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    Chief Counsel   
     
    [Code of Federal Regulations]
    [Title 49, Volume 4, Parts 200 to 399]
    [Revised as of October 1, 1998]
    From the U.S. Government Printing Office via GPO Access
    [CITE: 49CFR240]
    
    [Page 453-494]
     
                            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  Applicability.
    240.5  Construction.
    240.7  Definitions.
    240.9  Waivers.
    240.11  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.
    240.105  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.
    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.
    
    [[Page 454]]
    
    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.
    
             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
    
        Authority: 49 U.S.C. 20103, 20107 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 requirements for the 
    eligibility, training, testing, certification, and monitoring of all 
    locomotive engineers. This part does not restrict a railroad from 
    implementing additional or more stringent requirements for its 
    locomotive engineers that are 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.
    
    Sec. 240.3  Applicability.
    
        (a) This part applies to all railroads that operate locomotives on 
    standard gage track that is part of the general railroad system of 
    transportation.
        (b) This part does not apply to:
        (1) Rapid transit operations in an urban area that are not connected 
    with the general system of transportation; and
        (2) A railroad that operates only on track inside an installation 
    which is not part of the general railroad system of transportation.
    
    Sec. 240.5  Construction.
    
        (a) By issuance of these regulations, FRA intends to preempt any 
    State law, rule, regulation, order, or standard covering the same 
    subject matter in accordance with the provisions of section 205 of the 
    Federal Railroad Safety Act of 1970 (45 U.S.C. 434).
        (b) FRA does not intend by issuance of these regulations to preempt 
    any 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
    
    [[Page 455]]
    
    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 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.
    
    [56 FR 28254, June 19, 1991, as amended at 58 FR 19002, Apr. 9, 1993]
    
    Sec. 240.7  Definitions.
    
        As used in this part--
        Administrator means the Administrator of FRA, the Deputy 
    Administrator of FRA, or the delegate of either.
        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.
        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.
        Filing means that a document to be filed under this part shall be 
    deemed filed only upon receipt by the Docket Clerk.
        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 hi-rail 
    or specialized maintenance equipment
        (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:
    
    [[Page 456]]
    
        (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 year of experience in 
    transportation service on that railroad or another railroad.
        Railroad means all forms of non-highway ground transportation that 
    run on rails or electromagnetic guideways, including
        (1) Commuter or other short-haul rail passenger service in a 
    metropolitan or suburban area and
        (2) High speed ground transportation systems that connect 
    metropolitan areas, without regard to whether they use new technologies 
    not associated with traditional railroads.
    
    Such term does not include rapid transit operations within an urban area 
    that are not connected to the general railroad system of transportation.
        Railroad Officer means any supervisory employee of a railroad.
        Segment means any portion of a railroad assigned to the supervision 
    of one superintendent or equivalent transportation officer.
        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.
        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.
    
    [[Page 457]]
    
        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]
    
    Sec. 240.9  Waivers.
    
        (a) Any person may petition the Federal Railroad Administration for 
    a waiver of compliance with any requirement prescribed in this part.
        (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, he or she may 
    grant the waiver subject to any conditions he or she deems necessary.
    
    Sec. 240.11  Consequences for noncompliance.
    
        (a) Any person (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) 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, but 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. Appendix A is a statement 
    of policy that contains a schedule of civil penalty amounts used in 
    connection with this rule.
        (b) Any person (including a railroad and any manager, supervisor, 
    official, or other employee or agent of a railroad) 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) Any person (including a railroad and any manager, supervisor, 
    official, or other employee or agent of a railroad) who knowingly and 
    willfully falsifies any record required by this part may be subject to 
    criminal penalties under the provisions of 45 U.S.C. 438.
        (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]
    
    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.
        (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]
    
    [[Page 458]]
    
           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 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 and the following 
    schedule:
        (1) A Class I railroad (including National Railroad Passenger 
    Corporation) and a railroad providing commuter service shall submit no 
    later than November 15, 1991;
        (2) A Class II railroad shall submit no later than May 1, 1992; and
        (3) A Class III railroad (including a switching and terminal 
    railroad or any other railroad not otherwise classified) shall submit no 
    later than November 1, 1992.
        (4) A railroad commencing operations after the pertinent date 
    previously specified in this paragraph shall submit its 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 459]]
    
        (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.
    
