48 1,535 determinations 2 minutes .................. 51.17 .................. 77.40 3,960.56 553 railroads ............. 79 filed documents ... 30 minutes ................ 39.50 ................. 115.24 4,551.98 553 railroads ............. 2 self-referrals .......... 10 minutes ................ .33 ..................... 115.24 38.03 553 railroads ............. 1,535 certification reviews. 30 written determinations. 30 notifications ......... 10 minutes ................ 255.83 ............... 115.24 29,481.85 1 hour ....................... 30.00 ................. 115.24 3,457.20 30 minutes ................ 15.00 .................. 77.44 1,161.60 553 railroads ............. 553 railroads ............. 553 railroads ............. 553 railroads ............. 553 railroads ............. Jkt 259001 PO 00000 1,706 written requests. 1 request and supplied record. 3 conditional certification recommendations. Frm 00035 Fmt 4701 Sfmt 4702 5 minutes .................. 142.17 ................ E:\FR\FM\31MYP3.SGM 31MYP3 35666 Federal Register / Vol. 88, No. 104 / Wednesday, May 31, 2023 / Proposed Rules Respondent universe Total annual responses Average time per responses Total annual burden hours Wage rate Total cost equivalent (A) (B) (C) = A * B (D) 34 (E) = C * D 10 minutes ................ 3.33 .................... 77.44 257.88 553 railroads ............. 20 waived investigations. 400 records .............. 2 minutes .................. 13.33 ................. 71.89 958.29 553 railroads ............. 10 records ................ 2 minutes .................. .33 ...................... 71.89 23.72 553 railroads ............. 400 copies ................ 5 minutes .................. 33.33 .................. 71.89 2,396.09 553 railroads ............. 30 minutes + 10 minutes. 3.33 .................... 71.89 239.39 553 railroads ............. 5 consultations + 5 conditional certifications. 1 notification ............. 10 minutes ................ .17 ..................... 71.89 12.22 553 railroads ............. 400 medical records 2 minutes .................. 13.33 ................. 71.89 958.29 553 railroads ............. 10 records ................ 2 minutes .................. .33 ...................... 71.89 23.72 553 railroads ............. 400 copies ................ 5 minutes .................. 33.33 .................. 71.89 2,396.09 553 railroads ............. 5 consultations + 5 conditional certifications. 25 notifications ......... 30 minutes + 10 minutes. 3.33 .................... 71.89 239.39 10 minutes ................ 4.17 .................... 71.89 299.78 115.24 63,727.72 77.44 48,800.36 500.00 ................ 71.89 35,945.00 CFR section —(d)(4) Persons/conductors waiving investigation/de-certifications. 246.117(a)–(c)—Vision acuity—Determination vision standards met—Medical examiner certificate/record. —(d)(1) Request for retest and another medical evaluation—Medical examiner certificate/record. —(d)(2) Railroad to provide a copy of this part to medical examiner. —(d)(3) Consultations by medical examiners with railroad officer and issue of conditional certification. —(g) Notification by certified signal employee of deterioration of vision. 246.118—Hearing acuity—Determination hearing standards met—Medical records. —(d)(1) Request for retest and another medical evaluation—Medical examiner certificate/record. —(d)(2) Railroad to provide a copy of this part to medical examiner. —(d)(3) Consultations by medical examiners with railroad officer and issue of conditional certification. —(g) Notification by certified signal employee of deterioration of hearing. 553 railroads ............. 246.119(b)–(c)—Training requirements—A railroad’s election for the training of signal employees shall be stated in its certification program. The paperwork burden for this requirement is covered under § 246.101/.103. 553 railroads ............. lotter on DSK11XQN23PROD with PROPOSALS3 —(d) Initial training program for previously 553 railroads ............. untrained person to be a signal employee. 184 training programs. 3 hours ..................... 553.00 ................ —(d)(3) Modification to training program when new safety-related railroad laws, regulations and etc. are introduced into the workplace. The paperwork burden for this requirement is outside the scope of the 3-year PRA review period. —(e) Relevant information or materials on safety or other rules made available to certification candidates. The paperwork burden for this requirement is covered under § 246.101/.103. —(f) and (g) Completion of initial training program by a person being certified as a signal employee—Written documentation showing completed training program that complies with paragraph (d) of this section. 553 railroads ............. —(f)(3) Employee consultation with qualified supervisory employee if given written test to fulfill this requirement, the railroad must provide the certification candidate with an opportunity to consult with a qualified instructor to explain a question. The paperwork burden for this requirement is covered under § 246.119. —(h) Certification program is submitted in accordance with the procedures and requirements described in § 246.106. The paperwork burden for this requirement is covered under § 246.101/.103. —(i) Familiarization training for signal employee of acquiring railroad from selling company/railroad prior to commencement of new operation. FRA anticipates zero submissions. —(j) Continuing education of certified signal employees. 553 railroads ............. 246.120—Requirements for qualification— Determining eligibility and. The paperwork burden for this requirement is covered under § 246.119. —(b) Notification by persons not qualified on the signal system. The paperwork burden for this requirement is covered under § 246.119. 246.121(a)–(c)—Knowledge testing—Determining eligibility. —(d) Reexamination of the failed test ......... 553 railroads ............. 2,000 test records .... 5 minutes .................. 166.67 ................ 77.44 12,906.92 553 railroads ............. 20 examination records. 5 minutes .................. 1.67 .................... 77.44 129.32 VerDate Sep<11>2014 21:03 May 30, 2023 Jkt 259001 PO 00000 3,781 written documents or records. 2,000 training records Frm 00036 Fmt 4701 Sfmt 4702 10 minutes ................ 15 minutes ................ 630.17 ............... E:\FR\FM\31MYP3.SGM 31MYP3 35667 Federal Register / Vol. 88, No. 104 / Wednesday, May 31, 2023 / Proposed Rules Respondent universe lotter on DSK11XQN23PROD with PROPOSALS3 CFR section Total annual responses Average time per responses Total annual burden hours Wage rate Total cost equivalent (A) (B) (C) = A * B (D) 34 (E) = C * D 246.123(c)—Monitoring operational performance—Unannounced compliance tests—Retention of a written record. 246.125—Certification determinations made by other railroads. 246.203(b)—Retaining information supporting determination—Records. —(g) Amended electronic records ............... 553 railroads ............. 7,348 records ........... 2 minutes .................. 244.93 ............... 77.44 18,967.38 553 railroads ............. 11.00 determinations 30 minutes ................ 5.50 .................... 77.44 425.92 553 railroads ............. 2,000 record retentions. 2 amended record .... 15 minutes ................ 500.00 ................ 77.44 38,720.00 15 minutes ................ .50 ...................... 77.44 38.72 246.205—List of certified signal employees and recordkeeping.. The paperwork requirement for this burden is covered under § 246.105(c)(1)–(d)(1). 246.207(a)–(f)—Certificate requirements ..... The paperwork requirement for this burden is covered under § 246.105(c)(2)–(d)(2). —(b) Notification by signal employees that railroad request to serve exceeds certification. —(g)–(h) Replacement of certificates .......... 553 railroads ............. 110 notifications ....... 30 seconds ............... .92 ...................... 71.89 66.14 553 railroads ............. 5 minutes .................. 3.75 .................... 77.44 290.40 246.213(a)–(h)—Multiple Certificates—Notification of denial of certification by individuals holding multiple certifications. 553 railroads ............. 45 replacement certificates. 3 notifications ........... 10 minutes ................ .50 ..................... 77.44 38.72 —(i) In lieu of issuing multiple certificates, a railroad may issue one certificate to a person who is certified in multiple crafts. The paperwork requirement for this burden is covered under § 246.105. 246.215—Railroad oversight responsibility—Review and analysis of administration of certification program. —(d) Report of findings and conclusions reached during annual review by railroad to FRA (if requested in writing by FRA) review and analysis effort.. 246.301(a)—Denial of certification—Notification to candidate of information that and candidate response forms basis for denying certification. —(b) Denial Decision Requirements—Written notification of denial of certification by railroad to candidate. 246.307(b)(1)–(b)(4)—Process for revoking certification—Immediate suspension of signal employee’s certification. 553 railroads ............. 17.33 annual reviews and analyses. 8 hours ..................... 138.64 ................ 115.24 15,976.87 553 railroads ............. 2 reports ................... 4 hours ..................... 8.00 .................... 115.24 921.92 553 railroads ............. 6 notices + 3 responses. 1 hour ....................... 9.00 .................... 77.44 696.96 553 railroads ............. 6 notifications ........... 1 hour ....................... 6.00 ................... 77.44 464.64 553 railroads ............. 15 suspended certification letters and documentations. 30 minutes ................ 7.50 .................... 77.44 580.80 —(b)(5)–(b)(6) Determinations based on the record of the hearing, whether revocation of the certification is warranted. The paperwork requirement for this burden is covered under § 246.307(e). —(b)(7) Retention of record of the hearing for three years after the date the decision is rendered. —(d)(9) Hearing Procedures—Written waiver of right to hearing. —(e) Revocation Decision Requirements— Written decisions by railroad official. 553 railroads ............. 15 records ................ 15 minutes ................ 3.75 .................... 77.44 290.40 553 railroads ............. 3 written waivers ...... 10 minutes ................ .50 ...................... 59.00 29.50 553 railroads ............. 2 hours ..................... 30.00 ................. 115.24 3,457.20 —(g) Revocation of certification based on information that another railroad has done so. 553 railroads ............. 15 written decisions and service of decisions. 3 revoked certifications. 10 minutes ................ .50 ...................... 115.24 57.62 —(j) Placing relevant information in record if sufficient evidence meeting the criteria in paragraph (h) or (i) of this section becomes available. The paperwork requirement for this burden is covered under § 246.307(b)(7). —(k) Good faith determination ..................... 553 railroads ............. 77.44 232.32 Subpart E—Dispute Resolution Procedures—§ 246.401 through § 246.411. The requirements under these provisions are exempted from the PRA under 5 CFR 1320.4(a)(2). Since these provisions pertain to an administrative action or investigation, there is no PRA burden associated with these requirements. Appendix A to Part 246—Procedures for Obtaining and Evaluating Motor Vehicle Driving Record Data. The paperwork requirements described in this appendix are accounted for throughout this table. Appendix B to Part 246—Medical Standards Guidelines. The paperwork requirements described in this appendix are accounted for throughout this table. VerDate Sep<11>2014 21:03 May 30, 2023 553 railroads ............. Jkt 259001 PO 00000 3 good faith determinations. Frm 00037 Fmt 4701 Sfmt 4702 1 hour ....................... 3.00 .................... E:\FR\FM\31MYP3.SGM 31MYP3 35668 Federal Register / Vol. 88, No. 104 / Wednesday, May 31, 2023 / Proposed Rules Respondent universe CFR section lotter on DSK11XQN23PROD with PROPOSALS3 Totals 35 ................................................. 553 railroads + ASLRRA and holding companies. All estimates include the time for reviewing instructions; searching existing data sources; gathering or maintaining the needed data; and reviewing the information. Pursuant to 44 U.S.C. 3506(c)(2)(B), FRA solicits comments concerning: Whether these information collection requirements are necessary for the proper performance of the functions of FRA, including whether the information has practical utility; the accuracy of FRA’s estimates of the burden of the information collection requirements; the quality, utility, and clarity of the information to be collected; and whether the burden of collection of information on those who are to respond, including through the use of automated collection techniques or other forms of information technology, may be minimized. For information or a copy of the paperwork package submitted to OMB, contact Ms. Arlette Mussington, Information Collection Clearance Officer, at email: arlette.mussington@dot.gov or telephone: (571) 609–1285 or Ms. Joanne Swafford, Information Collection Clearance Officer, at email: joanne.swafford@dot.gov or telephone: (757) 897–9908. Organizations and individuals desiring to submit comments on the collection of information requirements should direct them via email to Ms. Mussington at arlette.mussington@dot.gov or Ms. Swafford at joanne.swafford@dot.gov. OMB is required to decide concerning the collection of information requirements contained in this rule between 30 and 60 days after publication of this document in the Federal Register. Therefore, a comment to OMB is best assured of having its full effect if OMB receives it within 30 days of publication. FRA is not authorized to impose a penalty on persons for violating information collection requirements that do not display a current OMB control number, if required. FRA intends to obtain current OMB control numbers for any new information collection requirements 34 Throughout the tables in this document, the dollar equivalent cost is derived from the 2020 Surface Transportation Board’s Full Year Wage A&B data series using the appropriate employee group hourly wage rate that includes 75-percent overhead charges. 35 Totals may not add due to rounding. VerDate Sep<11>2014 21:03 May 30, 2023 Jkt 259001 Total annual responses Average time per responses Total annual burden hours Wage rate Total cost equivalent (A) (B) (C) = A * B (D) 34 (E) = C * D 35,577 responses ..... N/A ........................... 7,682 ................. resulting from this rulemaking action prior to the effective date of the final rule. The OMB control number, when assigned, will be announced by separate notice in the Federal Register. D. Federalism Implications Executive Order 13132, Federalism,36 requires FRA to develop an accountable process to ensure ‘‘meaningful and timely input by State and local officials in the development of regulatory policies that have federalism implications.’’ ‘‘Policies that have federalism implications’’ are defined in the Executive Order to include regulations that have ‘‘substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government.’’ Under Executive Order 13132, the agency may not issue a regulation with federalism implications that imposes substantial direct compliance costs and that is not required by statute, unless the Federal government provides the funds necessary to pay the direct compliance costs incurred by State and local governments, the agency consults with State and local governments, or the agency consults with State and local government officials early in the process of developing the regulation. Where a regulation has federalism implications and preempts State law, the agency seeks to consult with State and local officials in the process of developing the regulation. FRA has analyzed this proposed rule in accordance with the principles and criteria contained in Executive Order 13132. FRA has determined that this proposed rule has no federalism implications, other than the possible preemption of State laws under 49 U.S.C. 20106. Therefore, the consultation and funding requirements of Executive Order 13132 do not apply, and preparation of a federalism summary impact statement for the proposed rule is not required. 36 64 PO 00000 FR 43255 (Aug. 10, 1999). Frm 00038 Fmt 4701 Sfmt 4702 N/A 747,257 E. International Trade Impact Assessment The Trade Agreements Act of 1979 37 prohibits Federal agencies from engaging in any standards or related activities that create unnecessary obstacles to the foreign commerce of the United States. Legitimate domestic objectives, such as safety, are not considered unnecessary obstacles. The statute also requires consideration of international standards and, where appropriate, that they be the basis for U.S. standards. This proposed rule is purely domestic in nature and is not expected to affect trade opportunities for U.S. firms doing business overseas or for foreign firms doing business in the United States. F. Environmental Impact FRA has evaluated this proposed rule consistent with the National Environmental Policy Act 38 (NEPA), the Council on Environmental Quality’s NEPA implementing regulations,39 and FRA’s NEPA implementing regulations 40 and determined that it is categorically excluded from environmental review and therefore does not require the preparation of an environmental assessment (EA) or environmental impact statement (EIS). Categorical exclusions (CEs) are actions identified in an agency’s NEPA implementing regulations that do not normally have a significant impact on the environment and therefore do not require either an EA or EIS.41 Specifically, FRA has determined that this proposed rule is categorically excluded from detailed environmental review.42 The main purpose of this rulemaking is to establish certification requirements for signal employees. This rule would not directly or indirectly impact any environmental resources and would not 37 19 U.S.C. Ch. 13. U.S.C. 4321 et seq. 39 40 CFR parts 1500–1508. 40 23 CFR part 771. 41 40 CFR 1508.4. 42 See 23 CFR 771.116(c)(15) (categorically excluding ‘‘[p]romulgation of rules, the issuance of policy statements, the waiver or modification of existing regulatory requirements, or discretionary approvals that do not result in significantly increased emissions of air or water pollutants or noise’’). 38 42 E:\FR\FM\31MYP3.SGM 31MYP3 Federal Register / Vol. 88, No. 104 / Wednesday, May 31, 2023 / Proposed Rules result in significantly increased emissions of air or water pollutants or noise. In analyzing the applicability of a CE, FRA must also consider whether unusual circumstances are present that would warrant a more detailed environmental review.43 FRA has concluded that no such unusual circumstances exist with respect to this proposed rule and it meets the requirements for categorical exclusion.44 Pursuant to Section 106 of the National Historic Preservation Act and its implementing regulations, FRA has determined this undertaking has no potential to affect historic properties.45 FRA has also determined that this rulemaking does not approve a project resulting in a use of a resource protected by Section 4(f).46 Further, FRA reviewed this proposed rulemaking and found it consistent with Executive Order 14008, ‘‘Tackling the Climate Crisis at Home and Abroad.’’ lotter on DSK11XQN23PROD with PROPOSALS3 G. Executive Order 12898 (Environmental Justice) Executive Order 12898, ‘‘Federal Actions to Address Environmental Justice in Minority Populations and Low-Income Populations,’’ and DOT Order 5610.2C 47 require DOT agencies to achieve environmental justice as part of their mission by identifying and addressing, as appropriate, disproportionately high and adverse human health or environmental effects, including interrelated social and economic effects, of their programs, policies, and activities on minority populations and low-income populations. The DOT Order instructs DOT agencies to address compliance with Executive Order 12898 and requirements within the DOT Order in rulemaking activities, as appropriate, and also requires consideration of the benefits of transportation programs, policies, and other activities where minority populations and low-income populations benefit, at a minimum, to the same level as the general population as a whole when determining impacts on minority and low-income populations. FRA has evaluated this proposed rule under Executive Order 12898 and the DOT Order and has determined it would not cause disproportionately high and adverse 43 23 CFR 771.116(b). CFR 771.116(c)(15). 45 See 16 U.S.C. 470. 46 See Department of Transportation Act of 1966, as amended (Public Law 89–670, 80 Stat. 931); 49 U.S.C. 303. 47 Available at https://www.transportation.gov/ sites/dot.gov/files/Final-for-OST-C-210312-003signed.pdf. 44 23 VerDate Sep<11>2014 21:03 May 30, 2023 Jkt 259001 human health and environmental effects on minority populations or low-income populations. H. Unfunded Mandates Reform Act of 1995 Under section 201 of the Unfunded Mandates Reform Act of 1995,48 each Federal agency ‘‘shall, unless otherwise prohibited by law, assess the effects of Federal regulatory actions on State, local, and Tribal governments, and the private sector (other than to the extent that such regulations incorporate requirements specifically set forth in law).’’ Section 202 of the Act 49 further requires that ‘‘before promulgating any general notice of proposed rulemaking that is likely to result in promulgation of any rule that includes any Federal mandate that may result in the expenditure by State, local, and Tribal governments, in the aggregate, or by the private sector, of $100,000,000 or more (adjusted annually for inflation) in any 1 year, and before promulgating any final rule for which a general notice of proposed rulemaking was published, the agency shall prepare a written statement’’ detailing the effect on State, local, and Tribal governments and the private sector. This proposed rule would not result in the expenditure, in the aggregate, of $100,000,000 or more (as adjusted annually for inflation) in any one year, and thus preparation of such a statement is not required. I. Energy Impact Executive Order 13211, ‘‘Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use,’’ requires Federal agencies to prepare a Statement of Energy Effects for any ‘‘significant energy action.’’ 50 FRA evaluated this proposed rule under Executive Order 13211 and determined that this regulatory action is not a ‘‘significant energy action’’ within the meaning of Executive Order 13211. J. Privacy Act Statement In accordance with 5 U.S.C. 553(c), DOT solicits comments from the public to better inform its rulemaking process. DOT posts these comments, without edit, to www.regulations.gov, as described in the system of records notice, DOT/ALL–14 FDMS, accessible through www.dot.gov/privacy. To facilitate comment tracking and response, we encourage commenters to provide their name, or the name of their organization; however, submission of 48 Public Law 104–4, 2 U.S.C. 1531. U.S.C. 1532. 50 66 FR 28355 (May 22, 2001). 49 2 PO 00000 Frm 00039 Fmt 4701 Sfmt 4702 35669 names is completely optional. Whether or not commenters identify themselves, all timely comments will be fully considered. If you wish to provide comments containing proprietary or confidential information, please contact the agency for alternate submission instructions. K. Executive Order 13175 (Tribal Consultation) FRA has evaluated this proposed rule in accordance with the principles and criteria contained in Executive Order 13175, Consultation and Coordination with Indian Tribal Governments, dated November 6, 2000. The proposed rule would not have a substantial direct effect on one or more Indian Tribes, would not impose substantial direct compliance costs on Indian Tribal governments, and would not preempt Tribal laws. Therefore, the funding and consultation requirements of Executive Order 13175 do not apply, and a Tribal summary impact statement is not required. List of Subjects in 49 CFR Part 246 Administrative practice and procedure, Signal Employee, Penalties, Railroad employees, Railroad safety, Reporting and recordkeeping requirements. The Proposed Rule For the reasons discussed in the preamble, FRA proposes to amend chapter II, subtitle B, of title 49 of the Code of Federal Regulations, by adding part 246 to read as follows: ■ PART 246—CERTIFICATION OF SIGNAL EMPLOYEES Sec. Subpart A—General 246.1 Purpose and scope. 246.3 Application and responsibility for compliance. 246.5 Effect and construction. 246.7 Definitions. 246.9 Waivers. 246.11 Penalties and consequences for noncompliance. Subpart B—Program and Eligibility Requirements 246.101 Certification program required. 246.103 FRA review of certification programs. 246.105 Implementation schedule for certification programs. 246.106 Requirements for certification programs. 246.107 Signal service classifications. 246.109 Determinations required for certification and recertification. 246.111 Prior safety conduct as motor vehicle operator. E:\FR\FM\31MYP3.SGM 31MYP3 35670 Federal Register / Vol. 88, No. 104 / Wednesday, May 31, 2023 / Proposed Rules 246.113 Prior safety conduct with other railroads. 246.115 Substance abuse disorders and alcohol drug rules compliance. 246.117 Vision acuity. 246.118 Hearing acuity. 246.119 Training requirements. 246.121 Knowledge testing. 246.123 Monitoring operational performance. 246.124 Mentoring. 246.125 Certification determinations made by other railroads. Subpart C—Administration of the Certification Program 246.201 Time limitations for certification. 246.203 Retaining information supporting determinations. 246.205 List of certified signal employees and recordkeeping. 246.207 Certificate requirements. 246.213 Multiple certifications. 246.215 Railroad oversight responsibilities. Subpart D—Denial and Revocation of Certification 246.301 Process for denying certification. 246.303 Criteria for revoking certification. 246.305 Periods of ineligibility. 246.307 Process for revoking certification. Subpart E—Dispute Resolution Procedures 246.401 Review board established. 246.403 Petition requirements. 246.405 Processing certification review petitions. 246.407 Request for a hearing. 246.409 Hearings. 246.411 Appeals. Appendix A to Part 246—Procedures for Obtaining and Evaluating Motor Vehicle Driving Record Data Appendix B to Part 246—Medical Standards Guidelines Authority: 49 U.S.C. 20103, 20107, 20162, 21301, 21304, 21311; 28 U.S.C. 2461 note; 49 CFR 1.89; and Public Law 110–432, sec. 402, 122 Stat. 4884. Subpart A—General lotter on DSK11XQN23PROD with PROPOSALS3 § 246.1 Purpose and scope. (a) The purpose of this part is to ensure that only those persons who meet minimum Federal safety standards serve as certified signal employees, to reduce the rate and number of accidents and incidents, and to improve railroad safety. (b) This part prescribes minimum Federal safety standards for the eligibility, training, testing, certification and monitoring of all signal employees to whom it applies. This part does not restrict a railroad from adopting and enforcing additional or more stringent requirements consistent with this part. (c) The signal employee certification requirements prescribed in this part apply to any person who meets the definition of signal employee contained in § 246.7, regardless of the fact that the VerDate Sep<11>2014 21:03 May 30, 2023 Jkt 259001 person may have a job classification title other than that of signal employee. § 246.3 Application and responsibility for compliance. (a) This part applies to all railroads, except: (1) Railroads that do not have a signal system as defined in § 246.7; (2) Railroads that operate only on track inside an installation that is not part of the general railroad system of transportation (i.e., plant railroads, as defined in § 246.7); (3) Tourist, scenic, historic, or excursion operations conducted only on track used exclusively for that purpose (i.e., there is no freight, intercity passenger, or commuter passenger railroad operations on the track) and only on track inside an installation that is insular; i.e., the operations are limited to a separate enclave in such a way that there is no reasonable expectation that the safety of the public—except a business guest, a licensee of the railroad or an affiliated entity, or a trespasser— would be affected by the operation. An operation will not be considered insular, for purposes of this part, if one or more of the following exists on its line: (i) A public highway-rail grade crossing that is in use; (ii) A public pathway grade crossing that is in use; (iii) An at-grade rail crossing that is in use; (iv) A bridge over a public road or waters used for commercial navigation; or (v) A common corridor with a railroad, i.e., its operations are within 30 feet of those of any railroad; or (4) Rapid transit operations in an urban area that are not connected to the general railroad system of transportation. (b) Although the duties imposed by this part are generally stated in terms of the duty of a railroad, each person, as defined in § 246.7, who performs any function required by this part must perform that function in accordance with this part. § 246.5 Effect and construction. (a) FRA does not intend, by use of the term signal employee in this part, to alter the terms, conditions, or interpretation of existing collective bargaining agreements that employ other job classification titles when identifying a person who is engaged in installing, troubleshooting, testing, repair, or maintenance of railroad signal systems. (b) FRA does not intend by issuance of these regulations to alter the authority PO 00000 Frm 00040 Fmt 4701 Sfmt 4702 of a railroad to initiate disciplinary sanctions against its employees, including managers and supervisors, in the normal and customary manner, including those contained in its collective bargaining agreements. (c) Except as provided in § 246.213, nothing in this part shall be construed to create or prohibit an eligibility or entitlement to employment in other service for the railroad as a result of denial, suspension, or revocation of certification under this part. (d) Nothing in this part shall be deemed to abridge any additional procedural rights or remedies not inconsistent with this part that are available to the employee under a collective bargaining agreement, the Railway Labor Act, or (with respect to employment at will) at common law with respect to removal from service or other adverse action taken as a consequence of this part. § 246.7 Definitions. As used in this part: Administrator means the Administrator of the FRA or the Administrator’s delegate. Alcohol means ethyl alcohol (ethanol) and includes use or possession of any beverage, mixture, or preparation containing ethyl alcohol. Contractor means a person under contract with a railroad, including but not limited to, a prime contractor or a subcontractor. Controlled substance has the meaning assigned by 21 U.S.C. 802 and includes all substances listed on Schedules I through V as they may be revised from time to time (21 CFR parts 1301 through 1316). Disable means to render a device or system incapable of proper and effective action or to materially impair the functioning of that device or system. Drug means any substance (other than alcohol) that has known mind or function-altering effects on a human subject, specifically including any psychoactive substance and including, but not limited to, controlled substances. Drug and alcohol counselor (DAC) means a person who meets the credentialing and qualification requirements of a ‘‘Substance Abuse Professional’’ (SAP), as provided in 49 CFR part 40. File, filed, and filing mean submission of a document under this part on the date when the Docket Clerk receives it, or if sent by mail, the date mailing was completed. FRA means the Federal Railroad Administration. FRA representative means the FRA Associate Administrator for Railroad E:\FR\FM\31MYP3.SGM 31MYP3 lotter on DSK11XQN23PROD with PROPOSALS3 Federal Register / Vol. 88, No. 104 / Wednesday, May 31, 2023 / Proposed Rules Safety/Chief Safety Officer and the Associate Administrator’s delegate, including any safety inspector employed by the Federal Railroad Administration and any qualified State railroad safety inspector acting under part 212 of this chapter. Ineligible or ineligibility means that a person is legally disqualified from serving as a certified signal employee. The term covers a number of circumstances in which a person may not serve as a certified signal employee. Revocation of certification pursuant to § 246.307 and denial of certification pursuant to § 246.301 are two examples in which a person would be ineligible to serve as a certified signal employee. A period of ineligibility may end when a condition or conditions are met, such as when a person meets the conditions to serve as a certified signal employee following an alcohol or drug violation pursuant to § 246.115. Knowingly means having actual knowledge of the facts giving rise to the violation or that a reasonable person acting in the circumstances, exercising due care, would have had such knowledge. Medical examiner means a person licensed as a doctor of medicine or doctor of osteopathy. A medical examiner can be a qualified full-time salaried employee of a railroad, a qualified practitioner who contracts with the railroad on a fee-for-service or other basis, or a qualified practitioner designated by the railroad to perform functions in connection with medical evaluations of employees. As used in this rule, the medical examiner owes a duty to make an honest and fully informed evaluation of the condition of an employee. Mentor means a certified signal employee who has at least one year of experience as a certified signal employee. For purposes of this part, a mentor also provides direct supervision and oversight over the work of one or more signal employees. On-the-job training means job training that occurs in the workplace, i.e., the employee learns the job while doing the job. Person means an entity of any type covered under 1 U.S.C. 1, including but not limited to the following: a railroad; a manager, supervisor, official, or other employee or agent of a railroad; any owner, manufacturer, lessor, or lessee of railroad equipment, track, or facilities; any independent contractor providing goods or services to a railroad; and any employee of such owner, manufacturer, lessor, lessee, or independent contractor. VerDate Sep<11>2014 21:03 May 30, 2023 Jkt 259001 Physical characteristics means the actual track profile of and physical location for points within a specific yard or route that affect the movement of a locomotive or train. Physical characteristics includes how signal systems and related technology are deployed within the territory, for purposes of this part. Plant railroad means a plant or installation that owns or leases a locomotive, uses that locomotive to switch cars throughout the plant or installation, and is moving goods solely for use in the facility’s own industrial processes. The plant or installation could include track immediately adjacent to the plant or installation if the plant railroad leases the track from the general system railroad and the lease provides for (and actual practice entails) the exclusive use of that trackage by the plant railroad and the general system railroad for purposes of moving only cars shipped to or from the plant. A plant or installation that operates a locomotive to switch or move cars for other entities, even if solely within the confines of the plant or installation, rather than for its own purposes or industrial processes, will not be considered a plant railroad because the performance of such activity makes the operation part of the general railroad system of transportation. Qualified instructor means a person who: (1) Has demonstrated, pursuant to the railroad’s written program, an adequate knowledge of the subjects under instruction; (2) Where applicable, has the necessary experience to effectively instruct in the field; (3) Is a certified signal employee under this part; and (4) If the railroad has designated employee representation, has been selected by a designated railroad officer, in concurrence with the designated employee representative, or has a minimum of one year of service working as a certified signal employee. Railroad means any form of nonhighway ground transportation that runs on rails or electromagnetic guideways and any entity providing such transportation, including: (1) Commuter or other short-haul railroad passenger service in a metropolitan or suburban area and commuter railroad service that was operated by the Consolidated Rail Corporation on January 1, 1979; and (2) High speed ground transportation systems that connect metropolitan areas, without regard to whether those systems use new technologies not associated with traditional railroads; but does not PO 00000 Frm 00041 Fmt 4701 Sfmt 4702 35671 include rapid transit operations in an urban area that are not connected to the general railroad system of transportation. Railroad officer means any supervisory employee of a railroad. Serve or service, in the context of serving documents, has the meaning given in Rule 5 of the Federal Rules of Civil Procedure as amended. Similarly, the computation of time provisions in Rule 6 of the Federal Rules of Civil Procedure as amended are also applicable in this part. See also the definition of ‘‘filing’’ in this section. Signal employee means a person who is engaged in installing, troubleshooting, testing, repairing, or maintaining railroad signal systems or related technology. Signal system, for purposes of this part, includes the following: block signal systems, cab signal systems, train control systems, positive train control systems, highway-rail and pathway grade crossing warning systems, unusual contingency detection devices, power-assisted switches, broken rail detection systems, switch point indicators, as well as other safetyrelated devices, appliances, technology, and systems installed on the railroad in signaled or non-signaled territory. Substance abuse disorder refers to a psychological or physical dependence on alcohol or a drug, or another identifiable and treatable mental or physical disorder involving the abuse of alcohol or drugs as a primary manifestation. A substance abuse disorder is ‘‘active’’ within the meaning of this part if the person is currently using alcohol or other drugs, except under medical supervision consistent with the restrictions described in § 219.103 of this chapter or has failed to successfully complete primary treatment or successfully participate in aftercare as directed by a DAC or SAP. Substance Abuse Professional (SAP) means a person who meets the qualifications of a substance abuse professional, as provided in 49 CFR part 40. Unusual contingency detection device means a device used in the detection of defective conditions on locomotives and rolling stock (e.g., high-wide load, hot or defective bearing, defective wheel detectors) or other unsafe conditions (e.g., high-water, high wind, sliding or slumping soil, rock or snow slide detectors). These devices need not be connected to a signal system for this part to apply. E:\FR\FM\31MYP3.SGM 31MYP3 35672 § 246.9 Federal Register / Vol. 88, No. 104 / Wednesday, May 31, 2023 / Proposed Rules Waivers. (a) A person subject to a requirement of this part may petition FRA for a waiver of compliance with such requirement. The filing of such a petition does not affect that person’s responsibility for compliance with that requirement while the petition is being considered. (b) Each petition for a waiver under this section must be filed in the manner and contain the information required by part 211 of this chapter. (c) If FRA finds that a waiver of compliance is in the public interest and is consistent with railroad safety, FRA may grant the waiver subject to any conditions FRA deems necessary. lotter on DSK11XQN23PROD with PROPOSALS3 § 246.11 Penalties and consequences for noncompliance. (a) Any person, as defined in § 246.7, who violates any requirement of this part or causes the violation of any such requirement is subject to a civil penalty of at least the minimum civil monetary penalty and not more than the ordinary maximum civil monetary penalty per violation. However, penalties may be assessed against individuals only for willful violations, and a penalty not to exceed the aggravated maximum civil monetary penalty per violation may be assessed, where: (1) A grossly negligent violation, or a pattern of repeated violations, has created an imminent hazard of death or injury to persons, or (2) A death or injury has occurred. See 49 CFR part 209, appendix A. (b) Each day a violation continues constitutes a separate offense. (c) A person who violates any requirement of this part or causes the violation of any such requirement may be subject to disqualification from all safety-sensitive service in accordance with part 209 of this chapter. (d) A person who knowingly and willfully falsifies a record or report required by this part may be subject to criminal penalties under 49 U.S.C. 21311. (e) In addition to the enforcement methods referred to in paragraphs (a) through (d) of this section, FRA may also address violations of this part by use of the emergency order, compliance order, and/or injunctive provisions of the Federal rail safety laws. (f) FRA’s website at https:// railroads.dot.gov/ contains a schedule of civil penalty amounts used in connection with this part. VerDate Sep<11>2014 21:03 May 30, 2023 Jkt 259001 Subpart B—Program and Eligibility Requirements § 246.101 Certification program required. (a) Each railroad subject to this part shall have a written signal employee certification program. (b) Each certification program shall include all of the following: (1) If applicable, an explanation and discussion of the occupational categories of certified signal service that comply with the requirements in § 246.107; (2) A procedure for evaluating prior safety conduct as a motor vehicle operator that complies with the criteria established in § 246.111; (3) A procedure for evaluating prior safety conduct with other railroads that complies with the criteria established in § 246.113; (4) A procedure for evaluating potential substance abuse disorders and compliance with railroad alcohol and drug rules that complies with the criteria established in § 246.115; (5) A procedure for evaluating visual and hearing acuity that complies with the criteria established in §§ 246.117 and 246.118; (6) A procedure for training that complies with the criteria established in § 246.119; (7) A procedure for knowledge testing that complies with the criteria established in § 246.121; (8) A procedure for monitoring operational performance that complies with the criteria established in § 246.123; and (9) A procedure for mentoring uncertified signal employees that complies with the criteria established in § 246.124. (c) Each certification program shall be version controlled. Any change from the previous version of the certification program must be tracked. § 246.103 FRA review of certification programs. (a) Certification program submission schedule for railroads with signal systems in operation. With the exception of railroads exempted by § 246.3(a), each railroad with a signal system in operation as of [EFFECTIVE DATE OF FINAL RULE] shall submit its signal employee certification program to FRA, in accordance with the procedures and requirements contained in § 246.106, according to the following schedule: (1) All Class I railroads (including the National Railroad Passenger Corporation) and railroads providing commuter service shall submit their programs to FRA no later than [DATE 8 PO 00000 Frm 00042 Fmt 4701 Sfmt 4702 MONTHS AFTER EFFECTIVE DATE OF FINAL RULE]. (2) All Class II railroads and Class III railroads (including a switching and terminal or other railroad not otherwise classified) shall submit their programs to FRA no later than [DATE 16 MONTHS AFTER EFFECTIVE DATE OF FINAL RULE]. (b) Certification program submission for new railroads. Each railroad that commences operations after [EFFECTIVE DATE OF FINAL RULE] shall submit, and obtain approval of, its written signal employee certification program to FRA, in accordance with the procedures and requirements contained in § 246.106, prior to installing, implementing, or operating a signal system subject to this part. (c) Method for submitting certification programs to FRA. Railroads must submit their written certification programs and their requests for approval (described in § 246.106(a)) by uploading the program to FRA’s secure document submission site. (d) Each railroad that submits a program to FRA must: (1) Simultaneously with its submission, provide a copy of the program and the request for approval to the president of each labor organization that represents the railroad’s signal employees and to all of the railroad’s signal employees who are subject to this part; and (2) Include in its submission to FRA, a statement affirming that the railroad has provided a copy of the program and request for approval to the president of each labor organization that represents the railroad’s signal employees and to all of the railroad’s signal employees who are subject to this part, along with a list of the names and email addresses of each president of a labor organization who was provided a copy of the program. (e) Comment period. Any designated representative of signal employees subject to this part or any directly affected person who does not have a designated representative may comment on a railroad’s program provided that: (1) The comment is submitted no later than 45 days after the date the program was submitted to FRA; (2) The comment includes a concise statement of the commenter’s interest in the matter; (3) The commenter affirms that a copy of the comment was provided to the railroad; and (4) The comment was emailed to FRASIGNALCERTPROG@dot.gov. (f) FRA review period. Upon receipt of a complete program, FRA will commence a thorough review of the E:\FR\FM\31MYP3.SGM 31MYP3 lotter on DSK11XQN23PROD with PROPOSALS3 Federal Register / Vol. 88, No. 104 / Wednesday, May 31, 2023 / Proposed Rules program to ensure that it satisfies all of the requirements under this part. (1) If FRA determines that the program satisfies all of the requirements under this part, FRA will issue a letter notifying the railroad that its program has been approved. Such letter will typically be issued within 90 days of the date the program was submitted to FRA. (2) If FRA determines that the program does not satisfy all of the requirements under this part, FRA will issue a letter notifying the railroad that its program has been disapproved. Such letter will typically be issued within 90 days of the date the program was submitted to FRA and will identify the deficiencies found in the program that must be corrected before the program can be approved. After addressing these deficiencies, railroads can resubmit their programs in accordance with paragraph (h) of this section. (3) If a railroad does not receive an approval or disapproval letter from FRA within 90 days of the date the program was submitted to FRA, FRA’s decision on the program will remain pending until such time that FRA issues a letter either approving or disapproving the program. A certification program is not approved until FRA issues a letter approving the program. (g) Material modifications. A railroad that intends to make one or more material modifications to its FRAapproved program must submit a description of how it intends to modify the program and a copy of the modified program which indicates changes from the last approved version. (1) A modification is material if it would affect the program’s conformance with this part. (2) The description of the modification and the modified program must conform with the procedures and requirements contained in § 246.106. (3) The process for submission and review of material modifications shall conform with paragraphs (c) through (f) of this section. (4) A railroad shall not implement a material modification to its program until FRA issues its approval of the material modification in accordance with paragraph (f)(1) of this section. (h) Resubmissions. If FRA disapproves a railroad’s program or material modification, as described in paragraph (f)(2) of this section, the railroad may resubmit its program or material modification after addressing all of the deficiencies noted by FRA. (1) The resubmission must conform with the procedures and requirements contained in § 246.106. (2) The process for submission and review of resubmitted programs and VerDate Sep<11>2014 21:03 May 30, 2023 Jkt 259001 resubmitted material modifications shall conform with paragraphs (c) through (f) of this section. (3) The following deadlines apply for railroads that have their programs or material modifications disapproved by FRA: (i) For a railroad that submitted its program pursuant to paragraph (a) of this section, the railroad must resubmit its program within 30 days of the date that FRA notified the railroad of the deficiencies in its program. If a railroad fails to resubmit its program within this timeframe and continues its rail operations, FRA may consider such actions to be a failure to implement a program. (ii) For a railroad that submitted its program pursuant to paragraph (b) of this section, there is no FRA-imposed deadline for resubmitting its program. However, pursuant to § 246.105(b), the railroad shall not install, implement, or operate signal systems subject to this part until its program has been approved by FRA. (iii) For a railroad that submitted a material modification to its FRAapproved program, there is no FRAimposed deadline for resubmitting the material modification. However, pursuant to paragraph (g)(4) of this section, the railroad cannot implement the material modification until it has been approved by FRA. (i) Rescinding prior approval of program. FRA reserves the right to revisit its prior approval of a railroad’s program at any time. (1) If upon such review FRA discovers deficiencies in the program, FRA shall issue the railroad a letter rescinding its prior approval of the program and notifying the railroad of the deficiencies in its program that must be addressed. (2) Within 30 days of FRA notifying the railroad of the deficiencies in its program, the railroad must address these deficiencies and resubmit its program to FRA. The resubmitted program must conform with the procedures and requirements contained in § 246.106. (3) The process for submission and review of resubmitted programs under this paragraph shall conform with paragraphs (c) through (f) of this section. (4) If a railroad fails to resubmit its program to FRA within the timeframe prescribed in paragraph (i)(2) of this section and the railroad continues its rail operations, FRA may consider such actions to be a failure to implement a program. (5) If FRA issues a letter disapproving the railroad’s resubmitted program, the railroad shall continue to resubmit its PO 00000 Frm 00043 Fmt 4701 Sfmt 4702 35673 program in accordance with this paragraph (i). (6) A program that has its approval rescinded under paragraph (i)(1) of this section may remain in effect until whichever of the following happens first: (i) FRA approves the railroad’s resubmitted program; or (ii) FRA disapproves the railroad’s second attempt at resubmitting its program. (7) If FRA disapproves a railroad’s second attempt at resubmitting its program under this paragraph and the railroad continues its rail operations, FRA may consider such actions to be a failure to implement a program. (j) Availability of certification program documents. The following documents will be available on FRA’s website (railroads.dot.gov): (1) A railroad’s originally submitted program, a resubmission of its program, or a material modification of its program; (2) Any comments, submitted in accordance with paragraph (e) of this section, to a railroad’s originally submitted program, a resubmission of its program, or a material modification of its program; and (3) Any approval or disapproval letter issued by FRA in response to a railroad’s originally submitted program, a resubmission of its program, or a material modification of its program. § 246.105 Implementation schedule for certification programs. (a) Each railroad that submits its signal employee certification program to FRA in accordance with § 246.103(a), must comply with 49 CFR parts 233, 234, 235, and 236 while it awaits approval of its program by FRA. However, if FRA disapproves a railroad’s program on two occasions and the railroad continues rail operations, FRA may consider such actions to be a failure to implement a program. (b) Each railroad that submits its signal employee certification program to FRA in accordance with § 246.103(b), must have its program approved by FRA prior to installing, implementing, or operating signal systems subject to this part. If a railroad installs, implements, or operates a signal system before its program is approved by FRA, FRA may consider such actions to be a failure to implement a program. (c) By [DATE 8 MONTHS AFTER EFFECTIVE DATE OF FINAL RULE], each railroad shall: (1) In writing, designate as certified signal employees all persons authorized by the railroad to perform the duties of a certified signal employee or, if E:\FR\FM\31MYP3.SGM 31MYP3 lotter on DSK11XQN23PROD with PROPOSALS3 35674 Federal Register / Vol. 88, No. 104 / Wednesday, May 31, 2023 / Proposed Rules applicable, each category or subcategory of certified signal employee identified by the railroad pursuant to § 246.107 as of [EFFECTIVE DATE OF FINAL RULE]; and (2) Issue a certificate that complies with § 246.207 to each person that it designates. (d) After [DATE 8 MONTHS AFTER EFFECTIVE DATE OF FINAL RULE], each railroad shall: (1) In writing, designate as a certified signal employee any person who has been authorized by the railroad to perform the duties of a certified signal employee or, if applicable, any category or subcategory of certified signal employee identified by the railroad pursuant to § 246.107 between [EFFECTIVE DATE OF FINAL RULE] and the date FRA approves the railroad’s certification program; and (2) Issue a certificate that complies with § 246.207 to each person that it designates. (e) After [DATE 8 MONTHS AFTER EFFECTIVE DATE OF FINAL RULE], no railroad shall permit or require a person to perform service as a certified signal employee unless that person is a certified signal employee. (f) No railroad shall permit or require a person, designated as a certified signal employee under the provisions of paragraph (c) or (d) of this section, to perform service as a certified signal employee for more than three years after the date FRA approves the railroad’s certification program unless that person has been tested and evaluated in accordance with procedures that comply with subpart B of this part. (1) Except as provided in paragraph (f)(3) of this section, a person who has been designated as a certified signal employee under the provisions of paragraph (c) or (d) of this section and who is eligible to receive a retirement pension in accordance with the terms of an applicable agreement or in accordance with the terms of the Railroad Retirement Act (45 U.S.C. 231) within three years from the date the certifying railroad’s program is approved, may request, in writing, that a railroad not recertify that person, pursuant to subpart B of this part, until three years from the date the certifying railroad’s program is approved. (2) Upon receipt of a written request pursuant to paragraph (f)(1) of this section, a railroad may wait to recertify the person making the request until the end of the three-year period after FRA has approved the railroad’s certification program. If a railroad grants any request, it must grant request all eligible persons to every extent possible. VerDate Sep<11>2014 21:03 May 30, 2023 Jkt 259001 (3) A person who is subject to recertification under part 240 or 242 of this chapter may not make a request pursuant to paragraph (f)(1) of this section. (g) After a railroad’s certification program has been approved by FRA, the railroad shall only certify or recertify a person as a signal employee if that person has been tested and evaluated in accordance with procedures that comply with subpart B of this part. § 246.106 Requirements for certification programs. (a) Railroad certification program submission. (1) A railroad’s certification program submission must include a copy of its certification program and a request for approval. (2) The request for approval can be in letter or narrative format. (3) A railroad will receive approval or disapproval notices from FRA by email. (4) FRA may electronically store any materials required by this part. (b) Organization of the certification program. Each certification program must be organized to present the required information in the six sections described in paragraphs (b)(1) through (6) of this section Each section of the certification program must begin with the name, title, telephone number, and email address of the person to be contacted concerning the matters addressed by that section. If a person is identified in a prior section, it is sufficient to merely repeat the person’s name in a subsequent section. (1) Section One of the certification program: General information and elections. (i) The first section of the certification program must contain the name of the railroad, the person to be contacted to discuss that section (including the person’s name, title, telephone number, and email address), and a statement electing either to accept responsibility for training persons not previously certified as signal employees or to not accept this responsibility. (ii) If a railroad elects not to provide certification training to persons not previously certified as signal employees, the railroad will be limited to recertifying signal employees initially certified by another railroad. A railroad may change its election by obtaining FRA approval of a material modification to its certification program in accordance with § 246.103(g). (iii) If a railroad elects to accept responsibility for training persons not previously certified as signal employees, the railroad must submit information on how such persons will be trained but is not required to actually perform such training. A railroad that elects to accept PO 00000 Frm 00044 Fmt 4701 Sfmt 4702 responsibility for the training of such persons may authorize another railroad or a non-railroad entity to provide the training. The electing railroad remains responsible for ensuring that the authorized training provider(s) adhere to the training program the railroad submits. (iv) If a railroad elects to classify its certified signal employees into more than one occupational category or subcategory by class, task, location, or other suitable terminology, the railroad shall include the following in this section of its certification program: (A) An up-to-date list and description of each occupational category or subcategory of certified signal employee; (B) A statement of the roles and responsibilities of each occupational category or subcategory of certified signal employee; and (C) A detailed list of the safety-related tasks and subtasks performed by each category or subcategory of certified signal employee. (2) Section Two of the certification program: Training previously certified signal employees. The second section of the certification program must contain information concerning the railroad’s program for training previously certified signal employees, including all of the following information: (i) As provided for in § 246.119(j), each railroad must have a program for the ongoing education of its certified signal employees to ensure that they maintain the necessary knowledge concerning all applicable Federal safety laws, regulations, and orders; knowledge concerning all applicable railroad signal system safety and operating rules; and knowledge concerning all applicable standards, procedures, and instructions for the installation, operation, testing, maintenance, troubleshooting, and repair of signal systems and related technology deployed on the railroad. The railroad must describe in this section of its certification program how it will ensure that its certified signal employees maintain the necessary knowledge and skills to safely discharge their responsibilities so as to comply with the standard set forth in § 246.119(j); (ii) In accordance with § 246.119(h), the railroad must provide sufficient detail in the second section of its certification program to permit effective evaluation of the contents and scope of the railroad’s training program on the signal systems and signal-related technology deployed on its territory. FRA anticipates that railroads will address, in this section of their E:\FR\FM\31MYP3.SGM 31MYP3 lotter on DSK11XQN23PROD with PROPOSALS3 Federal Register / Vol. 88, No. 104 / Wednesday, May 31, 2023 / Proposed Rules certification programs, the frequency and duration of training sessions (including the interval between attendance at such training sessions), the training environment(s) that will be employed (e.g., classroom, computerbased training, use of film or slide presentations, or on-the-job training) and which aspects of the training program will be voluntary or mandatory; (iii) How the training will address a certified signal employee’s loss of retained knowledge over time; and (iv) How the training will address changed circumstances over time, such as the introduction of new or modified signal system equipment and related technology (including software modifications), so as to comply with the training standard set forth in § 246.119. (3) Section Three of the certification program: Testing and evaluating previously certified signal employees. The third section of the certification program must contain information about the railroad’s program for testing and evaluating previously certified signal employees, including all of the following information: (i) The railroad must describe in this section how it will ensure that its previously certified signal employees demonstrate their knowledge concerning the safe discharge of their responsibilities, so as to comply with the standards set forth in § 246.121; and (ii) The railroad must describe in this section how it will have ongoing testing and evaluation to ensure that its previously certified signal employees have the required vision and hearing acuity as provided in §§ 246.117 and 246.118. This section must also address how the railroad will ensure that its medical examiners have sufficient information concerning the railroad’s operations, as well as the safety-related tasks performed by certified signal employees, to allow for effective and appropriate determinations about the ability of a particular individual to safely perform as a certified signal employee. (4) Section Four of the certification program: Training, testing, and evaluating persons who have not been certified as signal employees. Unless a railroad has made an election not to accept responsibility for conducting the initial signal employee certification training, the fourth section of the certification program must contain information about the railroad’s program for educating, testing, and evaluating persons who have not been previously certified as signal employees, including all of the following information: VerDate Sep<11>2014 21:03 May 30, 2023 Jkt 259001 (i) As provided for in § 246.119, a railroad that is issuing an initial signal employee certification to a person must have a program for the training, testing, and evaluation of its signal employee certification candidates to ensure that they acquire the necessary knowledge and skills. A railroad must describe in this section of its certification program how it will ensure that its signal employee certification candidates acquire sufficient knowledge and skills and demonstrate their knowledge and skills concerning the safe discharge of their responsibilities. A railroad must also discuss in this section of its certification program its procedures for mentoring candidates for signal employee certification, in accordance with § 246.124; (ii) This section of the railroad’s certification program must contain the same level of detail concerning the initial training program and testing and evaluation of previously uncertified signal employees as is required for previously certified signal employees in § 246.106(b)(2) and (3) (Sections Two and Three of the railroad’s certification program); (iii) Railroads that elect to rely on other entities to conduct signal employee certification training away from the railroad’s own territory must explain how training will be provided to signal employee certification candidates on the signal systems and related technology deployed on the railroad’s territory. (5) Section Five of the certification program: Monitoring operational performance by certified signal employees. The fifth section of the certification program must contain information about the railroad’s program for monitoring the operational performance of its certified signal employees, including all of the following information: (i) Section 246.123 requires that a railroad conduct ongoing monitoring of its certified signal employees and that each certified signal employee have an annual unannounced compliance test. A railroad must describe in this section of its certification program how the railroad will ensure that it has an ongoing program for monitoring its certified signal employees that requires them to demonstrate their ability to safely discharge their responsibilities. (ii) A railroad must describe in this section the scoring system used by the railroad during operational monitoring observations and unannounced compliance tests that are administered in accordance with § 246.123. (6) Section Six of the certification program: Procedures for routine PO 00000 Frm 00045 Fmt 4701 Sfmt 4702 35675 administration of the signal employee certification program. The final section of the certification program must contain a summary of how the railroad’s program and procedures will implement various aspects of the regulatory provisions in this part that relate to the routine administration of the railroad’s certification program for signal employees. Specifically, this section must address the procedural aspects of the following provisions and must describe the manner in which the railroad will implement its program so as to comply with each of the following provisions: (i) Section 246.301 which provides that each railroad must have procedures for review and comment on adverse information; (ii) Sections 246.111, 246.113, 246.115, and 246.303 which require each railroad to have procedures for evaluating data concerning prior safety conduct as a motor vehicle operator and as a railroad worker; (iii) Sections 246.109, 246.201, and 246.301 which place a duty on the railroad to make a series of determinations. When describing how it will implement its certification program to comply with these sections, a railroad must describe: the procedures it will utilize to ensure that all of the necessary determinations have been made in a timely fashion; who will be authorized by the railroad to determine whether a person will or will not be certified; and how the railroad will communicate adverse decisions; (iv) Sections 246.109, 246.117, 246.118, 246.119, and 246.121, which place a duty on the railroad to make a series of determinations. When describing how the railroad will implement its program to comply with these sections, a railroad must describe how it will document the factual basis the railroad relied upon when making determinations under these sections; (v) Section 246.124 which require each railroad to have procedures for mentoring signal employees who have not been certified; (vi) Section 246.125 which permits reliance on signal employee certification determinations made by other railroads; and (vii) Sections 246.207 and 246.307 which contain the requirements for replacing lost certificates and the conduct of certification revocation proceedings. § 246.107 Signal service classifications. (a) A railroad may classify its certified signal employees in occupational categories or subcategories by class, task, location, or other suitable E:\FR\FM\31MYP3.SGM 31MYP3 35676 Federal Register / Vol. 88, No. 104 / Wednesday, May 31, 2023 / Proposed Rules terminology, in accordance with an FRA-approved certification program that complies with the requirements of this part. (b) Any certified signal employee called to work on a signal system or signal-related technology on which they have not been certified shall immediately notify the railroad or their employer that they are not certified to work on the signal system or signalrelated technology. (c) No railroad shall permit a certified signal employee to work on a signal system or signal-related technology on which the employee has not been certified, unless the certified signal employee works under the direct oversight and supervision of a mentor in accordance with § 246.124. § 246.109 Determinations required for certification and recertification. (a) After FRA has approved a railroad’s signal employee certification program, the railroad, prior to initially certifying or recertifying any person as a signal employee, shall, in accordance with its FRA-approved program, determine in writing that: (1) The individual meets the prior safety conduct eligibility requirements of §§ 246.111 and 246.113; (2) The individual meets the eligibility requirements of §§ 246.115 and 246.303; (3) The individual meets the vision and hearing acuity standards of §§ 246.117 and 246.118; (4) If applicable, the individual has completed a training program that meets the requirements of § 246.119; (5) The individual has the necessary knowledge, as demonstrated by successfully completing testing and practical demonstration that meet the requirements of § 246.121. (b) Nothing in this section, § 246.111, or § 246.113 shall be construed to prevent persons subject to this part from entering into an agreement that results in a railroad obtaining the information needed for compliance with this subpart in a different manner than that prescribed in § 246.111 or § 246.113. lotter on DSK11XQN23PROD with PROPOSALS3 § 246.111 Prior safety conduct as motor vehicle operator. (a) Except as provided in paragraphs (b) through (e) of this section, after FRA has approved a railroad’s signal employee certification program, the railroad, prior to certifying or recertifying any person as a signal employee, shall determine that the person meets the eligibility requirements of this section involving prior conduct as a motor vehicle operator. VerDate Sep<11>2014 21:03 May 30, 2023 Jkt 259001 (b) A railroad shall certify a person as a signal employee for 60 days if the person: (1) Requested the information required by paragraph (g) of this section at least 60 days prior to the date of the decision to certify that person; and (2) Otherwise meets the eligibility requirements provided in § 246.109(a)(1) through (5). (c) A railroad shall recertify a person as a signal employee for 60 days from the expiration date of that person’s certification if the person: (1) Requested the information required by paragraph (g) of this section at least 60 days prior to the date of the decision to recertify that person; and (2) Otherwise meets the eligibility requirements provided in § 246.109(a)(1) through (5). (d) Except as provided in paragraph (e) of this section, if a railroad who certified or recertified a person for 60 days pursuant to paragraph (b) or (c) of this section does not obtain and evaluate the information requested pursuant to paragraph (g) of this section within 60 days, that person will be ineligible to perform as a certified signal employee until the information can be evaluated by the railroad. (e) If a person requests the information required pursuant to paragraph (g) of this section but is unable to obtain it, that person or the railroad certifying or recertifying that person may petition for a waiver of the requirements of paragraph (a) of this section in accordance with the provisions of part 211 of this chapter. A railroad shall certify or recertify a person during the pendency of the waiver request if the person otherwise meets the eligibility requirements provided in § 246.109(a)(1) through (5). (f) Except for persons designated as signal employees under § 246.105(c) or (d) or for persons covered by paragraph (j) of this section, each person seeking certification or recertification under this part shall, within one year prior to the date of the railroad’s decision on certification or recertification: (1) Take the actions required by paragraphs (g) through (i) of this section to make information concerning their driving record available to the railroad that is considering such certification or recertification; and (2) Take any additional actions, including providing any necessary consent required by State, Federal, or foreign law to make information concerning their driving record available to that railroad. (g) Each person seeking certification or recertification under this part shall request, in writing, that the chief of each PO 00000 Frm 00046 Fmt 4701 Sfmt 4702 driver licensing agency identified in paragraph (h) of this section provide a copy of that agency’s available information concerning their driving record to the railroad that is considering such certification or recertification. (h) Each person shall request the information required under paragraph (g) of this section from: (1) The chief of the driver licensing agency of any jurisdiction, including a State or foreign country, which last issued that person a driver’s license; and (2) The chief of the driver licensing agency of any other jurisdiction, including states or foreign countries, that issued or reissued the person a driver’s license within the preceding five years. (i) If advised by the railroad that a driver licensing agency has informed the railroad that additional information concerning that person’s driving history may exist in the files of a State agency or foreign country not previously contacted in accordance with this section, such person shall: (1) Request in writing that the chief of the driver licensing agency which compiled the information provide a copy of the available information to the prospective certifying railroad; and (2) Take any additional action required by State, Federal, or foreign law to obtain that additional information. (j) Any person who has never obtained a motor vehicle driving license is not required to comply with the provisions of paragraph (g) of this section but shall notify the railroad of that fact in accordance with procedures established by the railroad in its certification program. (k) Each certified signal employee or person seeking certification as a signal employee shall report motor vehicle incidents described in paragraphs (m)(1) and (2) of this section to their employer(s) (if employed by a railroad or contractor to a railroad), all prospective certifying railroads (if applicable), and all railroad(s) with whom the person holds a signal employee certificate within 48 hours of: (1) Being convicted for such violations, or (2) A completed State action to cancel, revoke, suspend, or deny a motor vehicle driver’s license for such violations. For purposes of this paragraph and paragraph (m) of this section, ‘‘State action’’ means action of the jurisdiction that has issued the motor vehicle driver’s license, including a foreign country. For purposes of signal employee certification, no railroad shall require reporting earlier than 48 hours E:\FR\FM\31MYP3.SGM 31MYP3 lotter on DSK11XQN23PROD with PROPOSALS3 Federal Register / Vol. 88, No. 104 / Wednesday, May 31, 2023 / Proposed Rules after the conviction, or completed State action to cancel, revoke, suspend, or deny a motor vehicle driver’s license. (l) When evaluating a person’s motor vehicle driving record, a railroad shall not consider information concerning motor vehicle driving incidents that occurred: (1) Prior to the effective date of this rule; or (2) More than three years before the date of the railroad’s certification decision; or (3) At a time other than that specifically provided for in § 246.111, § 246.113, § 246.115, or § 246.303. (m) A railroad shall only consider information concerning the following types of motor vehicle incidents: (1) A conviction for, or completed State action to cancel, revoke, suspend, or deny a motor vehicle driver’s license for operating a motor vehicle while under the influence of, or impaired by, alcohol or a controlled substance; or (2) A conviction for, or completed State action to cancel, revoke, suspend, or deny a motor vehicle driver’s license for refusal to undergo such testing as is required by State or foreign law when a law enforcement official seeks to determine whether a person is operating a vehicle while under the influence of alcohol or a controlled substance. (n) If such an incident, described in paragraph (m) of this section, is identified: (1) The railroad shall provide the data to the railroad’s Drug and Alcohol Counselor (DAC), together with any information concerning the person’s railroad service record, and shall refer the person for evaluation to determine if the person has an active substance abuse disorder. (2) The person shall cooperate in the evaluation and shall provide any requested records of prior counseling or treatment for review exclusively by the DAC in the context of such evaluation. (3) If the person is evaluated as not currently affected by an active substance abuse disorder, the subject data shall not be considered further with respect to certification. However, the railroad shall, on recommendation of the DAC, condition certification upon participation in any needed aftercare and/or follow-up testing for alcohol or drugs deemed necessary by the DAC consistent with the technical standards specified in 49 CFR part 219, subpart H, as well as 49 CFR part 40. (4) If the person is evaluated as currently affected by an active substance abuse disorder, the provisions of § 246.115(c) will apply. (5) If the person fails to comply with the requirements of paragraph (n)(2) of VerDate Sep<11>2014 21:03 May 30, 2023 Jkt 259001 this section, the person shall be ineligible to perform as a certified signal employee until such time as the person complies with the requirements. (o) Each railroad shall adopt and comply with a program meeting the requirements of this section. When any person (including, but not limited to, each railroad, railroad officer, supervisor, and employee) violates any requirement of a program which complies with the requirements of this section, that person shall be considered to have violated the requirements of this section. § 246.113 Prior safety conduct with other railroads. (a) After FRA has approved a railroad’s signal employee certification program, the railroad shall determine, prior to issuing any person a signal employee certificate, that the certification candidate meets the eligibility requirements of this section. (b) If the certification candidate has not been employed or certified by any other railroad in the previous five years, they do not have to submit a request in accordance with paragraph (c) of this section, but they must notify the railroad of this fact in accordance with procedures established by the railroad in its certification program. (c) Except as provided for in paragraph (b) of this section, each person seeking certification or recertification under this part shall submit a written request to each railroad that employed or certified the person within the previous five years to provide the following information to the railroad that is considering whether to certify or recertify that person as a signal employee: (1) Information about that person’s compliance with § 246.111 within the three years preceding the date of the request; (2) Information about that person’s compliance with § 246.115 within the five years preceding the date of the request; and (3) Information about that person’s compliance with § 246.303 within the five years preceding the date of the request. (d) Each person submitting a written request required by paragraph (c) of this section shall: (1) Submit the request no more than one year before the date of the railroad’s decision on certification or recertification; and (2) Take any additional actions, including providing any necessary consent required by State or Federal law to make information concerning their service record available to the railroad. PO 00000 Frm 00047 Fmt 4701 Sfmt 4702 35677 (e) Within 30 days after receipt of a written request that complies with paragraph (c) of this section, a railroad provide the information requested to the railroad designated in the written request. (f) If a railroad is unable to provide the information requested within 30 days after receipt of a written request that complies with paragraph (c) of this section, the railroad shall provide an explanation, in writing, of why it cannot provide the information within the requested time frame. If the railroad will ultimately be able to provide the requested information, the explanation shall state approximately how much more time the railroad needs to supply the requested information. If the railroad will not be able to provide the requested information, the railroad shall provide an adequate explanation for why it cannot provide this information. Copies of this explanation shall be provided to the railroad designated in the written request and to the person who submitted the written request for information. (g) When evaluating a person’s prior safety conduct with a different railroad, a railroad shall not consider information concerning prior safety conduct that occurred: (1) Prior to [EFFECTIVE DATE OF FINAL RULE]; or (2) At a time other than that specifically provided for in § 246.111, § 246.113, § 246.115, or § 246.303. (h) Each railroad shall adopt and comply with a program that complies with the requirements of this section. When any person (including but not limited to a railroad; any manager, supervisor, official, or agent of a railroad; any owner, manufacturer, lessor, or lessee of railroad equipment, track, or facilities; any employee of such owner, manufacturer, lessor, lessee, or contractor) violates any requirement of a program that complies with the requirements of this subject, that person shall be considered to have violated the requirements of this section. § 246.115 Substance abuse disorders and alcohol drug rules compliance. (a) Eligibility determination. After FRA has approved a railroad’s signal employee certification program, the railroad shall determine, prior to issuing any person a signal employee certificate, that the person meets the eligibility requirements of this section. (b) Documentation. In order to make the determination required under paragraph (c) of this section, a railroad shall have on file documents pertinent to that determination, including a written document from its DAC which E:\FR\FM\31MYP3.SGM 31MYP3 lotter on DSK11XQN23PROD with PROPOSALS3 35678 Federal Register / Vol. 88, No. 104 / Wednesday, May 31, 2023 / Proposed Rules states their professional opinion that the person has been evaluated as not currently affected by a substance abuse disorder or that the person has been evaluated as affected by an active substance abuse disorder. (c) Fitness requirement. (1) A person who has an active substance abuse disorder shall be denied certification or recertification as a signal employee. (2) Except as provided in paragraph (f) of this section, a certified signal employee who is determined to have an active substance abuse disorder shall be ineligible to hold certification. Consistent with other provisions of this part, certification may be reinstated as provided in paragraph (e) of this section. (3) In the case of a current employee of a railroad evaluated as having an active substance abuse disorder (including a person identified under the procedures of § 246.111), the employee may, if otherwise eligible, voluntarily self-refer for substance abuse counseling or treatment under the policy required by § 219.1001(b)(1) of this chapter; and the railroad shall then treat the substance abuse evaluation as confidential except with respect to ineligibility for certification. (d) Prior alcohol/drug conduct; Federal rule compliance. (1) In determining whether a person may be or remain certified as a signal employee, a railroad shall consider conduct described in paragraph (d)(2) of this section that occurred within a period of five consecutive years prior to the review. A review of certification shall be initiated promptly upon the occurrence and documentation of any incident of conduct described in this paragraph (d). (2) A railroad shall consider any violation of § 219.101 or § 219.102 of this chapter and any refusal to provide a breath or body fluid sample for testing under the requirements of part 219 of this chapter when instructed to do so by a railroad representative. (3) A period of ineligibility described in this section shall begin: (i) For a person not currently certified, on the date of the railroad’s written determination that the most recent incident has occurred; or (ii) For a person currently certified, on the date of the railroad’s notification to the person that recertification has been denied or certification has been suspended. (4) The period of ineligibility described in this section shall be determined in accordance with the following standards: (i) In the case of one violation of § 219.102 of this chapter, the person shall be ineligible to hold a certificate VerDate Sep<11>2014 21:03 May 30, 2023 Jkt 259001 during evaluation and any required primary treatment as described in paragraph (e) of this section. In the case of two violations of § 219.102 of this chapter, the person shall be ineligible to hold a certificate for a period of two years. In the case of more than two such violations, the person shall be ineligible to hold a certificate for a period of five years. (ii) In the case of one violation of § 219.102 of this chapter and one violation of § 219.101 of this chapter, the person shall be ineligible to hold a certificate for a period of three years. (iii) In the case of one violation of § 219.101 of this chapter, the person shall be ineligible to hold a certificate for a period of nine months (unless identification of the violation was through a qualifying referral program described in § 219.1001 of this chapter and the signal employee waives investigation, in which case the certificate shall be deemed suspended during evaluation and any required primary treatment as described in paragraph (e) of this section). In the case of two or more violations of § 219.101 of this chapter, the person shall be ineligible to hold a certificate for a period of five years. (iv) If a person refuses to provide a breath or body fluid sample for testing under the requirements of part 219 of this chapter when instructed to do so by a railroad representative, the person shall be ineligible to hold a certificate for a period of nine months. (e) Future eligibility to hold certificate following alcohol/drug violation. The following requirements apply to a person who has been denied certification or who has had their certification suspended or revoked as a result of conduct described in paragraph (d) of this section: (1) The person shall not be eligible for grant or reinstatement of the certificate unless and until the person has: (i) Been evaluated by a Substance Abuse Professional (SAP) to determine if the person currently has an active substance abuse disorder; (ii) Successfully completed any program of counseling or treatment determined to be necessary by the SAP prior to return to service; and (iii) In accordance with the testing procedures of 49 CFR part 219, subpart H, has had a return-to-duty alcohol test with an alcohol concentration of less than .02 and a return-to-duty body fluid sample that tested negative for controlled substances. (2) A certified signal employee placed in service or returned to service under the above-stated conditions shall continue in any program of counseling PO 00000 Frm 00048 Fmt 4701 Sfmt 4702 or treatment deemed necessary by the SAP and shall be subject to a reasonable program of follow-up alcohol and drug testing without prior notice for a period of not more than five years following return to service. Follow-up tests shall include not fewer than six alcohol tests and six drug tests during the first year following return to service. (3) Return-to-duty and follow-up alcohol and drug tests shall be performed consistent with the requirements of 49 CFR part 219, subpart H. (4) This paragraph (e) does not create an entitlement to utilize the services of a railroad SAP, to be afforded leave from employment for counseling or treatment, or to employment as a signal employee. Nor does it restrict any discretion available to the railroad to take disciplinary action based on conduct described herein. (f) Confidentiality protected. Nothing in this part shall affect the responsibility of the railroad under § 219.1003(f) of this chapter to treat qualified referrals for substance abuse counseling and treatment as confidential; and the certification status of a signal employee who is successfully assisted under the procedures of that section shall not be adversely affected. However, the railroad shall include in its referral policy, as required pursuant to § 219.1003(j) of this chapter, a provision that, at least with respect to a certified signal employee or a candidate for certification, the policy of confidentiality is waived (to the extent that the railroad shall receive from the SAP or DAC official notice of the substance abuse disorder and shall suspend or revoke the certification, as appropriate) if the person at any time refuses to cooperate in a recommended course of counseling or treatment. (g) Complying with certification program. Each railroad shall adopt and comply with a program meeting the requirements of this section. When any person (including, but not limited to, each railroad, railroad officer, supervisor, and employee) violates any requirement of a program which complies with the requirements of this section, that person shall be considered to have violated the requirements of this section. § 246.117 Vision acuity. (a) After FRA has approved a railroad’s signal employee certification program, the railroad shall determine, prior to issuing any person a signal employee certificate, that the person meets the standards for visual acuity prescribed in this section and Appendix B to this part. E:\FR\FM\31MYP3.SGM 31MYP3 lotter on DSK11XQN23PROD with PROPOSALS3 Federal Register / Vol. 88, No. 104 / Wednesday, May 31, 2023 / Proposed Rules (b) Any examination required under this section shall be performed by or under the supervision of a medical examiner or a licensed physician’s assistant. (c) Except as provided in paragraph (d) of this section, each certified signal employee shall have visual acuity that meets or exceeds the following thresholds: (1) For distant viewing, either: (i) Distant visual acuity of at least 20/ 40 (Snellen) in each eye without corrective lenses; or (ii) Distant visual acuity separately corrected to at least 20/40 (Snellen) with corrective lenses and distant binocular acuity of at least 20/40 (Snellen) in both eyes with or without corrective lenses; (2) A field of vision of at least 70 degrees in the horizontal meridian in each eye; and (3) The ability to recognize and distinguish between the colors of railroad signals as demonstrated by successfully completing one of the tests in Appendix B to this part. (d) A person not meeting the thresholds in paragraph (c) of this section shall, upon request of the certification candidate, be subject to further medical evaluation by a railroad’s medical examiner to determine that person’s ability to safely perform as a certified signal employee. In such cases, the following procedures will apply: (1) In accordance with the guidance prescribed in Appendix B to this part, a person is entitled to: (i) One retest without making any showing; and (ii) An additional retest if the person provides evidence that circumstances have changed since the last test to the extent that the person may now be able to safely perform as a certified signal employee. (2) The railroad shall provide its medical examiner with a copy of this part, including all appendices. (3) If, after consultation with a railroad officer, the medical examiner concludes that, despite not meeting the threshold(s) in paragraph (c) of this section, the person has the ability to safely perform as a certified signal employee, the railroad may conclude that the person satisfies the vision acuity requirements of this section to be a certified signal employee. Such certification will be conditioned on any special restrictions the medical examiner determines in writing to be necessary. (e) In order to make the determination required under paragraph (a) of this section, a railroad shall have on file the VerDate Sep<11>2014 21:03 May 30, 2023 Jkt 259001 following for each certification candidate: (1) A medical examiner’s certificate that the candidate has been medically examined and either does or does not meet the vision acuity standards prescribed in paragraph (c) of this section. (2) If necessary under paragraph (d) of this section, a medical examiner’s written professional opinion which states the basis for their determination that: (i) The candidate can be certified, under certain conditions if necessary, even though the candidate does not meet the vision acuity standards prescribed in paragraph (c) of this section; or (ii) The candidate’s vision acuity prevents the candidate from being able to safely perform as a certified signal employee. (f) If the examination required under this section shows that the person needs corrective lenses to meet the standards for vision acuity prescribed in this section and appendix B to this part, that person shall use corrective lenses at all times while performing as a certified signal employee unless the railroad’s medical examiner subsequently determines in writing that the person can safely perform as a certified signal employee without corrective lenses. (g) When a certified signal employee becomes aware that their vision has deteriorated, they shall notify the railroad’s medical department or other appropriate railroad official of the deterioration. Such notification must occur prior to performing any subsequent service as a certified signal employee. The individual cannot return to service as a certified signal employee until they are reexamined and determined by the railroad’s medical examiner to satisfy the vision acuity standards prescribed in this section and appendix B to this part. (h) Each railroad shall adopt and comply with a program meeting the requirements of this section. When any person (including, but not limited to, each railroad, railroad officer, supervisor, and employee) violates any requirement of a program which complies with the requirements of this section, that person shall be considered to have violated the requirements of this section. § 246.118 Hearing acuity. (a) After FRA has approved a railroad’s signal employee certification program, the railroad shall determine, prior to issuing any person a signal employee certificate, that the person meets the standards for hearing acuity PO 00000 Frm 00049 Fmt 4701 Sfmt 4702 35679 prescribed in this section and appendix B to this part. (b) Any examination required under this section shall be performed by or under the supervision of a medical examiner or a licensed physician’s assistant. (c) Except as provided in paragraph (d) of this section, each certified signal employee shall have hearing acuity that meets or exceeds the following thresholds with or without use of a hearing aid: The person does not have an average hearing loss in the better ear greater than 40 decibels at 500 Hz, 1,000 Hz, and 2,000 Hz. The hearing test or audiogram used to show a person’s hearing acuity shall meet the requirements of one of the following: (1) As required in 29 CFR 1910.95(h) (Occupational Safety and Health Administration); (2) As required in § 227.111 of this chapter; or (3) Conducted using an audiometer that meets the specifications of, and is maintained and used in accordance with, a formal industry standard, such as American National Standards Institute (ANSI) S3.6, ‘‘Specifications for Audiometers.’’ (d) A person not meeting the thresholds in paragraph (c) of this section shall, upon request of the certification candidate, be subject to further medical evaluation by a railroad’s medical examiner to determine that person’s ability to safely perform as a certified signal employee. In such cases, the following procedures will apply: (1) In accordance with the guidance prescribed in Appendix B to this part, a person is entitled to: (i) One retest without making any showing; and (ii) An additional retest if the person provides evidence that circumstances have changed since the last test to the extent that the person may now be able to safely perform as a certified signal employee. (2) The railroad shall provide its medical examiner with a copy of this part, including all appendices. (3) If, after consultation with a railroad officer, the medical examiner concludes that, despite not meeting the threshold(s) in paragraph (c) of this section, the person has the ability to safely perform as a certified signal employee, the railroad may conclude that the person satisfies the hearing acuity requirements of this section to be a certified signal employee. Such certification will be conditioned on any special restrictions the medical examiner determines in writing to be necessary. E:\FR\FM\31MYP3.SGM 31MYP3 lotter on DSK11XQN23PROD with PROPOSALS3 35680 Federal Register / Vol. 88, No. 104 / Wednesday, May 31, 2023 / Proposed Rules (e) In order to make the determination required under paragraph (a) of this section, a railroad shall have on file the following for each certification candidate: (1) A medical examiner’s certificate that the candidate has been medically examined and either does or does not meet the hearing acuity standards prescribed in paragraph (c) of this section. (2) If necessary under paragraph (d) of this section, a medical examiner’s written professional opinion which states the basis for their determination that: (i) The candidate can be certified, under certain conditions if necessary, even though the candidate does not meet the hearing acuity standards prescribed in paragraph (c) of this section; or (ii) The candidate’s hearing acuity prevents the candidate from being able to safely perform as a certified signal employee. (f) If the examination required under this section shows that the person needs a hearing aid to meet the standards for hearing acuity prescribed in this section and appendix B to this part, that person shall use a hearing aid at all times while performing as a certified signal employee unless the railroad’s medical examiner subsequently determines in writing that the person can safely perform as a certified signal employee without a hearing aid. (g) When a certified signal employee becomes aware that their hearing has deteriorated, they shall notify the railroad’s medical department or other appropriate railroad official of the deterioration. Such notification must occur prior to performing any subsequent service as a certified signal employee. The person cannot return to service as a certified signal employee until they are reexamined and determined by the railroad’s medical examiner to satisfy the hearing acuity standards prescribed in this section and appendix B to this part. (h) Each railroad shall adopt and comply with a program meeting the requirements of this section. When any person (including, but not limited to, each railroad, railroad officer, supervisor, and employee) violates any requirement of a program which complies with the requirements of this section, that person shall be considered to have violated the requirements of this section. § 246.119 Training requirements. (a) After FRA has approved a railroad’s certification program, the railroad shall determine, prior to issuing VerDate Sep<11>2014 21:03 May 30, 2023 Jkt 259001 any person a signal employee certificate, that the person has successfully completed training, in accordance with the requirements of this section. (b) As further explained in § 246.106, a railroad’s certification program shall state the railroad’s election either: (1) To accept responsibility for training persons who have not been previously certified as signal employees and thereby obtain authority to provide signal employee certification; or (2) To recertify signal employees previously certified by other railroads. (c) A railroad that elects to accept responsibility for the training of persons who have not been previously certified as signal employees shall state in its certification program whether it will conduct the training or employ a training program conducted by another entity on its behalf, but adopted and ratified by the railroad. (d) A railroad that elects to train persons not previously certified as signal employees shall address the following requirements in its certification program: (1) An explanation of how training will be structured, developed, and delivered, including an appropriate combination of classroom, simulator, computer-based, correspondence, practical demonstration, on-the-job training, or other formal training. The curriculum shall be designed to impart knowledge of, and ability to comply with applicable Federal railroad safety laws, regulations, and orders, as well as any relevant railroad rules and procedures promulgated to implement those Federal railroad safety laws, regulations, and orders. The training shall document a person’s knowledge of, and ability to comply with, Federal railroad safety laws, regulations, and orders, as well as railroad rules and procedures. (2) An on-the-job training component which shall include the following: (i) A syllabus describing content, required tasks, and related steps the employee learning the job shall be able to perform within a specified timeframe; (ii) A statement of the conditions (e.g., prerequisites, tools, equipment, documentation, briefings, demonstrations, and practice) necessary for learning transfer; and (iii) A statement of the standards by which proficiency is measured through a combination of task/step accuracy, completeness, and repetition. (3) A description of the processes to review and modify its training program when new safety-related laws, regulations, orders, and procedures are issued and when new signal systems, technologies, software or equipment are PO 00000 Frm 00050 Fmt 4701 Sfmt 4702 introduced into the workplace. This description shall also explain how the railroad will determine if additional or refresher training is needed. (e) Prior to beginning the initial signal employee tasks associated with on-thejob exercises referenced in paragraph (d)(2) of this section, each railroad shall make any relevant information or materials, such as signal standards, test procedures, operating rules, safety rules, or other rules, available for referencing by certification candidates. (f) Prior to initial certification of a person as a certified signal employee, a railroad shall require the person to: (1) Successfully complete the formal initial training program developed pursuant to paragraph (d) of this section and any associated examinations covering the skills and knowledge the person will need to perform the tasks necessary to be a certified signal employee; (2) Demonstrate on-the-job proficiency, with input from a qualified instructor, by successfully completing the tasks and using the signal systems and technology necessary to be a certified signal employee on the certifying railroad. A certification candidate may perform such tasks under the direct onsite supervision of a certified signal employee who has at least one year of experience as a signal employee; and (3) Demonstrate knowledge of the signal systems, technology, software, and equipment deployed on the railroad’s territory. If the railroad uses a written test to fulfill this requirement, the railroad must provide the certification candidate with an opportunity to consult with a qualified instructor to explain a question. (g) In making the determination required under paragraph (a) of this section, a railroad shall have written documentation showing that: (1) The person completed a training program that complies with paragraph (d) of this section (if the person has not previously been certified as a signal employee); and (2) The person demonstrated their knowledge by achieving a passing grade under the testing, practical demonstration, and evaluation procedures of the training program. (h) Notwithstanding the railroad’s election in paragraph (b) of this section, each railroad shall provide comprehensive training on the installation, operation, testing, maintenance, and repair of the signal systems (including software and equipment) and signal-related technology deployed on its territory as part of its certification program required E:\FR\FM\31MYP3.SGM 31MYP3 lotter on DSK11XQN23PROD with PROPOSALS3 Federal Register / Vol. 88, No. 104 / Wednesday, May 31, 2023 / Proposed Rules under this part and submitted in accordance with the procedures and requirements in § 246.106. In its certification program, each railroad shall address: (1) How comprehensive training will be provided on the installation, operation, testing, maintenance, and repair of the signal systems (including software and equipment) and signalrelated technology deployed on the railroad’s territory; and (2) How the railroad will ensure that the comprehensive training discussed in this paragraph is provided to each certified signal employee before the employee is required to install, operate, test, maintain, or repair any signal system (including software and equipment) or signal-related technology deployed on the railroad’s territory; and (3) The maximum time periods in which a certified signal employee can be absent from performing safetysensitive work on signal systems before refresher training will be required. This time period cannot exceed 12 months. (i) If ownership of a railroad is being transferred from one company to another, the signal employees of the acquiring company may receive familiarization training from the selling company prior to the acquiring company commencing operation. (j) Each railroad shall provide for the continuing education of its certified signal employees to ensure that each certified signal employee maintains the necessary knowledge and skills concerning: (1) Compliance with all applicable Federal laws, regulations, and orders; (2) Compliance with all applicable railroad signal system safety and operating rules; and (3) Compliance with all applicable standards, procedures, and instructions for the installation, operation, testing, maintenance, troubleshooting, and repair of new and existing signal systems (including new and existing software and equipment) and new and existing signal-related technology deployed on the railroad. (k) Each railroad shall provide comprehensive training on the installation, operation, testing, maintenance, and repair of new signal systems (including software and equipment) and signal-related technology to its certified signal employees before requiring any certified signal employee to install, operate, test, maintain, or repair any new signal system (including software or equipment) or new signal-related technology on its territory. (l) Each railroad shall adopt and comply with a program meeting the VerDate Sep<11>2014 21:03 May 30, 2023 Jkt 259001 requirements of this section. When any person (including, but not limited to, each railroad, railroad officer, supervisor, and employee) violates any requirement of a program which complies with the requirements of this section, that person shall be considered to have violated the requirements of this section. § 246.121 Knowledge testing. (a) After FRA has approved a railroad’s signal employee certification program, the railroad shall determine, prior to issuing any person a signal employee certificate, that the person has demonstrated sufficient knowledge of the railroad’s signal standards, test procedures, and instructions for the installation, operation, testing, maintenance, troubleshooting, and repair of the railroad’s signal systems in accordance with the requirements of this section. (b) In order to make the knowledge determination required by paragraph (a) of this section, a railroad shall have procedures for testing a person being evaluated for certification as a signal employee that shall be: (1) Designed to examine a person’s knowledge of: (i) All applicable Federal railroad safety laws, regulations, and orders governing signal systems and related technology; (ii) All applicable railroad safety and operating rules; and (iii) All applicable railroad standards, procedures, and instructions for the installation, operation, testing, maintenance, troubleshooting, and repair of the railroad’s signal systems and related technology, including: (A) The railroad’s rules and standards for disabling and removing signal systems from service; and (B) The railroad’s rules and standards for placing signal systems back in service; (2) Objective in nature; (3) Include a practical demonstration component; (4) In written or electronic form; (5) Sufficient to accurately measure the person’s knowledge of the subjects listed in paragraph (b)(1) of this section; and (6) Conducted without open reference books or other materials except to the degree the person is being tested on their ability to use such reference books or materials. (c) The railroad shall provide the certification candidate with an opportunity to consult with a qualified instructor to explain one or more test questions. (d) If a person fails the test, no railroad shall permit or require that PO 00000 Frm 00051 Fmt 4701 Sfmt 4702 35681 person to work as a certified signal employee prior to that person’s achieving a passing score during a reexamination of the test. (e) Each railroad shall adopt and comply with a program meeting the requirements of this section. When any person (including, but not limited to, each railroad, railroad officer, supervisor, and employee) violates any requirement of a program which complies with the requirements of this section, that person shall be considered to have violated the requirements of this section. § 246.123 Monitoring operational performance. (a) Each railroad’s certification program shall describe how it will monitor the operational performance of its certified signal employees by including procedures for: (1) Giving each certified signal employee at least one unannounced compliance test each calendar year on the railroad’s signal system standards, test procedures, and Federal regulations concerning signal systems, except as provided for in paragraph (d) of this section; (2) Giving unannounced compliance tests to certified signal employees who return to signal service after performing service that does not require certification pursuant to this part, as described in paragraph (d) of this section; (3) What actions the railroad will take if it finds deficiencies in a certified signal employee’s performance during an unannounced compliance test; and (4) Monitoring the performance of signal-related tasks. (b) An unannounced compliance test shall: (1) Test certified signal employees for compliance with one or more signal system standards or test procedures in accordance with the railroad’s certification program and § 217.9 of this chapter; (2) Be performed by a certified signal employee; (3) Be given to each certified signal employee at least once each calendar year, except as provided for in paragraph (d) of this section; and (4) If the railroad’s certification program classifies signal employees, the unannounced compliance test shall be within scope of the signal employee’s classification. (c) A certified signal employee who is not performing service that requires certification pursuant to this part does not need to be given an unannounced compliance test. However, when the certified signal employee returns to E:\FR\FM\31MYP3.SGM 31MYP3 35682 Federal Register / Vol. 88, No. 104 / Wednesday, May 31, 2023 / Proposed Rules service that requires certification pursuant to this part, the railroad shall: (1) Give the certified signal employee an unannounced compliance test within 30 days of their return to signal service; and (2) Retain a written record that includes the following information: (i) The date the certified signal employee stopped performing service that required certification pursuant to this part; (ii) The date the certified signal employee returned to performing service that required certification pursuant to this part; and (iii) The date and the result of the unannounced compliance test was performed following the signal employee’s return to service requiring certification. (d) Each railroad shall adopt and comply with a program meeting the requirements of this section. When any person (including, but not limited to, each railroad, railroad officer, supervisor, and employee) violates any requirement of a program which complies with the requirements of this section, that person shall be considered to have violated the requirements of this section. lotter on DSK11XQN23PROD with PROPOSALS3 § 246.124 Mentoring. (a) Each railroad’s certification program shall include procedures for mentoring signal employees who have not been certified by the railroad. (b) After FRA has approved a railroad’s certification program, the railroad shall not permit or require any person to perform work on a signal system or signal-related technology on its territory that requires certification unless the railroad first determines that: (1) The person is a certified signal employee who has been certified by the railroad; or (2) The person is a signal employee who is working under the direct observation and supervision of a mentor. (c) If the railroad elects to classify its certified signal employees into more than one occupational category or subcategory pursuant to § 246.107, the railroad shall address in its certification program how mentoring will be provided for certified signal employees who move into a different occupational category or subcategory of certified signal service. (d) If allowed by the railroad’s certification program, any work on a signal system performed by a signal employee whose certification has been revoked shall be performed under the direct oversight and supervision of a mentor. VerDate Sep<11>2014 21:03 May 30, 2023 Jkt 259001 (e) Each railroad’s certification program shall address how mentors will be held accountable for the work performed by signal employees when they are working under the mentor’s direct oversight and supervision. § 246.125 Certification determinations made by other railroads. (a) A railroad that is considering certification of a person as a signal employee may rely on certain determinations made by another railroad concerning that person’s certification. (b) A railroad’s certification program shall address how the railroad will administer the training of previously uncertified signal employees with extensive signal experience or previously certified signal employees who have had their certification expire. If a railroad’s certification program fails to specify how it will train these signal employees, then the railroad shall require these signal employees to successfully complete the certifying railroad’s entire training program. (c) A railroad relying on certification determinations made by another railroad shall be responsible for determining that: (1) The prior certification is still valid in accordance with the provisions of §§ 246.201 and 246.307; (2) The person has received training on the railroad’s signal standards, test procedures, and instructions for the installation, operation, testing, maintenance, troubleshooting, and repair of the railroad’s signal systems, technology, software, and equipment deployed on a railroad’s territory pursuant to § 246.119; and (3) The person has demonstrated the necessary knowledge concerning the railroad’s operating rules, territory, signal systems, technology, software, and equipment deployed on a railroad’s territory in accordance with § 246.121. Subpart C—Administration of the Certification Program § 246.201 Time limitations for certification. (a) After FRA approves a railroad’s signal employee certification program, that railroad shall not certify or recertify a person as a signal employee if the railroad is making: (1) A determination concerning eligibility under §§ 246.111, 246.113, 246.115, and 246.303 and the eligibility data being relied on was furnished more than one year before the date of the railroad’s certification decision; (2) A determination concerning visual or hearing acuity and the medical examination being relied on was PO 00000 Frm 00052 Fmt 4701 Sfmt 4702 conducted more than 450 days before the date of the railroad’s certification decision; (3) A determination concerning demonstrated knowledge and the knowledge examination being relied on was conducted more than one year before the date of the railroad’s certification decision; or (4) A determination concerning demonstrated knowledge and the knowledge examination being relied on was conducted more than two years before the date of the railroad’s recertification decision if the railroad administers a knowledge testing program pursuant to § 246.121 at intervals that do not exceed two years. (b) The time limitations of paragraph (a) of this section do not apply to a railroad that is making a certification decision in reliance on determinations made by another railroad in accordance with § 246.125. (c) Except if a person is designated as a certified signal employee under § 246.105(c) or (d), no railroad shall certify a person as a signal employee for an interval of more than three years. (d) Each railroad shall issue each certified signal employee a certificate that complies with § 246.207 no later than 30 days from the date of its decision to certify or recertify that person. § 246.203 Retaining information supporting determinations. (a) After FRA approves a railroad’s signal employee certification program, any time the railroad issues, denies, or revokes a certificate after making the determinations required under § 246.109, it shall maintain a record for each certified signal employee and certification candidate. Each record shall contain the information, described in paragraph (b) of this section, that the railroad relied on in making the determinations required under § 246.109. (b) A railroad shall retain the following information: (1) Relevant data from the railroad’s records concerning the person’s prior safety conduct and eligibility; (2) Relevant data furnished by another railroad; (3) Relevant data furnished by a governmental agency concerning the person’s motor vehicle driving record; (4) Relevant data furnished by the person seeking certification concerning their eligibility; (5) The relevant test results data concerning vision and hearing acuity; (6) If applicable, the relevant data concerning the professional opinion of the railroad’s medical examiner on the E:\FR\FM\31MYP3.SGM 31MYP3 lotter on DSK11XQN23PROD with PROPOSALS3 Federal Register / Vol. 88, No. 104 / Wednesday, May 31, 2023 / Proposed Rules adequacy of the person’s vision or hearing acuity; (7) Relevant data from the railroad’s records concerning the person’s success or failure on knowledge test(s) under § 246.121; (8) A sample copy of the written knowledge test or tests administered; and (9) The relevant data from the railroad’s records concerning the person’s success or failure on unannounced tests the railroad performed to monitor the signal employee’s performance in accordance with § 246.123. (c) If a railroad is relying on successful completion of a training program conducted by another entity, the relying railroad shall maintain a record for each certification candidate that contains the relevant data furnished by the training entity concerning the person’s demonstration of knowledge and relied on by the railroad in making its determinations. (d) If a railroad is relying on a certification decision initially made by another railroad, the relying railroad shall maintain a record for each certification candidate that contains the relevant data furnished by the other railroad which it relied on in making its determinations. (e) All records required under this section shall be retained by the railroad for a period of six years from the date of the certification, recertification, denial, or revocation decision and shall be made available to FRA representatives, upon request, in a timely manner. (f) It shall be unlawful for any railroad to knowingly or any individual to willfully: (1) Make, cause to be made, or participate in the making of a false entry on the record(s) required by this section; or (2) Otherwise falsify such records through material misstatement, omission, or mutilation. (g) Nothing in this section precludes a railroad from maintaining the information required to be retained under this section in an electronic format provided that: (1) The railroad maintains an information technology security program adequate to ensure the integrity of the electronic data storage system, including the prevention of unauthorized access to the program logic or individual records; (2) The program and data storage system must be protected by a security system that utilizes an employee identification number and password, or a comparable method, to establish VerDate Sep<11>2014 21:03 May 30, 2023 Jkt 259001 appropriate levels of program access meeting all of the following standards: (i) No two individuals have the same electronic identity; and (ii) A record cannot be deleted or altered by any individual after the record is certified by the employee who created the record; (3) Any amendment to a record is either: (i) Electronically stored apart from the record that it amends; or (ii) Electronically attached to the record as information without changing the original record; (4) Each amendment to a record uniquely identifies the person making the amendment; and (5) The system employed by the railroad for data storage permits reasonable access and retrieval of the information which can be easily produced in an electronic or printed format that can be: (i) Provided to FRA representatives in a timely manner; and (ii) Authenticated by a designated representative of the railroad as a true and accurate copy of the railroad’s records if requested to do so by an FRA representative. § 246.205 List of certified signal employees and recordkeeping. (a) After a railroad’s certification program has received its initial approval from FRA, pursuant to § 246.103(f)(1), the railroad must maintain a list of each person who is currently certified as a signal employee by the railroad. The list must include the date of the railroad’s certification decision and the date the person’s certification expires. (b) The list shall: (1) Be updated at least annually; (2) Be made available, upon request, to FRA representatives in a timely manner; and (3) Be available either: (i) In electronic format pursuant to paragraph (c) of this section; or (ii) At the divisional or regional headquarters of the railroad. (c) If a railroad elects to maintain its list in an electronic format, it must: (1) Maintain an information technology security program adequate to ensure the integrity of the electronic data storage system, including the prevention of unauthorized access to the program logic or the list; (2) Have its program and data storage system protected by a security system that utilizes an employee identification number and password, or a comparable method, to establish appropriate levels of program access meeting all of the following standards: (i) No two individuals have the same electronic identity; and PO 00000 Frm 00053 Fmt 4701 Sfmt 4702 35683 (ii) An entry on the list cannot be deleted or altered by any individual after the entry is certified by the employee who created the entry; (3) Have any amendment to the list either: (i) Electronically stored apart from the entry on the list that it amends; or (ii) Electronically attached to the entry on the list as information without changing the original entry; (4) Ensure that each amendment to the list uniquely identifies the person making the amendment; (5) Ensure that the system employed for data storage permits reasonable access and retrieval of the information which can be easily produced in an electronic or printed format that can be: (i) Provided to FRA representatives within a timely manner; and (ii) Authenticated by a designated representative of the railroad as a true and accurate copy of the railroad’s records if requested to do so by an FRA representative. (d) It shall be unlawful for any railroad to knowingly or any individual to willfully: (1) Make, cause to be made, or participate in the making of a false entry on the list required by this section; or (2) Otherwise falsify such list through material misstatement, omission, or mutilation. § 246.207 Certificate requirements. (a) Each person who becomes a certified signal employee in accordance with this part shall be issued a paper or electronic certificate that must: (1) Identify the railroad that is issuing the certificate; (2) Indicate that it is a signal employee certificate, along with any additional signal employee categories or subcategories developed by the railroad pursuant to § 246.107; (3) Provide the following information about the certified signal employee: (i) Name; (ii) Employee identification number; (iii) Year of birth; and (iv) Either a physical description or photograph of the person; (4) Identify any conditions or limitations, including conditions to ameliorate vision or hearing acuity deficiencies, that restrict, limit, or alter the person’s abilities to work as a certified signal employee; (5) Show the effective date of the certification; (6) Show the expiration date of the certification, except as provided for in paragraph (b) of this section; (7) Be signed by an individual designated in accordance with paragraph (c) of this section; and E:\FR\FM\31MYP3.SGM 31MYP3 lotter on DSK11XQN23PROD with PROPOSALS3 35684 Federal Register / Vol. 88, No. 104 / Wednesday, May 31, 2023 / Proposed Rules (8) Be electronic or be of sufficiently small size to permit being carried in an ordinary pocket wallet. (b) A certificate does not need to include an expiration date, as required under paragraph (a)(6) of this section, if the person was designated as a certified signal employee under § 246.105(c) or (d). (c) Each railroad shall designate in writing any person it authorizes to sign the certificates described in this section. The designation shall identify such persons by name or job title. (d) Nothing in this section shall prohibit any railroad from including additional information on the certificate or supplementing the certificate through other documents. (e) It shall be unlawful for any railroad to knowingly or any individual to willfully: (1) Make, cause to be made, or participate in the making of a false entry on a certificate; or (2) Otherwise falsify a certificate through material misstatement, omission, or mutilation. (f) Except as provided for in paragraph (h) of this section, each certified signal employee shall: (1) Have their certificate in their possession while on duty as a signal employee; and (2) Display their certificate upon request from: (i) An FRA representative; (ii) A State inspector authorized under part 212 of this chapter; (iii) An officer of the issuing railroad; or (iv) An officer of the signal employee’s employer if the signal employee is not employed by the issuing railroad. (g) If a signal employee’s certificate is lost, stolen, mutilated, or becomes unreadable, the railroad shall promptly replace the certificate at no cost to the signal employee. (h) A certified signal employee is exempt from the requirements of paragraph (f) of this section if: (1) The railroad made its certification or recertification decision within the last 30 days and the signal employee has not yet received their certificate; or (2) The signal employee’s certificate was lost, stolen, mutilated, or became unreadable, and the railroad has not yet issued a replacement certificate to the signal employee. (i) Any signal employee who is notified or called to serve as a signal employee and such service would cause the signal employee to exceed certificate limitations, set forth in accordance with subpart B of this part, shall immediately notify the railroad that they are not VerDate Sep<11>2014 21:03 May 30, 2023 Jkt 259001 authorized to perform that anticipated service and it shall be unlawful for the railroad to require such service. (j) Nothing in this section shall be deemed to alter a certified signal employee’s duty to comply with other provisions of this chapter concerning railroad safety. § 246.213 Multiple certifications. (a) A person who holds a signal employee certificate may: (1) Hold a signal employee certificate for multiple types of signal service; and (2) Be certified in other crafts, such as a locomotive engineer or conductor. (b) A railroad that issues multiple certificates to a person, shall, to the extent possible, coordinate the expiration date of those certificates. (c)(1) A person who holds a current signal employee certificate from more than one railroad shall immediately notify their employer(s) and all railroad(s) with whom they hold a signal employee certificate if they are denied signal employee certification or recertification under § 246.301 by a railroad or have their signal employee certification suspended or revoked under § 246.307 by a railroad. (2) If a person has their signal employee certification suspended or revoked by a railroad under § 246.307, they shall not work as a certified signal employee for any railroad during the period that their certification is suspended or revoked, except as provided for in § 246.124(d). (3) If a person has their signal employee certification suspended or revoked by a railroad under § 246.307, they shall notify any railroad from whom they are seeking signal employee certification that their signal employee certification has been suspended or revoked by another railroad. (d) Paragraphs (d)(1) through (3) of this section apply to people who are currently certified as a signal employee and also currently certified in another railroad craft, such as a locomotive engineer or conductor: (1) If a person’s signal employee certification is revoked under § 246.307 for a violation of § 246.303(e)(11), they shall not work in another certified railroad craft, such as a locomotive engineer or conductor, during the period of revocation. (2) If a person’s signal employee certification is revoked under § 246.307 for a violation of § 246.303(e)(11), they shall not obtain certification for any other railroad craft pursuant to this chapter during the period of revocation. (3) If a person’s signal employee certification is revoked under § 246.307 for a violation of § 246.303(e)(1) through PO 00000 Frm 00054 Fmt 4701 Sfmt 4702 (10), they may work in another certified railroad craft, such as a locomotive engineer or conductor, during the period of revocation. (e) Paragraphs (e)(1) through (3) of this section also apply to people who are certified as a signal employee and certified in another railroad craft, such as a locomotive engineer or conductor: (1) A person whose certification in any railroad craft has been revoked for failure to comply with § 219.101 of this chapter shall not work as a certified signal employee for any railroad during the revocation period. (2) A person whose certification in any railroad craft has been revoked for failure to comply with § 219.101 of this chapter shall not obtain signal employee certification pursuant to this part from any railroad during the revocation period. (3) A certified signal employee who has had their certification in another railroad craft suspended or revoked for any reason other than a failure to comply with § 219.101 of this chapter may work as a certified signal employee during the suspension or revocation period. (f) A railroad that denies a person signal employee certification or recertification under § 246.301 shall not, solely on the basis of that denial, deny or revoke that person’s certifications or recertifications in another railroad craft. (g) A railroad that denies a person’s certification or recertification, pursuant to this chapter, in any railroad craft other than signal employee shall not, solely on the basis of that denial, deny or revoke that person’s signal employee certification or recertification. (h) In lieu of issuing multiple certificates, a railroad may issue one certificate to a person who is certified in multiple crafts as long as the single certificate complies with all of the certificate requirements for those crafts. (i) A person who is certified in multiple crafts and who is involved in a revocable event, as described in this chapter, may only have one certificate revoked for that event. The determination by the railroad as to which certificate to revoke must be based on the work the person was performing at the time the revocable event occurred. § 246.215 Railroad oversight responsibilities. (a) No later than March 31 of each year (beginning in calendar year [YEAR THAT IS 3 YEARS AFTER EFFECTIVE DATE OF FINAL RULE]), each Class I railroad (including the National Railroad Passenger Corporation), each railroad providing commuter service, E:\FR\FM\31MYP3.SGM 31MYP3 lotter on DSK11XQN23PROD with PROPOSALS3 Federal Register / Vol. 88, No. 104 / Wednesday, May 31, 2023 / Proposed Rules and each Class II railroad shall conduct a formal annual review and analysis concerning the administration of its program for responding to detected instances of poor safety conduct by certified signal employees during the prior calendar year. (b) Each review and analysis shall involve: (1) The number and nature of the instances of detected poor safety conduct including the nature of the remedial action taken in response thereto; (2) The number and nature of FRA reported accidents/incidents attributed to poor safety performance by signal employees; and (3) The number and type of operational monitoring test failures recorded by certified signal employees conducting compliance tests pursuant to § 246.123. (c) Based on that review and analysis, each railroad shall determine what action(s) it will take to improve the safety of railroad operations to reduce or eliminate future accidents/incidents of that nature. (d) If requested in writing by FRA, the railroad shall provide a report of the findings and conclusions reached during such annual review and analysis effort. (e) For reporting purposes, information about the nature of detected poor safety conduct shall be capable of segregation for study and evaluation purposes into the following categories: (1) Incidents involving noncompliance with railroad rules and procedures governing the removal from service of: (i) Highway-rail and pathway grade crossing warning devices and systems; and (ii) Wayside signal devices and systems; (iii) Other devices or signal systems subject to this part. (2) Incidents involving noncompliance with railroad rules and procedures governing the restoration of service of: (i) Highway-rail and pathway grade crossing warning devices and systems; and (ii) Wayside signal devices and systems; (iii) Other devices or signal systems subject to this part. (3) Incidents involving interference with the normal functioning of: (i) Highway-rail and pathway grade crossing warning devices and systems; and (ii) Wayside signal devices and systems. (4) Incidents involving noncompliance with railroad rules and VerDate Sep<11>2014 21:03 May 30, 2023 Jkt 259001 test procedures governing the inspection and testing of grade crossing warning devices and systems after installation, modification, disarrangement, maintenance, testing, and repair. (5) Incidents involving noncompliance with railroad test procedures on devices or signal systems subject to this part. (6) Incidents resulting in a signal false proceed, grade crossing activation failure, or accident or personal injury related to the same. (7) Incidents involving noncompliance with the on-track safety requirements in part 214 of this chapter. (8) Incidents involving noncompliance with part 219 of this chapter. (f) For reporting purposes, each category of detected poor safety conduct identified in paragraph (e) of this section shall be capable of being annotated to reflect the following: (1) The total number of incidents in that category; (2) The number of incidents within that total which reflect incidents requiring an FRA accident/incident report under part 225 of this chapter; and (3) The number of incidents within that total which were detected as a result of a scheduled operational monitoring effort. (g) For reporting purposes, each instance of detected poor safety conduct identified in paragraph (b) of this section shall be capable of being annotated to reflect the following: (1) The nature of the remedial action taken, and the number of events subdivided so as to reflect which of the following actions was selected: (i) Imposition of informal discipline; (ii) Imposition of formal discipline; (iii) Provision of informal training; or (iv) Provision of formal training; and (2) If the nature of the remedial action taken was formal discipline, the number of events further subdivided so as to reflect which of the following punishments was imposed by the railroad: (i) The person was withheld from service; (ii) The person was dismissed from employment; or (iii) The person was issued demerits. If more than one form of punishment was imposed only the punishment deemed the most severe shall be shown. (iv) The person’s classification or type of signal service was removed or reduced. (h) For reporting purposes, each instance of detected poor safety conduct identified in paragraph (b) of this section which resulted in the imposition PO 00000 Frm 00055 Fmt 4701 Sfmt 4702 35685 of formal or informal discipline shall be annotated to reflect the following: (1) The number of instances in which the railroad’s internal appeals process reduced the punishment initially imposed at the conclusion of its hearing; and (2) The number of instances in which the punishment imposed by the railroad was reduced by any of the following entities: The National Railroad Adjustment Board, a Public Law Board, a Special Board of Adjustment, or other body for the resolution of disputes duly constituted under the provisions of the Railway Labor Act. (i) For reporting purposes, an instance of poor safety conduct involving an individual who is a certified signal employee and is certified in another craft such as locomotive engineer or conductor, need only be reported once (e.g., either under this section or § 240.309 or § 242.215 of this chapter). The determination as to where to report the instance of poor safety conduct should be based on the work the person was performing at the time the conduct occurred. Subpart D—Denial and Revocation of Certification § 246.301 Process for denying certification. (a) A railroad shall notify a candidate for certification or recertification of information known to the railroad that forms the basis for denying the person certification and provide the person a reasonable opportunity to explain or rebut that adverse information in writing prior to denying certification. A railroad shall provide the signal employee candidate with any documents or records, including written statements, related to failure to meet a requirement of this part that support its pending denial decision. (b) If a railroad denies a person certification or recertification, it shall issue a decision that complies with all of the following requirements: (1) It must be in writing; (2) It must explain the basis for the railroad’s denial decision; (3) It must address any explanation or rebuttal information that the certification candidate provides pursuant to paragraph (a) of this section; (4) It must include the date of the railroad’s decision; and (5) It must be served on the candidate no later than 10 days after the railroad’s decision. (c) A railroad shall not deny the person’s certification for failing to comply with a railroad test procedure, signal standard, or practice which E:\FR\FM\31MYP3.SGM 31MYP3 35686 Federal Register / Vol. 88, No. 104 / Wednesday, May 31, 2023 / Proposed Rules constitutes a violation under § 246.303(e)(1) through (10) if sufficient evidence exists to establish that an intervening cause prevented or materially impaired the signal employee’s ability to comply with that railroad test procedure, signal standard, or practice. lotter on DSK11XQN23PROD with PROPOSALS3 § 246.303 Criteria for revoking certification. (a) It shall be unlawful to fail to comply with any of the railroad rules or practices described in paragraph (e) of this section. (b) A certified signal employee who has demonstrated a failure to comply with a railroad test procedure, signal standard or practice described in paragraph (e) of this section shall have their certification revoked. (c) A certified signal employee who is monitoring, mentoring, or instructing a signal employee and fails to take appropriate action to prevent a violation of a railroad test procedure, signal standard or practice described in paragraph (e) of this section shall have their certification revoked. Appropriate action does not mean that a supervisor, mentor, or instructor must prevent a violation from occurring at all costs; the duty may be met by warning the signal employee of a potential or foreseeable violation. (d) A certified signal employee who is called by a railroad to perform a duty other than that of a signal employee shall not have their signal employee certification revoked based on actions taken or not taken while performing that duty except for violations described in paragraph (e)(11) of this section. (e) When determining whether to revoke a signal employee’s certification, a railroad shall only consider violations of Federal regulatory provisions or railroad rules, procedures, signal standards, and practices that involve: (1) Interfering with the normal functioning of a highway-rail grade crossing warning system under § 234.209 of this chapter, or signal system under § 236.4 of this chapter, without providing an alternative means of protection. (Railroads shall only consider those violations that result in an activation failure or false proceed signal.) (2) Failure to comply with a railroad rule or procedure when removing from service: (i) Highway-rail or pathway grade crossing warning devices and systems; (ii) Wayside signal devices and systems; or (iii) Other devices or signal systems subject to this part. VerDate Sep<11>2014 21:03 May 30, 2023 Jkt 259001 (3) Failure to comply with railroad rule or procedure when placing in service or restoring to service: (i) Highway-rail and pathway grade crossing warning devices and systems; (ii) Wayside signal devices and systems; or (iii) Other devices or signal systems subject to this part. (4) Failure to perform an inspection or test to ensure a highway-rail or pathway grade crossing warning device or system functions as intended, when required by railroad rule or procedure, after: (i) Installation, maintenance, testing or repair of the warning device or system; (ii) Modification or disarrangement of the warning device or system; or (iii) Malfunction or failure of the warning device or system; (5) Failure to restore power to train detection device or highway-rail or pathway grade crossing warning device or system after manual interruption of the power source. (Railroads shall consider only those violations that result in activation failures.) (6) Failure to comply with railroad validation or cutover procedures. (7) Failure to comply with §§ 214.313, 214.319, 214.321, 214.323, 214.325, 214.327, and 214.329. Railroads shall consider only those violations directly involving the signal employee who failed to ascertain whether on-track safety was being provided before fouling a track. (8) Failure to comply with § 218.25 of this chapter (Workers on a main track); (9) Failure to comply with § 218.27 of this chapter (Workers on other than main track); (10) Failure to comply with § 218.29 of this chapter (Alternate methods of protection); (11) Failure to comply with § 219.101 of this chapter. (f) In making the determination as to whether to revoke a signal employee’s certification, a railroad shall only consider conduct described in paragraphs (e)(1) through (10) of this section that occurred within the three years prior to the determination. (g) If in any single incident the person’s conduct contravened more than one Federal regulatory provision or railroad rule, procedure, signal standard, or practice listed in paragraph (e) of this section, that event shall be treated as a single violation for the purposes of this section. (h) A violation of one or more railroad rules, procedures, signal standards, or practices described in paragraphs (e)(1) through (10) of this section that occurs during a properly conducted compliance test subject to the PO 00000 Frm 00056 Fmt 4701 Sfmt 4702 provisions of this chapter shall be counted in determining the periods of ineligibility described in § 246.305. (i) A compliance test that is not conducted in accordance with this part, the railroad’s operating rules, or the railroad’s program under § 217.9 of this chapter, will not be considered a legitimate test of skill or knowledge and will not be considered for revocation purposes. (j) Each railroad shall adopt and comply with a program meeting the requirements of this section. When any person (including, but not limited to, each railroad, railroad officer, supervisor, and employee) violates any requirement of a program which complies with the requirements of this section, that person shall be considered to have violated the requirements of this section. § 246.305 Periods of ineligibility. (a) The starting date for a period of ineligibility described in this section shall be: (1) For a person not currently certified, the date of the railroad’s written determination that the most recent incident has occurred; or (2) For a person currently certified, the date of the railroad’s notification to the person that recertification has been denied or certification has been suspended. (b) A period of ineligibility shall be determined according to the following standards: (1) In the case of a single incident involving a violation of one or more of the Federal regulatory provisions or railroad rules, procedures, signal standards, or practices described in § 246.303(e)(1) through (10), the person shall have their certificate revoked for a period of 30 calendar days. (2) In the case of two separate incidents involving a violation of one or more of the railroad rules, procedures, signal standards, or practices described in § 246.303(e)(1) through (10), that occurred within 24 months of each other, the person shall have their certificate revoked for a period of 6 months. (3) In the case of three separate incidents involving violations of one or more of the railroad rules, procedures, signal standards, or practices, described in § 246.303(e)(1) through (10), that occurred within 36 months of each other, the person shall have their certificate revoked for a period of 1 year. (4) In the case of four separate incidents involving violations of one or more of the railroad rules, procedures, signal standards, or practices, described in § 246.303(e)(1) through (10), that E:\FR\FM\31MYP3.SGM 31MYP3 Federal Register / Vol. 88, No. 104 / Wednesday, May 31, 2023 / Proposed Rules occurred within 36 months of each other, the person shall have their certificate revoked for a period of 3 years. (5) Where, based on the occurrence of violations described in § 246.303(e)(1) through (10), different periods of ineligibility may result under the provisions of this section and § 246.115, the longest period of revocation shall control. (c) Any or all periods of revocation provided in paragraph (b) of this section may consist of training. (d) A person whose certification is denied or revoked shall be eligible for grant or reinstatement of the certificate prior to the expiration of the initial period of ineligibility only if: (1) The denial or revocation of certification in accordance with the provisions of paragraph (b) of this section is for a period of one year or less; (2) Certification is denied or revoked for reasons other than noncompliance with § 219.101 of this chapter; (3) The person is evaluated by a railroad officer and determined to have received adequate remedial training; (4) The person successfully completes any mandatory program of training or retraining, if that is determined to be necessary by the railroad prior to return to service; and (5) At least one half of the pertinent period of ineligibility specified in paragraph (b) of this section has elapsed. lotter on DSK11XQN23PROD with PROPOSALS3 § 246.307 Process for revoking certification. (a) If a railroad determines that a signal employee, who is currently certified by the railroad, has violated a railroad test procedure, signal standard or practice described in § 246.303(e), the railroad shall revoke the signal employee’s certification in accordance with the procedures and requirements of this section. (b) Except as provided for in § 246.115(f), if a railroad acquires reliable information that a signal employee, who is currently certified by the railroad, has violated a railroad rule, procedure, signal standard, or practice described in § 246.303(e), the railroad shall undergo the following process to determine whether revocation of the signal employee’s certification is warranted: (1) The signal employee’s certification shall be suspended immediately. (2) The signal employee’s employer(s) (if different from the suspending railroad) shall be immediately notified of the certification suspension and the reason for the certification suspension. VerDate Sep<11>2014 21:03 May 30, 2023 Jkt 259001 (3) Prior to or upon suspending the signal employee’s certification, the railroad shall provide the signal employee with notice of: the reason for the suspension; the pending revocation; and an opportunity for a hearing before a presiding officer other than the investigating officer. This notice may initially be given either verbally or in writing. If given verbally, the notice must be subsequently confirmed in writing in a manner that conforms with the notification provisions of the applicable collective bargaining agreement. If there is no applicable collective bargaining agreement notification provision, the written notice must be made within four days of the date the certification was suspended. (4) The railroad must convene the hearing within the time frame required under the applicable collective bargaining agreement. If there is no applicable collective bargaining agreement or the applicable collective bargaining agreement does not include such a requirement, the hearing shall be convened within 10 days of the date the certification is suspended unless the signal employee requests or consents to a delay to the start of the hearing. (5) No later than the start of the hearing, the railroad shall provide the signal employee with a copy of the written information and a list of witnesses the railroad will present at the hearing. If this information was provided just prior to the start of the hearing and the signal employee requests a recess to the start of the hearing, such request must be granted. If this information was provided by an employee of the railroad, the railroad shall make that employee available for examination during the hearing. (6) Following the hearing, the railroad must determine, based on the record of the hearing, whether revocation of the certification is warranted. The railroad shall have the burden of proving that revocation of the signal employee’s certification is warranted under § 246.303. (7) If the railroad determines that revocation of the signal employee’s certification is warranted, the railroad shall impose the proper period of revocation provided for in §§ 246.305 and 246.115. (8) The railroad shall retain the record of the hearing for three years after the date the decision is rendered. (c) A hearing required by this section which is conducted in a manner that conforms procedurally to the applicable collective bargaining agreement shall satisfy the procedural requirements of this section. PO 00000 Frm 00057 Fmt 4701 Sfmt 4702 35687 (d) Except as provided for in paragraph (c) of this section, a hearing required under this section shall be conducted in accordance with the following procedures: (1) The hearing shall be conducted by a presiding officer who can be any proficient person authorized by the railroad other than the investigating officer. (2) The presiding officer shall convene and preside over the hearing and exercise the powers necessary to regulate the conduct of the hearing for the purpose of achieving a prompt and fair determination of all material issues in dispute. (3) The presiding officer may: (i) Adopt any needed procedures for the submission of evidence in written form; (ii) Examine witnesses at the hearing; and (iii) Take any other action authorized by or consistent with the provisions of this part and permitted by law that may assist in achieving a prompt and fair determination of all material issues in dispute. (4) All relevant and probative evidence shall be received into the record unless the presiding officer determines the evidence to be unduly repetitive or have such minimal relevance that its admission would impair the prompt, orderly, and fair resolution of the proceeding. (5) Parties may appear at the hearing and be heard on their own behalf or through designated representatives. Parties may offer relevant evidence including testimony and may conduct such examination of witnesses as may be required for a full disclosure of the relevant facts. (6) Testimony by witnesses at the hearing shall be recorded verbatim. Witnesses can testify in person, over the phone, or virtually. (7) The record in the proceeding shall be closed at the conclusion of the hearing unless the presiding officer allows additional time for the submission of evidence. (8) A hearing required under this section may be consolidated with any disciplinary action or other hearing arising from the same facts. (9) A person may waive their right to a hearing. That waiver shall: (i) Be made in writing; (ii) Reflect the fact that the person has knowledge and understanding of these rights and voluntarily surrenders them; and (iii) Be signed by the person making the waiver. (e) Except as provided for in paragraph (c) of this section, a decision, E:\FR\FM\31MYP3.SGM 31MYP3 lotter on DSK11XQN23PROD with PROPOSALS3 35688 Federal Register / Vol. 88, No. 104 / Wednesday, May 31, 2023 / Proposed Rules required by this section, on whether to revoke a signal employee’s certification shall comply with the following requirements: (1) No later than 10 days after the close of the record, a railroad official, other than the investigating officer, shall prepare and sign a written decision as to whether the railroad is revoking the signal employee’s certification. (2) The decision shall: (i) Contain the findings of fact on all material issues as well as an explanation for those findings with citations to all applicable railroad rules, signal standards and procedures and any applicable Federal regulations; (ii) State whether the railroad official found that the signal employee’s certification should be revoked; (iii) State the period of revocation under § 246.305 (if the railroad official concludes that the signal employee’s certification should be revoked); and (iv) Be served on the employee and the employee’s representative, if any, with the railroad retaining proof of service for three years after the date the decision is rendered. (f) The period that a signal employee’s certification is suspended in accordance with paragraph (b)(1) of this section shall be credited towards any period of revocation that the railroad assesses in accordance with § 246.305. (g) A railroad shall revoke a signal employee’s certification if, during the period that certification is valid, the railroad acquires information that another railroad has revoked the person’s signal employee certification in accordance with the provisions of this section. Such revocation shall run concurrently with the period of revocation imposed by the railroad that initially revoked the person’s certification. The requirement to provide a hearing under this section is satisfied when any single railroad holds a hearing. No additional hearing is required prior to revocation by more than one railroad arising from the same facts. (h) A railroad shall not revoke a signal employee’s certification if sufficient evidence exists to establish that an intervening cause prevented or materially impaired the signal employee’s ability to comply with the railroad test procedure, signal standard, or practice which constitutes a violation under § 246.303. (i) A railroad may decide not to revoke a signal employee’s certification if sufficient evidence exists to establish that the violation of the railroad test procedure, signal standard, or practice described in § 246.303(e) was of a VerDate Sep<11>2014 21:03 May 30, 2023 Jkt 259001 minimal nature and had no direct or potential effect on rail safety. (j) If sufficient evidence meeting the criteria in paragraph (h) or (i) of this section becomes available, the railroad shall place the relevant information in the records maintained in compliance with: (1) Section 246.215 for Class I railroads (including that National Railroad Passenger Corporation), railroads providing commuter service, and Class II railroads; and (2) Section 246.203 for Class III railroads. (k) If a railroad makes a good faith determination, after performing a reasonable inquiry, that the course of conduct provided for in paragraph (h) or (i) of this section is warranted, the railroad will not be in violation of paragraph (b)(1) of this section if it decides not to suspend the signal employee’s certification. Subpart E—Dispute Resolution Procedures § 246.401 Review board established. (a) Any person who has been denied certification or recertification, or has had their certification revoked and believes a railroad incorrectly determined that they failed to meet the certification requirements of this part when making the decision to deny or revoke certification, may petition the Administrator to review the railroad’s decision. (b) The Administrator has delegated initial responsibility for adjudicating such disputes to the Certification Review Board (Board). The Board shall be composed of FRA employees. § 246.403 Petition requirements. (a) To obtain review of a railroad’s decision to deny or revoke certification, or deny recertification, a person shall file a petition for review that complies with this section. (b) Each petition shall: (1) Be in writing; (2) Be filed no more than 120 days after the date the railroad’s denial or revocation decision was served on the petitioner, except as provided for in paragraph (d) of this section; (3) Be filed on https:// www.regulations.gov; (4) Include the following contact information for the petitioner and petitioner’s representative (if petitioner is represented): (i) Full name; (ii) Daytime telephone number; and (iii) Email address; (5) Include the name of the railroad and the name of the petitioner’s PO 00000 Frm 00058 Fmt 4701 Sfmt 4702 employer (if different from the railroad that revoked petitioner’s certification); (6) Contain the facts that the petitioner believes constitute the improper action by the railroad and the arguments in support of the petition; and (7) Include all written documents in the petitioner’s possession or reasonably available to the petitioner that document the railroad’s decision. (c) If requested by the Board, the petitioner must provide a copy of the information under 49 CFR 40.329 that laboratories, medical review officers, and other service agents are required to release to employees. The petitioner must provide a written explanation in response to a Board request if written documents, that should be reasonably available to the petitioner, are not supplied. (d) The Board may extend the petition filing period in its discretion, provided the petitioner provides good cause for the extension and: (1) The request for an extension is filed before the expiration of the period provided for in paragraph (b)(2) of this section; or (2) The failure to timely file was the result of excusable neglect. (e) A party aggrieved by a Board decision to deny a petition as untimely or not in compliance with the requirements of this section may file an appeal with the Administrator in accordance with § 246.411. § 246.405 Processing certification review petitions. (a) Each petition shall be acknowledged in writing by FRA. The acknowledgment shall be sent by email to the petitioner (if an email address is provided), petitioner’s representative (if any), the railroad, and petitioner’s employer (if different from the railroad that revoked petitioner’s certification). The acknowledgment shall contain the docket number assigned to the petition and will notify the parties where the petition can be accessed. (b) Within 60 days from the date of the acknowledgment provided in paragraph (a) of this section, the railroad may submit to FRA any information that the railroad considers pertinent to the petition and shall supplement the record with any relevant documents in its possession, such as hearing transcripts and exhibits, that were not submitted by the petitioner. Late filings will only be considered to the extent practicable. A railroad that submits such information shall: (1) Identify the petitioner by name and the docket number for the petition; E:\FR\FM\31MYP3.SGM 31MYP3 Federal Register / Vol. 88, No. 104 / Wednesday, May 31, 2023 / Proposed Rules (2) Provide the railroad’s email address; (3) Serve a copy of the information being submitted to FRA to the petitioner and petitioner’s representative (if any); and (4) Be filed on https:// www.regulations.gov. (c) The petition will be referred to the Board for a decision after a railroad’s response is received or 60 days from the date of the acknowledgment provided in paragraph (a) of this section, whichever is earlier. Based on the record, the Board shall have the authority to grant, deny, dismiss, or remand the petition. If the Board finds that there is insufficient basis for granting or denying the petition, the Board may issue an order affording the parties an opportunity to provide additional information or argument consistent with its findings. (d) When considering procedural issues, the Board will grant the petition if the petitioner shows: (1) That a procedural error occurred; and (2) The procedural error caused substantial harm to the petitioner. (e) When considering factual issues, the Board will grant the petition if the petitioner shows that the railroad did not provide substantial evidence to support its decision. (f) When considering legal issues, the Board will determine whether the railroad’s legal interpretations are correct based on a de novo review. (g) The Board will only consider whether the denial or revocation of certification or recertification was improper under this part and will grant or deny the petition accordingly. The Board will not otherwise consider the propriety of a railroad’s decision. For example,the Board will not consider whether the railroad properly applied its own more stringent requirements. (h) The Board’s written decision shall be served on the petitioner, petitioner’s representative (if any), the railroad, and petitioner’s employer (if different from the railroad that revoked petitioner’s certification). lotter on DSK11XQN23PROD with PROPOSALS3 § 246.407 Request for a hearing. (a) If adversely affected by the Board’s decision, either the petitioner before the Board or the railroad involved shall have a right to an administrative proceeding as prescribed by § 246.409. (b) To exercise that right, the adversely affected party shall file a written request for a hearing within 20 days of service of the Board’s decision on that party. The request must be filed in the docket on https:// www.regulations.gov that was used when the case was before the Board. VerDate Sep<11>2014 21:03 May 30, 2023 Jkt 259001 (c) A written request for a hearing must contain the following: (1) The name, telephone number, and email address of the requesting party and the party’s designated representative (if any); (2) The name, telephone number, and email address of the respondent; (3) The docket number for the case while it was before the Board; (4) The specific factual issues, industry rules, regulations, or laws that the requesting party alleges need to be examined in connection with the certification decision in question; and (5) The signature of the requesting party or the requesting party’s representative (if any). (d) Upon receipt of a hearing request complying with paragraph (c) of this section, FRA shall arrange for the appointment of a presiding officer who shall schedule the hearing for the earliest practicable date. (e) If a party fails to request a hearing within the period provided in paragraph (b) of this section, the Board’s decision will constitute final agency action. § 246.409 Hearings. (a) An administrative hearing for a signal employee certification petition shall be conducted by a presiding officer, who can be any person authorized by the Administrator. (b) The presiding officer shall convene and preside over the hearing. The hearing shall be a de novo hearing to find the relevant facts and determine the correct application of this part to those facts. The presiding officer may determine that there is no genuine issue covering some or all material facts and limit evidentiary proceedings to any issues of material fact as to which there is a genuine dispute. (c) The presiding officer may exercise the powers of the Administrator to regulate the conduct of the hearing for the purpose of achieving a prompt and fair determination of all material issues in controversy. (d) The presiding officer may authorize discovery of the types and quantities which in the presiding officer’s discretion will contribute to a fair hearing without unduly burdening the parties. The presiding officer may impose appropriate non-monetary sanctions, including limitations as to the presentation of evidence and issues, for any party’s willful failure or refusal to comply with approved discovery requests. (e) Every petition, motion, response, or other authorized or required document shall be signed by the party filing the same, or by a duly authorized officer or representative of record, or by PO 00000 Frm 00059 Fmt 4701 Sfmt 4702 35689 any other person. If signed by such other person, the reason therefor must be stated and the power of attorney or other authority authorizing such other person to subscribe the document must be filed with the document. The signature of the person subscribing any document constitutes a certification that they have read the document; that to the best of their knowledge, information, and belief every statement contained in the document is true and no such statements are misleading; and that it is not interposed for delay or to be vexatious. (f) After the request for a hearing is filed, all documents filed or served upon one party must be served upon all parties. Each party may designate a person upon whom service is to be made when not specified by law, regulation, or directive of the presiding officer. If a party does not designate a person upon whom service is to be made, then service may be made upon any person having subscribed to a submission of the party being served, unless otherwise specified by law, regulation, or directive of the presiding officer. Proof of service shall accompany all documents when they are tendered for filing. (g) If any document initiating, filed in, or served in, a proceeding is not in substantial compliance with the applicable law, regulation, or directive of the presiding officer, the presiding officer may strike or dismiss all or part of such document, or require its amendment. (h) Any party to a proceeding may appear and be heard in person or by an authorized representative. (i) Any person testifying at a hearing or deposition may be accompanied, represented, and advised by an attorney or other representative, and may be examined by that person. (j) Any party may request to consolidate or separate the hearing of two or more petitions by motion to the presiding officer when they arise from the same or similar facts or when the matters are for any reason deemed more efficiently heard together. (k) Except as provided in § 246.407(e) and paragraph (s)(4) of this section, whenever a party has the right or is required to take action within a period prescribed by this part, or by law, regulation, or directive of the presiding officer, the presiding officer may extend such period, with or without notice, for good cause, provided another party is not substantially prejudiced by such extension. A request to extend a period which has already expired may be denied as untimely. E:\FR\FM\31MYP3.SGM 31MYP3 lotter on DSK11XQN23PROD with PROPOSALS3 35690 Federal Register / Vol. 88, No. 104 / Wednesday, May 31, 2023 / Proposed Rules (l) An application to the presiding officer for an order or ruling not otherwise specifically provided for in this part shall be by motion. The motion shall be filed with the presiding officer and, if written, served upon all parties. All motions, unless made during the hearing, shall be written. Motions made during hearings may be made orally on the record, except that the presiding officer may direct that any oral motion be reduced to writing. Any motion shall state with particularity the grounds therefor and the relief or order sought and shall be accompanied by any affidavits or other evidence desired to be relied upon which is not already part of the record. Any matter submitted in response to a written motion must be filed and served within 14 days of the motion, or within such other period as directed by the presiding officer. (m) Testimony by witnesses at the hearing shall be given under oath and the hearing shall be recorded verbatim. The presiding officer shall give the parties to the proceeding adequate opportunity during the course of the hearing for the presentation of arguments in support of or in opposition to motions, and objections and exceptions to rulings of the presiding officer. The presiding officer may permit oral argument on any issues for which the presiding officer deems it appropriate and beneficial. Any evidence or argument received or proffered orally shall be transcribed and made a part of the record. Any physical evidence or written argument received or proffered shall be made a part of the record, except that the presiding officer may authorize the substitution of copies, photographs, or descriptions, when deemed to be appropriate. (n) The presiding officer shall employ the Federal Rules of Evidence for United States Courts and Magistrates as general guidelines for the introduction of evidence. Notwithstanding paragraph (m) of this section, all relevant and probative evidence shall be received unless the presiding officer determines the evidence to be unduly repetitive or so extensive and lacking in relevancy that its admission would impair the prompt, orderly, and fair resolution of the proceeding. (o) The presiding officer may: (1) Administer oaths and affirmations; (2) Issue subpoenas as provided for in § 209.7 of this chapter; (3) Adopt any needed procedures for the submission of evidence in written form; (4) Examine witnesses at the hearing; (5) Convene, recess, adjourn, or otherwise regulate the course of the hearing; and VerDate Sep<11>2014 21:03 May 30, 2023 Jkt 259001 (6) Take any other action authorized by or consistent with the provisions of this part and permitted by law that may expedite the hearing or aid in the disposition of the proceeding. (p) The petitioner before the Board, the railroad involved in taking the certification action, and FRA shall be parties at the hearing. All parties may participate in the hearing and may appear and be heard on their own behalf or through designated representatives. All parties may offer relevant evidence, including testimony, and may conduct such cross-examination of witnesses as may be required to make a record of the relevant facts. (q) The party requesting the administrative hearing shall be the ‘‘hearing petitioner.’’ The party that the Board issued its decision in favor of will be a respondent. At the start of each proceeding, FRA will be a respondent as well. The hearing petitioner shall have the burden of proving its case by a preponderance of the evidence. (r) The record in the proceeding shall be closed at the conclusion of the evidentiary hearing unless the presiding officer allows additional time for the submission of additional evidence. In such instances the record shall be left open for such time as the presiding officer grants for that purpose. (s) At the close of the record, the presiding officer shall prepare a written decision in the proceeding. The decision: (1) Shall contain the findings of fact and conclusions of law, as well as the basis for each, concerning all material issues of fact or law presented on the record; (2) Shall be served on all parties to the proceeding; (3) Shall not become final for 35 days after issuance; (4) Constitutes final agency action unless an aggrieved party files an appeal within 35 days after issuance; and (5) Is not precedential. § 246.411 Appeals. (a) Any party aggrieved by the presiding officer’s decision may file an appeal in the presiding officer’s docket. The appeal must be filed within 35 days of issuance of the decision. A copy of the appeal shall be served on each party. The appeal shall set forth objections to the presiding officer’s decision, supported by reference to applicable laws and regulations and with specific reference to the record. If no appeal is timely filed, the presiding officer’s decision constitutes final agency action. (b) A party may file a reply to the appeal within 25 days of service of the appeal. The reply shall be supported by PO 00000 Frm 00060 Fmt 4701 Sfmt 4702 reference to applicable laws and regulations and with specific reference to the record, if the party relies on evidence contained in the record. (c) The Administrator may extend the period for filing an appeal or a response for good cause shown, provided that the written request for extension is served before expiration of the applicable period provided in this section. (d) The Administrator has sole discretion to permit oral argument on the appeal. On the Administrator’s own initiative or written motion by any party, the Administrator may grant the parties an opportunity for oral argument. (e) The Administrator may remand, vacate, affirm, reverse, alter, or modify the decision of the presiding officer and the Administrator’s decision constitutes final agency action except where the terms of the Administrator’s decision (for example, remanding a case to the presiding officer) show that the parties’ administrative remedies have not been exhausted. (f) An appeal from a Board decision pursuant to § 246.403(e) must be filed in the Board’s docket within 35 days of issuance of the decision. A copy of the appeal shall be served on each party. The Administrator may affirm or vacate the Board’s decision and may remand the petition to the Board for further proceedings. An Administrator’s decision to affirm the Board’s decision constitutes final agency action. Appendix A to Part 246—Procedures for Obtaining and Evaluating Motor Vehicle Driving Record Data (1) The purpose of this appendix is to outline the procedures available to individuals and railroads for complying with the proposed requirements of § 246.111. This provision requires that railroads consider the motor vehicle driving record of each person prior to issuing them certification or recertification as a signal employee. (2) To fulfill that obligation, a railroad is required to review a certification candidate’s recent motor vehicle driving record. Generally, that will be a single record on file with the State agency that issued the certification candidate’s current motor vehicle driver’s license. However, a motor vehicle driving record can include multiple documents if the certification candidate has been issued a motor vehicle driver’s license by more than one State agency or a foreign country. Access to State Motor Vehicle Driving Record Data (3) The right of railroad workers, their employers, or prospective employers to have access to a State motor vehicle licensing agency’s data concerning an individual’s driving record is controlled by State law. Although many states have mechanisms through which employers and prospective E:\FR\FM\31MYP3.SGM 31MYP3 Federal Register / Vol. 88, No. 104 / Wednesday, May 31, 2023 / Proposed Rules employers, such as railroads, can obtain such data, there are some states where privacy concerns make such access very difficult or impossible. Since individuals are generally entitled to obtain access to their driving record data that will be relied on by a State motor vehicle licensing agency when that agency is taking action concerning their driving privileges, FRA places the responsibility on individuals who want to serve as certified signal employees to request that their current State motor vehicle licensing agency (or agencies) furnish such data directly to the railroad that is considering certification (or recertification) of the individual as a signal employee. Depending on the procedures established by the State motor vehicle licensing agency, the individual may be asked to send the State agency a brief letter requesting such action or to execute a State agency form that accomplishes the same effect. Requests for an individual’s motor vehicle driving record normally involve payment of a nominal fee established by the State agency as well. In rare instances, when a certification (or recertification) candidate has been issued multiple licenses, an individual may be required to submit multiple requests. (4) Once the railroad has obtained the individual’s motor vehicle driving record(s), the railroad is required to afford the certification (or recertification) candidate an opportunity to review and comment on the record(s) in writing pursuant to § 246.301. The railroad is also required to provide this review opportunity before the railroad renders a decision based on information in the record(s). The railroad is required to evaluate the information in the certification (or recertification) candidate’s motor vehicle driving record(s) pursuant to the provisions of this part. Appendix B to Part 246—Medical Standards Guidelines (1) The purpose of this appendix is to provide greater guidance on the procedures that should be employed in administering the vision and hearing requirements of §§ 246.117 and 246.118. (2) For any examination performed to determine whether a person meets the vision acuity requirements in § 246.117, it is recommended that such examination be performed by a licensed optometrist or a technician who reports to a licensed optometrist. It is also recommended that any 35691 test conducted pursuant to § 246.117 be performed according to any directions supplied by the test’s manufacturer and any ANSI standards that are applicable. (3) For any examination performed to determine whether a person meets the hearing acuity requirements in § 246.118, it is recommended that such examination be performed by a licensed or certified audiologist or a technician who reports to a licensed or certified audiologist. It is also recommended that any test conducted pursuant to § 246.118 be performed according to any directions supplied by the test’s manufacturer and any ANSI standards that are applicable. (4) In determining whether a person has the visual acuity that meets or exceeds the requirements of this part, the following testing protocols are deemed acceptable testing methods for determining whether a person has the ability to recognize and distinguish among the colors used as signals in the railroad industry. The acceptable test methods are shown in the left hand column and the criteria that should be employed to determine whether a person has failed the particular testing protocol are shown in the right hand column. TABLE 1 TO APPENDIX B TO PART 246 Accepted tests Failure criteria Pseudoisochromatic Plate Tests American Optical Company 1965 ............................................................ AOC—Hardy-Rand-Ritter plates—second edition ................................... Dvorine—Second edition .......................................................................... Ishihara (14 plate) .................................................................................... Ishihara (16 plate) .................................................................................... Ishihara (24 plate) .................................................................................... Ishihara (38 plate) .................................................................................... Richmond Plates 1983 ............................................................................. 5 or more errors on plates 1–15. Any error on plates 1–6 (plates 1–4 are for demonstration—test plate 1 is actually plate 5 in book). 3 or more errors on plates 1–15. 2 or more errors on plates 1–11. 2 or more errors on plates 1–8. 3 or more errors on plates 1–15. 4 or more errors on plates 1–21. 5 or more errors on plates 1–15. Multifunction Vision Tester lotter on DSK11XQN23PROD with PROPOSALS3 Keystone Orthoscope ............................................................................... OPTEC 2000 ............................................................................................ Titmus Vision Tester ................................................................................. Titmus II Vision Tester ............................................................................. (5) In administering any of these protocols, the person conducting the examination should be aware that railroad signals do not always occur in the same sequence and that ‘‘yellow signals’’ do not always appear to be the same. It is not acceptable to use ‘‘yarn’’ or other materials to conduct a simple test to determine whether the certification candidate has the requisite vision. No person shall be allowed to wear chromatic lenses during an initial test of the person’s color vision; the initial test is one conducted in accordance with one of the accepted tests in the chart and § 246.117(c)(3). (6)(i) An examinee who fails to meet the criteria in the chart may be further evaluated as determined by the railroad’s medical examiner. Ophthalmologic referral, field testing, or other practical color testing may be utilized depending on the experience of the examinee. The railroad’s medical examiner VerDate Sep<11>2014 21:03 May 30, 2023 Jkt 259001 Any Any Any Any error. error. error. error. will review all pertinent information and, under some circumstances, may restrict an examinee who does not meet the criteria for serving as a signal employee. The intent of §§ 246.117(d) and 246.118(d) is not to provide an examinee with the right to make an infinite number of requests for further evaluation, but to provide an examinee with at least one opportunity to prove that a hearing or vision test failure does not mean the examinee cannot safely perform as a certified signal employee. (ii) Appropriate further medical evaluation could include providing another approved scientific screening test or a field test. All railroads should retain the discretion to limit the number of retests that an examinee can request, but any cap placed on the number of retests should not limit retesting when changed circumstances would make such retesting appropriate. Changed circumstances PO 00000 Frm 00061 Fmt 4701 Sfmt 9990 would most likely occur if the examinee’s medical condition has improved in some way or if technology has advanced to the extent that it arguably could compensate for a hearing or vision deficiency. (7) Certified signal employees who wear contact lenses should have good tolerance to the lenses and should be instructed to have a pair of corrective glasses available when on duty. Issued in Washington, DC. Amitabha Bose, Administrator. [FR Doc. 2023–10773 Filed 5–30–23; 8:45 am] BILLING CODE 4910–06–P E:\FR\FM\31MYP3.SGM 31MYP3

