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Rule2024-09958

Certification of Signal Employees

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Published

May 21, 2024

Effective

July 22, 2024

Issuing agencies

Transportation DepartmentFederal Railroad Administration

Abstract

FRA is prescribing regulations for certification of signal employees, pursuant to the authority granted in section 402 of the Rail Safety Improvement Act of 2008 (RSIA).

Full Text

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<title>Federal Register, Volume 89 Issue 99 (Tuesday, May 21, 2024)</title>
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[Federal Register Volume 89, Number 99 (Tuesday, May 21, 2024)]
[Rules and Regulations]
[Pages 44830-44896]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2024-09958]

[[Page 44829]]

Vol. 89

Tuesday,

No. 99

May 21, 2024

Part III

Department of Transportation

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Federal Railroad Administration

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49 CFR Part 246

Certification of Signal Employees; Final Rule

Federal Register / Vol. 89, No. 99 / Tuesday, May 21, 2024 / Rules
and Regulations

[[Page 44830]]

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DEPARTMENT OF TRANSPORTATION

Federal Railroad Administration

49 CFR Part 246

[Docket No. FRA-2022-0020, Notice No. 4]
RIN 2130-AC92

Certification of Signal Employees

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

ACTION: Final rule.

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

DATES: Effective Date: The rule is effective July 22, 2024.

FOR FURTHER INFORMATION CONTACT: Gabe Neal, Staff Director, Signal,
Train Control, and Crossings Division, U.S. Department of
Transportation, Federal Railroad Administration, telephone: (816) 516-
7168, email: <a href="/cdn-cgi/l/email-protection#b4f3d5d6d19afad1d5d8f4d0dbc09ad3dbc2">[email&#160;protected]</a>; or Kathryn Gresham, Attorney Adviser,
U.S. Department of Transportation, Federal Railroad Administration,
telephone: (202) 577-7142, email: <a href="/cdn-cgi/l/email-protection#2c474d58445e5542024b5e495f444d416c484358024b435a">[email&#160;protected]</a>.

SUPPLEMENTARY INFORMATION:

Abbreviations and Terms Used in This Document

AANP--American Association of Nurse Practitioners
AAR--Association of American Railroads
ADA--Americans with Disabilities Act
APTA--American Public Transportation Association
ASLRRA--American Short Line and Regional Railroad Association
BRS--Brotherhood of Railroad Signalmen
CE--Categorical Exclusion
CFR--Code of Federal Regulations
CRB--Certification Review Board
DAC--Drug and alcohol counselor
DOT--United States Department of Transportation
EA--Environmental Assessment
EIS--Environmental Impact Statement
FRA--Federal Railroad Administration
IBEW--International Brotherhood of Electrical Workers
IRFA--Initial Regulatory Flexibility Analysis
ITLC--International Transportation Learning Center
MTA--New York State Metropolitan Transportation Authority
NEPA--National Environmental Policy Act
NPRM--Notice of Proposed Rulemaking
NRC--Network Rail Consulting Inc.
NRCMA--National Railroad Construction and Maintenance Association
NRM--Northwest Railway Museum
OCSR--Oregon Coast Scenic Railroad
OMB--United States Office of Management and Budget
PRA--The Paperwork Reduction Act
PTC--Positive Train Control
PV--Present Value
RIA--Regulatory Impact Analysis
RIN--Regulatory Identification Number
RSAC--Railroad Safety Advisory Committee
RSIA--Rail Safety Improvement Act of 2008
SAP--Substance Abuse Professional
SMART-TD--Transportation Division of the International Association
of Sheet Metal, Air, Rail and Transportation Workers
STB--The Surface Transportation Board
TTD--Transportation Trades Department, AFL-CIO
U.S.C.--United States Code
UTC--Washington Utilities and Transportation Commission