    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.
    
    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.
        (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.
    
    [[Page 460]]
    
        (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 Sec. 240.109(h), each 
    person seeking certification or recertification under this part shall, 
    within 180 days preceding the date of the railroad's decision on 
    certification or recertification:
        (1) Take the actions required by paragraphs (b) through (h) 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
    
    [[Page 461]]
    
    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) The actions required for compliance with paragraph (a) of this 
    section shall be undertaken within the 180 days preceding the date of 
    the railroad's decision concerning certification or recertification.
    
    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 paragraph (b), (h), or 
    (i) of Sec. 240.201 or for persons covered by Sec. 240.109(h), each 
    person seeking certification or recertification under this part shall, 
    within 180 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.
    
    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,
    
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        (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) 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 certification 
    revoked.
        (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 paragraph (e) of this section that occurred 
    within a period of 60 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 paragraph.
        (e) A railroad shall consider violations of its operating rules and 
    practices that involve:
        (1) Failure to control a locomotive or train in accordance with a 
    signal indication 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 or by more than one half of the 
    authorized speed, whichever is less;
        (3) Failure to adhere to procedures for the safe use of train or 
    engine brakes when the procedures are required for compliance with the 
    transfer, initial, or intermediate terminal test provisions of 49 CFR 
    part 232 (see 49 CFR 232.12 and 232.13);
        (4) Occupying main track without proper authority;
        (5) Failure to comply with prohibitions against tampering with 
    locomotive mounted safety devices; and
        (6) Incidents of noncompliance with Sec. 219.101 of this chapter; 
    however such incidents shall be considered as a violation only for the 
    purposes of paragraphs (g)(2) and (3) of this section.
        (f) 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.
        (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 paragraphs (e)(1) 
    through (e)(5) of this section, the person shall be ineligible
    
    [[Page 463]]
    
    to hold a certificate for a period of one month.
        (ii) In the case of two separate incidents involving violations of 
    one or more of the operating rules on practices described in paragraph 
    (e) of this section that occurred within 36 months of each other, the 
    person shall be ineligible to hold a certificate for a period of one 
    year.
        (iii) In the case of more than two such violations in any 
    consecutive 60 month interval, the person shall be ineligible to hold a 
    certificate for a period of five years.
        (iv) Where, based on the occurrence of violations described in 
    subparagraph (e)(6) of this section, different periods of ineligibility 
    may result under the provisions of this section and Sec. 240.119, the 
    longer period of ineligibility shall control.
        (h) Future eligibility to hold certificate. Only a person whose 
    certification has been denied or revoked for a period of one year in 
    accordance with the provisions of paragraph (g)(2) of this section for 
    reasons other than noncompliance with Sec. 219.101 of this Chapter shall 
    be eligible for grant or reinstatement of the certificate prior to the 
    expiration of the initial period of ineligibility. Such a person shall 
    not be eligible for grant or reinstatement unless and until--
        (1) The person has been evaluated by a designated supervisor of 
    locomotive engineers and determined to have received adequate remedial 
    training;
        (2) 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
        (3) At least one half the pertinent period of ineligibility 
    specified in paragraph (g)(2) of this section has elapsed.
        (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 (effective date of this amendment);
        (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 as it read prior to May 10, 1993; and
        (4) Would not be a violation of paragraph (e) of this section as 
    amended.
    
    [56 FR 28254, June 19, 1991, as amended at 58 FR 19003, Apr. 9, 1993]
    
    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
    
    [[Page 464]]
    
    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 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
    
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    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 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. A person who does not have visual acuity 
    and hearing acuity that meets or exceeds the levels prescribed in this 
    section shall not, except as permitted by paragraph (e) of this section, 
    currently be certified as a locomotive engineer.
        (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 
    signals.
        (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 may be subject to further medical evaluation by a 
    railroad's medical examiner to determine that person's ability to safely 
    operate a locomotive. If the medical examiner concludes that, despite 
    not meeting the threshold(s), 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.
    