Agencies

[Federal Register Volume 88, Number 104 (Wednesday, May 31, 2023)]
[Proposed Rules]
[Pages 35632-35691]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-10773]



[[Page 35631]]

Vol. 88

Wednesday,

No. 104

May 31, 2023

Part V





Department of Transportation





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Federal Railroad Administration





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49 CFR Part 246





Certification of Signal Employees; Proposed Rule

Federal Register / Vol. 88 , No. 104 / Wednesday, May 31, 2023 / 
Proposed Rules

[[Page 35632]]


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DEPARTMENT OF TRANSPORTATION

Federal Railroad Administration

49 CFR Part 246

[Docket No. FRA-2022-0020, Notice No. 1]
RIN 2130-AC92


Certification of Signal Employees

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

ACTION: Notice of proposed rulemaking (NPRM).

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SUMMARY: FRA proposes regulations for the certification of signal 
employees, pursuant to the authority granted in section 402 of the Rail 
Safety Improvement Act of 2008.

DATES: Comments on the proposed rule must be received by July 31, 2023. 
FRA will consider comments received after that date to the extent 
practicable.

ADDRESSES: Comments: Comments related to Docket No. FRA-2022-0020 may 
be submitted by going to https://www.regulations.gov and following the 
online instructions for submitting comments.
    Instructions: All submissions must include the agency name, docket 
number (FRA-2022-0020), and Regulatory Identification Number (RIN) for 
this rulemaking (2130-AC92). All comments received will be posted 
without change to https://www.regulations.gov; this includes any 
personal information. 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 and follow the 
online instructions for accessing the docket.

FOR FURTHER INFORMATION CONTACT: Gabe Neal, Staff Director, Signal, 
Train Control, and Crossings Division, U.S. Department of 
Transportation, Federal Railroad Administration, telephone: (816) 516-
7168, email: [email protected]; or Kathryn Gresham, Attorney Adviser, 
U.S. Department of Transportation, Federal Railroad Administration, 
telephone: (202) 577-7142, email: [email protected].

SUPPLEMENTARY INFORMATION: 

Abbreviations and Terms Used in This Document

AAR--Association of American Railroads
ASLRRA--American Short Line and Regional Railroad Association
CE--Categorical Exclusion
CFR--Code of Federal Regulations
DAC--Drug and alcohol counselor
DOT--United States Department of Transportation
EA--Environmental Assessment
EIS--Environmental Impact Statement
FRA--Federal Railroad Administration
IRFA--Initial Regulatory Flexibility Analysis
NEPA--National Environmental Policy Act
NPRM--Notice of Proposed Rulemaking
OMB--United States Office of Management and Budget
PRA--The Paperwork Reduction Act
PTC--Positive Train Control
PV--Present Value
RIN--Regulatory Identification Number
RSAC--Railroad Safety Advisory Committee
RSIA--Rail Safety Improvement Act of 2008
SAP--Substance Abuse Professional
STB--The Surface Transportation Board
U.S.C.--United States Code

Table of Contents for Supplementary Information

I. Executive Summary
II. Legal Authority
III. Background
IV. Section-by-Section Analysis
V. Regulatory Impact and Notices
    A. Executive Order 12866
    B. Regulatory Flexibility Act and Executive Order 13272
    C. Paperwork Reduction Act
    D. Federalism Implications
    E. International Trade Impact Assessment
    F. Environmental Impact
    G. Executive Order 12898 (Environmental Justice)
    H. Unfunded Mandates Reform Act of 1995
    I. Energy Impact
    J. Privacy Act Statement
    K. Executive Order 13175 (Tribal Consultation)

I. Executive Summary

Purpose of the Regulatory Action

    FRA proposes to require railroads to develop programs for the 
certification of signal employees and to submit those written 
certification programs to FRA for approval prior to implementation. 
Signal employees are responsible for the installation, testing, 
troubleshooting, repair, and maintenance of railroad signal systems 
which, for purposes of this proposed rule, include highway-rail and 
pathway grade crossing warning systems, unusual contingency detection 
devices, broken rail detection systems, power-assisted switches, and 
switch point indicators.
    Under this proposed rule, railroads would be required to verify and 
document that each signal employee \1\ has the requisite knowledge, 
skills, safety record, and abilities to safely perform all of the 
safety-related signal employee duties mandated by Federal laws and 
regulations, prior to certification. In addition, railroads would be 
required to have formal processes for revoking certification (either 
temporarily or permanently) for signal employees who violate specified 
minimum requirements.
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    \1\ Although ``signal employees'' are also referred to as 
``signalmen,'' those terms are synonymous.
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    FRA is proposing this regulation in response to the Rail Safety 
Improvement Act of 2008 (RSIA), which required the Secretary of 
Transportation (Secretary) to submit a report to Congress addressing 
whether certification of ``certain crafts or classes'' of railroad 
employees or contractors, including signal employees, was necessary to 
``reduce the number and rate of accidents and incidents or to improve 
railroad safety.'' If the Secretary determined it was necessary to 
require the certification of certain crafts or classes to improve 
railroad safety, section 402 of the RSIA authorized the Secretary to 
prescribe such regulations.
    The Secretary submitted a report to Congress on November 4, 
2015,\2\ stating that, based on FRA's preliminary research, signal 
employees were one of the most viable candidate railroad crafts for 
certification, particularly with the introduction of Positive Train 
Control (PTC) technology. Given the safety critical role of signal 
employees in facilitating safe railroad operations, FRA determined that 
railroad safety is expected to be improved if signal employees were 
required to satisfy certain standards and be certified by each railroad 
whose signal systems they install, troubleshoot, repair, test, or 
maintain.
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    \2\ A copy of this November 4, 2015 Report to Congress has been 
posted in the rulemaking docket at: https://www.regulations.gov/document/FRA-2022-0020-0001.
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Summary of Major Provisions

    This proposed rule would require railroads to develop written 
programs for certifying individuals who work as signal employees on 
their territories and to submit those written certification programs to 
FRA for approval prior to implementation. FRA would issue a letter to 
the railroad when it approves a certification program that explains the 
basis for approval and a program would not be considered approved until 
the approval letter is issued.
    FRA is proposing to require Class I railroads (including the 
National Railroad Passenger Corporation), and railroads providing 
commuter service, to submit their written certification programs to FRA 
no later than eight (8) months after the final rule effective date. 
Class II and Class III railroads would be

[[Page 35633]]

required to submit their written certification plans sixteen (16) 
months after the final rule effective date. New railroads that begin 
operation after the final rule effective date would be required to 
submit their written certification programs to FRA and obtain FRA 
approval before installing their signal systems and commencing 
operations. In addition, railroads seeking to materially modify their 
FRA-approved certification programs would be required to obtain FRA 
approval prior to modifying their programs.
    Railroads would be required to evaluate certification candidates in 
multiple areas, including prior safety conduct as a motor vehicle 
operator, prior safety conduct with other railroads, substance abuse 
disorders and alcohol/drug rules compliance, and vision and hearing 
acuity.
    The proposed rule also contains minimum requirements for the 
training provided to candidates for signal employee certification. 
These proposed requirements are intended to ensure signal employees 
receive sufficient training before they are certified to work on signal 
systems. These proposed requirements are also intended to ensure that 
certified signal employees periodically receive recurring training on 
railroad signal system standards, test procedures, operating rules and 
procedures, and orders governing the installation, operation, testing, 
troubleshooting, repair, and maintenance of railroad signal systems, as 
well as comprehensive training on new signal systems and technology 
before they are introduced on the railroads where they work.
    With the exception of individuals designated as certified signal 
employees prior to FRA approval of the railroad's signal employee 
certification program, the proposed rule would prohibit railroads from 
certifying signal employees for intervals longer than three (3) years. 
This three-year limitation, which would be consistent with the 36-month 
maximum period for certifying locomotive engineers in 49 CFR 240.217(c) 
and the 36-month maximum period for certifying conductors in 49 CFR 
240.201(c), would allow for periodic re-evaluation of certified signal 
employees to verify their continued compliance with FRA's minimum 
safety requirements.
    Subpart D of this proposed rule addresses the process and criteria 
for denying and revoking certification. Proposed Sec.  246.301 
describes the process a railroad would be required to undergo before it 
denies an individual certification or recertification. This process 
would include providing the certification candidate with the 
information that forms the basis for the denial decision and giving the 
candidate an opportunity to rebut such evidence. When a railroad denies 
an individual certification or recertification, it must issue its 
decision in writing and the decision must comply with certain 
requirements provided in the proposed rule.
    A railroad could only revoke a signal employee's certification if 
one of eleven events occurs. Generally, for the first revocable event 
that is not related to a signal employee's use of drugs or alcohol, the 
individual's certification would be revoked for 30 days. If an 
individual accumulates more of these violations in a given time period, 
the revocation period (period of ineligibility) would become 
increasingly longer.
    If a railroad acquires reliable information that a certified signal 
employee has violated an operating rule or practice requiring 
decertification under the proposed rule, it must suspend the signal 
employee's certification immediately while it determines whether 
certification revocation is warranted. In such circumstances, signal 
employees would be entitled to a hearing. Similar to a railroad's 
decision to deny an individual certification, a railroad's decision to 
revoke a signal employee's certification would be required to comply 
with certain requirements. Finally, if an intervening cause prevented 
or materially impaired a signal employee's ability to comply with a 
railroad operating rule or practice, the railroad would not revoke the 
signal employee's certification.
    Subpart E of this proposed rule discusses the dispute resolution 
process for individuals who wish to challenge a railroad's decision to 
deny certification, deny recertification, or revoke certification. This 
dispute resolution process mirrors the process used for locomotive 
engineers and conductors under 49 CFR parts 240 and 242, respectively.
    Finally, the proposed rule contains two appendices. Appendix A 
discusses the procedures that a person seeking certification or 
recertification should follow to furnish a railroad with information 
concerning their motor vehicle driving record. Appendix B provides 
guidance on the procedures railroads should employ in administering the 
vision and hearing requirements under Sec. Sec.  246.117 and 246.118.

Costs and Benefits

    FRA analyzed the economic impact of this proposed rule. FRA 
estimated the costs estimated to be incurred by railroads and the 
Government. FRA also estimated the benefits of fewer signal employee-
caused accidents.
    FRA is proposing regulations establishing a formal certification 
process for railroad signal employees. As part of that process, 
railroads would be required to develop a program meeting specific 
requirements for training current and prospective signal employees, 
documenting and verifying that the holder of the certificate has 
achieved certain training and proficiency, and creating a comprehensive 
record, including of safety compliance infractions, that other 
railroads can review when considering individuals for certification.
    This proposed regulation would ensure that signal employees are 
properly trained, are qualified to perform their duties, and meet 
Federal safety standards. Additionally, this proposed regulation is 
expected to improve railroad safety by reducing the rate of accidents/
incidents.
    FRA estimates the 10-year costs of the proposed rule to be $8.3 
million, discounted at 7 percent. The estimated annualized costs would 
be $1.2 million discounted at 7 percent. The following table shows the 
total costs of this proposed rule, over the 10-year analysis period.

                                         Total 10-Year Discounted Costs
                                               [2020 dollars] \3\
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                                                   Present value   Present value   Annualized 7%   Annualized 3%
                    Category                          7% ($)          3% ($)            ($)             ($)
----------------------------------------------------------------------------------------------------------------
Development of Certification Program............       1,140,385       1,168,920         162,365         137,033
Certification Eligibility Requirements..........          87,507         100,380          12,459          11,768
Recertification Eligibility Requirements........         203,790         259,653          29,015          30,439

[[Page 35634]]

 
Training........................................       2,079,835       2,379,911         296,122         278,998
Knowledge Testing...............................         746,865         898,884         106,337         105,377
Vision and Hearing..............................       1,097,523       1,320,891         156,263         154,849
Monitoring Operational Performance..............         832,102         994,414         118,473         116,576
Railroad Oversight Responsibilities.............         267,530         326,714          38,090          38,301
Certification Card..............................         103,175         124,175          14,690          14,557
Petitions and Hearings..........................          42,451          50,731           6,044           5,947
Government Administrative Cost..................       1,653,360       1,914,063         235,401         224,387
                                                 ---------------------------------------------------------------
    Total.......................................       8,277,337       9,566,001       1,178,507       1,121,427
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    This rule would reduce the likelihood of an accident occurring due 
to signal employee error. FRA has analyzed accidents over the past 10 
years to categorize those where signal employee training and 
certification would have impacted the accident. FRA then estimated 
benefits based on that analysis.
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    \3\ Numbers in this table and subsequent tables may not sum due 
to rounding.
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    The following table shows the estimated 10-year quantifiable 
benefits of the proposed rule. The total 10-year estimated benefits 
would be $2.9 million (PV, 7%) and annualized benefits would be $0.4 
million (PV, 7%).

                                        Total 10-Year Discounted Benefits
                                                 [2020 dollars]
----------------------------------------------------------------------------------------------------------------
                                                   Present value   Present value   Annualized 7%   Annualized 3%
                    Category                          7% ($)          3% ($)            ($)             ($)
----------------------------------------------------------------------------------------------------------------
Grade Crossing Accidents........................       1,766,028       2,064,676         251,443         242,043
Train Accidents/Incidents.......................         989,123       1,156,391         140,829         135,564
Business Benefits from Fewer Activation Failures         159,526         186,503          22,713          21,864
                                                 ---------------------------------------------------------------
    Total.......................................       2,914,678       3,407,570         414,985         399,471
----------------------------------------------------------------------------------------------------------------

    This proposed rule would also provide unquantifiable benefits. FRA 
has quantified the monetary impact from accidents which is reported on 
FRA accident forms. However, some accident costs are not required to be 
reported on FRA accident forms (e.g., environmental impact). That 
impact may account for additional benefits not quantified in this 
analysis. If these costs were realized, accidents affected by this 
proposed rulemaking could have much greater economic impact than 
estimated quantitative benefit estimates.
    There is also a chance of a high impact event due to signal 
employee error. This could involve fatalities, injuries, and 
environmental damage, as well as impact railroads, communities, and the 
public. FRA has not estimated the likelihood of such an accident, but 
this proposed rule is expected to reduce the risk of an accident of 
that magnitude.

II. Legal Authority

    Pursuant to the Rail Safety Improvement Act of 2008, Public Law 
110-432, sec. 402, 122 Stat. 4884 (Oct. 16, 2008) (hereinafter 
``RSIA''), the Secretary of Transportation (Secretary) was required to 
submit a report to Congress addressing whether certification of certain 
crafts or classes of employees, including signal repair and maintenance 
employees, was necessary to reduce the number and rate of accidents and 
incidents or to improve railroad safety.\4\ If the Secretary determined 
it was necessary to require the certification of certain crafts or 
classes of employees to reduce the number and rate of accidents and 
incidents or to improve railroad safety, section 402 of the RSIA stated 
the Secretary may prescribe such regulations. The Secretary delegated 
this authority to the Federal Railroad Administrator. 49 CFR 1.89. In 
response to the RSIA, the Secretary submitted a report to Congress on 
November 4, 2015, stating that, based on FRA's preliminary research, 
dispatchers and signal employees were potentially the most viable 
candidate railroad crafts for certification. Based on the analysis in 
Section III below, the Federal Railroad Administrator has determined 
that it is necessary to require the certification of signal employees 
to improve railroad safety.
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    \4\ See also 49 U.S.C. 20103 (providing FRA's general authority 
to ``prescribe regulations and issue orders for every area of 
railroad safety'').
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III. Background

1. Roles and Responsibilities of Signal Employees

    Railroad signal employees play an integral role in ensuring the 
safety of railroad operations, as well as the safety of highway 
motorists. They are responsible for the installation, testing, 
troubleshooting, repair, and maintenance of signal systems, as defined 
in proposed 49 CFR 246.7, which railroads utilize to direct train 
movements. Signal employees must also use specialized test and 
maintenance equipment to complete safety critical

[[Page 35635]]

tasks on mechanical, electrical, and electronic signal equipment.
    The work performed by signal employees can generally be divided 
into two categories: construction and maintenance. On larger railroads, 
some signal employees work in groups (often referred to as ``gangs'') 
under the direct supervision and oversight of an experienced signal 
employee to construct, install, and upgrade signal systems and signal 
system subsystems and components. Some signal employees also work in 
``gangs'' under the direct supervision and oversight of an experienced 
signal employee to make repairs to the signal system, while other 
signal employees (often referred to as ``signal maintainers'') are 
tasked with inspecting and testing signal systems and performing minor 
and emergency repairs as needed.
    The implementation of complex PTC system technology requires 
increasingly sophisticated work by signal employees. PTC systems 
provide another layer of safety to existing signal systems, many of 
which have been place for many decades. In addition, PTC systems are 
interoperable with each other, as well as with existing signal systems. 
Therefore, signal employees need to understand the relationship between 
signal and PTC systems and the communication medium and how these 
systems operate, function, and react to a myriad of circumstances. 
Signal systems and PTC systems are also continually upgraded, so the 
development and implementation of these systems need to be properly 
understood and monitored by both FRA and railroad signal employees.

2. FRA History of Certification

    On January 4, 1987, an Amtrak train collided with a Conrail train 
in Chase, Maryland, resulting in 16 deaths and 174 injuries. At the 
time, it was the deadliest train accident in Amtrak's history. The 
subsequent investigation by the National Transportation Safety Board 
concluded that the probable cause of the accident was the impairment of 
the Conrail engineer who was under the influence of marijuana at the 
time of the collision.\5\
---------------------------------------------------------------------------

    \5\ Railroad Accident Report: Rear-end Collision of Amtrak 
Passenger Train 94, the Colonial and Consolidated Rail Corporation 
Freight Train ENS-121, on the Northeast Corridor, Chase, Maryland, 
January 4, 1987 (144 Nat'l Transp. Safety Bd. 1988).
---------------------------------------------------------------------------

    Following this accident, Congress passed the Rail Safety 
Improvement Act of 1988, Public Law 100-342, 4, 102 Stat. 624, 625 
(1988), which instructed the Secretary of Transportation (Secretary) to 
``issue such rules, regulations, orders, and standards as may be 
necessary to establish a program requiring the licensing or 
certification of any operator of a locomotive, including any locomotive 
engineer.'' On June 19, 1991, FRA published a final rule establishing a 
certification system for locomotive engineers and requiring railroads 
to ensure that they only certify individuals who met minimum 
qualification standards.\6\ In order to minimize governmental 
intervention, FRA opted for a certification system where the railroads 
issue the certificates as opposed to a government-run licensing system. 
This final rule, published in 49 CFR part 240 (part 240), created 
certification requirements for engineers that addressed various areas 
including vision and hearing acuity; training, knowledge, and 
performance skills; and prior safety conduct.
---------------------------------------------------------------------------

    \6\ 56 FR. 28227 (June 19, 1991).
---------------------------------------------------------------------------

    Seventeen years later, Congress passed the RSIA, which mandated the 
creation of a certification system for conductors. On November 9, 2011, 
FRA published a final rule requiring railroads to have certification 
programs for conductors and to ensure that all certified conductors 
satisfy minimum Federal safety standards.\7\ The conductor 
certification rule, published in 49 CFR part 242 (part 242), was 
largely modeled after part 240 with some deviations based on the 
different job classifications. Part 242 also included some 
organizational improvements which made the regulation more streamlined 
than part 240.
---------------------------------------------------------------------------

    \7\ 76 FR 69801 (Nov. 9, 2011).
---------------------------------------------------------------------------

3. Statutory Background for Signal Employee Certification

    In addition to requiring certification for conductors, the RSIA 
required the Secretary to submit a report to Congress addressing 
whether certain other railroad crafts or classes of employees would 
benefit from certification. Specifically, section 402(b) of the RSIA 
requires that the Secretary issue a report to Congress ``about whether 
the certification of certain crafts or classes of railroad carrier or 
railroad carrier contractor or subcontractor employees is necessary to 
reduce the number and rate of accidents and incidents or to improve 
railroad safety.'' As part of that report, section 402(c) specifically 
requires the Secretary to consider ``signal repair and maintenance 
employees'' as one of the railroad crafts for certification.
    After identifying a railroad craft or class for which certification 
is necessary, pursuant to the report to Congress discussed above, 
section 402(d) authorizes the Secretary to ``prescribe regulations 
requiring the certification of certain crafts or classes of employees 
that the Secretary determines . . . are necessary to reduce the number 
and rate of accidents and incidents or to improve railroad safety.''

4. Report to Congress

    On November 4, 2015, the Secretary submitted the report to Congress 
required under the RSIA. The report stated that, based on FRA's 
preliminary research, dispatchers and signal repair employees were the 
most viable candidates for certification, particularly with the 
introduction of Positive Train Control (PTC) technology. In reaching 
this determination with respect to signal employees, the Secretary 
cited a variety of factors.
    The report noted that signal employees perform safety-sensitive 
work as shown by signal employees being covered under the Hours of 
Service laws. Signal employees are also subject to regular and pre-
employment random drug and alcohol testing. In 2012 and 2013, signal 
employees had a positive drug testing rate that was considerably higher 
than that of their train and engine service counterparts. Annual drug 
and alcohol testing data submitted to FRA in 2012 and 2013 showed a 
0.75-percent random positive drug rate for signal employees, as 
compared to a 0.30-percent random positive drug rate for train and 
engine service employees.\8\
---------------------------------------------------------------------------

    \8\ Testing results submitted to FRA in 2020 and 2021 showed a 
0.81-percent random violation (drug and alcohol positives and 
refusals) rate and a 0.79-percent pre-employment violation rate for 
signal employees, as compared to a 0.49-percent random positive drug 
testing rate and a 0.55-percent pre-employment positive drug testing 
rate for train and engine service employees.
---------------------------------------------------------------------------

    The report also noted that the greatest proportion of contractors 
covered under the Hours of Service laws are signal employees, who tend 
to switch employers more frequently than other crafts of employees. In 
addition, the report noted that frequent job-hopping by signal 
employees makes it even more important to track their violations and 
any disqualifications that may result. However, 49 CFR parts 240 and 
242 require a five-year alcohol and drug background check, as well as 
disqualification of employees for specified alcohol and drug test 
violations and for refusing such testing. If such requirements are 
included in a signal employee certification program, they could help 
prevent signal employees with active substance abuse disorders from 
``job hopping'' from one employer to another and reduce the safety risk 
of having individuals with

[[Page 35636]]

untreated substance abuse disorders working as signal employees.
    Another important factor in the report was the nature of the work 
signal employees perform on wayside signal and train control systems, 
which are safety-critical for freight and passenger rail operations. 
The report noted that, in the coming decade, the rail industry will 
likely lose many experienced signal employees to retirement, while 
growth in freight, commuter, and intercity passenger rail will require 
that more signal employees are hired and trained.
    The report also summarized the challenges posed by PTC system 
implementation, while noting the ``increasingly sophisticated work'' 
involved in the implementation of complex PTC system technology by 
signal employees.\9\ In particular, the report noted that ``signal 
employees will be required to differentiate between a vital and non-
vital PTC system \10\ and to address the technicalities of using 
standalone or overlay PTC systems.'' \11\ This combination of factors 
led to the report's conclusion that signal employees are a potentially 
viable candidate craft for certification.
---------------------------------------------------------------------------

    \9\ See 2015 DOT Report to Congress on Certification of Railroad 
Crafts at 3.
    \10\ PTC systems vary widely in complexity and sophistication 
based on the level of automation and functionality they implement, 
the system architecture used, the wayside system upon which they are 
based (i.e., non-signaled, block signal, cab signal, etc.), and the 
degree of train control they are capable of assuming. Vital systems 
are reliable and built upon failsafe principles, while non-vital 
systems are reliable but not guaranteed to provide failsafe 
operation.
    \11\ See 2015 DOT Report to Congress on Certification of 
Railroad Crafts at 3. An overlay system relies upon and supplements 
an existing wayside signal system or redundant method of operation. 
A standalone system replaces the existing method of operation.
---------------------------------------------------------------------------

5. RSAC Working Group

    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. 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.
    On April 21, 2017, a task statement regarding certification of 
signal employees was presented to the RSAC by email but no vote was 
taken. On April 24, 2019, the RSAC accepted a task (No. 19-03) 
entitled, ``Certification of Railroad Signal Employees.'' \12\ The 
purpose of the task was ``[t]o consider whether rail safety would be 
enhanced by developing guidance, voluntary standards, and/or draft 
regulatory language for the certification of railroad signal 
installation, repair, and maintenance workers.'' The task called for 
the RSAC Signal Employee Working Group (Working Group) to perform the 
following actions:
---------------------------------------------------------------------------

    \12\ At the same meeting, the RSAC also accepted a task (No. 19-
02) titled ``Certification of Train Dispatchers.'' A separate RSAC 
Working Group was formed to address this task and FRA plans to issue 
a related proposed rule that would establish certification 
requirements for dispatchers.

--Review critical tasks performed by railroad signalmen for safe train 
operations, particularly with the introduction of Positive Train 
Control (PTC) technology;
--Review training duration, content, and methodology for new hires and 
continuing education.
--Review background checks designed to prevent railroad signalmen with 
active substance abuse disorders from ``job-hopping'' from one employer 
to another.

    The revised task statement also asked the Working Group to address 
the following issues, if appropriate:

--What requirements for training and experience are appropriate?
--What classifications of signalmen should be recognized, if any?
--To what extent do existing requirements and procedures for the 
certification of locomotive engineers and conductors provide a model 
for signalmen certification?
--What types of unsafe conduct should affect railroad signalmen's 
certification status?
--Do the existing locomotive engineer and conductor certifications 
provide an adequate model for handling appeals from decertification 
decisions of the railroads?

    The Working Group, which included representatives from the 
Association of American Railroads (AAR), American Public Transportation 
Association (APTA), American Short Line and Regional Railroad 
Association (ASLRRA), Brotherhood of Railroad Signalmen (BRS), SMART 
Transportation, Commuter Rail Coalition, and National Railroad 
Construction & Maintenance Association, held its first and only meeting 
on September 5, 2019 in Washington, DC At this meeting, the Working 
Group reviewed the task statement from the RSAC, discussed some of the 
safety-critical tasks performed by signal employees, and debated 
whether certification of signal employees would be beneficial to 
railroad safety. At the end of the meeting, action items were assigned 
and the next meeting was tentatively scheduled for January 2020.
    However, on December 16, 2019, the presidents of the American Train 
Dispatchers Association, BRS, and the International Brotherhood of 
Electrical Workers (collectively the ``Unions'') sent a letter to the 
FRA Administrator requesting that the RSAC task be withdrawn from 
consideration. The letter stated the Unions were involved in numerous 
activities and were not able to give the task proper attention. AAR and 
ASLRRA advised the unions that they were not opposed to this request. 
In response to this letter, FRA withdrew the task from the RSAC and the 
Working Group became inactive.

6. Public Outreach

    In 2021, FRA revisited the issue of establishing certification 
requirements for signal employees. The agency assembled subject matter 
experts from FRA, the International Brotherhood of Electrical Workers 
(IBEW) and the Brotherhood of Railroad Signalmen to exchange facts or 
information regarding the tasks performed by signal employees. Those 
parties met virtually several times between May 5, 2021 and June 30, 
2021.
    As part of FRA's outreach, a list of tasks performed by signal 
employees was developed. These tasks generally involved: vital 
equipment design validation, installation, calibration, testing, 
maintenance, and repair (interlockings, grade crossings, wayside signal 
systems, PTC, etc.). FRA reviewed each task to determine whether 
correctly performing the task was critical to railroad safety; what 
were the potential consequences if errors were made while performing 
the task; and whether there were any recent examples of issues or 
concerns with respect to the task. After performing this analysis, FRA 
concluded that the vast majority of tasks performed by signal employees 
(80-90% of the listed tasks) were critical to railroad safety with 
potentially catastrophic consequences, such as accidents, injuries, 
and/or deaths, if the tasks were not performed properly.
    During FRA's outreach, the benefits of certification based on the 
experience of stakeholders with engineer and conductor certification 
under 49 CFR parts 240 and 242 were also discussed. Some of the main 
benefits of

[[Page 35637]]

certification that were identified include:
--Creating a minimum standard for training to ensure that the training 
encompasses all skills and proficiencies necessary to properly perform 
all safety-related signal employee functions;
--Establishing a record of safety compliance that will follow a signal 
employee if they wish to become certified by another railroad and that 
can be used to review a signal employee's performance and potential 
training needs;
--Requiring certain safety checks, such as identifying active substance 
abuse disorders, that can minimize the risks posed by job hopping; and
--Establishing a system for individuals to dispute a railroad's 
decision to deny or revoke certification with the aim of creating a 
fair and consistent process for all parties.

    Based on these meetings, FRA concluded that requiring certification 
for signal employees would be an important tool to ensure signal 
employees performing safety-sensitive tasks are adequately trained and 
qualified and have a documented record of performance that is 
accessible to prospective employers.
    Following this initial outreach, FRA held a follow-up conversation 
with BRS and IBEW, on March 3, 2022, and individuals from the BRS and 
IBEW informed FRA of elements that they believe would be beneficial in 
a signal employee certification program. During this conversation, 
which was held in videoconference format, FRA asked the attendees to 
provide individualized feedback on how similar or different a signal 
employee certification rule should be to FRA's locomotive engineer and 
conductor certification rules found in 49 CFR parts 240 and 242.
    FRA heard that the agency needs to ensure that comprehensive 
training is provided to signal employees as the current training is 
inadequate. FRA also heard that railroads are not providing enough 
training on new equipment and new technology for signal employees. It 
was also noted that, in some cases, signal employees are being required 
to use new equipment and new technology without having received any 
prior training on the equipment or technology.
    On March 7, 2022, FRA had a conversation with the railroad 
industry, including Norfolk Southern Corporation (NS), ASLRRA, and AAR. 
During this conversation, which was conducted in a videoconference 
format, FRA also asked for individualized feedback on how FRA's 
locomotive engineer and conductor certification regulations in 49 CFR 
parts 240 and 242 could be improved upon with respect to signal 
employee certification. Specifically, FRA asked for feedback on any 
regulatory provisions in 49 CFR parts 240 and 242 that, in their 
experience, may have been difficult to implement, as well as whether 
FRA should explore any changes to these regulatory provisions.
    AAR expressed opposition to FRA's proposal to issue regulations 
requiring certification of signal employees arguing that there was not 
a safety benefit to certification. In addition, NS questioned the need 
for certification regulations in the absence of any identified gaps in 
coverage by existing railroad training programs.
    ASLRRA expressed concern that FRA's proposal to issue regulations 
requiring certification of dispatchers and signal employees would 
result in a big paperwork burden with little benefit. In addition, 
ASLRRA asserted that most shortline railroads do not have signal 
systems. With respect to grade crossings, ASLRRA asserted that most 
shortline railroads rely on contractors to maintain their grade 
crossing warning systems.
    After this conversation, FRA provided a short list of written 
questions to AAR and ASLRRA. While AAR did not provide additional 
feedback in response to FRA's list of questions, ASLRRA responded to 
FRA's list of written questions by email on April 13, 2022, a copy of 
which has been placed in the docket.\13\
---------------------------------------------------------------------------

    \13\ A record of public contact summarizing this meeting has 
been posted in the rulemaking docket at: https://www.regulations.gov/document/FRA-2022-0020-0003.
---------------------------------------------------------------------------

    On March 8, 2022, FRA staff had a follow-up conversation with BRS 
and IBEW to receive information on the types of errors and grade 
crossing and signal violations that should result in a railroad 
revoking a signal employee's certification. During this conversation, 
which was conducted in a videoconference format, FRA heard that it 
might be appropriate to revoke a signal employee's certification in 
response to willful violations.

7. Contractors

    FRA considered whether railroad contractors (and subcontractors) 
should be authorized to certify their employees. FRA did not, however, 
include that option in this proposed rule. Instead, consistent with 
FRA's engineer and conductor certification regulations, this proposed 
rule requires railroads to develop and submit certification programs to 
FRA for approval and then implement their FRA-approved certification 
programs. FRA is proposing to adopt this approach because railroads are 
ultimately held responsible for the actions (or failure to act) of 
their employees, contractors, and subcontractors when engaged in 
railroad operations.
    FRA acknowledges that signal employee tasks are being subcontracted 
out by railroads to companies that specialize in this work. However, 
railroads are generally most knowledgeable about the signal systems 
that have been deployed on their territories. Therefore, railroads are 
best suited to develop certification programs that are needed to ensure 
all signal employees responsible for installing, troubleshooting, 
testing, repair, or maintenance of railroad signal systems, as defined 
in Sec.  246.7, have been properly trained and certified on: (a) all 
applicable Federal rail safety laws, regulations, and orders governing 
the installation, testing, repair, and maintenance of these systems; 
and (b) all railroad rules and procedures promulgated to implement 
those Federal rail safety laws, regulations, and orders. In addition, 
by keeping certification programs in-house, railroads can implement 
quality control measures to ensure that their FRA-approved 
certification programs are being implemented properly.
    Nonetheless, FRA is soliciting comment on the approach adopted in 
this proposed rule, which would require railroads to develop and 
implement FRA-approved signal employee certification programs. To ease 
any potential burden, especially on Class III railroads, the proposed 
rule would allow all railroads to choose between conducting the 
training or using a training program conducted by a third party, which 
would be adopted and ratified by the railroad. In addition, contractors 
that employ signal employees could help railroads comply with the 
requirements in this proposed rule by providing information about their 
signal employees' compliance with some of the proposed regulatory 
requirements. For example, contractors could provide information about 
their signal employees' compliance with the vision and hearing acuity 
requirements in the proposed rule. Under this proposed rule, however, 
railroads would ultimately be responsible for ensuring that certified 
signal employees are installing, testing, maintaining, and repairing 
their signal systems.

[[Page 35638]]

8. Interaction With Other FRA Regulations

    While developing this proposed rule, FRA has been mindful of other 
regulations that may touch upon topics covered in this proposed rule, 
including FRA's training, qualification, and oversight regulations in 
49 CFR part 243 (part 243); railroad safety risk reduction programs 
(SSP/RRP) in 49 CFR parts 270 and 271 (parts 270 and 271); and fatigue 
risk management programs (FRMP) in parts 270 and 271. However, FRA 
finds that this proposed rule would complement, rather than duplicate, 
those regulations.
    Signal employees are currently included in part 243's requirements 
for training, qualification, and oversight for safety-related railroad 
employees. However, part 243 does not require railroads to have formal 
processes in place for promptly removing signal employees from service 
if they violate one or more basic regulatory standards that could have 
a significant negative impact on the safety of rail operations. FRA's 
proposed signal employee certification requirements have been drafted 
to help address this void, as well as prevent signal employees who have 
been fired for committing one or more of the revocable events discussed 
in the proposed rule from ``job hopping'' and quickly resuming safety-
sensitive service at a different railroad that is unaware of the signal 
employee's prior violation(s) of FRA's rail safety regulations.
    As codified in parts 270 and 271, FRA requires Class I railroads, 
railroads with inadequate safety performance, and passenger rail 
operations to implement railroad safety risk reduction programs. A 
railroad safety risk reduction program is a comprehensive, system-
oriented approach to safety that determines an operation's level of 
risk by identifying and analyzing identified hazards and developing 
strategies to mitigate risks associated with those hazards. In this 
background, FRA is using the term ``railroad safety risk reduction 
programs'' to include both a ``system safety program'' (SSP) that is 
required for certain passenger rail operations \14\ and a ``risk 
reduction program'' (RRP) that is required for a limited number of 
other rail operations.\15\ Although a railroad safety risk reduction 
program might address a railroad's safety hazards and risks associated 
with its signal employees, the framework established by these programs 
neither directly addresses the risks associated with signal systems nor 
establishes an industry-wide approach.
---------------------------------------------------------------------------

    \14\ 49 CFR 270.3 (requiring the application of the system 
safety program rule to certain passenger rail operations).
    \15\ 49 CFR 271.3 (requiring the application of the risk 
reduction program rule to certain rail operations).
---------------------------------------------------------------------------

    First, not every railroad is required to have a railroad safety 
risk reduction program. Indeed, FRA estimates that fewer than 100 
railroads (out of approximately 750 railroads under FRA's jurisdiction) 
will be required to develop a railroad safety risk reduction program 
over the next 10 years.
    Second, even if a railroad is required to have a railroad safety 
risk reduction program through which it identifies the risks associated 
with installing, testing, maintaining, and repairing signal systems, 
the railroad may decide not to implement mitigations to eliminate or 
reduce those specific risks. Parts 270 and 271 permit railroads to 
prioritize risks.\16\ Whether a railroad is required to have a program 
that mitigates risks associated with signal systems will depend on how 
the railroad prioritizes risks for mitigation and how effectively that 
mitigation would promote continuous safety improvement compared to 
mitigation of other identified hazards and risks. Thus, even if signal 
systems are identified as a risk, a railroad may not implement 
mitigations to eliminate or reduce that risk.
---------------------------------------------------------------------------

    \16\ See e.g., 49 CFR 270.5 (definition of ``risk-based hazard 
management'') and 271.103(b)(3).
---------------------------------------------------------------------------

    Accordingly, this proposed rule may complement the SSP/RRP 
requirements but does not duplicate those requirements. Without this 
proposed rule, railroads may not be required to implement mitigations 
to address identified safety risks associated with signal systems 
across the entire industry.
    With respect to FRMPs,\17\ an FRMP is a comprehensive, system-
oriented approach to safety in which a railroad determines its fatigue 
risk by identifying and analyzing applicable hazards and developing 
plans to mitigate, if not eliminate, those risks. Like the SSP/RRP 
rules, the FRMP rule is part of FRA's continual efforts to improve rail 
safety and satisfies the statutory mandate of Section 103 of the 
RSIA.\18\
---------------------------------------------------------------------------

    \17\ On June 13, 2022, FRA published a final rule adding a FRMP 
to the railroad safety risk reduction program requirements in parts 
270 and 271. 85 FR 83484.
    \18\ Codified at 49 U.S.C. 20156.
---------------------------------------------------------------------------

    Like the SSP/RRP requirements, there is no guarantee that any 
railroad covered by the regulation will use an FRMP to address signal 
issues. As with the SSP/RRP rules, a covered railroad must identify 
fatigue hazards, assess the risks associated with those fatigue 
hazards, and prioritize those risks for mitigation purposes. It is 
possible that other fatigue risks, not associated with signal systems, 
might rank higher, in which case the risk associated with signal 
systems might not be promptly mitigated. Further, because the FRMP 
requirements would apply only to those railroads required to comply 
with the SSP/RRP requirements, an FRMP would not be required of every 
railroad. Thus, like the SSP/RRP rules, this proposed rule is 
complementary to the FRMP final rule and is not duplicative.