Table of Contents for Supplementary Information

I. Executive Summary
II. Legal Authority
III. Background
A. Roles and Responsibilities of Signal Employees
B. FRA History of Certification
C. Statutory Background for Signal Employee Certification
D. Report to Congress
E. RSAC Working Group
F. Public Outreach
G. Role of Third Parties
H. Interaction With Other FRA Regulations
I. Confidential Close Call Reporting System
J. Notice of Proposed Rulemaking
IV. Discussion of General Comments and FRA's Conclusions
A. Cost-Benefit Analysis/Safety Justification
B. RSIA Authority
C. Role of Third Parties
D. Interaction With Other FRA Regulations
E. Confidential Close Call Reporting System
F. PTC
V. Section-by-Section Analysis
VI. Regulatory Impact and Notices
A. Executive Order 12866
B. Regulatory Flexibility Act and Executive Order 13272
C. Paperwork Reduction Act
D. Federalism Implications
E. International Trade Impact Assessment
F. Environmental Impact
G. Environmental Justice
H. Unfunded Mandates Reform Act of 1995
I. Energy Impact
J. Executive Order 13175 (Tribal Consultation)

I. Executive Summary

Purpose of the Regulatory Action

FRA is requiring railroads to develop FRA-approved programs for
certifying signal employees who work on signal systems and signal-
related technology on their networks. Pursuant to this rule, railroads
are required to have formal processes for training signal employees, as
well as verifying that each signal employee has the requisite
knowledge, skills, safety record, and ability to safely perform
assigned tasks mandated by railroad rules and safety standards and
Federal law and regulations prior to certification. In addition,
railroads will be required to have formal processes for revoking
certification (either temporarily or permanently) for signal employees
who violate specified minimum requirements.
FRA is promulgating this regulation in response to section 402 of
the RSIA, Public Law 110-432, 122 Stat. 4848, 4884 (Oct. 16, 2008),
which required the Secretary of Transportation (Secretary) to submit a
report to Congress addressing whether certification of ``certain crafts
or classes'' of railroad employees or contractors, including signal
employees, was necessary to ``reduce the number and rate of accidents
and incidents or to improve railroad safety.'' Section 402 further
provides that the Secretary may prescribe regulations requiring the
certification of certain crafts or classes if the Secretary determined,
pursuant to the report to Congress, that such regulations are necessary
to reduce the number and rate of accidents and incidents or to improve
railroad safety.
The Secretary submitted a report to Congress on November 4,
2015,\1\ stating that, based on FRA's preliminary research, signal
employees were one of the most viable candidate railroad crafts for
certification, particularly with the introduction of Positive Train
Control (PTC) technology. Given the safety critical role of signal
employees in facilitating safe railroad operations, FRA determined that
the number and rate of accidents and incidents would be expected to
decrease and railroad safety would be expected to improve if signal
employees are required to satisfy certain standards and be certified by
each railroad whose signal systems they install, troubleshoot, repair,
test, or maintain.
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\1\ A copy of this November 4, 2015 Report to Congress has been
posted in the rulemaking docket at: <a href="https://www.regulations.gov/document/FRA-2022-0020-0001">https://www.regulations.gov/document/FRA-2022-0020-0001</a>.
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Summary of Major Provisions

This rule requires railroads to develop written programs for
certifying individuals who work as signal employees on their
territories, and to submit those written certification programs to FRA
for approval prior to implementation. FRA will issue a letter to the
railroad when it approves a certification program that explains the
basis for approval, and a program will not be considered approved until
FRA issues the approval letter. Subpart A of this rule contains general
provisions, including a formal statement of the rule's purpose and
scope.

