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[Code of Federal Regulations]
[Title 49, Volume 4]
[Revised as of October 1, 2003]
[CITE: 49CFR240]

[Page 621-669]
 

TITLE 49--TRANSPORTATION
CHAPTER II--FEDERAL RAILROAD ADMINISTRATION, DEPARTMENT OF TRANSPORTATION
PART 240--QUALIFICATION AND CERTIFICATION OF LOCOMOTIVE ENGINEERS



                           Subpart A--General

Sec.
240.1 Purpose and scope.
240.3 Application and responsibility for compliance.
240.5 Preemptive effect and construction.
240.7 Definitions.
240.9 Waivers.
240.11 Penalties and consequences for noncompliance.
240.13 Information collection requirements.

       Subpart B--Component Elements of the Certification Process

240.101 Certification program required.
240.103 Approval of design of individual railroad programs by FRA.
240.104 Criteria for determining whether movement of roadway maintenance 
          equipment or a dual purpose vehicle requires a certified 
          locomotive engineer.
240.105 Criteria for selection of designated supervisors of locomotive 
          engineers.
240.107 Criteria for designation of classes of service.
240.109 General criteria for eligibility based on prior safety conduct.

[[Page 622]]

240.111 Individual's duty to furnish data on prior safety conduct as 
          motor vehicle operator.
240.113 Individual's duty to furnish data on prior safety conduct as an 
          employee of a different railroad.
240.115 Criteria for consideration of prior safety conduct as a motor 
          vehicle operator.
240.117 Criteria for consideration of operating rules compliance data.
240.119 Criteria for consideration of data on substance abuse disorders 
          and alcohol/drug rules compliance.
240.121 Criteria for vision and hearing acuity data.
240.123 Criteria for initial and continuing education.
240.125 Criteria for testing knowledge.
240.127 Criteria for examining skill performance.
240.129 Criteria for monitoring operational performance of certified 
          engineers.

         Subpart C--Implementation of the Certification Process

240.201 Schedule for implementation.
240.203 Determinations required as a prerequisite to certification.
240.205 Procedures for determining eligibility based on prior safety 
          conduct.
240.207 Procedures for making the determination on vision and hearing 
          acuity.
240.209 Procedures for making the determination on knowledge.
240.211 Procedures for making the determination on performance skills.
240.213 Procedures for making the determination on completion of 
          training program.
240.215 Retaining information supporting determinations.
240.217 Time limitations for making determinations.
240.219 Denial of certification.
240.221 Identification of qualified persons.
240.223 Criteria for the certificate.
240.225 Reliance on qualification determinations made by other 
          railroads.
240.227 Reliance on qualification requirements of other countries.
240.229 Requirements for joint operations territory.
240.231 Requirements for locomotive engineers unfamiliar with physical 
          characteristics in other than joint operations.

         Subpart D--Administration of the Certification Programs

240.301 Replacement of certificates.
240.303 Operational monitoring requirements.
240.305 Prohibited conduct.
240.307 Revocation of certification.
240.309 Railroad oversight responsibilities.

                Subpart E--Dispute Resolution Procedures

240.401 Review board established.
240.403 Petition requirements.
240.405 Processing qualification review petitions.
240.407 Request for a hearing.
240.409 Hearings.
240.411 Appeals.

Appendix A to Part 240--Schedule of Civil Penalties
Appendix B to Part 240--Procedures for Submission and Approval of 
          Locomotive Engineer Qualification Programs
Appendix C to Part 240--Procedures for Obtaining and Evaluating Motor 
          Vehicle Driving Record Data
Appendix D to Part 240--Identification of State Agencies that Perform 
          National Driver Register Checks
Appendix E to Part 240--Recommended Procedures for Conducting Skill 
          Performance Tests
Appendix F to Part 240--Medical Standards Guidelines

    Authority: 49 U.S.C. 20103, 20107, 20135, 21301, 21304, 21311; 28 
U.S.C. 2461, note; and 49 CFR 1.49.

    Source: 56 FR 28254, June 19, 1991, unless otherwise noted.

                           Subpart A--General

Sec. 240.1  Purpose and scope.

    (a) The purpose of this part is to ensure that only qualified 
persons operate a locomotive or train.
    (b) This part prescribes minimum Federal safety standards for the 
eligibility, training, testing, certification and monitoring of all 
locomotive engineers to whom it applies. This part does not restrict a 
railroad from adopting and enforcing additional or more stringent 
requirements not inconsistent with this part.
    (c) The qualifications for locomotive engineers prescribed in this 
part are pertinent to any person who operates a locomotive, unless that 
person is specifically excluded by a provision of this part, regardless 
of the fact that a person may have a job classification title other than 
that of locomotive engineer.

[56 FR 28254, June 19, 1991, as amended at 64 FR 60988, Nov. 8, 1999]

[[Page 623]]

Sec. 240.3  Application and responsibility for compliance.

    (a) Except as provided in paragraph (b) of this section, this part 
applies to all railroads.
    (b) This part does not apply to--
    (1) A railroad that operates only on track inside an installation 
that is not part of the general railroad system of transportation; or
    (2) Rapid transit operations in an urban area that are not connected 
to the general railroad system of transportation.
    (c) Although the duties imposed by this part are generally stated in 
terms of the duty of a railroad, each person, including a contractor for 
a railroad, who performs any function covered by this part must perform 
that function in accordance with this part.

[64 FR 60988, Nov. 8, 1999]

Sec. 240.5  Preemptive effect and construction.

    (a) Under 49 U.S.C. 20106, issuance of the regulations in this part 
preempts any State law, regulation, or order covering the same subject 
matter, except an additional or more stringent law, regulation, or order 
that is necessary to eliminate or reduce an essentially local safety 
hazard; is not incompatible with a law, regulation, or order of the 
United States Government; and does not impose an unreasonable burden on 
interstate commerce.
    (b) FRA does not intend by issuance of these regulations to preempt 
provisions of State criminal law that impose sanctions for reckless 
conduct that leads to actual loss of life, injury, or damage to 
property, whether such provisions apply specifically to railroad 
employees or generally to the public at large.
    (c) FRA does not intend, by use of the term locomotive engineer in 
this part, to preempt or otherwise alter the terms, conditions, or 
interpretation of existing collective bargaining agreements that employ 
other job classification titles when identifying persons authorized by a 
railroad to operate a locomotive.
    (d) FRA does not intend by issuance of these regulations to preempt 
or otherwise 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.
    (e) 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.
    (f) 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.

[56 FR 28254, June 19, 1991, as amended at 58 FR 19002, Apr. 9, 1993; 64 
FR 60988, Nov. 8, 1999]

Sec. 240.7  Definitions.

    As used in this part--
    Administrator means the Administrator of the Federal Railroad 
Administration or the Administrator's delegate.
    Alcohol means ethyl alcohol (ethanol) and includes use or possession 
of any beverage, mixture, or preparation containing ethyl alcohol.
    Controlled Substance has the meaning assigned by 21 U.S.C. 802 and 
includes all substances listed on Schedules I through V as they may be 
revised from time to time (21 CFR parts 1301-1316).
    Current Employee is any employee with at least one year of 
experience in transportation service on a railroad.
    Designated Supervisor of Locomotive Engineers is a person designated 
as such by a railroad in accordance with the provisions of Sec. 240.105 
of this part.
    Drug means any substance (other than alcohol) that has known mind or 
function-altering effects on a human subject, specifically including any 
psychoactive substance and including, but not limited to, controlled 
substances.
    Dual purpose vehicle means a piece of on-track equipment that is 
capable of moving railroad rolling stock and may

[[Page 624]]

also function as roadway maintenance equipment.
    EAP Counselor means a person qualified by experience, education, or 
training to counsel people affected by substance abuse problems and to 
evaluate their progress in recovering from or controlling such problems. 
An EAP Counselor 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 physician designated by 
the railroad to perform functions in connection with alcohol or 
substance abuse evaluation or counseling. As used in this rule, the EAP 
Counselor owes a duty to the railroad to make an honest and fully 
informed evaluation of the condition and progress of an employee.
    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 on or 
after September 4, 2001, the date mailing was completed.
    FRA means the Federal Railroad Administration.
    FRA Representative means the Associate Administrator for Safety, 
FRA, 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.
    Instructor Engineer means a person who
    (1) Is a qualified locomotive engineer under this part,
    (2) Has been selected by the railroad to teach others proper train 
handling procedures, and
    (3) Has demonstrated an adequate knowledge of the subjects under 
instruction.
    Joint Operations means rail operations conducted by more than one 
railroad on the same track regardless of whether such operations are the 
result of--
    (1) Contractual arrangement between the railroads,
    (2) Order of a governmental agency or a court of law, or
    (3) Any other legally binding directive.
    Knowingly means having actual knowledge of the facts giving rise to 
the violation or that a reasonable person acting in the circumstances, 
exercising due care, would have had such knowledge.
    Locomotive means a piece of on-track equipment (other than 
specialized roadway maintenance equipment or a dual purpose vehicle 
operating in accordance with Sec. 240.104(a)(2)):
    (1) With one or more propelling motors designed for moving other 
equipment;
    (2) With one or more propelling motors designed to carry freight or 
passenger traffic or both; or
    (3) Without propelling motors but with one or more control stands.
    Locomotive engineer means any person who moves a locomotive or group 
of locomotives regardless of whether they are coupled to other rolling 
equipment except:
    (1) A person who moves a locomotive or group of locomotives within 
the confines of a locomotive repair or servicing area as provided for in 
49 CFR 218.5(f) and 218.29(a)(1); or
    (2) A person who moves a locomotive or group of locomotives for 
distances of less than 100 feet and this incidental movement of a 
locomotive or locomotives is for inspection or maintenance purposes.
    Main track means a track upon which the operation of trains is 
governed by one or more of the following methods of operation: 
timetable; mandatory directive; signal indication; or any form of 
absolute or manual block system.
    Medical examiner means a person licensed as a doctor of medicine or 
doctor of osteopathy. A medical examiner can be a qualified full-time 
salaried employee of a railroad, a qualified practitioner who contracts 
with the railroad on a fee-for-service or other basis, or a qualified 
practitioner designated by the railroad to perform functions in 
connection with medical evaluations of employees. As used in this rule, 
the medical examiner owes a duty to the railroad to make an honest and 
fully informed evaluation of the condition of an employee.
    Newly hired employee is any person who is hired with no prior 
railroad experience, or one with less than one

[[Page 625]]

year of experience in transportation service on that railroad or another 
railroad.
    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.
    Qualified means a person who has passed all appropriate training and 
testing programs required by the railroad and this part and who, 
therefore, has actual knowledge or may reasonably be expected to have 
knowledge of the subject on which the person is qualified.
    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.
    Railroad rolling stock is on-track equipment that is either a 
freight car (as defined in Sec. 215.5 of this chapter) or a passenger 
car (as defined in Sec. 238.5 of this chapter).
    Roadway maintenance equipment is on-track equipment powered by any 
means of energy other than hand power which is used in conjunction with 
maintenance, repair, construction or inspection of track, bridges, 
roadway, signal, communications, or electric traction systems.
    Segment means any portion of a railroad assigned to the supervision 
of one superintendent or equivalent transportation officer.
    Service has the meaning given in Rule 5 of the Federal Rules of 
Civil Procedure as amended. Similarly, the computation of time 
provisions in Rule 6 of the Federal Rules of Civil Procedure as amended 
are also applicable in this part. See also the definition of ``filing'' 
in this section.
    Specialized roadway maintenance equipment is roadway maintenance 
equipment that does not have the capability to move railroad rolling 
stock. Any alteration of such equipment that enables it to move railroad 
rolling stock will require that the equipment be treated as a dual 
purpose vehicle.
    Substance abuse disorder refers to a psychological or physical 
dependence on alcohol or a drug or another identifiable and treatable 
mental or physical disorder involving the abuse of alcohol or drugs as a 
primary manifestation. A substance abuse disorder is ``active'' within 
the meaning of this part if the person (1) is currently using alcohol 
and 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 an EAP Counselor.
    Type I Simulator means a replica of the control compartment of a 
locomotive with all associated control equipment that:
    (1) Functions in response to a person's manipulation and causes the 
gauges associated with such controls to appropriately respond to the 
consequences of that manipulation;
    (2) Pictorially, audibly and graphically illustrates the route to be 
taken;
    (3) Graphically, audibly, and physically illustrates the 
consequences of control manipulations in terms of their effect on train 
speed, braking capacity, and in-train force levels throughout the train; 
and
    (4) Is computer enhanced so that it can be programmed for specific 
train consists and the known physical characteristics of the line 
illustrated.

[[Page 626]]

    Type II Simulator means a replica of the control equipment for a 
locomotive that:
    (1) Functions in response to a person's manipulation and causes the 
gauges associated with such controls to appropriately respond to the 
consequences of that manipulation;
    (2) Pictorially, audibly, and graphically illustrates the route to 
be taken;
    (3) Graphically and audibly illustrates the consequences of control 
manipulations in terms of their effect on train speed braking capacity, 
and in-train force levels throughout the train; and
    (4) Is computer enhanced so that it can be programmed for specific 
train consists and the known physical characteristics of the line 
illustrated.
    Type III Simulator means a replica of the control equipment for a 
locomotive that:
    (1) Functions in response to a person's manipulation and causes the 
gauges associated with such controls to appropriately respond to the 
consequences of that manipulation;
    (2) Graphically illustrates the route to be taken;
    (3) Graphically illustrates the consequences of control 
manipulations in terms of their effect on train speed braking capacity, 
and in-train force levels throughout the train; and
    (4) Is computer enhanced so that it can be programmed for specific 
train consists and the known physical characteristics of the line 
illustrated.

[56 FR 28254, June 19, 1991, as amended at 58 FR 19002, Apr. 9, 1993; 60 
FR 53136, Oct. 12, 1995; 64 FR 60989, Nov. 8, 1999; 65 FR 58483, Sept. 
29, 2000; 67 FR 24, Jan. 2, 2002]

Sec. 240.9  Waivers.

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

[56 FR 28254, June 19, 1991, as amended at 64 FR 60989, Nov. 8, 1999]

Sec. 240.11  Penalties and consequences for noncompliance.

    (a) A person who violates any requirement of this part or causes the 
violation of any such requirement is subject to a civil penalty of at 
least $500 and not more than $11,000 per violation, except that: 
Penalties may be assessed against individuals only for willful 
violations, and, where a grossly negligent violation or a pattern of 
repeated violations has created an imminent hazard of death or injury to 
persons, or has caused death or injury, a penalty not to exceed $22,000 
per violation may be assessed. Each day a violation continues shall 
constitute a separate offense. See Appendix A to this part for a 
statement of agency civil penalty policy.
    (b) A person who violates any requirement of this part or causes the 
violation of any such requirement may be subject to disqualification 
from all safety-sensitive service in accordance with part 209 of this 
chapter.
    (c) A person who knowingly and willfully falsifies a record or 
report required by this part may be subject to criminal penalties under 
49 U.S.C. 21311.
    (d) In addition to the enforcement methods referred to in paragraphs 
(a), (b), and (c) of this section, FRA may also address violations of 
this part by use of the emergency order, compliance order, and/or 
injunctive provisions of the Federal Railroad Safety Act.

[56 FR 28254, June 19, 1991, as amended at 63 FR 11624, Mar. 10, 1998; 
64 FR 60989, Nov. 8, 1999]

Sec. 240.13  Information collection requirements.

    (a) The information collection requirements of this part were 
reviewed by the Office of Management and Budget pursuant to the 
Paperwork Reduction Act of 1980 (44 U.S.C. 3501 et seq.) and are 
assigned OMB control number 2130-0533.

[[Page 627]]

    (b) The information collection requirements are found in the 
following sections: Secs. 240.101, 240.103, 240.105, 240.107, 240.109, 
240.111, 240.113, 240.115, 240.117, 240.119, 240.121, 240.123, 240.125, 
240.127, 240.129, 240.201, 240.205, 240.207, 240.209, 240.211, 240.213, 
240.215, 240.219, 240.221, 240.223, 240.227, 240.229, 240.301, 240.303, 
240.305, 240.307, 240.309, 240.401, 240.403, 240.405, 240.407, 240.411.

[56 FR 28254, June 19, 1991, as amended at 58 FR 19003, Apr. 9, 1993]

       Subpart B--Component Elements of the Certification Process

Sec. 240.101  Certification program required.

    (a) After September 17, 1991, each railroad in operation on that 
date and subject to this part shall have in effect a written program for 
certifying the qualifications of locomotive engineers.
    (b) A railroad commencing operations after September 17, 1991, shall 
have such a program in effect prior to commencing operations.
    (c) After the pertinent date specified in paragraph (e), (f), or (g) 
of Sec. 240.201, each railroad shall have a certification program 
approved in accordance with Sec. 240.103 that includes:
    (1) A procedure for designating any person it determines to be 
qualified as a supervisor of locomotive engineers that complies with the 
criteria established in Sec. 240.105;
    (2) A designation of the classes of service that it determines will 
be used in compliance with the criteria established in Sec. 240.107;
    (3) A procedure for evaluating prior safety conduct that complies 
with the criteria established in Sec. 240.109;
    (4) A procedure for evaluating visual and hearing acuity that 
complies with the criteria established in Sec. 240.121;
    (5) A procedure for training that complies with the criteria 
established in Sec. 240.123;
    (6) A procedure for knowledge testing that complies with the 
criteria established in Sec. 240.125;
    (7) A procedure for skill performance testing that complies with the 
criteria established in Sec. 240.127; and
    (8) A procedure for monitoring operational performance that complies 
with the criteria established in Sec. 240.129.

Sec. 240.103  Approval of design of individual railroad programs by FRA.

    (a) Each railroad shall submit its written certification program and 
a description of how its program conforms to the specific requirements 
of this part in accordance with the procedures contained in appendix B 
to this part and shall submit this written certification program for 
approval at least 60 days before commencing operations.
    (b) That submission shall state the railroad's election either:
    (1) To accept responsibility for the training of student engineers 
and thereby obtain authority for that railroad to initially certify a 
person as an engineer in an appropriate class of service, or
    (2) To recertify only engineers previously certified by other 
railroads.

A railroad that elects to accept responsibility for the training of 
student engineers shall state in its submission whether it will conduct 
the training program or employ a training program conducted by some 
other entity on its behalf but adopted and ratified by that railroad.
    (c) A railroad's program is considered approved and may be 
implemented thirty days after the required filing date (or the actual 
filing date) unless the Administrator notifies the railroad in writing 
that the program does not conform to the criteria set forth in this 
part.
    (1) If the Administrator determines that the program does not 
conform, the Administrator will inform the railroad of the specific 
deficiencies.
    (2) If the Administrator informs the railroad of deficiencies more 
than 30 days after the initial filing date, the original program may 
remain in effect until 30 days after approval of the revised program is 
received.
    (d) A railroad shall resubmit its program within 30 days after the 
date of such notice of deficiencies. A failure to resubmit the program 
with the necessary revisions will be considered a failure to implement a 
program under this part.

[[Page 628]]

    (1) The Administrator will inform the railroad in writing whether 
its revised program conforms with this part.
    (2) If the program does not conform, the railroad shall resubmit its 
program.
    (e) A railroad that intends to materially modify its program after 
receiving initial FRA approval shall submit a description of how it 
intends to modify the program in conformity with the specific 
requirements of this part at least 30 days prior to implementing such a 
change.
    (1) A modification is material if it would affect the program's 
conformance with this part.
    (2) The modification submission shall contain a description that 
conforms with the pertinent portion of the procedures contained in 
appendix B.
    (3) The modification submission will be handled in accordance with 
the procedures of paragraphs (c) and (d) of this section as though it 
were a new program.

[56 FR 28254, June 19, 1991, as amended at 64 FR 60990, Nov. 8, 1999]

Sec. 240.104  Criteria for determining whether movement of roadway 
          maintenance equipment or a dual purpose vehicle requires a 
          certified locomotive engineer.