IV. Section-by-Section Analysis

Subpart A--General

    Subpart A of the proposed rule contains general provisions, 
including a formal statement of the proposed rule's purpose and scope. 
The subpart also provides that this proposed rule does not constrain 
the ability of a railroad to prescribe additional or more stringent 
requirements for its signal employees that are not inconsistent with 
this proposed rule.
Section 246.1 Purpose and Scope
    This proposed section, derived from 49 CFR 240.1 and 242.1, 
indicates that the purpose of the proposed rule is to ensure that only 
those persons who meet minimum Federal safety standards serve as 
certified signal employees, to reduce the rate and number of accidents 
and incidents, and to improve railroad safety.
    Even though a person may have a job title other than signal 
employee, the requirements of this proposed rule would apply to that 
person if they meet the definition of ``signal employee'' without 
regard to the class or craft of the employee or the manner in which the 
employee is compensated, if at all. The definition of ``signal 
employee,'' and an explanation of who is covered by the definition, are 
discussed in more detail in the section-by-section analysis for Sec.  
246.7, below.
Section 246.3 Application and Responsibility for Compliance
    The extent of FRA's jurisdiction, and the agency's exercise of that 
jurisdiction, is well-established. See 49 CFR part 209, app. A. This 
proposed application and responsibility for compliance section is 
consistent with FRA's Statement of Agency Policy Concerning Enforcement 
of the Federal Railroad Safety Laws in appendix A to 49 CFR part 209 
(Policy Statement).
    This proposed section, derived from 49 CFR 240.3 and 242.3, 
provides that the proposed rule would apply to all railroads with four 
exceptions.

[[Page 35639]]

Paragraph (a)(1) of this section notes that this proposed rule would 
not apply to railroads that do not have a signal system, as defined in 
Sec.  246.7. In paragraph (a)(2), FRA proposes to exempt 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. Further explanation of what is meant by the term ``plant 
railroad'' is provided in the section-by-section analysis for Sec.  
246.7.
    In paragraph (a)(3), FRA is also proposing to exclude ``tourist, 
scenic, historic, and excursion operations conducted only on track used 
exclusively for that purpose . . . and only on track inside an 
installation that is insular.'' In other words, FRA is proposing to 
exclude tourist, scenic, historic, or excursion operations conducted 
only on track where there is no freight, intercity passenger, or 
commuter passenger railroad operations on the track. In addition, FRA 
is proposing to consider insularity when determining whether the 
requirements of this proposed rule apply to a tourist, scenic, 
historic, or excursion operation. As explained in the Policy Statement, 
FRA considers a railroad to be ``insular'' if its operations are 
limited to a separate enclave in such a way that there is no reasonable 
expectation that the safety of any member of the public (except a 
business guest, a licensee of the tourist operation or an affiliated 
entity, or a trespasser) would be affected by the operation. A railroad 
is not considered insular if one or more of the following exists on its 
line: (a) A public highway-rail grade crossing that is in use; (b) an 
at-grade rail crossing that is in use; (c) a bridge over a public road 
or waters used for commercial navigation; or (d) a common corridor with 
a railroad (i.e., its operations are within 30 feet of those of any 
railroad). In addition, when determining insularity for purposes of 
this proposed rule, FRA would consider whether a public pathway grade 
crossing is located on the railroad line. FRA is proposing to add this 
criterion to the determination of insularity for purposes of this 
proposed rule, in recognition of the potential safety risks associated 
with the use of public pathway grade crossings by members of the 
general public.
    FRA believes that applying the proposed regulatory requirements in 
this part to signal employees who work on non-insular passenger rail 
operations off the general system is warranted by the potential risk to 
passengers associated with accidents involving heavy motor vehicles. 
FRA acknowledges that a passenger railroad off the general system may 
be considered non-insular, yet have only private grade crossings on its 
line of railroad. Due to the non-insular status of the railroad, signal 
employees who install, maintain, test, or repair train-activated 
warning devices at those private grade crossings or who install, 
maintain, test, or repair signal systems on its line would be subject 
to this rule.
    The final proposed exclusion in Sec.  246.3(a)(4) covers rapid 
transit operations in an urban area that are not connected to the 
general railroad system of transportation. It should, however, be noted 
that FRA exercises jurisdiction over some rapid transit type 
operations, given their links to the general railroad system of 
transportation, such as rapid transit operations conducted on track 
used for freight, intercity passenger, or commuter passenger railroad 
operations, during a block of time during which a general system 
railroad is not operating (temporal separation). Thus, this proposed 
rule would apply to persons who perform work on signal systems for 
those rapid transit type operations.
    Paragraph (b) is intended to clarify that any person, as defined in 
Sec.  246.7 (including a railroad employee or employee of a railroad 
contractor) who performs a function required by this part will be held 
responsible for compliance.
Section 246.5 Effect and Construction
    This proposed section is derived from 49 CFR 240.5 and 242.5. 
Paragraph (a) addresses the relationship of this proposed rule to 
preexisting legal relationships. Paragraph (b) states that FRA does not 
intend to alter the authority of a railroad to initiate disciplinary 
sanctions against its employees by issuance of this proposed rule.
    Paragraph (c) of this section is intended to note that, 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. 
The term ``flowback'' has been used in the industry to describe a 
situation where an employee leaves their current position to return to 
a previously held position or craft. The reasons for reverting back to 
the previous craft may derive from personal choice or a less voluntary 
nature (such as downsizing). Many collective bargaining agreements 
address the issue of flowback. However, paragraph (c) must be read in 
conjunction with Sec.  246.213, which would limit flowback in certain 
situations (i.e., when a certificate is revoked due to an alcohol or 
drug violation).
    Paragraph (d) of this proposed section addresses employee rights. 
The proposed rule would explicitly preserve any remedy already 
available to the person and would not create any new entitlements.
Section 246.7 Definitions
    This section defines a number of terms that have specific meaning 
in this proposed part. Some of these terms have definitions that are 
similar to, but may not exactly mirror, definitions used elsewhere in 
this chapter.
    Contractor, as defined in this proposed part, would include prime 
contractors, as well as subcontractors. This definition, which mirrors 
the definition of ``contractor'' in 49 CFR part 243, has been included 
in this section to help explain FRA's intent that the requirements of 
this part which apply to railroad contractors are also intended to 
apply to railroad subcontractors as well.
    Disable, as defined in this proposed part, would mean to render a 
device [or system] incapable of proper and effective action or to 
materially impair the functioning of that device. In the interest of 
consistency, this proposed definition is very similar to the definition 
of ``disable'' provided in Sec.  218.53 of FRA's railroad operating 
practices regulations. However, for purposes of this proposed part, the 
term ``disable'' would include situations in which a device or system 
is lawfully rendered incapable of proper and effective action.
    Consistent with parts 240 and 242, FRA proposes to define ``drug'' 
as any substance (other than alcohol) that has known mind- or function-
altering effects on an individual, specifically including any 
psychoactive substance and including, but not limited to, controlled 
substances. This term is intended to refer to substances that have a 
significant potential for abuse and/or dependence. Normal ingestion of 
caffeine in beverages and use of nicotine from tobacco products, even 
though involving some degree of habituation or dependence, are not 
intended to be included within the definition.
    In this proposed part, the terms ``ineligible'' and 
``ineligibility'' would be catch-all terms that not only encompass 
revocation and denial of certification, but also cover other situations 
in which a signal employee would be legally disqualified from serving 
as a signal employee. For example, a certified signal employee

[[Page 35640]]

may voluntarily refer him or herself for substance abuse counseling or 
treatment under 242.115(c). If the signal employee then refuses to 
complete a course of action recommended under the provisions of 49 CFR 
219.1003, that would not be an operating rule or procedure, or type of 
alcohol or drug violation that would require revocation (nor would it 
require denial of certification). Rather the signal employee 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 219.1003 that the person could safely return to 
duty under certain conditions.
    In this proposed part, mentor would be defined as a certified 
signal employee who has at least one year of experience as a certified 
signal employee. FRA is proposing to define the term, ``mentor,'' to 
help clarify that a mentor provides direct supervision and oversight 
over the work of one or more signal employees.
    In this proposed part, person would take on the same meaning as it 
does in FRA's other safety rules. The proposed definition is intended 
to clarify that this term does not apply merely to individual persons. 
Instead, the term would mean ``an entity of any type covered under 1 
U.S.C. 1'' and the proposed definition goes into detail regarding the 
types of people and entities that are covered.
    FRA proposes a definition of plant railroad to aid in the 
understanding of the application of this part pursuant to section 
246.3(a)(1). The definition coincides with FRA's longstanding 
explanation of how the agency will not exercise jurisdiction over a 
plant railroad that does not operate on the general system of 
transportation and does not move cars for other entities. See 49 CFR 
part 209, app. A.
    Although the RSIA required FRA to issue a report to Congress on 
whether the certification of certain crafts or classes of railroad 
carrier or railroad carrier contractor or subcontractor employees, 
including ``signal repair and maintenance employees,'' is necessary to 
reduce the number and rate of accidents and incidents or to improve 
railroad safety, the RSIA did not define the term, ``signal repair and 
maintenance employees.'' In the absence of such a definition in the 
RSIA, FRA proposes to use the streamlined term, ``signal employee.'' 
FRA also proposes to define this streamlined term, ``signal employee,'' 
as a person who is engaged in installing, troubleshooting, testing, 
repair, or maintenance of railroad signal systems, highway-rail and 
pathway grade crossing warning systems, unusual contingency detection 
devices, power-assisted switches, broken rail detection systems, and 
switch-point indicators, as well as other safety-related devices, 
appliances, and systems installed on the railroad in signaled or non-
signaled territory. This proposed definition is generally consistent 
with the definition of ``signal employee'' in the hours of service law 
but includes the terms ``troubleshooting'' and ``testing'' which are 
not found in the statutory definition.\19\
---------------------------------------------------------------------------

    \19\ 49 U.S.C. 21101(4). The hours of service law defines 
``signal employee'' as ``an individual who is engaged in installing, 
repairing, or maintaining signal systems.'' 49 U.S.C. 21101(4). 
While FRA believes ``troubleshooting'' and ``testing'' would fall 
under the terms ``installing, repairing, or maintaining'' in the 
hours of service law definition, FRA wanted to make explicit in this 
rule that ``troubleshooting'' and ``testing'' are included in the 
definition of ``signal employee.'' The addition of 
``troubleshooting'' and ``testing'' in the proposed definition in 
this rule is not intended to capture a broader group of employees 
than provided in the hours of service law.
---------------------------------------------------------------------------

    Consistent with parts 240 and 242, the term ``substance abuse 
disorder'' is defined as 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.
    This proposed definition would include drug and alcohol users who 
engage in abuse patterns which result in ongoing safety risks and 
violations. 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 aftercare as directed by a Substance Abuse Professional 
(SAP) or Drug and Alcohol Counselor (DAC).
Section 246.9 Waivers
    This proposed section, derived from 49 CFR 240.9 and 242.9, 
provides the proposed requirements for a person seeking a waiver of any 
section of this proposed rule.
Section 246.11 Penalties and Consequences for Noncompliance
    This proposed section, derived from 49 CFR 240.11 and 242.11, 
explains that FRA may impose civil penalties on any person, including a 
railroad or a contractor providing goods or services to a railroad, 
that violates any requirement of this proposed rule. Any person who 
violates a requirement of this proposed rule may be subject to civil 
penalties between the minimum and maximum amounts authorized by statute 
and adjusted for inflation per violation. Individuals may be subject to 
penalties for willful violations only. Where a pattern of repeated 
violations, or a grossly negligent violation creates an imminent hazard 
of death or injury, or causes death or injury, an aggravated maximum 
penalty may be assessed.\20\ Finally, a person may be subject to 
criminal penalties under 49 U.S.C. 21311 for knowingly and willfully 
falsifying reports required by these proposed regulations.
---------------------------------------------------------------------------

    \20\ Please visit FRA's website for the current aggravated 
maximum penalty amount at https://railroads.dot.gov/.
---------------------------------------------------------------------------

    Consistent with FRA's final rule regarding the removal of civil 
penalty schedules from the CFR (84 FR 23730 (May 23, 2019)), FRA will 
not publish a civil penalty schedule for this rule in the CFR, but 
plans to publish a civil penalty schedule on its website. Penalty 
schedules are statements of agency policy, thus notice and comment are 
not required prior to their issuance, nor are they required to be 
published in the CFR. See 5 U.S.C. 553(b)(3)(A). Nevertheless, 
commenters are invited to suggest the types of actions or omissions 
under each regulatory section that would subject a person to the 
assessment of a civil penalty. Commenters are also invited to recommend 
what penalty amounts may be appropriate, based upon the relative 
seriousness of each type of violation.

Subpart B--Program and Eligibility Requirements

Section 246.101 Certification Program Required
    This proposed section, derived from 49 CFR 240.101 and 242.101, 
would require railroads to have written certification programs 
comprised of multiple elements, each of which comports with specific 
regulatory provisions in the proposed rule related to that element. In 
addition to these required elements, paragraph (b)(1) would require 
railroads who elect to classify their certified signal employees into 
multiple occupational categories (and, in some cases, subcategories) to 
explain and discuss each category or subcategory of certified signal 
employees.
    Paragraph (c) would require railroads to maintain version control 
for their certification programs. Therefore, railroads would be 
required to maintain an up-to-date, detailed list or index

[[Page 35641]]

tracking every change made to their certification programs. FRA would 
encourage railroads to maintain a redlined version of their 
certification programs to reflect changes that have been made over the 
years in context.
Section 246.103 FRA Review of Certification Programs
    This proposed section, derived from 49 CFR 240.103 and 242.103, 
describes the process for the submission and review of signal employee 
certification programs. Paragraph (a) of this section applies to 
railroads that have a signal system, as defined in Sec.  246.7, in 
operation prior to the effective date of the final rule and provides 
the deadlines for when these railroads would be required to submit 
their certification programs to FRA. (Paragraph (a) would not, however, 
apply to railroads that are exempted by Sec.  246.3(a)). The submission 
schedule in paragraph (a) would require Class I railroads and commuter 
service railroads to submit their programs earlier than Class II 
railroads, Class III railroads, and railroads not otherwise classified. 
The separate deadlines would help space out the initial influx of 
programs FRA will receive after the final rule goes into effect, to 
allow FRA to issue approval and disapproval decisions in a more timely 
manner. FRA also presumes that, in general, Class I railroads and 
commuter service railroads will have more resources to devote to 
creating these programs and will be better positioned to create and 
draft them more quickly.
    Paragraph (b) of this section would only apply to railroads that 
commence operations after the effective date of the final rule. Prior 
to installing, implementing, or operating any signal system as defined 
in Sec.  246.7, these railroads would be required to submit their 
signal employee certification program to FRA and obtain FRA approval.
    Paragraph (c) of this section provides that railroads would submit 
their programs and their requests for approval (which are described in 
greater detail in Sec.  246.106(a)) by uploading them to FRA's secure 
document submission site. This will allow for more efficient processing 
and will significantly reduce the risk of a program submission getting 
lost. FRA will need basic information from each railroad before setting 
up the user's account. In order to provide secure access, information 
regarding the points of contact will be required. It is anticipated 
that FRA will be able to approve or disapprove all or part of a program 
and generate automated notifications by email to a railroad's points of 
contact.
    FRA does not intend to develop a secure document submission site 
that would allow confidential materials to be identified and not shared 
with the general public. This is because FRA does not expect the 
information in a program to be confidential or proprietary, 
particularly since each railroad would be required to share the program 
submission, resubmission, or material modification with the president 
of each labor organization that represents the railroad's certified 
signal employees and the program will be available on FRA's website. 
See Sec.  246.103(d) and (j). Accordingly, FRA does not at this time 
believe it is necessary to develop a document submission system to 
address confidential materials.
    When a railroad submits its certification program to FRA, paragraph 
(d) of this section would require the railroad to also submit a copy of 
the program and the request for approval to the president of each labor 
organization that represents the railroad's signal employees and to all 
of the railroad's signal employees who would be subject to this part. 
The railroad's submission to FRA must include a statement affirming 
that it has provided a copy of the program and the request for approval 
to the president of each labor organization that represents its signal 
employees and to all of the railroad's signal employees who would be 
subject to this part. In addition, the railroad would be required to 
include a list of the names and email addresses of each labor 
organization president who received a copy of the program.
    Paragraph (e) of this section explains who would be allowed to 
comment on these programs. For signal employees who are members of a 
labor union, any comments must be submitted by a designated 
representative. Signal employees who are not members of a labor union 
would, however, be permitted to personally submit comments on their 
railroad's certification program. FRA anticipates that comments 
submitted through this process will assist the agency in determining 
whether a program conforms to the requirements set forth in this rule, 
and thus, FRA will not make a decision on a program until after the 45-
day comment period in paragraph (e)(1) has passed.
    Paragraph (f) of this section states FRA's aspirational goal to 
decide on whether to approve a program within 90 days of the date that 
the program is submitted. However, this would only be a goal and not a 
deadline for the agency. Paragraph (f)(3) explains that if FRA is 
unable to issue a decision on the program within 90 days, the program 
will not be considered approved on the 91st day. A certification 
program will not be approved until FRA issues a letter notifying the 
railroad that its program has been approved. While FRA will make every 
effort to issue approval and disapproval letters within 90 days, FRA 
recognizes that this will not always be possible. It may be especially 
difficult for FRA to meet this goal during the initial implementation 
of the final rule issued in this rulemaking when FRA expects to receive 
many certification programs within a relatively short period of time.
    Paragraph (g) of this section addresses the process for railroads 
who wish to materially modify their previously approved programs. If a 
railroad wishes to materially modify its certification program, it must 
submit two documents to FRA: (1) a description of how it intends to 
modify its current program (this constitutes the request for approval 
required under Sec.  246.106(a)); and (2) a copy of the modified 
program. Paragraph (g)(1) defines a ``material modification'' as a 
modification that ``would affect the program's conformance with this 
part.'' This definition is taken from 49 CFR 240.103(h)(1) and 
242.103(i)(1) and is intentionally broad to cover many different types 
of program modifications. FRA recognizes that there may be some desire 
among some interested parties to have a more specific definition of 
``material modification'' in the regulation. Thus, FRA welcomes any 
comments on suggested changes to the proposed definition of ``material 
modification.''
    Paragraph (g)(3) explains that the process for submission and 
review of material modifications mirrors the process for submission and 
review of initial certification programs. Railroads would be required 
to submit their material modifications to FRA in conformance with 
paragraph (c) of this section and would be required to send a copy of 
the material modification description and the modified program to all 
required parties referenced in paragraph (d) of this section. Certain 
interested parties would be allowed to comment on the modification in 
conformance with paragraph (e) of this section, and FRA would issue a 
letter either approving or disapproving the material modification in 
conformance with paragraph (f) of this section. If FRA approves the 
material modification, the railroad could begin implementing the 
modification and the modified program would replace the original 
program. If

[[Page 35642]]

FRA disapproves the material modification, the railroad would not be 
allowed to implement the modification and the original program must 
remain in effect. If a railroad's material modification submission 
contains multiple modifications, FRA reserves the right to approve some 
modifications while disapproving other modifications. In such an 
instance, the railroad could only begin implementing those 
modifications that FRA has approved.
    Paragraph (h) of this section describes the process to resubmit a 
program or material modification that was previously disapproved by 
FRA. Paragraph (h)(2) notes that the process for submission and review 
of resubmitted programs and material modifications mirrors the process 
for submission and review of initial certification programs. Railroads 
would resubmit their initial programs or material modifications to FRA 
in conformance with paragraph (c) of this section and would send a copy 
of the resubmitted program or material modification to all required 
parties referenced in paragraph (d) of this section. Certain interested 
parties would be allowed to comment on the resubmitted program or 
material modification in conformance with paragraph (e) of this section 
and FRA would issue a letter either approving or disapproving the 
resubmitted program or material modification in conformance with 
paragraph (f) of this section.
    Railroads would, however, remain responsible for maintaining their 
signal systems, as defined in Sec.  246.7, in compliance with Federal 
regulations even if rail operations cease or have not yet been 
initiated.
    Paragraph (h)(3) provides the deadlines, if any, for when a 
railroad must resubmit its certification program or material 
modification to FRA. For railroads that have installed or implemented a 
signal system, as defined in Sec.  246.7, prior to the effective date 
of the final rule (legacy railroads), if their initial certification 
program is disapproved by FRA, the railroad would be required to 
resubmit its program within 30 days of the date FRA notified the 
railroad that its program was deficient. If a legacy railroad fails to 
resubmit its program within 30 days and continues operations, FRA may 
use its enforcement discretion to determine whether enforcement action 
against the railroad is warranted.
    FRA believes a 30-day deadline is needed for legacy railroads 
because Sec.  246.105(a) allows legacy railroads to continue operations 
while they await FRA approval of their programs. Thus, without a 
deadline, legacy railroads could purposely delay coming into compliance 
with the final rule issued in this rulemaking by taking months or even 
years to resubmit their programs. In contrast, railroads that begin 
operations after the effective date of the final rule cannot begin 
operations until FRA approves their program. Likewise, no railroad 
(legacy or non-legacy) can implement a material modification to its 
program until FRA has approved the modification. In these scenarios, a 
deadline is unnecessary because the railroad has every incentive to 
resubmit its programs or material modifications in a timely manner. 
However, while there is no FRA-imposed deadline in these scenarios, FRA 
still recommends that railroads provide their resubmissions within 30 
days of being notified of deficiencies.
    Paragraph (i) of this section acknowledges that FRA reserves the 
right to revisit its prior approval of a certification program. In 
certain circumstances, including an audit of a certification program, 
FRA may discover that it made an error when it previously approved a 
program. This paragraph allows FRA to rescind a wrongful prior approval 
while also providing the railroads with certain rights. Paragraph 
(i)(3) notes that the process for submission and review of programs 
whose prior approval has been rescinded mirrors the process for 
submission and review of initial certification programs and 
resubmission of initially disapproved programs. Railroads would 
resubmit their programs to FRA in conformance with paragraph (c) of 
this section and they would send a copy of the resubmitted program to 
all required parties referenced in paragraph (d) of this section. 
Certain interested parties would be allowed to comment on the 
resubmitted program in conformance with paragraph (e) of this section, 
and FRA would issue a letter either approving or disapproving the 
resubmitted program in conformance with paragraph (f) of this section.
    Paragraphs (i)(6) and (i)(7) allow for a grace period where a 
rescinded program may remain in effect for a certain period of time. 
However, once FRA approves a resubmitted program, the resubmitted 
program must replace the rescinded program. In addition, a rescinded 
program can no longer remain in effect if FRA has twice disapproved the 
railroad's resubmitted program. This latter scenario is best explained 
through an example: On February 10th, FRA notifies ABC Railroad (ABC) 
that FRA is rescinding its prior approval of the railroad's signal 
employee certification program. On March 10th, ABC resubmits its 
program to FRA. On June 10th, FRA disapproves ABC's resubmitted 
program. On July 10th, ABC sends FRA its second resubmitted program. On 
October 10th, FRA issues a letter once again disapproving ABC's 
program. In this example, ABC's rescinded program could remain in 
effect between February 10th and October 10th. However, after October 
10th, the rescinded program could no longer be in effect. If ABC 
continued to operate its signal system after October 10th, when it did 
not have an FRA-approved certification program, FRA could find that the 
railroad failed to implement a program. In such cases, FRA would 
determine the appropriate enforcement approach to achieve compliance, 
including civil penalties and/or an emergency order. In exercising its 
enforcement discretion, FRA may consider such factors as the number and 
extent of the remaining deficiencies in the program and whether the 
railroad made good faith efforts to address the deficiencies in its 
resubmissions.
    Finally, paragraph (j) of this section notes that the following 
documents would be made available on FRA's website (railroads.dot.gov): 
(1) certification programs and material modifications submitted by the 
railroads; (2) any comments to the submissions from the railroads; and 
(3) the letters from FRA approving or disapproving a program or a 
material modification. While parts 240 and 242 do not currently require 
the posting of these documents on FRA's website, the current practice 
with respect to locomotive engineer and conductor certification 
programs has been for FRA to post comments on a railroad's submission, 
as well as FRA approval and disapproval letters, on its website. 
Paragraph (j) of this section in this proposed rule is intended to make 
the proposed review and approval process for railroad signal employee 
certification programs as transparent as possible.
Section 246.105 Implementation Schedule for Certification Programs
    This section, derived from 49 CFR 240.201 and 242.105, contains the 
timetable for implementing this proposed rule. Paragraph (a) of this 
section acknowledges railroads that have installed or implemented a 
signal system, as defined in Sec.  246.7, prior to the effective date 
of the final rule may continue their rail operations while they await 
FRA's approval of their certification programs. However, if FRA 
disapproves a legacy railroad's certification program twice (the 
initial

[[Page 35643]]

submission and the first resubmission), the railroad will no longer be 
in compliance with the rule if it continues to operate its signal 
system without an FRA-approved program. In such a scenario, FRA could 
find that the railroad has failed to implement a program and would 
determine the appropriate enforcement approach to achieve compliance, 
including civil penalties and/or an emergency order. In exercising this 
enforcement discretion, FRA may consider such factors as the number and 
extent of the remaining deficiencies in the program and whether the 
railroad made good faith efforts to comply with the requirements of the 
rule through its submitted program. Paragraph (b) provides that any 
non-legacy railroad (a railroad that did not have any signal system, as 
defined in Sec.  246.7, installed or implemented prior to the effective 
date of the final rule) may not install or implement a signal system 
until FRA has approved its signal employee certification program.
    Paragraph (c) of this section would require railroads to designate 
as certified signal employees, in writing, all persons authorized by 
the railroad to perform the duties of each category or subcategory of 
certified signal employee identified by the railroad pursuant to Sec.  
246.107 as of the effective date of the final rule. Similarly, 
paragraph (d) of this section would require railroads to designate as 
certified signal employees, in writing, all such persons authorized by 
the railroad to perform the duties of certified signal employees 
pursuant to Sec.  246.107 between the effective date of the final rule 
and the date FRA approves the railroad's certification program. 
Railroads would also be required to issue a certificate to each person 
they designate. This designation system is modeled after the system 
used when parts 240 and 242 first went into effect. This system allows 
``legacy signal employees'' to obtain certificates so that when their 
railroad's program is approved, they will be considered ``previously 
certified signal employees'' when the time comes for them to be 
recertified through the railroad's signal employee certification 
program. Therefore, the recertifying railroad will not have to provide 
legacy certified signal employees with the kind of basic training that 
would be given to individuals with little to no signal experience. In 
other words, a person with 20 years of experience as a signal employee 
most likely does not need to take a ``Signal 101'' course that provides 
a basic overview of signal systems and related technology. Instead, 
this person would be better served by undergoing continuing education 
training as described in Sec. Sec.  246.107(b)(2) and 246.119(j).
    Paragraph (e) of this section states that after the final rule has 
been in effect for eight months, no person would be permitted to serve 
as a certified signal employee unless that person has been certified. 
Paragraph (f) of this section requires each railroad to make formal 
determinations concerning those individuals it has designated as 
certified signal employees within three years after FRA's approval of 
the railroad's certification program. Pursuant to this paragraph, a 
designated signal employee may serve as a certified signal employee for 
up to three years from the date of FRA's approval of the program. At 
the end of three years, however, the designated signal employee can no 
longer serve as a certified signal employee unless they successfully 
complete the tests and evaluations provided in subpart B of this rule 
(i.e., the full certification process).
    Thus, individuals who are designated as certified signal employees 
under paragraphs (c) and (d) of this section could be certified for 
more than three years before they have to complete the railroad's full 
certification process. For example, if a person is designated as a 
certified signal employee on September 1, 2024, and FRA approves the 
railroad's certification program on September 1, 2025, the signal 
employee would not have to go through the full certification process 
and get recertified until September 1, 2028 (four years from the date 
the individual was designated by the railroad as a certified signal 
employee). Railroads should note that they may not test and evaluate a 
designated signal employee or signal employee certification candidate 
under subpart B of this rule until they have a certification program 
approved by FRA pursuant to Sec.  246.103.
    In order to test and evaluate all of its designated signal 
employees by the end of the three-year period, a large railroad would 
likely have to begin that process well in advance of the end of the 
three-year period. For example, paragraph (f), which is derived from 
the designation provisions in parts 240 and 242, would permit a 
railroad to test and evaluate one-third of its designated signal 
employees within one year of the approval date of the railroad's 
certification program; another one-third within two years of the 
program's approval date; and the final one-third within three years of 
the program's approval date.
    To address the issue of designated signal employees who would be 
eligible to retire within three years of the date FRA approves their 
railroad's certification program, FRA is proposing paragraphs (f)(1) 
through (3) in this section since it would not be an efficient use of 
railroad resources to conduct the full certification process for a 
designated signal employee who is going to retire before the end of 
their designation period. Paragraph (f)(1) provides that a designated 
signal employee, 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 three years from 
the date FRA approves the railroad's certification program, may request 
in writing that the railroad not perform the full certification 
progress on that designated signal employee until three years from the 
date FRA approves the railroad's program.
    Paragraph (f)(2) would allow the railroad to honor the designated 
signal employee's request. Thus, paragraphs (f)(1) and (2) allow 
designated signal employees to serve as signal employees for the full 
designation 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 designation period 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 designated signal employees properly request that the 
railroad wait to recertify them at the end of the designation period, 
but then do not retire by the end of the designation period, the 
railroad might not be able to recertify everyone in time and would risk 
violating this rule. In recognition of that risk and the need to give 
railroads some flexibility to comply with the rule, paragraph (f)(2) 
also provides that a railroad granting any request to delay performance 
of the full certification process must grant the request of all 
eligible persons ``to every extent possible.''
    In addition, paragraph (f)(3) provides that a designated signal 
employee who is also subject to recertification under part 240 or 242 
may not make a request under paragraph (f)(1) of this section. This 
provision recognizes that railroads would likely want to have 
concurrent certification processes for certifying a person who will be 
both a certified signal employee and a certified locomotive engineer or 
conductor. Thus, it would not be appropriate, in that instance, for a 
designated signal employee who is already subject to recertification 
under part 240 or 242 to

[[Page 35644]]

make a request to delay the full signal employee certification process.
    Paragraph (g) of this section provides that after FRA approves a 
railroad's certification program, the railroad cannot certify or 
recertify a person as a signal employee unless that person has been 
tested and evaluated in accordance with the procedures provided in 
subpart B of this rule. In other words, after FRA approves a railroad's 
program, that railroad can no longer designate persons as certified 
signal employees under paragraph (c) or (d) of this section.
Section 246.106 Requirements for Certification Programs
    This proposed section, derived from Appendix B to part 240 and 
Appendix B to part 242, provides both the proposed organizational 
requirements and a narrative description of the submission required 
under Sec. Sec.  246.101 and 246.103. FRA is not proposing to require 
railroad submissions to be made on a specific form. Instead, FRA 
proposes to prescribe only minimal constraints on the organization and 
manner of presenting information.
    Paragraph (a) of this section addresses what must be included in a 
railroad's submission to FRA. Specifically, the railroad must include 
two documents in its submission: (1) a request for approval; and (2) 
the certification program. If a railroad is submitting its initial 
certification program, the request for approval can be a brief document 
that simply states the railroad is submitting its initial signal 
employee certification program to FRA for approval. However, if a 
railroad is making a material modification or modifications to a signal 
employee certification program that has previously been approved by 
FRA, the request for approval must describe how the railroad intends to 
modify its program. In addition, the railroad must provide a copy of 
the modified certification program that identifies all of the proposed 
changes from the last FRA-approved version of the program, as required 
by section 246.103(g).
    Paragraph (b) of this section would require that signal employee 
certification programs be divided into six sections, each dealing with 
a different subject matter, and that the railroad identify the 
appropriate person to be contacted in the event FRA needs to discuss 
some aspect of the railroad's program. Paragraph (b)(1) would require 
railroads to include basic contact information in Section One of their 
certification programs and to address whether the railroad elects to 
accept responsibility for training persons not previously certified as 
signal employees. However, for railroads that elect to classify their 
certified signal employees into more than one occupational category or 
subcategory by class, task, location, or other suitable terminology, 
paragraph (b)(1) would require the railroad to provide detailed 
information about each occupational category (and subcategory, if 
applicable) of certified signal service in Section One of its 
certification program.
    Paragraph (b)(2) would require railroads to address in Section Two 
of their certification programs how they will provide continuing 
education for certified signal employees. A matter of particular 
concern to FRA is how each railroad will ensure that certified signal 
employees receive sufficient training on new signal systems and related 
technology that are deployed on the railroad's territory. While a 
railroad would have the latitude to select the specific subject matters 
to be covered, the duration of continuing education sessions, the 
methods of presenting the information, and the frequency with which 
continuing education will be provided, the railroad must describe in 
this section how it will use that latitude to ensure that its certified 
signal employees receive up-to-date and comprehensive training on new 
signal systems and related technology so as to comply with the training 
standards set forth in Sec.  246.119(j).
    However, time and circumstances can diminish both abstract 
knowledge and the proper application of that knowledge to discrete 
events. Time and circumstances can also alter the value of previously 
obtained knowledge and the application of that knowledge. Therefore, 
certified signal employees also need to have their fundamental 
knowledge of applicable Federal laws and regulations, as well as 
railroad signal system safety rules and practices, refreshed 
periodically. Therefore, the railroad must also describe in Section Two 
how it will ensure that its certified signal employees remain 
knowledgeable concerning the safe discharge of their responsibilities, 
in accordance with the standard set forth in Sec.  246.119(j).
    Section Three of the certification program must address 
requirements for the testing and evaluation of previously certified 
signal employees. Paragraph (b)(3)(i) would require railroads to 
address how their certification programs will comply with the standards 
found in Sec.  246.121. Section 246.121 would require railroads, when 
seeking a demonstration of the signal employee's knowledge, to employ a 
written or electronic test containing objective questions that address 
the following subject matters: (i) compliance with all applicable 
Federal railroad safety laws, regulations, and orders governing signal 
systems and related technology; (ii) compliance with all applicable 
railroad safety and operating rules; and (iii) compliance with all 
applicable railroad standards, procedures, and instructions for the 
installation, operation, testing, maintenance, troubleshooting, and 
repair of the railroad's signal systems and related technology. In 
addition, the test must also include a practical demonstration 
component. Paragraph (b)(3)(ii) would also require railroads, in their 
certification programs, to explain their procedures for testing vision 
and hearing acuity and for ensuring that their medical examiners have 
sufficient knowledge to make determinations on whether candidates for 
signal employee certification or recertification can safely work as 
certified signal employees.
    Section Four of the certification program would address the 
requirements for training, testing, and evaluating persons not 
previously certified as signal employees. Railroads that elect, in 
Section One of the certification programs, to not take responsibility 
for training persons not previously certified as signal employees can 
skip this section. Paragraph (b)(4) would require railroads that elect 
to provide training to persons who have not been previously certified 
as signal employees to provide details in Section Four for how they 
will train, test, and evaluate these individuals to ensure they acquire 
and demonstrate sufficient knowledge and skills to safely perform the 
job of a certified signal employee. Paragraph (b)(4)(i) would also 
require railroads to discuss in Section Four its procedures for 
mentoring candidates for signal employee certification, in accordance 
with Sec.  246.124.
    Paragraph (b)(4)(ii) would require railroads to include the same 
level of detail in Section Four of their certification programs as that 
provided in Sections Two and Three of their programs. Therefore, 
railroads would be required to address both the training requirements 
found in Sec.  246.119 and the knowledge testing requirements in Sec.  
246.121.
    If a railroad intends to rely on another entity to provide training 
to persons not previously certified as signal employees, paragraph 
(b)(4)(iii) would require the railroad to explain in Section Four how 
the railroad will ensure that the training provided by another entity 
adheres to the railroad's certification program. Specifically, the 
railroad would be required to explain how persons not previously 
certified as signal employees will be given the required training on

[[Page 35645]]

the railroad's signal systems and related technology.
    Paragraph (b)(5) would require railroads to discuss in Section Five 
of their certification programs how the railroad will monitor the 
operational performance of its certified signal employees in accordance 
with Sec.  246.123. In particular, the railroad must discuss the 
processes and procedures it will use for ensuring that such monitoring 
and testing is performed. This includes a description of the scoring 
system the railroad will employ during monitoring observations and 
unannounced tests.
    Finally, paragraph (b)(6) would require railroads to address in 
Section Six of their certification programs how the railroad will 
perform routine administration of the program. This section must 
include summaries of how the program will comply with the various 
provisions listed in paragraph (b)(6) that contain procedural 
requirements for railroad certification programs.
Section 246.107 Signal Service Classifications
    This proposed section would permit, but not require, railroads to 
issue certificates for one or more occupational categories or 
subcategories of certified signal employee service. While some 
railroads with only one type of signal employee service might not have 
any interest in certifying multiple types of signal employee service, 
larger railroads that have already established multiple categories of 
signal employee service (such as signal maintainers, signal inspectors, 
locomotive signal/electrical technicians, etc.) on their territories 
may find it beneficial to issue certificates for multiple types of 
signal employee service. Therefore, by allowing railroads to classify 
their certified signal employees into multiple occupational categories 
or subcategories, FRA would give railroads the flexibility to shape the 
structure of their certification programs to highlight the specific 
tasks and responsibilities for each category and subcategory of 
certified signal employee working on their territories.
    A railroad that classifies its certified signal employees into 
separate categories, such as signal maintainers, signal inspectors, and 
locomotive signal/electrical technicians, would be permitted to issue 
specific certificates for each category of signal employee service. 
This proposed section would also allow railroads to certify signal 
employees for signal system work on specific railroad divisions or 
subdivisions, as opposed to issuing one universal signal employee 
certificate that would certify the signal employee to perform signal 
system work anywhere on the certifying railroad's territory. As further 
explained in the Section-by-Section Analysis of Sec.  246.106(b), 
railroads that choose to classify their certified signal employees into 
multiple occupational categories and subcategories would be required by 
Sec.  246.106(b)(1)(iv) to provide detailed information about each 
occupational category (and subcategory, if applicable) of its certified 
signal employees.
    Paragraph (b) of this section would require certified signal 
employees to immediately notify the railroad (or their employer, if 
they are not employed by a railroad) if they are called to work on a 
signal system or signal-related technology on which they have not been 
certified. When notified that a certified signal employee has been 
called to work on a signal system or signal-related technology on which 
the employee has not been certified, paragraph (c) would prohibit the 
railroad from requiring the certified signal employee to work on the 
signal system or signal-related technology unless the certified signal 
employee is allowed to work under the direct oversight and supervision 
of a mentor in accordance with Sec.  246.124.
Section 246.109 Determinations Required for Certification and 
Recertification
    This proposed section lists the determinations that would be 
required for evaluating a candidate's eligibility to be certified or 
recertified. The reference to Sec.  246.303 in paragraph (a)(2) of this 
section is to ensure railroads determine whether a candidate is 
eligible to hold a certification by reviewing any prior revocations 
addressed in subpart D of this rule.
    Despite the reference in paragraph (a)(1) of this section to 
provisions in Sec. Sec.  246.111 and 246.113 requiring a review of 
safety conduct information from the preceding five years, Sec.  
246.113(g)(1) would not permit a railroad to consider information 
concerning safety conduct that occurred prior to the effective date of 
the final rule issued in this rulemaking. Even though this provision 
would result in a railroad's evaluation of less than five years' worth 
of information for some signal employees early on in the rule's 
effective period, it is included in part 246 for the same reason 
similar provisions were included in parts 240 and 242--namely, that all 
signal employees should be permitted to start with a ``clean slate'' 
for certification purposes as a matter of basic fairness. See 56 FR 
28228, 28242 (June 19, 1991).
    Paragraph (b) of this section would provide flexibility to 
railroads and signal employees or signal employee candidates in 
obtaining the information required by Sec. Sec.  246.111 and 246.113. 
For example, in some states, railroads may be able to obtain motor 
vehicle operator data for signal employees and signal employee 
candidates through background checks.
Section 246.111 Prior Safety Conduct as Motor Vehicle Operator
    This proposed section, derived from 49 CFR 240.111, 240.115, and 
242.111, would provide the requirements and procedures that a railroad 
would be required to follow when evaluating a certified signal employee 
or certification candidate's prior safety conduct as a motor vehicle 
operator. 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 signal employee would be required to request in 
writing that the chief of each driver licensing agency that issued them 
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). 
Based on the NDR statute and regulation (see 49 U.S.C. chapter 303 and 
23 CFR part 1327), railroads are prohibited from running NDR checks or 
requesting NDR information from individuals seeking employment as 
certified signal employees.
    Paragraphs (b) and (c) 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.  246.109(a)(1) through (5). 
If a railroad certifies or recertifies a person for 60 days pursuant to 
paragraphs (b) and (c) but is unable to obtain and evaluate the 
required information during those 60 days, the person would be 
ineligible to perform as a certified signal employee 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 
be required to certify or recertify a person if the person

[[Page 35646]]

otherwise meets the eligibility requirements of Sec.  246.109(a)(1) 
through (5).
    Paragraph (k) of this section would require certified signal 
employees or persons seeking certification as signal employees to 
notify their employer (if employed by a railroad or contractor to a 
railroad), all prospective certifying railroads (if applicable), and 
all railroads with whom the person holds a signal employee certificate 
of motor vehicle incidents described in paragraph (m) of this section 
within 48 hours of the conviction or completed State action to cancel, 
revoke, suspend, or deny their motor vehicle driver's license for such 
incidents. Paragraph (k) would also prohibit railroads from having a 
more restrictive company rule requiring certified signal employees or 
persons seeking signal employee certification to report a conviction or 
completed State action to cancel, revoke, or deny a motor vehicle 
driver's license in less than 48 hours.
    The reasoning behind proposed paragraph (k) 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 has received due process from the State agency taking 
the action against the motor vehicle license. 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 drug and alcohol counselor (DAC) under paragraph (n) of 
this section would not occur prematurely. However, proposed paragraph 
(k) would not prevent an eligible person from choosing to voluntarily 
self-refer. Nor would it prevent the railroad from referring the person 
for an evaluation under an internal railroad policy if other 
information exists that identifies the person as possibly having a 
substance abuse disorder.
    Paragraph (n) of this section would provide that if a motor vehicle 
incident described in paragraph (m) is identified, the railroad would 
be required to provide the data to its DAC along with ``any information 
concerning the person's railroad service record.'' Furthermore, the 
person would have to be referred for evaluation to determine whether 
the person has an active substance abuse disorder. If the person has an 
active substance abuse disorder, the person would not be eligible for 
certification. However, even if it is determined that the person is not 
currently affected by an active substance abuse disorder, the railroad 
would be required, if recommended by a DAC, to condition certification 
upon participation in any needed aftercare and/or follow-up testing for 
alcohol or drugs or both. The intent of this proposed provision is to 
use motor vehicle records to identify signal employees or candidates 
for signal employee certification 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. Any testing performed as a result of a DAC's recommendation 
under paragraph (n) would be done under company authority, not Federal. 
However, the testing would be required to comply with the ``technical 
standards'' of part 219, subpart H, and part 40.
    Paragraph (n)(5) is intended to clarify that failure to cooperate 
in the DAC evaluation discussed in paragraphs (n)(2) of this section 
would result in the person being ineligible to perform as a certified 
signal employee until such time as the person cooperates in the 
evaluation.
Section 246.113 Prior Safety Conduct With Other Railroads
    This proposed section, which is derived from 49 CFR 240.113, 
240.205, and 242.113, would establish a process for certification 
candidates to request information about their prior safety conduct when 
employed or certified by another railroad. Except as otherwise provided 
by the retroactive time limit contained in paragraph (g) of this 
section, this section would require railroads to review records 
provided by railroads that previously employed or certified the 
certification candidate regarding the candidate's prior compliance with 
Sec. Sec.  246.115 and 246.303 within the previous five years, as well 
as the candidate's motor vehicle driving record within the previous 
three years.
    Paragraph (b) of this section contains an exception that if a 
certification candidate has not been employed or certified by any other 
railroad in the previous five years, they do not have to submit a 
request pursuant to paragraph (c) of this section. Such candidates, 
however, must notify the railroad where they are seeking certification 
of this fact. This exception should help minimize any burden arising 
from these proposed requirements.
    For certification candidates who do not qualify for the exception 
provided in paragraph (b), paragraph (c) would require the 
certification candidate to submit a written request to each railroad 
that employed or certified the candidate within the previous five 
years. As indicated earlier, the written request would direct the 
previous railroad employer or certifying railroad to provide 
information about the certification candidate's prior compliance with 
Sec. Sec.  246.115 and 246.303 within the previous five years, as well 
as the candidate's motor vehicle driving record within the previous 
three years from the date of the written request.
    In addition, railroads would be required by paragraph (e) to comply 
with written requests for records of prior safety conduct submitted by 
former employees or certified signal employees pursuant to this section 
within 30 days after receipt of such requests. Railroads that are 
unable to provide information about prior safety conduct within 30 days 
would be required by paragraph (f) to either: (1) provide a written 
explanation of why the railroad cannot provide the information within 
the requested time frame, along with an estimate of how much time will 
be needed to supply the requested information; or (2) provide an 
adequate explanation for why the railroad cannot provide the 
information requested.
    In the event a railroad seeking to certify or recertify a 
certification candidate receives a written statement from another 
railroad pursuant to paragraph (f) of this section, which explains that 
the railroad cannot provide the information requested, the railroad 
seeking to certify or recertify the certification candidate would be 
deemed to have complied with the eligibility determination required by 
paragraph (a) of this section, provided the railroad retains a copy of 
the other railroad's written statement in its records.
    Similarly, in the event a railroad seeking to certify or recertify 
a certification candidate does not receive a written response from 
other railroads, the railroad would be deemed to have complied with the 
eligibility determination required by paragraph (a) of this section 
provided the railroad retains a copy of its written request for this 
information in its records.
Section 246.115 Substance Abuse Disorders and Alcohol Drug Rules 
Compliance
    This proposed section, which is derived from 49 CFR 240.119, 
240.205, and 242.115, addresses: (1) active substance abuse disorders; 
and (2) specific alcohol/drug regulatory violations. As noted earlier, 
annual drug and alcohol testing data submitted to FRA revealed that 
signal employees had

[[Page 35647]]

a random violation rate (drug and alcohol positives and refusals) and a 
pre-employment violation rate that was considerably higher than their 
train and engine service counterparts.
    Therefore, this section and Sec.  246.111 address certain 
situations in which inquiry must be made into the possibility that the 
individual has an active substance abuse disorder if the individual is 
to obtain or retain a certificate. The fact that specific instances are 
cited in this section would not preclude the general duty of the 
railroad to take reasonable and proportional action in other 
appropriate cases. Declining job performance, extreme mood swings, 
irregular attendance and other indicators may, to the extent not 
immediately explicable, indicate the need for an evaluation under 
internal policies of the railroad.
    The purpose of identifying conditions is not to require (and does 
not require) a railroad to order an evaluation any time a listed 
condition is exhibited. Rather, FRA is simply providing guidance here 
as to conditions that may, given the context, call for an evaluation 
under internal policies of the railroad. Moreover, FRA remains vigilant 
of harassment and intimidation and will take appropriate action if such 
conduct is discovered.
    Paragraph (a) of this section would require railroads to determine 
that a person initially certifying, or a signal employee recertifying, 
meets the eligibility requirements of this section. In addition, each 
railroad would be required by Sec.  246.203 to retain the documents 
used to make that determination.
    Paragraph (c) of this section would prohibit a person with an 
active substance abuse disorder from being certified as a signal 
employee. This means appropriate action must be taken with respect to a 
certificate (whether denial or suspension) whenever the existence of an 
active substance abuse disorder comes to the official attention of the 
railroad, with the exception discussed below. Paragraph (c) would also 
provide a mechanism for an employee to voluntarily self-refer for 
substance abuse counseling or treatment.
    Paragraph (d) would address conduct constituting a violation of 
Sec.  219.101 or Sec.  219.102 of the alcohol/drug regulations. Section 
219.101(a)(1) prohibits regulated employees from using or possessing 
alcohol or any controlled substance when the employee is on duty and 
subject to performing regulated service for a railroad. Section 
219.101(a)(2) prohibits regulated employees from reporting for 
regulated service, or going on or remaining on duty in regulated 
service, while under the influence of (or impaired by) alcohol or while 
having a breath or blood alcohol concentration of 0.04 or more. A 
regulated employee is also prohibited from using alcohol either within 
four hours of reporting for regulated service or after receiving notice 
to report for regulated service, whichever is less. This is conduct 
that specifically and directly threatens safety in a way that is wholly 
unacceptable, regardless of its genesis and regardless of whether it 
has occurred previously. In its more extreme forms, such conduct is 
punishable as a felony under the criminal laws of the United States (18 
U.S.C. 341 et seq.) and a number of states.
    Section 219.102 prohibits use of a controlled substance by a 
regulated employee, at any time, whether on or off duty, except for 
approved medical use. Abuse of marijuana, cocaine, amphetamines, and 
other controlled substances poses unacceptable risks to safety.
    Under the alcohol/drug regulations, whenever a violation of Sec.  
219.101 or Sec.  219.102 is established, based on authorized or 
mandated chemical testing, the employee must be removed from service 
and may not return until after an SAP evaluation, any needed treatment 
and/or education, and a negative return-to-duty test, and is subject to 
follow-up testing (as required by Sec.  219.104). These requirements 
constitute an absolute minimum standard for action when a signal 
employee is determined to have violated one of these prohibitions. 
Considering the need both for general and specific deterrence with 
respect to future unsafe conduct, additional action should be premised 
on the severity of the violation and whether the same individual has 
had prior violations.
    This proposed rule would require railroads to consider conduct that 
occurred within the period of five consecutive years prior to the 
review. This is the same period provided in this proposed rule as the 
maximum period of ineligibility for certification following repeated 
alcohol/drug violations and is the same period used in parts 240 and 
242. Use of a 5-year cycle reflects railroad industry experience 
indicating that conduct committed as much as 5 years before may tend to 
predict future alcohol or drug abuse behavior. For example, in 
analyzing data submitted to FRA between 2017 and 2021, FRA found that 
railroad employees returning to duty from previous drug or alcohol 
violations were approximately five times more likely to test positive 
than other railroad employees. Of course, railroads would retain the 
flexibility to consider prior conduct (including conduct more than 5 
years prior) in determining whom they will hire as signal employees.
    Conduct violative of the FRA proscriptions against alcohol and 
drugs need not occur while the person is serving in the capacity of a 
signal employee in order to be considered. For instance, an employee 
who violated Sec.  219.101 while working as a conductor and then sought 
signal employee certification six months later (under the provision 
described below) would not be eligible for certification. The same is 
true under part 240--an employee who violates Sec.  219.101 while 
working as a brakeman and then seeks locomotive engineer certification 
six months later would not be eligible for certification at that time. 
The responsibility of the railroad would therefore not be limited to 
periodic recertification. This proposed rule would require a review of 
certification status for any conduct in violation of Sec.  219.101 or 
Sec.  219.102.
    The proposed rule would require a determination of ineligibility 
for a period of 9 months for an initial violation of Sec.  219.101. 
This would parallel the 9-month ineligibility period in Sec. Sec.  
240.119(c)(4)(iii) and 242.115(e)(4)(iii).
    Specifying a period of ineligibility serves the interest of 
deterrence while giving further encouragement to deal with the problem 
before it is detected by management. In order to preserve and encourage 
referrals, the nine-month period could only be waived in the case of a 
qualifying referral (see Sec.  219.1001). FRA believes that this 
distinction in treatment, which is also found in part 242, is warranted 
as a strong inducement to participation because referral programs help 
identify troubled employees before those employees get into accidents 
and incidents.
    In the case of a second violation of Sec.  219.101, the signal 
employee would be ineligible for a period of five years. Given railroad 
employment practices and commitment to alcohol/drug compliance, it is 
likely that any individual so situated may also be permanently 
dismissed from employment. However, it would be important that the 
employing railroad follow through and revoke the certificate under this 
proposed rule, so the signal employee could not go to work for another 
railroad (or railroad contractor) within the five-year period using the 
unexpired certificate issued by the first railroad as the basis for 
certification. These proposed sanctions

[[Page 35648]]

mirror the sanctions in Sec. Sec.  240.119 and 242.115.
    Under this proposed rule, one violation of Sec.  219.102 within the 
5-year window would require only temporary suspension and the minimum 
response described in Sec.  246.115(e) (referral for evaluation, 
treatment as necessary, negative return-to-duty test, and appropriate 
follow-up). This parallels the approach taken in parts 240 and 242 and 
reflects FRA's intent to not undercut the therapeutic approach to drug 
abuse employed by many railroads. This approach permits first-time 
positive drug tests to be handled in a non-punitive manner that 
concentrates on remediation of any underlying substance abuse problem 
and avoids the adversarial process associated with investigations, 
grievances, and arbitrations under the Railway Labor Act and collective 
bargaining agreements. A second violation of Sec.  219.102 would 
subject the employee to a mandatory two-year period of ineligibility. A 
third violation within five years would lead to a five-year period of 
ineligibility.
    This proposed rule also addresses violations of Sec. Sec.  219.101 
and 219.102 in combination. A person violating Sec.  219.101 after a 
prior Sec.  219.102 violation would be ineligible for three years; and 
the same would be true for the reverse sequence. This mirrors the 
ineligibility period for locomotive engineers and conductors who have 
one Sec.  219.101 violation and one Sec.  219.102 violation. See 49 CFR 
240.119(e)(4)(ii) and 242.115(e)(4)(ii).
    Refusals to participate in chemical tests would be treated as if 
the test were positive. A refusal to provide a breath or body fluid 
sample for testing under the requirements of 49 CFR part 219 when 
instructed to do so by a railroad representative would be treated, for 
purposes of ineligibility under this section, in the same manner as a 
violation of: (1) Sec.  219.101, in the case of a refusal to provide a 
breath sample for alcohol testing, or a blood specimen for mandatory 
post-accident toxicological testing; or (2) Sec.  219.102, in the case 
of a refusal to provide a body fluid specimen for drug testing.
    Interested parties should, however, note that 49 CFR part 40, 
subpart I, discusses medical conditions under which an individual's 
failure to provide a sufficient sample would not be deemed a refusal. 
In addition, subpart G of FRA's alcohol and drug regulations excuses 
employees from compliance with the requirement to participate in random 
drug and alcohol testing if the employee can substantiate a medical 
emergency involving the employee or an immediate family member. See 49 
CFR 219.617.
    If an employee covered by 49 CFR part 219 refuses to provide a 
breath or body fluid specimen or specimens when required to by a 
railroad pursuant to a mandatory provision of 49 CFR part 219, then the 
railroad (apart from any action it takes under part 246) would be 
required to remove that employee from regulated service and disqualify 
the employee from working in regulated service for nine months. See 49 
CFR 219.104 and 219.107; see also, 49 CFR part 219, subpart H, and 49 
CFR 40.191 and 40.261. The employee would also be prohibited by Sec.  
246.213(c) from working as a certified signal employee for any other 
railroad during this 9-month period.
    Paragraph (e) prescribes the conditions under which employees may 
be certified or recertified after a determination that the 
certification should be denied, suspended, or revoked, due to a 
violation of Sec.  219.101 or Sec.  219.102 of FRA's alcohol/drug 
regulations. These conditions are derived from the conditions in 
Sec. Sec.  240.119(d) and 242.115(f) and closely parallel the return-
to-duty provisions of the alcohol/drug rule. The proposed regulation 
would not require compensation of the employee for the time spent in 
this testing, which is a condition precedent to retention of the 
certificate; but the issue of compensation would ultimately be resolved 
by reference to the collective bargaining agreement or other terms and 
conditions of employment under the Railway Labor Act. Moreover, the 
railroad that intends to withdraw its conditional certification would 
be required to afford the signal employee the hearing procedures 
provided by Sec.  246.307 if the signal employee does not waive their 
right to the hearing.
    Paragraph (f) would ensure that a signal employee, like any other 
covered employee, can self-refer for treatment under the alcohol/drug 
rule (49 CFR 219.1003) before being detected in violation of alcohol/
drug prohibitions and would be entitled to confidential handling of 
that referral and subsequent treatment. This means that a railroad 
would not normally receive notice from the DAC of any substance abuse 
disorder identified as a result of a voluntary self-referral under 49 
CFR 219.1003. However, paragraph (f) would also require that the 
railroad policy provide that confidentiality is waived if the signal 
employee at any time refuses to cooperate in a recommended course of 
counseling or treatment, to the extent that the railroad must receive 
notice that the employee has an active substance abuse disorder so that 
appropriate certificate action can be taken. The effect of this 
proposed provision is that the certification status of a signal 
employee who seeks help and cooperates in treatment would not be 
affected, unless the signal employee fails to follow through.
Section 246.117 Vision Acuity
    This proposed section, derived from 49 CFR 240.121, 240.207, and 
242.117, contains the requirements for vision acuity testing that a 
railroad would have to incorporate in its signal employee certification 
program. This section differs from its analogous sections in 49 CFR 
parts 240 and 242 in that 40 CFR parts 240 and 242 address the 
requirements of vision and hearing acuity in the same section. However, 
FRA determined that for this proposed rule, it could more clearly 
present these requirements if they are in two separate sections: one 
section for vision acuity (Sec.  246.117) and one section for hearing 
acuity (Sec.  246.118).
    Paragraph (c) of this section contains the general vision standards 
that a person would be required to satisfy in order to be certified as 
a signal employee unless they are determined to have sufficient vision 
acuity under paragraph (d) of this section. The standards in paragraph 
(c) mirror the vision acuity standards for locomotive engineers and 
conductors in 49 CFR parts 240 and 242. FRA is proposing that certified 
signal employees should have to satisfy certain vision standards, with 
the ability to distinguish between colors being particularly important. 
However, FRA requests comments on whether vision acuity standards for 
certified signal employees are necessary, and if so, whether they 
should be as strict as the standards for locomotive engineers and 
conductors.
    Although some individuals may not be able to meet the threshold 
acuity levels in paragraph (c) of this section, they may be able to 
compensate in other ways that will permit them to function at an 
appropriately safe level despite their physical limitations. Paragraph 
(d) of this section permits a railroad to have procedures whereby 
doctors can evaluate such individuals and make discrete determinations 
about each person's ability to compensate for their physical 
limitations. If the railroad's medical examiner concludes that an 
individual has compensated for their limitations and could safely serve 
as a certified signal employee, the railroad could certify that person 
under this proposed regulation if the railroad obtains the medical 
examiner's professional medical opinion to that