[[Page 44831]]

Subpart B of this rule covers the review and approval process of
certification programs, the implementation schedule for this rule, the
certification program requirements, and the eligibility determinations
a railroad must make to certify a person as a signal employee. Class I
railroads (including the National Railroad Passenger Corporation), and
railroads providing commuter service, are required to submit their
written certification programs to FRA no later than eight (8) months
after this rule's effective date. Class II and Class III railroads are
required to submit their written certification plans sixteen (16)
months after this rule's rule effective date. New railroads that begin
operation after the effective date are required to submit their written
certification programs to FRA and obtain FRA approval before installing
their signal systems and commencing operations. In addition, railroads
seeking to materially modify their FRA-approved certification programs
must obtain FRA approval prior to modifying their programs.
Railroads are required to evaluate certification candidates in
multiple areas, including prior safety conduct as a motor vehicle
operator, prior safety conduct as an employee of a different railroad,
substance abuse disorders and alcohol/drug rules compliance, and visual
and hearing acuity.
The rule also contains minimum requirements for the training
provided to candidates for signal employee certification. These
requirements are intended to ensure certified signal employees have
received sufficient training before they are hired to work on signal
systems and signal-related technology. These requirements are also
intended to ensure that certified signal employees periodically receive
recurring training on Federal laws, regulations, and orders and
railroad safety and operating rules, as well as comprehensive training
on new signal systems and signal-related technology before they are
introduced on the railroads where they work.
Subpart C of this rule addresses how railroads are to administer
their signal employee certification programs. With the exception of
individuals designated as certified signal employees prior to FRA
approval of the railroad's signal employee certification program, this
rule prohibits railroads from certifying signal employees for intervals
longer than three (3) years. This three-year limitation, which is
consistent with the 36-month maximum period for certifying locomotive
engineers in 49 CFR 240.217(c) and the 36-month maximum period for
certifying conductors in 49 CFR 242.201(c), allows for periodic re-
evaluation of certified signal employees to verify their continued
compliance with FRA's minimum safety requirements.
Subpart D of this rule addresses the process and criteria for
denying and revoking certification. Before a railroad denies an
individual certification or recertification, it must provide the
certification candidate with the information that forms the basis for
the denial decision and give the candidate an opportunity to rebut such
evidence. The rule also requires that a railroad make any decision to
deny an individual certification or recertification in writing and meet
certain requirements.
A railroad can only revoke a signal employee's certification if one
of eleven events occurs. Generally, for the first revocable event that
is not related to a signal employee's use of drugs or alcohol, the
person's certification would be revoked for 30 days. If a person
accumulates more of these violations in a given time period, the
revocation period (period of ineligibility) becomes longer.
If a railroad acquires reliable information that a certified signal
employee has violated an operating rule or practice requiring
decertification under this rule, the railroad must suspend the signal
employee's certification immediately, while it determines whether
revocation is warranted. In such circumstances, signal employees are
entitled to a hearing. Similar to a railroad's decision to deny
certification, a railroad's decision to revoke a signal employee's
certification must satisfy certain requirements. Finally, if an
intervening cause prevented or materially impaired a signal employee's
ability to comply with a railroad operating rule or practice, the
railroad must not revoke the signal employee's certification.
Subpart E of this rule describes the dispute resolution process for
individuals wishing to challenge a railroad's decision to deny
certification, deny recertification, or revoke certification. This
dispute resolution process mirrors the process used for locomotive
engineers and conductors under 49 CFR parts 240 and 242, respectively.
Finally, this final rule contains two appendices. Appendix A
discusses the procedures that a person seeking certification or
recertification should follow to furnish a railroad with information
concerning their motor vehicle driving record. Appendix B provides
guidance on the procedures railroads should employ in administering the
vision and hearing requirements under Sec. Sec. 246.117 and 246.118.
Benefits and Costs
FRA analyzed the economic impact of this final rule. FRA estimated
the benefits of fewer signal employee-caused accidents, and the costs
anticipated to be incurred by railroads and the Government.
This rule will help ensure that signal employees are properly
trained, are qualified to perform their duties, and meet Federal safety
standards. This rule will reduce the likelihood of an accident
occurring due to signal employee error. FRA has analyzed accidents over
the past 10 years to categorize those where signal employee training
and certification would have impacted the accident. FRA then estimated
benefits based on that analysis.
The following table shows the estimated 10-year quantifiable
benefits of the final rule. The total 10-year estimated benefits would
be $2.9 million (PV, 7%) and annualized benefits would be $0.4 million
(PV, 7%).

