(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, 1200 New Jersey Avenue SE., Washington, DC 20590 and with the Docket Clerk, U.S. Department of Transportation, Docket Operations (M-30), West Building Ground Floor, Room W12-140, 1200 New Jersey Avenue SE., Washington, DC 20590. A copy of the appeal shall be served on each party. The appeal shall set forth objections to the presiding officer's decision, supported by reference to applicable laws and regulations and with specific reference to the record. If no appeal is timely filed, the presiding officer's decision constitutes final agency action.
(b) A party may file a reply to the appeal within 25 days of service of the appeal. The reply shall be supported by reference to applicable laws and regulations and with specific reference to the record, if the party relies on evidence contained in the record.
(c) The Administrator may extend the period for filing an appeal or a response for good cause shown, provided that the written request for extension is served before expiration of the applicable period provided in this section.
(d) The Administrator has sole discretion to permit oral argument on the appeal. On the Administrator's own initiative or written motion by any party, the Administrator may grant the parties an opportunity for oral argument.
(e) The Administrator may remand, vacate, affirm, reverse, alter or modify the decision of the presiding officer and the Administrator's decision constitutes final agency action except where the terms of the Administrator's decision (for example, remanding a case to the presiding officer) show that the parties' administrative remedies have not been exhausted.
(f) An appeal from an Operating Crew Review Board decision pursuant to Sec. 242.503(d) must be filed within 35 days of issuance of the decision with the Federal Railroad Administrator, 1200 New Jersey Avenue SE., Washington, DC 20590 and with the Docket Clerk, U.S. Department of Transportation, Docket Operations (M-30), West Building Ground Floor, Room W12-140, 1200 New Jersey Avenue SE., Washington, DC 20590. A copy of the appeal shall be served on each party. The Administrator may affirm or vacate the Board's decision, and may remand the petition to the Board for further proceedings. An Administrator's decision to affirm the Board's decision constitutes final agency action.
Sec. Appendix A to Part 242--Schedule of Civil Penalties \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 $100,000 for any violation where circumstances warrant. See 49 CFR part 209, Appendix A. ------------------------------------------------------------------------
Willful
Section Violation violation------------------------------------------------------------------------Subpart B--Program and Eligibility
Requirements:
242.101--Program failures:
(a) Failure to have program..... $10,000 $20,000
(a)(1)-(6) Program that 2,500 5,000
(1)-(6) Program that 2,500 5,000
fails to address a subject.
242.103--Program approval:
(a)-(b) Failure to follow 1,000 2,000
Appendix B.....................
(c) Failure to comply with 1,000 2,000
filing requirements............
(h) to resubmit, when directed 1,000 2,000
by FRA.........................
242.105--Schedule for
implementation:
(a)-(b) Failure to designate 2,000 4,000
conductors.....................
(c) Allowing uncertified person 7,500 15,000
to serve as conductor..........
(d)-(e) Certifying without 2,500 5,000
complying with subpart B or
failure to issue a certificate.
(f) Serving as a conductor 7,500 15,000
without complying with subpart
B or being issued a certificate
242.107--Types of service:
(a) Failure to designate types 2,000 4,000
of service.....................
(c) Reclassifying a certificate. 2,500 5,000
242.109--Certification and
recertification determinations:
(a) Failure to determine in 2,500 5,000
writing the requirements of
(a)(1), (a)(2), (a)(3), and/or
(1), (a)(2), (a)(3), and/or
(a)(4).........................
(4).........................
(b) Considering excluded data... 2,000 4,000
(c) Failure to have required 1,000 2,000
documents on file..............
(d), (e) Failure to provide 2,000 4,000
timely review opportunity......
242.111--Motor vehicle operator
records:
(a) Failure to implement program 6,000 ..............
meeting requirements...........
(b) Failure to determine 5,000 7,500
eligibility requirements met...
(c) Failure to initially certify 2,000 4,000
(d) Failure to recertify........ 2,000 4,000
(e) Allowing person to serve as 7,500 15,000
conductor before information is
evaluated......................
(f) Failure to certify or 2,000 4,000
certify during pendency of
waiver request.................