[[Page 35649]]

effect. If necessary, medical examiners could condition their opinion 
on certain circumstances or restrictions, such as the use of corrective 
lens.
    Paragraph (e) of this section describes what documents the railroad 
would be required to keep on file with respect to vision acuity 
testing. Railroads would be required to retain these records for 
individuals who the railroad certifies as signal employees, as well as 
those individuals for whom the railroad denies certification. Paragraph 
(g) of this section addresses the issue of vision deterioration. Once 
certified signal employees become aware that their vision has 
deteriorated, they must notify the railroad before performing any 
subsequent service as a certified signal employee. FRA presumes that 
certified signal employees would most likely become aware of 
deterioration in their vision either through their own personal 
observation or through examination by a medical professional. Should 
this occur, before a certified signal employee can return to service, 
they must be reexamined. If upon reexamination, the railroad's medical 
examiner concludes that the certified signal employee still satisfies 
the vision acuity standards in this part, the certified signal employee 
would be allowed to return to service. However, if the medical examiner 
concludes that the certified signal employee no longer satisfies these 
requirements, the railroad must deny the person's certification in 
accordance with Sec.  246.301, regardless of how much time remains 
before the signal employee's current certificate expires. Certified 
signal employees should note that willful noncompliance with the 
notification requirement in this paragraph could result in enforcement 
action.
Section 246.118 Hearing Acuity
    This proposed section, derived from 49 CFR 240.121, 240.207, and 
242.117, contains the requirements for hearing acuity testing that a 
railroad would be required to incorporate in its signal employee 
program.
    Paragraph (c) of this section contains the general hearing 
standards that a person must satisfy in order to be certified as a 
signal employee unless they are determined to have sufficient hearing 
acuity under paragraph (d) of this section. The standards in paragraph 
(c) mirror the hearing acuity standards for locomotive engineers and 
conductors in 49 CFR parts 240 and 242. FRA is considering whether 
hearing acuity standards are necessary for certified signal employees 
and if so, whether they need to be as stringent as the standards for 
engineers and conductors. FRA proposes that certified signal employees 
should have to satisfy certain hearing standards and it seems logical 
for these standards to be consistent with the hearing standards for 
engineers and conductors. However, FRA requests comments on whether 
hearing acuity standards for certified signal employees are necessary, 
and if so, whether they should be as strict as the standards for 
locomotive engineers and conductors.
    Although some individuals may not be able to meet the threshold 
acuity levels in paragraph (c) of this section, they may be able to 
compensate in other ways that will permit them to function at an 
appropriately safe level despite their physical limitations. Paragraph 
(d) of this section would permit a railroad to have procedures whereby 
doctors can evaluate such individuals and make discrete determinations 
about each person's ability to compensate for their physical 
limitations. If the railroad's medical examiner concludes that an 
individual has compensated for their limitations and could safely serve 
as a certified signal employee, the railroad could certify that person 
under this regulation once the railroad possesses the medical 
examiner's professional medical opinion to that effect. If necessary, 
medical examiners could condition their opinion on certain 
circumstances or restrictions, such as the use of a hearing aid.
    Paragraph (e) of this section describes what documents the railroad 
would be required to keep on file with respect to hearing acuity 
testing. Railroads would be required to retain these records for both 
individuals who the railroad certifies as signal employees and those 
individuals for whom the railroad denies certification. Paragraph (g) 
of this section addresses the issue of hearing deterioration. Once 
certified signal employees become aware that their hearing has 
deteriorated, they would be required to notify the railroad before 
performing any subsequent service as a certified signal employee. FRA 
presumes certified signal employees would most likely become aware of 
deterioration in their hearing either through their own personal 
observation or through examination by a medical professional. Before a 
certified signal employee could return to service, they would have to 
be reexamined. If upon reexamination, the railroad's medical examiner 
concludes that the certified signal employee still satisfies the 
hearing acuity standards in this part, the certified signal employee 
could return to service. However, if the medical examiner concludes 
that the certified signal employee no longer satisfies these 
requirements, the railroad would be required to deny the person's 
certification in accordance with Sec.  246.301, regardless of how much 
time remains before the signal employee's current certificate expires. 
Certified signal employees should note that willful noncompliance with 
the notification requirement in this paragraph could result in 
enforcement action.
Section 246.119 Training Requirements
    This proposed section, derived from 49 CFR 240.123, 240.213, and 
242.119, would require railroads to provide initial and periodic 
training to signal employees. Such training is necessary to ensure 
certified signal employees have the knowledge, skills, and abilities 
necessary to safely perform all of the safety-related duties mandated 
by Federal law, regulations, and orders.
    Paragraph (b) of this section would require railroads to address in 
their certification programs whether the railroad will accept 
responsibility for training persons who have not been previously 
certified as signal employees and thus obtain authority to provide 
initial signal employee certification or whether the railroad will only 
recertify signal employees who were previously certified by other 
railroads. If a railroad accepts responsibility for training persons 
who have not been previously certified as signal employees, paragraph 
(c) of this section would require the railroad to state in its 
certification program whether it will conduct the training or whether 
the railroad will employ a training program that has been adopted and 
ratified by the railroad, but will be conducted by another entity on 
its behalf.
    Under this section, railroads would have latitude to design and 
develop the training and delivery methods they will employ; but 
paragraphs (d), (e), and (f) of this section contain proposed 
requirements for railroads that elect to train persons who have not 
been previously certified as signal employees. Pursuant to paragraph 
(d), a railroad that makes this election would be required to determine 
how training will be structured, developed, and delivered, including an 
appropriate combination of classroom, simulator, computer-based, 
correspondence, practical demonstration, on-the-job training, or other 
formal training. Paragraph (d)(3) would also require railroads to 
review and modify their training programs whenever new safety-related 
railroad laws, regulations, orders, and procedures are issued, as well 
as whenever new signal systems,

[[Page 35650]]

technologies, software, or equipment are introduced into the workplace.
    Paragraph (f) of this section provides the requirements a person 
not previously certified as a signal employee would have to satisfy in 
order to become a certified signal employee. Paragraph (f)(2) states 
the person must demonstrate on-the-job proficiency by successfully 
completing the tasks, and using the signal systems and technology 
necessary, to be a certified signal employee on the railroad. A 
certification candidate may perform these tasks under the direct onsite 
supervision of a certified signal employee who has at least one year of 
experience as a signal employee. FRA requests comments, including any 
supporting data, on whether this ``one year of experience'' requirement 
for certified signal employees supervising certification candidates is 
sufficient. The final proposed requirement, found in paragraph (f)(3), 
is that the previously uncertified person must demonstrate their 
knowledge of the railroad's signal systems, technologies, software, and 
equipment deployed on the railroad's territory. If the railroad uses a 
written test to fulfill this requirement, paragraph (f)(3) would 
require the railroad to provide the person(s) being tested with an 
opportunity to consult with a qualified instructor to explain a test 
question. This requirement is equivalent to 49 CFR 242.119(f) and is 
included so that certification candidates being tested can obtain 
clarification of test questions from someone who possesses knowledge of 
the signal systems, technologies, software and equipment deployed in 
the relevant territory.
    Paragraph (g) of this section would require railroads to retain 
written documentation of the listed determinations. Paragraph (g)(1) 
would only apply to people who have not been previously certified as 
signal employees, whereas paragraph (g)(2) would apply to all persons 
seeking signal employee certification.
    Paragraph (h) would require all railroads, regardless of their 
election in paragraph (b) of this section, to provide comprehensive 
training on the installation, operation, testing, maintenance, and 
repair of the signal systems and related technology deployed on their 
territory. (This training must include training on both signal software 
and signal equipment.) In order to implement this requirement, 
paragraph (h) requires railroads to address in their certification 
program how such training will be provided and how the railroad will 
ensure that each certified signal employee receives this comprehensive 
training before the employee is required to install, operate, test, 
maintain, or repair any signal system or related technology deployed on 
the railroad's territory.
    Paragraph (h)(3) would also require railroads to discuss in their 
programs the maximum amount of time that a certified signal employee 
can be absent from performing various types of safety-sensitive work on 
signal systems before refresher training will be required. This 
provision is intended to require railroads to address situations in 
which a certified signal employee may have been working on signal 
system installations for an extended period and was not involved in the 
intricacies of maintenance and repair of those systems during that 
time. This time period cannot exceed twelve months. However, railroads 
would be allowed to choose a shorter time period if they desire.
    Paragraph (j) of this section would require each railroad to 
provide for the continuing education of their certified signal 
employees to ensure each certified signal employee maintains the 
necessary knowledge and skills concerning compliance with all 
applicable Federal laws, regulations, and orders; compliance with all 
applicable railroad signal system safety and operating rules; and 
compliance with all applicable standards, procedures, and instructions 
for the installation, operation, testing, maintenance, troubleshooting, 
and repair of new and existing signal systems and new and existing 
signal-related technology deployed on its territory. Given the formal 
annual review and analysis of railroad certification programs that each 
Class I railroad, commuter railroad, and Class II railroad would be 
required by Sec.  246.215 to conduct, FRA anticipates that these 
railroads will address issues identified during the annual review and 
analysis of their certification programs in their continuing education 
programs. Thus, FRA expects the annual review and analysis required by 
Sec.  246.215 will help improve the overall quality of the railroads' 
training programs.
    Paragraph (k) is intended to ensure that each certified signal 
employee receives comprehensive training on the installation, 
operation, testing, maintenance, and repair of new signal systems 
(including software and equipment) and new signal-related technology 
deployed on the railroad's territory before the employee is required to 
install, operate, test, maintain, or repair any such system or signal-
related technology.
Section 246.121 Knowledge Testing
    This proposed section, derived from 49 CFR 240.125, 240.209, and 
242.121, would require railroads to provide for the initial and 
periodic testing of certified signal employees. Paragraph (b) of this 
section outlines the general requirements for such testing. This 
testing will have to effectively examine and measure a signal 
employee's knowledge of: (a) all applicable Federal railroad safety 
laws, regulations, and orders governing signal systems and related 
technology, (b) all applicable railroad safety and operating rules, and 
(c) all applicable railroad standards, procedures, and instructions for 
the installation, operation, testing, maintenance, troubleshooting, and 
repair of the railroad's signal systems and related technology.
    Under this section, railroads would have discretion to design the 
tests that will be employed; for most railroads that would entail some 
modification of their existing ``book of rules'' examination to include 
new subject areas. This section does not specify the minimum number of 
questions to be asked or the passing score to be obtained. However, it 
would require that the test be conducted without open reference books 
unless use of such materials is part of a test objective. Also, this 
section would require that knowledge testing include a practical 
demonstration component, with other test components in written or 
electronic form. Since the testing procedures and requirements selected 
by the railroad would be submitted to FRA for approval, FRA expects the 
railroad would describe how it will exercise its discretion to ensure 
certified signal employees on its territory demonstrate their knowledge 
concerning the safe discharge of their responsibilities. FRA would also 
monitor the exercise of discretion being afforded to railroads by this 
section.
    Paragraph (c) of this section mirrors 49 CFR 242.121(e) and would 
require the railroad to provide the person(s) being testing with an 
opportunity to consult with a qualified instructor to explain one or 
more test questions.
    Paragraph (d) of this section states that if a person fails a test, 
the railroad cannot allow that person to serve as a certified signal 
employee until they achieve a passing score on reexamination. The 
railroad would decide how much time, if any, mut pass after a test 
failure before a certification candidate can be reexamined. 
Furthermore, the railroad would decide what additional training, if 
any, a candidate would receive after a test

[[Page 35651]]

failure. The railroad would also decide whether there should be a limit 
on the number of times a candidate could retake a test, and if so, the 
number of test retakes the railroad will allow.
Section 246.123 Monitoring Operational Performance
    This proposed section, derived from 49 CFR 240.129 and 242.123, 
contains proposed requirements for conducting unannounced compliance 
tests. Paragraph (a) of this section would require each railroad to 
describe in its certification program how it will monitor the conduct 
of its certified signal employees by performing unannounced compliance 
tests on the railroad's signal standards, test procedures, and Federal 
regulations concerning signal systems, as well as monitoring the 
performance of signal-related tasks. Paragraph (a)(3) would require 
railroads to indicate the types of actions they will take if they 
identify deficiencies in a certified signal employee's performance 
during an unannounced compliance test. FRA believes it is up to each 
railroad to decide the appropriate action to take in light of various 
factors, including collective bargaining agreements. Further, FRA 
believes that the vast majority of railroads have adequate policies to 
deal with deficiencies in a signal employee's performance and have 
handled them appropriately for many years.
    To avoid restricting the options available to the railroads and 
employee representatives to develop processes for handling test 
failures, FRA designed this regulation to be as flexible as possible. 
There are a variety of actions and approaches that a railroad could 
take, such as developing and providing formal remedial training for 
certified signal employees who fail tests or have deficiencies in their 
performance. Railroads could also implement formal procedures whereby 
certified signal employees are given the opportunity to explain, in 
writing, the factors that they believe caused their test failure or 
performance deficiency. These explanations could help railroads 
identify areas of training on which to focus or perhaps discover that 
the reason for the failure/deficiency was due to something other than a 
lack of skills. FRA believes there are numerous other approaches that 
could be considered and evaluated by railroads and their certified 
signal employees. FRA does not want to stifle a railroad's ability to 
adopt an approach that is best for its organization.
    Paragraph (a)(4) would require railroads to describe how they will 
monitor the performance of signal-related tasks by their certified 
signal employees. For example, railroad monitoring could include 
unaccompanied, post-installation inspections of signal cut-overs 
(conducted within three days of the installation) to verify that the 
certified signal employee properly installed and tested the signal 
system in accordance with the railroad's signal standards. Paragraph 
(b) of this section provides proposed requirements for these 
unannounced compliance tests, including signal system tests that must 
be performed and who would be allowed to conduct the tests. Paragraph 
(b)(3) specifies that each railroad would be required to give each of 
its certified signal employees at least one unannounced compliance test 
each calendar year, except as provided in paragraph (d) of this 
section. FRA recognizes that before these unannounced compliance tests 
can be performed in conformance with this section, a railroad's 
certification program must first be approved by FRA. Thus, at the 
latest, FRA expects railroads to perform these unannounced compliance 
tests on all of their certified signal employees during the calendar 
year immediately following the year their certification program is 
first approved by FRA. For example, if FRA approves one railroad's 
program in January 2025 and another railroad's program in December 
2025, both of these railroads would be required to perform unannounced 
compliance tests on all of their certified signal employees starting in 
2026. While FRA would encourage these railroads to commence the 
unannounced tests after their programs are approved in 2025, FRA 
recognizes it may not be practical to perform unannounced tests on all 
of their certified signal employees by the end of 2025, especially for 
the railroad whose program was not approved until December 2025.
    Paragraph (c) of this section reflects FRA's recognition that some 
certified signal employees may not be performing tasks that require 
certification. Therefore, a railroad would not be required to provide 
those certified signal employees with an annual, unannounced compliance 
test. For example, a certified signal employee may be on furlough, in 
military service, off with an extended illness, or working in another 
craft. In situations like these where a certified signal employee is 
not performing tasks that require certification, the railroad would not 
have to give an unannounced compliance test. However, when the 
certified signal employee resumes work on signal systems that requires 
certification, they would have to be given an unannounced compliance 
test within 30 days. Moreover, the railroad would be required to retain 
a written record documenting the dates on which the certified signal 
employee stopped performing tasks requiring certification, the date the 
certified signal employee resumed performing signal system work 
requiring certification, and the date the certified signal employee 
received their unannounced compliance test following their resumption 
of signal system work requiring certification.
Section 246.124 Mentoring
    This proposed section would require railroads to include, in their 
certification programs, procedures for mentoring signal employees who 
have not been certified by the railroad (such as newly-hired signal 
employees who were certified by their previous employers). By allowing 
for the mentoring of these signal employees, railroads can allow 
uncertified signal employees to perform signal work under the direct 
oversight and supervision of a mentor until these signal employees are 
certified by the railroad.
    After a railroad's certification program has been approved by FRA, 
paragraph (b) of this section would require that the railroad assign 
either a signal employee that it has certified pursuant to this part or 
a signal employee who is working under the direct observation and 
supervision of a mentor to perform work on a signal system or signal-
related technology that requires certification. Therefore, if the 
railroad assigns a signal employee that it has not certified to perform 
work on a signal system or signal-related technology that requires 
certification, paragraph (b) would require the railroad to assign a 
mentor who can directly oversee and supervise the work performed by the 
signal employee.
    Paragraph (c) of this section would only apply to railroads who 
elect to classify their certified signal employees into more than one 
occupational category or subcategory, in accordance with Sec.  246.107. 
These railroads would be required by paragraph (c) to address in their 
certification programs how mentoring will be provided for certified 
signal employees who move into a different occupational category or 
subcategory of certified signal service.
    Paragraph (e) of this section reflects FRA's intent that mentors 
must be held accountable for the work performed by the signal employees 
who are working under their direct oversight and supervision. 
Therefore, paragraph (e)

[[Page 35652]]

would require railroads to address in their certification programs how 
they will hold mentors accountable for the work performed by signal 
employees who are working under their direct oversight and supervision.
Section 246.125 Certification Determinations Made by Other Railroads
    This section of the proposed rule, derived from 49 CFR 240.225 and 
242.125, contains requirements that would apply when a certified or 
previously certified signal employee is about to begin work for a 
different railroad. This section would allow a railroad to rely on 
determinations made by another railroad concerning a person's 
certification.
    As noted previously in the discussion above related to Sec.  
246.124, railroads would be required to provide mentoring for signal 
employees with some signal system work experience who have not been 
certified by the railroad. However, this section would also require 
railroads to address in their certification programs how they will 
administer training for previously uncertified signal employees with 
extensive signal experience or previously certified signal employees 
who have had their certification expire. In both scenarios, FRA would 
allow the railroad to reduce the on-the-job training that might 
otherwise be required if these signal employees were treated as having 
no signal system work experience. However, if a railroad's 
certification program fails to specify how the railroad will train a 
previously certified signal employee hired from another railroad, all 
signal employees hired by that railroad would be required to take the 
hiring railroad's entire training program (regardless of the signal 
employee's prior certification status).

Subpart C--Administration of the Certification Program

Section 246.201 Time Limitations for Certification
    This proposed section, derived from 49 CFR 240.217 and 242.201, 
contains various time constraints that preclude railroads from relying 
on stale information when evaluating a candidate for certification or 
recertification. For example, when making a determination of 
eligibility based on prior safety conduct on a different railroad 
pursuant to Sec.  246.113, paragraph (a)(1) would prohibit a railroad 
from relying on information provided more than one year before the 
railroad's certification decision. However, paragraph (b) goes on to 
explain that the time constraints listed in paragraph (a) would not 
apply to railroads who are making certification or recertification 
decisions based on the eligibility determination that have already been 
made by another railroad in accordance with Sec.  246.125.
    Paragraph (c) would prohibit a railroad from certifying a person as 
a signal employee for more than three years except for those 
individuals who are designated as certified signal employees under 
Sec.  246.105(c) or (d). When a railroad designates a person as a 
certified signal employee under Sec.  246.105(c) or (d), that 
certification can last for three years after the date that FRA 
initially approves the railroad's certification program. This could, 
however, lead to situations where a certificate could be valid for more 
than three years. For example, if a railroad designates a person as a 
certified signal employee in January 2025, but FRA does not approve the 
railroad's certification program until January 2026, the signal 
employee's certification could last until January 2029 (four years in 
total). However, any subsequent recertifications for that signal 
employee could only last for three years. In other words, if the signal 
employee in the previous example got recertified in January 2029, that 
certificate would expire no later than January 2032.
    Paragraph (d) would require railroads to issue certificates that 
comply with Sec.  246.207 to their certified signal employees within 30 
days from the date of the railroad's decision to certify or recertify 
that person.
Section 246.203 Retaining Information Supporting Determinations
    This proposed section, derived from 49 CFR 240.215 and 242.203, 
contains recordkeeping requirements for railroads that employ certified 
signal employees. Paragraph (b) lists the documents that railroads 
would be required to retain for each of their certified signal 
employees and certification candidates, while paragraph (e) would 
require railroads to retain these records for six (6) years from the 
date of the certification, recertification, denial, or revocation 
decision. Paragraph (e) would also require railroads to make these 
records available to FRA representatives, upon request, in a timely 
manner.
    Paragraph (f) would prohibit railroads and individuals from 
falsifying records that railroads are required to retain pursuant to 
this section. Paragraph (g) contains minimum standards for electronic 
recordkeeping with which railroads would be required to comply to 
maintain electronic versions of the required records. These minimum 
standards for electronic recordkeeping are virtually identical to the 
electronic recordkeeping standards contained in 49 CFR 242.203.
Section 246.205 List of Certified Signal Employees and Recordkeeping
    This proposed section, derived from 49 CFR 240.221 and 242.205, 
would require a railroad to maintain a list of its certified signal 
employees. Paragraph (b) of this section would also require railroads 
to update their lists of certified signal employees at least annually 
and to make its list of certified signal employees available, upon 
request, to FRA representatives in a timely manner.
    Paragraph (c) contains minimum standards for electronic 
recordkeeping with which railroads would be required to comply, in 
order to maintain an electronic version of the list of certified signal 
employees required by this section. These minimum standards are similar 
to the electronic recordkeeping standards contained in 49 CFR 242.205.
    Paragraph (d) would prohibit railroads and individuals from 
falsifying the list of certified signal employees that railroads are 
required to maintain pursuant to this section.
Section 246.207 Certificate Requirements
    This proposed section contains proposed requirements for the 
certificate that each certified signal employee would be required to 
carry. The requirements in paragraphs (a)-(e) of this section, which 
pertain to the proposed minimum content for certificates and 
authorization of the person who would be designated to sign the 
certificates, are derived from 49 CFR 240.223 and 242.207.
    Paragraph (a) of this section specifies that railroads have the 
option of issuing certificates electronically or in paper form. 
Paragraph (a)(1) would require that the signal employee certificate 
identify the railroad issuing the certificate. Therefore, a certified 
signal employee who works for more than one railroad would be required 
to have a separate certificate for each railroad with whom the signal 
employee is certified. For railroads who choose to classify their 
certified signal employees into occupational categories or 
subcategories, pursuant to Sec.  246.107, paragraph (a)(2) would 
require the railroad to indicate the specific signal employee 
category(ies) or subcategory(ies) for which the person has been 
certified.
    Paragraph (a)(7) would require the certificate to be signed by an 
individual who has been designated by the railroad

[[Page 35653]]

as an authorized signatory of signal employee certificates, as 
described in paragraph (c) of this section. Electronic signatures are 
permitted under this proposed rule. In addition, paragraph (e) of this 
section would prohibit railroads and individuals from falsifying 
certificates.
    Paragraphs (f) and (i) are derived from 49 CFR 240.305 and 242.209. 
These paragraphs would require signal employees to have their 
certificates in their possession while on duty, display their 
certificates when requested by an FRA representative, State inspectors 
\21\ authorized under 49 CFR part 212, or certain railroad officers, 
and to notify a railroad if they are called to serve as a signal 
employee in a service that would cause the employee to exceed their 
certificate limits.
---------------------------------------------------------------------------

    \21\ Although State inspectors authorized under 49 CFR part 212 
could be considered FRA representatives, they are mentioned 
separately in this section to ensure there is no dispute regarding 
their authority.
---------------------------------------------------------------------------

    Paragraph (g), derived from 49 CFR 240.301 and 242.211(a), would 
require a railroad to promptly replace a certified signal employee's 
certificate at no cost to the employee, if the certificate is lost, 
stolen, mutilated, or becomes unreadable. However, unlike Sec.  
242.211(b), this section does not contain detailed requirements for 
temporary replacement certificates. Temporary replacement certificates 
generally contain most of the information provided on official 
certificates. Therefore, it does not appear to be especially burdensome 
for railroads to issue temporary certificates to replace certificates 
that have been lost, stolen, mutilated, or become unreadable. 
Nonetheless, by refraining from proposing a formal process for the 
issuance of temporary replacement certificates, FRA would allow 
railroads to decide how and when to issue temporary replacement 
certificates to signal employees. FRA is soliciting comment on this 
proposed approach.
Section 246.213 Multiple Certifications \22\
---------------------------------------------------------------------------

    \22\ To the extent possible, FRA has attempted to match the 
section numbers in this proposed rule to analogous sections in the 
conductor certification rule (49 CFR part 242). Since 49 CFR 242.213 
addresses multiple certification issues, FRA is proposing to use 
section number 246.213 for the multiple certification section in 
this proposed rule instead of the next sequential section number, 
which would be 246.209.
---------------------------------------------------------------------------

    This proposed section, derived from 49 CFR 240.308 and 242.213, 
establishes how railroads would handle certified signal employees who 
are also certified in another railroad craft. FRA recognizes that while 
it is fairly common for an individual to work as both an engineer and a 
conductor, it is less common for a signal employee to also work in 
another craft that requires certification. However, because situations 
may arise where a certified signal employee is also certified to work 
in another craft, such as a locomotive engineer or conductor, FRA would 
like to address how railroads would be required to handle such 
situations.
    Paragraph (a) of this section would allow a certified signal 
employee to become certified in one or more of the other railroad 
crafts that require certification such as locomotive engineer or 
conductor. If a person is certified in multiple crafts by the same 
railroad, paragraph (b) would require the railroad to coordinate the 
expiration dates of those certificates, to the extent possible. While 
railroads are not required to have all of a person's certificates 
expire at the same time, it would be beneficial from the standpoint of 
administrating the certification programs if railroads followed this 
practice. Thus, FRA encourages railroads to coordinate these expiration 
dates when possible.
    Paragraph (c) of this section would pertain to signal employees who 
hold signal employee certificates issued by multiple railroads or who 
are seeking to become certified signal employees for multiple 
railroads. Paragraph (c)(1) would require the signal employee to 
immediately notify their employer(s) and all railroads with whom the 
signal employee holds a signal employee certificate, if a railroad 
denies, suspends, or revokes the signal employee's certification or 
recertification. Certified signal employees should note that willful 
noncompliance with the notification requirements in this paragraph will 
likely result in enforcement action including, but not limited to, 
disqualification from safety-sensitive service.
    Paragraph (c)(2) would prohibit an individual from working as a 
certified signal employee for any railroad while their signal employee 
certification is suspended or revoked by a railroad, except as provided 
for in Sec.  246.124(d). For example, if an individual is a certified 
signal employee with Railroad ABC and Railroad DEF, and ABC suspends 
and/or revokes the individual's certificate, that individual would not 
be able to work as a certified signal employee for DEF, or any other 
railroad, during the period of suspension and/or revocation. (Section 
246.124(d) would, however, allow the individual to perform work on 
signal systems, if allowed by a railroad's certification program, under 
the direct oversight and supervision of a mentor.)
    Paragraph (c)(3) states that if a person has their signal employee 
certification suspended or revoked by one railroad and that person 
attempts to become a certified signal employee with another railroad 
during the certificate suspension or revocation period, they must 
notify the railroad from whom they are seeking certification that their 
signal employee certificate has been suspended or revoked. Therefore, 
if a person is seeking signal employee certification with Railroad XYX 
when their signal employee certificate is suspended or revoked by 
Railroad ABC, they must notify XYZ of their current suspended or 
revoked certification status.
    Paragraphs (d), (e), and (f) of this section address how the 
revocation of a person's signal employee certification would affect 
that person's ability to work in another railroad craft requiring 
certification and vice versa. If a person's signal employee 
certification is revoked because of a drug or alcohol violation, as 
described in Sec.  246.303(e)(11), then that person would be ineligible 
to work in any craft requiring certification, such as a locomotive 
engineer or conductor, for any railroad during the period of 
revocation. Such person would also be prohibited from obtaining 
certification in any of those crafts from any railroad while their 
signal employee certification is revoked. Likewise, if a person's non-
signal employee certification, such as locomotive engineer or 
conductor, is revoked because of an alcohol or drug violation, as 
described in Sec.  219.101 of this chapter, that person will be 
ineligible to work as a certified signal employee or obtain a signal 
employee certificate from any railroad during the revocation period. In 
contrast, if a signal employee's certification is revoked for a 
violation that does not involve alcohol or drugs, as described in 
Sec. Sec.  246.303(e)(1) through (10), that person would still be able 
to work in any other railroad craft requiring certification, such as a 
locomotive engineer or conductor, during the period of revocation, as 
long as the person is certified in that craft. Likewise, a person could 
still work as a certified signal employee if their certificate for 
another railroad craft, such as locomotive engineer or conductor, was 
revoked due to a violation that did not involve drugs or alcohol.
    FRA's reasoning for this line of delineation between revocable 
events that involve alcohol and drugs and those that do not is rooted 
in railroad safety. If someone shows up to work as

[[Page 35654]]

a certified signal employee under the influence of alcohol or drugs, it 
stands to reason that they could likely show up to work for another 
craft, such as a locomotive engineer or conductor, under the influence 
as well. Thus, it makes sense for an individual's alcohol or drug 
violations as a certified signal employee to impact their eligibility 
to work in another craft that requires certification and vice versa. 
With respect to revocable events that do not involve alcohol or drugs, 
FRA finds that the tasks performed by a certified signal employee are 
so inherently different from the tasks performed in another certified 
craft, such as an operating crew member, that it does not automatically 
follow that a person's revocable event as a certified signal employee 
indicates they are more likely to also have a revocable event while 
performing in another craft. Thus, FRA is taking the position that the 
revocation of a signal employee certificate which does not involve 
alcohol or drugs should not affect that person's eligibility to work in 
another railroad craft requiring certification, and vice versa. 
However, FRA solicits comments on this issue.
    Paragraphs (f) and (g) would prohibit a railroad from denying or 
revoking a signal employee's certification just because their attempt 
at certification or recertification in another railroad craft, such as 
locomotive engineer or conductor, was denied and vice versa. Paragraph 
(h) would allow a railroad to issue a single certificate to an 
individual who is certified in multiple railroad crafts that require 
certification. If a railroad exercises this option, it must ensure that 
the single certificate contains all of the components required for that 
craft. Alternatively, railroads are also welcome to issue multiple 
certificates to an individual who is certified in multiple crafts (one 
certificate for each craft). Thus, if a person is certified as both a 
signal employee and conductor, the railroad could issue the person a 
single certificate for both crafts or it could issue one signal 
employee certificate and one conductor certificate.
    Finally, paragraph (i) of this section denotes that if a person is 
certified in multiple crafts and they are involved in a revocable 
event, that event can only lead to the revocation of a certificate for 
a single railroad craft. The railroad would be required to determine 
which certificate should be revoked based on the work the individual 
was performing at the time of the event. In such instances, while the 
railroad may only revoke a certificate for a single craft, that 
revocation could affect a person's eligibility to perform other crafts. 
For example, if a person who is certified as a signal employee and a 
conductor violates Sec.  246.303(e)(11) while on duty as a signal 
employee, the railroad should only revoke the person's signal employee 
certification. The person's conductor certification could not be 
revoked for the incident that occurred while the individual was on duty 
as a signal employee. However, as discussed in paragraph (d)(1) of this 
section, this person would not be able to work as a conductor while 
their signal employee certificate was revoked for this offense.
Section 246.215 Railroad Oversight Responsibilities
    This proposed section, derived from 49 CFR 240.309 and 242.215, 
would require each Class I railroad (including the National Railroad 
Passenger Corporation), each railroad providing commuter service, and 
each Class II railroad to conduct an annual review and analysis of its 
program for responding to detected instances of poor safety conduct by 
certified signal employees. FRA has formulated the information 
collection requirements of this proposed section to ensure that 
railroads collect data on signal employee safety behavior and feed that 
information into their operational monitoring efforts, thereby 
enhancing safety.
    This section would require each Class I railroad (including the 
National Railroad Passenger Corporation), railroad providing commuter 
service, and Class II railroad to have an internal auditing plan to 
keep track of events involving poor safety conduct by certified signal 
employees. For each such event, the railroad would be required to 
indicate how it responded to that event. The railroad would then be 
required to evaluate this information, together with data showing the 
results of annual testing and causation of FRA reportable train 
accident/incidents, to determine whether additional or different 
actions, if any, are needed to improve the safety performance of its 
certified signal employees. FRA would not, however, require railroads 
to furnish this data or their analysis of the data to FRA. Instead, FRA 
would require that railroads be prepared to submit such information 
when requested.
    As set forth in paragraph (i), an instance of poor safety conduct 
involving a person who is a certified signal employee and is certified 
in another railroad craft (such as a locomotive engineer or conductor) 
need only be reported once under the appropriate section of this 
chapter (e.g., under Sec.  240.309, Sec.  242.215, or under this 
section). The determination as to where to report the instance of poor 
safety conduct should be based on the work the person was performing at 
the time the conduct occurred. This determination is similar to the 
determination made under part 225, in which railroads determine whether 
an accident was caused by poor performance of what is traditionally 
considered a conductor's job function (e.g., switch handling, derail 
handling, etc.) or whether it was caused by poor performance of what is 
traditionally considered a locomotive engineer's job function (e.g., 
operation of the locomotive, braking, etc.)

Subpart D--Denial and Revocation of Certification

    This subpart parallels part 240 and part 242's approach to adverse 
decisions concerning certification (i.e., decisions to deny 
certification or recertification and revoke certification). With 
respect to denials, the approach of this proposed rule is predicated 
principally on the theory that decisions to deny certification or 
recertification will come at the conclusion of a prescribed evaluation 
process which would be conducted in accordance with the provisions set 
forth in this subpart. Thus, this proposed rule contains specific 
procedures designed to ensure that a person in jeopardy of being denied 
certification or recertification would be given a reasonable 
opportunity to examine and respond to negative information that may 
serve as the basis for being denied certification or recertification.
    When considering revocation, this proposed rule contemplates that 
decisions to revoke certification would only occur for the reasons 
specified in this subpart. Since revocation decisions by their very 
nature involve a clear potential for factual disagreement, this subpart 
is structured to ensure that such decisions would only be made after a 
certified signal employee has been afforded an opportunity for an 
investigatory hearing at which the presiding officer would determine 
whether there is sufficient evidence to establish that the signal 
employee's conduct warranted revocation of their certification.
    This subpart also provides for certificate suspension in certain 
circumstances. Certificate suspension would be employed in instances 
where there is reason to think the certificate should be revoked or 
made conditional but time is needed to resolve the situation. 
Certificate suspension would be applicable in instances where a person 
is awaiting an investigatory

[[Page 35655]]

hearing to determine whether that person violated certain provisions of 
FRA's alcohol and drug control rules, or committed a violation of 
certain signal standards, procedures, or practices, and situations in 
which the person is being evaluated or treated for an active substance 
abuse disorder.
Section 246.301 Process for Denying Certification
    This proposed section, derived from 49 CFR 240.219 and 242.401, 
establishes minimum procedures that must be offered to a certification 
candidate before a railroad denies the candidate certification or 
recertification. Paragraph (a) of this section gives a certification 
candidate a reasonable opportunity to explain or rebut adverse 
information, including written documents or records, that the railroad 
intends to use as the basis for its decision to deny certification or 
recertification.
    Paragraph (b) of this section requires that a written explanation 
of an adverse decision be `served' on a certification candidate within 
10 days of the railroad's decision. Paragraph (b) also requires that 
the basis for a railroad's denial decision address any explanation or 
rebuttal information that the certification candidate may have provided 
pursuant to paragraph (a) of this section.
    Paragraph (c) of this section prohibits a railroad from denying 
certification based on a failure to comply with a railroad test 
procedure, signal standard, or practice which constitutes a violation 
under Sec.  246.303(e)(1) through (10) if sufficient evidence exists to 
establish that an intervening cause prevented or materially impaired 
the signal employee's ability to comply with that railroad test 
procedure, signal standard, or practice. This paragraph is derived from 
the intervening cause exception for revocation in Sec.  246.307(h).
Section 246.303 Criteria for Revoking Certification
    This proposed section, derived from 49 CFR 240.117, 240.305, and 
242.403, provides the circumstances under which a signal employee may 
have their certification revoked. In addition, paragraph (a) of this 
section makes it unlawful to fail to comply with any of the railroad 
test procedures, signal standards and practices described in paragraph 
(e) of this section. Paragraph (a) is needed so that FRA can initiate 
enforcement action. For example, FRA might want to initiate enforcement 
action in the event that a railroad fails to initiate revocation action 
or a person who is not a certified signal employee violates a railroad 
test procedure, signal standard or practice described in paragraph (e) 
of this section. (Railroads should, however, note that they may not 
revoke a signal employee's certificate, including a designated signal 
employee's certificate, until they have obtained FRA approval of their 
certification programs pursuant to Sec.  246.103.)
    Paragraph (b) of this section provides that a certified signal 
employee who fails to comply with a railroad test procedure, signal 
standard or practice described in paragraph (e) will have their signal 
employee certification revoked. Paragraph (c) provides that a certified 
signal employee who is monitoring, mentoring, or instructing another 
signal employee could have their certification revoked if the certified 
signal employee fails to take appropriate action to prevent a violation 
of a railroad test procedure, signal standard or practice described in 
paragraph (e) of this section. As explained in paragraph (c), 
``appropriate action'' does not mean that a supervisor, certified 
signal employee, mentor, or instructor must prevent a violation from 
occurring at all costs, but rather the duty may be met by warning the 
signal employee, as appropriate, of a potential or foreseeable 
violation.
    Paragraph (d) provides that a certified signal employee who is 
called by a railroad to perform a duty other than that of a signal 
employee would not have their signal employee certification revoked 
based on actions taken or not taken while performing that duty. In 
general, this paragraph would apply regardless of whether the 
individual was called to perform a certified craft, such as locomotive 
engineer or conductor, or a non-certified craft. However, this 
exemption would not, however, apply to violations described in 
paragraph (e)(11) of this section. Therefore, certified signal 
employees working in other capacities that do not require 
certification, who violate certain alcohol and drug rules would have 
their signal employee certification revoked for the appropriate period 
of time pursuant to Sec.  246.115. However, if the certified signal 
employee was working in another certified craft, such as a locomotive 
engineer or conductor, at the time of the alcohol or drug violation, 
their certificate for the craft that they were performing at the time 
of the violation would be revoked as opposed to their signal employee 
certificate.
    If a certified signal employee who is also certified in another 
craft, such as locomotive engineer or conductor, violates Sec.  219.101 
while performing a craft that does not require certification, the 
railroad must select one, and only one, certificate to revoke. For 
example, if a person who is a certified signal employee and conductor 
violates Sec.  219.101 while working as a brakeman, the railroad must 
decide to revoke either their signal employee or conductor certificate, 
but it cannot revoke both certificates. Regardless of which certificate 
the railroad chooses to revoke, however, the person will be unable to 
work as a signal employee or conductor during the period of revocation. 
See Sec.  246.213(d).
    Paragraph (e) provides the eleven types of rule infractions that 
could result in certification revocation. The infractions listed in 
paragraphs (e)(1) through (11) are derived in part from the revocable 
events provided in 49 CFR 242.117(e) but have been modified to account 
for the duties and responsibilities of a certified signal employee.
    Paragraph (e)(1) refers to action(s) taken by a certified signal 
employee that interfere with the normal functioning of a highway-rail 
grade crossing warning system or signal system, if alternative means of 
protecting motorists and other crossing users have not already been 
provided. (For this purpose, railroads shall only consider violations 
of paragraph (e)(1) that result in an activation failure or false 
proceed signal.)
    Paragraph (e)(2) refers to action(s) taken by a certified signal 
employee that fail to comply with a railroad rule or procedure when 
removing one or more of the following devices and systems from service: 
(a) highway-rail or pathway grade crossing warning devices and systems; 
(b) wayside signal devices and systems; or (c) other devices or systems 
subject to this part. Similarly, paragraph (e)(3) refers to action(s) 
taken by a certified signal employee that fail to comply with a 
railroad rule or procedure when placing these devices and systems in 
service or restoring them back to service.
    Paragraph (e)(4) refers to violations involving a certified signal 
employee's failure to conduct certain inspections and tests on highway-
rail and pathway grade crossing warning devices and systems that are 
required by railroad rule, signal standard, or railroad procedures. 
These required inspections and tests would include post-installation 
and post-repair testing and inspections that are required by FRA's 
grade crossing and signal regulations in parts 234 and 236, as well as 
inspections and tests that are required after modification or 
disarrangement of grade crossing warning devices and other types of 
signal systems.

[[Page 35656]]

    Paragraph (e)(5) refers to a certified signal employee's failure to 
restore power to a train detection or highway-rail or pathway grade 
crossing warning device or system after manual interruption of the 
power source. (For violations of this nature, railroads would, however, 
be directed to consider only those violations that result in activation 
failure.)
    Paragraph (e)(6) refers to a certified signal employee's failure to 
comply with railroad validation or cutover procedures.
    Paragraph (e)(7) refers to a certified signal employee's failure to 
comply with FRA's Roadway Worker Protection regulations in 49 CFR part 
214. However, for purposes of this part, paragraph (e)(7) would require 
railroads to consider only those violations that directly involve a 
certified signal employee who failed to ascertain whether on-track 
safety was being provided before fouling the railroad track.
    Paragraphs (e)(8) through (e)(10) refer to a certified signal 
employee's failure to comply with FRA's Railroad Operating Practices 
regulations related to work performed on, under, or between rolling 
equipment. Paragraph (e)(11) refers to a certified signal employee's 
failure to comply with the alcohol and drug use prohibitions in Sec.  
219.101 of FRA's alcohol and drug regulations.
    Paragraph (f) proposes a three-year period for considering 
certified signal employee conduct that failed to comply with a Federal 
regulation or railroad test procedure, signal standard or practice 
described in paragraphs (e)(1) through (10) of this section. However, 
when alcohol and drug violations are at issue, the time period for 
evaluating prior operating rule misconduct would be dictated by Sec.  
246.115, which would establish a period of 60 consecutive months prior 
to the date of review for such evaluations.
    Paragraph (g) provides that if a single incident contravenes more 
than one Federal regulatory provision or railroad test procedure, 
signal standard, or practice listed in paragraph (e) of this section, 
the incident would be treated as a single violation. FRA considers a 
single incident to be a unique identifiable occurrence caused by a 
certified signal employee's violation of one or more railroad operating 
rules or practices listed in paragraph (e). However, a certified signal 
employee could be involved in more than one incident during a single 
tour of duty, if the incidents are separated by time, distance, or 
circumstance.
    Paragraph (h) provides that a certified signal employee may have 
their certification revoked for violation of a railroad test procedure, 
signal standard, or practice listed in paragraph (e) that occurs during 
a properly conducted monitoring test. However, as reflected in 
paragraph (i), violations of railroad test procedures, signal 
standards, or practices that occur during monitoring tests that are not 
conducted in compliance with this part, the railroad's testing 
procedures, or the railroad's program under Sec.  217.9 will not be 
considered for revocation purposes.
Section 246.305 Periods of Ineligibility
    This section of the proposed rule, derived from 49 CFR 240.117 and 
242.405, describes how a railroad would determine the period of 
ineligibility (e.g., for revocation or denial of certification) for a 
certified signal employee or candidate for signal employee 
certification. Paragraph (a) of this section provides the starting date 
for a period of ineligibility. For persons who are not certified as 
signal employees, a period of ineligibility would begin on the date of 
the railroad's written determination that an incident involving a 
potential violation of one or more regulatory requirements in Sec.  
246.303(e)(1) through (10) has occurred. For example, if the railroad 
made a written determination on March 10th that an incident involving a 
potential violation of one or more regulatory requirements in Sec.  
246.303(e)(1) through (10) occurred on March 1st, the period of 
ineligibility would begin on March 10th for persons who are not 
certified signal employees. However, for certified signal employees and 
candidates for signal employee recertification, a period of 
ineligibility would begin on the date the railroad notifies the 
candidate for signal employee recertification that recertification has 
been denied or the date the railroad notifies the certified signal 
employee that their certification has been suspended.
    Even though some certified signal employees will be subsequently 
notified that their certification will be revoked as a result of the 
incident, the period of ineligibility will begin on the date the 
railroad notifies the certified signal employee that their 
certification has been suspended. This is because once a person's 
certificate is suspended, they are ineligible to work as a certified 
signal employee pending a determination as to whether their 
certification should be revoked.
    With respect to revocation, paragraph (b) of this section provides 
that once a railroad determines that a certified signal employee has 
failed to comply with its test procedures, signal standards, or 
practices listed in Sec.  246.303(e), two consequences would occur. 
First, the railroad would be required to revoke the signal employee's 
certification for a period of time provided in this section. Second, 
that revocation would initiate a period during which the signal 
employee would be subject to an increasingly more severe period of 
revocation if additional revocable events occur within the next 24 to 
36 months.
    The standard periods of revocation proposed in this section track 
the revocation periods provided in parts 240 and 242. One revocable 
event would result in revocation for 30 days. Two revocable events 
within 24 months of each other would result in revocation for six (6) 
months. Three revocable events within 36 months of each other would 
result in revocation of one (1) year. Four revocable events within 36 
months of each other would result in revocation for three (3) years.
    While paragraph (c) of this section contains a provision that 
parallels Sec.  242.405(b) and provides that all periods of revocation 
may consist of training, paragraph (d) contains a provision that 
parallels Sec. Sec.  240.117(h) and 242.405(c). Paragraph (d) provides 
that a person whose signal employee certification is denied or revoked 
would be eligible for grant or reinstatement of the certificate prior 
to the expiration of the initial period of revocation if they can 
satisfy all of the criteria listed in the paragraph.
Section 246.307 Process for Revoking Certification
    This proposed section, derived from 49 CFR 240.307 and 242.407, 
provides the procedures a railroad would be required to follow if it 
acquires reliable information regarding a certified signal employee's 
violation of a railroad test procedure, signal standard, or practice 
described in Sec.  246.303(e) or 246.115(d). Paragraph (b)(1) of this 
section would require a railroad to suspend a signal employee's 
certification immediately, upon receipt of reliable information 
regarding a violation of a railroad test procedure, signal standard, or 
practice described in Sec.  246.303(e). Prior to, or upon suspending, 
the signal employee's certificate, paragraph (b)(3) would require the 
railroad to provide either verbal or written notice of the reason for 
the suspension, the pending revocation, and an opportunity for a 
hearing. If the initial notice was verbal, then the notice would have 
to be promptly confirmed in writing. The amount of time the railroad 
would have to confirm the verbal notice in writing would depend on 
whether or not a collective bargaining agreement is

[[Page 35657]]

in effect and applicable. In the absence of such an agreement, a 
railroad would have four days to provide written notice. If a notice of 
suspension is amended after a hearing is convened or does not contain 
citations to all railroad test procedure, signal standards, and 
practices that may apply to the potentially revocable event, the 
Certification Review Board (CRB or Board), if asked to review the 
revocation decision, might subsequently find that this constitutes 
procedural error pursuant to Sec.  246.405.
    Paragraph (b)(5) of this section would require the railroad, no 
later than the start of the hearing, to provide the signal employee 
with a copy of the written information and a list of witnesses that the 
railroad will present at the hearing. If requested, a recess to the 
start of the hearing would be granted if the written information and 
list of witnesses is not provided until just prior to the start of the 
hearing. If the information that led to the suspension of the signal 
employee's certificate pursuant to paragraph (b)(1) of this section is 
provided through statements of an employee of the convening railroad, 
the railroad would be required to make that employee available for 
examination during the hearing. Examination may be telephonic or 
virtual when it is impractical to provide the witness at the hearing. 
These provisions in paragraph (b)(5) of this section are intended to 
ensure that signal employees are provided with information and/or 
witnesses necessary to defend themselves at their hearings. Even if a 
railroad conducts a hearing pursuant to the procedures in an applicable 
collective bargaining agreement, the railroad would still have to 
comply with the provisions of paragraph (b)(5). It is not, however, 
FRA's intent to require railroads to call every witness included on the 
railroad's list of witnesses to testify at the hearing. If, for 
example, a railroad believes that it has provided sufficient evidence 
during a hearing to prove its case and that calling a witness on its 
list to testify would be unduly repetitive, the railroad would not be 
obligated to call that witness to testify. Of course, the opposing 
party could request that the witness be produced to testify, but the 
hearing officer would have the authority pursuant to paragraph (d)(4) 
of this section to determine whether the witness's testimony would be 
unduly repetitive or have such minimal relevance that its admission 
would impair the prompt, orderly, and fair resolution of the 
proceeding.
    Paragraph (d)(2) of this section provides the presiding officer 
with the powers necessary to regulate the conduct of the hearing. Thus, 
a presiding officer would be permitted to deny excessive hearing 
request delays by the signal employee. Moreover, a presiding officer 
could find implied consent to postpone a hearing when a signal 
employee's witnesses are not available within 10 days of the date the 
certificate is suspended. However, the CRB may grant a petition on 
review if the CRB finds that the hearing schedule caused the petitioner 
substantial harm.
    Paragraph (e) of this section contains requirements regarding the 
written decision in a railroad hearing. FRA believes these requirements 
would ensure that railroads issue clear and detailed decisions. In 
turn, clear and detailed decisions would allow a signal employee to 
understand exactly why their certification was revoked and would allow 
the CRB to have a more detailed understanding of the case if asked to 
review the revocation decision pursuant to subpart E of this proposed 
rule.
    Paragraph (f) credits the period of certificate suspension prior to 
the commencement of a hearing required under this section towards 
satisfying any applicable revocation period imposed in accordance with 
the provisions of Sec.  246.305. For example, if a signal employee's 
certificate is suspended on July 1st and on July 11th, the railroad 
issues a decision to revoke the signal employee's certificate for 30 
days, the time between July 1st and July 11th would count towards the 
30-day revocation period. Thus, the signal employee's certificate would 
only be revoked for an additional 20 days after the railroad issued its 
revocation decision.
    Paragraph (g) would require a railroad to revoke a signal 
employee's certification if it discovers that another railroad has 
revoked that individual's signal employee certification. The revocation 
period would coincide with the period of revocation imposed by the 
railroad that initially revoked the signal employee's certification. 
For example, if a signal employee is certified by Railroad ABC and 
Railroad XYZ, and ABC revokes the signal employee's certification from 
November 1st through November 30th, XYZ must revoke the signal 
employee's certification through November 30th once it learns of ABC's 
revocation. The revocation hearing requirement in this rule would be 
satisfied if any railroad holds a revocation hearing for the signal 
employee that arises from the same set of facts.
    Paragraphs (h) and (i) provide two specific defenses for railroad 
supervisors and hearing officers to consider when deciding whether to 
suspend or revoke a person's certificate due to an alleged revocable 
event. Pursuant to these provisions, either defense would have to be 
proven by sufficient evidence. Paragraph (h) would prohibit railroads 
from revoking a signal employee's certificate when there is sufficient 
evidence of an intervening cause that prevented or materially impaired 
the signal employee's ability to comply. For example, a railroad should 
consider assertions that a qualified instructor failed to take 
appropriate action to prevent an uncertified signal employee or signal 
employee trainee from using defective equipment. However, FRA does not 
intend to imply that all equipment failures and errors caused by others 
will serve to absolve signal employees from certification revocation 
under this proposed rule. The factual issues presented by each incident 
would need to be analyzed on a case-by-case basis.
    Paragraph (i) would allow railroads to exercise discretion when 
determining whether to revoke a signal employee's certification ``if 
sufficient evidence exists to establish that the violation of the 
railroad test procedure, signal standard, or practice described in 
Sec.  246.303(e) was of a minimal nature and had no direct or potential 
effect on rail safety.'' However, FRA acknowledges that the 
determination as to whether an incident meets this criterion could be 
subject to different interpretations. For this reason, paragraph (j) 
would require railroads to retain information about the evidence relied 
upon when exercising this discretion. Unless a railroad fails to retain 
information as required in paragraph (j) or acts in bad faith, FRA does 
not anticipate taking enforcement action against the railroad even if 
FRA believes the railroad could have revoked the signal employee's 
certification.
    Paragraph (j) of this section would require railroads to keep 
records of those violations in which they must not or elect not to 
revoke a signal employee's certificate pursuant to paragraph (h) or (i) 
of this section. Paragraph (k) addresses concerns that problems could 
arise if FRA disagrees with a railroad's decision not to suspend a 
signal employee's certificate for an alleged violation of a railroad 
test procedure, signal standard, or practice pursuant to Sec.  
246.303(e). As long as a railroad makes a good faith determination 
after a reasonable inquiry, the railroad will have immunity from civil 
enforcement for making what the agency believes to be an incorrect 
determination. However, if railroads do

[[Page 35658]]

not conduct a reasonable inquiry or act in good faith, they could be 
subject to civil penalty assessment under this rule. In addition, even 
if a railroad does not take what FRA considers appropriate revocation 
action, FRA could still take enforcement action against an individual 
responsible for the noncompliance by assessing a civil penalty against 
the individual or issuing an order prohibiting the individual from 
performing safety-sensitive functions in the rail industry for a 
specified period of time pursuant to part 209, subpart D.

Subpart E--Dispute Resolution Procedures

    This subpart details the opportunities and procedures for a person 
to challenge a railroad's decision to deny certification or 
recertification or to revoke a signal employee's certification. While 
the proposed dispute resolution process for signal employees largely 
mirrors the processes for engineers under part 240 and conductors under 
part 242, FRA proposes some modifications in this proposed rule that 
will be discussed below. In addition, FRA has undertaken efforts to 
simplify these regulations to make them clear and comprehensible to all 
interested parties.
Section 246.401 Review Board Established
    This proposed section, derived from 49 CFR 240.401 and 242.501, 
provides that a person who is denied certification or recertification 
or has had their signal employee certification revoked may petition FRA 
to review the railroad's decision. Pursuant to this section, FRA 
delegates initial responsibility for adjudicating such disputes to the 
CRB. Although creation of the CRB will require issuance of an internal 
FRA order, FRA anticipates that the CRB will mirror the Operating Crew 
Review Board (OCRB) which currently adjudicates disputes under parts 
240 and 242.\23\ Under this proposed rule, this newly created Board 
would adjudicate certification disputes for all certified crafts, 
including locomotive engineers, conductors, and signal employees. FRA 
is fully aware that these different job disciplines require different 
knowledge bases and skill sets. While the specific process for 
selecting CRB members would be delineated in an FRA order or other 
internal document, FRA would ensure that the CRB is composed of 
employees with sufficient backgrounds in these various disciplines. 
Only those CRB members with sufficient knowledge of signaling would be 
able to participate as a voting member on a petition filed under this 
part.
---------------------------------------------------------------------------

    \23\ In a future rulemaking, FRA expects to revise parts 240 and 
242 to refer to the CRB instead of the OCRB.
---------------------------------------------------------------------------

Section 246.403 Petition Requirements
    This proposed section, derived from 49 CFR 240.403 and 242.503, 
contains proposed requirements for obtaining FRA review of a railroad's 
decision to deny or revoke certification, or deny recertification. 
Paragraph (b) of this section would require petitioners to seek review 
in a timely fashion once the adverse decision is served on them. In the 
interest of consistency and uniformity with parts 240 and 242, 
petitioners would have 120 days from the date the adverse decision was 
served upon them to file a petition for review by the CRB.
    Paragraph (b)(3) would require petitioners to file their petitions 
through https://www.regulations.gov. Petitioners and their 
representatives would, however, be well-advised to save some form of 
proof of filing, in case an error occurs in the regulations.gov system 
and they have to submit proof that their petition was timely filed. All 
documents associated with a CRB petition would be posted to the docket 
on Regulations.gov and all DOT dockets on Regulations.gov are available 
to the public. You may review DOT's complete Privacy Act Statement 
published in the Federal Register on April 11, 2000 (Volume 65, Number 
70, Pages 19477-78).
    Paragraph (b)(4) would require that a petition contain contact 
information, including an email address, for the petitioner and their 
representative, if any. The OCRB only communicates with parties via 
email. Therefore, FRA anticipates the CRB will operate in a similar 
manner and will only send communications to the parties via email. If a 
petition only contains an email address for the petitioner's 
representative, but not the petitioner, the CRB will only send any 
necessary communications to the representative. Accordingly, a petition 
filed in accordance with this part need not include a mailing address 
for petitioner or their representative, unlike petitions for review 
filed pursuant to parts 240 and 242. Lastly, if any required contact 
information for petitioner or their representative, such as a phone 
number or email address, changes during the pendency of a petition 
before the CRB, it would be the responsibility of the petitioner or 
their representative to provide the CRB and the railroad with the new 
contact information.
    Paragraph (b)(6) would require petitioners or their representatives 
to state the facts and arguments in support of their petition. In other 
words, they would need to explain to the CRB why they think the 
railroad was incorrect in denying or revoking the petitioner's 
certification. Paragraph (b)(7) would require petitioners to submit all 
documents related to the railroad's decision that are in their 
possession or reasonably available to them. This may include the 
transcript and exhibits from the petitioner's denial or revocation 
hearing. In most cases, these documents will be essential to the 
Board's ability to make an informed decision on the petition. If 
neither the petitioner nor the railroad provides these documents, the 
Board may have to specifically request these documents which would 
likely to delay the Board's adjudication of the petition. Therefore, it 
is in the petitioner's interest to include these documents as part of 
their petition.
    Paragraph (c) of this section is intended to clarify a petitioner's 
responsibilities with respect to a petition seeking review of a 
railroad decision based on petitioner's alleged failure to comply with 
a drug or alcohol-related rule or a return-to-service agreement. If 
requested by the CRB, paragraph (c) would require a petitioner to 
supplement the petition with ``a copy of the information under 49 CFR 
40.329 that laboratories, medical review officers, and other service 
agents are required to release to employees.'' This paragraph would 
also require a petitioner to provide a written explanation in response 
to a CRB request if the petitioner does not supply the Board with 
written documents that should be reasonably available under 49 CFR 
40.329.
    Paragraph (d) of this section would give the CRB discretion to 
grant a request for additional time to file a petition if certain 
circumstances are met. As an initial matter, the petitioner would be 
required to show good cause for granting the extension. Thus, a 
petitioner would have to demonstrate a reasonable justification for 
granting the extension of time. This justification should be as 
detailed as possible to assist the Board in its determination. In 
addition to showing good cause for an extension, a petitioner would be 
required to submit their extension request before the deadline for 
filing their petition or, if the deadline has already passed, they must 
allege facts constituting ``excusable neglect'' for failing to meet the 
deadline. The mere assertion of excusable neglect, unsupported by 
facts, would be insufficient. Excusable neglect would require a 
demonstration of good faith on the part of the party seeking an

[[Page 35659]]

extension of time, and some reasonable basis for the party's failure to 
comply with the time frame specified in this proposed rule. Absent a 
showing along these lines, relief would be denied. The Board would make 
determinations on whether ``good cause'' and/or ``excusable neglect'' 
has been shown on a case-by-case basis.
    Paragraph (e) explains that a decision by the CRB to deny a 
petition for untimeliness or lack of compliance with the requirements 
of Sec.  246.303 may be appealed directly to the FRA Administrator. 
Normally an appeal to the Administrator can only occur after a case has 
been heard by FRA's hearing officer. However, petitions that the Board 
finds to be untimely or incomplete are the two exceptions where a party 
can skip petitioning the hearing officer and go directly to filing an 
appeal with the Administrator.
Section 246.405 Processing Certification Review Petitions
    This section of the proposed rule, derived from 49 CFR 240.405 and 
242.505, details how petitions for review by the CRB would be handled. 
Paragraph (a) of this section notes that when FRA receives a CRB 
petition, FRA would send a written notification to the parties involved 
in the petition. FRA proposes to send these acknowledgments via email. 
If a representative files a petition on behalf of a petitioner, the 
petition must include the petitioner's email address, if the petitioner 
also wants to receive the acknowledgment email and any other 
correspondence (including the Board's decision) from FRA. The 
acknowledgment email would include the docket number for the petition 
so that both parties can access the documents in the case on https://www.regulations.gov. FRA would not send a copy of the petition to the 
railroad.
    Paragraph (b) of this section would provide railroads with the 
opportunity to respond to a petition. While it is always optional for a 
railroad to respond to a petitioner's arguments, if the petitioner did 
not include relevant documents in their petition, such as hearing 
transcripts or exhibits, the railroad is required to provide FRA with 
those documents, even if it does not respond to the arguments in the 
petition. Railroads would have 60 days, from the date FRA sends the 
acknowledgment email, to file a response to the petition in the docket 
on https://www.regulations.gov. Railroads would be permitted to submit 
responses after the 60-day deadline, but the Board would only review 
such late filings if practicable. In other words, there is no guarantee 
that the Board would review a late response prior to issuing a 
decision; thus, if a railroad wishes to respond to a petition, it 
should meet the 60-day filing deadline. The railroad could fulfill its 
requirement to serve a copy of its response on the other parties by 
sending its response via email to petitioner, petitioner's 
representative, and petitioner's employer (if different from the 
railroad that revoked petitioner's certification).
    Paragraph (c) of this section explains when a case would be 
referred to the Board, and what authority the Board would have. If a 
railroad files a response before the 60-day deadline in paragraph (b) 
of this section, the petition would be referred to the Board upon 
receipt of the response. Otherwise, the petition would be referred to 
the Board 60 days after the date the acknowledgment email was sent. The 
Board would have the authority to grant a petition (rule in favor of 
the petitioner), deny a petition (rule in favor of the railroad), or 
dismiss a petition. An example of when the Board would dismiss a 
petition would be if the respondent railroad did not deny or revoke the 
petitioner's certification, and thus, there was no case or controversy 
before the Board. If there is insufficient evidence in the record for 
the Board to make a decision on the merits of a petition, the Board may 
choose to remand a petition or issue an interim order, so that 
additional fact-finding can occur.
    Paragraphs (d), (e), and (f) of this section provide the standards 
of review that the Board would employ for procedural issues, factual 
issues, and legal issues, respectively. These standards mirror the 
standards of review used by the OCRB to review locomotive engineer and 
conductor petitions. The Board would not correct all procedural errors 
committed by a railroad. Instead, the Board would only grant a petition 
if the respondent railroad's procedural error caused substantial harm 
to the petitioner. For factual issues, the petitioner would be required 
to show that the respondent railroad did not have substantial evidence 
to support its decision to deny or revoke the petitioner's 
certification. If the Board must decide a legal issue, it would conduct 
de novo review, meaning that it would not give deference to any 
decision or interpretation made by the railroad.
    Paragraph (g) of this section acknowledges that the Board's 
decision-making power would be limited to granting or denying a 
petition. In other words, the Board would only be empowered to make 
determinations concerning qualifications under this proposed 
regulation. The Board would not be empowered to mitigate the 
consequences of a railroad decision if the decision is valid under this 
proposed regulation. The contractual consequences, if any, of these 
determinations would have to be resolved under dispute resolution 
mechanisms that do not directly involve FRA. For example, FRA cannot 
order a railroad to alter its seniority rosters or make an award of 
back pay, in the event of a finding that a railroad wrongfully denied 
certification.
    Paragraph (h) of this section would require the Board to issue a 
written decision that would be served on all affected parties. FRA 
would send the decision to the parties by email and it will also be 
posted in the case's docket on https://www.regulations.gov.
Section 246.407 Request for a Hearing
    This proposed section, derived from 49 CFR 240.407 and 49 CFR 
242.507, provides that a party who has been adversely affected by a CRB 
decision would have the opportunity to request an administrative 
proceeding as prescribed in Sec.  246.409. Paragraph (b) of this 
section contains the instructions and the deadline for submitting a 
hearing request. Just like CRB petitions, parties would be required to 
file hearing requests electronically. To file a hearing request, the 
adversely affected party would upload the request to the docket on 
https://www.regulations.gov that was used while the case was before the 
Board. This docket would also be used to file documents while the case 
is before the hearing officer. After the 20-day deadline to file a 
hearing request has passed, FRA would check the docket on https://www.regulations.gov to see if a hearing request was filed. Paragraph 
(c) of this section contains a list of elements that would be required 
for a hearing request, including the docket number assigned to the case 
when it was before the Board. With respect to the signature requirement 
in paragraph (c), FRA would accept electronic signatures.
    Paragraph (d) of this section states that FRA would arrange for the 
appointment of a presiding officer. The presiding officer would then 
schedule a hearing for the earliest practicable date.
    Paragraph (e) of this section provides that a party who fails to 
request an administrative hearing in a timely fashion would lose the 
right to further administrative review and the CRB's decision would 
constitute final agency action.