    (a) A railroad is not required to use a certified locomotive 
engineer to perform the following functions:
    (1) Operate specialized roadway maintenance equipment; or
    (2) Operate a dual purpose vehicle that is:
    (i) Being operated in conjunction with roadway maintenance and 
related maintenance of way functions, including traveling to and from 
the work site;
    (ii) Moving under authority of railroad operating rules designated 
for the movement of roadway maintenance equipment that ensure the 
protection of such equipment from train movements; and
    (iii) Being operated by an individual trained and qualified in 
accordance with Secs. 214.341, 214.343, and 214.355 of this chapter.
    (b) A railroad is required to use a certified locomotive engineer 
when operating a dual purpose vehicle other than in accordance with 
paragraph (a)(2) of this section.

[64 FR 60990, Nov. 8, 1999]

Sec. 240.105  Criteria for selection of designated supervisors of 
          locomotive engineers.

    (a) Each railroad's program shall include criteria and procedures 
for implementing this section.
    (b) The railroad shall examine any person it is considering for 
qualification as a supervisor of locomotive engineers to determine that 
he or she:
    (1) Knows and understands the requirements of this part;
    (2) Can appropriately test and evaluate the knowledge and skills of 
locomotive engineers;
    (3) Has the necessary supervisory experience to prescribe 
appropriate remedial action for any noted deficiencies in the training, 
knowledge or skills of a person seeking to obtain or retain 
certification; and
    (4) Is a certified engineer who is qualified on the physical 
characteristics of the portion of the railroad on which that person will 
perform the duties of a Designated Supervisor of Locomotive Engineers.
    (c) If a railroad does not have any Designated Supervisors of 
Locomotive Engineers, and wishes to hire one, the chief operating 
officer of the railroad shall make a determination in writing that the 
Designated Supervisor of Locomotive Engineers designate possesses the 
necessary performance skills in accordance with Sec. 240.127. This 
determination shall take into account any special operating 
characteristics which are unique to that railroad.

[56 FR 28254, June 19, 1991, as amended at 64 FR 60990, Nov. 8, 1999]

Sec. 240.107  Criteria for designation of classes of service.

    (a) Each railroad's program shall state which of the three classes 
of service, provided for in paragraph (b) of this section, that it will 
cover.
    (b) A railroad may issue certificates for any or all of the 
following classes of service:
    (1) Train service engineers,
    (2) Locomotive servicing engineers, and
    (3) Student engineers.

[[Page 629]]

    (c) The following operational constraints apply to each class of 
service:
    (1) Train service engineers may operate locomotives singly or in 
multiples and may move them with or without cars coupled to them;
    (2) Locomotive servicing engineers may operate locomotives singly or 
in multiples but may not move them with cars coupled to them; and
    (3) Student engineers may operate only under direct and immediate 
supervision of an instructor engineer.
    (d) Each railroad is authorized to impose additional conditions or 
operational restrictions on the service an engineer may perform beyond 
those identified in this section provided those conditions or 
restrictions are not inconsistent with this part.

Sec. 240.109  General criteria for eligibility based on prior safety 
          conduct.

    (a) Each railroad's program shall include criteria and procedures to 
implement this section.
    (b) A railroad shall evaluate the prior safety conduct of any person 
it is considering for qualification as a locomotive engineer and the 
program shall require that a person is ineligible if the person has an 
adverse record of prior safety conduct as provided for in Sec. 240.115, 
Sec. 240.117, or Sec. 240.119.
    (c) The program shall require evaluation of data which reflect the 
person's prior safety conduct as a railroad employee and the person's 
prior safety conduct as an operator of a motor vehicle, provided that 
there is relevant prior conduct. The information to be evaluated shall 
include:
    (1) The relevant data furnished from the evaluating railroad's own 
records, if the person was previously an employee of that railroad;
    (2) The relevant data furnished by any other railroad formerly 
employing the person; and
    (3) The relevant data furnished by any governmental agency with 
pertinent motor vehicle driving records.
    (d) The railroad's process for evaluating information concerning 
prior safety conduct shall be designed to conform wherever necessary 
with the procedural requirements of Sec. 240.111, Sec. 240.113, 
Sec. 240.115, Sec. 240.117, Sec. 240.119, and Sec. 240.217.
    (e) When eva1uating a person's motor vehicle driving record or a 
person's railroad employment record, a railroad shall not consider 
information concerning motor vehicle driving incidents or prior railroad 
safety conduct that
    (1) Occurred prior to the effective date of this rule; or
    (2) Occurred at a time other than that specifically provided for in 
Sec. 240.115, Sec. 240.117 or Sec. 240.119 of this subpart.
    (f) A railroad's program shall provide a candidate for certification 
or recertification a reasonable opportunity to review and comment in 
writing on any record which contains information concerning the person's 
prior safety conduct, including information pertinent to determinations 
required under Sec. 240.119 of this subpart, if the railroad believes 
the record contains information that could be sufficient to render the 
person ineligible for certification under this subpart.
    (g) The opportunity for comment shall be afforded to the person 
prior to the railroad's rendering its eligibility decision based on that 
information. Any responsive comment furnished shall be retained by the 
railroad in accordance with Sec. 240.215 of this part.
    (h) The program shall include a method for a person to advise the 
railroad that he or she has never been a railroad employee or obtained a 
license to drive a motor vehicle. Nothing in this section shall be 
construed as imposing a duty or requirement that a person have prior 
railroad employment experience or obtain a motor vehicle driver's 
license in order to become a certified locomotive engineer.
    (i) Nothing in this section, Sec. 240.111, or Sec. 240.113 shall be 
construed to prevent persons subject to this part from entering into an 
agreement that results in a railroad's obtaining the information needed 
for compliance with this subpart in a different manner than that 
prescribed in Sec. 240.111 or Sec. 240.113.

Sec. 240.111  Individual's duty to furnish data on prior safety conduct 
          as motor vehicle operator.

    (a) Except for initial certifications under paragraph (b), (h), or 
(i) of Sec. 240.201 or for persons covered by

[[Page 630]]

Sec. 240.109(h), each person seeking certification or recertification 
under this part shall, within 366 days preceding the date of the 
railroad's decision on certification or recertification:
    (1) Take the actions required by paragraphs (b) through (f) or 
paragraph (g) of this section to make information concerning his or her 
driving record available to the railroad that is considering such 
certification or recertification; and
    (2) Take any additional actions, including providing any necessary 
consent required by State or Federal law to make information concerning 
his or her driving record available to that railroad.
    (b) Each person seeking certification or recertification under this 
part shall:
    (1) Request, in writing, that the chief of each driver licensing 
agency identified in paragraph (c) of this section provide a copy of 
that agency's available information concerning his or her driving record 
to the railroad that is considering such certification or 
recertification; and
    (2) Request, in accordance with the provisions of paragraph (d) or 
(e) of this section, that a check of the National Driver Register be 
performed to identify additional information concerning his or her 
driving record and that any resulting information be provided to that 
railroad.
    (c) Each person shall request the information required under 
paragraph (b)(1) of this section from:
    (1) The chief of the driver licensing agency which last issued that 
person a driver's license; and
    (2) The chief of the driver licensing agency of any other state or 
states that issued or reissued him or her a driver's license within the 
preceding five years.
    (d) Each person shall request the information required under 
paragraph (b)(2) of this section from the Chief, National Driver 
Register, National Highway Traffic Safety Administration, 400 Seventh 
Street, SW., Washington, DC 20590 in accordance with the procedures 
contained in appendix C unless the person's motor vehicle driving 
license was issued by one of the driver licensing agencies identified in 
appendix D.
    (e) If the person's motor vehicle driving license was issued by one 
of the driver licensing agencies identified in appendix D, the person 
shall request the chief of that driver licensing agency to perform a 
check of the National Driver Register for the possible existence of 
additional information concerning his or her driving record and to 
provide the resulting information to the railroad.
    (f) If advised by the railroad that a driver licensing agency or the 
National Highway Traffic Safety Administration has informed the railroad 
that additional information concerning that person's driving history may 
exist in the files of a state agency not previously contacted in 
accordance with this section, such person shall:
    (1) Request in writing that the chief of the state 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 or Federal law to 
obtain that additional information.
    (g) Any person who has never obtained a motor vehicle driving 
license is not required to comply with the provisions of paragraph (b) 
of this section but shall notify the railroad of that fact in accordance 
with procedures of the railroad that comply with Sec. 240.109(d).
    (h) Each certified locomotive engineer or person seeking initial 
certification shall report motor vehicle incidents described in 
Sec. 240.115 (b)(1) and (2) to the employing railroad within 48 hours of 
being convicted for, or completed state action to cancel, revoke, 
suspend, or deny a motor vehicle drivers license for, such violations. 
For the purposes of engineer certification, no railroad shall require 
reporting earlier than 48 hours after the conviction, or completed state 
action to cancel, revoke, or deny a motor vehicle drivers license.

[56 FR 28254, June 19, 1991, as amended at 64 FR 60990, Nov. 8, 1999]

Sec. 240.113  Individual's duty to furnish data on prior safety conduct 
          as an employee of a different railroad.

    (a) Except for initial certifications under paragraphs (b), (h), or 
(i) of

[[Page 631]]

Sec. 240.201 or for persons covered by Sec. 240.109(h), each person 
seeking certification under this part shall, within 366 days preceding 
the date of the railroad's decision on certification or recertification:
    (1) Take the actions required by paragraph (b) of this section to 
make information concerning his or her prior railroad service 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 or Federal law to make information concerning 
his or her service record available to that railroad.
    (b) Each person seeking certification or recertification under this 
part shall request, in writing, that the chief operating officer or 
other appropriate person of the former employing railroad provide a copy 
of that railroad's available information concerning his or her service 
record to the railroad that is considering such certification or 
recertification.

[56 FR 28254, June 19, 1991, as amended at 64 FR 60990, Nov. 8, 1999]

Sec. 240.115  Criteria for consideration of prior safety conduct as a 
          motor vehicle operator.

    (a) Each railroad's program shall include criteria and procedures 
for implementing this section.
    (b) When evaluating a person's motor vehicle driving record, a 
railroad shall not consider information concerning motor vehicle driving 
incidents that occurred more than 36 months before the month in which 
the railroad is making its certification decision and shall only 
consider information concerning the following types of motor vehicle 
incidents:
    (1) A conviction for, or completed state action to cancel, revoke, 
suspend, or deny a motor vehicle drivers license for, operating a motor 
vehicle while under the influence of or impaired by alcohol or a 
controlled substance;
    (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 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.
    (c) If such an incident is identified,
    (1) The railroad shall provide the data to the railroad's EAP 
Counselor, 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 EAP Counselor in the context of such evaluation; and
    (3) If the person is evaluated as not currently affected by an 
active substance abuse disorder, the subject data shall not be 
considered further with respect to certification. However, the railroad 
shall, on recommendation of the EAP Counselor, condition certification 
upon participation in any needed aftercare and/or follow-up testing for 
alcohol or drugs deemed necessary by the EAP Counselor consistent with 
the technical standards specified in Sec. 240.119(d)(3) of this part.
    (4) If the person is evaluated as currently affected by an active 
substance abuse disorder, the person shall not be currently certified 
and the provisions of Sec. 240.119(b) will apply.

Sec. 240.117  Criteria for consideration of operating rules compliance 
          data.

    (a) Each railroad's program shall include criteria and procedures 
for implementing this section.
    (b) A person who has demonstrated a failure to comply, as described 
in paragraph (e) of this section, with railroad rules and practices for 
the safe operation of trains shall not be currently certified as a 
locomotive engineer.
    (c)(1) A certified engineer who has demonstrated a failure to 
comply, as described in paragraph (e) of this section, with railroad 
rules and practices for the safe operation of trains shall have his or 
her certification revoked.
    (2) A Designated Supervisor of Locomotive Engineers, a certified 
locomotive engineer pilot or an instructor engineer who is monitoring, 
piloting or instructing a locomotive engineer and

[[Page 632]]

fails to take appropriate action to prevent a violation of paragraph (e) 
of this section, shall have his or her certification revoked. 
Appropriate action does not mean that a supervisor, pilot or instructor 
must prevent a violation from occurring at all costs; the duty may be 
met by warning an engineer of a potential or foreseeable violation. A 
Designated Supervisor of Locomotive Engineers will not be held culpable 
under this section when this monitoring event is conducted as part of 
the railroad's operational compliance tests as defined in Secs. 217.9 
and 240.303 of this chapter.
    (3) A person who is a certified locomotive engineer but is called by 
a railroad to perform the duty of a train crew member other than that of 
locomotive engineer, and is performing such other duty, shall not have 
his or her certification revoked based on actions taken or not taken 
while performing that duty.
    (d) Limitations on consideration of prior operating rule compliance 
data. Except as provided for in paragraph (i) of this section, in 
determining whether a person may be or remain certified as a locomotive 
engineer, a railroad shall consider as operating rule compliance data 
only conduct described in paragraphs (e)(1) through (e)(5) of this 
section that occurred within a period of 36 consecutive months prior to 
the determination. A review of an existing certification shall be 
initiated promptly upon the occurrence and documentation of any conduct 
described in this section.
    (e) A railroad shall only consider violations of its operating rules 
and practices that involve:
    (1) Failure to control a locomotive or train in accordance with a 
signal indication, excluding a hand or a radio signal indication or a 
switch, that requires a complete stop before passing it;
    (2) Failure to adhere to limitations concerning train speed when the 
speed at which the train was operated exceeds the maximum authorized 
limit by at least 10 miles per hour. Where restricted speed is in 
effect, railroads shall consider only those violations of the 
conditional clause of restricted speed rules (i.e., the clause that 
requires stopping within one half of the locomotive engineer's range of 
vision), or the operational equivalent thereof, which cause reportable 
accidents or incidents under part 225 of this chapter, except for 
accidents and incidents that are classified as ``covered data'' under 
Sec. 225.5 of this chapter (i.e., employee injury/illness cases 
reportable exclusively because a physician or other licensed health care 
professional either made a one-time topical application of a 
prescription-strength medication to the employee's injury or made a 
written recommendation that the employee: Take one or more days away 
from work when the employee instead reports to work (or would have 
reported had he or she been scheduled) and takes no days away from work 
in connection with the injury or illness; work restricted duty for one 
or more days when the employee instead works unrestricted (or would have 
worked unrestricted had he or she been scheduled) and takes no other 
days of restricted work activity in connection with the injury or 
illness; or take over-the-counter medication at a dosage equal to or 
greater than the minimum prescription strength, whether or not the 
employee actually takes the medication, as instances of failure to 
adhere to this section;
    (3) Failure to adhere to procedures for the safe use of train or 
engine brakes when the procedures are required for compliance with the 
initial terminal, intermediate terminal, or transfer train and yard test 
provisions of 49 CFR part 232 or when the procedures are required for 
compliance with the class 1, class 1A, class II, or running brake test 
provisions of 49 CFR part 238;
    (4) Occupying main track or a segment of main track without proper 
authority or permission;
    (5) Failure to comply with prohibitions against tampering with 
locomotive mounted safety devices, or knowingly operating or permitting 
to be operated a train with an unauthorized disabled safety device in 
the controlling locomotive. (See 49 CFR part 218, subpart D and Appendix 
C to part 218);
    (6) Incidents of noncompliance with Sec. 219.101 of this chapter; 
however such

[[Page 633]]

incidents shall be considered as a violation only for the purposes of 
paragraphs (g)(2) and (3) of this section;
    (f)(1) If in any single incident the person's conduct contravened 
more than one operating rule or practice, that event shall be treated as 
a single violation for the purposes of this section.
    (2) A violation of one or more operating rules or practices 
described in paragraph (e)(1) through (e)(5) of this section that occurs 
during a properly conducted operational compliance test subject to the 
provisions of this chapter shall be counted in determining the periods 
of ineligibility described in paragraph (g) of this section.
    (3) An operational test that is not conducted in compliance with 
this part, a railroad's operating rules, or a railroad's program under 
Sec. 217.9 of this chapter, will not be considered a legitimate test of 
operational skill or knowledge, and will not be considered for 
certification, recertification or revocation purposes.
    (g) A period of ineligibility described in this paragraph shall:
    (1) Begin, for a person not currently certified, on the date of the 
railroad's written determination that the most recent incident has 
occurred; or
    (2) Begin, for a person currently certified, on the date of the 
railroad's notification to the person that recertification has been 
denied or certification has been revoked; and
    (3) Be determined according to the following standards:
    (i) In the case of a single incident involving violation of one or 
more of the operating rules or practices described in paragraphs (e)(1) 
through (e)(5) of this section, the person shall have his or her 
certificate revoked for a period of one month.
    (ii) In the case of two separate incidents involving a violation of 
one or more of the operating rules or practices described in paragraphs 
(e)(1) through (e)(5) of this section, that occurred within 24 months of 
each other, the person shall have his or her certificate revoked for a 
period of six months.
    (iii) In the case of three separate incidents involving violations 
of one or more of the operating rules or practices, described in 
paragraphs (e)(1) through (e)(6) of this section, that occurred within 
36 months of each other, the person shall have his or her certificate 
revoked for a period of one year.
    (iv) In the case of four separate incidents involving violations of 
one or more of the operating rules or practices, described in paragraphs 
(e)(1) through (e)(6) of this section, that occurred within 36 months of 
each other, the person shall have his or her certificate revoked for a 
period of three years.
    (v) Where, based on the occurrence of violations described in 
paragraph (e)(6) of this section, different periods of ineligibility may 
result under the provisions of this section and Sec. 240.119, the 
longest period of revocation shall control.
    (4) Be reduced to the shorter periods of ineligibility imposed by 
paragraphs (g)(1) through (3) of this section as amended, and effective 
January 7, 2000 if the incident:
    (i) Occurred prior to January 7, 2000; and
    (ii) Involved violations described in paragraphs (e)(1) through 
(e)(5) of this section; and
    (iii) Did not occur within 60 months of a prior violation as 
described in paragraph (e)(6) of this section.
    (h) Future eligibility to hold certificate. A person whose 
certification has been denied or revoked shall be eligible for grant or 
reinstatement of the certificate prior to the expiration of the initial 
period of revocation only if:
    (1) The denial or revocation of certification in accordance with the 
provisions of paragraph (g)(3) of this section is for a period of one 
year or less;
    (2) Certification was denied or revoked for reasons other than 
noncompliance with Sec. 219.101 of this chapter;
    (3) The person has been evaluated by a Designated Supervisor of 
Locomotive Engineers and determined to have received adequate remedial 
training;
    (4) The person has successfully completed any mandatory program of 
training or retraining, if that was determined to be necessary by the 
railroad prior to return to service; and
    (5) At least one half the pertinent period of ineligibility 
specified in paragraph (g)(3) of this section has elapsed.

[[Page 634]]

    (i) In no event shall incidents that meet the criteria of paragraphs 
(i)(1) through (4) of this section be considered as prior incidents for 
the purposes of paragraph (g)(3) of this section even though such 
incidents could have been or were validly determined to be violations at 
the time they occurred. Incidents that shall not be considered under 
paragraph (g)(3) of this section are those that:
    (1) Occurred prior to May 10, 1993;
    (2) Involved violations of one or more of the following operating 
rules or practices:
    (i) Failure to control a locomotive or train in accordance with a 
signal indication;
    (ii) Failure to adhere to limitations concerning train speed;
    (iii) Failure to adhere to procedures for the safe use of train or 
engine brakes; or
    (iv) Entering track segment without proper authority;
    (3) Were or could have been found to be violations under this 
section contained in the 49 CFR, parts 200 to 399, edition revised as of 
October 1, 1992; and
    (4) Would not be a violation of paragraph (e) of this section.
    (j) In no event shall incidents that meet the criteria of paragraphs 
(j)(1) through (2) of this section be considered as prior incidents for 
the purposes of paragraph (g)(3) of this section even though such 
incidents could have been or were validly determined to be violations at 
the time they occurred. Incidents that shall not be considered under 
paragraph (g)(3) of this section are those that:
    (1) Occurred prior to January 7, 2000;
    (2) Involved violations of one or more of the following operating 
rules or practices:
    (i) Failure to control a locomotive or train in accordance with a 
signal indication that requires a complete stop before passing it;
    (ii) Failure to adhere to limitations concerning train speed when 
the speed at which the train was operated exceeds the maximum authorized 
limit by at least 10 miles per hour or by more than one half of the 
authorized speed, whichever is less;
    (3) Were or could have been found to be violations under this 
section contained in the 49 CFR, parts 200 to 399, edition revised as of 
October 1, 1999; and
    (4) Would not be a violation of paragraph (e) of this section.