(g) Failure to take action to 1,000 2,000
make information available.....
(h), (i), (j) Failure to request 1,000 2,000
record.........................
(k) Failure to notify of absence 1,000 2,000
of license.....................
(l) Failure to report in timely 1,000 2,000
manner or railroad taking
certification action for not
reporting earlier than 48 hours
(m), (n) Considering excluded 2,000 4,000
data...........................
(o) Failure to: .............. ..............
(1) Consider data........... 6,000 10,000
(3), (4) Properly act in 2,500 5,000
response to data...........
242.113--Prior safety conduct:
(a) Failure to implement program 6,000 ..............
meeting requirements...........
(b) Failure to determine 5,000 7,500
eligibility requirements met...
(c) Failure to request record or 2,000 2,000
take required action...........
242.115--Substance abuse/rules:
(a) Failure to implement program 6,000 ..............
meeting requirements...........
(b) Failure to determine 5,000 7,500
eligibility requirements met...
(c) Failure to have basis for 2,500 5,000
taking action..................
(d)-(g) Failure to comply with 2,500 5,000
requirements...................
242.117--Vision and hearing acuity:
(a) Failure to implement program 6,000 ..............
meeting requirements...........
(b) Failure to determine 5,000 7,500
eligibility requirements met...
(c) Failure to have basis for 1,000 2,000
finding proper acuity..........
(d) Acuity examination performed 1,000 2,000
by unauthorized person.........
(e) Failure to note need for 1,000 2,000
device to achieve acuity.......
(f) Failure to use device needed 1,000 2,000
for proper acuity..............
(h)-(j) Failure to comply with 2,500 5,000
requirements...................
(k) Failure of conductor to 2,500 5,000
notify.........................
242.119--Training:
(a) Failure to implement program 6,000 ..............
meeting requirements...........
(b) Failure to determine 5,000 7,500
eligibility requirements met...
(c) Failure to determine in 2,500 5,000
writing the requirements of
(c)(1), (c)(2), and/or (c)(3)..
(1), (c)(2), and/or (c)(3)..
(d) Failure to:
(1) Make determination, 2,500 5,000
include proper curriculum,
and/or document knowledge
and ability................
(2) Failure to include 1,000 2,000
component..................
(3) Failure to make 1,000 2,000
information available......
(4) Failure to maintain 1,000 2,000
steps or tasks in one
manual or make available...
(5) Failure to review and 1,000 2,000
modify training plan.......
(e) Failure to require person to 2,500 5,000
meet requirements..............
(f) Failure to provide 1,000 2,000
opportunity to consult.........
(g)-(k) Failure to have adequate 2,500 5,000
procedures or include
procedures in program..........
(l) Failure to have adequate 2,500 5,000
procedures for or provide
continuing education...........
242.121--Knowledge testing:
(a) Failure to implement program 6,000 ..............
meeting requirements...........
(b) Failure to determine 5,000 7,500
eligibility requirements met...
(c) Failure to have adequate 2,500 5,000
procedures for testing
knowledge......................
(d) Failure to properly document 2,500 5,000
testing........................
(e) Failure to provide 2,500 5,000
opportunity to consult.........
(f) Failure to document whether 2,500 5,000
test was passed or failed......
(g) Allowing person to serve as 2,500 5,000
a conductor despite test
failure........................
242.123--Monitoring operational
performance:
(a)-(b) Failure to implement 6,000 ..............
program meeting requirements...
(c) Failure to test each 2,500 5,000
conductor annually.............
(d) Failure to test properly.... 2,500 5,000
(e) Failure to indicate the 2,500 5,000
action to be take..............
(f) Failure to test within time 2,500 5,000
limits.........................
242.125--Reliance on determination
of another:
(a) Failure to address in 5,000 7,500
program or require newly hired
conductor to take entire
training program...............
(b) Failure to make any required 2,500 5,000
determinations.................242.127--Relying on requirements of a
country:
(a)-(b) Failure to determine 2,500 5,000
person employed and meets
Canadian standards.............Subpart C--Administration of the
Certification Program:
242.201--Time limitations:
(a), (c), and (d) Exceeding time 2,000 4,000
limit..........................