[[Page 35660]]

Section 246.409 Hearings
    This section of the proposed rule, derived from 49 CFR 240.409 and 
49 CFR 242.509, describes the authority of the presiding officer to 
conduct an administrative hearing and the procedures by which the 
administrative hearing would be governed. Paragraph (b) of this section 
provides that the proceeding would afford an aggrieved party a de novo 
hearing at which the relevant facts would be adduced and the correct 
application of this part would be determined. When the issues presented 
are purely legal, or when only limited factual findings are necessary 
to determine issues, the presiding officer may determine the issues 
following an evidentiary hearing only on the disputed factual issues, 
if any. The presiding officer could then grant full or partial summary 
judgment.
    Paragraph (d) of this section provides that the presiding officer 
may authorize discovery. It would also authorize the presiding officer 
to sanction willful noncompliance with permissible discovery requests. 
Paragraph (e) of this section would require that documents in the 
nature of pleadings be signed. This signature could be electronic and 
would constitute a certification of factual and legal good faith. 
Paragraph (f) of this section contains a proposed requirement for 
service and for certificates of service. Paragraph (g) of this section 
would give the presiding officer authority to address noncompliance 
with a law or directive. This provision is intended to ensure that the 
presiding officer will have the authority to control the proceeding so 
that an efficient and fair hearing can be conducted.
    Paragraph (h) of this section states the right of each party to 
appear and be represented. Paragraph (i) of this section is intended to 
protect witnesses by ensuring their right of representation and their 
right to have their representative question them. Paragraph (j) of this 
section would allow any party to request consolidation or separation of 
hearings of two or more petitions when appropriate under established 
jurisprudential standards. This option is intended to allow for more 
efficient determination of petitions in cases where a joint hearing 
would be advantageous.
    Under paragraph (k) of this section, the presiding officer could, 
with certain exceptions, extend deadlines for action required in the 
proceedings, provided substantial prejudice would not result to a 
party. The authority to deny an extension request submitted after a 
deadline has already passed shows the preference for use of this 
authority to provide extensions of time as a tool to alleviate 
unforeseen or unnecessary burdens, and not as a remedy for inexcusable 
neglect.
    Paragraph (l) of this section would establish motions as the 
appropriate method for requesting action by the presiding officer. This 
paragraph also provides the proposed form of motions and the proposed 
response period for written motions. Paragraph (m) of this section 
contains proposed rules for the mode of hearing and record maintenance, 
including proposed requirements for sworn testimony, verbatim record 
(including oral testimony and argument), and inclusion of evidence or 
substitutes therefor in the record. Paragraph (n) of this section would 
direct the presiding officer to employ specific rules of evidence as 
guidelines for the introduction of evidence, and would permit the 
presiding officer to determine what evidence may be received. Further, 
paragraph (o) of this section provides additional powers the presiding 
officer may exercise during the proceedings.
    Paragraph (p) of this section would require that the petitioner 
before the CRB, the railroad that took the certification action at 
issue, and FRA serve as mandatory parties to the administrative 
proceeding. Paragraph (q) of this section explains which party would be 
the hearing petitioner and which parties would be the respondents. If 
the Board granted the petition, the railroad would be the hearing 
petitioner and the signal employee or signal employee candidate would 
be a respondent. If the Board denied the petition, the signal employee 
or signal employee candidate would be the hearing petitioner and the 
railroad would be a respondent. The actions of the signal employee (or 
certification candidate) and the railroad would be at issue in the 
hearing--not the actions of the CRB. Thus, it is appropriate that the 
signal employee and the railroad fill the roles of petitioner and 
respondent for the hearing.
    Paragraph (q) also provides that FRA would be a mandatory party in 
the proceeding. In all proceedings, FRA would initially be considered a 
co-respondent. If, based on evidence acquired after the filing of a 
hearing petition, FRA concludes that the public interest in safety is 
more closely aligned with the position of the petitioner than the 
respondent, FRA could request that the hearing officer exercise their 
inherent authority to realign parties for good cause shown. However, 
FRA anticipates that such a situation would rarely occur. FRA would 
represent the interests of the government; hence, parties and their 
representatives would have to be careful to avoid ethical dilemmas that 
might arise due to FRA's ability to realign itself. Paragraph (q) also 
notes that the party requesting the hearing would have the burden of 
proving its case by the preponderance of evidence.
    Paragraph (r) of this section would give the presiding officer 
authority to close the record in a case. Paragraph (s) of this section 
would also give the presiding officer authority to issue a decision and 
includes proposed requirements for that decision.
Section 246.411 Appeals
    This proposed section, derived from 49 CFR 240.411 and 49 CFR 
242.511, would permit any party aggrieved by the presiding officer's 
decision to file an appeal with the FRA Administrator. Paragraph (a) of 
this section provides that if no appeal is timely filed, the presiding 
officer's decision would constitute final agency action. The appeal 
must be filed in the same docket on https://www.regulations.gov used 
when the case was before the Board and the presiding officer.
    Paragraph (b) of this section allows for a party to reply to the 
appeal. Paragraphs (c) and (d) of this section describe the 
Administrator's authority to conduct the proceedings of an appeal. 
Paragraph (e) of this section addresses the Administrator's options for 
ruling on an appeal. The phrase ``except where the terms of the 
Administrator's decision (for example, remanding a case to the 
presiding officer) show that the parties' administrative remedies have 
not been exhausted'' is included in this proposed rule because a 
remand, or other intermediate decision, would not constitute final 
agency action. The inclusion of this phrase is intended to clarify this 
potential outcome to those parties who are not represented by an 
attorney or who might otherwise be confused as to whether any action 
taken by the Administrator should be considered final agency action.
    Paragraph (f) of this section provides instructions for handling 
appeals to the Administrator that come directly from the CRB. The only 
cases that would be allowed to proceed directly from the Board to the 
Administrator would be cases in which the Board denied a petition for 
being untimely or incomplete. If the Administrator vacates and remands 
the Board's decision, the case would return to the Board. If the 
Administrator affirms the Board's decision, that would constitute final 
agency action.

[[Page 35661]]

Appendices

    FRA has included two appendices with this proposed rule. Appendix 
A, derived from appendix C to part 240 and appendix C to part 242, 
provides a narrative discussion of the procedures that a person seeking 
certification or recertification should follow to furnish a railroad 
with information concerning their motor vehicle driving record. 
Appendix B, derived from appendix D to part 240 and appendix D to part 
242, provides a narrative discussion of the procedures that a railroad 
would be required to employ when administering the vision and hearing 
requirements of Sec. Sec.  246.117 and 246.118. This appendix discusses 
test methods for determining whether a person has the ability to 
recognize and distinguish among the colors used as signals in the 
railroad industry.

V. Regulatory Impact and Notices

A. Executive Order 12866 as Amended by Executive Order 14094

    This proposed rule is not a significant regulatory action within 
the meaning of Executive Order 12866 as amended by Executive Order 
14094, Modernizing Regulatory Review. Details on the estimated costs of 
this NPRM can be found in the Regulatory Impact Analysis (RIA), which 
FRA has prepared and placed in the docket (FRA-2021-0020).
    FRA is proposing regulations establishing a formal certification 
process for railroad signal employees. As part of that process, 
railroads would be required to develop a program for training current 
and prospective signal employees, documenting and verifying that the 
holder of the certificate has achieved certain training and 
proficiency, and creating a record of safety compliance infractions 
that other railroads can review when considering individuals for 
certification. This proposed regulation would ensure that signal 
employees are properly trained, are qualified to perform their duties, 
and meet Federal safety standards. Additionally, this proposed 
regulation is expected to improve railroad safety by reducing the rate 
of accidents/incidents.
    The RIA presents estimates of the costs likely to occur over the 
first 10 years of the proposed rule. The analysis includes estimates of 
costs associated with development of training programs, initial and 
periodic training, knowledge testing, and monitoring of operational 
performance. Additionally, costs are estimated for vision and hearing 
tests, certification determinations made by other railroads, and 
Government administrative costs.
    FRA estimated 10-year costs of $8.3 million discounted at 7 
percent. The annualized cost would be $1.2 million discounted at 7 
percent. The following table shows the estimated 10-year costs of the 
proposed rule.

                                         Total 10-Year Discounted Costs
                                                 [2020 Dollars]
----------------------------------------------------------------------------------------------------------------
                                                   Present value   Present value   Annualized 7%   Annualized 3%
                    Category                          7% ($)          3% ($)            ($)             ($)
----------------------------------------------------------------------------------------------------------------
Development of Certification Program............       1,140,385       1,168,920         162,365         137,033
Certification Eligibility Requirements..........          87,507         100,380          12,459          11,768
Recertification Eligibility Requirements........         203,790         259,653          29,015          30,439
Training........................................       2,079,835       2,379,911         296,122         278,998
Knowledge Testing...............................         746,865         898,884         106,337         105,377
Vision and Hearing..............................       1,097,523       1,320,891         156,263         154,849
Monitoring Operational Performance..............         832,102         994,414         118,473         116,576
Railroad Oversight Responsibilities.............         267,530         326,714          38,090          38,301
Certification Card..............................         103,175         124,175          14,690          14,557
Petitions and Hearings..........................          42,451          50,731           6,044           5,947
Government Administrative Cost..................       1,653,360       1,914,063         235,401         224,387
                                                 ---------------------------------------------------------------
    Total.......................................       8,277,337       9,566,001       1,178,507       1,121,427
----------------------------------------------------------------------------------------------------------------

    This rule is expected to reduce the likelihood of an accident 
occurring due to signal employee error. FRA has analyzed accidents over 
the past 10 years to categorize those where signal employee may have 
caused the accident. FRA then estimated benefits based on that 
analysis.
    The following table shows the estimated 10-year benefits of the 
proposed rule. The total 10-year estimated benefits would be $2.9 
million (PV, 7%) and annualized benefits would be $0.4 million (PV, 
7%).

                                        Total 10-Year Discounted Benefits
                                                 [2020 Dollars]
----------------------------------------------------------------------------------------------------------------
                                                   Present value   Present value   Annualized 7%   Annualized 3%
                    Category                          7% ($)          3% ($)            ($)             ($)
----------------------------------------------------------------------------------------------------------------
Grade Crossing Accidents........................       1,766,028       2,064,676         251,443         242,043
Train Accidents/Incidents.......................         989,123       1,156,391         140,829         135,564
Business Benefits from Fewer Activation Failures         159,526         186,503          22,713          21,864
                                                 ---------------------------------------------------------------
    Total.......................................       2,914,678       3,407,570         414,985         399,471
----------------------------------------------------------------------------------------------------------------

    Additional benefits are discussed, but not quantified, in this 
analysis. This proposed rule would require railroads to check with 
prior employers when hiring a new signal employee. This would include a 
check of their prior safety

[[Page 35662]]

record and whether the prospective signal employee had their 
certification revoked in the past.

B. Regulatory Flexibility Act and Executive Order 13272

    The Regulatory Flexibility Act of 1980 (5 U.S.C. 601 et seq.) and 
E.O. 13272 (67 FR 53461, Aug. 16, 2002) require agency review of 
proposed and final rules to assess their impacts on small entities. An 
agency must prepare an Initial Regulatory Flexibility Analysis (IRFA) 
unless it determines and certifies that a rule, if promulgated, would 
not have a significant economic impact on a substantial number of small 
entities. FRA has not determined whether this proposed rule would have 
a significant economic impact on a substantial number of small 
entities. Therefore, FRA prepared this IRFA to facilitate public 
comment on the potential small business impacts of the requirements in 
this NPRM.
    FRA invites all interested parties to submit data and information 
regarding the potential economic impact on small entities that would 
result from adoption of the proposals in this NPRM. FRA particularly 
encourages small entities that could potentially be impacted by the 
proposed rule to participate in the public comment process. FRA will 
consider all information and comments received in the public comment 
process when making a determination of the economic impact on small 
entities.
1. Reasons for Considering Agency Action
    FRA is concerned with accidents caused by signal employee error. 
Railroads' signal employee training programs may not be covering all 
aspects of a signal employee's job responsibility. Additionally, 
railroads may not be testing signal employees and ensuring that their 
knowledge is maintained continuously.
    This NPRM would require railroads to develop a signal employee 
certification program. This proposed rule would ensure that railroads 
examine railroad safety with respect to signal employees. If FRA did 
not issue the rule as proposed, railroads would be free to hire and 
train signal employees as they see fit.
2. A Succinct Statement of the Objectives of, and the Legal Basis for, 
the Proposed Rule
    This proposed rule may reduce the rate of signal employee-caused 
accidents. The annual operational performance monitoring would ensure 
that signal employees maintain their knowledge after the initial 
certification process.
    FRA is proposing regulations for the certification of signal 
employees, pursuant to the authority granted in section 402 of the Rail 
Safety Improvement Act of 2008 (RSIA). Also, the general authority of 
the Secretary states, in relevant part, that the Secretary ``as 
necessary, shall prescribe regulations and issue orders for every area 
of railroad safety supplementing laws and regulations in effect on 
October 16, 1970.'' \24\ The Secretary delegated this authority to the 
Federal Railroad Administrator.\25\
---------------------------------------------------------------------------

    \24\ 49 U.S.C. 20103.
    \25\ 49 CFR 1.89(a).
---------------------------------------------------------------------------

3. A Description of, and Where Feasible, an Estimate of the Number of 
Small Entities to Which the Proposed Rule Would Apply
    The Regulatory Flexibility Act of 1980 requires a review of 
proposed and final rules to assess their impact on small entities, 
unless the Secretary certifies that the rule would not have a 
significant economic impact on a substantial number of small entities. 
``Small entity'' is defined in 5 U.S.C. 601 as a small business concern 
that is independently owned and operated and is not dominant in its 
field of operation. The U.S. Small Business Administration (SBA) has 
authority to regulate issues related to small businesses, and 
stipulates in its size standards that a ``small entity'' in the 
railroad industry is a for profit ``line-haul railroad'' that has fewer 
than 1,500 employees, a ``short line railroad'' with fewer than 1,500 
employees, a ``commuter rail system'' with annual receipts of less than 
$16.5 million dollars, or a contractor that performs support activities 
for railroads with annual receipts of less than $16.5 million.\26\
---------------------------------------------------------------------------

    \26\ U.S. Small Business Administration, ``Table of Small 
Business Size Standards Matched to North American Industry 
Classification System Codes, August 19, 2019. https://www.sba.gov/sites/default/files/2019-08/SBA%20Table%20of%20Size%20Standards_Effective%20Aug%2019,%202019.pdf.

---------------------------------------------------------------------------

    Federal agencies may adopt their own size standards for small 
entities in consultation with SBA and in conjunction with public 
comment. Under that authority, FRA has published a proposed statement 
of agency policy that formally establishes ``small entities'' or 
``small businesses'' as railroads, contractors, and hazardous materials 
shippers that meet the revenue requirements of a Class III railroad as 
set forth in 49 CFR 1201.1-1, which is $20 million or less in 
inflation-adjusted annual revenues,\27\ and commuter railroads or small 
Governmental jurisdictions that serve populations of 50,000 or less. 
See 68 FR 24891 (May 9, 2003) (codified at Appendix C to 49 CFR part 
209). FRA is using this definition for the proposed rule.
---------------------------------------------------------------------------

    \27\ The Class III railroad revenue threshold is $40.4 million 
or less, for 2021. (The Class II railroad threshold is between $40.4 
million and $900 million.) See Surface Transportation Board (STB), 
available at https://www.stb.gov/news-communications/latest-news/pr-21-16/.
---------------------------------------------------------------------------

    When shaping the proposed rule, FRA considered the impact that the 
proposed rule would have on small entities.
    The proposed rule would be applicable to all railroads with signal 
systems. However, some small railroads do not have a signal system as 
part of their operations. FRA estimates there are 744 Class III 
railroads, of which 704 operate on the general system. These railroads 
are of varying size, with some belonging to larger holding companies. 
Approximately 490 Class III railroads would be impacted by this 
rulemaking because they have a signal system. The remaining Class III 
railroads do not have a signal system, thus would have no need for 
signal employee certification program.
4. A Description of the Projected Reporting, Recordkeeping, and Other 
Compliance Requirements of the Rule, Including an Estimate of the Class 
of Small Entities That Would be Subject to the Requirements and the 
Type of Professional Skill Necessary for Preparation of the Report or 
Record
    Railroads would be required to submit information to FRA for 
approval of signal employee certification programs. For small railroads 
that choose to develop their own certification programs, they would 
likely be less complex than larger railroads' operations. This would 
ease some of the burden on small railroads.
    The training program, and annual railroad responsibilities would be 
prepared by a professional or administrative employee. The type of 
professional skills needed by an employee responsible for submitting a 
special approval request includes the ability to plan and organize 
work. Such an employee would also need good verbal and written 
communication skills and attention to detail.
Summary of Class III Railroad Costs
    Class III Railroads would have all the same cost components as 
larger railroads except they would not be required to perform annual 
railroad oversight responsibilities in accordance with the proposed 
rule. Therefore, that

[[Page 35663]]

cost has been excluded for Class III railroads.
    The following table shows the annualized cost for Class III 
railroads over the 10-year analysis period. The total estimated 10-year 
costs for Class III railroads would be $2.4 million and the annualized 
cost for all Class III railroads would be $346,052 (PV, 7 percent).

         Total 10-Year and Annualized Costs, Class III Railroads
------------------------------------------------------------------------
                                           Present value   Annualized 7%
                Category                      7% ($)            ($)
------------------------------------------------------------------------
Development of Certification Program....         309,067          44,004
Certification Eligibility Requirements..          21,877           3,115
Recertification Eligibility Requirements          50,947           7,254
Training................................         519,959          74,030
Knowledge Testing.......................         186,716          26,584
Vision and Hearing......................       1,097,523         156,263
Monitoring Operational Performance......         208,026          29,618
Certification Card......................          25,794           3,672
Petitions and Hearings..................          10,613           1,511
    Total...............................       2,430,522         346,052
------------------------------------------------------------------------

    The industry trade organization representing small railroads, 
ASLRRA, reports the average freight revenue per Class III railroad is 
$4.75 million.\28\ The following table summarizes the average annual 
costs and revenue for Class III railroads.
---------------------------------------------------------------------------

    \28\ American Short Line and Regional Railroad Association, 
Short Line and Regional Railroad Facts and Figures, p. 10 (2017 
pamphlet).

                                 Average Class III Railroads' Costs and Revenue
----------------------------------------------------------------------------------------------------------------
                                       Number of Class
 Total cost for Class III railroads,    III railroads      Average annual   Average Class III    Average annual
            annualized 7%                with signal       cost per Class     annual revenue   cost as a percent
                                           systems        III railroad ($)         ($)             of revenue
a                                                    b          c = a / b                  d          e = c / d
----------------------------------------------------------------------------------------------------------------
346,052.............................               535                647          4,750,000              0.01%
----------------------------------------------------------------------------------------------------------------

    The average annual cost for a Class III railroad impacted by this 
rule would be $647. This represents a small percentage (0.01%) of the 
average annual revenue for a Class III railroad.
    The estimates above show that the burden on Class III railroads 
would not be a significant economic burden. FRA requests comments on 
this estimate and will consider all comments when making a 
determination for the final rule.
5. Identification, to the Extent Practicable, of All Relevant Federal 
Rules That May Duplicate, Overlap, or Conflict With the Proposed Rule
    FRA is not aware of any relevant Federal rule that duplicates, 
overlaps with, or conflicts with this NPRM. This proposed rule is 
complementary to, rather than duplicative of, other recent regulatory 
initiatives FRA has issued or is in the process of developing. These 
initiatives include: the implementation of positive train control (PTC) 
systems by required railroads; \29\ training, qualification, and 
oversight; \30\ railroad safety risk reduction programs; \31\ and the 
development of fatigue risk management programs.\32\
---------------------------------------------------------------------------

    \29\ See generally 49 CFR part 236, subpart I; and press release 
in which FRA announces full implementation of positive train control 
(Dec. 29, 2020), available at https://railroads.dot.gov/sites/fra.dot.gov/files/2020-12/fra1920.pdf.
    \30\ 49 CFR part 243.
    \31\ 49 CFR parts 270 and 271.
    \32\ 85 FR 83484 (Dec. 22, 2020) (proposing to amend 49 CFR 
parts 270 and 271 to require certain railroads to develop and 
implement a Fatigue Risk Management Program as one component of the 
railroads' larger railroad safety risk reduction programs).
---------------------------------------------------------------------------

6. A Description of Significant Alternatives to the Rule
    This analysis considered two alternatives to the rule: the baseline 
approach, and an approach that would certify just the training program. 
The baseline alternative (no action) would not ensure that signal 
employees are being properly trained. Without this rule, railroad 
operations may be less safe if railroads are not providing adequate 
training to their signal employees.
    The alternative of certifying only the training program would 
require a railroad to enhance their training of signal employees. 
Training, however, is only a part of the certification process. The 
additional requirements of this proposed rule would ensure that signal 
employees' hearing, vision, prior safety conduct at other railroads, 
and other aspects have been reviewed and are consistent with railroad 
safety.

C. Paperwork Reduction Act

    FRA is submitting the information collection requirements in this 
proposed rule to the Office of Management and Budget (OMB) for approval 
under the Paperwork Reduction Act of 1995.\33\ The entire table 
contains the new information collection requirements and the estimated 
time to fulfill each requirement are as follows:
---------------------------------------------------------------------------

    \33\ 44 U.S.C. 3501 et seq.

[[Page 35664]]



--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                Total annual         Average time per     Total annual burden                 Total cost
            CFR section              Respondent universe         responses              responses                hours           Wage rate    equivalent
                                                           (A)..................  (B)..................  (C) = A * B..........     (D) \34\  (E) = C * D
--------------------------------------------------------------------------------------------------------------------------------------------------------
246.9--Waivers--Petitions.........  553 railroads........  10.00 petition.......  3 hours..............  30.00................       $77.44    $2,323.20
246.101/.103--Certification         553 railroads +        187.66 plans (14.33    120 hours + 120 hours  3,139.20.............       115.24   361,761.41
 program required and FRA review     ASLRRA and holding     Class I and commuter   + 6 hours.
 of certification program--          companies.             railroads plans +
 Development of signal employee                             3.33 generic program
 certification program in                                   developed by ASLRRA
 accordance with this part and                              and holding
 procedures contained under Sec.                            companies plans +
 246.106 (Note: Each certification                          170 Class II and III
 program includes procedure                                 railroads plans).
 requirements under Sec.   246.111
 through Sec.   246.121.).
--(d)(1) Signal employees           553 railroads........  2 copies.............  15 minutes...........  .50..................        77.44        38.72
 certification submission--Copies
 of the program provided to the
 president of each rail labor
 organization (RLO) that
 represents the railroad's
 employees that are subject to
 this part.
--(d)(2) Affirmative statements     553 railroads........  2 affirmative          15 minutes...........  .50..................        77.44        38.72
 that the railroad has provided a                           statements.
 copy of the program to RLOs.
--(e) Comment Period--Affirmed      553 railroads........  31 comments..........  4 hours..............  124.00...............        77.44     9,602.56
 comments on a railroad's program
 by any designated representative
 of employees subject to this part
 or any directly affected employee
 who does not have a designated
 representative.
                                   ---------------------------------------------------------------------------------------------------------------------
--(g) Material Modifications of     The paperwork burden for this requirement is outside the scope of the 3-year PRA review period.
 FRA-approved program--Railroad to
 submit a description of how it
 intends to modify the program and
 a copy of the modified program to
 FRA.
                                   ---------------------------------------------------------------------------------------------------------------------
--(h) Resubmission--Railroad can    553 railroads +        4.67 revised plans     21 hours + 20 hours..  94.40................        77.44     7,310.34
 resubmit its program or material    ASLRRA and holding     (3.67 revised plans
 modification as described in        companies.             Class I and commuter
 paragraph (f)(2) of this section                           railroads + 1
 after addressing all of the                                revised plan ASLRRA
 deficiencies noted by FRA and the                          and holding
 resubmission must conform with                             companies).
 the procedures and requirements
 contained in Sec.   246.106.
                                   ---------------------------------------------------------------------------------------------------------------------
--(i) Rescinding Prior Approval of  The paperwork burden for this requirement is outside the scope of the 3-year PRA review period.
 Program--Railroad to resubmit its
 certification program and the
 program must conform with the
 procedures and requirements
 contained in Sec.   246.106.
                                   ---------------------------------------------------------------------------------------------------------------------
246.105(c)(1)-(d)(1)--Implementati  553 railroads........  3,781 designated       5 minutes............  315.08...............        77.44    24,399.80
 on schedule for certification                              lists.
 programs--Designation of
 certified signal employee.
--(c)(2)-(d)(2) Issue a             553 railroads........  3,781 issued           3 minutes............  189.05...............        77.44    14,640.03
 certificate that complies with                             certificates.
 Sec.   246.207 to each person
 that it designates.
                                   ---------------------------------------------------------------------------------------------------------------------
--(f) Written requests for delayed  FRA anticipates zero submissions.
 certification--Railroad may wait
 to recertify the person making
 the request until the end of the
 three-year period after FRA has
 approved the railroad's
 certification program.
                                   ---------------------------------------------------------------------------------------------------------------------
--(g) Testing and evaluation--      The paperwork burden for testing and evaluation is included in the economic burden and the burden for certificates
 Railroad shall only certify or      is included under Sec.   246.105.
 recertify a person as a signal
 employee if that person has been
 tested and evaluated in
 accordance with procedures that
 comply with subpart B of this
 part.
                                   ---------------------------------------------------------------------------------------------------------------------
246.106--Requirements for           The paperwork requirements described in this section are accounted for throughout this table.
 Certification Programs--
 Procedures for Submission and
 Approval of Dispatcher
 Certification Programs.
                                   ---------------------------------------------------------------------------------------------------------------------
246.109(a)--Determinations          The paperwork burden for this requirement is covered under Sec.   246.111 through Sec.   246.121 and Sec.   246.303.
 required for certification and
 recertification--Eligibility
 requirements.
                                   ---------------------------------------------------------------------------------------------------------------------

[[Page 35665]]

 
246.111(a)-(c)--Prior safety        553 railroads........  1,706 motor vehicle    5 minutes............  142.17...............        77.44    11,009.64
 conduct as motor vehicle                                   records.
 operator--Eligibility
 requirements of this section
 involving prior conduct as a
 motor vehicle operator.
--(e) If driver information is not  553 railroads........  2 waivers............  2 hours..............  4.00.................        77.44       309.76
 obtained as required pursuant to
 paragraph (g) of this section,
 that person or the railroad
 certifying or recertifying that
 person may petition for a waiver
 in accordance with the provisions
 of part 211 of this chapter.
                                   ---------------------------------------------------------------------------------------------------------------------
--(f) Individual's duty--Consent    This is usual and customary procedure. The consent form is signed at the time of hiring to make driving information
 to make information concerning      available to the railroad.
 driving record available to that
 railroad.
                                   ---------------------------------------------------------------------------------------------------------------------
--(g)-(h) Request to obtain         553 railroads........  1,706 written          5 minutes............  142.17...............        59.00     8,388.03
 driver's license information from                          requests.
 licensing agency.
                                   ---------------------------------------------------------------------------------------------------------------------
--(i) Requests for additional       The paperwork burden for this requirement is included under Sec.   246.111(g)-(h).
 information from licensing agency.
                                   ---------------------------------------------------------------------------------------------------------------------
--(j) Notification to railroad by   553 railroads........  2 notices............  10 minutes...........  .33..................        77.44        25.56
 persons of never having a license.
--(k) Report of motor vehicle       553 railroads........  40 self-reports......  10 minutes...........  6.67.................        77.44       516.52
 incidents described in paragraphs
 (m)(1) and (2) of this section to
 the employing railroad within 48
 hours.
--(l)-(m) Evaluation of person's    553 railroads........  1,706 motor vehicle    5 minutes............  142.17...............        71.89    10,220.60
 driving record by railroad.                                record evaluations.
--(n)(1) DAC referral by railroad   553 railroads........  36 DAC referrals.....  5 minutes............  3.00.................       115.24       345.72
 after report of driving drug/
 alcohol incident.
--(n)(2) DAC request and supply by  553 railroads........  1 request and          30 minutes...........  .50..................       115.24        57.62
 persons of prior counseling or                             supplied record.
 treatment.
--(n)(3) Conditional                553 railroads........  3 conditional          4 hours..............  12.00................       115.24     1,382.88
 certifications recommended by DAC.                         certification
                                                            recommendations.
                                   ---------------------------------------------------------------------------------------------------------------------
246.113(b)--Prior safety conduct    This is usual and customary procedure and therefore there is no paperwork burden.
 as an employee of a different
 railroad--Certification candidate
 has not been employed by any
 other railroad in the previous
 five years, they do not have to
 submit a request in accordance
 with paragraph (d) of this
 section, but they must notify the
 railroad of this fact in
 accordance with procedures
 established by the railroad in
 its certification program.
                                   ---------------------------------------------------------------------------------------------------------------------
--(c) Person seeking certification  553 railroads........  43.00 requests.......  15 minutes...........  10.75................        77.44       832.48
 or recertification under this
 part shall submit a written
 request to each railroad that
 employed the person within the
 previous five years.
                                   ---------------------------------------------------------------------------------------------------------------------
--(e) and (g) Railroad shall        553 railroads........  43.00 records........  15 minutes...........  10.75................        77.44       832.48
 provide the information requested
 to the railroad designated in the
 written request.
                                   ---------------------------------------------------------------------------------------------------------------------
--(f) An explanation shall state    FRA anticipates zero submissions.
 why the railroad cannot provide
 the information within the
 requested time frame or cannot
 provide the requested information.
                                   ---------------------------------------------------------------------------------------------------------------------
246.115(a)--Substance abuse         553 railroads........  1,535 determinations.  2 minutes............  51.17................        77.40     3,960.56
 disorders and alcohol drug rules
 compliance--Determination that
 person meets eligibility
 requirements.
--(b) Written documents from DAC    553 railroads........  79 filed documents...  30 minutes...........  39.50................       115.24     4,551.98
 that person is not affected by a
 disorder.
--(c)(3) Fitness requirement--      553 railroads........  2 self-referrals.....  10 minutes...........  .33..................       115.24        38.03
 Voluntarily self-referral by
 signal employee for substance
 abuse counseling or treatment
 under the policy required by Sec.
   219.1003 of this chapter.
--(d)(1)-(d)(2) Prior alcohol/drug  553 railroads........  1,535 certification    10 minutes...........  255.83...............       115.24    29,481.85
 conduct; Federal rule compliance.                          reviews.
--(d)(3)(i) Written determination   553 railroads........  30 written             1 hour...............  30.00................       115.24     3,457.20
 that most recent incident has                              determinations.
 occurred.
--(d)(3)(ii) Notification to        553 railroads........  30 notifications.....  30 minutes...........  15.00................        77.44     1,161.60
 person that recertification has
 been denied.

[[Page 35666]]

 
--(d)(4) Persons/conductors         553 railroads........  20 waived              10 minutes...........  3.33.................        77.44       257.88
 waiving investigation/de-                                  investigations.
 certifications.
246.117(a)-(c)--Vision acuity--     553 railroads........  400 records..........  2 minutes............  13.33................        71.89       958.29
 Determination vision standards
 met--Medical examiner certificate/
 record.
--(d)(1) Request for retest and     553 railroads........  10 records...........  2 minutes............  .33..................        71.89        23.72
 another medical evaluation--
 Medical examiner certificate/
 record.
--(d)(2) Railroad to provide a      553 railroads........  400 copies...........  5 minutes............  33.33................        71.89     2,396.09
 copy of this part to medical
 examiner.
--(d)(3) Consultations by medical   553 railroads........  5 consultations + 5    30 minutes + 10        3.33.................        71.89       239.39
 examiners with railroad officer                            conditional            minutes.
 and issue of conditional                                   certifications.
 certification.
--(g) Notification by certified     553 railroads........  1 notification.......  10 minutes...........  .17..................        71.89        12.22
 signal employee of deterioration
 of vision.
246.118--Hearing acuity--           553 railroads........  400 medical records..  2 minutes............  13.33................        71.89       958.29
 Determination hearing standards
 met--Medical records.
--(d)(1) Request for retest and     553 railroads........  10 records...........  2 minutes............  .33..................        71.89        23.72
 another medical evaluation--
 Medical examiner certificate/
 record.
--(d)(2) Railroad to provide a      553 railroads........  400 copies...........  5 minutes............  33.33................        71.89     2,396.09
 copy of this part to medical
 examiner.
--(d)(3) Consultations by medical   553 railroads........  5 consultations + 5    30 minutes + 10        3.33.................        71.89       239.39
 examiners with railroad officer                            conditional            minutes.
 and issue of conditional                                   certifications.
 certification.
--(g) Notification by certified     553 railroads........  25 notifications.....  10 minutes...........  4.17.................        71.89       299.78
 signal employee of deterioration
 of hearing.
                                   ---------------------------------------------------------------------------------------------------------------------
246.119(b)-(c)--Training            The paperwork burden for this requirement is covered under Sec.   246.101/.103.
 requirements--A railroad's
 election for the training of
 signal employees shall be stated
 in its certification program.
                                   ---------------------------------------------------------------------------------------------------------------------
--(d) Initial training program for  553 railroads........  184 training programs  3 hours..............  553.00...............       115.24    63,727.72
 previously untrained person to be
 a signal employee.
                                   ---------------------------------------------------------------------------------------------------------------------
--(d)(3) Modification to training   The paperwork burden for this requirement is outside the scope of the 3-year PRA review period.
 program when new safety-related
 railroad laws, regulations and
 etc. are introduced into the
 workplace.
                                   ---------------------------------------------------------------------------------------------------------------------
--(e) Relevant information or       The paperwork burden for this requirement is covered under Sec.   246.101/.103.
 materials on safety or other
 rules made available to
 certification candidates.
                                   ---------------------------------------------------------------------------------------------------------------------
--(f) and (g) Completion of         553 railroads........  3,781 written          10 minutes...........  630.17...............        77.44    48,800.36
 initial training program by a                              documents or records.
 person being certified as a
 signal employee--Written
 documentation showing completed
 training program that complies
 with paragraph (d) of this
 section.
                                   ---------------------------------------------------------------------------------------------------------------------
--(f)(3) Employee consultation      The paperwork burden for this requirement is covered under Sec.   246.119.
 with qualified supervisory
 employee if given written test to
 fulfill this requirement, the
 railroad must provide the
 certification candidate with an
 opportunity to consult with a
 qualified instructor to explain a
 question.
                                   ---------------------------------------------------------------------------------------------------------------------
--(h) Certification program is      The paperwork burden for this requirement is covered under Sec.   246.101/.103.
 submitted in accordance with the
 procedures and requirements
 described in Sec.   246.106.
                                   ---------------------------------------------------------------------------------------------------------------------
--(i) Familiarization training for  FRA anticipates zero submissions.
 signal employee of acquiring
 railroad from selling company/
 railroad prior to commencement of
 new operation.
                                   ---------------------------------------------------------------------------------------------------------------------
--(j) Continuing education of       553 railroads........  2,000 training         15 minutes...........  500.00...............        71.89    35,945.00
 certified signal employees.                                records.
                                   ---------------------------------------------------------------------------------------------------------------------
246.120--Requirements for           The paperwork burden for this requirement is covered under Sec.   246.119.
 qualification--Determining
 eligibility and.
                                   ---------------------------------------------------------------------------------------------------------------------
--(b) Notification by persons not   The paperwork burden for this requirement is covered under Sec.   246.119.
 qualified on the signal system.
                                   ---------------------------------------------------------------------------------------------------------------------
246.121(a)-(c)--Knowledge testing-- 553 railroads........  2,000 test records...  5 minutes............  166.67...............        77.44    12,906.92
 Determining eligibility.
--(d) Reexamination of the failed   553 railroads........  20 examination         5 minutes............  1.67.................        77.44       129.32
 test.                                                      records.

[[Page 35667]]

 
246.123(c)--Monitoring operational  553 railroads........  7,348 records........  2 minutes............  244.93...............        77.44    18,967.38
 performance--Unannounced
 compliance tests--Retention of a
 written record.
246.125--Certification              553 railroads........  11.00 determinations.  30 minutes...........  5.50.................        77.44       425.92
 determinations made by other
 railroads.
246.203(b)--Retaining information   553 railroads........  2,000 record           15 minutes...........  500.00...............        77.44    38,720.00
 supporting determination--Records.                         retentions.
--(g) Amended electronic records..  553 railroads........  2 amended record.....  15 minutes...........  .50..................        77.44        38.72
                                   ---------------------------------------------------------------------------------------------------------------------
246.205--List of certified signal   The paperwork requirement for this burden is covered under Sec.   246.105(c)(1)-(d)(1).
 employees and recordkeeping..
                                   ---------------------------------------------------------------------------------------------------------------------
246.207(a)-(f)--Certificate         The paperwork requirement for this burden is covered under Sec.   246.105(c)(2)-(d)(2).
 requirements.
                                   ---------------------------------------------------------------------------------------------------------------------
--(b) Notification by signal        553 railroads........  110 notifications....  30 seconds...........  .92..................        71.89        66.14
 employees that railroad request
 to serve exceeds certification.
--(g)-(h) Replacement of            553 railroads........  45 replacement         5 minutes............  3.75.................        77.44       290.40
 certificates.                                              certificates.
246.213(a)-(h)--Multiple            553 railroads........  3 notifications......  10 minutes...........  .50..................        77.44        38.72
 Certificates--Notification of
 denial of certification by
 individuals holding multiple
 certifications.
                                   ---------------------------------------------------------------------------------------------------------------------
--(i) In lieu of issuing multiple   The paperwork requirement for this burden is covered under Sec.   246.105.
 certificates, a railroad may
 issue one certificate to a person
 who is certified in multiple
 crafts.
                                   ---------------------------------------------------------------------------------------------------------------------
246.215--Railroad oversight         553 railroads........  17.33 annual reviews   8 hours..............  138.64...............       115.24    15,976.87
 responsibility--Review and                                 and analyses.
 analysis of administration of
 certification program.
--(d) Report of findings and        553 railroads........  2 reports............  4 hours..............  8.00.................       115.24       921.92
 conclusions reached during annual
 review by railroad to FRA (if
 requested in writing by FRA)
 review and analysis effort..
246.301(a)--Denial of               553 railroads........  6 notices + 3          1 hour...............  9.00.................        77.44       696.96
 certification--Notification to                             responses.
 candidate of information that and
 candidate response forms basis
 for denying certification.
--(b) Denial Decision               553 railroads........  6 notifications......  1 hour...............  6.00.................        77.44       464.64
 Requirements--Written
 notification of denial of
 certification by railroad to
 candidate.
246.307(b)(1)-(b)(4)--Process for   553 railroads........  15 suspended           30 minutes...........  7.50.................        77.44       580.80
 revoking certification--Immediate                          certification
 suspension of signal employee's                            letters and
 certification.                                             documentations.
                                   ---------------------------------------------------------------------------------------------------------------------
--(b)(5)-(b)(6) Determinations      The paperwork requirement for this burden is covered under Sec.   246.307(e).
 based on the record of the
 hearing, whether revocation of
 the certification is warranted.
                                   ---------------------------------------------------------------------------------------------------------------------
--(b)(7) Retention of record of     553 railroads........  15 records...........  15 minutes...........  3.75.................        77.44       290.40
 the hearing for three years after
 the date the decision is rendered.
--(d)(9) Hearing Procedures--       553 railroads........  3 written waivers....  10 minutes...........  .50..................        59.00        29.50
 Written waiver of right to
 hearing.
--(e) Revocation Decision           553 railroads........  15 written decisions   2 hours..............  30.00................       115.24     3,457.20
 Requirements--Written decisions                            and service of
 by railroad official.                                      decisions.
--(g) Revocation of certification   553 railroads........  3 revoked              10 minutes...........  .50..................       115.24        57.62
 based on information that another                          certifications.
 railroad has done so.
                                   ---------------------------------------------------------------------------------------------------------------------
--(j) Placing relevant information  The paperwork requirement for this burden is covered under Sec.   246.307(b)(7).
 in record if sufficient evidence
 meeting the criteria in paragraph
 (h) or (i) of this section
 becomes available.
                                   ---------------------------------------------------------------------------------------------------------------------
--(k) Good faith determination....  553 railroads........  3 good faith           1 hour...............  3.00.................        77.44       232.32
                                                            determinations.
                                   ---------------------------------------------------------------------------------------------------------------------
Subpart E--Dispute Resolution       The requirements under these provisions are exempted from the PRA under 5 CFR 1320.4(a)(2). Since these provisions
 Procedures--Sec.   246.401          pertain to an administrative action or investigation, there is no PRA burden associated with these requirements.
 through Sec.   246.411.
                                   ---------------------------------------------------------------------------------------------------------------------
Appendix A to Part 246--Procedures  The paperwork requirements described in this appendix are accounted for throughout this table.
 for Obtaining and Evaluating
 Motor Vehicle Driving Record Data.
                                   ---------------------------------------------------------------------------------------------------------------------
Appendix B to Part 246--Medical     The paperwork requirements described in this appendix are accounted for throughout this table.
 Standards Guidelines.
                                   ---------------------------------------------------------------------------------------------------------------------

[[Page 35668]]

 
    Totals \35\...................  553 railroads +        35,577 responses.....  N/A..................  7,682................          N/A      747,257
                                     ASLRRA and holding
                                     companies.
--------------------------------------------------------------------------------------------------------------------------------------------------------

    All estimates include the time for reviewing instructions; 
searching existing data sources; gathering or maintaining the needed 
data; and reviewing the information. Pursuant to 44 U.S.C. 
3506(c)(2)(B), FRA solicits comments concerning: Whether these 
information collection requirements are necessary for the proper 
performance of the functions of FRA, including whether the information 
has practical utility; the accuracy of FRA's estimates of the burden of 
the information collection requirements; the quality, utility, and 
clarity of the information to be collected; and whether the burden of 
collection of information on those who are to respond, including 
through the use of automated collection techniques or other forms of 
information technology, may be minimized. For information or a copy of 
the paperwork package submitted to OMB, contact Ms. Arlette Mussington, 
Information Collection Clearance Officer, at email: 
[email protected] or telephone: (571) 609-1285 or Ms. Joanne 
Swafford, Information Collection Clearance Officer, at email: 
[email protected] or telephone: (757) 897-9908. Organizations and 
individuals desiring to submit comments on the collection of 
information requirements should direct them via email to Ms. Mussington 
at [email protected] or Ms. Swafford at 
[email protected].
---------------------------------------------------------------------------

    \34\ Throughout the tables in this document, the dollar 
equivalent cost is derived from the 2020 Surface Transportation 
Board's Full Year Wage A&B data series using the appropriate 
employee group hourly wage rate that includes 75-percent overhead 
charges.
    \35\ Totals may not add due to rounding.
---------------------------------------------------------------------------

    OMB is required to decide concerning the collection of information 
requirements contained in this rule between 30 and 60 days after 
publication of this document in the Federal Register. Therefore, a 
comment to OMB is best assured of having its full effect if OMB 
receives it within 30 days of publication. FRA is not authorized to 
impose a penalty on persons for violating information collection 
requirements that do not display a current OMB control number, if 
required. FRA intends to obtain current OMB control numbers for any new 
information collection requirements resulting from this rulemaking 
action prior to the effective date of the final rule. The OMB control 
number, when assigned, will be announced by separate notice in the 
Federal Register.

D. Federalism Implications

    Executive Order 13132, Federalism,\36\ requires FRA to develop an 
accountable process to ensure ``meaningful and timely input by State 
and local officials in the development of regulatory policies that have 
federalism implications.'' ``Policies that have federalism 
implications'' are defined in the Executive Order to include 
regulations that have ``substantial direct effects on the States, on 
the relationship between the national government and the States, or on 
the distribution of power and responsibilities among the various levels 
of government.'' Under Executive Order 13132, the agency may not issue 
a regulation with federalism implications that imposes substantial 
direct compliance costs and that is not required by statute, unless the 
Federal government provides the funds necessary to pay the direct 
compliance costs incurred by State and local governments, the agency 
consults with State and local governments, or the agency consults with 
State and local government officials early in the process of developing 
the regulation. Where a regulation has federalism implications and 
preempts State law, the agency seeks to consult with State and local 
officials in the process of developing the regulation.
---------------------------------------------------------------------------

    \36\ 64 FR 43255 (Aug. 10, 1999).
---------------------------------------------------------------------------

    FRA has analyzed this proposed rule in accordance with the 
principles and criteria contained in Executive Order 13132. FRA has 
determined that this proposed rule has no federalism implications, 
other than the possible preemption of State laws under 49 U.S.C. 20106. 
Therefore, the consultation and funding requirements of Executive Order 
13132 do not apply, and preparation of a federalism summary impact 
statement for the proposed rule is not required.

E. International Trade Impact Assessment

    The Trade Agreements Act of 1979 \37\ prohibits Federal agencies 
from engaging in any standards or related activities that create 
unnecessary obstacles to the foreign commerce of the United States. 
Legitimate domestic objectives, such as safety, are not considered 
unnecessary obstacles. The statute also requires consideration of 
international standards and, where appropriate, that they be the basis 
for U.S. standards. This proposed rule is purely domestic in nature and 
is not expected to affect trade opportunities for U.S. firms doing 
business overseas or for foreign firms doing business in the United 
States.
---------------------------------------------------------------------------

    \37\ 19 U.S.C. Ch. 13.
---------------------------------------------------------------------------

F. Environmental Impact

    FRA has evaluated this proposed rule consistent with the National 
Environmental Policy Act \38\ (NEPA), the Council on Environmental 
Quality's NEPA implementing regulations,\39\ and FRA's NEPA 
implementing regulations \40\ and determined that it is categorically 
excluded from environmental review and therefore does not require the 
preparation of an environmental assessment (EA) or environmental impact 
statement (EIS). Categorical exclusions (CEs) are actions identified in 
an agency's NEPA implementing regulations that do not normally have a 
significant impact on the environment and therefore do not require 
either an EA or EIS.\41\ Specifically, FRA has determined that this 
proposed rule is categorically excluded from detailed environmental 
review.\42\
---------------------------------------------------------------------------

    \38\ 42 U.S.C. 4321 et seq.
    \39\ 40 CFR parts 1500-1508.
    \40\ 23 CFR part 771.
    \41\ 40 CFR 1508.4.
    \42\ See 23 CFR 771.116(c)(15) (categorically excluding 
``[p]romulgation of rules, the issuance of policy statements, the 
waiver or modification of existing regulatory requirements, or 
discretionary approvals that do not result in significantly 
increased emissions of air or water pollutants or noise'').
---------------------------------------------------------------------------

    The main purpose of this rulemaking is to establish certification 
requirements for signal employees. This rule would not directly or 
indirectly impact any environmental resources and would not

[[Page 35669]]

result in significantly increased emissions of air or water pollutants 
or noise. In analyzing the applicability of a CE, FRA must also 
consider whether unusual circumstances are present that would warrant a 
more detailed environmental review.\43\ FRA has concluded that no such 
unusual circumstances exist with respect to this proposed rule and it 
meets the requirements for categorical exclusion.\44\
---------------------------------------------------------------------------

    \43\ 23 CFR 771.116(b).
    \44\ 23 CFR 771.116(c)(15).
---------------------------------------------------------------------------

    Pursuant to Section 106 of the National Historic Preservation Act 
and its implementing regulations, FRA has determined this undertaking 
has no potential to affect historic properties.\45\ FRA has also 
determined that this rulemaking does not approve a project resulting in 
a use of a resource protected by Section 4(f).\46\ Further, FRA 
reviewed this proposed rulemaking and found it consistent with 
Executive Order 14008, ``Tackling the Climate Crisis at Home and 
Abroad.''
---------------------------------------------------------------------------

    \45\ See 16 U.S.C. 470.
    \46\ See Department of Transportation Act of 1966, as amended 
(Public Law 89-670, 80 Stat. 931); 49 U.S.C. 303.
---------------------------------------------------------------------------

G. Executive Order 12898 (Environmental Justice)

    Executive Order 12898, ``Federal Actions to Address Environmental 
Justice in Minority Populations and Low-Income Populations,'' and DOT 
Order 5610.2C \47\ require DOT agencies to achieve environmental 
justice as part of their mission by identifying and addressing, as 
appropriate, disproportionately high and adverse human health or 
environmental effects, including interrelated social and economic 
effects, of their programs, policies, and activities on minority 
populations and low-income populations. The DOT Order instructs DOT 
agencies to address compliance with Executive Order 12898 and 
requirements within the DOT Order in rulemaking activities, as 
appropriate, and also requires consideration of the benefits of 
transportation programs, policies, and other activities where minority 
populations and low-income populations benefit, at a minimum, to the 
same level as the general population as a whole when determining 
impacts on minority and low-income populations. FRA has evaluated this 
proposed rule under Executive Order 12898 and the DOT Order and has 
determined it would not cause disproportionately high and adverse human 
health and environmental effects on minority populations or low-income 
populations.
---------------------------------------------------------------------------

    \47\ Available at https://www.transportation.gov/sites/dot.gov/files/Final-for-OST-C-210312-003-signed.pdf.
---------------------------------------------------------------------------

H. Unfunded Mandates Reform Act of 1995

    Under section 201 of the Unfunded Mandates Reform Act of 1995,\48\ 
each Federal agency ``shall, unless otherwise prohibited by law, assess 
the effects of Federal regulatory actions on State, local, and Tribal 
governments, and the private sector (other than to the extent that such 
regulations incorporate requirements specifically set forth in law).'' 
Section 202 of the Act \49\ further requires that ``before promulgating 
any general notice of proposed rulemaking that is likely to result in 
promulgation of any rule that includes any Federal mandate that may 
result in the expenditure by State, local, and Tribal governments, in 
the aggregate, or by the private sector, of $100,000,000 or more 
(adjusted annually for inflation) in any 1 year, and before 
promulgating any final rule for which a general notice of proposed 
rulemaking was published, the agency shall prepare a written 
statement'' detailing the effect on State, local, and Tribal 
governments and the private sector. This proposed rule would not result 
in the expenditure, in the aggregate, of $100,000,000 or more (as 
adjusted annually for inflation) in any one year, and thus preparation 
of such a statement is not required.
---------------------------------------------------------------------------

    \48\ Public Law 104-4, 2 U.S.C. 1531.
    \49\ 2 U.S.C. 1532.
---------------------------------------------------------------------------

I. Energy Impact

    Executive Order 13211, ``Actions Concerning Regulations That 
Significantly Affect Energy Supply, Distribution, or Use,'' requires 
Federal agencies to prepare a Statement of Energy Effects for any 
``significant energy action.'' \50\ FRA evaluated this proposed rule 
under Executive Order 13211 and determined that this regulatory action 
is not a ``significant energy action'' within the meaning of Executive 
Order 13211.
---------------------------------------------------------------------------

    \50\ 66 FR 28355 (May 22, 2001).
---------------------------------------------------------------------------

J. Privacy Act Statement

    In accordance with 5 U.S.C. 553(c), DOT solicits comments from the 
public to better inform its rulemaking process. DOT posts these 
comments, without edit, to www.regulations.gov, as described in the 
system of records notice, DOT/ALL-14 FDMS, accessible through 
www.dot.gov/privacy. To facilitate comment tracking and response, we 
encourage commenters to provide their name, or the name of their 
organization; however, submission of names is completely optional. 
Whether or not commenters identify themselves, all timely comments will 
be fully considered. If you wish to provide comments containing 
proprietary or confidential information, please contact the agency for 
alternate submission instructions.

K. Executive Order 13175 (Tribal Consultation)

    FRA has evaluated this proposed rule in accordance with the 
principles and criteria contained in Executive Order 13175, 
Consultation and Coordination with Indian Tribal Governments, dated 
November 6, 2000. The proposed rule would not have a substantial direct 
effect on one or more Indian Tribes, would not impose substantial 
direct compliance costs on Indian Tribal governments, and would not 
preempt Tribal laws. Therefore, the funding and consultation 
requirements of Executive Order 13175 do not apply, and a Tribal 
summary impact statement is not required.

List of Subjects in 49 CFR Part 246

    Administrative practice and procedure, Signal Employee, Penalties, 
Railroad employees, Railroad safety, Reporting and recordkeeping 
requirements.

The Proposed Rule

0
For the reasons discussed in the preamble, FRA proposes to amend 
chapter II, subtitle B, of title 49 of the Code of Federal Regulations, 
by adding part 246 to read as follows:

PART 246--CERTIFICATION OF SIGNAL EMPLOYEES

Sec.
Subpart A--General
246.1 Purpose and scope.
246.3 Application and responsibility for compliance.
246.5 Effect and construction.
246.7 Definitions.
246.9 Waivers.
246.11 Penalties and consequences for noncompliance.
Subpart B--Program and Eligibility Requirements
246.101 Certification program required.
246.103 FRA review of certification programs.
246.105 Implementation schedule for certification programs.
246.106 Requirements for certification programs.
246.107 Signal service classifications.
246.109 Determinations required for certification and 
recertification.
246.111 Prior safety conduct as motor vehicle operator.

[[Page 35670]]

246.113 Prior safety conduct with other railroads.
246.115 Substance abuse disorders and alcohol drug rules compliance.
246.117 Vision acuity.
246.118 Hearing acuity.
246.119 Training requirements.
246.121 Knowledge testing.
246.123 Monitoring operational performance.
246.124 Mentoring.
246.125 Certification determinations made by other railroads.
Subpart C--Administration of the Certification Program
246.201 Time limitations for certification.
246.203 Retaining information supporting determinations.
246.205 List of certified signal employees and recordkeeping.
246.207 Certificate requirements.
246.213 Multiple certifications.
246.215 Railroad oversight responsibilities.
Subpart D--Denial and Revocation of Certification
246.301 Process for denying certification.
246.303 Criteria for revoking certification.
246.305 Periods of ineligibility.
246.307 Process for revoking certification.
Subpart E--Dispute Resolution Procedures
246.401 Review board established.
246.403 Petition requirements.
246.405 Processing certification review petitions.
246.407 Request for a hearing.
246.409 Hearings.
246.411 Appeals.
Appendix A to Part 246--Procedures for Obtaining and Evaluating 
Motor Vehicle Driving Record Data
Appendix B to Part 246--Medical Standards Guidelines

    Authority: 49 U.S.C. 20103, 20107, 20162, 21301, 21304, 21311; 
28 U.S.C. 2461 note; 49 CFR 1.89; and Public Law 110-432, sec. 402, 
122 Stat. 4884.

Subpart A--General


Sec.  246.1  Purpose and scope.

    (a) The purpose of this part is to ensure that only those persons 
who meet minimum Federal safety standards serve as certified signal 
employees, to reduce the rate and number of accidents and incidents, 
and to improve railroad safety.
    (b) This part prescribes minimum Federal safety standards for the 
eligibility, training, testing, certification and monitoring of all 
signal employees to whom it applies. This part does not restrict a 
railroad from adopting and enforcing additional or more stringent 
requirements consistent with this part.
    (c) The signal employee certification requirements prescribed in 
this part apply to any person who meets the definition of signal 
employee contained in Sec.  246.7, regardless of the fact that the 
person may have a job classification title other than that of signal 
employee.


Sec.  246.3  Application and responsibility for compliance.

    (a) This part applies to all railroads, except:
    (1) Railroads that do not have a signal system as defined in Sec.  
246.7;
    (2) Railroads that operate only on track inside an installation 
that is not part of the general railroad system of transportation 
(i.e., plant railroads, as defined in Sec.  246.7);
    (3) Tourist, scenic, historic, or excursion operations conducted 
only on track used exclusively for that purpose (i.e., there is no 
freight, intercity passenger, or commuter passenger railroad operations 
on the track) and only on track inside an installation that is insular; 
i.e., the operations are limited to a separate enclave in such a way 
that there is no reasonable expectation that the safety of the public--
except a business guest, a licensee of the railroad or an affiliated 
entity, or a trespasser--would be affected by the operation. An 
operation will not be considered insular, for purposes of this part, if 
one or more of the following exists on its line:
    (i) A public highway-rail grade crossing that is in use;
    (ii) A public pathway grade crossing that is in use;
    (iii) An at-grade rail crossing that is in use;
    (iv) A bridge over a public road or waters used for commercial 
navigation; or
    (v) A common corridor with a railroad, i.e., its operations are 
within 30 feet of those of any railroad; or
    (4) Rapid transit operations in an urban area that are not 
connected to the general railroad system of transportation.
    (b) Although the duties imposed by this part are generally stated 
in terms of the duty of a railroad, each person, as defined in Sec.  
246.7, who performs any function required by this part must perform 
that function in accordance with this part.


Sec.  246.5  Effect and construction.

    (a) FRA does not intend, by use of the term signal employee in this 
part, to alter the terms, conditions, or interpretation of existing 
collective bargaining agreements that employ other job classification 
titles when identifying a person who is engaged in installing, 
troubleshooting, testing, repair, or maintenance of railroad signal 
systems.
    (b) FRA does not intend by issuance of these regulations to alter 
the authority of a railroad to initiate disciplinary sanctions against 
its employees, including managers and supervisors, in the normal and 
customary manner, including those contained in its collective 
bargaining agreements.
    (c) Except as provided in Sec.  246.213, nothing in this part shall 
be construed to create or prohibit an eligibility or entitlement to 
employment in other service for the railroad as a result of denial, 
suspension, or revocation of certification under this part.
    (d) Nothing in this part shall be deemed to abridge any additional 
procedural rights or remedies not inconsistent with this part that are 
available to the employee under a collective bargaining agreement, the 
Railway Labor Act, or (with respect to employment at will) at common 
law with respect to removal from service or other adverse action taken 
as a consequence of this part.


Sec.  246.7  Definitions.