Total 10-Year Discounted Benefits
[2020 Dollars]
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Present value Present value Annualized Annualized
Category 7% ($) 3% ($) 7% ($) 3% ($)
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Grade Crossing Accidents.......................... 1,766,028 2,064,676 251,443 242,043
Train Accidents/Incidents......................... 960,671 1,123,127 136,778 131,665
Business Benefits (Railroad Industry)............. 53,817 62,917 7,662 7,376
Business Benefits (Government).................... 87,985 102,863 12,527 12,059
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Total......................................... 2,868,501 3,353,584 408,410 393,142
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This final rule will also provide unquantifiable benefits. FRA has
quantified the monetary impact from accidents which is reported on FRA
accident forms. However, some accident costs are not required to be
reported on FRA accident forms (e.g., environmental impact). That
impact may account for additional benefits not quantified in this
analysis. If these costs were realized, accidents affected by this
rulemaking could have much greater economic impact than estimated
quantitative benefit estimates.
There is also a chance of a high impact event due to signal
employee error. This could involve fatalities, injuries, and
environmental damage, as well as impact railroads, communities, and the
public. FRA has not estimated the likelihood of such an event, but this
final rule is expected to reduce the risk of an accident of that
magnitude.
FRA estimates the 10-year costs of the final rule to be $9.4
million, discounted at 7 percent. The estimated annualized costs are
$1.3 million discounted at 7 percent. The following table shows the
total costs of this final rule, over the 10-year analysis period.

Total 10-Year Discounted Costs
[2020 Dollars] \2\
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Present value Present value Annualized Annualized
Category 7% ($) 3% ($) 7% ($) 3% ($)
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Development of Certification Program.............. 1,504,135 1,541,874 214,155 180,755
Certification Eligibility Requirements............ 202,952 227,006 28,896 26,612
Recertification Eligibility Requirements.......... 243,632 310,417 34,688 36,390
Training.......................................... 2,079,835 2,379,911 296,122 278,998
Knowledge Testing................................. 746,865 898,884 106,337 105,377
Vision and Hearing................................ 1,097,523 1,320,891 156,263 154,849
Monitoring Operational Performance................ 1,178,812 1,408,753 167,836 165,149
Railroad Oversight Responsibilities............... 267,530 326,714 38,090 38,301
Certification Card................................ 103,175 124,175 14,690 14,557
Petitions and Hearings............................ 181,733 217,183 25,875 25,460
Government Administrative Cost.................... 1,780,113 2,065,541 253,448 242,144
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Total......................................... 9,386,306 10,821,350 1,336,399 1,268,592
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II. Legal Authority
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\2\ Numbers in this table and subsequent tables may not sum due
to rounding.
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Pursuant to the Rail Safety Improvement Act of 2008, Public Law
110-432, sec. 402, 122 Stat. 4884 (Oct. 16, 2008) (hereinafter
``RSIA''), the Secretary of Transportation (Secretary) was required to
submit a report to Congress addressing whether certification of certain
crafts or classes of employees, including signal repair and maintenance
employees, was necessary to reduce the number and rate of accidents and
incidents or to improve railroad safety.\3\ If the Secretary determined
it was necessary to require the certification of certain crafts or
classes of employees to reduce the number and rate of accidents and
incidents or to improve railroad safety, section 402 of the RSIA stated
the Secretary may prescribe such regulations. The Secretary delegated
this authority to the Federal Railroad Administrator. 49 CFR 1.89. In
response to the RSIA, the Secretary submitted a report to Congress on
November 4, 2015, stating that, based on FRA's preliminary research,
dispatchers and signal employees were potentially the most viable
candidate railroad crafts for certification. Based on the analysis in
Section III below, the Federal Railroad Administrator has determined
that it is necessary to require the certification of signal employees
to improve railroad safety.
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\3\ See also 49 U.S.C. 20103 (providing FRA's general authority
to ``prescribe regulations and issue orders for every area of
railroad safety'').
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III. Background