[64 FR 60990, Nov. 8, 1999, as amended at 68 FR 10139, Mar. 3, 2003]

Sec. 240.119  Criteria for consideration of data on substance abuse 
          disorders and alcohol/drug rules compliance.

    (a) Each railroad's program shall include criteria and procedures 
for implementing this section.
    (b) Fitness requirement. (1) A person who has an active substance 
abuse disorder shall not be currently certified as a locomotive 
engineer.
    (2) Except as provided in paragraph (e) of this section, a certified 
engineer who is determined to have an active substance abuse disorder 
shall be suspended from certification. Consistent with other provisions 
of this part, certification may be reinstated as provided in paragraph 
(d) of this section.
    (3) In the case of a current employee of the railroad evaluated as 
having an active substance abuse disorder (including a person identified 
under the procedures of Sec. 240.115), the employee may, if otherwise 
eligible, voluntarily self-refer for substance abuse counseling or 
treatment under the policy required by Sec. 219.403 of this chapter; and 
the railroad shall then treat the substance abuse evaluation as 
confidential except with respect to current ineligibility for 
certification.
    (c) Prior alcohol/drug conduct; Federal rule compliance. (1) In 
determining whether a person may be or remain certified as a locomotive 
engineer, a railroad shall consider conduct described in paragraph 
(c)(2) of this section that occurred within a period of 60 consecutive 
months prior to the review. A review of certification shall be initiated 
promptly upon the occurrence and documentation of any incident of 
conduct described in this paragraph.
    (2) A railroad shall consider any violation of Sec. 219.101 or 
Sec. 219.102 of this chapter and any refusal or failure to provide a 
breath or body fluid sample for testing under the requirements of

[[Page 635]]

part 219 of this chapter when instructed to do so by a railroad 
representative.
    (3) A period of ineligibility described in this paragraph shall:
    (i) Begin, for a person not currently certified, on the date of the 
railroad's written determination that the most recent incident has 
occurred; or
    (ii) Begin, for a person currently certified, on the date of the 
railroad's notification to the person that recertification has been 
denied or certification has been revoked; and
    (4) The period of ineligibility described in this paragraph shall be 
determined in accordance with the following standards:
    (i) In the case of a single 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 
(d) of this section. In the case of two violations of Sec. 219.102, 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 9 
months (unless identification of the violation was through a qualifying 
``co-worker report'' as described in Sec. 219.405 of this chapter and 
the engineer waives investigation, in which case the certificate shall 
be deemed suspended during evaluation and any required primary treatment 
as described in paragraph (d)). In the case of two or more violations of 
Sec. 219.101, the person shall be ineligible to hold a certificate for a 
period of five years.
    (iv) In the case of a refusal or failure to provide a breath or body 
fluid sample for testing under the requirements of part 219 of this 
chapter when instructed to do so by a railroad representative, the 
refusal or failure shall be treated for purposes of ineligibility under 
this paragraph in the same manner as a violation of--
    (A) Sec. 219.102, in the case of a refusal or failure to provide a 
urine specimen for testing; or
    (B) Sec. 219.101, in the case of a refusal or failure to provide a 
breath sample (subpart D), or a blood specimen for mandatory post-
accident toxicological testing (subpart C)).
    (d) Future eligibility to hold certificate following alcohol/drug 
violation. The following requirements apply to a person who has been 
denied certification or who has had certification suspended or revoked 
as a result of conduct described in paragraph (c) 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 an EAP Counselor 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 EAP Counselor prior to return to 
service; and
    (iii) Presented a urine sample for testing under Subpart H of this 
part that tested negative for controlled substances assayed and has 
tested negative for alcohol under paragraph (d)(4) of this section.
    (2) An engineer 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 EAP Counselor and shall be subject to 
a reasonable program of follow-up alcohol and drug testing without prior 
notice for a period of not more than 60 months following return to 
service. Follow-up tests shall include not fewer than 6 alcohol tests 
and 6 drug tests during the first 12 months following return to service.
    (3) Return-to-service and follow-up alcohol and drug tests shall be 
performed consistent with the requirements of subpart H of part 219 of 
this chapter.
    (4) This paragraph does not create an entitlement to utilize the 
services of a railroad EAP Counselor, to be afforded leave from 
employment for counseling or treatment, or to employment as a

[[Page 636]]

locomotive engineer. Nor does it restrict any discretion available to 
the railroad to take disciplinary action based on conduct described 
herein.
    (e) Confidentiality protected. Nothing in this part shall affect the 
responsibility of the railroad under Sec. 219.403 of this chapter 
(``Voluntary Referral Policy'') to treat voluntary referrals for 
substance abuse counseling and treatment as confidential; and the 
certification status of an engineer who is successfully assisted under 
the procedures of that section shall not be adversely affected. However, 
the railroad shall include in its voluntary referral policy required to 
be issued pursuant to Sec. 219.403 of this chapter a provision that, at 
least with respect to a certified locomotive engineer or a candidate for 
certification, the policy of confidentiality is waived (to the extent 
that the railroad shall receive from the EAP Counselor 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.

[56 FR 28254, June 19, 1991, as amended at 60 FR 53136, Oct. 12, 1995; 
62 FR 63467, Dec. 1, 1997]

Sec. 240.121  Criteria for vision and hearing acuity data.

    (a) Each railroad's program shall include criteria and procedures 
implementing this section.
    (b) Fitness requirement. In order to be currently certified as a 
locomotive engineer, except as permitted by paragraph (e) of this 
section, a person's vision and hearing shall meet or exceed the 
standards prescribed in this section and appendix F to this part. It is 
recommended that each test conducted pursuant to this section should be 
performed according to any directions supplied by the manufacturer of 
such test and any American National Standards Institute (ANSI) standards 
that are applicable.
    (c) Except as provided in paragraph (e), each person shall have 
visual acuity that meets or exceeds the following thresholds:
    (1) For distant viewing either
    (i) Distant visual acuity of at least 20/40 (Snellen) in each eye 
without corrective lenses or
    (ii) Distant visual acuity separately corrected to at least 20/40 
(Snellen) with corrective lenses and distant binocular acuity of at 
least 20/40 (Snellen) in both eyes with or without corrective lenses;
    (2) A field of vision of at least 70 degrees in the horizontal 
meridian in each eye; and
    (3) The ability to recognize and distinguish between the colors of 
railroad signals as demonstrated by successfully completing one of the 
tests in appendix F to this part.
    (d) Except as provided in paragraph (e) of this section, each person 
shall have hearing acuity that meets or exceeds the following thresholds 
when tested by use of an audiometric device (calibrated to American 
National Standard Specification for Audiometers, S3.6-1969): the person 
does not have an average hearing loss in the better ear greater than 40 
decibels at 500Hz, 1,000 Hz, and 2,000 Hz with or without use of a 
hearing aid.
    (e) A person not meeting the thresholds in paragraphs (c) and (d) of 
this section shall, upon request, be subject to further medical 
evaluation by a railroad's medical examiner to determine that person's 
ability to safely operate a locomotive. In accordance with the guidance 
prescribed in appendix F to this part, a person is entitled to one 
retest without making any showing and to another retest if the person 
provides evidence substantiating that circumstances have changed since 
the last test to the extent that the person could now arguably operate a 
locomotive or train safely. The railroad shall provide its medical 
examiner with a copy of this part, including all appendices. If, after 
consultation with one of the railroad's designated supervisors of 
locomotive engineers, the medical examiner concludes that, despite not 
meeting the threshold(s) in paragraphs (c) and (d) of this section, the 
person has the ability to safely operate a locomotive, the person may be 
certified as a locomotive engineer and such certification conditioned on 
any special restrictions the medical examiner determines in writing to 
be necessary.

[[Page 637]]

    (f) As a condition of maintaining certification, each certified 
locomotive engineer shall notify his or her employing railroad's medical 
department or, if no such department exists, an appropriate railroad 
official if the person's best correctable vision or hearing has 
deteriorated to the extent that the person no longer meets one or more 
of the prescribed vision or hearing standards or requirements of this 
section. This notification is required prior to any subsequent operation 
of a locomotive or train which would require a certified locomotive 
engineer.

[56 FR 28254, June 19, 1991, as amended at 64 FR 60992, Nov. 8, 1999]

Sec. 240.123  Criteria for initial and continuing education.

    (a) Each railroad's program shall include criteria and procedures 
for implementing this section.
    (b) A railroad shall provide for the continuing education of 
certified locomotive engineers to ensure that each engineer maintains 
the necessary knowledge, skill and ability concerning personal safety, 
operating rules and practices, mechanical condition of equipment, 
methods of safe train handling (including familiarity with physical 
characteristics as determined by a qualified Designated Supervisor of 
Locomotive Engineers), and relevant Federal safety rules.
    (c) A railroad that elects to train a previously untrained person to 
be a locomotive engineer shall provide initial training which, at a 
minimum:
    (1) Is composed of classroom, skill performance, and familiarization 
with physical characteristics components;
    (2) Includes both knowledge and performance skill testing;
    (3) Is conducted under the supervision of a qualified class 
instructor;
    (4) Is subdivided into segments or periods of appropriate duration 
to effectively cover the following subject matter areas:
    (i) Personal safety,
    (ii) Railroad operating rules,
    (iii) Mechanical condition of equipment,
    (iv) Train handling procedures (including use of locomotive and 
train brake systems),
    (v) Familiarization with physical characteristics including train 
handling, and
    (vi) Compliance with Federal regulations;
    (5) Is conducted so that the performance skill component shall
    (i) Be under the supervision of a qualified instructor engineer 
located in the same control compartment whenever possible;
    (ii) Place the student engineer at the controls of a locomotive for 
a significant portion of the time; and
    (iii) Permit the student to experience whatever variety of types of 
trains are normally operated by the railroad.
    (d) Pursuant to paragraphs (b) and (c) of this section, a person may 
acquire familiarity with the physical characteristics of a territory 
through the following methods if the specific conditions included in the 
description of each method are met. The methods used by a railroad for 
familiarizing its engineers with new territory while starting up a new 
railroad, starting operations over newly acquired rail lines, or 
reopening of a long unused route, shall be described in the railroad's 
locomotive engineer qualification program required under this part and 
submitted according to the procedures described in Appendix B to this 
part.
    (1) If ownership of a railroad is being transferred from one company 
to another, the engineer(s) of the acquiring company may receive 
familiarization training from the selling company prior to the acquiring 
railroad commencing operation; or
    (2) Failing to obtain familiarization training from the previous 
owner, opening a new rail line, or reopening an unused route would 
require that the engineer(s) obtain familiarization through other 
methods. Acceptable methods of obtaining familiarization include using 
hyrail trips or initial lite locomotive trips in compliance with what is 
specified in the railroad's locomotive engineer qualification program 
required under this part and submitted according to the procedures 
described in Appendix B to this part.

[56 FR 28254, June 19, 1991, as amended at 64 FR 60992, Nov. 8, 1999]

[[Page 638]]

Sec. 240.125  Criteria for testing knowledge.

    (a) Each railroad's program shall include criteria and procedures 
for implementing this section.
    (b) A railroad shall have procedures for testing a person being 
evaluated for qualification as a locomotive engineer in either train or 
locomotive service to determine that the person has sufficient knowledge 
of the railroad's rules and practices for the safe operation of trains.
    (c) The testing methods selected by the railroad shall be:
    (1) Designed to examine a person's knowledge of the railroad's rules 
and practices for the safe operation of trains;
    (2) Objective in nature;
    (3) Administered in written form;
    (4) Cover the following subjects:
    (i) Personal safety practices;
    (ii) Operating practices;
    (iii) Equipment inspection practices;
    (iv) Train handling practices including familiarity with the 
physical characteristics of the territory; and
    (v) Compliance with Federal safety rules;
    (5) Sufficient to accurately measure the person's knowledge of the 
covered subjects; and
    (6) Conducted without open reference books or other materials except 
to the degree the person is being tested on his or her ability to use 
such reference books or materials.
    (d) The conduct of the test shall be documented in writing and the 
documentation shall contain sufficient information to identify the 
relevant facts relied on for evaluation purposes.

Sec. 240.127  Criteria for examining skill performance.

    (a) Each railroad's program shall include criteria and procedures 
for implementing this section.
    (b) A railroad shall have procedures for examining the performance 
skills of a person being evaluated for qualification as a locomotive 
engineer in either train or locomotive service to determine whether the 
person has the skills to safely operate locomotives and/or trains, 
including the proper application of the railroad's rules and practices 
for the safe operation of locomotives or trains, in the most demanding 
class or type of service that the person will be permitted to perform.
    (c) The testing procedures selected by the railroad shall be:
    (1) Designed to examine a person's skills in safely operating 
locomotives or trains including the proper application of the railroad's 
rules and practices for the safe operation of locomotives or trains when 
performing the most demanding class or type of service that the person 
will be permitted to perform;
    (2) Conducted by a Designated Supervisor of Locomotive Engineers, 
who does not need to be qualified on the physical characteristics of the 
territory over which the test will be conducted;
    (3) Cover the following subjects during the test period
    (i) Operating practices;
    (ii) Equipment inspection practices;
    (iii) Train handling practices; and
    (iv) Compliance with Federal safety rules;
    (4) Be of sufficient length to effectively evaluate the person's 
ability to operate trains; and
    (5) Conducted when the person either
    (i) Is at the controls of the type of train normally operated on 
that railroad or segment of railroad and which this person might be 
permitted or required by the railroad to operate in the normal course of 
events after certification or
    (ii) Is at the controls of a Type I or Type II simulator programmed 
to replicate the responsive behavior of the type of train normally 
operated on that railroad or segment of railroad and which this person 
might be permitted or required by the railroad to operate in the normal 
course of events after certification.
    (d) The conduct of the test shall be documented in writing by the 
designated supervisor and the documentation shall contain:
    (1) The relevant facts concerning the train being operated;
    (2) The constraints applicable to its operation; and

[[Page 639]]

    (3) The factors observed and relied on for evaluation purposes by 
the designated supervisor.

[56 FR 28254, June 19, 1991, as amended at 64 FR 60992, Nov. 8, 1999]

Sec. 240.129  Criteria for monitoring operational performance of 
          certified engineers.

    (a) Each railroad's program shall include criteria and procedures 
for implementing this section.
    (b) A railroad shall have procedures for monitoring the operational 
performance of those it has determined as qualified as a locomotive 
engineer in either train or locomotive service.
    (c) The procedures shall:
    (1) Be designed to determine that the person possesses and routinely 
employs the skills to safely operate locomotives and/or trains, 
including the proper application of the railroad's rules and practices 
for the safe operation of locomotives and trains;
    (2) Be designed so that each engineer shall be annually monitored by 
a Designated Supervisor of Locomotive Engineers, who does not need to be 
qualified on the physical characteristics of the territory over which 
the operational performance monitoring will be conducted;
    (3) Be designed so that the locomotive engineer is either 
accompanied by the designated supervisor for a reasonable length of time 
or has his or her train handling activities electronically recorded by a 
train operations event recorder;
    (d) The procedures may be designed so that the locomotive engineer 
being monitored either (i) is at the controls of the type of train 
normally operated on that railroad or segment of railroad and which this 
person might be permitted or required by the railroad to operate in the 
normal course of events after certification or (ii) is at the controls 
of a Type I or Type II simulator programmed to replicate the responsive 
behavior of the type of train normally operated on that railroad or 
segment of railroad and which this person might be permitted or required 
by the railroad to operate in the normal course of events after 
certification.
    (e) The testing and examination procedures selected by the railroad 
for the conduct of a monitoring program shall be:
    (1) Designed so that each locomotive engineer shall be given at 
least one unannounced test each calendar year.
    (2) Designed to test engineer compliance with provisions of the 
railroad's operating rules that require response to signals that display 
less than a ``clear'' aspect, if the railroad operates with a signal 
system that must comply with part 236 of this chapter;
    (3) Designed to test engineer compliance with provisions of the 
railroad's operating rules, timetable or other mandatory directives that 
require affirmative response by the locomotive engineer to less 
favorable conditions than that which existed prior to initiation of the 
test;
    (4) Designed to test engineer compliance with provisions of the 
railroad's operating rules, timetable or other mandatory directives 
violation of which by engineers were cited by the railroad as the cause 
of train accidents or train incidents in accident reports filed in 
compliance with part 225 of this chapter in the preceding calendar year;
    (5) Designed so that the administration of these tests is 
effectively distributed throughout whatever portion of a 24-hour day 
that the railroad conducts its operations; and
    (6) Designed so that individual tests are administered without prior 
notice to the engineer being tested.

[56 FR 28254, June 19, 1991, as amended at 64 FR 60992, Nov. 8, 1999]

         Subpart C--Implementation of the Certification Process

Sec. 240.201  Schedule for implementation.

    (a) After October 30, 1991, each railroad in operation on that date 
shall designate in writing any person(s) it deems qualified as a 
designated supervisor of locomotive engineers. Each person so designated 
shall have demonstrated to the railroad through training, testing or 
prior experience that he or she has the knowledge, skills, and ability 
to be a designated supervisor of locomotive engineers.
    (b) No later than November 1, 1991, each railroad shall designate in 
writing all persons that it will deem to be

[[Page 640]]

qualified as certified locomotive engineers for the purpose of initial 
compliance with paragraph (d) of this section, except as provided for in 
paragraph (h) of this section.
    (1) Each person so designated shall have demonstrated to the 
railroad through training, testing or prior experience that he or she 
has the knowledge and skills to be a certified locomotive engineer.
    (2) Each railroad shall issue, no later than December 31, 1991, a 
certificate that complies with Sec. 240.223 to each person that it 
designates as qualified under the provisions of paragraph (b) of this 
section.
    (c) No railroad shall permit or require a person, designated as 
qualified for certification under the provisions of paragraph (b) of 
this section, to perform service as a certified locomotive or train 
service engineer for more than the 36-month period beginning on the 
pertinent date for compliance with the mandatory procedures for testing 
and evaluation set forth in the applicable provisions of paragraph (e), 
(f) or (g) of this section unless that person has been determined to be 
qualified in accordance with procedures that comply with subpart C.
    (d) After December 31, 1991, no railroad shall permit or require any 
person to operate a locomotive in any class of locomotive or train 
service unless that person has been certified as a qualified locomotive 
engineer and issued a certificate that complies with Sec. 240.223.
    (e) After December 31, 1991, no Class I railroad (including the 
National Railroad Passenger Corporation) or railroad providing commuter 
service shall designate any person it deems qualified as a designated 
supervisor of locomotive engineers or initially certify or recertify a 
person as a locomotive engineer in either locomotive or train service 
unless that person has been tested, evaluated, and determined to be 
qualified in accordance with procedures that comply with subpart C.
    (f) After May 31, 1992 no Class II railroad shall designate any 
person it deems qualified as a designated supervisor of locomotive 
engineers or initially certify or recertify a person as a locomotive 
engineer in any class of locomotive or train service unless that person 
has been tested, evaluated and determined to be qualified in accordance 
with procedures that comply with subpart C.
    (g) After November 30, 1992 no Class III railroad (including a 
switching and terminal or other railroad not otherwise classified) shall 
designate any person it deems qualified as a designated supervisor of 
locomotive engineers or initially certify or recertify a person as a 
locomotive engineer in any class of locomotive or train service unless 
that person has been tested, evaluated and determined to be qualified in 
accordance with procedures that comply with subpart C.
    (h) A railroad may continue to designate any person it deems 
qualified as a designated supervisor of locomotive engineers or as a 
certified engineer, on the basis of paragraph (b) determinations, prior 
to the pertinent date by which a railroad of its class must comply with 
the procedures for testing and evaluating persons required under subpart 
C. Each person designated as a locomotive engineer shall be issued a 
certificate that complies with Sec. 240.223 prior to being required or 
permitted to operate a locomotive.
    (i) A railroad commencing operations prior to the pertinent date for 
compliance by a railroad of its class may designate any person it deems 
qualified as a designated supervisor of locomotive engineers or as a 
certified locomotive engineer on the basis of paragraph (b) until the 
pertinent date for compliance with the procedures for testing and 
evaluating required under subpart C. Each person designated as a 
locomotive engineer shall be issued a certificate that complies with 
Sec. 240.223 prior to being required or permitted to operate a 
locomotive.