242.203--Supporting information:
(a), (c)-(e) Failure to have a 2,500 5,000
record.........................
(b) Failure to have a complete 2,000 4,000
record.........................
(f) Falsification of a record... (-) 10,000
(g) Failure to comply with 2,000 4,000
requirements if records
maintained electronically......
242.205--Identification of persons:
(a)-(b) Failure to have a record 2,500 5,000
(c) Failure to update or make a 2,000 4,000
record available...............
(d) Falsification of a record... (-) 10,000
(e) Failure to comply with 2,000 4,000
requirements if records
maintained electronically......
242.207--Certificate components:
(a) Improper certificate........ 1,000 2,000
(b) Failure to designate those 1,000 2,000
with signing authority.........
(d) Falsification of a (-) 10,000
certificate....................
242.209--Maintenance of the
certificate:
(a) Failure of conductor to 1,000 2,000
carry certificate or display
certificate when requested.....
(b) Failure of conductor to 4,000 8,000
notify railroad of limitations
or railroad requiring conductor
to exceed limitations..........
242.211--Replacement of
certificates:
(a) Failure to have a reasonably 2,000 4,000
accessible system for
certificate replacement........
(b) Failure to comply with 1,000 2,000
requirements for temporary
replacement certificates.......
242.213--Multiple certifications:
(d) Allowing an engineer to 7,500 15,000
operate without a conductor
where the engineer is not
certified as a conductor or not
accompanied by a certified
conductor......................
(e) Failure to comply with 2,500 5,000
emergency restrictions.........
(f) Failure of conductor to 4,000 8,000
notify railroad of denial or
revocation.....................
(g) Performing conductor service 7,500 15,000
with a revoked conductor
certificate....................
(h), (k) Performing work as an 7,500 15,000
engineer or obtaining an
engineer certificate with a
conductor certification revoked
for a violation of
242.403(e)(1)-(e)(5) or (e)(12)
(i), (j) Performing work as a 7,500 15,000
conductor or obtaining a
conductor certificate with an
engineer certification revoked
under 240.307..................
(l) Denying or revoking engineer 4,000 8,000
certification or
recertification based solely on
the denial of conductor
certification..................
(m) Denying or revoking 4,000 8,000
conductor certification or
recertification based solely on
the denial of engineer
certification..................
242.215--Oversight responsibility:
(a) Failure to perform annual 2,000 4,000
review and analysis or perform
on time........................
(b)-(i) Incomplete or inaccurate 2,500 5,000
report.........................Subpart D--Territorial Qualification and
Joint Operations
242.301--Territorial qualification:
(a) Allowing uncertified person 7,500 15,000
or person not territorially
qualified to serve as a
conductor......................
(b) Failure to notify railroad 4,000 8,000
of lack of qualifications......
(c) Failure to provide required 4,000 8,000
assistance.....................
(d) Failure to provide 4,000 8,000
assistance or up-to-date job
aid............................Subpart E--Denial and Revocation of
Certification
242.401--Denial of certification:
(a) Failure to notify or provide 2,000 4,000
opportunity for comment........
(c) Failure to notify, provide 2,000 4,000
data, or untimely notification.
242.403--Revocation criteria:
(a) Failure to implement program 6,000 ..............
meeting requirements...........
(b) Unlawful failure to comply 2,500 5,000
with rules and practices.......
(c) Failure to revoke 2,500 5,000
certification..................
(d) Considering excluded data... 2,500 5,000
(e) Considering unlisted 2,500 5,000
violations of operating rules
and practices..................
(f) Improperly counting or 2,500 5,000
considering violations.........
242.405--Periods of ineligibility:
(a)-(c) Imposition of incorrect 2,500 5,000
period of ineligibility........
242.407--Revocation of
certification:
(a) Failure to revoke 7,500 15,000
certification..................
(b) Failure to suspend, notify, 2,500 5,000
provide hearing opportunity, or
improper procedures............
(c)-(h) Failure of railroad to 2,500 5,000
comply with hearing or waiver
procedures.....................