A. Roles and Responsibilities of Signal Employees

Railroad signal employees play an integral role in ensuring the
safety of railroad operations, as well as the safety of highway
motorists. As noted in comments submitted by the Transportation Trades
Department of the AFL-CIO (TTD), signal systems are critical to the
operation of every railroad. Signal employees are responsible for the
installation, testing, troubleshooting, repair, and maintenance of
signal systems, as defined in Sec. 246.7, which railroads utilize to
direct train movements. Signal employees must also use specialized test
and maintenance equipment to complete safety critical tasks on
mechanical, electrical, and electronic signal equipment.
The work performed by signal employees can generally be divided
into two categories: construction and maintenance. On larger railroads,
some signal employees work in groups (often referred to as ``gangs'')
under the direct supervision of an experienced signal employee to
construct, install, and upgrade signal systems and signal system
subsystems and components. Some signal employees also work in ``gangs''
under the direct supervision of an experienced signal employee to make
repairs to the signal system, while other signal employees (often
referred to as ``signal maintainers'') are primarily

[[Page 44833]]

tasked with inspecting, testing, troubleshooting, and maintaining
signal systems and performing emergency repairs as needed.
The definition of ``signal employee'' for purposes of this
rulemaking may differ from the conventional definition of this term. As
stated in Sec. 246.1(c), the signal employee certification
requirements contained in this part apply to any person who meets the
definition of signal employee contained in Sec. 246.7, even if the
person has a job classification title other than that of signal
employee.
The term ``signal employee'' is defined in Sec. 246.7 as an
individual who is engaged in installing, troubleshooting, testing,
repair, or maintenance of railroad signal systems or related
technology. FRA acknowledges that this definition is expansive, as an
employee of a railroad (or railroad contractor or subcontractor) may be
considered a signal employee for purposes of this rule if they engage
in the installation, troubleshooting, testing, repair, or maintenance
of railroad signal systems or related technology, even if such tasks
are not the primary focus of the employee's job. Railroads and other
interested parties seeking additional guidance on how the term,
``signal employee,'' has been defined for purposes of this part may
find it helpful to review FRA's Technical Bulletin S-19-01, entitled
``Application of the Hours of Service Laws to Positive Train Control
Systems'' (TB S-19-01). This technical bulletin provides a general
framework for evaluating whether individuals engaged in certain types
of tasks are subject to the Federal hours of service law for signal
employees (49 U.S.C. 21104).
For example, as noted in FRA's Technical Bulletin S-19-01,
employees who are engaged in testing signal system components (even so-
called ``self-tests'' of cab signal equipment installed on locomotives)
that require the employee to interact with the signal system component,
monitor the progress of the test, or interpret the results of the test
are considered to be ``signal employees'' who are subject to the
Federal hours of service law (49 U.S.C. 21104). Accordingly, even
employees of the railroad's mechanical department are considered
``signal employees'' for purposes of this part if they test signal
system components that require employee interaction, monitor the
progress of the test, or interpret the results of the test.