Sec. 240.203  Determinations required as a prerequisite to 
          certification.

    (a) Except as provided in paragraph (c), after the pertinent date 
specified in paragraph (e), (f), or (g) of Sec. 240.201, each railroad, 
prior to initially certifying or recertifying any person as an engineer 
for any class of service, shall, in accordance with its FRA-approved 
program determine in writing that:

[[Page 641]]

    (1) The individual meets the eligibility requirements of 
Secs. 240.115, 240.117 and 240.119; and
    (2) The individual meets the vision and hearing acuity standards of 
Sec. 240.121;
    (3) The individual has the necessary knowledge, as demonstrated by 
successfully completing a test that meets the requirements of 
Sec. 240.125;
    (4) The individual has the necessary applied knowledge and operating 
performance skills, as demonstrated by successfully completing an 
operational performance test that meets the requirements of 
Sec. 240.127; and
    (5) Where a person has not previously been certified, that the 
person has completed a training program that meets the requirements of 
Sec. 240.123.
    (b) A railroad may certify a person as a student engineer after 
determining that the person meets the vision and hearing acuity 
standards of Sec. 240.121. A railroad may subsequently certify that 
student engineer as either a locomotive servicing engineer or a train 
service engineer without further review of his or her acuity status 
provided it determines that:
    (1) The person successfully completed a training program that 
complies with Sec. 240.123;
    (2) The person meets the eligibility requirements of Secs. 240.109 
and 240.119; and
    (3) A period of not more than twenty-four months has elapsed since 
the student engineer certification was issued.

[56 FR 28254, June 19, 1991, as amended at 60 FR 53136, Oct. 12, 1995]

Sec. 240.205  Procedures for determining eligibility based on prior 
          safety conduct.

    (a) After the pertinent date specified in paragraph (e), (f), or (g) 
of Sec. 240.201, each railroad, prior to initially certifying or 
recertifying any person as an engineer for any class of service, shall 
determine that the person meets the eligibility requirements of 
Sec. 240.115 involving prior conduct as a motor vehicle operator, 
Sec. 240.117 involving prior conduct as a railroad worker, and 
Sec. 240.119 involving substance abuse disorders and alcohol/drug rules 
compliance.
    (b) In order to make the determination required under paragraph (a) 
of this section, a railroad shall have on file documents pertinent to 
the determinations referred to in paragraph (a) of this section, 
including a written document from its EAP Counselor either a document 
reflecting his or her professional opinion that the person has been 
evaluated as not currently affected by a substance abuse disorder or 
that the person has been evaluated as affected by an active substance 
abuse disorder and is ineligible for certification.

Sec. 240.207  Procedures for making the determination on vision and 
          hearing acuity.

    (a) After the pertinent date specified in paragraph (e), (f), or (g) 
of Sec. 240.201, each railroad, prior to initially certifying or 
recertifying any person as an engineer for any class of service, shall 
determine that the person meets the standards for visual acuity and 
hearing acuity prescribed in Sec. 240.121.
    (b) In order to make the determination required under paragraph (a), 
a railroad shall have on file either:
    (1) A medical examiner's certificate that the individual has been 
medically examined and meets these acuity standards; or
    (2) A written document from its medical examiner documenting his or 
her professional opinion that the person does not meet one or both 
acuity standards and stating the basis for his or her determination that
    (i) The person can nevertheless be certified under certain 
conditions or
    (ii) The person's acuity is such that he or she cannot safely 
operate a locomotive even with conditions attached.
    (c) Any examination required for compliance with this section shall 
be performed by or under the supervision of a medical examiner or a 
licensed physician's assistant such that:
    (1) A licensed optometrist or a technician responsible to that 
person may perform the portion of the examination that pertains to 
visual acuity; and
    (2) A licensed or certified audiologist or a technician responsible 
to that person may perform the portion of the examination that pertains 
to hearing acuity.

[[Page 642]]

    (d) If the examination required under this section discloses that 
the person needs corrective lenses or a hearing aid, or both, either to 
meet the threshold acuity levels established in Sec. 240.121 or to meet 
a lower threshold determined by the railroad's medical examiner to be 
sufficient to safely operate a locomotive or train on that railroad, 
that fact shall be noted on the certificate issued in accordance with 
the provisions of this part.
    (e) Any person with such a certificate notation shall use the 
relevant corrective device(s) while operating a locomotive in locomotive 
or train service unless the railroad's medical examiner subsequently 
determines in writing that the person can safely operate without using 
the device.

Sec. 240.209  Procedures for making the determination on knowledge.

    (a) After the pertinent date specified in paragraph (e), (f), or (g) 
of Sec. 240.201, each railroad, prior to initially certifying or 
recertifying any person as an engineer for any class of train or 
locomotive service, shall determine that the person has, in accordance 
with the requirements of Sec. 240.125 of this part, demonstrated 
sufficient knowledge of the railroad's rules and practices for the safe 
operation of trains.
    (b) In order to make the determination required by paragraph (a) a 
railroad shall have written documentation showing that the person either
    (i) Exhibited his or her knowledge by achieving a passing grade in 
testing that complies with this part or
    (ii) Did not achieve a passing grade in such testing.
    (c) If a person fails to achieve a passing score under the testing 
procedures required by this part no railroad shall permit or require 
that person to operate a locomotive as a locomotive or train service 
engineer prior to that person's achieving a passing score during a 
reexamination of his or her knowledge.

Sec. 240.211  Procedures for making the determination on performance 
          skills.

    (a) After the pertinent date specified in paragraph (e), (f), or (g) 
of Sec. 240.201, each railroad, prior to initially certifying or 
recertifying any person as an engineer for any class of train or 
locomotive service, shall determine that the person has demonstrated, in 
accordance with the requirements of Sec. 240.127 of this part, the 
skills to safely operate locomotives or locomotives and trains, 
including the proper application of the railroad's rules and practices 
for the safe operation of locomotives or trains, in the most demanding 
class or type of service that the person will be permitted to perform.
    (b) In order to make this determination, a railroad shall have 
written documentation showing the person either
    (i) Exhibited his or her knowledge by achieving a passing grade in 
testing that complies with this part or
    (ii) Did not achieve a passing grade in such testing.
    (c) If a person fails to achieve a passing score under the testing 
and evaluation procedures required by this part, no railroad shall 
permit or require that person to operate a locomotive as a locomotive or 
train service engineer prior to that person's achieving a passing score 
during a reexamination of his or her performance skills.
    (d) No railroad shall permit a designated supervisor of locomotive 
engineers to test, examine or evaluate his or her own performance skills 
when complying with this section.

Sec. 240.213  Procedures for making the determination on completion of 
          training program.

    (a) After the pertinent date specified in paragraph (e), (f), or (g) 
of Sec. 240.201, each railroad, prior to the initial issuance of a 
certificate to any person as a train or locomotive service engineer, 
shall determine that the person has, in accordance with the requirements 
of Sec. 240.123 of this part, the knowledge and skills to safely operate 
a locomotive or train in the most demanding class or type of service 
that the person will be permitted to perform.
    (b) In making this determination, a railroad shall have written 
documentation showing that:
    (1) The person completed a training program that complies with 
Sec. 240.123 of this part;

[[Page 643]]

    (2) The person demonstrated his or her knowledge and skills by 
achieving a passing grade under the testing and evaluation procedures of 
that training program; and
    (3) A qualified Designated Supervisor of Locomotive Engineers has 
determined that the person is familiar with the physical characteristics 
of the railroad or its pertinent segments.

[56 FR 28254, June 19, 1991, as amended at 64 FR 60992, Nov. 8, 1999]

Sec. 240.215  Retaining information supporting determinations.

    (a) After the pertinent date in paragraphs (e), (f) or (g) of 
Sec. 240.201, a railroad that issues, denies, or revokes a certificate 
after making the determinations required under Sec. 240.203 shall 
maintain a record for each certified engineer or applicant for 
certification that contains the information the railroad relied on in 
making the determinations.
    (b) The information concerning eligibility that the railroad shall 
retain includes:
    (1) Any relevant data from the railroad's records concerning the 
person's prior safety conduct;
    (2) Any relevant data furnished by another railroad;
    (3) Any relevant data furnished by a governmental agency concerning 
the person's motor vehicle driving record; and
    (4) Any relevant data furnished by the person seeking certification 
concerning his or her eligibility.
    (c) The information concerning vision and hearing acuity that the 
railroad shall retain includes:
    (1) The relevant test results data concerning acuity; and,
    (2) If applicable, the relevant data concerning the professional 
opinion of the railroad's medical examiner on the adequacy of the 
person's acuity.
    (d) The information concerning demonstrated knowledge that the 
railroad shall retain includes:
    (1) Any relevant data from the railroad's records concerning the 
person's success or failure of the passage of knowledge test(s); and
    (2) A sample copy of the written knowledge test or tests 
administered.
    (e) The information concerning demonstrated performance skills that 
the railroad shall retain includes:
    (1) The relevant data from the railroad's records concerning the 
person's success or failure on the performance skills test(s) that 
documents the relevant operating facts on which the evaluation is based 
including the observations and evaluation of the designated supervisor 
of locomotive engineers;
    (2) If a railroad relies on the use of a locomotive operations 
simulator to conduct the performance skills testing required under this 
part, the relevant data from the railroad's records concerning the 
person's success or failure on the performance skills test(s) that 
documents the relevant operating facts on which the determination was 
based including the observations and evaluation of the designated 
supervisor of locomotive engineers; and;
    (3) The relevant data from the railroad's records concerning the 
person's success or failure on tests the railroad performed to monitor 
the engineer's operating performance in accordance with Sec. 240.129.
    (f) If a railroad is relying on successful completion of an approved 
training program conducted by another entity, the relying railroad shall 
maintain a record for each certified engineer that contains the relevant 
data furnished by the training entity concerning the person's 
demonstration of knowledge and performance skills and relied on by the 
railroad in making its determinations.
    (g) If a railroad is relying on a certification decision initially 
made by another railroad, the relying railroad shall maintain a record 
for each certified engineer that contains the relevant data furnished by 
the other railroad which it relied on in making its determinations.
    (h) All records required under this section shall be retained for a 
period of six years from the date of the certification, recertification, 
denial or revocation decision and shall be made available to FRA 
representatives upon request during normal business hours.
    (i) It shall be unlawful for any railroad to knowingly or any 
individual to willfully:

[[Page 644]]

    (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.
    (j) 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 adequately limits and controls those who have 
access to such information;
    (2) The railroad employs a system for data storage that permits 
reasonable access and retrieval of the information in usable format when 
requested to furnish data by FRA representatives; and
    (3) Information retrieved from the system can be easily produced in 
a printed format which can be readily provided to FRA representatives 
and authenticated by a designated representative of the railroad as a 
true and accurate copy of the railroad's records if requested to do so 
by FRA representatives.

[56 FR 28254, June 19, 1991, as amended at 58 FR 19003, Apr. 9, 1993]

Sec. 240.217  Time limitations for making determinations.

    (a) After the pertinent date in paragraph (e), (f) or (g) of 
Sec. 240.201, a railroad shall not certify or recertify a person as a 
qualified locomotive engineer in any class of train or engine service, 
if the railroad is making:
    (1) A determination concerning eligibility and the eligibility data 
being relied on were furnished more than 366 days before the date of the 
railroad's certification decision;
    (2) A determination concerning visual and hearing acuity and the 
medical examination being relied on was conducted more than 366 days 
before the date of the railroad's recertification decision;
    (3) A determination concerning demonstrated knowledge and the 
knowledge examination being relied on was conducted more than 366 days 
before the date of the railroad's certification decision; or
    (4) A determination concerning demonstrated performance skills and 
the performance skill testing being relied on was conducted more than 
366 days before the date of the railroad's certification decision;
    (b) The time limitations of paragraph (a) of this section do not 
apply to a railroad that is making a certification decision in reliance 
on determinations made by another railroad in accordance with paragraph 
(c)(2) of this section, Sec. 240.227, or Sec. 240.229.
    (c) Except as provided in Sec. 240.201 concerning implementation 
dates for initial certification decisions and paragraph (b) of this 
section, no railroad shall:
    (1) Certify a person as a qualified locomotive engineer for an 
interval of more than 36 months; or
    (2) Rely on a certification issued by another railroad that is more 
than 36 months old.
    (d) Except as provided for in Sec. 240.201 concerning initial 
implementation of the program, a railroad shall issue each person 
designated as a certified locomotive engineer a certificate that 
complies with Sec. 240.223 no later than 30 days from the date of its 
decision to certify or recertify that person.

[56 FR 28254, June 19, 1991, as amended at 58 FR 19003, Apr. 9, 1993; 60 
FR 53137, Oct. 12, 1995; 64 FR 60992, Nov. 8, 1999]

Sec. 240.219  Denial of certification.

    (a) A railroad shall notify a candidate for certification or 
recertification of information known to the railroad that forms the 
basis for denying the person certification and provide the person a 
reasonable opportunity to explain or rebut that adverse information in 
writing prior to denying certification.
    (b) This section does not require further opportunity to comment if 
the railroad's denial is based solely on factors addressed by 
Secs. 240.115, 240.117, and 240.119 and the opportunity to comment 
afforded by those sections has been provided.
    (c) If it denies a person certification or recertification, a 
railroad shall notify the person of the adverse decision and explain, in 
writing, the basis for its denial decision. The document explaining the 
basis for the denial shall be

[[Page 645]]

mailed or delivered to the person within 10 days after the railroad's 
decision and shall give the date of the decision.

Sec. 240.221  Identification of qualified persons.

    (a) After November 1, 1991, a railroad shall maintain a written 
record identifying each person designated by it as a supervisor of 
locomotive engineers.
    (b) After November 1, 1991, a railroad shall maintain a written 
record identifying each person designated as a certified locomotive 
engineer. That listing of certified engineers shall indicate the class 
of service the railroad determines each person is qualified to perform 
and date of the railroad's certification decision.
    (c) If a railroad is responsible for controlling joint operations 
territory, the listing shall include person(s) certified in accordance 
with Sec. 240.229.
    (d) The listing required by paragraphs (a), (b), and (c) shall be 
updated at least annually.
    (e) The record required under this section shall be kept at the 
divisional or regional headquarters of the railroad and shall be 
available for inspection or copying by FRA during regular business 
hours.
    (f) A railroad may obtain approval from FRA to maintain this record 
electronically or maintain this record at the railroad's general 
offices, or both. Requests for such approval shall be filed in writing 
with the Associate Administrator for Safety and contain sufficient 
information to explain how FRA will be given access to the data that is 
fully equivalent to that created by compliance with paragraph (e).

Sec. 240.223  Criteria for the certificate.

    (a) As a minimum, each certificate issued in compliance with this 
part shall:
    (1) Identify the railroad or parent company that is issuing it;
    (2) Indicate that the railroad, acting in conformity with this part, 
has determined that the person to whom it is being issued has been 
determined to be qualified to operate a locomotive;
    (3) Identify the person to whom it is being issued (including the 
person's name, date of birth and employee identification number, and 
either a physical description or photograph of the person);
    (4) Identify any conditions or limitations, including the class of 
service or conditions to ameliorate vision or hearing acuity 
deficiencies, that restrict the person's operational authority;
    (5) Show the date of its issuance;
    (6) Be signed by a supervisor of locomotive engineers or other 
individual designated in accordance with paragraph (b) of this section;
    (7) Show the date of the person's last operational monitoring event 
as required by Sec. 240.129(c) and Sec. 240.303(b), unless that 
information is reflected on supplementary documents which the locomotive 
engineer has in his or her possession when operating a locomotive; and
    (8) Be of sufficiently small size to permit being carried in an 
ordinary pocket wallet.
    (b) Each railroad to which this part applies shall designate in 
writing any person, other than a supervisor of locomotive engineers, 
that it authorizes to sign the certificates described in this section. 
The designation can identify such persons by name or job title.
    (c) Nothing in paragraph (a) of this section shall prohibit any 
railroad from including additional information on the certificate or 
supplementing the certificate through other documents.
    (d) It shall be unlawful for any railroad to knowingly or any 
individual to willfully:
    (1) Make, cause to be made, or participate in the making of a false 
entry on that certificate; or
    (2) Otherwise falsify that certificate through material 
misstatement, omission, or mutilation.

[56 FR 28254, June 19, 1991, as amended at 58 FR 19003, Apr. 9, 1993; 64 
FR 60993, Nov. 8, 1999]

Sec. 240.225  Reliance on qualification determinations made by other 
          railroads.

    (a) After December 31, 1991, a railroad that is considering 
certification of a person as a qualified engineer may rely on 
determinations made by another railroad concerning that person's 
qualifications. The railroad's certification program shall address how 
the

[[Page 646]]

railroad will administer the training of previously uncertified 
engineers with extensive operating experience or previously certified 
engineers who have had their certification expire. If a railroad's 
certification program fails to specify how to train a previously 
certified engineer hired from another railroad, then the railroad shall 
require the newly hired engineer to take the hiring railroad's entire 
training program. A railroad relying on another's certification shall 
determine that:
    (1) The prior certification is still valid in accordance with the 
provisions of Secs. 240.201, 240.217, and 240.307;
    (2) The prior certification was for the same classification of 
locomotive or train service as the certification being issued under this 
section;
    (3) The person has received training on and visually observed the 
physical characteristics of the new territory in accordance with 
Sec. 240.123;
    (4) The person has demonstrated the necessary knowledge concerning 
the railroad's operating rules in accordance with Sec. 240.125;
    (5) The person has demonstrated the necessary performance skills 
concerning the railroad's operating rules in accordance with 
Sec. 240.127.
    (b) [Reserved]

[64 FR 60993, Nov. 8, 1999]

Sec. 240.227  Reliance on qualification requirements of other countries.

    (a) A railroad that conducts joint operations with a Canadian 
railroad may certify, for the purposes of compliance with this part, 
that a person is qualified to be a locomotive or train service engineer 
provided it determines that:
    (1) The person is employed by the Canadian railroad; and
    (2) The person meets or exceeds the qualifications standards issued 
by Transport Canada for such service.
    (b) Any Canadian railroad that is required to comply with this 
regulation may certify that a person is qualified to be a locomotive or 
train service engineer provided it determines that:
    (1) The person is employed by the Canadian railroad; and
    (2) The person meets or exceeds the qualifications standards issued 
by Transport Canada for such service.

Sec. 240.229  Requirements for joint operations territory.