    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
    
    [[Page 466]]
    
    equipment, methods of safe train handling (including familiarity with 
    physical characteristics), 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.
    
    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;
    
    [[Page 467]]
    
        (2) Conducted by a designated supervisor of locomotive engineers;
        (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
        (3) The factors observed and relied on for evaluation purposes by 
    the designated supervisor.
    
    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;
        (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
    
    [[Page 468]]
    
    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.
    
             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 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
    
    [[Page 469]]
    
    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:
        (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
    
    [[Page 470]]
    
    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.
        (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.
    
    [[Page 471]]
    
        (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;
        (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) The person is familiar with the physical characteristics of the 
    railroad or its pertinent segments.
    
    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
    
    [[Page 472]]
    
    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:
        (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 180 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 180 days 
    before the date of the railroad's certification decision;
        (3) A determination concerning demonstrated knowledge and the 
    knowledge examination being relied on was conducted more than 360 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 
    360 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 12 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]
    
    [[Page 473]]
    
    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 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 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.
    
    [[Page 474]]
    
        (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]
    
    Sec. 240.225  Reliance on qualification determinations made by other 
              railroads.
    
        After December 31, 1991, any 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. A railroad relying on another's certification shall 
    determine that:
        (a) The prior certification is still valid in accordance with the 
    provisions of Secs. 240.201, 240.217, and 240.307;
        (b) The prior certification was for the same classification of 
    locomotive or train service being issued under this section;
        (c) The person has received training on and visually observed the 
    physical characteristics of the new territory in accordance with 
    Sec. 240.123;
        (d) The person has demonstrated the necessary knowledge concerning 
    its operating rules in accordance with Sec. 240.125.
        (e) The person has demonstrated the necessary performance skills 
    concerning its operating rules in accordance with Sec. 240.127.
    
    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) If the controlling railroad relies on the certification issued 
    by another railroad, the controlling railroad shall determine:
        (1) That the person has been certified as a qualified engineer under 
    the provisions of this part by the railroad which employs that 
    individual;
        (2) 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;
        (3) That the person certified as a locomotive engineer by the other 
    railroad has the necessary operating skills concerning the joint 
    operations territory; and
        (4) 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.
        (d) A railroad that controls joint operations and certifies 
    locomotive engineers from a different railroad may
    
    [[Page 475]]
    
    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]
    
             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;
    
    [[Page 476]]
    
        (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 at a speed that 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;
        (2) Operate a locomotive or train past any signal, without 
    completely stopping the locomotive or train, when that signal requires a 
    complete stop before passing it; or
        (3) Fail to comply with any mandatory directive concerning the 
    movement of a locomotive or train by occupying a segment of main track 
    without authority.
        (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]
    
    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, provide notice of the 
    reason for this suspension, the pending revocation, and an opportunity 
    for hearing before a presiding officer other than the charging official;
        (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.
    
    [[Page 477]]
    
        (c) Except as provided for in paragraphs (d) and (f) 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 
    charging 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) At the close of the record, the presiding officer shall prepare 
    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 the presiding officer for the hearing shall make separate 
    findings as to the revocation required under this section.
        (f) A person may waive the right to the hearing provided under this 
    section. That waiver shall:
        (1) Be made in writing;
        (2) Reflect the fact that the person has knowledge and understanding 
    of these rights and voluntarily surrenders them; and
        (3) Be signed by the person making the waiver.
        (g) A railroad that has relied on the certification by another 
    railroad under the provisions of 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.
    
    [[Page 478]]
    
        (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.
    