B. FRA History of Certification

On January 4, 1987, an Amtrak train and Conrail train collided in
Chase, Maryland, resulting in 16 deaths and 174 injuries. At the time,
it was the deadliest train accident in Amtrak's history. The subsequent
investigation by the National Transportation Safety Board concluded
that the probable cause of the accident was the impairment of the
Conrail engineer who was under the influence of marijuana at the time
of the collision.\4\
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\4\ Railroad Accident Report: Rear-end Collision of Amtrak
Passenger Train 94, the Colonial and Consolidated Rail Corporation
Freight Train ENS-121, on the Northeast Corridor, Chase, Maryland,
January 4, 1987 (144 Nat'l Transp. Safety Bd. 1988).
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Following this accident, Congress passed the Rail Safety
Improvement Act of 1988, Public Law 100-342, 4, 102 Stat. 624, 625
(1988), which instructed the Secretary to ``issue such rules,
regulations, orders, and standards as may be necessary to establish a
program requiring the licensing or certification of any operator of a
locomotive, including any locomotive engineer.'' On June 19, 1991, FRA
published a final rule establishing a certification system for
locomotive engineers and requiring railroads to ensure that they only
certify individuals who met minimum qualification standards.\5\ FRA
prescribed a certification system where the railroads issue the
certificates as opposed to a government-run licensing system. This
final rule, published in 49 CFR part 240 (part 240), created
certification requirements for engineers that addressed various areas
including vision and hearing acuity; training, knowledge, and
performance skills; and prior safety conduct.
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\5\ 56 FR. 28227 (June 19, 1991).
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Seventeen years later, in 2008, Congress passed the RSIA, which
mandated the creation of a certification system for conductors. On
November 9, 2011, FRA published a final rule requiring railroads to
have certification programs for conductors and to ensure that all
certified conductors satisfy minimum Federal safety standards.\6\ The
conductor certification rule, published in 49 CFR part 242 (part 242),
was largely modeled after part 240 with some deviations based on the
different job classifications. Part 242 also included some
organizational improvements which made the regulation more streamlined
than part 240.
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\6\ 76 FR 69801 (Nov. 9, 2011).
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C. Statutory Background for Signal Employee Certification

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

D. Report to Congress

On November 4, 2015, the Secretary submitted the report to Congress
required by section 402(b) of the RSIA. The report stated that, based
on FRA's preliminary research, dispatchers and signal repair employees
were the most viable candidates for certification, particularly with
the introduction of Positive Train Control (PTC) technology. In
reaching this determination with respect to signal employees, the
Secretary cited a variety of factors.
The report noted that signal employees perform safety-sensitive
work as shown by signal employees being covered under the hours of
service laws. The report also noted that the greatest proportion of
contractors covered under the hours of service laws are signal
employees and noted that they tend to switch employers more frequently
than other crafts of employees.
FRA did not include data to support the position in its 2015 report
to Congress that signal employees of railroad contractors tend to
switch jobs more frequently than other crafts of employees. However,
given the lack of regulations requiring prior employment background
checks, it is relatively easy for signal employees to leave their
current employer after committing a rules violation and find work on
another railroad.
Another important factor noted in the 2015 report was the nature of
the work signal employees perform on wayside signal and train control
systems, which are safety-critical for freight and passenger rail
operations. The report noted that, in the coming decade, the

[[Page 44834]]

rail industry will likely lose many experienced signal employees to
retirement, while growth in freight, commuter, and intercity passenger
rail will require that more signal employees are hired and trained.
The report also summarized the challenges posed by PTC system
implementation, while noting the ``increasingly sophisticated work''
involved in the implementation of complex PTC system technology by
signal employees.\7\ In particular, the report noted that ``signal
employees will be required to differentiate between a vital and non-
vital PTC system \8\ and to address the technicalities of using
standalone or overlay PTC systems.'' \9\ This combination of factors
led to the report's conclusion that signal employees are a potentially
viable candidate craft for certification.
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\7\ See 2015 DOT Report to Congress on Certification of Railroad
Crafts at 3.
\8\ PTC systems vary widely in complexity and sophistication
based on the level of automation and functionality they implement,
the system architecture used, the wayside system upon which they are
based (i.e., non-signaled, block signal, cab signal, etc.), and the
degree of train control they are capable of assuming. Vital systems
are reliable and built upon failsafe principles, while non-vital
systems are reliable but not guaranteed to provide failsafe
operation.
\9\ See 2015 DOT Report to Congress on Certification of Railroad
Crafts at 3. An overlay system relies upon and supplements an
existing wayside signal system or redundant method of operation. A
standalone system replaces the existing method of operation.
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E. RSAC Working Group