    (a) Except for minimal joint operations provided for in paragraph 
(f) of this section, no railroad that is responsible for controlling the 
conduct of joint operations with another railroad shall permit or 
require any person to operate a locomotive in any class of train or 
engine service unless that person has been certified as a qualified 
locomotive engineer for the purposes of joint operations and issued a 
certificate that complies with Sec. 240.223.
    (b) Each railroad that is responsible for controlling the conduct of 
joint operations with another railroad shall certify a person as a 
qualified locomotive engineer for the purposes of joint operations 
either by making the determinations required under subpart C of this 
part or by relying on the certification issued by another railroad under 
this part.
    (c) A railroad that controls joint operations may rely on the 
certification issued by another railroad under the following conditions:
    (1) The controlling railroad shall determine:
    (i) That the person has been certified as a qualified engineer under 
the provisions of this part by the railroad which employs that 
individual;
    (ii) That the person certified as a locomotive engineer by the other 
railroad has demonstrated the necessary knowledge concerning the 
controlling railroad's operating rules, if the rules are different;
    (iii) That the person certified as a locomotive engineer by the 
other railroad has the necessary operating skills concerning the joint 
operations territory; and
    (iv) That the person certified as a locomotive engineer by the other 
railroad has the necessary familiarity with the physical characteristics 
for the joint operations territory; and,
    (2) The railroad which employs the individual shall determine that 
the person called to operate on the controlling railroad is a certified 
engineer who is qualified to operate on that track segment; and
    (3) Each locomotive engineer who is called to operate on another 
railroad shall:

[[Page 647]]

    (i) Be qualified on the segment of track upon which he or she will 
operate in accordance with the requirements set forth by the controlling 
railroad; and,
    (ii) Immediately notify the railroad upon which he or she is 
employed if he or she is not qualified to perform that service.
    (d) A railroad that controls joint operations and certifies 
locomotive engineers from a different railroad may comply with the 
requirements of paragraph (a) of this section by noting its supplemental 
certification decision on the original certificate as provided for in 
Sec. 240.223(c).
    (e) A railroad responsible for controlling the conduct of joint 
operations with another railroad shall be deemed to be in compliance 
with paragraph (a) of this section when it provides a qualified person 
to accompany a locomotive engineer who lacks joint operations 
certification during that engineer's operations in joint operations 
territory. As used in this section qualified person means either a 
designated supervisor of locomotive engineers or a certified train 
service engineer determined by the controlling railroad to have the 
necessary knowledge concerning the controlling railroad's operating 
rules and to have the necessary operating skills including familiarity 
with its physical characteristics concerning the joint operations 
territory.
    (f) A railroad that is responsible for controlling the conduct of 
joint operations with another railroad may permit a certified locomotive 
engineer to operate a locomotive in any class of train or engine service 
without determining that the person has been certified as a qualified 
locomotive engineer for the purposes of joint operations when a minimal 
joint operation is involved. For the purposes of this section a minimal 
joint operation exists when a locomotive or train belonging to one 
railroad is being operated on the same track on which operations are 
conducted by the railroad controlling operations, under the following 
conditions:
    (1) The maximum authorized speed for operations on the track does 
not exceed 20 miles per hour;
    (2) The track is other than a main track;
    (3) Operations are conducted under operating rules that require 
every locomotive and train to proceed at a speed that permits stopping 
within one half the range of vision of the locomotive engineer; and
    (4) The maximum distance for joint operations on the track does not 
exceed one mile.

[56 FR 28254, June 19, 1991, as amended at 58 FR 19003, Apr. 9, 1993; 64 
FR 60993, Nov. 8, 1999]

Sec. 240.231  Requirements for locomotive engineers unfamiliar with 
          physical characteristics in other than joint operations.

    (a) Except as provided in paragraph (b) of this section, no 
locomotive engineer shall operate a locomotive over a territory unless 
he or she is qualified on the physical characteristics of the territory 
pursuant to the railroad's certification program.
    (b) Except as provided in paragraph (c) of this section, if a 
locomotive engineer lacks qualification on the physical characteristics 
required by paragraph (a) of this section, he or she shall be assisted 
by a pilot qualified over the territory pursuant to the railroad's 
certification program.
    (1) For a locomotive engineer who has never been qualified on the 
physical characteristics of the territory over which he or she is to 
operate a locomotive or train, the pilot shall be a person qualified and 
certified as a locomotive engineer who is not an assigned crew member.
    (2) For a locomotive engineer who was previously qualified on the 
physical characteristics of the territory over which he or she is to 
operate a locomotive or train, but whose qualification has expired, the 
pilot may be any person, who is not an assigned crew member, qualified 
on the physical characteristics of the territory.
    (c) Pilots are not required if the movement is on a section of track 
with an average grade of less than 1% over 3 continuous miles, and
    (1) The track is other than a main track; or

[[Page 648]]

    (2) The maximum distance the locomotive or train will be operated 
does not exceed one mile; or
    (3) The maximum authorized speed for any operation on the track does 
not exceed 20 miles per hour; or
    (4) Operations are conducted under operating rules that require 
every locomotive and train to proceed at a speed that permits stopping 
within one half the range of vision of the locomotive engineer.

[64 FR 60993, Nov. 8, 1999]

         Subpart D--Administration of the Certification Programs

Sec. 240.301  Replacement of certificates.

    A railroad shall have a system for the prompt replacement of lost, 
stolen or mutilated certificates and that system shall be reasonably 
accessible to certified locomotive engineers in need of a replacement 
certificate.

Sec. 240.303  Operational monitoring requirements.

    (a) After December 31, 1991, each railroad to which this part 
applies shall, prior to FRA approval of its program in accordance with 
Sec. 240.201, have a program to monitor the conduct of its certified 
locomotive engineers by performing both operational monitoring 
observations and by conducting unannounced operating rules compliance 
tests.
    (b) The program shall be conducted so that each locomotive engineer 
shall be given at least one operational monitoring observation by a 
qualified supervisor of locomotive engineers in each calendar year.
    (c) The program shall be conducted so that each locomotive engineer 
shall be given at least one unannounced compliance test each calendar 
year.
    (d) The unannounced test program shall:
    (1) Test engineer compliance with one or more provisions of the 
railroad's operating rules that require response to signals that display 
less than a ``clear'' aspect, if the railroad operates with a signal 
system that must comply with part 236 of this chapter;
    (2) Test engineer compliance with one or more provisions of the 
railroad's operating rules, timetable or other mandatory directives that 
require affirmative response by the locomotive engineer to less 
favorable conditions than that which existed prior to initiation of the 
test;
    (3) Test engineer compliance with provisions of the railroad's 
operating rules, timetable or other mandatory directives the violations 
of which by engineers were cited by the railroad as the cause of train 
accidents or train incidents in accident reports filed in compliance 
with part 225 of this chapter for the preceding year;
    (4) Be conducted that so that the administration of these tests is 
effectively distributed throughout whatever portion of a 24-hour day 
that the railroad conducts its operations;
    (5) Be conducted so that individual tests are administered without 
prior notice to the locomotive engineer being tested; and
    (6) Be conducted so that the results of the test are recorded on the 
certificate and entered on the record established under Sec. 240.215 
within 30 days of the day the test is administered.

Sec. 240.305  Prohibited conduct.

    After December 31, 1991,
    (a) It shall be unlawful to:
    (1) Operate a locomotive or train past a signal indication, 
excluding a hand or a radio signal indication or a switch, that requires 
a complete stop before passing it; or
    (2) Operate a locomotive or train at a speed which exceeds the 
maximum authorized limit by at least 10 miles per hour. Where restricted 
speed is in effect, only those violations of the conditional clause of 
restricted speed rules (i.e., the clause that requires stopping within 
one half of the locomotive engineer's range of vision), or the 
operational equivalent thereof, which cause reportable accidents or 
incidents under part 225 of this chapter, shall be considered instances 
of failure to adhere to this section; or
    (3) Operate a locomotive or train without adhering to procedures for 
the safe use of train or engine brakes when the procedures are required 
for compliance with the initial terminal, intermediate terminal, or 
transfer train and yard test provisions of 49 CFR part 232

[[Page 649]]

or when the procedures are required for compliance with the class 1, 
class 1A, class II, or running brake test provisions of 49 CFR part 238;
    (4) Fail to comply with any mandatory directive concerning the 
movement of a locomotive or train by occupying main track or a segment 
of main track without proper authority or permission;
    (5) Fail to comply with prohibitions against tampering with 
locomotive mounted safety devices, or knowingly operate or permit to be 
operated a train with an unauthorized disabled safety device in the 
controlling locomotive. (See 49 CFR part 218, subpart D, and appendix C 
to part 218);
    (6) Be a Designated Supervisor of Locomotive Engineers, a certified 
locomotive engineer pilot or an instructor engineer who is monitoring, 
piloting or instructing a locomotive engineer and fails to take 
appropriate action to prevent a violation of paragraphs (a)(1) through 
(a)(5) of this section. Appropriate action does not mean that a 
supervisor, pilot or instructor must prevent a violation from occurring 
at all costs; the duty may be met by warning an engineer of a potential 
or foreseeable violation. A Designated Supervisor of Locomotive 
Engineers will not be held culpable under this section when this 
monitoring event is conducted as part of the railroad's operational 
compliance tests as defined in Secs. 217.9 and 240.303 of this chapter.
    (b) Each locomotive engineer who has received a certificate required 
under this part shall:
    (1) Have that certificate in his or her possession while on duty as 
an engineer; and
    (2) Display that certificate upon the receipt of a request to do so 
from
    (i) A representative of the Federal Railroad Administration,
    (ii) An officer of the issuing railroad, or
    (iii) An officer of another railroad when operating a locomotive or 
train in joint operations territory.
    (c) Any locomotive engineer who is notified or called to operate a 
locomotive or train and such operation would cause the locomotive 
engineer to exceed certificate limitations, set forth in accordance with 
subpart B of this part, shall immediately notify the railroad that he or 
she is not qualified to perform that anticipated service and it shall be 
unlawful for the railroad to require such service.
    (d) During the duration of any certification interval, a locomotive 
engineer who has a current certificate from more than one railroad shall 
immediately notify the other certifying railroad(s) if he or she is 
denied recertification by a railroad or has his or her certification 
revoked by a railroad.
    (e) Nothing in this section shall be deemed to alter a certified 
locomotive engineer's duty to comply with other provisions of this 
chapter concerning railroad safety.

[56 FR 28254, June 19, 1991, as amended at 58 FR 19004, Apr. 9, 1993; 64 
FR 60993, Nov. 8, 1999]

Sec. 240.307  Revocation of certification.

    (a) Except as provided for in Sec. 240.119(e), a railroad that 
certifies or recertifies a person as a qualified locomotive engineer 
and, during the period that certification is valid, acquires information 
which convinces the railroad that the person no longer meets the 
qualification requirements of this part, shall revoke the person's 
certificate as a qualified locomotive engineer.
    (b) Pending a revocation determination under this section, the 
railroad shall:
    (1) Upon receipt of reliable information indicating the person's 
lack of qualification under this part, immediately suspend the person's 
certificate;
    (2) Prior to or upon suspending the person's certificate, provide 
notice of the reason for the suspension, the pending revocation, and an 
opportunity for a hearing before a presiding officer other than the 
investigating officer. The notice may initially be given either orally 
or in writing. If given orally, it must be confirmed in writing and the 
written confirmation must be made promptly. Written confirmation which 
conforms to the notification provisions of an applicable collective 
bargaining agreement shall be deemed to satisfy the written confirmation 
requirements

[[Page 650]]

of this section. In the absence of an applicable collective bargaining 
agreement provision, the written confirmation must be made within 96 
hours.
    (3) Convene the hearing within the deadline prescribed by either 
paragraph (c)(1) of this section or the applicable collective bargaining 
agreement as permitted under paragraph (d) of this section;
    (4) Determine, on the record of the hearing, whether the person no 
longer meets the qualification requirements of this part stating 
explicitly the basis for the conclusion reached;
    (5) When appropriate, impose the pertinent period of revocation 
provided for in Sec. 240.117 or Sec. 240.119; and
    (6) Retain the record of the hearing for 3 years after the date the 
decision is rendered.
    (c) Except as provided for in paragraphs (d), (f), (i) and (j) of 
this section, a hearing required by this section shall be conducted in 
accordance with the following procedures:
    (1) The hearing shall be convened within 10 days of the date the 
certificate is suspended unless the locomotive engineer requests or 
consents to delay in the start of the hearing.
    (2) The hearing shall be conducted by a presiding officer, who can 
be any qualified person authorized by the railroad other than the 
investigating officer.
    (3) The presiding officer will exercise the powers necessary to 
regulate the conduct of the hearing for the purpose of achieving a 
prompt and fair determination of all material issues in controversy.
    (4) The presiding officer shall convene and preside over the 
hearing.
    (5) Testimony by witnesses at the hearing shall be recorded 
verbatim.
    (6) All relevant and probative evidence shall be received unless the 
presiding officer determines the evidence to be unduly repetitive or so 
extensive and lacking in relevancy that its admission would impair the 
prompt, orderly, and fair resolution of the proceeding.
    (7) The presiding officer may:
    (i) Adopt any needed procedures for the submission of evidence in 
written form;
    (ii) Examine witnesses at the hearing;
    (iii) Convene, recess, adjourn or otherwise regulate the course of 
the hearing; and
    (iv) Take any other action authorized by or consistent with the 
provisions of this part and permitted by law that may expedite the 
hearing or aid in the disposition of the proceeding.
    (8) Parties may appear and be heard on their own behalf or through 
designated representatives. Parties may offer relevant evidence 
including testimony and may conduct such examination of witnesses as may 
be required for a full disclosure of the relevant facts.
    (9) The record in the proceeding shall be closed at conclusion of 
the hearing unless the presiding officer allows additional time for the 
submission of information. In such instances the record shall be left 
open for such time as the presiding officer grants for that purpose.
    (10) No later than 10 days after the close of the record, a railroad 
official, other than the investigating officer, shall prepare and sign a 
written decision in the proceeding.
    (11) The decision shall:
    (i) Contain the findings of fact as well as the basis therefor, 
concerning all material issues of fact presented on the record; and
    (ii) Be served on the employee.
    (12) The railroad shall have the burden of proving that the 
locomotive engineer's conduct was not in compliance with the applicable 
railroad operating rule or practice or part 219 of this chapter.
    (d) A hearing required by this section which is conducted in a 
manner that conforms procedurally to the applicable collective 
bargaining agreement shall be deemed to satisfy the procedural 
requirements of this section.
    (e) A hearing required under this section may be consolidated with 
any disciplinary or other hearing arising from the same facts, but in 
all instances a railroad official, other than the investigating officer, 
shall make separate findings as to the revocation required under this 
section.

[[Page 651]]

    (f) A person may waive the right to the hearing provided under this 
section. That waiver shall:
    (1) Be made in writing;
    (2) Reflect the fact that the person has knowledge and understanding 
of these rights and voluntarily surrenders them; and
    (3) Be signed by the person making the waiver.
    (g) A railroad that has relied on the certification by another 
railroad under the provisions of Sec. 240.227 or Sec. 240.229, shall 
revoke its certification if, during the period that certification is 
valid, the railroad acquires information which convinces it that another 
railroad has revoked its certification after determining, in accordance 
with the provisions of this section, that the person no longer meets the 
qualification requirements of this part. The requirement to provide a 
hearing under this section is satisfied when any single railroad holds a 
hearing and no additional hearing is required prior to a revocation by 
more than one railroad arising from the same facts.
    (h) The period of certificate suspension prior to the commencement 
of a hearing required under this section shall be credited towards 
satisfying any applicable revocation period imposed in accordance with 
the provisions of Sec. 240.117.
    (i) A railroad:
    (1) Shall not determine that the person failed to meet the 
qualification requirements of this part and shall not revoke the 
person's certification as provided for in paragraph (a) of this section 
if sufficient evidence exists to establish that an intervening cause 
prevented or materially impaired the locomotive engineer's ability to 
comply with the railroad operating rule or practice which constitutes a 
violation under Sec. 240.117(e)(1) through (e)(5) of this part; or
    (2) May determine that the person meets the qualification 
requirements of this part and decide not to revoke the person's 
certification as provided for in paragraph (a) of this section if 
sufficient evidence exists to establish that the violation of 
Sec. 240.117(e)(1) through (e)(5) of this part was of a minimal nature 
and had no direct or potential effect on rail safety.
    (j) The railroad shall place the relevant information in the records 
maintained in compliance with Sec. 240.309 for Class I (including the 
National Railroad Passenger Corporation) and Class II railroads, and 
Sec. 240.15 for Class III railroads if sufficient evidence meeting the 
criteria provided in paragraph (i) of this section, becomes available 
either:
    (1) Prior to a railroad's action to suspend the certificate as 
provided for in paragraph (b)(1) of this section; or
    (2) Prior to the convening of the hearing provided for in this 
section;
    (k) Provided that the railroad makes a good faith determination 
after a reasonable inquiry that the course of conduct provided for in 
paragraph (i) of this section is appropriate, the railroad which does 
not suspend a locomotive engineer's certification, as provided for in 
paragraph (a) of this section, is not in violation of paragraph (a) of 
this section.

[58 FR 19004, Apr. 9, 1993, as amended at 60 FR 53137, Oct. 12, 1995; 64 
FR 60994, Nov. 8, 1999]

Sec. 240.309  Railroad oversight responsibilities.

    (a) No later than March 31 of each year (beginning in calendar year 
1993), each Class I railroad (including the National Railroad Passenger 
Corporation and a railroad providing commuter service) and 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 locomotive engineers during the 
prior calendar year.
    (b) Each review and analysis shall involve:
    (1) The number and nature of the instances of detected poor safety 
conduct including the nature of the remedial action taken in response 
thereto;
    (2) The number and nature of FRA reported train accidents attributed 
to poor safety performance by locomotive engineers;
    (3) The number and type of operational monitoring test failures and 
observations of inadequate skill performance recorded by supervisors of 
locomotive engineers; and
    (4) If it conducts joint operations with another railroad, the 
number of

[[Page 652]]

locomotive engineers employed by such other railroad(s) to which such 
events were ascribed which the controlling railroad certified for joint 
operations purposes.
    (c) Based on that review and analysis each railroad shall determine 
what action(s) it will take to improve the safety of train operations to 
reduce or eliminate future incidents of that nature.
    (d) If requested in writing by FRA, the railroad shall provide a 
report of the findings and conclusions reached during such annual review 
and analysis effort.
    (e) For reporting purposes, information about the nature of detected 
poor safety conduct shall be capable of segregation for study and 
evaluation purposes into the following categories:
    (1) Incidents involving noncompliance with part 218;
    (2) Incidents involving noncompliance with part 219;
    (3) Incidents involving noncompliance with the procedures for the 
safe use of train or engine brakes when the procedures are required for 
compliance with the initial terminal, intermediate terminal, or transfer 
train and yard test provisions of 49 CFR part 232 or when the procedures 
are required for compliance with the class 1, class 1A, class II, or 
running brake test provisions of 49 CFR part 238;
    (4) Incidents involving noncompliance with the railroad's operating 
rules involving operation of a locomotive or train to operate at a speed 
that exceeds the maximum authorized limit;
    (5) Incidents involving noncompliance with the railroad's operating 
rules resulting in operation of a locomotive or train past any signal, 
excluding a hand or a radio signal indication or a switch, that requires 
a complete stop before passing it;
    (6) Incidents involving noncompliance with the provisions of 
restricted speed, and the operational equivalent thereof, that must be 
reported under the provisions of part 225 of this chapter;
    (7) Incidents involving occupying main track or a segment of main 
track without proper authority or permission;
    (8) Incidents involving the failure to comply with prohibitions 
against tampering with locomotive mounted safety devices, or knowingly 
operating or permitting to be operated a train with an unauthorized or 
disabled safety device in the controlling locomotive;
    (9) Incidents involving noncompliance with the railroad's operating 
practices (including train handling procedures) resulting in excessive 
in-train force levels; and
    (f) For reporting purposes each category of detected poor safety 
conduct identified in paragraph (d) 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 hearing officer:
    (i) The person was withheld from service;
    (ii) The person was dismissed from employment or
    (iii) The person was issued demerits. If more than one form of 
punishment was imposed only that punishment deemed the most severe shall 
be shown.
    (g) For reporting purposes each category of detected poor safety 
conduct identified in paragraph (d) 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

[[Page 653]]

or other body for the resolution of disputes duly constituted under the 
provisions of the Railway Labor Act.
    (h) For reporting purposes each category of detected poor safety 
conduct identified in paragraph (d) of this section shall be capable of 
being annotated to reflect the following:
    (1) The total number of incidents in that category;
    (2) The number of incidents within that total which reflect 
incidents requiring an FRA accident/incident report; and
    (3) The number of incidents within that total which were detected as 
a result of a scheduled operational monitoring effort.