(j) Failure of railroad to make 1,000 2,000
record.........................
(k) Failure of railroad to 5,000 10,000
conduct reasonable inquiry or
make good faith determination..------------------------------------------------------------------------\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 $105,000 for any violation where circumstances warrant. See 49
CFR part 209, appendix A. [76 FR 69841, Nov. 9, 2011, as amended at 77 FR 24423, Apr. 24, 2012]
Sec. Appendix B to Part 242--Procedures for Submission and Approval of
Conductor Certification 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 conductor in accordance with the requirements of this part. It also contains guidance on how FRA will exercise its review and approval responsibilities.
Submission by a Railroad
As provided for in Sec. 242.101, each railroad must have a program for determining the certification of each person it permits or requires to perform as a conductor or as a passenger conductor. Each railroad must submit its individual program to FRA for approval as provided for in Sec. 242.103. Each program must be accompanied by a request for approval organized in accordance with this appendix. Requests for approval must contain appropriate references to the relevant portion of the program being discussed. Requests should be submitted in writing on standard sized paper (8\1/2\ x 11) and can be in letter or narrative format. The railroad's submission shall be sent to the Associate Administrator for Railroad Safety/Chief Safety Officer, FRA. The mailing address for FRA is 1200 New Jersey Avenue SE., Washington, DC 20590. Simultaneous with its filing with the FRA, each railroad must serve a copy of its submission on the president of each labor organization that represents the railroad's employees subject to this part.
Each railroad is authorized to file by electronic means any program submissions required under this part. Prior to any person submitting a railroad's first program submission electronically, the person shall provide the Associate Administrator with the following information in writing:
(1) The name of the railroad;
(2) The names of two individuals, including job titles, who will be the railroad's points of contact and will be the only individuals allowed access to FRA's secure document submission site;
(3) The mailing addresses for the railroad's points of contact;
(4) The railroad's system or main headquarters address located in the United States;
(5) The email addresses for the railroad's points of contact; and
(6) The daytime telephone numbers for the railroad's points of contact.
A request for electronic submission or FRA review of written materials shall be addressed to the Associate Administrator for Railroad Safety/Chief Safety Officer, Federal Railroad Administration, 1200 New Jersey Avenue SE., Washington, DC 20590. Upon receipt of a request for electronic submission that contains the information listed above, FRA will then contact the requestor with instructions for electronically submitting its program.
A railroad that electronically submits an initial program or new portions or revisions to an approved program required by this part shall be considered to have provided its consent to receive approval or disapproval notices from FRA by email. FRA may electronically store any materials required by this part regardless of whether the railroad that submits the materials does so by delivering the written materials to the Associate Administrator and opts not to submit the materials electronically. A railroad that opts not to submit the materials required by this part electronically, but provides one or more email addresses in its submission, shall be considered to have provided its consent to receive approval or disapproval notices from FRA by email or mail.
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 certified conductors or recertify only conductors previously certified by other railroads. See Sec. 242.103(b).
If a railroad elects not to provide initial conductor training, the railroad is obligated to state so in its submission. A railroad that makes this election will be limited to recertifying persons initially certified by another railroad. A railroad that makes this election can rescind it by obtaining FRA approval of a modification of its program. See Sec. 242.103(f).
If a railroad elects to accept responsibility for training persons not previously trained to be conductors, 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 types of service the railroad will employ. See Sec. 242.107.
Section 2 of the Submission: Training Persons Previously Certified
The second section of the request must contain information concerning the railroad's program for training previously certified conductors. As provided for in Sec. 242.119(l) each railroad must have a program for the ongoing education of its conductors to assure that they maintain the necessary knowledge concerning operating rules and practices, familiarity with physical characteristics, and relevant Federal safety rules.
Section 242.119(l) 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 conductors remain knowledgeable concerning the safe discharge of their responsibilities so as to comply with the performance standard set forth in Sec. 242.119(l). This section must contain sufficient detail to permit effective evaluation of the railroad's training program in terms of the subject matter covered, the frequency and duration of the training sessions, the training environment employed (for example, use of classroom, use of computer based training, use of film or slide presentations, and use of on-job-training) and which aspects of the program are voluntary or mandatory.