    As used in this part:
    Administrator means the Administrator of the FRA or the 
Administrator's delegate.
    Alcohol means ethyl alcohol (ethanol) and includes use or 
possession of any beverage, mixture, or preparation containing ethyl 
alcohol.
    Contractor means a person under contract with a railroad, including 
but not limited to, a prime contractor or a subcontractor.
    Controlled substance has the meaning assigned by 21 U.S.C. 802 and 
includes all substances listed on Schedules I through V as they may be 
revised from time to time (21 CFR parts 1301 through 1316).
    Disable means to render a device or system incapable of proper and 
effective action or to materially impair the functioning of that device 
or system.
    Drug means any substance (other than alcohol) that has known mind 
or function-altering effects on a human subject, specifically including 
any psychoactive substance and including, but not limited to, 
controlled substances.
    Drug and alcohol counselor (DAC) means a person who meets the 
credentialing and qualification requirements of a ``Substance Abuse 
Professional'' (SAP), as provided in 49 CFR part 40.
    File, filed, and filing mean submission of a document under this 
part on the date when the Docket Clerk receives it, or if sent by mail, 
the date mailing was completed.
    FRA means the Federal Railroad Administration.
    FRA representative means the FRA Associate Administrator for 
Railroad

[[Page 35671]]

Safety/Chief Safety Officer and the Associate Administrator's delegate, 
including any safety inspector employed by the Federal Railroad 
Administration and any qualified State railroad safety inspector acting 
under part 212 of this chapter.
    Ineligible or ineligibility means that a person is legally 
disqualified from serving as a certified signal employee. The term 
covers a number of circumstances in which a person may not serve as a 
certified signal employee. Revocation of certification pursuant to 
Sec.  246.307 and denial of certification pursuant to Sec.  246.301 are 
two examples in which a person would be ineligible to serve as a 
certified signal employee. A period of ineligibility may end when a 
condition or conditions are met, such as when a person meets the 
conditions to serve as a certified signal employee following an alcohol 
or drug violation pursuant to Sec.  246.115.
    Knowingly means having actual knowledge of the facts giving rise to 
the violation or that a reasonable person acting in the circumstances, 
exercising due care, would have had such knowledge.
    Medical examiner means a person licensed as a doctor of medicine or 
doctor of osteopathy. A medical examiner can be a qualified full-time 
salaried employee of a railroad, a qualified practitioner who contracts 
with the railroad on a fee-for-service or other basis, or a qualified 
practitioner designated by the railroad to perform functions in 
connection with medical evaluations of employees. As used in this rule, 
the medical examiner owes a duty to make an honest and fully informed 
evaluation of the condition of an employee.
    Mentor means a certified signal employee who has at least one year 
of experience as a certified signal employee. For purposes of this 
part, a mentor also provides direct supervision and oversight over the 
work of one or more signal employees.
    On-the-job training means job training that occurs in the 
workplace, i.e., the employee learns the job while doing the job.
    Person means an entity of any type covered under 1 U.S.C. 1, 
including but not limited to the following: a railroad; a manager, 
supervisor, official, or other employee or agent of a railroad; any 
owner, manufacturer, lessor, or lessee of railroad equipment, track, or 
facilities; any independent contractor providing goods or services to a 
railroad; and any employee of such owner, manufacturer, lessor, lessee, 
or independent contractor.
    Physical characteristics means the actual track profile of and 
physical location for points within a specific yard or route that 
affect the movement of a locomotive or train. Physical characteristics 
includes how signal systems and related technology are deployed within 
the territory, for purposes of this part.
    Plant railroad means a plant or installation that owns or leases a 
locomotive, uses that locomotive to switch cars throughout the plant or 
installation, and is moving goods solely for use in the facility's own 
industrial processes. The plant or installation could include track 
immediately adjacent to the plant or installation if the plant railroad 
leases the track from the general system railroad and the lease 
provides for (and actual practice entails) the exclusive use of that 
trackage by the plant railroad and the general system railroad for 
purposes of moving only cars shipped to or from the plant. A plant or 
installation that operates a locomotive to switch or move cars for 
other entities, even if solely within the confines of the plant or 
installation, rather than for its own purposes or industrial processes, 
will not be considered a plant railroad because the performance of such 
activity makes the operation part of the general railroad system of 
transportation.
    Qualified instructor means a person who:
    (1) Has demonstrated, pursuant to the railroad's written program, 
an adequate knowledge of the subjects under instruction;
    (2) Where applicable, has the necessary experience to effectively 
instruct in the field;
    (3) Is a certified signal employee under this part; and
    (4) If the railroad has designated employee representation, has 
been selected by a designated railroad officer, in concurrence with the 
designated employee representative, or has a minimum of one year of 
service working as a certified signal employee.
    Railroad means any form of nonhighway ground transportation that 
runs on rails or electromagnetic guideways and any entity providing 
such transportation, including:
    (1) Commuter or other short-haul railroad passenger service in a 
metropolitan or suburban area and commuter railroad service that was 
operated by the Consolidated Rail Corporation on January 1, 1979; and
    (2) High speed ground transportation systems that connect 
metropolitan areas, without regard to whether those systems use new 
technologies not associated with traditional railroads; but does not 
include rapid transit operations in an urban area that are not 
connected to the general railroad system of transportation.
    Railroad officer means any supervisory employee of a railroad.
    Serve or service, in the context of serving documents, has the 
meaning given in Rule 5 of the Federal Rules of Civil Procedure as 
amended. Similarly, the computation of time provisions in Rule 6 of the 
Federal Rules of Civil Procedure as amended are also applicable in this 
part. See also the definition of ``filing'' in this section.
    Signal employee means a person who is engaged in installing, 
troubleshooting, testing, repairing, or maintaining railroad signal 
systems or related technology.
    Signal system, for purposes of this part, includes the following: 
block signal systems, cab signal systems, train control systems, 
positive train control systems, highway-rail and pathway grade crossing 
warning systems, unusual contingency detection devices, power-assisted 
switches, broken rail detection systems, switch point indicators, as 
well as other safety-related devices, appliances, technology, and 
systems installed on the railroad in signaled or non-signaled 
territory.
    Substance abuse disorder refers to a psychological or physical 
dependence on alcohol or a drug, or another identifiable and treatable 
mental or physical disorder involving the abuse of alcohol or drugs as 
a primary manifestation. A substance abuse disorder is ``active'' 
within the meaning of this part if the person is currently using 
alcohol or other drugs, except under medical supervision consistent 
with the restrictions described in Sec.  219.103 of this chapter or has 
failed to successfully complete primary treatment or successfully 
participate in aftercare as directed by a DAC or SAP.
    Substance Abuse Professional (SAP) means a person who meets the 
qualifications of a substance abuse professional, as provided in 49 CFR 
part 40.
    Unusual contingency detection device means a device used in the 
detection of defective conditions on locomotives and rolling stock 
(e.g., high-wide load, hot or defective bearing, defective wheel 
detectors) or other unsafe conditions (e.g., high-water, high wind, 
sliding or slumping soil, rock or snow slide detectors). These devices 
need not be connected to a signal system for this part to apply.

[[Page 35672]]

Sec.  246.9  Waivers.

    (a) A person subject to a requirement of this part may petition FRA 
for a waiver of compliance with such requirement. The filing of such a 
petition does not affect that person's responsibility for compliance 
with that requirement while the petition is being considered.
    (b) Each petition for a waiver under this section must be filed in 
the manner and contain the information required by part 211 of this 
chapter.
    (c) If FRA finds that a waiver of compliance is in the public 
interest and is consistent with railroad safety, FRA may grant the 
waiver subject to any conditions FRA deems necessary.


Sec.  246.11  Penalties and consequences for noncompliance.

    (a) Any person, as defined in Sec.  246.7, who violates any 
requirement of this part or causes the violation of any such 
requirement is subject to a civil penalty of at least the minimum civil 
monetary penalty and not more than the ordinary maximum civil monetary 
penalty per violation. However, penalties may be assessed against 
individuals only for willful violations, and a penalty not to exceed 
the aggravated maximum civil monetary penalty per violation may be 
assessed, where:
    (1) A grossly negligent violation, or a pattern of repeated 
violations, has created an imminent hazard of death or injury to 
persons, or
    (2) A death or injury has occurred. See 49 CFR part 209, appendix 
A.
    (b) Each day a violation continues constitutes a separate offense.
    (c) A person who violates any requirement of this part or causes 
the violation of any such requirement may be subject to 
disqualification from all safety-sensitive service in accordance with 
part 209 of this chapter.
    (d) A person who knowingly and willfully falsifies a record or 
report required by this part may be subject to criminal penalties under 
49 U.S.C. 21311.
    (e) In addition to the enforcement methods referred to in 
paragraphs (a) through (d) of this section, FRA may also address 
violations of this part by use of the emergency order, compliance 
order, and/or injunctive provisions of the Federal rail safety laws.
    (f) FRA's website at https://railroads.dot.gov/ contains a schedule 
of civil penalty amounts used in connection with this part.

Subpart B--Program and Eligibility Requirements


Sec.  246.101  Certification program required.

    (a) Each railroad subject to this part shall have a written signal 
employee certification program.
    (b) Each certification program shall include all of the following:
    (1) If applicable, an explanation and discussion of the 
occupational categories of certified signal service that comply with 
the requirements in Sec.  246.107;
    (2) A procedure for evaluating prior safety conduct as a motor 
vehicle operator that complies with the criteria established in Sec.  
246.111;
    (3) A procedure for evaluating prior safety conduct with other 
railroads that complies with the criteria established in Sec.  246.113;
    (4) A procedure for evaluating potential substance abuse disorders 
and compliance with railroad alcohol and drug rules that complies with 
the criteria established in Sec.  246.115;
    (5) A procedure for evaluating visual and hearing acuity that 
complies with the criteria established in Sec. Sec.  246.117 and 
246.118;
    (6) A procedure for training that complies with the criteria 
established in Sec.  246.119;
    (7) A procedure for knowledge testing that complies with the 
criteria established in Sec.  246.121;
    (8) A procedure for monitoring operational performance that 
complies with the criteria established in Sec.  246.123; and
    (9) A procedure for mentoring uncertified signal employees that 
complies with the criteria established in Sec.  246.124.
    (c) Each certification program shall be version controlled. Any 
change from the previous version of the certification program must be 
tracked.


Sec.  246.103  FRA review of certification programs.

    (a) Certification program submission schedule for railroads with 
signal systems in operation. With the exception of railroads exempted 
by Sec.  246.3(a), each railroad with a signal system in operation as 
of [EFFECTIVE DATE OF FINAL RULE] shall submit its signal employee 
certification program to FRA, in accordance with the procedures and 
requirements contained in Sec.  246.106, according to the following 
schedule:
    (1) All Class I railroads (including the National Railroad 
Passenger Corporation) and railroads providing commuter service shall 
submit their programs to FRA no later than [DATE 8 MONTHS AFTER 
EFFECTIVE DATE OF FINAL RULE].
    (2) All Class II railroads and Class III railroads (including a 
switching and terminal or other railroad not otherwise classified) 
shall submit their programs to FRA no later than [DATE 16 MONTHS AFTER 
EFFECTIVE DATE OF FINAL RULE].
    (b) Certification program submission for new railroads. Each 
railroad that commences operations after [EFFECTIVE DATE OF FINAL RULE] 
shall submit, and obtain approval of, its written signal employee 
certification program to FRA, in accordance with the procedures and 
requirements contained in Sec.  246.106, prior to installing, 
implementing, or operating a signal system subject to this part.
    (c) Method for submitting certification programs to FRA. Railroads 
must submit their written certification programs and their requests for 
approval (described in Sec.  246.106(a)) by uploading the program to 
FRA's secure document submission site.
    (d) Each railroad that submits a program to FRA must:
    (1) Simultaneously with its submission, provide a copy of the 
program and the request for approval to the president of each labor 
organization that represents the railroad's signal employees and to all 
of the railroad's signal employees who are subject to this part; and
    (2) Include in its submission to FRA, a statement affirming that 
the railroad has provided a copy of the program and request for 
approval to the president of each labor organization that represents 
the railroad's signal employees and to all of the railroad's signal 
employees who are subject to this part, along with a list of the names 
and email addresses of each president of a labor organization who was 
provided a copy of the program.
    (e) Comment period. Any designated representative of signal 
employees subject to this part or any directly affected person who does 
not have a designated representative may comment on a railroad's 
program provided that:
    (1) The comment is submitted no later than 45 days after the date 
the program was submitted to FRA;
    (2) The comment includes a concise statement of the commenter's 
interest in the matter;
    (3) The commenter affirms that a copy of the comment was provided 
to the railroad; and
    (4) The comment was emailed to [email protected].
    (f) FRA review period. Upon receipt of a complete program, FRA will 
commence a thorough review of the

[[Page 35673]]

program to ensure that it satisfies all of the requirements under this 
part.
    (1) If FRA determines that the program satisfies all of the 
requirements under this part, FRA will issue a letter notifying the 
railroad that its program has been approved. Such letter will typically 
be issued within 90 days of the date the program was submitted to FRA.
    (2) If FRA determines that the program does not satisfy all of the 
requirements under this part, FRA will issue a letter notifying the 
railroad that its program has been disapproved. Such letter will 
typically be issued within 90 days of the date the program was 
submitted to FRA and will identify the deficiencies found in the 
program that must be corrected before the program can be approved. 
After addressing these deficiencies, railroads can resubmit their 
programs in accordance with paragraph (h) of this section.
    (3) If a railroad does not receive an approval or disapproval 
letter from FRA within 90 days of the date the program was submitted to 
FRA, FRA's decision on the program will remain pending until such time 
that FRA issues a letter either approving or disapproving the program. 
A certification program is not approved until FRA issues a letter 
approving the program.
    (g) Material modifications. A railroad that intends to make one or 
more material modifications to its FRA-approved program must submit a 
description of how it intends to modify the program and a copy of the 
modified program which indicates changes from the last approved 
version.
    (1) A modification is material if it would affect the program's 
conformance with this part.
    (2) The description of the modification and the modified program 
must conform with the procedures and requirements contained in Sec.  
246.106.
    (3) The process for submission and review of material modifications 
shall conform with paragraphs (c) through (f) of this section.
    (4) A railroad shall not implement a material modification to its 
program until FRA issues its approval of the material modification in 
accordance with paragraph (f)(1) of this section.
    (h) Resubmissions. If FRA disapproves a railroad's program or 
material modification, as described in paragraph (f)(2) of this 
section, the railroad may resubmit its program or material modification 
after addressing all of the deficiencies noted by FRA.
    (1) The resubmission must conform with the procedures and 
requirements contained in Sec.  246.106.
    (2) The process for submission and review of resubmitted programs 
and resubmitted material modifications shall conform with paragraphs 
(c) through (f) of this section.
    (3) The following deadlines apply for railroads that have their 
programs or material modifications disapproved by FRA:
    (i) For a railroad that submitted its program pursuant to paragraph 
(a) of this section, the railroad must resubmit its program within 30 
days of the date that FRA notified the railroad of the deficiencies in 
its program. If a railroad fails to resubmit its program within this 
timeframe and continues its rail operations, FRA may consider such 
actions to be a failure to implement a program.
    (ii) For a railroad that submitted its program pursuant to 
paragraph (b) of this section, there is no FRA-imposed deadline for 
resubmitting its program. However, pursuant to Sec.  246.105(b), the 
railroad shall not install, implement, or operate signal systems 
subject to this part until its program has been approved by FRA.
    (iii) For a railroad that submitted a material modification to its 
FRA-approved program, there is no FRA-imposed deadline for resubmitting 
the material modification. However, pursuant to paragraph (g)(4) of 
this section, the railroad cannot implement the material modification 
until it has been approved by FRA.
    (i) Rescinding prior approval of program. FRA reserves the right to 
revisit its prior approval of a railroad's program at any time.
    (1) If upon such review FRA discovers deficiencies in the program, 
FRA shall issue the railroad a letter rescinding its prior approval of 
the program and notifying the railroad of the deficiencies in its 
program that must be addressed.
    (2) Within 30 days of FRA notifying the railroad of the 
deficiencies in its program, the railroad must address these 
deficiencies and resubmit its program to FRA. The resubmitted program 
must conform with the procedures and requirements contained in Sec.  
246.106.
    (3) The process for submission and review of resubmitted programs 
under this paragraph shall conform with paragraphs (c) through (f) of 
this section.
    (4) If a railroad fails to resubmit its program to FRA within the 
timeframe prescribed in paragraph (i)(2) of this section and the 
railroad continues its rail operations, FRA may consider such actions 
to be a failure to implement a program.
    (5) If FRA issues a letter disapproving the railroad's resubmitted 
program, the railroad shall continue to resubmit its program in 
accordance with this paragraph (i).
    (6) A program that has its approval rescinded under paragraph 
(i)(1) of this section may remain in effect until whichever of the 
following happens first:
    (i) FRA approves the railroad's resubmitted program; or
    (ii) FRA disapproves the railroad's second attempt at resubmitting 
its program.
    (7) If FRA disapproves a railroad's second attempt at resubmitting 
its program under this paragraph and the railroad continues its rail 
operations, FRA may consider such actions to be a failure to implement 
a program.
    (j) Availability of certification program documents. The following 
documents will be available on FRA's website (railroads.dot.gov):
    (1) A railroad's originally submitted program, a resubmission of 
its program, or a material modification of its program;
    (2) Any comments, submitted in accordance with paragraph (e) of 
this section, to a railroad's originally submitted program, a 
resubmission of its program, or a material modification of its program; 
and
    (3) Any approval or disapproval letter issued by FRA in response to 
a railroad's originally submitted program, a resubmission of its 
program, or a material modification of its program.


Sec.  246.105  Implementation schedule for certification programs.

    (a) Each railroad that submits its signal employee certification 
program to FRA in accordance with Sec.  246.103(a), must comply with 49 
CFR parts 233, 234, 235, and 236 while it awaits approval of its 
program by FRA. However, if FRA disapproves a railroad's program on two 
occasions and the railroad continues rail operations, FRA may consider 
such actions to be a failure to implement a program.
    (b) Each railroad that submits its signal employee certification 
program to FRA in accordance with Sec.  246.103(b), must have its 
program approved by FRA prior to installing, implementing, or operating 
signal systems subject to this part. If a railroad installs, 
implements, or operates a signal system before its program is approved 
by FRA, FRA may consider such actions to be a failure to implement a 
program.
    (c) By [DATE 8 MONTHS AFTER EFFECTIVE DATE OF FINAL RULE], each 
railroad shall:
    (1) In writing, designate as certified signal employees all persons 
authorized by the railroad to perform the duties of a certified signal 
employee or, if

[[Page 35674]]

applicable, each category or subcategory of certified signal employee 
identified by the railroad pursuant to Sec.  246.107 as of [EFFECTIVE 
DATE OF FINAL RULE]; and
    (2) Issue a certificate that complies with Sec.  246.207 to each 
person that it designates.
    (d) After [DATE 8 MONTHS AFTER EFFECTIVE DATE OF FINAL RULE], each 
railroad shall:
    (1) In writing, designate as a certified signal employee any person 
who has been authorized by the railroad to perform the duties of a 
certified signal employee or, if applicable, any category or 
subcategory of certified signal employee identified by the railroad 
pursuant to Sec.  246.107 between [EFFECTIVE DATE OF FINAL RULE] and 
the date FRA approves the railroad's certification program; and
    (2) Issue a certificate that complies with Sec.  246.207 to each 
person that it designates.
    (e) After [DATE 8 MONTHS AFTER EFFECTIVE DATE OF FINAL RULE], no 
railroad shall permit or require a person to perform service as a 
certified signal employee unless that person is a certified signal 
employee.
    (f) No railroad shall permit or require a person, designated as a 
certified signal employee under the provisions of paragraph (c) or (d) 
of this section, to perform service as a certified signal employee for 
more than three years after the date FRA approves the railroad's 
certification program unless that person has been tested and evaluated 
in accordance with procedures that comply with subpart B of this part.
    (1) Except as provided in paragraph (f)(3) of this section, a 
person who has been designated as a certified signal employee under the 
provisions of paragraph (c) or (d) of this section and who is eligible 
to receive a retirement pension in accordance with the terms of an 
applicable agreement or in accordance with the terms of the Railroad 
Retirement Act (45 U.S.C. 231) within three years from the date the 
certifying railroad's program is approved, may request, in writing, 
that a railroad not recertify that person, pursuant to subpart B of 
this part, until three years from the date the certifying railroad's 
program is approved.
    (2) Upon receipt of a written request pursuant to paragraph (f)(1) 
of this section, a railroad may wait to recertify the person making the 
request until the end of the three-year period after FRA has approved 
the railroad's certification program. If a railroad grants any request, 
it must grant request all eligible persons to every extent possible.
    (3) A person who is subject to recertification under part 240 or 
242 of this chapter may not make a request pursuant to paragraph (f)(1) 
of this section.
    (g) After a railroad's certification program has been approved by 
FRA, the railroad shall only certify or recertify a person as a signal 
employee if that person has been tested and evaluated in accordance 
with procedures that comply with subpart B of this part.


Sec.  246.106  Requirements for certification programs.

    (a) Railroad certification program submission. (1) A railroad's 
certification program submission must include a copy of its 
certification program and a request for approval.
    (2) The request for approval can be in letter or narrative format.
    (3) A railroad will receive approval or disapproval notices from 
FRA by email.
    (4) FRA may electronically store any materials required by this 
part.
    (b) Organization of the certification program. Each certification 
program must be organized to present the required information in the 
six sections described in paragraphs (b)(1) through (6) of this section 
Each section of the certification program must begin with the name, 
title, telephone number, and email address of the person to be 
contacted concerning the matters addressed by that section. If a person 
is identified in a prior section, it is sufficient to merely repeat the 
person's name in a subsequent section.
    (1) Section One of the certification program: General information 
and elections. (i) The first section of the certification program must 
contain the name of the railroad, the person to be contacted to discuss 
that section (including the person's name, title, telephone number, and 
email address), and a statement electing either to accept 
responsibility for training persons not previously certified as signal 
employees or to not accept this responsibility.
    (ii) If a railroad elects not to provide certification training to 
persons not previously certified as signal employees, the railroad will 
be limited to recertifying signal employees initially certified by 
another railroad. A railroad may change its election by obtaining FRA 
approval of a material modification to its certification program in 
accordance with Sec.  246.103(g).
    (iii) If a railroad elects to accept responsibility for training 
persons not previously certified as signal employees, the railroad must 
submit information on how such persons will be trained but is not 
required to actually perform such training. A railroad that elects to 
accept responsibility for the training of such persons may authorize 
another railroad or a non-railroad entity to provide the training. The 
electing railroad remains responsible for ensuring that the authorized 
training provider(s) adhere to the training program the railroad 
submits.
    (iv) If a railroad elects to classify its certified signal 
employees into more than one occupational category or subcategory by 
class, task, location, or other suitable terminology, the railroad 
shall include the following in this section of its certification 
program:
    (A) An up-to-date list and description of each occupational 
category or subcategory of certified signal employee;
    (B) A statement of the roles and responsibilities of each 
occupational category or subcategory of certified signal employee; and
    (C) A detailed list of the safety-related tasks and subtasks 
performed by each category or subcategory of certified signal employee.
    (2) Section Two of the certification program: Training previously 
certified signal employees. The second section of the certification 
program must contain information concerning the railroad's program for 
training previously certified signal employees, including all of the 
following information:
    (i) As provided for in Sec.  246.119(j), each railroad must have a 
program for the ongoing education of its certified signal employees to 
ensure that they maintain the necessary knowledge concerning all 
applicable Federal safety laws, regulations, and orders; knowledge 
concerning all applicable railroad signal system safety and operating 
rules; and knowledge concerning all applicable standards, procedures, 
and instructions for the installation, operation, testing, maintenance, 
troubleshooting, and repair of signal systems and related technology 
deployed on the railroad. The railroad must describe in this section of 
its certification program how it will ensure that its certified signal 
employees maintain the necessary knowledge and skills to safely 
discharge their responsibilities so as to comply with the standard set 
forth in Sec.  246.119(j);
    (ii) In accordance with Sec.  246.119(h), the railroad must provide 
sufficient detail in the second section of its certification program to 
permit effective evaluation of the contents and scope of the railroad's 
training program on the signal systems and signal-related technology 
deployed on its territory. FRA anticipates that railroads will address, 
in this section of their

[[Page 35675]]

certification programs, the frequency and duration of training sessions 
(including the interval between attendance at such training sessions), 
the training environment(s) that will be employed (e.g., classroom, 
computer-based training, use of film or slide presentations, or on-the-
job training) and which aspects of the training program will be 
voluntary or mandatory;
    (iii) How the training will address a certified signal employee's 
loss of retained knowledge over time; and
    (iv) How the training will address changed circumstances over time, 
such as the introduction of new or modified signal system equipment and 
related technology (including software modifications), so as to comply 
with the training standard set forth in Sec.  246.119.
    (3) Section Three of the certification program: Testing and 
evaluating previously certified signal employees. The third section of 
the certification program must contain information about the railroad's 
program for testing and evaluating previously certified signal 
employees, including all of the following information:
    (i) The railroad must describe in this section how it will ensure 
that its previously certified signal employees demonstrate their 
knowledge concerning the safe discharge of their responsibilities, so 
as to comply with the standards set forth in Sec.  246.121; and
    (ii) The railroad must describe in this section how it will have 
ongoing testing and evaluation to ensure that its previously certified 
signal employees have the required vision and hearing acuity as 
provided in Sec. Sec.  246.117 and 246.118. This section must also 
address how the railroad will ensure that its medical examiners have 
sufficient information concerning the railroad's operations, as well as 
the safety-related tasks performed by certified signal employees, to 
allow for effective and appropriate determinations about the ability of 
a particular individual to safely perform as a certified signal 
employee.
    (4) Section Four of the certification program: Training, testing, 
and evaluating persons who have not been certified as signal employees. 
Unless a railroad has made an election not to accept responsibility for 
conducting the initial signal employee certification training, the 
fourth section of the certification program must contain information 
about the railroad's program for educating, testing, and evaluating 
persons who have not been previously certified as signal employees, 
including all of the following information:
    (i) As provided for in Sec.  246.119, a railroad that is issuing an 
initial signal employee certification to a person must have a program 
for the training, testing, and evaluation of its signal employee 
certification candidates to ensure that they acquire the necessary 
knowledge and skills. A railroad must describe in this section of its 
certification program how it will ensure that its signal employee 
certification candidates acquire sufficient knowledge and skills and 
demonstrate their knowledge and skills concerning the safe discharge of 
their responsibilities. A railroad must also discuss in this section of 
its certification program its procedures for mentoring candidates for 
signal employee certification, in accordance with Sec.  246.124;
    (ii) This section of the railroad's certification program must 
contain the same level of detail concerning the initial training 
program and testing and evaluation of previously uncertified signal 
employees as is required for previously certified signal employees in 
Sec.  246.106(b)(2) and (3) (Sections Two and Three of the railroad's 
certification program);
    (iii) Railroads that elect to rely on other entities to conduct 
signal employee certification training away from the railroad's own 
territory must explain how training will be provided to signal employee 
certification candidates on the signal systems and related technology 
deployed on the railroad's territory.
    (5) Section Five of the certification program: Monitoring 
operational performance by certified signal employees. The fifth 
section of the certification program must contain information about the 
railroad's program for monitoring the operational performance of its 
certified signal employees, including all of the following information:
    (i) Section 246.123 requires that a railroad conduct ongoing 
monitoring of its certified signal employees and that each certified 
signal employee have an annual unannounced compliance test. A railroad 
must describe in this section of its certification program how the 
railroad will ensure that it has an ongoing program for monitoring its 
certified signal employees that requires them to demonstrate their 
ability to safely discharge their responsibilities.
    (ii) A railroad must describe in this section the scoring system 
used by the railroad during operational monitoring observations and 
unannounced compliance tests that are administered in accordance with 
Sec.  246.123.
    (6) Section Six of the certification program: Procedures for 
routine administration of the signal employee certification program. 
The final section of the certification program must contain a summary 
of how the railroad's program and procedures will implement various 
aspects of the regulatory provisions in this part that relate to the 
routine administration of the railroad's certification program for 
signal employees. Specifically, this section must address the 
procedural aspects of the following provisions and must describe the 
manner in which the railroad will implement its program so as to comply 
with each of the following provisions:
    (i) Section 246.301 which provides that each railroad must have 
procedures for review and comment on adverse information;
    (ii) Sections 246.111, 246.113, 246.115, and 246.303 which require 
each railroad to have procedures for evaluating data concerning prior 
safety conduct as a motor vehicle operator and as a railroad worker;
    (iii) Sections 246.109, 246.201, and 246.301 which place a duty on 
the railroad to make a series of determinations. When describing how it 
will implement its certification program to comply with these sections, 
a railroad must describe: the procedures it will utilize to ensure that 
all of the necessary determinations have been made in a timely fashion; 
who will be authorized by the railroad to determine whether a person 
will or will not be certified; and how the railroad will communicate 
adverse decisions;
    (iv) Sections 246.109, 246.117, 246.118, 246.119, and 246.121, 
which place a duty on the railroad to make a series of determinations. 
When describing how the railroad will implement its program to comply 
with these sections, a railroad must describe how it will document the 
factual basis the railroad relied upon when making determinations under 
these sections;
    (v) Section 246.124 which require each railroad to have procedures 
for mentoring signal employees who have not been certified;
    (vi) Section 246.125 which permits reliance on signal employee 
certification determinations made by other railroads; and
    (vii) Sections 246.207 and 246.307 which contain the requirements 
for replacing lost certificates and the conduct of certification 
revocation proceedings.


Sec.  246.107  Signal service classifications.

    (a) A railroad may classify its certified signal employees in 
occupational categories or subcategories by class, task, location, or 
other suitable

[[Page 35676]]

terminology, in accordance with an FRA-approved certification program 
that complies with the requirements of this part.
    (b) Any certified signal employee called to work on a signal system 
or signal-related technology on which they have not been certified 
shall immediately notify the railroad or their employer that they are 
not certified to work on the signal system or signal-related 
technology.
    (c) No railroad shall permit a certified signal employee to work on 
a signal system or signal-related technology on which the employee has 
not been certified, unless the certified signal employee works under 
the direct oversight and supervision of a mentor in accordance with 
Sec.  246.124.


Sec.  246.109  Determinations required for certification and 
recertification.

    (a) After FRA has approved a railroad's signal employee 
certification program, the railroad, prior to initially certifying or 
recertifying any person as a signal employee, shall, in accordance with 
its FRA-approved program, determine in writing that:
    (1) The individual meets the prior safety conduct eligibility 
requirements of Sec. Sec.  246.111 and 246.113;
    (2) The individual meets the eligibility requirements of Sec. Sec.  
246.115 and 246.303;
    (3) The individual meets the vision and hearing acuity standards of 
Sec. Sec.  246.117 and 246.118;
    (4) If applicable, the individual has completed a training program 
that meets the requirements of Sec.  246.119;
    (5) The individual has the necessary knowledge, as demonstrated by 
successfully completing testing and practical demonstration that meet 
the requirements of Sec.  246.121.
    (b) Nothing in this section, Sec.  246.111, or Sec.  246.113 shall 
be construed to prevent persons subject to this part from entering into 
an agreement that results in a railroad obtaining the information 
needed for compliance with this subpart in a different manner than that 
prescribed in Sec.  246.111 or Sec.  246.113.


Sec.  246.111  Prior safety conduct as motor vehicle operator.

    (a) Except as provided in paragraphs (b) through (e) of this 
section, after FRA has approved a railroad's signal employee 
certification program, the railroad, prior to certifying or 
recertifying any person as a signal employee, shall determine that the 
person meets the eligibility requirements of this section involving 
prior conduct as a motor vehicle operator.
    (b) A railroad shall certify a person as a signal employee for 60 
days if the person:
    (1) Requested the information required by paragraph (g) of this 
section at least 60 days prior to the date of the decision to certify 
that person; and
    (2) Otherwise meets the eligibility requirements provided in Sec.  
246.109(a)(1) through (5).
    (c) A railroad shall recertify a person as a signal employee for 60 
days from the expiration date of that person's certification if the 
person:
    (1) Requested the information required by paragraph (g) of this 
section at least 60 days prior to the date of the decision to recertify 
that person; and
    (2) Otherwise meets the eligibility requirements provided in Sec.  
246.109(a)(1) through (5).
    (d) Except as provided in paragraph (e) of this section, if a 
railroad who certified or recertified a person for 60 days pursuant to 
paragraph (b) or (c) of this section does not obtain and evaluate the 
information requested pursuant to paragraph (g) of this section within 
60 days, that person will be ineligible to perform as a certified 
signal employee until the information can be evaluated by the railroad.
    (e) If a person requests the information required pursuant to 
paragraph (g) of this section but is unable to obtain it, that person 
or the railroad certifying or recertifying that person may petition for 
a waiver of the requirements of paragraph (a) of this section in 
accordance with the provisions of part 211 of this chapter. A railroad 
shall certify or recertify a person during the pendency of the waiver 
request if the person otherwise meets the eligibility requirements 
provided in Sec.  246.109(a)(1) through (5).
    (f) Except for persons designated as signal employees under Sec.  
246.105(c) or (d) or for persons covered by paragraph (j) of this 
section, each person seeking certification or recertification under 
this part shall, within one year prior to the date of the railroad's 
decision on certification or recertification:
    (1) Take the actions required by paragraphs (g) through (i) of this 
section to make information concerning their driving record available 
to the railroad that is considering such certification or 
recertification; and
    (2) Take any additional actions, including providing any necessary 
consent required by State, Federal, or foreign law to make information 
concerning their driving record available to that railroad.
    (g) Each person seeking certification or recertification under this 
part shall request, in writing, that the chief of each driver licensing 
agency identified in paragraph (h) of this section provide a copy of 
that agency's available information concerning their driving record to 
the railroad that is considering such certification or recertification.
    (h) Each person shall request the information required under 
paragraph (g) of this section from:
    (1) The chief of the driver licensing agency of any jurisdiction, 
including a State or foreign country, which last issued that person a 
driver's license; and
    (2) The chief of the driver licensing agency of any other 
jurisdiction, including states or foreign countries, that issued or 
reissued the person a driver's license within the preceding five years.
    (i) If advised by the railroad that a driver licensing agency has 
informed the railroad that additional information concerning that 
person's driving history may exist in the files of a State agency or 
foreign country not previously contacted in accordance with this 
section, such person shall:
    (1) Request in writing that the chief of the driver licensing 
agency which compiled the information provide a copy of the available 
information to the prospective certifying railroad; and
    (2) Take any additional action required by State, Federal, or 
foreign law to obtain that additional information.
    (j) Any person who has never obtained a motor vehicle driving 
license is not required to comply with the provisions of paragraph (g) 
of this section but shall notify the railroad of that fact in 
accordance with procedures established by the railroad in its 
certification program.
    (k) Each certified signal employee or person seeking certification 
as a signal employee shall report motor vehicle incidents described in 
paragraphs (m)(1) and (2) of this section to their employer(s) (if 
employed by a railroad or contractor to a railroad), all prospective 
certifying railroads (if applicable), and all railroad(s) with whom the 
person holds a signal employee certificate within 48 hours of:
    (1) Being convicted for such violations, or
    (2) A completed State action to cancel, revoke, suspend, or deny a 
motor vehicle driver's license for such violations. For purposes of 
this paragraph and paragraph (m) of this section, ``State action'' 
means action of the jurisdiction that has issued the motor vehicle 
driver's license, including a foreign country. For purposes of signal 
employee certification, no railroad shall require reporting earlier 
than 48 hours

[[Page 35677]]

after the conviction, or completed State action to cancel, revoke, 
suspend, or deny a motor vehicle driver's license.
    (l) When evaluating a person's motor vehicle driving record, a 
railroad shall not consider information concerning motor vehicle 
driving incidents that occurred:
    (1) Prior to the effective date of this rule; or
    (2) More than three years before the date of the railroad's 
certification decision; or
    (3) At a time other than that specifically provided for in Sec.  
246.111, Sec.  246.113, Sec.  246.115, or Sec.  246.303.
    (m) A railroad shall only consider information concerning the 
following types of motor vehicle incidents:
    (1) A conviction for, or completed State action to cancel, revoke, 
suspend, or deny a motor vehicle driver's license for operating a motor 
vehicle while under the influence of, or impaired by, alcohol or a 
controlled substance; or
    (2) A conviction for, or completed State action to cancel, revoke, 
suspend, or deny a motor vehicle driver's license for refusal to 
undergo such testing as is required by State or foreign law when a law 
enforcement official seeks to determine whether a person is operating a 
vehicle while under the influence of alcohol or a controlled substance.
    (n) If such an incident, described in paragraph (m) of this 
section, is identified:
    (1) The railroad shall provide the data to the railroad's Drug and 
Alcohol Counselor (DAC), together with any information concerning the 
person's railroad service record, and shall refer the person for 
evaluation to determine if the person has an active substance abuse 
disorder.
    (2) The person shall cooperate in the evaluation and shall provide 
any requested records of prior counseling or treatment for review 
exclusively by the DAC in the context of such evaluation.
    (3) If the person is evaluated as not currently affected by an 
active substance abuse disorder, the subject data shall not be 
considered further with respect to certification. However, the railroad 
shall, on recommendation of the DAC, condition certification upon 
participation in any needed aftercare and/or follow-up testing for 
alcohol or drugs deemed necessary by the DAC consistent with the 
technical standards specified in 49 CFR part 219, subpart H, as well as 
49 CFR part 40.
    (4) If the person is evaluated as currently affected by an active 
substance abuse disorder, the provisions of Sec.  246.115(c) will 
apply.
    (5) If the person fails to comply with the requirements of 
paragraph (n)(2) of this section, the person shall be ineligible to 
perform as a certified signal employee until such time as the person 
complies with the requirements.
    (o) Each railroad shall adopt and comply with a program meeting the 
requirements of this section. When any person (including, but not 
limited to, each railroad, railroad officer, supervisor, and employee) 
violates any requirement of a program which complies with the 
requirements of this section, that person shall be considered to have 
violated the requirements of this section.


Sec.  246.113  Prior safety conduct with other railroads.

    (a) After FRA has approved a railroad's signal employee 
certification program, the railroad shall determine, prior to issuing 
any person a signal employee certificate, that the certification 
candidate meets the eligibility requirements of this section.
    (b) If the certification candidate has not been employed or 
certified by any other railroad in the previous five years, they do not 
have to submit a request in accordance with paragraph (c) of this 
section, but they must notify the railroad of this fact in accordance 
with procedures established by the railroad in its certification 
program.
    (c) Except as provided for in paragraph (b) of this section, each 
person seeking certification or recertification under this part shall 
submit a written request to each railroad that employed or certified 
the person within the previous five years to provide the following 
information to the railroad that is considering whether to certify or 
recertify that person as a signal employee:
    (1) Information about that person's compliance with Sec.  246.111 
within the three years preceding the date of the request;
    (2) Information about that person's compliance with Sec.  246.115 
within the five years preceding the date of the request; and
    (3) Information about that person's compliance with Sec.  246.303 
within the five years preceding the date of the request.
    (d) Each person submitting a written request required by paragraph 
(c) of this section shall:
    (1) Submit the request no more than one year before the date of the 
railroad's decision on certification or recertification; and
    (2) Take any additional actions, including providing any necessary 
consent required by State or Federal law to make information concerning 
their service record available to the railroad.
    (e) Within 30 days after receipt of a written request that complies 
with paragraph (c) of this section, a railroad provide the information 
requested to the railroad designated in the written request.
    (f) If a railroad is unable to provide the information requested 
within 30 days after receipt of a written request that complies with 
paragraph (c) of this section, the railroad shall provide an 
explanation, in writing, of why it cannot provide the information 
within the requested time frame. If the railroad will ultimately be 
able to provide the requested information, the explanation shall state 
approximately how much more time the railroad needs to supply the 
requested information. If the railroad will not be able to provide the 
requested information, the railroad shall provide an adequate 
explanation for why it cannot provide this information. Copies of this 
explanation shall be provided to the railroad designated in the written 
request and to the person who submitted the written request for 
information.
    (g) When evaluating a person's prior safety conduct with a 
different railroad, a railroad shall not consider information 
concerning prior safety conduct that occurred:
    (1) Prior to [EFFECTIVE DATE OF FINAL RULE]; or
    (2) At a time other than that specifically provided for in Sec.  
246.111, Sec.  246.113, Sec.  246.115, or Sec.  246.303.
    (h) Each railroad shall adopt and comply with a program that 
complies with the requirements of this section. When any person 
(including but not limited to a railroad; any manager, supervisor, 
official, or agent of a railroad; any owner, manufacturer, lessor, or 
lessee of railroad equipment, track, or facilities; any employee of 
such owner, manufacturer, lessor, lessee, or contractor) violates any 
requirement of a program that complies with the requirements of this 
subject, that person shall be considered to have violated the 
requirements of this section.


Sec.  246.115  Substance abuse disorders and alcohol drug rules 
compliance.

    (a) Eligibility determination. After FRA has approved a railroad's 
signal employee certification program, the railroad shall determine, 
prior to issuing any person a signal employee certificate, that the 
person meets the eligibility requirements of this section.
    (b) Documentation. In order to make the determination required 
under paragraph (c) of this section, a railroad shall have on file 
documents pertinent to that determination, including a written document 
from its DAC which

[[Page 35678]]

states their professional opinion that the person has been evaluated as 
not currently affected by a substance abuse disorder or that the person 
has been evaluated as affected by an active substance abuse disorder.
    (c) Fitness requirement. (1) A person who has an active substance 
abuse disorder shall be denied certification or recertification as a 
signal employee.
    (2) Except as provided in paragraph (f) of this section, a 
certified signal employee who is determined to have an active substance 
abuse disorder shall be ineligible to hold certification. Consistent 
with other provisions of this part, certification may be reinstated as 
provided in paragraph (e) of this section.
    (3) In the case of a current employee of a railroad evaluated as 
having an active substance abuse disorder (including a person 
identified under the procedures of Sec.  246.111), the employee may, if 
otherwise eligible, voluntarily self-refer for substance abuse 
counseling or treatment under the policy required by Sec.  
219.1001(b)(1) of this chapter; and the railroad shall then treat the 
substance abuse evaluation as confidential except with respect to 
ineligibility for certification.
    (d) Prior alcohol/drug conduct; Federal rule compliance. (1) In 
determining whether a person may be or remain certified as a signal 
employee, a railroad shall consider conduct described in paragraph 
(d)(2) of this section that occurred within a period of five 
consecutive years prior to the review. A review of certification shall 
be initiated promptly upon the occurrence and documentation of any 
incident of conduct described in this paragraph (d).
    (2) A railroad shall consider any violation of Sec.  219.101 or 
Sec.  219.102 of this chapter and any refusal to provide a breath or 
body fluid sample for testing under the requirements of part 219 of 
this chapter when instructed to do so by a railroad representative.
    (3) A period of ineligibility described in this section shall 
begin:
    (i) For a person not currently certified, on the date of the 
railroad's written determination that the most recent incident has 
occurred; or
    (ii) For a person currently certified, on the date of the 
railroad's notification to the person that recertification has been 
denied or certification has been suspended.
    (4) The period of ineligibility described in this section shall be 
determined in accordance with the following standards:
    (i) In the case of one violation of Sec.  219.102 of this chapter, 
the person shall be ineligible to hold a certificate during evaluation 
and any required primary treatment as described in paragraph (e) of 
this section. In the case of two violations of Sec.  219.102 of this 
chapter, the person shall be ineligible to hold a certificate for a 
period of two years. In the case of more than two such violations, the 
person shall be ineligible to hold a certificate for a period of five 
years.
    (ii) In the case of one violation of Sec.  219.102 of this chapter 
and one violation of Sec.  219.101 of this chapter, the person shall be 
ineligible to hold a certificate for a period of three years.
    (iii) In the case of one violation of Sec.  219.101 of this 
chapter, the person shall be ineligible to hold a certificate for a 
period of nine months (unless identification of the violation was 
through a qualifying referral program described in Sec.  219.1001 of 
this chapter and the signal employee waives investigation, in which 
case the certificate shall be deemed suspended during evaluation and 
any required primary treatment as described in paragraph (e) of this 
section). In the case of two or more violations of Sec.  219.101 of 
this chapter, the person shall be ineligible to hold a certificate for 
a period of five years.
    (iv) If a person refuses to provide a breath or body fluid sample 
for testing under the requirements of part 219 of this chapter when 
instructed to do so by a railroad representative, the person shall be 
ineligible to hold a certificate for a period of nine months.
    (e) Future eligibility to hold certificate following alcohol/drug 
violation. The following requirements apply to a person who has been 
denied certification or who has had their certification suspended or 
revoked as a result of conduct described in paragraph (d) of this 
section:
    (1) The person shall not be eligible for grant or reinstatement of 
the certificate unless and until the person has:
    (i) Been evaluated by a Substance Abuse Professional (SAP) to 
determine if the person currently has an active substance abuse 
disorder;
    (ii) Successfully completed any program of counseling or treatment 
determined to be necessary by the SAP prior to return to service; and
    (iii) In accordance with the testing procedures of 49 CFR part 219, 
subpart H, has had a return-to-duty alcohol test with an alcohol 
concentration of less than .02 and a return-to-duty body fluid sample 
that tested negative for controlled substances.
    (2) A certified signal employee placed in service or returned to 
service under the above-stated conditions shall continue in any program 
of counseling or treatment deemed necessary by the SAP and shall be 
subject to a reasonable program of follow-up alcohol and drug testing 
without prior notice for a period of not more than five years following 
return to service. Follow-up tests shall include not fewer than six 
alcohol tests and six drug tests during the first year following return 
to service.
    (3) Return-to-duty and follow-up alcohol and drug tests shall be 
performed consistent with the requirements of 49 CFR part 219, subpart 
H.
    (4) This paragraph (e) does not create an entitlement to utilize 
the services of a railroad SAP, to be afforded leave from employment 
for counseling or treatment, or to employment as a signal employee. Nor 
does it restrict any discretion available to the railroad to take 
disciplinary action based on conduct described herein.
    (f) Confidentiality protected. Nothing in this part shall affect 
the responsibility of the railroad under Sec.  219.1003(f) of this 
chapter to treat qualified referrals for substance abuse counseling and 
treatment as confidential; and the certification status of a signal 
employee who is successfully assisted under the procedures of that 
section shall not be adversely affected. However, the railroad shall 
include in its referral policy, as required pursuant to Sec.  
219.1003(j) of this chapter, a provision that, at least with respect to 
a certified signal employee or a candidate for certification, the 
policy of confidentiality is waived (to the extent that the railroad 
shall receive from the SAP or DAC official notice of the substance 
abuse disorder and shall suspend or revoke the certification, as 
appropriate) if the person at any time refuses to cooperate in a 
recommended course of counseling or treatment.
    (g) Complying with certification program. Each railroad shall adopt 
and comply with a program meeting the requirements of this section. 
When any person (including, but not limited to, each railroad, railroad 
officer, supervisor, and employee) violates any requirement of a 
program which complies with the requirements of this section, that 
person shall be considered to have violated the requirements of this 
section.


Sec.  246.117  Vision acuity.

    (a) After FRA has approved a railroad's signal employee 
certification program, the railroad shall determine, prior to issuing 
any person a signal employee certificate, that the person meets the 
standards for visual acuity prescribed in this section and Appendix B 
to this part.

[[Page 35679]]

    (b) Any examination required under this section shall be performed 
by or under the supervision of a medical examiner or a licensed 
physician's assistant.
    (c) Except as provided in paragraph (d) of this section, each 
certified signal employee shall have visual acuity that meets or 
exceeds the following thresholds:
    (1) For distant viewing, either:
    (i) Distant visual acuity of at least 20/40 (Snellen) in each eye 
without corrective lenses; or
    (ii) Distant visual acuity separately corrected to at least 20/40 
(Snellen) with corrective lenses and distant binocular acuity of at 
least 20/40 (Snellen) in both eyes with or without corrective lenses;
    (2) A field of vision of at least 70 degrees in the horizontal 
meridian in each eye; and
    (3) The ability to recognize and distinguish between the colors of 
railroad signals as demonstrated by successfully completing one of the 
tests in Appendix B to this part.
    (d) A person not meeting the thresholds in paragraph (c) of this 
section shall, upon request of the certification candidate, be subject 
to further medical evaluation by a railroad's medical examiner to 
determine that person's ability to safely perform as a certified signal 
employee. In such cases, the following procedures will apply:
    (1) In accordance with the guidance prescribed in Appendix B to 
this part, a person is entitled to:
    (i) One retest without making any showing; and
    (ii) An additional retest if the person provides evidence that 
circumstances have changed since the last test to the extent that the 
person may now be able to safely perform as a certified signal 
employee.
    (2) The railroad shall provide its medical examiner with a copy of 
this part, including all appendices.
    (3) If, after consultation with a railroad officer, the medical 
examiner concludes that, despite not meeting the threshold(s) in 
paragraph (c) of this section, the person has the ability to safely 
perform as a certified signal employee, the railroad may conclude that 
the person satisfies the vision acuity requirements of this section to 
be a certified signal employee. Such certification will be conditioned 
on any special restrictions the medical examiner determines in writing 
to be necessary.
    (e) In order to make the determination required under paragraph (a) 
of this section, a railroad shall have on file the following for each 
certification candidate:
    (1) A medical examiner's certificate that the candidate has been 
medically examined and either does or does not meet the vision acuity 
standards prescribed in paragraph (c) of this section.
    (2) If necessary under paragraph (d) of this section, a medical 
examiner's written professional opinion which states the basis for 
their determination that:
    (i) The candidate can be certified, under certain conditions if 
necessary, even though the candidate does not meet the vision acuity 
standards prescribed in paragraph (c) of this section; or
    (ii) The candidate's vision acuity prevents the candidate from 
being able to safely perform as a certified signal employee.
    (f) If the examination required under this section shows that the 
person needs corrective lenses to meet the standards for vision acuity 
prescribed in this section and appendix B to this part, that person 
shall use corrective lenses at all times while performing as a 
certified signal employee unless the railroad's medical examiner 
subsequently determines in writing that the person can safely perform 
as a certified signal employee without corrective lenses.
    (g) When a certified signal employee becomes aware that their 
vision has deteriorated, they shall notify the railroad's medical 
department or other appropriate railroad official of the deterioration. 
Such notification must occur prior to performing any subsequent service 
as a certified signal employee. The individual cannot return to service 
as a certified signal employee until they are reexamined and determined 
by the railroad's medical examiner to satisfy the vision acuity 
standards prescribed in this section and appendix B to this part.
    (h) Each railroad shall adopt and comply with a program meeting the 
requirements of this section. When any person (including, but not 
limited to, each railroad, railroad officer, supervisor, and employee) 
violates any requirement of a program which complies with the 
requirements of this section, that person shall be considered to have 
violated the requirements of this section.


Sec.  246.118  Hearing acuity.

    (a) After FRA has approved a railroad's signal employee 
certification program, the railroad shall determine, prior to issuing 
any person a signal employee certificate, that the person meets the 
standards for hearing acuity prescribed in this section and appendix B 
to this part.
    (b) Any examination required under this section shall be performed 
by or under the supervision of a medical examiner or a licensed 
physician's assistant.
    (c) Except as provided in paragraph (d) of this section, each 
certified signal employee shall have hearing acuity that meets or 
exceeds the following thresholds with or without use of a hearing aid: 
The person does not have an average hearing loss in the better ear 
greater than 40 decibels at 500 Hz, 1,000 Hz, and 2,000 Hz. The hearing 
test or audiogram used to show a person's hearing acuity shall meet the 
requirements of one of the following:
    (1) As required in 29 CFR 1910.95(h) (Occupational Safety and 
Health Administration);
    (2) As required in Sec.  227.111 of this chapter; or
    (3) Conducted using an audiometer that meets the specifications of, 
and is maintained and used in accordance with, a formal industry 
standard, such as American National Standards Institute (ANSI) S3.6, 
``Specifications for Audiometers.''
    (d) A person not meeting the thresholds in paragraph (c) of this 
section shall, upon request of the certification candidate, be subject 
to further medical evaluation by a railroad's medical examiner to 
determine that person's ability to safely perform as a certified signal 
employee. In such cases, the following procedures will apply:
    (1) In accordance with the guidance prescribed in Appendix B to 
this part, a person is entitled to:
    (i) One retest without making any showing; and
    (ii) An additional retest if the person provides evidence that 
circumstances have changed since the last test to the extent that the 
person may now be able to safely perform as a certified signal 
employee.
    (2) The railroad shall provide its medical examiner with a copy of 
this part, including all appendices.
    (3) If, after consultation with a railroad officer, the medical 
examiner concludes that, despite not meeting the threshold(s) in 
paragraph (c) of this section, the person has the ability to safely 
perform as a certified signal employee, the railroad may conclude that 
the person satisfies the hearing acuity requirements of this section to 
be a certified signal employee. Such certification will be conditioned 
on any special restrictions the medical examiner determines in writing 
to be necessary.

[[Page 35680]]

    (e) In order to make the determination required under paragraph (a) 
of this section, a railroad shall have on file the following for each 
certification candidate:
    (1) A medical examiner's certificate that the candidate has been 
medically examined and either does or does not meet the hearing acuity 
standards prescribed in paragraph (c) of this section.
    (2) If necessary under paragraph (d) of this section, a medical 
examiner's written professional opinion which states the basis for 
their determination that:
    (i) The candidate can be certified, under certain conditions if 
necessary, even though the candidate does not meet the hearing acuity 
standards prescribed in paragraph (c) of this section; or
    (ii) The candidate's hearing acuity prevents the candidate from 
being able to safely perform as a certified signal employee.
    (f) If the examination required under this section shows that the 
person needs a hearing aid to meet the standards for hearing acuity 
prescribed in this section and appendix B to this part, that person 
shall use a hearing aid at all times while performing as a certified 
signal employee unless the railroad's medical examiner subsequently 
determines in writing that the person can safely perform as a certified 
signal employee without a hearing aid.
    (g) When a certified signal employee becomes aware that their 
hearing has deteriorated, they shall notify the railroad's medical 
department or other appropriate railroad official of the deterioration. 
Such notification must occur prior to performing any subsequent service 
as a certified signal employee. The person cannot return to service as 
a certified signal employee until they are reexamined and determined by 
the railroad's medical examiner to satisfy the hearing acuity standards 
prescribed in this section and appendix B to this part.
    (h) Each railroad shall adopt and comply with a program meeting the 
requirements of this section. When any person (including, but not 
limited to, each railroad, railroad officer, supervisor, and employee) 
violates any requirement of a program which complies with the 
requirements of this section, that person shall be considered to have 
violated the requirements of this section.


Sec.  246.119  Training requirements.

    (a) After FRA has approved a railroad's certification program, the 
railroad shall determine, prior to issuing any person a signal employee 
certificate, that the person has successfully completed training, in 
accordance with the requirements of this section.
    (b) As further explained in Sec.  246.106, a railroad's 
certification program shall state the railroad's election either:
    (1) To accept responsibility for training persons who have not been 
previously certified as signal employees and thereby obtain authority 
to provide signal employee certification; or
    (2) To recertify signal employees previously certified by other 
railroads.
    (c) A railroad that elects to accept responsibility for the 
training of persons who have not been previously certified as signal 
employees shall state in its certification program whether it will 
conduct the training or employ a training program conducted by another 
entity on its behalf, but adopted and ratified by the railroad.
    (d) A railroad that elects to train persons not previously 
certified as signal employees shall address the following requirements 
in its certification program:
    (1) An explanation of how training will be structured, developed, 
and delivered, including an appropriate combination of classroom, 
simulator, computer-based, correspondence, practical demonstration, on-
the-job training, or other formal training. The curriculum shall be 
designed to impart knowledge of, and ability to comply with applicable 
Federal railroad safety laws, regulations, and orders, as well as any 
relevant railroad rules and procedures promulgated to implement those 
Federal railroad safety laws, regulations, and orders. The training 
shall document a person's knowledge of, and ability to comply with, 
Federal railroad safety laws, regulations, and orders, as well as 
railroad rules and procedures.
    (2) An on-the-job training component which shall include the 
following:
    (i) A syllabus describing content, required tasks, and related 
steps the employee learning the job shall be able to perform within a 
specified timeframe;
    (ii) A statement of the conditions (e.g., prerequisites, tools, 
equipment, documentation, briefings, demonstrations, and practice) 
necessary for learning transfer; and
    (iii) A statement of the standards by which proficiency is measured 
through a combination of task/step accuracy, completeness, and 
repetition.
    (3) A description of the processes to review and modify its 
training program when new safety-related laws, regulations, orders, and 
procedures are issued and when new signal systems, technologies, 
software or equipment are introduced into the workplace. This 
description shall also explain how the railroad will determine if 
additional or refresher training is needed.
    (e) Prior to beginning the initial signal employee tasks associated 
with on-the-job exercises referenced in paragraph (d)(2) of this 
section, each railroad shall make any relevant information or 
materials, such as signal standards, test procedures, operating rules, 
safety rules, or other rules, available for referencing by 
certification candidates.
    (f) Prior to initial certification of a person as a certified 
signal employee, a railroad shall require the person to:
    (1) Successfully complete the formal initial training program 
developed pursuant to paragraph (d) of this section and any associated 
examinations covering the skills and knowledge the person will need to 
perform the tasks necessary to be a certified signal employee;
    (2) Demonstrate on-the-job proficiency, with input from a qualified 
instructor, by successfully completing the tasks and using the signal 
systems and technology necessary to be a certified signal employee on 
the certifying railroad. A certification candidate may perform such 
tasks under the direct onsite supervision of a certified signal 
employee who has at least one year of experience as a signal employee; 
and
    (3) Demonstrate knowledge of the signal systems, technology, 
software, and equipment deployed on the railroad's territory. If the 
railroad uses a written test to fulfill this requirement, the railroad 
must provide the certification candidate with an opportunity to consult 
with a qualified instructor to explain a question.
    (g) In making the determination required under paragraph (a) of 
this section, a railroad shall have written documentation showing that:
    (1) The person completed a training program that complies with 
paragraph (d) of this section (if the person has not previously been 
certified as a signal employee); and
    (2) The person demonstrated their knowledge by achieving a passing 
grade under the testing, practical demonstration, and evaluation 
procedures of the training program.
    (h) Notwithstanding the railroad's election in paragraph (b) of 
this section, each railroad shall provide comprehensive training on the 
installation, operation, testing, maintenance, and repair of the signal 
systems (including software and equipment) and signal-related 
technology deployed on its territory as part of its certification 
program required

[[Page 35681]]

under this part and submitted in accordance with the procedures and 
requirements in Sec.  246.106. In its certification program, each 
railroad shall address:
    (1) How comprehensive training will be provided on the 
installation, operation, testing, maintenance, and repair of the signal 
systems (including software and equipment) and signal-related 
technology deployed on the railroad's territory; and
    (2) How the railroad will ensure that the comprehensive training 
discussed in this paragraph is provided to each certified signal 
employee before the employee is required to install, operate, test, 
maintain, or repair any signal system (including software and 
equipment) or signal-related technology deployed on the railroad's 
territory; and
    (3) The maximum time periods in which a certified signal employee 
can be absent from performing safety-sensitive work on signal systems 
before refresher training will be required. This time period cannot 
exceed 12 months.
    (i) If ownership of a railroad is being transferred from one 
company to another, the signal employees of the acquiring company may 
receive familiarization training from the selling company prior to the 
acquiring company commencing operation.
    (j) Each railroad shall provide for the continuing education of its 
certified signal employees to ensure that each certified signal 
employee maintains the necessary knowledge and skills concerning:
    (1) Compliance with all applicable Federal laws, regulations, and 
orders;
    (2) Compliance with all applicable railroad signal system safety 
and operating rules; and
    (3) Compliance with all applicable standards, procedures, and 
instructions for the installation, operation, testing, maintenance, 
troubleshooting, and repair of new and existing signal systems 
(including new and existing software and equipment) and new and 
existing signal-related technology deployed on the railroad.
    (k) Each railroad shall provide comprehensive training on the 
installation, operation, testing, maintenance, and repair of new signal 
systems (including software and equipment) and signal-related 
technology to its certified signal employees before requiring any 
certified signal employee to install, operate, test, maintain, or 
repair any new signal system (including software or equipment) or new 
signal-related technology on its territory.
    (l) Each railroad shall adopt and comply with a program meeting the 
requirements of this section. When any person (including, but not 
limited to, each railroad, railroad officer, supervisor, and employee) 
violates any requirement of a program which complies with the 
requirements of this section, that person shall be considered to have 
violated the requirements of this section.


Sec.  246.121  Knowledge testing.