[56 FR 28254, June 19, 1991, as amended at 64 FR 60994, Nov. 8, 1999]

                Subpart E--Dispute Resolution Procedures

Sec. 240.401  Review board established.

    (a) Any person who has been denied certification, denied 
recertification, or has had his or her certification revoked and 
believes that a railroad incorrectly determined that he or she failed to 
meet the qualification requirements of this regulation when making the 
decision to deny or revoke certification, may petition the Federal 
Railroad Administrator to review the railroad's decision.
    (b) The Federal Railroad Administrator has delegated initial 
responsibility for adjudicating such disputes to the Locomotive Engineer 
Review Board.
    (c) The Locomotive Engineer Review Board shall be composed of at 
least three employees of the Federal Railroad Administration selected by 
the Administrator.

[56 FR 28254, June 19, 1991, as amended at 58 FR 19005, Apr. 9, 1993]

Sec. 240.403  Petition requirements.

    (a) To obtain review of a railroad's decision to deny certification, 
deny recertification, or revoke certification, a person shall file a 
petition for review that complies with this section.
    (b) Each petition shall:
    (1) Be in writing;
    (2) Be submitted in triplicate to the Docket Clerk, Office of Chief 
Counsel, Federal Railroad Administration, 1120 Vermont Avenue, NW, 
Washington, DC 20590;
    (3) Contain all available information that the person thinks 
supports the person's belief that the railroad acted improperly, 
including:
    (i) The petitioner's full name;
    (ii) The petitioner's current mailing address;
    (iii) The petitioner's daytime telephone number;
    (iv) The name and address of the railroad; and
    (v) The facts that the petitioner believes constitute the improper 
action by the railroad, specifying the locations, dates, and identities 
of all persons who were present or involved in the railroad's actions 
(to the degree known by the petitioner);
    (4) Explain the nature of the remedial action sought;
    (5) Be supplemented by a copy of all written documents in the 
petitioner's possession that document that railroad's decision; and
    (6) Be filed in a timely manner.
    (c) A petition seeking review of a railroad's decision to deny 
certification or recertification filed with FRA more than 180 days after 
the date of the railroad's denial decision will be denied as untimely.
    (d) A petition seeking review of a railroad's decision to revoke 
certification in accordance with the procedures required by Sec. 240.307 
filed with FRA more than 120 days after the date of the railroad's 
revocation decision will be denied as untimely except that the 
Locomotive Engineer Review Board for cause shown may extend the petition 
filing period at any time in its discretion:
    (1) Provided the request for extension is filed before the 
expiration of the period provided in this paragraph (d); or
    (2) Provided that 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

[[Page 654]]

may file an appeal with the Administrator in accordance with 
Sec. 240.411.

[56 FR 28254, June 19, 1991, as amended at 64 FR 60995, Nov. 8, 1999; 64 
FR 70196, Dec. 16, 1999]

Sec. 240.405  Processing qualification review petitions.

    (a) Each petition shall be acknowledged in writing by FRA. The 
acknowledgment shall contain the docket number assigned to the petition 
and a statement of FRA's intention that the Board will render a decision 
on this petition within 180 days from the date that the railroad's 
response is received or from the date upon which the railroad's response 
period has lapsed pursuant to paragraph (c) of this section.
    (b) Upon receipt of the petition, FRA will notify the railroad that 
it has received the petition and provide the railroad with a copy of the 
petition.
    (c) The railroad will be given a period of not to exceed 60 days to 
submit to FRA any information that the railroad considers pertinent to 
the petition. Late filings will only be considered to the extent 
practicable.
    (d) A railroad that submits such information shall:
    (1) Identify the petitioner by name and the docket number of the 
review proceeding;
    (2) Provide a copy of the information being submitted to FRA to the 
petitioner.
    (3) Submit the information in triplicate to the Docket Clerk, 
Federal Railroad Administration, 400 Seventh Street SW., Washington, DC 
20590;
    (e) Each petition will then be referred to the Locomotive Engineer 
Review Board for a decision.
    (f) The Board will determine whether the denial or revocation of 
certification or recertification was improper under this regulation 
(i.e., based on an incorrect determination that the person failed to 
meet the qualification requirements of this regulation) and grant or 
deny the petition accordingly. The Board will not otherwise consider the 
propriety of a railroad's decision, i.e., it will not consider whether 
the railroad properly applied its own more stringent requirements.
    (g) Notice of that decision will be provided in writing to both the 
petitioner and the railroad. The decision will include findings of fact 
on which it is based.

[56 FR 28254, June 19, 1991, as amended at 64 FR 60995, Nov. 8, 1999]

Sec. 240.407  Request for a hearing.

    (a) If adversely affected by the Locomotive Engineer Review Board 
decision, either the petitioner before the Board or the railroad 
involved shall have a right to an administrative proceeding as 
prescribed by Sec. 240.409.
    (b) To exercise that right, the adversely affected party shall, 
within 20 days of service of the Board's decision on that party, file a 
written request with the Docket Clerk, Department of Transportation 
Central Docket Management System, Nassif Building, Room Pl-401, 400 
Seventh Street, S.W., Washington, D.C. 20590. The form of such request 
may be in written or electronic form consistent with the standards and 
requirements established by the Central Docket Management System and 
posted on its web site at http://dms.dot.gov.
    (c) The result of a failure to request a hearing within the period 
provided in paragraph (b) of this section is that the Locomotive 
Engineer Review Board's decision will constitute final agency action.
    (d) If a party elects to request a hearing, that person shall submit 
a written request to the Docket Clerk containing the following:
    (1) The name, address, and telephone number of the respondent and 
the requesting party's designated representative, if any;
    (2) The specific factual issues, industry rules, regulations, or 
laws that the requesting party alleges need to be examined in connection 
with the certification decision in question; and
    (3) The signature of the requesting party or the requesting party's 
representative, if any.
    (e) Upon receipt of a hearing request complying with paragraph (d) 
of this section, FRA shall arrange for the appointment of a presiding 
officer who shall schedule the hearing for the earliest practicable 
date.

[60 FR 53137, Oct. 12, 1995, as amended at 64 FR 70196, Dec. 16, 1999]

[[Page 655]]

Sec. 240.409  Hearings.

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

[[Page 656]]

orally on the record, except that the presiding officer may direct that 
any oral motion be reduced to writing. Any motion shall state with 
particularity the grounds therefor and the relief or order sought, and 
shall be accompanied by any affidavits or other evidence desired to be 
relied upon which is not already part of the record. Any matter 
submitted in response to a written motion must be filed and served 
within fourteen (14) days of the motion, or within such other period as 
directed by the presiding officer.
    (m) Testimony by witnesses at the hearing shall be given under oath 
and the hearing shall be recorded verbatim. The presiding officer shall 
give the parties to the proceeding adequate opportunity during the 
course of the hearing for the presentation of arguments in support of or 
in opposition to motions, and objections and exceptions to rulings of 
the presiding officer. The presiding officer may permit oral argument on 
any issues for which the presiding officer deems it appropriate and 
beneficial. Any evidence or argument received or proffered orally shall 
be transcribed and made a part of the record. Any physical evidence or 
written argument received or proffered shall be made a part of the 
record, except that the presiding officer may authorize the substitution 
of copies, photographs, or descriptions, when deemed to be appropriate.
    (n) The presiding officer shall employ the Federal Rules of Evidence 
for United States Courts and Magistrates as general guidelines for the 
introduction of evidence. Notwithstanding paragraph (m) of this section, 
all relevant and probative evidence shall be received unless the 
presiding officer determines the evidence to be unduly repetitive or so 
extensive and lacking in relevancy that its admission would impair the 
prompt, orderly, and fair resolution of the proceeding.
    (o) The presiding officer may:
    (1) Administer oaths and affirmations;
    (2) Issue subpoenas as provided for in Sec. 209.7 of part 209 in 
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 Locomotive Engineer Review Board, the 
railroad involved in taking the certification action, and FRA shall be 
parties at the hearing. All parties may participate in the hearing and 
may appear and be heard on their own behalf or through designated 
representatives. All parties may offer relevant evidence, including 
testimony, and may conduct such cross-examination of witnesses as may be 
required to make a record of the relevant facts.
    (q) The party requesting the administrative hearing shall be the 
``hearing petitioner.'' The hearing petitioner shall have the burden of 
proving its case by a preponderance of the evidence. Hence, if the 
hearing petitioner is the railroad involved in taking the certification 
action, that railroad will have the burden of proving that its decision 
to deny certification, deny recertification, or revoke certification was 
correct. Conversely, if the petitioner before the Locomotive Engineer 
Review Board is the hearing petitioner, that person will have the burden 
of proving that the railroad's decision to deny certification, deny 
recertification, or revoke certification was incorrect. Between the 
petitioner before the Locomotive Engineer Review Board and the railroad 
involved in taking the certification action, the party who is not the 
hearing petitioner will be a respondent.
    (r) FRA will be a mandatory party to the administrative hearing. At 
the start of each proceeding, FRA will be a respondent.
    (s) The record in the proceeding shall be closed at the conclusion 
of the evidentiary hearing unless the presiding officer allows 
additional time for the submission of additional evidence. In such 
instances the record shall be left open for such time as the presiding 
officer grants for that purpose.

[[Page 657]]

    (t) At the close of the record, the presiding officer shall prepare 
a written decision in the proceeding.
    (u) The decision:
    (1) Shall contain the findings of fact and conclusions of law, as 
well as the basis for each concerning all material issues of fact or law 
presented on the record;
    (2) Shall be served on the hearing petitioner and all other parties 
to the proceeding;
    (3) Shall not become final for 35 days after issuance;
    (4) Constitutes final agency action unless an aggrieved party files 
an appeal within 35 days after issuance; and
    (5) Is not precedential.

[60 FR 53137, Oct. 12, 1995]

Sec. 240.411  Appeals.

    (a) Any party aggrieved by the presiding officer's decision may file 
an appeal. The appeal must be filed within 35 days of issuance of the 
decision with the Federal Railroad Administrator, 400 Seventh Street 
SW., Washington, DC 20590. A copy of the appeal shall be served on each 
party. The appeal shall set forth objections to the presiding officer's 
decision, supported by reference to applicable laws and regulations and 
with specific reference to the record. If no appeal is timely filed, the 
presiding officer's decision constitutes final agency action.
    (b) A party may file a reply to the appeal within 25 days of service 
of the appeal. The reply shall be supported by reference to applicable 
laws and regulations and with specific reference to the record, if the 
party relies on evidence contained in the record.
    (c) The Administrator may extend the period for filing an appeal or 
a response for good cause shown, provided that the written request for 
extension is served before expiration of the applicable period provided 
in this section.
    (d) The Administrator has sole discretion to permit oral argument on 
the appeal. On the Administrator's own initiative or written motion by 
any party, the Administrator may grant the 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) Where a party files an appeal from a Locomotive Engineer Review 
Board decision pursuant to Sec. 240.403(e), 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.

[56 FR 28254, June 19, 1991, as amended at 60 FR 53138, Oct. 12, 1995; 
64 FR 60995, Nov. 8, 1999]

         Appendix A to Part 240--Schedule of Civil Penalties \1\

------------------------------------------------------------------------
                                                                Willful
                     Section                       Violation   violation
------------------------------------------------------------------------
Subpart B--Component Elements
240.101--Program Failures
  (a) Failure to have program...................      $5,000     $10,000
  (b) Program that fails to address a subject...       2,500       5,000
240.103--Failure to:
  (a) follow Appendix B.........................       1,000       2,000
  (d) to resubmit, when directed by FRA.........       1,000       2,000
240.104--Allowing uncertified person to operate        5,000      10,000
 non-traditional locomotives....................
240.105--Failure to have or execute adequate           2,500       5,000
 procedure for selection of supervisors.........
240.107--Classes of Service
  (a) Failure to designate classes of service...       2,000       4,000
240.109--Limitations on considering prior
 conduct records
  (a) Failure to have procedure for determining        2,500       5,000
   eligibility..................................
  (e) Considering excluded data.................       2,000       4,000
  (f,g) Failure to provide timely review               2,000       4,000
   opportunity..................................
240.111--Furnishing Motor Vehicle Records:
    (a) Failure to action required to make             1,000       2,000
     information available......................
    (b) Failure to request:

[[Page 658]]


        (1) local record........................       1,000       2,000
        (2) NDR record..........................       1,000       2,000
    (f) Failure to request additional record....       1,000       2,000
    (g) Failure to notify of absence of license.         750       1,500
    (h) Failure to submit request in timely              750       1,500
     manner.....................................
    (i) Failure to report within 48 hours or           1,000       2,000
     railroad taking certification action for
     not reporting earlier than 48 hours........
240.113--Furnishing prior employment information
  (a) Failure to take action required to make          1,000       2,000
   information available........................
  (b) Failure to request record.................       1,000       2,000
240.115--Criteria for considering prior motor
 vehicle conduct
  (b) Considering excluded data.................       2,000       4,000
  (c) Failure to
    (1) consider data...........................       5,000       7,500
    (3,4) properly act in response to data......       2,500       5,000
240.117--Consideration of Operational Rules
 Compliance Records:
    (a) Failure to have program and procedures..       5,000      10,000
    (b-j) Failure to have adequate program or          2,500       5,000
     procedure..................................
240.119--Consideration of substance abuse /rules
 compliance records
  (a) Failure to have program and procedures....       5,000      10,000
  (b-e) Failure to have adequate program or            2,500       5,000
   procedure....................................
240.121--Failure to have adequate procedure for        2,500       5,000
 determining acuity.............................
    (f) Failure of engineer to notify...........       2,500       5,000
240.123--Failure to have:
  (b) Adequate procedures for continuing               2,500       5,000
   education....................................
  (c) adequate procedures for training new             2,500       5,000
   engineers....................................
240.125--Failure to have
  (a) adequate procedures for testing knowledge.       2,500       5,000
  (d) adequate procedures for documenting              2,500       5,000
   testing......................................
240.127--Failure to have
  (a) adequate procedures for evaluatinq skill         2,500       5,000
   performance..................................
  (c) adequate procedures for documentinq skills       2,500       5,000
   testing......................................
240.129--Failure to have
  (a-b) adequate procedures for monitoring             2,500       5,000
   performance..................................
Subpart C--Implementation of the Process
240.201--Schedule for implementation
  (a) Failure to select supervisors by specified       1,000       2,000
   date.........................................
  (b) Failure to identify grandfathered                2,000       4,000
   engineers....................................
  (c) Failure to issue certificate to engineer..       1,000       2,000
  (d) Allowing uncertified person to operate....       5,000      10,000
  (e-g) Certifying without complying with              2,500       5,000
   subpart C....................................
  (h-i) Failure to issue certificate to engineer       1,000       2,000
240.203 (a) Designating a person as a supervisor
 without determining that
    (1) person knows and understands this part..       2,500       5,000
    (2) person can test and evaluate engineers..       5,000       7,500
    (3) person has experience to prescribe             2,500       5,000
     remedies...................................
  (b) Certifying a person without determining
   that
    (1) person meets the eligibility criteria...       5,000       7,500
    (2) person meets the medical criteria.......       2,500       5,000
    (3) person has demonstrated knowledge.......       2,500       5,000
    (4) person has demonstrated skills..........       2,500       5,000
  (c) Certifying a person without determining
   that
    (1) person has completed training program...       2,500       5,000
    (2) person meets the eligibility criteria...       2,500       5,000
    (3) time has elapsed........................       2,500       5,000
240.205--Procedures for determining eligibility
 based on prior safety conduct
  (a) Selecting person lacking eligibility......       5,000       7,500
  (d) Failure to have basis for taking action...       2,500       5,000
240.207--Ineligibility based on medical
 condition
  (a) Selecting person lacking proper acuity....       2,000       4,000
  (b) Failure to have basis for finding of             1,000       2,000
   proper acuity................................
  (c) Acuity examinations performed by                 1,000       2,000
   unauthorized person..........................
  (d) Failure to note need for device to achieve       1,000       2,000
   acuity.......................................
  (e) Failure to use device needed for proper          1,000       2,000
   acuity.......................................
240.209--Demonstrating knowledge
  (b) Failure to properly determine knowledge...       2,500       5,000
  (c) Improper test procedure...................       2,000       4,000
  (d) Failure to document test results..........       1,000       2,000
  (e) Allowing person to operate despite test          2,500       5,000
   failure......................................
240.211--Demonstrating skills
  (b) Failure to properly determine knowledge...       2,500       5,000
  (c) Improper test procedure...................       2,000       4,000
  (d) Failure to document test results..........       1,000       2,000

[[Page 659]]


  (e) Allowing person to operate despite test          2,500       5,000
   failure......................................
240.213--Completion of approved training program
  (a) Failure to properly determine.............       2,500       5,000
  (b) Failure to document successful program           2,000       4,000
   completion...................................
240.215--Supporting information
  (a, f-h) Failure to have a record.............       1,000       2,000
  (b) Failure to have complete record...........         500       1,000
  (i) Falsification of record...................         (-)      10,000
240.217--Time limits for making determinations
  (a, c) Exceeding time limit...................       2,000       4,000
240.219--Denial of certification
  (a) Failure to notify or provide opportunity         2,000       4,000
   for comment..................................
  (c) Failure to notify, provide data, or              2,000       4,000
   untimely notification........................
240.221--Identification of persons
  (a-c) Failure to have a record................       2,000       4,000
  (d) Failure to update a record................       2,000       4,000
  (e-f) Failure to make a record available......       1,000       2,000
240.223--Certificate criteria
  (a) Improper certificate......................         500       1,000
  (b) Failure to designate those with signatory          500       1,000
   authority....................................
  (d) Falsification of certificate..............         (-)      10,000
240.225--Railroad Relying on Determination of
 Another:
    (a) Failure to address in program or failure       5,000       7,500
     to require newly hired engineer to take
     entire training program....................
        (1) Reliance on expired certification...       2,500       5,000
        (2) Reliance on wrong class of service..       2,500       5,000
        (3) Failure to familiarize person with         2,000       4,000
         new operational territory..............
        (4) Failure to determine knowledge......       2,000       4,000
        (5) Failure to determine performance           2,000       4,000
         skills.................................
240.227--Railroad Relying on Requirements of a
 Different Country
  (a) Joint operator reliance
    (1) on person not employed..................       1,000       2,000
    (2) on person who fails to meet Canadian           1,000       2,000
     requirements...............................
  (b) Canadian railroad reliance
    (1) on person not employed..................       1,000       2,000
    (2) on person who fails to meet Canadian           1,000       2,000
     requirements...............................
240.229--Requirements for Joint Operations
 Territory:
    (a) Allowing uncertified person to operate..       2,000       4,000
    (b) Certifying without making determinations       2,500       5,000
     or relying on another railroad.............
    (c) Failure of..............................
        (1) controlling railroad certifying            4,000       8,000
         without determining certification
         status, knowledge, skills, or
         familiarity with physical
         characteristics........................
        (2) employing railroad to determine            4,000       8,000
         person's certified and qualified status
         for controlling railroad...............
        (3) person to notify employing railroad        4,000       8,000
         of lack of qualifications..............
    (d) Failure to provide qualified person.....       2,000       4,000
240.231--Persons Qualified on Physical
 Characteristics in Other Than Joint Operations:
    (a) Person unqualified, no exception applies       5,000      10,000
     or railroad does not adequately address in
     program....................................
    (b) Failure to have a pilot.................
        (1) for engineer who has never been            4,000       8,000
         qualified..............................
        (2) for engineer previously qualified...       2,500       5,000
Subpart D--Program Administration
240.301--Failure to have system for certificate        2,000       4,000
 replacement
240.303--Monitoring operations
  (a) Failure to have program...................       5,000      10,000
  (b) Failure to observe each person annually...       1,000       2,000
  (c) Failure to test each person annually......       1,000       2,000
  (d) Failure to test properly..................       1,000       2,000
240.305--Prohibited Conduct:
    (a) Unlawful:
        (1) passing of stop signal..............       2,500       5,000
        (2) control of speed....................       2,500       5,000
        (3) brake tests.........................       2,500       5,000
        (4) occupancy of main track.............       2,500       5,000
        (5) tampering on operation with disabled       2,500       5,000
         safety device..........................
        (6) supervisor, pilot, or instructor           2,500       5,000
         fails to take appropriate action.......
    (b) Failure of engineer to:
        (1) carry certificate...................       1,000       2,000
        (2) display certificate when requested..       1,000       2,000
    (c) Failure of engineer to notify railroad         4,000       8,000
     of limitations or railroad requiring
     engineer to exceed limitations.............
        (d) Failure of engineer to notify              4,000       8,000
         railroad of denial or revocation.......
240.307--Revocation of Certification:

[[Page 660]]


    (a) Failure to withdraw person from service.       2,500       5,000
    (b) Failure to notify, provide hearing             2,500       5,000
     opportunity, or untimely procedures........
    (c-h) Failure of railroad to comply with           1,000       2,000
     hearing or waiver procedures...............
    (j) Failure of railroad to make record......       2,500       5,000
    (k) Failure of railroad to conduct                 5,000      10,000
     reasonable inquiry or make good faith
     determination..............................
240.309--Oversight Responsibility Report:
    (a) Failure to report or to report on time..       1,000       2,000
    (b-h) Incomplete or inaccurate report.......       2,000       4,000
------------------------------------------------------------------------
\1\ A penalty may be assessed against an individual only for a willful
  violation. The Administrator reserves the right to assess a penalty of
  up to $22,000 for any violation where circumstances warrant. See 49
  CFR part 209, appendix A.