    [58 FR 19004, Apr. 9, 1993, as amended at 60 FR 53137, Oct. 12, 1995]
    
    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 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, the nature of detected poor safety 
    conduct shall be capable of segregation for study and evaluation 
    purposes in the following manner:
        (1) Incidents involving noncompliance with part 218;
        (2) Incidents involving noncompliance with part 219;
        (3) Incidents involving noncompliance with part 232;
        (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 
    that requires a complete stop before passing it;
        (6) Incidents involving noncompliance with the railroad's operating 
    practices including train handling procedures resulting in improper use 
    of dynamic brakes;
        (7) Incidents involving noncompliance with the railroad's operating 
    practices (including train handling procedures) resulting in improper 
    use of automatic brakes;
        (8) Incidents involving noncompliance with the railroad's operating 
    practices (including train handling procedures) resulting in improper 
    use of a locomotive's independent brake;
        (9) Incidents involving noncompliance with the railroad's operating 
    practices (including train handling procedures) resulting in excessive 
    in-train force levels; and
        (10) Incidents involving noncompliance with the railroad's operating 
    practices that require operation of a train at a speed that permits 
    stopping within less than the engineers range of vision.
        (e) 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 reflects 
    incidents requiring an FRA accident/incident report; and
    
    [[Page 479]]
    
        (3) The number of incidents within that total which were detected as 
    a result of a scheduled operational monitoring effort.
        (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 or other body for the resolution of disputes duly constituted 
    under the provisions of the Railway Labor Act.
    
                    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, Federal Railroad 
    Administration, 400 Seventh Street SW., 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.
    
    [[Page 480]]
    
        (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 180 days after the date of the railroad's 
    revocation decision will be denied as untimely.
    
    Sec. 240.405  Processing qualification review petitions.
    
        (a) Each petition shall be acknowledged in writing by FRA and the 
    acknowledgement shall contain the docket number assigned to the 
    petition.
        (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 30 days to 
    submit to FRA any information that the railroad considers pertinent to 
    the petition.
        (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.
        (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.
    
    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 file 
    with the Docket Clerk a written request within 20 days of service of the 
    Board's decision on that party.
        (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]
    
    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
    
    [[Page 481]]
    
    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 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
    
    [[Page 482]]
    
    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.
        (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
    
    [[Page 483]]
    
        (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 affirm, reverse, alter or modify the 
    decision of the presiding officer and the Administrator's decision 
    constitutes final agency action.
    
    [56 FR 28254, June 19, 1991, as amended at 60 FR 53138, Oct. 12, 1995]
    
             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
    240.105--Failure to have adequate procedure for
     selection of supervisors.......................       2,500       5,000
    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
       eligibility..................................       2,500       5,000
      (e) Considering excluded data.................       2,000       4,000
      (f,g) Failure to provide timely review
       opportunity..................................       2,000       4,000
    240.111--Furnishing Motor Vehicle Records
      (a) Failure to action required to make
       information available........................       1,000       2,000
      (b) Failure to request
        (1) local record............................       1,000       2,000
        (2) NDR record..............................       1,000       2,000
      (f) Failure to request additional record......       1,000       2,000
      (e) Failure to notify of absence of license...         750       1,500
      (h) Failure to submit request in timely manner         750       1,500
    240.113--Furnishing prior employment information
      (a) Failure to take action required to make
       information available........................       1,000       2,000
      (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-d) Failure to have adequate program or
       procedure....................................       2,500       5,000
    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
       procedure....................................       2,500       5,000
    240.121--Failure to have adequate procedure for
     determining acuity.............................       2,500       5,000
    240.123--Failure to have
      (a) adequate procedures for continuing
       education....................................       2,500       5,000
      (b) adequate procedures for training new
       engineers....................................       2,500       5,000
    
    [[Page 484]]
    