    (a) After FRA has approved a railroad's signal employee 
certification program, the railroad shall determine, prior to issuing 
any person a signal employee certificate, that the person has 
demonstrated sufficient knowledge of the railroad's signal standards, 
test procedures, and instructions for the installation, operation, 
testing, maintenance, troubleshooting, and repair of the railroad's 
signal systems in accordance with the requirements of this section.
    (b) In order to make the knowledge determination required by 
paragraph (a) of this section, a railroad shall have procedures for 
testing a person being evaluated for certification as a signal employee 
that shall be:
    (1) Designed to examine a person's knowledge of:
    (i) All applicable Federal railroad safety laws, regulations, and 
orders governing signal systems and related technology;
    (ii) All applicable railroad safety and operating rules; and
    (iii) All applicable railroad standards, procedures, and 
instructions for the installation, operation, testing, maintenance, 
troubleshooting, and repair of the railroad's signal systems and 
related technology, including:
    (A) The railroad's rules and standards for disabling and removing 
signal systems from service; and
    (B) The railroad's rules and standards for placing signal systems 
back in service;
    (2) Objective in nature;
    (3) Include a practical demonstration component;
    (4) In written or electronic form;
    (5) Sufficient to accurately measure the person's knowledge of the 
subjects listed in paragraph (b)(1) of this section; and
    (6) Conducted without open reference books or other materials 
except to the degree the person is being tested on their ability to use 
such reference books or materials.
    (c) The railroad shall provide the certification candidate with an 
opportunity to consult with a qualified instructor to explain one or 
more test questions.
    (d) If a person fails the test, no railroad shall permit or require 
that person to work as a certified signal employee prior to that 
person's achieving a passing score during a reexamination of the test.
    (e) Each railroad shall adopt and comply with a program meeting the 
requirements of this section. When any person (including, but not 
limited to, each railroad, railroad officer, supervisor, and employee) 
violates any requirement of a program which complies with the 
requirements of this section, that person shall be considered to have 
violated the requirements of this section.


Sec.  246.123  Monitoring operational performance.

    (a) Each railroad's certification program shall describe how it 
will monitor the operational performance of its certified signal 
employees by including procedures for:
    (1) Giving each certified signal employee at least one unannounced 
compliance test each calendar year on the railroad's signal system 
standards, test procedures, and Federal regulations concerning signal 
systems, except as provided for in paragraph (d) of this section;
    (2) Giving unannounced compliance tests to certified signal 
employees who return to signal service after performing service that 
does not require certification pursuant to this part, as described in 
paragraph (d) of this section;
    (3) What actions the railroad will take if it finds deficiencies in 
a certified signal employee's performance during an unannounced 
compliance test; and
    (4) Monitoring the performance of signal-related tasks.
    (b) An unannounced compliance test shall:
    (1) Test certified signal employees for compliance with one or more 
signal system standards or test procedures in accordance with the 
railroad's certification program and Sec.  217.9 of this chapter;
    (2) Be performed by a certified signal employee;
    (3) Be given to each certified signal employee at least once each 
calendar year, except as provided for in paragraph (d) of this section; 
and
    (4) If the railroad's certification program classifies signal 
employees, the unannounced compliance test shall be within scope of the 
signal employee's classification.
    (c) A certified signal employee who is not performing service that 
requires certification pursuant to this part does not need to be given 
an unannounced compliance test. However, when the certified signal 
employee returns to

[[Page 35682]]

service that requires certification pursuant to this part, the railroad 
shall:
    (1) Give the certified signal employee an unannounced compliance 
test within 30 days of their return to signal service; and
    (2) Retain a written record that includes the following 
information:
    (i) The date the certified signal employee stopped performing 
service that required certification pursuant to this part;
    (ii) The date the certified signal employee returned to performing 
service that required certification pursuant to this part; and
    (iii) The date and the result of the unannounced compliance test 
was performed following the signal employee's return to service 
requiring certification.
    (d) Each railroad shall adopt and comply with a program meeting the 
requirements of this section. When any person (including, but not 
limited to, each railroad, railroad officer, supervisor, and employee) 
violates any requirement of a program which complies with the 
requirements of this section, that person shall be considered to have 
violated the requirements of this section.


Sec.  246.124  Mentoring.

    (a) Each railroad's certification program shall include procedures 
for mentoring signal employees who have not been certified by the 
railroad.
    (b) After FRA has approved a railroad's certification program, the 
railroad shall not permit or require any person to perform work on a 
signal system or signal-related technology on its territory that 
requires certification unless the railroad first determines that:
    (1) The person is a certified signal employee who has been 
certified by the railroad; or
    (2) The person is a signal employee who is working under the direct 
observation and supervision of a mentor.
    (c) If the railroad elects to classify its certified signal 
employees into more than one occupational category or subcategory 
pursuant to Sec.  246.107, the railroad shall address in its 
certification program how mentoring will be provided for certified 
signal employees who move into a different occupational category or 
subcategory of certified signal service.
    (d) If allowed by the railroad's certification program, any work on 
a signal system performed by a signal employee whose certification has 
been revoked shall be performed under the direct oversight and 
supervision of a mentor.
    (e) Each railroad's certification program shall address how mentors 
will be held accountable for the work performed by signal employees 
when they are working under the mentor's direct oversight and 
supervision.


Sec.  246.125  Certification determinations made by other railroads.

    (a) A railroad that is considering certification of a person as a 
signal employee may rely on certain determinations made by another 
railroad concerning that person's certification.
    (b) A railroad's certification program shall address how the 
railroad will administer the training of previously uncertified signal 
employees with extensive signal experience or previously certified 
signal employees who have had their certification expire. If a 
railroad's certification program fails to specify how it will train 
these signal employees, then the railroad shall require these signal 
employees to successfully complete the certifying railroad's entire 
training program.
    (c) A railroad relying on certification determinations made by 
another railroad shall be responsible for determining that:
    (1) The prior certification is still valid in accordance with the 
provisions of Sec. Sec.  246.201 and 246.307;
    (2) The person has received training on the railroad's signal 
standards, test procedures, and instructions for the installation, 
operation, testing, maintenance, troubleshooting, and repair of the 
railroad's signal systems, technology, software, and equipment deployed 
on a railroad's territory pursuant to Sec.  246.119; and
    (3) The person has demonstrated the necessary knowledge concerning 
the railroad's operating rules, territory, signal systems, technology, 
software, and equipment deployed on a railroad's territory in 
accordance with Sec.  246.121.

Subpart C--Administration of the Certification Program


Sec.  246.201  Time limitations for certification.

    (a) After FRA approves a railroad's signal employee certification 
program, that railroad shall not certify or recertify a person as a 
signal employee if the railroad is making:
    (1) A determination concerning eligibility under Sec. Sec.  
246.111, 246.113, 246.115, and 246.303 and the eligibility data being 
relied on was furnished more than one year before the date of the 
railroad's certification decision;
    (2) A determination concerning visual or hearing acuity and the 
medical examination being relied on was conducted more than 450 days 
before the date of the railroad's certification decision;
    (3) A determination concerning demonstrated knowledge and the 
knowledge examination being relied on was conducted more than one year 
before the date of the railroad's certification decision; or
    (4) A determination concerning demonstrated knowledge and the 
knowledge examination being relied on was conducted more than two years 
before the date of the railroad's recertification decision if the 
railroad administers a knowledge testing program pursuant to Sec.  
246.121 at intervals that do not exceed two years.
    (b) The time limitations of paragraph (a) of this section do not 
apply to a railroad that is making a certification decision in reliance 
on determinations made by another railroad in accordance with Sec.  
246.125.
    (c) Except if a person is designated as a certified signal employee 
under Sec.  246.105(c) or (d), no railroad shall certify a person as a 
signal employee for an interval of more than three years.
    (d) Each railroad shall issue each certified signal employee a 
certificate that complies with Sec.  246.207 no later than 30 days from 
the date of its decision to certify or recertify that person.


Sec.  246.203  Retaining information supporting determinations.

    (a) After FRA approves a railroad's signal employee certification 
program, any time the railroad issues, denies, or revokes a certificate 
after making the determinations required under Sec.  246.109, it shall 
maintain a record for each certified signal employee and certification 
candidate. Each record shall contain the information, described in 
paragraph (b) of this section, that the railroad relied on in making 
the determinations required under Sec.  246.109.
    (b) A railroad shall retain the following information:
    (1) Relevant data from the railroad's records concerning the 
person's prior safety conduct and eligibility;
    (2) Relevant data furnished by another railroad;
    (3) Relevant data furnished by a governmental agency concerning the 
person's motor vehicle driving record;
    (4) Relevant data furnished by the person seeking certification 
concerning their eligibility;
    (5) The relevant test results data concerning vision and hearing 
acuity;
    (6) If applicable, the relevant data concerning the professional 
opinion of the railroad's medical examiner on the

[[Page 35683]]

adequacy of the person's vision or hearing acuity;
    (7) Relevant data from the railroad's records concerning the 
person's success or failure on knowledge test(s) under Sec.  246.121;
    (8) A sample copy of the written knowledge test or tests 
administered; and
    (9) The relevant data from the railroad's records concerning the 
person's success or failure on unannounced tests the railroad performed 
to monitor the signal employee's performance in accordance with Sec.  
246.123.
    (c) If a railroad is relying on successful completion of a training 
program conducted by another entity, the relying railroad shall 
maintain a record for each certification candidate that contains the 
relevant data furnished by the training entity concerning the person's 
demonstration of knowledge and relied on by the railroad in making its 
determinations.
    (d) If a railroad is relying on a certification decision initially 
made by another railroad, the relying railroad shall maintain a record 
for each certification candidate that contains the relevant data 
furnished by the other railroad which it relied on in making its 
determinations.
    (e) All records required under this section shall be retained by 
the railroad for a period of six years from the date of the 
certification, recertification, denial, or revocation decision and 
shall be made available to FRA representatives, upon request, in a 
timely manner.
    (f) It shall be unlawful for any railroad to knowingly or any 
individual to willfully:
    (1) Make, cause to be made, or participate in the making of a false 
entry on the record(s) required by this section; or
    (2) Otherwise falsify such records through material misstatement, 
omission, or mutilation.
    (g) Nothing in this section precludes a railroad from maintaining 
the information required to be retained under this section in an 
electronic format provided that:
    (1) The railroad maintains an information technology security 
program adequate to ensure the integrity of the electronic data storage 
system, including the prevention of unauthorized access to the program 
logic or individual records;
    (2) The program and data storage system must be protected by a 
security system that utilizes an employee identification number and 
password, or a comparable method, to establish appropriate levels of 
program access meeting all of the following standards:
    (i) No two individuals have the same electronic identity; and
    (ii) A record cannot be deleted or altered by any individual after 
the record is certified by the employee who created the record;
    (3) Any amendment to a record is either:
    (i) Electronically stored apart from the record that it amends; or
    (ii) Electronically attached to the record as information without 
changing the original record;
    (4) Each amendment to a record uniquely identifies the person 
making the amendment; and
    (5) The system employed by the railroad for data storage permits 
reasonable access and retrieval of the information which can be easily 
produced in an electronic or printed format that can be:
    (i) Provided to FRA representatives in a timely manner; and
    (ii) Authenticated by a designated representative of the railroad 
as a true and accurate copy of the railroad's records if requested to 
do so by an FRA representative.


Sec.  246.205  List of certified signal employees and recordkeeping.

    (a) After a railroad's certification program has received its 
initial approval from FRA, pursuant to Sec.  246.103(f)(1), the 
railroad must maintain a list of each person who is currently certified 
as a signal employee by the railroad. The list must include the date of 
the railroad's certification decision and the date the person's 
certification expires.
    (b) The list shall:
    (1) Be updated at least annually;
    (2) Be made available, upon request, to FRA representatives in a 
timely manner; and
    (3) Be available either:
    (i) In electronic format pursuant to paragraph (c) of this section; 
or
    (ii) At the divisional or regional headquarters of the railroad.
    (c) If a railroad elects to maintain its list in an electronic 
format, it must:
    (1) Maintain an information technology security program adequate to 
ensure the integrity of the electronic data storage system, including 
the prevention of unauthorized access to the program logic or the list;
    (2) Have its program and data storage system protected by a 
security system that utilizes an employee identification number and 
password, or a comparable method, to establish appropriate levels of 
program access meeting all of the following standards:
    (i) No two individuals have the same electronic identity; and
    (ii) An entry on the list cannot be deleted or altered by any 
individual after the entry is certified by the employee who created the 
entry;
    (3) Have any amendment to the list either:
    (i) Electronically stored apart from the entry on the list that it 
amends; or
    (ii) Electronically attached to the entry on the list as 
information without changing the original entry;
    (4) Ensure that each amendment to the list uniquely identifies the 
person making the amendment;
    (5) Ensure that the system employed for data storage permits 
reasonable access and retrieval of the information which can be easily 
produced in an electronic or printed format that can be:
    (i) Provided to FRA representatives within a timely manner; and
    (ii) Authenticated by a designated representative of the railroad 
as a true and accurate copy of the railroad's records if requested to 
do so by an FRA representative.
    (d) It shall be unlawful for any railroad to knowingly or any 
individual to willfully:
    (1) Make, cause to be made, or participate in the making of a false 
entry on the list required by this section; or
    (2) Otherwise falsify such list through material misstatement, 
omission, or mutilation.


Sec.  246.207  Certificate requirements.

    (a) Each person who becomes a certified signal employee in 
accordance with this part shall be issued a paper or electronic 
certificate that must:
    (1) Identify the railroad that is issuing the certificate;
    (2) Indicate that it is a signal employee certificate, along with 
any additional signal employee categories or subcategories developed by 
the railroad pursuant to Sec.  246.107;
    (3) Provide the following information about the certified signal 
employee:
    (i) Name;
    (ii) Employee identification number;
    (iii) Year of birth; and
    (iv) Either a physical description or photograph of the person;
    (4) Identify any conditions or limitations, including conditions to 
ameliorate vision or hearing acuity deficiencies, that restrict, limit, 
or alter the person's abilities to work as a certified signal employee;
    (5) Show the effective date of the certification;
    (6) Show the expiration date of the certification, except as 
provided for in paragraph (b) of this section;
    (7) Be signed by an individual designated in accordance with 
paragraph (c) of this section; and

[[Page 35684]]

    (8) Be electronic or be of sufficiently small size to permit being 
carried in an ordinary pocket wallet.
    (b) A certificate does not need to include an expiration date, as 
required under paragraph (a)(6) of this section, if the person was 
designated as a certified signal employee under Sec.  246.105(c) or 
(d).
    (c) Each railroad shall designate in writing any person it 
authorizes to sign the certificates described in this section. The 
designation shall identify such persons by name or job title.
    (d) Nothing in this section shall prohibit any railroad from 
including additional information on the certificate or supplementing 
the certificate through other documents.
    (e) It shall be unlawful for any railroad to knowingly or any 
individual to willfully:
    (1) Make, cause to be made, or participate in the making of a false 
entry on a certificate; or
    (2) Otherwise falsify a certificate through material misstatement, 
omission, or mutilation.
    (f) Except as provided for in paragraph (h) of this section, each 
certified signal employee shall:
    (1) Have their certificate in their possession while on duty as a 
signal employee; and
    (2) Display their certificate upon request from:
    (i) An FRA representative;
    (ii) A State inspector authorized under part 212 of this chapter;
    (iii) An officer of the issuing railroad; or
    (iv) An officer of the signal employee's employer if the signal 
employee is not employed by the issuing railroad.
    (g) If a signal employee's certificate is lost, stolen, mutilated, 
or becomes unreadable, the railroad shall promptly replace the 
certificate at no cost to the signal employee.
    (h) A certified signal employee is exempt from the requirements of 
paragraph (f) of this section if:
    (1) The railroad made its certification or recertification decision 
within the last 30 days and the signal employee has not yet received 
their certificate; or
    (2) The signal employee's certificate was lost, stolen, mutilated, 
or became unreadable, and the railroad has not yet issued a replacement 
certificate to the signal employee.
    (i) Any signal employee who is notified or called to serve as a 
signal employee and such service would cause the signal employee to 
exceed certificate limitations, set forth in accordance with subpart B 
of this part, shall immediately notify the railroad that they are not 
authorized to perform that anticipated service and it shall be unlawful 
for the railroad to require such service.
    (j) Nothing in this section shall be deemed to alter a certified 
signal employee's duty to comply with other provisions of this chapter 
concerning railroad safety.


Sec.  246.213  Multiple certifications.

    (a) A person who holds a signal employee certificate may:
    (1) Hold a signal employee certificate for multiple types of signal 
service; and
    (2) Be certified in other crafts, such as a locomotive engineer or 
conductor.
    (b) A railroad that issues multiple certificates to a person, 
shall, to the extent possible, coordinate the expiration date of those 
certificates.
    (c)(1) A person who holds a current signal employee certificate 
from more than one railroad shall immediately notify their employer(s) 
and all railroad(s) with whom they hold a signal employee certificate 
if they are denied signal employee certification or recertification 
under Sec.  246.301 by a railroad or have their signal employee 
certification suspended or revoked under Sec.  246.307 by a railroad.
    (2) If a person has their signal employee certification suspended 
or revoked by a railroad under Sec.  246.307, they shall not work as a 
certified signal employee for any railroad during the period that their 
certification is suspended or revoked, except as provided for in Sec.  
246.124(d).
    (3) If a person has their signal employee certification suspended 
or revoked by a railroad under Sec.  246.307, they shall notify any 
railroad from whom they are seeking signal employee certification that 
their signal employee certification has been suspended or revoked by 
another railroad.
    (d) Paragraphs (d)(1) through (3) of this section apply to people 
who are currently certified as a signal employee and also currently 
certified in another railroad craft, such as a locomotive engineer or 
conductor:
    (1) If a person's signal employee certification is revoked under 
Sec.  246.307 for a violation of Sec.  246.303(e)(11), they shall not 
work in another certified railroad craft, such as a locomotive engineer 
or conductor, during the period of revocation.
    (2) If a person's signal employee certification is revoked under 
Sec.  246.307 for a violation of Sec.  246.303(e)(11), they shall not 
obtain certification for any other railroad craft pursuant to this 
chapter during the period of revocation.
    (3) If a person's signal employee certification is revoked under 
Sec.  246.307 for a violation of Sec.  246.303(e)(1) through (10), they 
may work in another certified railroad craft, such as a locomotive 
engineer or conductor, during the period of revocation.
    (e) Paragraphs (e)(1) through (3) of this section also apply to 
people who are certified as a signal employee and certified in another 
railroad craft, such as a locomotive engineer or conductor:
    (1) A person whose certification in any railroad craft has been 
revoked for failure to comply with Sec.  219.101 of this chapter shall 
not work as a certified signal employee for any railroad during the 
revocation period.
    (2) A person whose certification in any railroad craft has been 
revoked for failure to comply with Sec.  219.101 of this chapter shall 
not obtain signal employee certification pursuant to this part from any 
railroad during the revocation period.
    (3) A certified signal employee who has had their certification in 
another railroad craft suspended or revoked for any reason other than a 
failure to comply with Sec.  219.101 of this chapter may work as a 
certified signal employee during the suspension or revocation period.
    (f) A railroad that denies a person signal employee certification 
or recertification under Sec.  246.301 shall not, solely on the basis 
of that denial, deny or revoke that person's certifications or 
recertifications in another railroad craft.
    (g) A railroad that denies a person's certification or 
recertification, pursuant to this chapter, in any railroad craft other 
than signal employee shall not, solely on the basis of that denial, 
deny or revoke that person's signal employee certification or 
recertification.
    (h) In lieu of issuing multiple certificates, a railroad may issue 
one certificate to a person who is certified in multiple crafts as long 
as the single certificate complies with all of the certificate 
requirements for those crafts.
    (i) A person who is certified in multiple crafts and who is 
involved in a revocable event, as described in this chapter, may only 
have one certificate revoked for that event. The determination by the 
railroad as to which certificate to revoke must be based on the work 
the person was performing at the time the revocable event occurred.


Sec.  246.215  Railroad oversight responsibilities.

    (a) No later than March 31 of each year (beginning in calendar year 
[YEAR THAT IS 3 YEARS AFTER EFFECTIVE DATE OF FINAL RULE]), each Class 
I railroad (including the National Railroad Passenger Corporation), 
each railroad providing commuter service,

[[Page 35685]]

and each Class II railroad shall conduct a formal annual review and 
analysis concerning the administration of its program for responding to 
detected instances of poor safety conduct by certified signal employees 
during the prior calendar year.
    (b) Each review and analysis shall involve:
    (1) The number and nature of the instances of detected poor safety 
conduct including the nature of the remedial action taken in response 
thereto;
    (2) The number and nature of FRA reported accidents/incidents 
attributed to poor safety performance by signal employees; and
    (3) The number and type of operational monitoring test failures 
recorded by certified signal employees conducting compliance tests 
pursuant to Sec.  246.123.
    (c) Based on that review and analysis, each railroad shall 
determine what action(s) it will take to improve the safety of railroad 
operations to reduce or eliminate future accidents/incidents of that 
nature.
    (d) If requested in writing by FRA, the railroad shall provide a 
report of the findings and conclusions reached during such annual 
review and analysis effort.
    (e) For reporting purposes, information about the nature of 
detected poor safety conduct shall be capable of segregation for study 
and evaluation purposes into the following categories:
    (1) Incidents involving noncompliance with railroad rules and 
procedures governing the removal from service of:
    (i) Highway-rail and pathway grade crossing warning devices and 
systems; and
    (ii) Wayside signal devices and systems;
    (iii) Other devices or signal systems subject to this part.
    (2) Incidents involving noncompliance with railroad rules and 
procedures governing the restoration of service of:
    (i) Highway-rail and pathway grade crossing warning devices and 
systems; and
    (ii) Wayside signal devices and systems;
    (iii) Other devices or signal systems subject to this part.
    (3) Incidents involving interference with the normal functioning 
of:
    (i) Highway-rail and pathway grade crossing warning devices and 
systems; and
    (ii) Wayside signal devices and systems.
    (4) Incidents involving noncompliance with railroad rules and test 
procedures governing the inspection and testing of grade crossing 
warning devices and systems after installation, modification, 
disarrangement, maintenance, testing, and repair.
    (5) Incidents involving noncompliance with railroad test procedures 
on devices or signal systems subject to this part.
    (6) Incidents resulting in a signal false proceed, grade crossing 
activation failure, or accident or personal injury related to the same.
    (7) Incidents involving noncompliance with the on-track safety 
requirements in part 214 of this chapter.
    (8) Incidents involving noncompliance with part 219 of this 
chapter.
    (f) For reporting purposes, each category of detected poor safety 
conduct identified in paragraph (e) of this section shall be capable of 
being annotated to reflect the following:
    (1) The total number of incidents in that category;
    (2) The number of incidents within that total which reflect 
incidents requiring an FRA accident/incident report under part 225 of 
this chapter; and
    (3) The number of incidents within that total which were detected 
as a result of a scheduled operational monitoring effort.
    (g) For reporting purposes, each instance of detected poor safety 
conduct identified in paragraph (b) of this section shall be capable of 
being annotated to reflect the following:
    (1) The nature of the remedial action taken, and the number of 
events subdivided so as to reflect which of the following actions was 
selected:
    (i) Imposition of informal discipline;
    (ii) Imposition of formal discipline;
    (iii) Provision of informal training; or
    (iv) Provision of formal training; and
    (2) If the nature of the remedial action taken was formal 
discipline, the number of events further subdivided so as to reflect 
which of the following punishments was imposed by the railroad:
    (i) The person was withheld from service;
    (ii) The person was dismissed from employment; or
    (iii) The person was issued demerits. If more than one form of 
punishment was imposed only the punishment deemed the most severe shall 
be shown.
    (iv) The person's classification or type of signal service was 
removed or reduced.
    (h) For reporting purposes, each instance of detected poor safety 
conduct identified in paragraph (b) of this section which resulted in 
the imposition of formal or informal discipline shall be annotated to 
reflect the following:
    (1) The number of instances in which the railroad's internal 
appeals process reduced the punishment initially imposed at the 
conclusion of its hearing; and
    (2) The number of instances in which the punishment imposed by the 
railroad was reduced by any of the following entities: The National 
Railroad Adjustment Board, a Public Law Board, a Special Board of 
Adjustment, or other body for the resolution of disputes duly 
constituted under the provisions of the Railway Labor Act.
    (i) For reporting purposes, an instance of poor safety conduct 
involving an individual who is a certified signal employee and is 
certified in another craft such as locomotive engineer or conductor, 
need only be reported once (e.g., either under this section or Sec.  
240.309 or Sec.  242.215 of this chapter). The determination as to 
where to report the instance of poor safety conduct should be based on 
the work the person was performing at the time the conduct occurred.

Subpart D--Denial and Revocation of Certification


Sec.  246.301  Process for denying certification.

    (a) A railroad shall notify a candidate for certification or 
recertification of information known to the railroad that forms the 
basis for denying the person certification and provide the person a 
reasonable opportunity to explain or rebut that adverse information in 
writing prior to denying certification. A railroad shall provide the 
signal employee candidate with any documents or records, including 
written statements, related to failure to meet a requirement of this 
part that support its pending denial decision.
    (b) If a railroad denies a person certification or recertification, 
it shall issue a decision that complies with all of the following 
requirements:
    (1) It must be in writing;
    (2) It must explain the basis for the railroad's denial decision;
    (3) It must address any explanation or rebuttal information that 
the certification candidate provides pursuant to paragraph (a) of this 
section;
    (4) It must include the date of the railroad's decision; and
    (5) It must be served on the candidate no later than 10 days after 
the railroad's decision.
    (c) A railroad shall not deny the person's certification for 
failing to comply with a railroad test procedure, signal standard, or 
practice which

[[Page 35686]]

constitutes a violation under Sec.  246.303(e)(1) through (10) if 
sufficient evidence exists to establish that an intervening cause 
prevented or materially impaired the signal employee's ability to 
comply with that railroad test procedure, signal standard, or practice.


Sec.  246.303  Criteria for revoking certification.

    (a) It shall be unlawful to fail to comply with any of the railroad 
rules or practices described in paragraph (e) of this section.
    (b) A certified signal employee who has demonstrated a failure to 
comply with a railroad test procedure, signal standard or practice 
described in paragraph (e) of this section shall have their 
certification revoked.
    (c) A certified signal employee who is monitoring, mentoring, or 
instructing a signal employee and fails to take appropriate action to 
prevent a violation of a railroad test procedure, signal standard or 
practice described in paragraph (e) of this section shall have their 
certification revoked. Appropriate action does not mean that a 
supervisor, mentor, or instructor must prevent a violation from 
occurring at all costs; the duty may be met by warning the signal 
employee of a potential or foreseeable violation.
    (d) A certified signal employee who is called by a railroad to 
perform a duty other than that of a signal employee shall not have 
their signal employee certification revoked based on actions taken or 
not taken while performing that duty except for violations described in 
paragraph (e)(11) of this section.
    (e) When determining whether to revoke a signal employee's 
certification, a railroad shall only consider violations of Federal 
regulatory provisions or railroad rules, procedures, signal standards, 
and practices that involve:
    (1) Interfering with the normal functioning of a highway-rail grade 
crossing warning system under Sec.  234.209 of this chapter, or signal 
system under Sec.  236.4 of this chapter, without providing an 
alternative means of protection. (Railroads shall only consider those 
violations that result in an activation failure or false proceed 
signal.)
    (2) Failure to comply with a railroad rule or procedure when 
removing from service:
    (i) Highway-rail or pathway grade crossing warning devices and 
systems;
    (ii) Wayside signal devices and systems; or
    (iii) Other devices or signal systems subject to this part.
    (3) Failure to comply with railroad rule or procedure when placing 
in service or restoring to service:
    (i) Highway-rail and pathway grade crossing warning devices and 
systems;
    (ii) Wayside signal devices and systems; or
    (iii) Other devices or signal systems subject to this part.
    (4) Failure to perform an inspection or test to ensure a highway-
rail or pathway grade crossing warning device or system functions as 
intended, when required by railroad rule or procedure, after:
    (i) Installation, maintenance, testing or repair of the warning 
device or system;
    (ii) Modification or disarrangement of the warning device or 
system; or
    (iii) Malfunction or failure of the warning device or system;
    (5) Failure to restore power to train detection device or highway-
rail or pathway grade crossing warning device or system after manual 
interruption of the power source. (Railroads shall consider only those 
violations that result in activation failures.)
    (6) Failure to comply with railroad validation or cutover 
procedures.
    (7) Failure to comply with Sec. Sec.  214.313, 214.319, 214.321, 
214.323, 214.325, 214.327, and 214.329. Railroads shall consider only 
those violations directly involving the signal employee who failed to 
ascertain whether on-track safety was being provided before fouling a 
track.
    (8) Failure to comply with Sec.  218.25 of this chapter (Workers on 
a main track);
    (9) Failure to comply with Sec.  218.27 of this chapter (Workers on 
other than main track);
    (10) Failure to comply with Sec.  218.29 of this chapter (Alternate 
methods of protection);
    (11) Failure to comply with Sec.  219.101 of this chapter.
    (f) In making the determination as to whether to revoke a signal 
employee's certification, a railroad shall only consider conduct 
described in paragraphs (e)(1) through (10) of this section that 
occurred within the three years prior to the determination.
    (g) If in any single incident the person's conduct contravened more 
than one Federal regulatory provision or railroad rule, procedure, 
signal standard, or practice listed in paragraph (e) of this section, 
that event shall be treated as a single violation for the purposes of 
this section.
    (h) A violation of one or more railroad rules, procedures, signal 
standards, or practices described in paragraphs (e)(1) through (10) of 
this section that occurs during a properly conducted compliance test 
subject to the provisions of this chapter shall be counted in 
determining the periods of ineligibility described in Sec.  246.305.
    (i) A compliance test that is not conducted in accordance with this 
part, the railroad's operating rules, or the railroad's program under 
Sec.  217.9 of this chapter, will not be considered a legitimate test 
of skill or knowledge and will not be considered for revocation 
purposes.
    (j) Each railroad shall adopt and comply with a program meeting the 
requirements of this section. When any person (including, but not 
limited to, each railroad, railroad officer, supervisor, and employee) 
violates any requirement of a program which complies with the 
requirements of this section, that person shall be considered to have 
violated the requirements of this section.


Sec.  246.305  Periods of ineligibility.

    (a) The starting date for a period of ineligibility described in 
this section shall be:
    (1) For a person not currently certified, the date of the 
railroad's written determination that the most recent incident has 
occurred; or
    (2) For a person currently certified, the date of the railroad's 
notification to the person that recertification has been denied or 
certification has been suspended.
    (b) A period of ineligibility shall be determined according to the 
following standards:
    (1) In the case of a single incident involving a violation of one 
or more of the Federal regulatory provisions or railroad rules, 
procedures, signal standards, or practices described in Sec.  
246.303(e)(1) through (10), the person shall have their certificate 
revoked for a period of 30 calendar days.
    (2) In the case of two separate incidents involving a violation of 
one or more of the railroad rules, procedures, signal standards, or 
practices described in Sec.  246.303(e)(1) through (10), that occurred 
within 24 months of each other, the person shall have their certificate 
revoked for a period of 6 months.
    (3) In the case of three separate incidents involving violations of 
one or more of the railroad rules, procedures, signal standards, or 
practices, described in Sec.  246.303(e)(1) through (10), that occurred 
within 36 months of each other, the person shall have their certificate 
revoked for a period of 1 year.
    (4) In the case of four separate incidents involving violations of 
one or more of the railroad rules, procedures, signal standards, or 
practices, described in Sec.  246.303(e)(1) through (10), that

[[Page 35687]]

occurred within 36 months of each other, the person shall have their 
certificate revoked for a period of 3 years.
    (5) Where, based on the occurrence of violations described in Sec.  
246.303(e)(1) through (10), different periods of ineligibility may 
result under the provisions of this section and Sec.  246.115, the 
longest period of revocation shall control.
    (c) Any or all periods of revocation provided in paragraph (b) of 
this section may consist of training.
    (d) A person whose certification is denied or revoked shall be 
eligible for grant or reinstatement of the certificate prior to the 
expiration of the initial period of ineligibility only if:
    (1) The denial or revocation of certification in accordance with 
the provisions of paragraph (b) of this section is for a period of one 
year or less;
    (2) Certification is denied or revoked for reasons other than 
noncompliance with Sec.  219.101 of this chapter;
    (3) The person is evaluated by a railroad officer and determined to 
have received adequate remedial training;
    (4) The person successfully completes any mandatory program of 
training or retraining, if that is determined to be necessary by the 
railroad prior to return to service; and
    (5) At least one half of the pertinent period of ineligibility 
specified in paragraph (b) of this section has elapsed.


Sec.  246.307  Process for revoking certification.

    (a) If a railroad determines that a signal employee, who is 
currently certified by the railroad, has violated a railroad test 
procedure, signal standard or practice described in Sec.  246.303(e), 
the railroad shall revoke the signal employee's certification in 
accordance with the procedures and requirements of this section.
    (b) Except as provided for in Sec.  246.115(f), if a railroad 
acquires reliable information that a signal employee, who is currently 
certified by the railroad, has violated a railroad rule, procedure, 
signal standard, or practice described in Sec.  246.303(e), the 
railroad shall undergo the following process to determine whether 
revocation of the signal employee's certification is warranted:
    (1) The signal employee's certification shall be suspended 
immediately.
    (2) The signal employee's employer(s) (if different from the 
suspending railroad) shall be immediately notified of the certification 
suspension and the reason for the certification suspension.
    (3) Prior to or upon suspending the signal employee's 
certification, the railroad shall provide the signal employee with 
notice of: the reason for the suspension; the pending revocation; and 
an opportunity for a hearing before a presiding officer other than the 
investigating officer. This notice may initially be given either 
verbally or in writing. If given verbally, the notice must be 
subsequently confirmed in writing in a manner that conforms with the 
notification provisions of the applicable collective bargaining 
agreement. If there is no applicable collective bargaining agreement 
notification provision, the written notice must be made within four 
days of the date the certification was suspended.
    (4) The railroad must convene the hearing within the time frame 
required under the applicable collective bargaining agreement. If there 
is no applicable collective bargaining agreement or the applicable 
collective bargaining agreement does not include such a requirement, 
the hearing shall be convened within 10 days of the date the 
certification is suspended unless the signal employee requests or 
consents to a delay to the start of the hearing.
    (5) No later than the start of the hearing, the railroad shall 
provide the signal employee with a copy of the written information and 
a list of witnesses the railroad will present at the hearing. If this 
information was provided just prior to the start of the hearing and the 
signal employee requests a recess to the start of the hearing, such 
request must be granted. If this information was provided by an 
employee of the railroad, the railroad shall make that employee 
available for examination during the hearing.
    (6) Following the hearing, the railroad must determine, based on 
the record of the hearing, whether revocation of the certification is 
warranted. The railroad shall have the burden of proving that 
revocation of the signal employee's certification is warranted under 
Sec.  246.303.
    (7) If the railroad determines that revocation of the signal 
employee's certification is warranted, the railroad shall impose the 
proper period of revocation provided for in Sec. Sec.  246.305 and 
246.115.
    (8) The railroad shall retain the record of the hearing for three 
years after the date the decision is rendered.
    (c) A hearing required by this section which is conducted in a 
manner that conforms procedurally to the applicable collective 
bargaining agreement shall satisfy the procedural requirements of this 
section.
    (d) Except as provided for in paragraph (c) of this section, a 
hearing required under this section shall be conducted in accordance 
with the following procedures:
    (1) The hearing shall be conducted by a presiding officer who can 
be any proficient person authorized by the railroad other than the 
investigating officer.
    (2) The presiding officer shall convene and preside over the 
hearing and exercise the powers necessary to regulate the conduct of 
the hearing for the purpose of achieving a prompt and fair 
determination of all material issues in dispute.
    (3) The presiding officer may:
    (i) Adopt any needed procedures for the submission of evidence in 
written form;
    (ii) Examine witnesses at the hearing; and
    (iii) Take any other action authorized by or consistent with the 
provisions of this part and permitted by law that may assist in 
achieving a prompt and fair determination of all material issues in 
dispute.
    (4) All relevant and probative evidence shall be received into the 
record unless the presiding officer determines the evidence to be 
unduly repetitive or have such minimal relevance that its admission 
would impair the prompt, orderly, and fair resolution of the 
proceeding.
    (5) Parties may appear at the hearing and be heard on their own 
behalf or through designated representatives. Parties may offer 
relevant evidence including testimony and may conduct such examination 
of witnesses as may be required for a full disclosure of the relevant 
facts.
    (6) Testimony by witnesses at the hearing shall be recorded 
verbatim. Witnesses can testify in person, over the phone, or 
virtually.
    (7) The record in the proceeding shall be closed at the conclusion 
of the hearing unless the presiding officer allows additional time for 
the submission of evidence.
    (8) A hearing required under this section may be consolidated with 
any disciplinary action or other hearing arising from the same facts.
    (9) A person may waive their right to a hearing. That waiver shall:
    (i) Be made in writing;
    (ii) Reflect the fact that the person has knowledge and 
understanding of these rights and voluntarily surrenders them; and
    (iii) Be signed by the person making the waiver.
    (e) Except as provided for in paragraph (c) of this section, a 
decision,

[[Page 35688]]

required by this section, on whether to revoke a signal employee's 
certification shall comply with the following requirements:
    (1) No later than 10 days after the close of the record, a railroad 
official, other than the investigating officer, shall prepare and sign 
a written decision as to whether the railroad is revoking the signal 
employee's certification.
    (2) The decision shall:
    (i) Contain the findings of fact on all material issues as well as 
an explanation for those findings with citations to all applicable 
railroad rules, signal standards and procedures and any applicable 
Federal regulations;
    (ii) State whether the railroad official found that the signal 
employee's certification should be revoked;
    (iii) State the period of revocation under Sec.  246.305 (if the 
railroad official concludes that the signal employee's certification 
should be revoked); and
    (iv) Be served on the employee and the employee's representative, 
if any, with the railroad retaining proof of service for three years 
after the date the decision is rendered.
    (f) The period that a signal employee's certification is suspended 
in accordance with paragraph (b)(1) of this section shall be credited 
towards any period of revocation that the railroad assesses in 
accordance with Sec.  246.305.
    (g) A railroad shall revoke a signal employee's certification if, 
during the period that certification is valid, the railroad acquires 
information that another railroad has revoked the person's signal 
employee certification in accordance with the provisions of this 
section. Such revocation shall run concurrently with the period of 
revocation imposed by the railroad that initially revoked the person's 
certification. The requirement to provide a hearing under this section 
is satisfied when any single railroad holds a hearing. No additional 
hearing is required prior to revocation by more than one railroad 
arising from the same facts.
    (h) A railroad shall not revoke a signal employee's certification 
if sufficient evidence exists to establish that an intervening cause 
prevented or materially impaired the signal employee's ability to 
comply with the railroad test procedure, signal standard, or practice 
which constitutes a violation under Sec.  246.303.
    (i) A railroad may decide not to revoke a signal employee's 
certification if sufficient evidence exists to establish that the 
violation of the railroad test procedure, signal standard, or practice 
described in Sec.  246.303(e) was of a minimal nature and had no direct 
or potential effect on rail safety.
    (j) If sufficient evidence meeting the criteria in paragraph (h) or 
(i) of this section becomes available, the railroad shall place the 
relevant information in the records maintained in compliance with:
    (1) Section 246.215 for Class I railroads (including that National 
Railroad Passenger Corporation), railroads providing commuter service, 
and Class II railroads; and
    (2) Section 246.203 for Class III railroads.
    (k) If a railroad makes a good faith determination, after 
performing a reasonable inquiry, that the course of conduct provided 
for in paragraph (h) or (i) of this section is warranted, the railroad 
will not be in violation of paragraph (b)(1) of this section if it 
decides not to suspend the signal employee's certification.

Subpart E--Dispute Resolution Procedures


Sec.  246.401  Review board established.

    (a) Any person who has been denied certification or 
recertification, or has had their certification revoked and believes a 
railroad incorrectly determined that they failed to meet the 
certification requirements of this part when making the decision to 
deny or revoke certification, may petition the Administrator to review 
the railroad's decision.
    (b) The Administrator has delegated initial responsibility for 
adjudicating such disputes to the Certification Review Board (Board). 
The Board shall be composed of FRA employees.


Sec.  246.403  Petition requirements.

    (a) To obtain review of a railroad's decision to deny or revoke 
certification, or deny recertification, a person shall file a petition 
for review that complies with this section.
    (b) Each petition shall:
    (1) Be in writing;
    (2) Be filed no more than 120 days after the date the railroad's 
denial or revocation decision was served on the petitioner, except as 
provided for in paragraph (d) of this section;
    (3) Be filed on https://www.regulations.gov;
    (4) Include the following contact information for the petitioner 
and petitioner's representative (if petitioner is represented):
    (i) Full name;
    (ii) Daytime telephone number; and
    (iii) Email address;
    (5) Include the name of the railroad and the name of the 
petitioner's employer (if different from the railroad that revoked 
petitioner's certification);
    (6) Contain the facts that the petitioner believes constitute the 
improper action by the railroad and the arguments in support of the 
petition; and
    (7) Include all written documents in the petitioner's possession or 
reasonably available to the petitioner that document the railroad's 
decision.
    (c) If requested by the Board, the petitioner must provide a copy 
of the information under 49 CFR 40.329 that laboratories, medical 
review officers, and other service agents are required to release to 
employees. The petitioner must provide a written explanation in 
response to a Board request if written documents, that should be 
reasonably available to the petitioner, are not supplied.
    (d) The Board may extend the petition filing period in its 
discretion, provided the petitioner provides good cause for the 
extension and:
    (1) The request for an extension is filed before the expiration of 
the period provided for in paragraph (b)(2) of this section; or
    (2) The failure to timely file was the result of excusable neglect.
    (e) A party aggrieved by a Board decision to deny a petition as 
untimely or not in compliance with the requirements of this section may 
file an appeal with the Administrator in accordance with Sec.  246.411.


Sec.  246.405  Processing certification review petitions.

    (a) Each petition shall be acknowledged in writing by FRA. The 
acknowledgment shall be sent by email to the petitioner (if an email 
address is provided), petitioner's representative (if any), the 
railroad, and petitioner's employer (if different from the railroad 
that revoked petitioner's certification). The acknowledgment shall 
contain the docket number assigned to the petition and will notify the 
parties where the petition can be accessed.
    (b) Within 60 days from the date of the acknowledgment provided in 
paragraph (a) of this section, the railroad may submit to FRA any 
information that the railroad considers pertinent to the petition and 
shall supplement the record with any relevant documents in its 
possession, such as hearing transcripts and exhibits, that were not 
submitted by the petitioner. Late filings will only be considered to 
the extent practicable. A railroad that submits such information shall:
    (1) Identify the petitioner by name and the docket number for the 
petition;

[[Page 35689]]

    (2) Provide the railroad's email address;
    (3) Serve a copy of the information being submitted to FRA to the 
petitioner and petitioner's representative (if any); and
    (4) Be filed on https://www.regulations.gov.
    (c) The petition will be referred to the Board for a decision after 
a railroad's response is received or 60 days from the date of the 
acknowledgment provided in paragraph (a) of this section, whichever is 
earlier. Based on the record, the Board shall have the authority to 
grant, deny, dismiss, or remand the petition. If the Board finds that 
there is insufficient basis for granting or denying the petition, the 
Board may issue an order affording the parties an opportunity to 
provide additional information or argument consistent with its 
findings.
    (d) When considering procedural issues, the Board will grant the 
petition if the petitioner shows:
    (1) That a procedural error occurred; and
    (2) The procedural error caused substantial harm to the petitioner.
    (e) When considering factual issues, the Board will grant the 
petition if the petitioner shows that the railroad did not provide 
substantial evidence to support its decision.
    (f) When considering legal issues, the Board will determine whether 
the railroad's legal interpretations are correct based on a de novo 
review.
    (g) The Board will only consider whether the denial or revocation 
of certification or recertification was improper under this part and 
will grant or deny the petition accordingly. The Board will not 
otherwise consider the propriety of a railroad's decision. For 
example,the Board will not consider whether the railroad properly 
applied its own more stringent requirements.
    (h) The Board's written decision shall be served on the petitioner, 
petitioner's representative (if any), the railroad, and petitioner's 
employer (if different from the railroad that revoked petitioner's 
certification).


Sec.  246.407  Request for a hearing.

    (a) If adversely affected by the Board's decision, either the 
petitioner before the Board or the railroad involved shall have a right 
to an administrative proceeding as prescribed by Sec.  246.409.
    (b) To exercise that right, the adversely affected party shall file 
a written request for a hearing within 20 days of service of the 
Board's decision on that party. The request must be filed in the docket 
on https://www.regulations.gov that was used when the case was before 
the Board.
    (c) A written request for a hearing must contain the following:
    (1) The name, telephone number, and email address of the requesting 
party and the party's designated representative (if any);
    (2) The name, telephone number, and email address of the 
respondent;
    (3) The docket number for the case while it was before the Board;
    (4) The specific factual issues, industry rules, regulations, or 
laws that the requesting party alleges need to be examined in 
connection with the certification decision in question; and
    (5) The signature of the requesting party or the requesting party's 
representative (if any).
    (d) Upon receipt of a hearing request complying with paragraph (c) 
of this section, FRA shall arrange for the appointment of a presiding 
officer who shall schedule the hearing for the earliest practicable 
date.
    (e) If a party fails to request a hearing within the period 
provided in paragraph (b) of this section, the Board's decision will 
constitute final agency action.


Sec.  246.409  Hearings.

    (a) An administrative hearing for a signal employee certification 
petition shall be conducted by a presiding officer, who can be any 
person authorized by the Administrator.
    (b) The presiding officer shall convene and preside over the 
hearing. The hearing shall be a de novo hearing to find the relevant 
facts and determine the correct application of this part to those 
facts. The presiding officer may determine that there is no genuine 
issue covering some or all material facts and limit evidentiary 
proceedings to any issues of material fact as to which there is a 
genuine dispute.
    (c) The presiding officer may exercise the powers of the 
Administrator to regulate the conduct of the hearing for the purpose of 
achieving a prompt and fair determination of all material issues in 
controversy.
    (d) The presiding officer may authorize discovery of the types and 
quantities which in the presiding officer's discretion will contribute 
to a fair hearing without unduly burdening the parties. The presiding 
officer may impose appropriate non-monetary sanctions, including 
limitations as to the presentation of evidence and issues, for any 
party's willful failure or refusal to comply with approved discovery 
requests.
    (e) Every petition, motion, response, or other authorized or 
required document shall be signed by the party filing the same, or by a 
duly authorized officer or representative of record, or by any other 
person. If signed by such other person, the reason therefor must be 
stated and the power of attorney or other authority authorizing such 
other person to subscribe the document must be filed with the document. 
The signature of the person subscribing any document constitutes a 
certification that they have read the document; that to the best of 
their knowledge, information, and belief every statement contained in 
the document is true and no such statements are misleading; and that it 
is not interposed for delay or to be vexatious.
    (f) After the request for a hearing is filed, all documents filed 
or served upon one party must be served upon all parties. Each party 
may designate a person upon whom service is to be made when not 
specified by law, regulation, or directive of the presiding officer. If 
a party does not designate a person upon whom service is to be made, 
then service may be made upon any person having subscribed to a 
submission of the party being served, unless otherwise specified by 
law, regulation, or directive of the presiding officer. Proof of 
service shall accompany all documents when they are tendered for 
filing.
    (g) If any document initiating, filed in, or served in, a 
proceeding is not in substantial compliance with the applicable law, 
regulation, or directive of the presiding officer, the presiding 
officer may strike or dismiss all or part of such document, or require 
its amendment.
    (h) Any party to a proceeding may appear and be heard in person or 
by an authorized representative.
    (i) Any person testifying at a hearing or deposition may be 
accompanied, represented, and advised by an attorney or other 
representative, and may be examined by that person.
    (j) Any party may request to consolidate or separate the hearing of 
two or more petitions by motion to the presiding officer when they 
arise from the same or similar facts or when the matters are for any 
reason deemed more efficiently heard together.
    (k) Except as provided in Sec.  246.407(e) and paragraph (s)(4) of 
this section, whenever a party has the right or is required to take 
action within a period prescribed by this part, or by law, regulation, 
or directive of the presiding officer, the presiding officer may extend 
such period, with or without notice, for good cause, provided another 
party is not substantially prejudiced by such extension. A request to 
extend a period which has already expired may be denied as untimely.

[[Page 35690]]

    (l) An application to the presiding officer for an order or ruling 
not otherwise specifically provided for in this part shall be by 
motion. The motion shall be filed with the presiding officer and, if 
written, served upon all parties. All motions, unless made during the 
hearing, shall be written. Motions made during hearings may be made 
orally on the record, except that the presiding officer may direct that 
any oral motion be reduced to writing. Any motion shall state with 
particularity the grounds therefor and the relief or order sought and 
shall be accompanied by any affidavits or other evidence desired to be 
relied upon which is not already part of the record. Any matter 
submitted in response to a written motion must be filed and served 
within 14 days of the motion, or within such other period as directed 
by the presiding officer.
    (m) Testimony by witnesses at the hearing shall be given under oath 
and the hearing shall be recorded verbatim. The presiding officer shall 
give the parties to the proceeding adequate opportunity during the 
course of the hearing for the presentation of arguments in support of 
or in opposition to motions, and objections and exceptions to rulings 
of the presiding officer. The presiding officer may permit oral 
argument on any issues for which the presiding officer deems it 
appropriate and beneficial. Any evidence or argument received or 
proffered orally shall be transcribed and made a part of the record. 
Any physical evidence or written argument received or proffered shall 
be made a part of the record, except that the presiding officer may 
authorize the substitution of copies, photographs, or descriptions, 
when deemed to be appropriate.
    (n) The presiding officer shall employ the Federal Rules of 
Evidence for United States Courts and Magistrates as general guidelines 
for the introduction of evidence. Notwithstanding paragraph (m) of this 
section, all relevant and probative evidence shall be received unless 
the presiding officer determines the evidence to be unduly repetitive 
or so extensive and lacking in relevancy that its admission would 
impair the prompt, orderly, and fair resolution of the proceeding.
    (o) The presiding officer may:
    (1) Administer oaths and affirmations;
    (2) Issue subpoenas as provided for in Sec.  209.7 of this chapter;
    (3) Adopt any needed procedures for the submission of evidence in 
written form;
    (4) Examine witnesses at the hearing;
    (5) Convene, recess, adjourn, or otherwise regulate the course of 
the hearing; and
    (6) Take any other action authorized by or consistent with the 
provisions of this part and permitted by law that may expedite the 
hearing or aid in the disposition of the proceeding.
    (p) The petitioner before the Board, the railroad involved in 
taking the certification action, and FRA shall be parties at the 
hearing. All parties may participate in the hearing and may appear and 
be heard on their own behalf or through designated representatives. All 
parties may offer relevant evidence, including testimony, and may 
conduct such cross-examination of witnesses as may be required to make 
a record of the relevant facts.
    (q) The party requesting the administrative hearing shall be the 
``hearing petitioner.'' The party that the Board issued its decision in 
favor of will be a respondent. At the start of each proceeding, FRA 
will be a respondent as well. The hearing petitioner shall have the 
burden of proving its case by a preponderance of the evidence.
    (r) The record in the proceeding shall be closed at the conclusion 
of the evidentiary hearing unless the presiding officer allows 
additional time for the submission of additional evidence. In such 
instances the record shall be left open for such time as the presiding 
officer grants for that purpose.
    (s) At the close of the record, the presiding officer shall prepare 
a written decision in the proceeding. The decision:
    (1) Shall contain the findings of fact and conclusions of law, as 
well as the basis for each, concerning all material issues of fact or 
law presented on the record;
    (2) Shall be served on all parties to the proceeding;
    (3) Shall not become final for 35 days after issuance;
    (4) Constitutes final agency action unless an aggrieved party files 
an appeal within 35 days after issuance; and
    (5) Is not precedential.


Sec.  246.411  Appeals.

    (a) Any party aggrieved by the presiding officer's decision may 
file an appeal in the presiding officer's docket. The appeal must be 
filed within 35 days of issuance of the decision. A copy of the appeal 
shall be served on each party. The appeal shall set forth objections to 
the presiding officer's decision, supported by reference to applicable 
laws and regulations and with specific reference to the record. If no 
appeal is timely filed, the presiding officer's decision constitutes 
final agency action.
    (b) A party may file a reply to the appeal within 25 days of 
service of the appeal. The reply shall be supported by reference to 
applicable laws and regulations and with specific reference to the 
record, if the party relies on evidence contained in the record.
    (c) The Administrator may extend the period for filing an appeal or 
a response for good cause shown, provided that the written request for 
extension is served before expiration of the applicable period provided 
in this section.
    (d) The Administrator has sole discretion to permit oral argument 
on the appeal. On the Administrator's own initiative or written motion 
by any party, the Administrator may grant the parties an opportunity 
for oral argument.
    (e) The Administrator may remand, vacate, affirm, reverse, alter, 
or modify the decision of the presiding officer and the Administrator's 
decision constitutes final agency action except where the terms of the 
Administrator's decision (for example, remanding a case to the 
presiding officer) show that the parties' administrative remedies have 
not been exhausted.
    (f) An appeal from a Board decision pursuant to Sec.  246.403(e) 
must be filed in the Board's docket within 35 days of issuance of the 
decision. A copy of the appeal shall be served on each party. The 
Administrator may affirm or vacate the Board's decision and may remand 
the petition to the Board for further proceedings. An Administrator's 
decision to affirm the Board's decision constitutes final agency 
action.

Appendix A to Part 246--Procedures for Obtaining and Evaluating Motor 
Vehicle Driving Record Data

    (1) The purpose of this appendix is to outline the procedures 
available to individuals and railroads for complying with the 
proposed requirements of Sec.  246.111. This provision requires that 
railroads consider the motor vehicle driving record of each person 
prior to issuing them certification or recertification as a signal 
employee.
    (2) To fulfill that obligation, a railroad is required to review 
a certification candidate's recent motor vehicle driving record. 
Generally, that will be a single record on file with the State 
agency that issued the certification candidate's current motor 
vehicle driver's license. However, a motor vehicle driving record 
can include multiple documents if the certification candidate has 
been issued a motor vehicle driver's license by more than one State 
agency or a foreign country.

Access to State Motor Vehicle Driving Record Data

    (3) The right of railroad workers, their employers, or 
prospective employers to have access to a State motor vehicle 
licensing agency's data concerning an individual's driving record is 
controlled by State law. Although many states have mechanisms 
through which employers and prospective

[[Page 35691]]

employers, such as railroads, can obtain such data, there are some 
states where privacy concerns make such access very difficult or 
impossible. Since individuals are generally entitled to obtain 
access to their driving record data that will be relied on by a 
State motor vehicle licensing agency when that agency is taking 
action concerning their driving privileges, FRA places the 
responsibility on individuals who want to serve as certified signal 
employees to request that their current State motor vehicle 
licensing agency (or agencies) furnish such data directly to the 
railroad that is considering certification (or recertification) of 
the individual as a signal employee. Depending on the procedures 
established by the State motor vehicle licensing agency, the 
individual may be asked to send the State agency a brief letter 
requesting such action or to execute a State agency form that 
accomplishes the same effect. Requests for an individual's motor 
vehicle driving record normally involve payment of a nominal fee 
established by the State agency as well. In rare instances, when a 
certification (or recertification) candidate has been issued 
multiple licenses, an individual may be required to submit multiple 
requests.
    (4) Once the railroad has obtained the individual's motor 
vehicle driving record(s), the railroad is required to afford the 
certification (or recertification) candidate an opportunity to 
review and comment on the record(s) in writing pursuant to Sec.  
246.301. The railroad is also required to provide this review 
opportunity before the railroad renders a decision based on 
information in the record(s). The railroad is required to evaluate 
the information in the certification (or recertification) 
candidate's motor vehicle driving record(s) pursuant to the 
provisions of this part.

Appendix B to Part 246--Medical Standards Guidelines

    (1) The purpose of this appendix is to provide greater guidance 
on the procedures that should be employed in administering the 
vision and hearing requirements of Sec. Sec.  246.117 and 246.118.
    (2) For any examination performed to determine whether a person 
meets the vision acuity requirements in Sec.  246.117, it is 
recommended that such examination be performed by a licensed 
optometrist or a technician who reports to a licensed optometrist. 
It is also recommended that any test conducted pursuant to Sec.  
246.117 be performed according to any directions supplied by the 
test's manufacturer and any ANSI standards that are applicable.
    (3) For any examination performed to determine whether a person 
meets the hearing acuity requirements in Sec.  246.118, it is 
recommended that such examination be performed by a licensed or 
certified audiologist or a technician who reports to a licensed or 
certified audiologist. It is also recommended that any test 
conducted pursuant to Sec.  246.118 be performed according to any 
directions supplied by the test's manufacturer and any ANSI 
standards that are applicable.
    (4) In determining whether a person has the visual acuity that 
meets or exceeds the requirements of this part, the following 
testing protocols are deemed acceptable testing methods for 
determining whether a person has the ability to recognize and 
distinguish among the colors used as signals in the railroad 
industry. The acceptable test methods are shown in the left hand 
column and the criteria that should be employed to determine whether 
a person has failed the particular testing protocol are shown in the 
right hand column.

                    Table 1 to Appendix B to Part 246
------------------------------------------------------------------------
             Accepted tests                      Failure criteria
------------------------------------------------------------------------
                     Pseudoisochromatic Plate Tests
------------------------------------------------------------------------
American Optical Company 1965..........  5 or more errors on plates 1-
                                          15.
AOC--Hardy-Rand-Ritter plates--second    Any error on plates 1-6 (plates
 edition.                                 1-4 are for demonstration--
                                          test plate 1 is actually plate
                                          5 in book).
Dvorine--Second edition................  3 or more errors on plates 1-
                                          15.
Ishihara (14 plate)....................  2 or more errors on plates 1-
                                          11.
Ishihara (16 plate)....................  2 or more errors on plates 1-8.
Ishihara (24 plate)....................  3 or more errors on plates 1-
                                          15.
Ishihara (38 plate)....................  4 or more errors on plates 1-
                                          21.
Richmond Plates 1983...................  5 or more errors on plates 1-
                                          15.
------------------------------------------------------------------------
                       Multifunction Vision Tester
------------------------------------------------------------------------
Keystone Orthoscope....................  Any error.
OPTEC 2000.............................  Any error.
Titmus Vision Tester...................  Any error.
Titmus II Vision Tester................  Any error.
------------------------------------------------------------------------

    (5) In administering any of these protocols, the person 
conducting the examination should be aware that railroad signals do 
not always occur in the same sequence and that ``yellow signals'' do 
not always appear to be the same. It is not acceptable to use 
``yarn'' or other materials to conduct a simple test to determine 
whether the certification candidate has the requisite vision. No 
person shall be allowed to wear chromatic lenses during an initial 
test of the person's color vision; the initial test is one conducted 
in accordance with one of the accepted tests in the chart and Sec.  
246.117(c)(3).
    (6)(i) An examinee who fails to meet the criteria in the chart 
may be further evaluated as determined by the railroad's medical 
examiner. Ophthalmologic referral, field testing, or other practical 
color testing may be utilized depending on the experience of the 
examinee. The railroad's medical examiner will review all pertinent 
information and, under some circumstances, may restrict an examinee 
who does not meet the criteria for serving as a signal employee. The 
intent of Sec. Sec.  246.117(d) and 246.118(d) is not to provide an 
examinee with the right to make an infinite number of requests for 
further evaluation, but to provide an examinee with at least one 
opportunity to prove that a hearing or vision test failure does not 
mean the examinee cannot safely perform as a certified signal 
employee.
    (ii) Appropriate further medical evaluation could include 
providing another approved scientific screening test or a field 
test. All railroads should retain the discretion to limit the number 
of retests that an examinee can request, but any cap placed on the 
number of retests should not limit retesting when changed 
circumstances would make such retesting appropriate. Changed 
circumstances would most likely occur if the examinee's medical 
condition has improved in some way or if technology has advanced to 
the extent that it arguably could compensate for a hearing or vision 
deficiency.
    (7) Certified signal employees who wear contact lenses should 
have good tolerance to the lenses and should be instructed to have a 
pair of corrective glasses available when on duty.

    Issued in Washington, DC.
Amitabha Bose,
Administrator.
[FR Doc. 2023-10773 Filed 5-30-23; 8:45 am]
BILLING CODE 4910-06-P

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