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, conductors need to have their fundamental knowledge of operating rules and procedures 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 ensure that conductors remain knowledgeable about the territory over which a conductor is authorized to perform but from which the conductor 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 conductors are authorized to work over.
In addition to stating how long a conductor must be absent from a territory before their qualification on the physical characteristics of the territory expires, railroads must also state in their programs the number of times a person must pass over a territory per year to be considered to have ``regularly traversed'' a territory for purposes of Sec. 242.301(c). Since territories differ in their complexity, railroads will be given discretion to determine how many times a conductor must pass over a territory to be considered to have ``regularly traversed'' a territory.
Section 3 of the Submission: Testing and Evaluating Persons Previously
Certified
The third section of the request must contain information concerning the railroad's program for testing and evaluating previously certified conductors. As provided for in Sec. 242.121, each railroad must have a program for the ongoing testing and evaluating of its conductors to assure that they have the necessary knowledge and skills concerning operating rules and practices, familiarity with physical characteristics of the territory, and relevant Federal safety rules. Similarly, each railroad must have a program for ongoing testing and evaluating to assure that its conductors have the necessary vision and hearing acuity as provided for in Sec. 242.117.
Section 242.121 requires 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 performance as a conductor. Section 242.121 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) Safety and operating rules; (ii) timetable instructions; (iii) physical characteristics of the territory; and (iv) compliance with all applicable Federal regulations. The test must accurately measure the person's knowledge of all of these areas.
Section 242.121 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 conductors will demonstrate their knowledge concerning the safe discharge of their responsibilities so as to comply with the performance standard set forth in Sec. 242.121.
Section 242.117 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 perform as a conductor. 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 perform as a conductor.
Section 4 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 conductors, the fourth section of the request must contain information concerning the railroad's program for educating, testing, and evaluating persons not previously trained as conductors. As provided for in Sec. 242.119(d), a railroad that is issuing an initial certification to a person to be a conductor must have a program for the training, testing, and evaluating of its conductors to assure that they acquire the necessary knowledge and skills concerning operating rules and practices, familiarity with physical characteristics of the territory, and relevant Federal safety rules.
Section 242.119 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 conductors will acquire sufficient knowledge and skill and demonstrate their knowledge and skills concerning the safe discharge of their 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 conductors 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 territory, must indicate how the student will be provided with the required familiarization with the physical characteristics for its territory.
Section 5 of the Submission: Monitoring Operational Performance by
Certified Conductors
The fifth section of the request must contain information concerning the railroad's program for monitoring the operation of its certified conductors. As provided for in Sec. 242.123, each railroad must have a program for the ongoing monitoring of its conductors to assure that they perform in conformity with the railroad's operating rules and practices and relevant Federal safety rules.
Section 6 of the Submission: Procedures for Routine Administration of
the Conductor 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 conductors. At a minimum this section needs to address the procedural aspects of the rule's provisions identified in the following paragraph.
Section 242.109 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 242.111, 242.115 and 242.403 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 242.109, 242.201, and 242.401 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 will or will be not certified; and how it will communicate adverse decisions. Documentation of the factual basis the railroad relied on in making determinations under Secs. 242.109, 242.117, 242.119 and 242.121 is required, but these sections permit the railroad to select the procedures it will employ to accomplish compliance with these provisions. Sections 242.125 and 242.127 permit reliance on certification/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. 242.301 permits the use of railroad selected procedures to meet the requirements for certification of conductors performing service in joint operations territory. Sections 242.211 and 242.407 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 the 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. 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. 242.103.
Rather than establish rigid requirements for each element of the program, FRA has given railroads discretion to select the design of their individual programs within a specified context for each element. The 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 rule.