[56 FR 28254, June 19, 1991, as amended at 60 FR 53138, Oct. 12, 1995; 
63 FR 11624, Mar. 10, 1998; 64 FR 60995, Nov. 8, 1999]

   Appendix B to Part 240--Procedures for Submission and Approval of 
               Locomotive Engineer Qualification Programs

    This appendix establishes procedures for the submission and approval 
of a railroad's program concerning the training, testing, and evaluating 
of persons seeking certification or recertification as a locomotive 
engineer in accordance with the requirements of this part (see 
Secs. 240.101, 240.103, 240.105, 240.107, 240.123, 240.125, 240.127 and 
240.129). lt also contains guidance on how FRA will exercise its review 
and approval responsibilities.

                        Submission by a Railroad

    As provided for in Sec. 240.101, each railroad must have a program 
for determining the qualifications of each person it permits or requires 
to operate a locomotive. In designing its program a railroad must take 
into account the trackage and terrain over which it operates, the 
system(s) for train control that are employed, the operational design 
characteristics of the track and equipment being operated including 
train length, train makeup, and train speeds. Each railroad must submit 
its individual program to FRA for approval as provided for in 
Sec. 240.103. Each program must be accompanied by a request for approval 
organized in accordance with this appendix. Requests for approval must 
contain appropriate references to the relevant portion of the program 
being discussed. Requests should be submitted in writing on standard 
sized paper (8-1/2x11) and can be in letter or narrative format. The 
railroad's submission shall be sent to the Associate Administrator for 
Safety, FRA. The mailing address for FRA is 400 Seventh Street, SW., 
Washington, DC 20590.

                     Organization of the Submission

    Each request should be organized to present the required information 
in the following standardized manner. Each section must begin by giving 
the name, title, telephone number, and mailing address of the person to 
be contacted concerning the matters addressed by that section. If a 
person is identified in a prior section, it is sufficient to merely 
repeat the person's name in a subsequent section.

     Section 1 of the Submission: General Information and Elections

    The first section of the request must contain the name of the 
railroad, the person to be contacted concerning the request (including 
the person's name, title, telephone number, and mailing address) and a 
statement electing either to accept responsibility for educating 
previously untrained persons to be qualified locomotive engineers or 
recertify only engineers previously certified by other railroads (see 
Sec. 240.103(b)).
    If a railroad elects not to conduct the training of persons not 
previously trained to be a locomotive engineer, the railroad is not 
obligated to submit information on how the previously untrained will be 
trained. A railroad that makes this election will be limited to 
recertifying persons initially certified by another railroad. A railroad 
that initially elects not to accept responsibility for training its own 
locomotive engineers can rescind its initial election by obtaining FRA 
approval of a modification of its program (see Sec. 240.103(e)).
    If a railroad elects to accept responsibility for conducting the 
education of persons not previously trained to be locomotive engineers, 
the railroad is obligated to submit information on how such persons will 
be trained but has no duty to actually conduct such training. A railroad 
that elects to accept the responsibility for the training of such 
persons may authorize another railroad or a non-railroad entity to 
perform the actual training effort. The electing railroad remains 
responsible for assuring that such other training providers adhere to 
the training program the railroad submits.
    This section must also state which class or classes of service the 
railroad will employ. (See Sec. 240.107).

[[Page 661]]

  Section 2 of the Submission: Selection of Supervisors of Locomotive 
                                Engineers

    The second section of the request must contain information 
concerning the railroad's procedure for selecting the person or persons 
it will rely on to evaluate the knowledge, skill, and ability of persons 
seeking certification or recertification. As provided for in 
Sec. 240.105 each railroad must have a procedure for selecting 
supervisors of locomotive engineers which assures that persons so 
designated can appropriately test and evaluate the knowledge, skill, and 
ability of individuals seeking certification or recertification.
    Section 240.105 provides a railroad latitude to select the criteria 
and evaluation methodology it will rely on to determine which person or 
persons have the required capacity to perform as a supervisor of 
locomotive engineers. The railroad must describe in this section how it 
will use that latitude and evaluate those it designates as supervisors 
of locomotive engineers so as to comply with the performance standard 
set forth in Sec. 240.105(b). The railroad must identify, in sufficient 
detail to permit effective review by FRA, the criteria for evaluation it 
has selected. For example, if a railroad intends to rely on one or more 
of the following, a minimum level of prior experience as an engineer, 
successful completion of a course of study, or successful passage of a 
standardized testing program, the submission must state which criteria 
it will employ.

   Section 3 of the Submission: Training Persons Previously Certified

    The third section of the request must contain information concerning 
the railroad's program for training previously certified locomotive 
engineers. As provided for in Sec. 240.123(b) each railroad must have a 
program for the ongoing education of its locomotive engineers to assure 
that they maintain the necessary knowledge concerning personal safety, 
operating rules and practices, mechanical condition of equipment, 
methods of safe train handling (including familiarity with physical 
characteristics), and relevant Federal safety rules.
    Section 240.123(b) provides a railroad latitude to select the 
specific subject matter to be covered, duration of the training, method 
of presenting the information, and the frequency with which the training 
will be provided. The railroad must describe in this section how it will 
use that latitude to assure that its engineers remain knowledgeable 
concerning the safe discharge of their train operation responsibilities 
so as to comply with the performance standard set forth in 
Sec. 240.123(b). This section must contain sufficient detail to permit 
effective evaluation of the railroad's training program in terms of the 
subject matter covered, the frequency and duration of the training 
sessions, the training environment employed (for example, and use of 
classroom, use of computer based training, use of simulators, use of 
film or slide presentations, use of on-job-training) and which aspects 
of the program are voluntary or mandatory.
    Safe train handling involves both abstract knowledge about the 
appropriate use of engine controls and the application of that knowledge 
to trains of differing composition traversing varying terrain. Time and 
circumstances have the capacity to diminish both abstract knowledge and 
the proper application of that knowledge to discrete events. Time and 
circumstances also have the capacity to alter the value of previously 
obtained knowledge and the application of that knowledge. In formulating 
how it will use the discretion being afforded, each railroad must design 
its program to address both loss of retention of knowledge and changed 
circumstances, and this section of the submission to FRA must address 
these matters.
    For example, locomotive engineers need to have their fundamental 
knowledge of train operations refreshed periodically. Each railroad 
needs to advise FRA how that need is satisfied in terms of the interval 
between attendance at such training, the nature of the training being 
provided, and methods for conducting the training. A matter of 
particular concern to FRA is how each railroad acts to assure that 
engineers remain knowledgeable about safe train handling procedures if 
the territory over which a locomotive engineer is authorized to operate 
is territory from which the engineer has been absent. The railroad must 
have a plan for the familiarization training that addresses the question 
of how long a person can be absent before needing more education and, 
once that threshold is reached, how the person will acquire the needed 
education. Similarly, the program must address how the railroad responds 
to changes such as the introduction of new technology, new operating 
rule books, or significant changes in operations including alteration in 
the territory engineers are authorized to operate over.

 Section 4 of the Submission: Testing and Evaluating Persons Previously 
                                Certified

    The fourth section of the request must contain information 
concerning the railroad's program for testing and evaluating previously 
certified locomotive engineers. As provided for in Sec. 240.125 and 
Sec. 240.127, each railroad must have a program for the ongoing testing 
and evaluating of its locomotive engineers to assure that they have the 
necessary knowledge and skills concerning personal safety, operating 
rules and practices, mechanical condition of equipment, methods of safe 
train handling (including familiarity with physical characteristics), 
and relevant

[[Page 662]]

Federal safety rules. Similarly, each railroad must have a program for 
ongoing testing and evaluating to assure that its locomotive engineers 
have the necessary vision and hearing acuity as provided for in 
Sec. 240.121.
    Sections 240.125 and 240.127 require that a railroad rely on written 
procedures for determining that each person can demonstrate his or her 
knowledge of the railroad's rules and practices and skill at applying 
those rules and practices for the safe operation of a locomotive or 
train. Section 240.125 directs that, when seeking a demonstration of the 
person's knowledge, a railroad must employ a written test that contains 
objective questions and answers and covers the following subject 
matters: (i) Personal safety practices; (ii) operating practices; (iii) 
equipment inspection practices; (iv) train handling practices (including 
familiarity with the physical characteristics of the territory); and (v) 
compliance with relevant Federal safety rules. The test must accurately 
measure the person's knowledge of all of these areas.
    Section 240.125 provides a railroad latitude in selecting the design 
of its own testing policies (including the number of questions each test 
will contain, how each required subject matter will be covered, 
weighting (if any) to be given to particular subject matter responses, 
selection of passing scores, and the manner of presenting the test 
information). The railroad must describe in this section how it will use 
that latitude to assure that its engineers will demonstrate their 
knowledge concerning the safe discharge of their train operation 
responsibilities so as to comply with the performance standard set forth 
in Sec. 240.125.
    Section 240.127 directs that, when seeking a demonstration of the 
person's skill, a railroad must employ a test and evaluation procedure 
conducted by a designated supervisor of locomotive engineers that 
contains an objective evaluation of the person's skills at applying the 
railroad's rules and practices for the safe operation of trains. The 
test and evaluation procedure must examine the person's skills in terms 
of all of the following subject matters: (i) Operating practices; (ii) 
equipment inspection practices; (iii) train handling practices 
(including familiarity with the physical characteristics of the 
territory); and (iv) compliance with relevant Federal safety rules. The 
test must be sufficient to effectively examine the person's skills while 
operating a train in the most demanding type of service which the person 
is likely to encounter in the normal course of events once he or she is 
deemed qualified.
    Section 240.127 provides a railroad latitude in selecting the design 
of its own testing and evaluation procedures (including the duration of 
the evaluation process, how each required subject matter will be 
covered, weighing (if any) to be given to particular subject matter 
response, selection of passing scores, and the manner of presenting the 
test information). The section should provide information concerning the 
procedures which the railroad will follow that achieve the objectives 
described in FRA's recommended practices (see appendix E) for conducting 
skill performance testing. The section also gives a railroad the 
latitude to employ either a Type 1 or a Type 2 simulator (properly 
programmed) to conduct the test and evaluation procedure. A railroad 
must describe in this section how it will use that latitude to assure 
that its engineers will demonstrate their skills concerning the safe 
discharge of their train operation responsibilities so as to comply with 
the performance standard set forth in Sec. 240.127.
    Section 240.121 provides a railroad latitude to rely on the 
professional medical opinion of the railroad's medical examiner 
concerning the ability of a person with substandard acuity to safely 
operate a locomotive. The railroad must describe in this section how it 
will assure that its medical examiner has sufficient information 
concerning the railroad's operations to effectively form appropriate 
conclusions about the ability of a particular individual to safely 
operate a train.

 Section 5 of the Submission: Training, Testing, and Evaluating Persons 
                        Not Previously Certified

    Unless a railroad has made an election not to accept responsibility 
for conducting the initial training of persons to be locomotive 
engineers, the fifth section of the request must contain information 
concerning the railroad's program for educating, testing, and evaluating 
persons not previously trained as locomotive engineers. As provided for 
in Sec. 240.123(c), a railroad that is issuing an initial certification 
to a person to be a locomotive engineer must have a program for the 
training, testing, and evaluating of its locomotive engineers to assure 
that they acquire the necessary knowledge and skills concerning personal 
safety, operating rules and practices, mechanical condition of 
equipment, methods of safe train handling (including familiarity with 
physical characteristics), and relevant Federal safety rules.
    Section 240.123 establishes a performance standard and gives a 
railroad latitude in selecting how it will meet that standard. A 
railroad must describe in this section how it will use that latitude to 
assure that its engineers will acquire sufficient knowledge and skill 
and demonstrate their knowledge and skills concerning the safe discharge 
of their train operation responsibilities. This section must contain the 
same level of detail concerning initial training programs as that 
described for each of the components of the overall program contained in 
sections 2

[[Page 663]]

through 4 of this appendix. A railroad that plans to accept 
responsibility for the initial training of locomotive engineers may 
authorize another railroad or a non-railroad entity to perform the 
actual training effort. The authorizing railroad may submit a training 
program developed by that authorized trainer but the authorizing 
railroad remains responsible for assuring that such other training 
providers adhere to the training program submitted. Railroads that elect 
to rely on other entities, to conduct training away from the railroad's 
own trackage, must indicate how the student will be provided with the 
required familiarization with the physical characteristics for its 
trackage.

   Section 6 of the Submission: Monitoring Operational Performance by 
                           Certified Engineers

    The final section of the request must contain information concerning 
the railroad's program for monitoring the operation of its certified 
locomotive engineers. As provided for in Sec. 240.129, each railroad 
must have a program for the ongoing monitoring of its locomotive 
engineers to assure that they operate their locomotives in conformity 
with the railroad's operating rules and practices including methods of 
safe train handling and relevant Federal safety rules.
    Section 240.129 requires that a railroad annually observe each 
locomotive engineer demonstrating his or her knowledge of the railroad's 
rules and practices and skill at applying those rules and practices for 
the safe operation of a locomotive or train. Section 240.129 directs 
that the observation be conducted by a designated supervisor of 
locomotive engineers but provides a railroad latitude in selecting the 
design of its own observation procedures (including the duration of the 
observation process, reliance on tapes that record the specifics of 
train operation, and the specific aspects of the engineer's performance 
to be covered). The section also gives a railroad the latitude to employ 
either a Type 1 or a Type 2 simulator (properly programmed) to conduct 
monitoring observations. A railroad must describe in this section how it 
will use that latitude to assure that the railroad is monitoring that 
its engineers demonstrate their skills concerning the safe discharge of 
their train operation responsibilities. A railroad that intends to 
employ train operation event recorder tapes to comply with this 
monitoring requirement shall indicate in this section how it anticipates 
determining what person was at the controls and what signal indications 
or other operational constraints, if any, were applicable to the train's 
movement.

 Section 7 of the Submission: Procedures for Routine Administration of 
                   the Engineer Certification Program

    The final section of the request must contain a summary of how the 
railroad's program and procedures will implement the various specific 
aspects of the regulatory provisions that relate to routine 
administration of its certification program for locomotive engineers. At 
a minimum this section needs to address the procedural aspects of the 
rule's provisions identified in the following paragraph.
    Section 240.109 provides that each railroad must have procedures for 
review and comment on adverse prior safety conduct, but allows the 
railroad to devise its own system within generalized parameters. 
Sections 240.115, 240.117 and 240.119 require a railroad to have 
procedures for evaluating data concerning prior safety conduct as a 
motor vehicle operator and as railroad workers, yet leave selection of 
many details to the railroad. Sections 240.203, 240.217, and 240.219 
place a duty on the railroad to make a series of determinations but 
allow the railroad to select what procedures it will employ to assure 
that all of the necessary determinations have been made in a timely 
fashion; who will be authorized to conclude that person is or is not 
qualified; and how it will communicate adverse decisions. Documentation 
of the factual basis the railroad relied on in making determinations 
under Secs. 240.205, 240.207, 240.209, 240.211, and 240.213 is required, 
but these sections permit the railroad to select the procedures it will 
employ to accomplish compliance with these provisions. Sections 240.225 
and 240.227 permit reliance on qualification determinations made by 
other entities and permit a railroad latitude in selecting the 
procedures it will employ to assure compliance with these provisions. 
Similarly, Sec. 240.229 permits use of railroad selected procedures to 
meet the requirements for certification of engineers performing service 
in joint operations territory. Sections 240.301 and 240.307 allow a 
railroad a certain degree of discretion in complying with the 
requirements for replacing lost certificates or the conduct of 
certification revocation proceedings.
    This section of the request should outline in summary fashion the 
manner in which the railroad will implement its program so as to comply 
with the specific aspects of each of the rule's provisions described in 
preceding paragraph.

                               FRA Review

    The submissions made in conformity with this appendix will be deemed 
approved within 30 days after the required filing date or the actual 
filing date whichever is later. No

[[Page 664]]

formal approval document will be issued by FRA. The brief interval for 
review reflects FRA's judgment that railroads generally already have 
existing programs that will meet the requirements of this part. FRA has 
taken the responsibility for notifying a railroad when it detects 
problems with the railroad's program. FRA retains the right to 
disapprove a program that has obtained approval due to the passage of 
time as provided for in section Sec. 240.103.
    FRA initially proposed specifying the details for most aspects of 
the programs being submitted under this appendix. The proposed rule 
contained a distillation of the essential elements of pre-existing 
training, testing, evaluating, and monitoring programs that appear to 
result in railroads having locomotive engineers who operate locomotives 
and trains safely. The proposal contained very specific details for each 
aspect of the program that appeared to contribute to that result. Those 
details included such things as the duration of classes intended to 
teach operating rules as well as the interval and methodology for 
acquiring familiarization with physical characteristics of an engineer's 
operational territory. Railroads commenting on the proposed rule did not 
question the validity of the FRA's views concerning the essential 
elements of an effective program but did convince FRA that they should 
be given more discretion to formulate the design of their individual 
programs.
    Rather than establish rigid requirements for each element of the 
program as initially proposed, FRA has given railroads discretion to 
select the design of their individual programs within a specified 
context for each element. The proposed rule, however, provides a good 
guide to the considerations that should be addressed in designing a 
program that will meet the performance standards of this final rule. In 
reviewing program submissions, FRA will focus on the degree to which a 
particular program deviates from the norms identified in its proposed 
rule. To the degree that a particular program submission materially 
deviates from the norms set out in its proposed rule which was published 
in the Federal Register on December 11, 1989 (54 FR 50890), FRA's review 
and approval process will be focused on determining the validity of the 
reasoning relied on by a railroad for selecting its alternative approach 
and the degree to which the alternative approach is likely to be 
effective in producing locomotive engineers who have the knowledge, 
skill, and ability to safely operate trains.