    
    240.125--Failure to have
      (a) adequate procedures for testing knowledge.       2,500       5,000
      (d) adequate procedures for documenting
       testing......................................       2,500       5,000
    240.127--Failure to have
      (a) adequate procedures for evaluatinq skill
       performance..................................       2,500       5,000
      (c) adequate procedures for documentinq skills
       testing......................................       2,500       5,000
    240.129--Failure to have
      (a-b) adequate procedures for monitoring
       performance..................................       2,500       5,000
    Subpart C--Implementation of the Process
    240.201--Schedule for implementation
      (a) Failure to select supervisors by specified
       date.........................................       1,000       2,000
      (b) Failure to identify grandfathered
       engineers....................................       2,000       4,000
      (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
       subpart C....................................       2,500       5,000
      (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
         remedies...................................       2,500       5,000
      (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
       proper acuity................................       1,000       2,000
      (c) Acuity examinations performed by
       unauthorized person..........................       1,000       2,000
      (d) Failure to note need for device to achieve
       acuity.......................................       1,000       2,000
      (e) Failure to use device needed for proper
       acuity.......................................       1,000       2,000
    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
       failure......................................       2,500       5,000
    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
      (e) Allowing person to operate despite test
       failure......................................       2,500       5,000
    240.213--Completion of approved training program
      (a) Failure to properly determine.............       2,500       5,000
      (b) Failure to document successful program
       completion...................................       2,000       4,000
    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
       for comment..................................       2,000       4,000
      (c) Failure to notify, provide data, or
       untimely notification........................       2,000       4,000
    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
       authority....................................         500       1,000
      (d) Falsification of certificate..............         (-)      10,000
    240.225--Railroad Relying on Determination of
     Another
      (a) Reliance on expired certification.........       2,500       5,000
      (b) Reliance on wrong class of service........       2,500       5,000
    
    [[Page 485]]
    
    
      (c) Failure to familiarize person with new
       operational territory........................       2,000       4,000
      (d) Failure to determine knowledge............       2,000       4,000
    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
         requirements...............................       1,000       2,000
      (b) Canadian railroad reliance
        (1) on person not employed..................       1,000       2,000
        (2) on person who fails to meet Canadian
         requirements...............................       1,000       2,000
    240.229--Railroad Controlling Joint Operation
     Territory
      (a) Allowing uncertified person to operate....       2,000       4,000
      (b) Certifying without making determinations
       or relying on another railroad...............       2,500       5,000
      (c) Certifying without determining
        (1) certification status....................       2,500       5,000
        (2) knowledge...............................       2,500       5,000
        (3) skills..................................       2,500       5,000
        (4) familiarity with physical
         characteristics............................       2,000       4,000
      (d) Failure to provide qualified person.......       2,000       4,000
    Subpart D--Program Administration
    240.301--Failure to have system for certificate
     replacement                                           2,000       4,000
    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) control of speed........................       2,500       5,000
        (2) passing of stop signal..................       2,500       5,000
        (3) occupancy of main track without
         authority..................................       2,500       5,000
      (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 of
       limitations or railroad requiring engineer to
       exceed limitations...........................       4,000       8,000
      (d) Failure of engineer to notify railroad of
       denial or revocation.........................       4,000       8,000
    240.307--Revocation of certification
      (a) Failure to withdraw person from service...       2,500       5,000
      (b) Failure to notify, provide hearing
       opportunity; or untimely procedures..........       2,000       4,000
    240.309--Oversight responsibility report
      (a) Failure to report or to report on time....         500       1,000
      (b-f) 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]
    
       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
    
    [[Page 486]]
    
    portion of the program being discussed. Requests should be submitted in 
    writing on standard sized paper (8-1/2 x 11) 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).
    
      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
    
    [[Page 487]]
    
    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 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
    
    [[Page 488]]
    
    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 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.
    
    [[Page 489]]
    
     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 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
    
    [[Page 490]]
    
    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 
    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.
    
    [[Page 491]]
    
                    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 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.
    
    [[Page 492]]
    
        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 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,
    
    [[Page 493]]
    
    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?
        --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
    
    [[Page 494]]
    
    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.
    
    
    
    
       
     
     
     
     
     
     
     
     
     
     
     
     
     
     
     
     
     
     
     
    http://www.fra.dot.gov/o/counsel/regs/cfr/part/49CFR240v1.htm