In reviewing program submissions, FRA will focus on the degree to which a particular program deviates from the norms identified in its rule. To the degree that a particular program submission materially deviates from the norms set out in its rule, 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 conductors who have the knowledge and ability to safely perform as conductors. [76 FR 69841, Nov. 9, 2011, as amended at 77 FR 6491, Feb. 8, 2012]
Sec. Appendix C to Part 242--Procedures for Obtaining and Evaluating
Motor Vehicle Driving Record Data
The purpose of this appendix is to outline the procedures available to individuals and railroads for complying with the requirements of Secs. 242.109 and 242.111 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 conductor.
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 or foreign country.
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 conductors to request that their current state drivers licensing agency or agencies furnish such data directly to the railroad considering certifying them as a conductor. 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.
Once the railroad has obtained the motor vehicle driving record(s), the railroad must afford the prospective conductor an opportunity to review that record and respond in writing to its contents in accordance with the provisions of Sec. 242.401. 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.
Sec. Appendix D to Part 242--Medical Standards Guidelines
(1) The purpose of this appendix is to provide greater guidance on the procedures that should be employed in administering the vision and hearing requirements of Sec. 242.117.
(2) In determining whether a person has the visual acuity that meets or exceeds the requirements of this part, the following testing protocols are deemed acceptable testing methods for determining whether a person has the ability to recognize and distinguish among the colors used as signals in the railroad industry. The acceptable test methods are shown in the left hand column and the criteria that should be employed to determine whether a person has failed the particular testing protocol are shown in the right hand column. ------------------------------------------------------------------------
Accepted tests Failure criteria------------------------------------------------------------------------
Pseudoisochromatic Plate Tests------------------------------------------------------------------------American Optical Company 1965.......... 5 or more errors on plates 1-
15.AOC--Hardy-Rand-Ritter plates--second Any error on plates 1-6 (plates
edition. 1-4 are for demonstration--
test plate 1 is actually plate
5 in book).Dvorine--Second edition................ 3 or more errors on plates 1-
15.Ishihara (14 plate).................... 2 or more errors on plates 1-
11.Ishihara (16 plate).................... 2 or more errors on plates 1-8.Ishihara (24 plate).................... 3 or more errors on plates 1-
15.Ishihara (38 plate).................... 4 or more errors on plates 1-
21.Richmond Plates 1983................... 5 or more errors on plates 1-
15.------------------------------------------------------------------------
Multifunction Vision Tester------------------------------------------------------------------------Keystone Orthoscope.................... Any error.OPTEC 2000............................. Any error.Titmus Vision Tester................... Any error.Titmus II Vision Tester................ Any error.------------------------------------------------------------------------
(3) In administering any of these protocols, the person conducting the examination should be aware that railroad signals do not always occur in the same sequence and that ``yellow signals'' do not always appear to be the same. It is not acceptable to use ``yarn'' or other materials to conduct a simple test to determine whether the certification candidate has the requisite vision. No person shall be allowed to wear chromatic lenses during an initial test of the person's color vision; the initial test is one conducted in accordance with one of the accepted tests in the chart and Sec. 242.117(h)(3).
(4) An examinee who fails to meet the criteria in the chart, may be further evaluated as determined by the railroad's medical examiner. Ophthalmologic referral, field testing, or other practical color testing may be utilized depending on the experience of the examinee. The railroad's medical examiner will review all pertinent information and, under some circumstances, may restrict an examinee who does not meet the criteria for serving as a conductor at night, during adverse weather conditions or under other circumstances. The intent of Sec. 242.117(j) is not to provide an examinee with the right to make an infinite number of requests for further evaluation, but to provide an examinee with at least one opportunity to prove that a hearing or vision test failure does not mean the examinee cannot safely perform as a conductor. Appropriate further medical evaluation could include providing another approved scientific screening test or a field test. All railroads should retain the discretion to limit the number of retests that an examinee can request but any cap placed on the number of retests should not limit retesting when changed circumstances would make such retesting appropriate. Changed circumstances would most likely occur if the examinee's medical condition has improved in some way or if technology has advanced to the extent that it arguably could compensate for a hearing or vision deficiency.
(5) Conductors who wear contact lenses should have good tolerance to the lenses and should be instructed to have a pair of corrective glasses available when on duty. [GRAPHIC] [TIFF OMITTED] TR09NO11.001