 Appendix C to Part 240--Procedures for Obtaining and Evaluating Motor 
                       Vehicle Driving Record Data

    The purpose of this appendix is to outline the procedures available 
to individuals and railroads for complying with the requirements of 
section 4(a) of the Railroad Safety Improvement Act of 1988 and 
Secs. 240.109, 240.111 and 240.205 of this part. Those provisions 
require that railroads consider the motor vehicle driving record of each 
person prior to issuing him or her certification or recertification as a 
qualified locomotive engineer.
    To fulfill that obligation, a railroad must review a certification 
candidate's recent motor vehicle driving record. Generally, that will be 
a single record on file with the state agency that issued the 
candidate's current license. However, it can include multiple records if 
the candidate has been issued a motor vehicle driving license by more 
than one state agency. In addition, the railroad must determine whether 
the certification candidate is listed in the National Driver Register 
and, if so listed, to review the data that caused the candidate to be so 
listed.

            Access to State Motor Vehicle Driving Record Data

    The right of railroad workers, their employers, or prospective 
employers to have access to a state motor vehicle licensing agency's 
data concerning an individual's driving record is controlled by state 
law. Although many states have mechanisms through which employers and 
prospective employers such as railroads can obtain such data, there are 
some states in which privacy concerns make such access very difficult or 
impossible. Since individuals generally are entitled to obtain access to 
driving record data that will be relied on by a state motor vehicle 
licensing agency when that agency is taking action concerning their 
driving privileges, FRA places responsibility on individuals, who want 
to serve as locomotive engineers to request that their current state 
drivers licensing agency or agencies furnish such data directly to the 
railroad considering certifying them as a locomotive operator. Depending 
on the procedures adopted by a particular state agency, this will 
involve the candidate's either sending the state agency a brief letter 
requesting such action or executing a state agency form that 
accomplishes the same effect. It will normally involve payment of a 
nominal fee established by the state agency for such a records check. In 
rare instances, when a certification candidate has been issued multiple

[[Page 665]]

licenses, it may require more than a single request.

                      The National Driver Register

    In addition to seeking an individual state's data, each engineer 
candidate is required to request that a search and retrieval be 
performed of any relevant information concerning his or her driving 
record contained in the National Driver Register. The National Driver 
Register (NDR) is a system of information created by Congress in 1960. 
In essence it is a nationwide repository of information on problem 
drivers that was created in an effort to protect motorists. It is a 
voluntary State/Federal cooperative program that assists motor vehicle 
driver licensing agencies in gaining access to data about actions taken 
by other state agencies concerning an individual's motor vehicle driving 
record. The NDR is designed to address the problem that occurs when 
chronic traffic law violators, after losing their license in one State 
travel to and receive licenses in another State. Currently the NDR is 
maintained by the National Highway Traffic Safety Administration (NHTSA) 
of the Department of Transportation under the provisions of the National 
Driver Register Act (23 U.S.C. 401 note). Under that statute, state 
motor vehicle licensing authorities voluntarily notify NHTSA when they 
take action to deny, suspend, revoke or cancel a person's motor vehicle 
driver's license and, under the provisions of a 1982 change to the 
statute, states are also authorized to notify NHTSA concerning 
convictions for operation of a motor vehicle while under the influence 
of, or impaired by, alcohol or a controlled substance, and for traffic 
violations arising in connection with a fatal traffic accident, reckless 
driving or racing on the highway even if these convictions do not result 
in an immediate loss of driving privileges.
    The information submitted to NHTSA contains, at a minimum, three 
specific pieces of data: the identification of the state authority 
providing the information, the name of the person whose license is being 
affected, and the date of birth of that person. It may be supplemented 
by data concerning the person's height, weight, color of eyes, and 
social security account number, if a State collects such data.

                           Access to NDR Data

    Essentially only individuals and state licensing agencies can obtain 
access to the NDR data. Since railroads have no direct access to the NDR 
data, FRA requires that individuals seeking certification as a 
locomotive engineer request that an NDR search be performed and direct 
that the results be furnished to the railroad. FRA requires that each 
person request the NDR information directly from NHTSA unless the 
prospective operator has a motor vehicle driver license issued by a 
state motor vehicle licensing agency that is ``participating'' under the 
provisions of the National Driver Register Act of 1982. Participating 
states can directly access the NDR data on behalf of the prospective 
engineer. The state agencies that currently are authorized to access NDR 
data in that manner are identified in appendix D of this regulation.

                Requesting NHTSA to Perform the NDR Check

    The procedures for requesting NHTSA performance of an NDR check are 
as follows:
    1. Each person shall submit a written request to National Highway 
Traffic Safety Administration at the following address: Chief, National 
Driver Register, National Highway Traffic Safety Administration, 400 
Seventh Street, SW., Washington, DC 20590.
    2. The request must contain:
    (a) The full legal name;
    (b) Any other names used by the person (e.g., nickname or 
professional name);
    (c) The date of birth;
    (d) Sex;
    (e) Height;
    (f) Weight;
    (g) Color of eyes;
    (h) Driver's license number (unless that is not available).
    3. The request must authorize NHTSA to perform the NDR check and to 
furnish the results of the search directly to the railroad.
    4. The request must identify the railroad to which the results are 
to be furnished, including the proper name of the railroad, and the 
proper mailing address of the railroad.
    5. The person seeking to become a certified locomotive engineer 
shall sign the request, and that signature must be notarized.
    FRA requires that the request be in writing and contain as much 
detail as is available to improve the reliability of the data search. 
Any person may supply additional information to that being mandated by 
FRA. Furnishing additional information, such as the person's Social 
Security account number, will help to more positively identify any 
records that may exist concerning the requester. Although no fee is 
charged for such NDR checks, a minimal cost may be incurred in having 
the request notarized. The requirement for notarization is designed to 
ensure that each person's right to privacy is being respected and that 
records are only being disclosed to legally authorized parties.

           Requesting a State Agency to Perform the NDR Check

    As discussed earlier in connection with obtaining data compiled by 
the state agency itself, a person can either write a letter to that 
agency asking for the NDR check or can

[[Page 666]]

use the agency's forms for making such a request. If a request is made 
by letter the individual must follow the same procedures required when 
directly seeking the data from NHTSA. At present there are only a 
limited number of state licensing agencies that have the capacity to 
make a direct NDR inquiry of this nature. It is anticipated that the 
number of states with such capability will increase in the near future; 
therefore, FRA will continue to update the identification of such states 
by revising appendix D to this regulation to identify such state 
agencies. Since it would be more efficient for a prospective locomotive 
engineer to make a single request for both aspects of the information 
required under this rule, FRA anticipates that state agency inquiry will 
eventually become the predominant method for making these NDR checks. 
Requests to state agencies may involve payment of a nominal fee 
established by the state agency for such a records check.
    State agencies normally will respond in approximately 30 days or 
less and advise whether there is or is not a listing for a person with 
that name and date of birth. If there is a potential match and the 
inquiry state was not responsible for causing that entry, the agency 
normally will indicate in writing the existence of a probable match and 
will identify the state licensing agency that suspended, revoked or 
canceled the relevant license or convicted the person of one of the 
violations referenced earlier in this appendix.

                Actions When a Probable NDR Match Occurs

    The response provided after performance of an NDR check is limited 
to either a notification that no potential record match was identified 
or a notification that a potential record match was identified. If the 
latter event occurs, the notification will include the identification of 
the state motor vehicle licensing authority which possesses the relevant 
record. If the NDR check results indicate a potential match and that the 
state with the relevant data is the same state which furnished detailed 
data (because it had issued the person a driving license), no further 
action is required to obtain additional data. If the NDR check results 
indicate a potential match and the state with the relevant data is 
different from the state which furnished detailed data, it then is 
necessary to contact the individual state motor vehicle licensing 
authority that furnished the NDR information to obtain the relevant 
record. FRA places responsibility on the railroad to notify the engineer 
candidate and on the candidate to contact the state with the relevant 
information. FRA requires the certification candidate to write to the 
state licensing agency and request that the agency inform the railroad 
concerning the person's driving record. If required by the state agency, 
the person may have to pay a nominal fee for providing such data and may 
have to furnish written evidence that the prospective operator consents 
to the release of the data to the railroad. FRA does not require that a 
railroad or a certification candidate go beyond these efforts to obtain 
the information in the control of such a state agency, and a railroad 
may act upon the pending certification without the data if an individual 
state aqency fails or refuses to supply the records.
    If the non-issuing state licensing agency does provide the railroad 
with the available records, the railroad must verify that the record 
pertains to the person being considered for certification. It is 
necessary to perform this verification because in some instances only 
limited identification information is furnished for use in the NDR and 
this might result in data about a different person being supplied to the 
railroad. Among the available means for verifying that the additional 
state record pertains to the certification candidate are physical 
description, photographs and handwriting comparisons.
    Once the railroad has obtained the motor vehicle driving record 
which, depending on the circumstance, may consist of more than two 
documents, the railroad must afford the prospective engineer an 
opportunity to review that record and respond in writing to its contents 
in accordance with the provisions of Sec. 240.219. The review 
opportunity must occur before the railroad evaluates that record. The 
railroad's required evaluation and subsequent decision making must be 
done in compliance with the provisions of this part.

 Appendix D to Part 240--Identification of State Agencies That Perform 
                     National Driver Register Checks

    Under the provisions of Sec. 240.111 of this part, each person 
seeking certification or recertification as a locomotive operator must 
request that a check of the National Driver Register (NDR) be conducted 
and that the resulting information be furnished to his or her employer 
or prospective employer. Under the provisions of paragraphs (d) and (e) 
of Sec. 240.111, each person seeking certification or recertification as 
a locomotive engineer must request that National Highway Traffic Safety 
Administration conduct the NDR check, unless he or she was issued a 
motor vehicle driver license by one of the state agencies identified in 
this appendix. If the certification candidate received a license from 
one of the designated state agencies, he or she must request the state 
agency to perform the NDR check. The state motor vehicle licensing 
agencies listed in this appendix participate in a program that 
authorizes

[[Page 667]]

these state agencies, in accordance with the National Driver Register 
Act of 1982, to obtain information from the NDR on behalf of individuals 
seeking data about themselves. Since these state agencies can more 
efficiently supply the desired data and, in some instances, can provide 
a higher quality of information, FRA requires that certification 
candidates make use of this method in preference to directly contacting 
NHTSA.
    Although the number of state agencies that participate in this 
manner is limited, FRA anticipates that an increasing number of states 
will do so in the future. This appendix will be revised periodically to 
reflect current participation in the program. As of December 31, 1989, 
the motor vehicle licensing agencies of the following states participate 
under the provisions of the 1982 changes to the NDR Act: North Dakota, 
Ohio, Virginia, and Washington.

  Appendix E to Part 240--Recommended Procedures for Conducting Skill 
                            Performance Tests

    FRA requires (see Sec. 240.127 and Sec. 240.211) that locomotive 
engineers be given a skill performance test prior to certification or 
recertification and establishes certain criteria for the conduct of that 
test. Railroads are given discretion concerning the manner in which to 
administer the required testing. FRA has afforded railroads this 
discretion to allow individual railroad companies latitude to tailor 
their testing procedures to the specific operational realities. This 
appendix contains FRA's recommendations for the administration of skill 
performance testing that occurs during operation of an actual train. It 
can be modified to serve in instances where a locomotive simulator is 
employed for testing purposes. These recommended practices, if followed, 
will ensure a more thorough and systematic assessment of locomotive 
engineer performance.

                   The Need for a Systematic Approach

    There are numerous criteria that should be monitored when a 
designated supervisor of locomotive engineers is observing a person to 
determine whether that individual should be certified or recertified as 
a qualified locomotive engineer. The details of those criteria will vary 
for the different classes of service, types of railroads, and terrain 
over which trains are being operated. At a minimum, the attention of a 
designated supervisor of locomotive engineers should concentrate on 
several general areas during any appraisal. Compliance with the 
railroad's operating rules, including its safety directives and train 
handling rules, and compliance with Federal regulations should be 
carefully monitored. But, in order to effectively evaluate employees, it 
is necessary to have something against which to compare their 
performance. In order to hold a locomotive engineer accountable for 
compliance, a railroad must have adequate operating, safety and train 
handling rules. Any railroad that fails to have adequate operating, 
safety, or train handling rules will experience difficulty in 
establishing a objective method of measuring an individual's skill 
level. Any railroad that requires the evaluation of an individual's 
performance relative to its train handling rules needs to have 
established preferred operating ranges for throttle use, brake 
application, and train speed. The absence of such criteria results in 
the lack of a meaningful yardstick for the designated supervisor of 
locomotive engineers to use in measuring the performance of locomotive 
engineers. It also is essential to have a definite standard so that the 
engineer and any reviewing body can know what the certification 
candidate is being measured against.
    Evaluating the performance of certain train operation skills will 
tend to occur in all situations. For example, it would be rare for a 
designated supervisor of locomotive engineers to observe any operator 
for a reasonable period of time and not have some opportunity to review 
that engineer's compliance with some basic safety rules, compliance with 
basic operating rules, and performance of a brake test. As the 
complexity of the operation increases, so does the number of items that 
the operator must comply with. Higher speeds, mountainous terrain, and 
various signal systems place increased emphasis on the need for operator 
compliance with more safety, operating, and train handling rules. 
Accounting for such variables in any universal monitoring scheme 
immediately results in a fairly complex system.
    FRA therefore recommends that designated supervisors of locomotive 
engineers employ a written aid to help record events and procedures that 
as a minimum should be observed for when conducting a skills performance 
test. FRA is providing the following information to assist railroads in 
developing such a written aid so as to ensure meaningful testing. When 
conducting a skills performance test, a designated supervisor of 
locomotive engineers should be alert to the following:

    --Does the employee have the necessary books (Operating Rules, 
Safety Rules, Timetable, etc.)?
    --Are predeparture inspections properly conducted (Radio, Air Brake 
Tests, Locomotive, etc.)?
    --Does the employee comply with applicable safety rules?
    --Does the employee read the bulletins, general orders, etc.?
    --Enroute, does the employee:
    --Comply with applicable Federal Rules?
    --Monitor gauges?

[[Page 668]]

    --Properly use the horn, whistle, headlight?
    --Couple to cars at a safe speed?
    --Properly control in train slack and buff forces?
    --Properly use the train braking systems?
    --Comply with speed restrictions?
    --Display familiarity with the physical characteristics?
    --Comply with signal indications?
    --Respond properly to unusual conditions?
    --At the conclusion of the trip, does the employee:
    --Apply a hand brake to the locomotives?
    --Properly report locomotive defects?

    Obviously, the less sophisticated the railroad's operations are, the 
fewer the number of identified practices that would be relevant. Hence, 
this list should modified accordingly.

            The Need for Objectivity, Use of Observation Form

    It is essential that railroads conduct the performance skills 
testing in the most objective manner possible, whether this testing is 
the locomotive engineer's initial qualification testing or periodic 
retesting. There will always be some potential for the subjective views, 
held by the designated supervisor of locomotive engineers conducting the 
testing, to enter into evaluations concerning the competency of a 
particular individual to handle the position of locomotive engineer. 
Steps can be taken, and need to be taken, to minimize the risk that 
personality factors adversely influence the testing procedure.
    One way to reduce the entry of subjective matters into the 
qualification procedures is through the use of a document that specifies 
those criteria that the designated supervisor of locomotive engineers is 
to place emphasis on. The use of an observation form will reduce but not 
eliminate subjectivity. Any skill performance test will contain some 
amount of subjectivity. While compliance with the operating rules or the 
safety rules is clear in most cases, with few opportunities for 
deviation, train handling offers many options with few absolute right 
answers. The fact that an engineer applies the train air brakes at one 
location rather than a few yards away does not necessarily indicate a 
failure but a question of judgment. The use of dynamic braking versus 
air brakes at a particular location may be a question of judgment unless 
the carrier has previously specified the use of a preferred braking 
method. In any case the engineer's judgment, to apply or not apply a 
braking system at a given location, is subject to the opinion of the 
designated supervisor of locomotive engineers.
    A railroad should attempt to reduce or eliminate such subjectivity 
through use of some type of observation or evaluation. For railroads 
developing any evaluation form, the areas of concern identified earlier 
will not be relevant in all instances. Railroads that do not have 
sophisticated operations would only need a short list of subjects. For 
example, most smaller railroads would not require line items pertaining 
to compliance with signal rule compliance or the use of dynamic brakes. 
Conversely, in all instances the observation forms should include the 
time and location that the observer started and ended the observation. 
FRA believes that there should be a minimum duration for all performance 
skills examinations. FRA allows railroads to select a duration 
appropriate for their individual circumstances, requiring only that the 
period be ``of sufficient length to effectively evaluate the person.'' 
In exercising its discretion FRA suggests that the minimums selected by 
a railroad be stated in terms of a distance since the examination has to 
be of a sufficient duration to adequately monitor the operator's skills 
in a variety of situations. FRA also suggests that the format for the 
observation form include a space for recording the observer's comments. 
Provision for comments ideally would allow for the inclusion of 
``constructive criticism'' without altering the import of the evaluation 
and would permit subjective comments where merited.

          Appendix F to Part 240--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 Secs. 240.121 and 240,207.
    (2) In determining whether a person has the visual acuity that meets 
or exceeds the requirements of this part, the following testing 
protocols are deemed acceptable testing methods for determining whether 
a person has the ability to recognize and distinguish among the colors 
used as signals in the railroad industry. The acceptable test methods 
are shown in the left hand column and the criteria that should be 
employed to determine whether a person has failed the particular testing 
protocol are shown in the right hand column.

------------------------------------------------------------------------
             Accepted tests                      Failure criteria
------------------------------------------------------------------------
                     PSEUDOISOCHROMATIC PLATE TESTS
------------------------------------------------------------------------
American Optical Company 1965..........  5 or more errors on plates 1-
                                          15.

[[Page 669]]


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

    (3) In administering any of these protocols, the person conducting 
the examination should be aware that railroad signals do not always 
occur in the same sequence and that ``yellow signals'' do not always 
appear to be the same. It is not acceptable to use ``yarn'' or other 
materials to conduct a simple test to determine whether the 
certification candidate has the requisite vision. No person shall be 
allowed to wear chromatic lenses during an initial test of the person's 
color vision; the initial test is one conducted in accordance with one 
of the accepted tests in the chart and Sec. 240.121(c)(3).
    (4) An examinee who fails to meet the criteria in the chart, may be 
further evaluated as determined by the railroad's medical examiner. 
Ophthalmologic referral, field testing, or other practical color testing 
may be utilized depending on the experience of the examinee. The 
railroad's medical examiner will review all pertinent information and, 
under some circumstances, may restrict an examinee who does not meet the 
criteria from operating the train at night, during adverse weather 
conditions or under other circumstances. The intent of Sec. 240.121(e) 
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 operate a locomotive or train. 
Appropriate further medical evaluation could include providing another 
approved scientific screening test or a field test. All railroads should 
retain the discretion to limit the number of retests that an examinee 
can request but any cap placed on the number of retests should not limit 
retesting when changed circumstances would make such retesting 
appropriate. Changed circumstances would most likely occur if the 
examinee's medical condition has improved in some way or if technology 
has advanced to the extent that it arguably could compensate for a 
hearing or vision deficiency.
    (5) Engineers 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.

[64 FR 60996, Nov. 8, 1999]



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