In March 1996, FRA established the Railroad Safety Advisory
Committee (RSAC), which provides a forum for collaborative rulemaking
and program development. RSAC includes representatives from all of the
agency's major stakeholder groups, including railroads, labor
organizations, suppliers and manufacturers, and other interested
parties. When appropriate, FRA assigns a task to RSAC, and after
consideration and debate, RSAC may accept or reject the task. If
accepted, RSAC establishes a Working Group that possesses the
appropriate expertise and representation of interests to develop
recommendations to FRA for action on the task.
On April 21, 2017, a task statement regarding certification of
signal employees was presented to the RSAC by email but no vote was
taken. On April 24, 2019, the RSAC accepted a task (No. 19-03)
entitled, ``Certification of Railroad Signal Employees.'' \10\ The
purpose of the task was ``[t]o consider whether rail safety would be
enhanced by developing guidance, voluntary standards, and/or draft
regulatory language for the certification of railroad signal
installation, repair, and maintenance workers.''
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\10\ At the same meeting, the RSAC also accepted a task (No. 19-
02) titled ``Certification of Train Dispatchers.'' A separate RSAC
Working Group was formed to address this task, and FRA plans to
issue a related rule that would establish certification requirements
for dispatchers.
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The Working Group, which included representatives from the
Association of American Railroads (AAR), American Public Transportation
Association (APTA), American Short Line and Regional Railroad
Association (ASLRRA), Brotherhood of Railroad Signalmen (BRS),
Transportation Division of the International Association of Sheet
Metal, Air, Rail and Transportation Workers (SMART-TD), International
Brotherhood of Electrical Workers (IBEW), Commuter Rail Coalition, and
National Railroad Construction and Maintenance Association (NRCMA),
held its first and only meeting on September 5, 2019 in Washington, DC.
At this meeting, the Working Group reviewed the task statement from the
RSAC, discussed some of the safety-critical tasks performed by signal
employees, and debated whether certification of signal employees would
be beneficial to railroad safety. At the end of the meeting, action
items were assigned, and the next meeting was tentatively scheduled for
January 2020.
However, on December 16, 2019, the presidents of the American Train
Dispatchers Association, BRS, and IBEW (collectively the ``Unions'')
requested that both the dispatcher and signal certification RSAC tasks
be withdrawn from consideration. The Unions stated that they were
involved in numerous activities and were not able to give the task
proper attention. AAR and ASLRRA advised the unions that they were not
opposed to this request. In response, FRA withdrew the tasks from the
RSAC, and the Working Groups became inactive.

F. Public Outreach

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

--Creating a minimum standard for training to ensure that the training
encompasses all skills and proficiencies necessary to properly perform
all safety-related signal employee functions;
--Establishing a record of safety compliance that will follow a signal
employee if the employee wishes to become certified by another
railroad, and that can be used to review a signal employee's
performance and potential training needs;
--Requiring certain safety checks, which can help identify active
substance abuse disorders; and
--Establishing a system for individuals to dispute a railroad's
decision to deny or revoke certification with the aim of creating a
fair and consistent process for all parties.

Based on these meetings, FRA concluded that requiring certification
for signal employees would be an important tool to ensure signal
employees performing safety-sensitive tasks are adequately trained and
qualified and have a documented record of performance that is
accessible to prospective employers.
Following this initial outreach, FRA held a follow-up conversation
with BRS and IBEW, on March 3, 2022, and individuals from BRS and IBEW
informed FRA of elements that they believed would be beneficial in a
signal employee certification program. During this conversation, which
was held in videoconference format, FRA asked the attendees to provide
individualized feedback on how similar or different a signal employee
certification rule should be to FRA's locomotive engineer

[[Page 44835]]

and conductor certification rules found in 49 CFR parts 240 and 242.
In response to that request, FRA heard that the agency needs to
ensure that comprehensive training is provided to signal employees, as
the current training is inadequate. FRA also heard that railroads are
not providing enough training on new equipment and new technology for
signal employees. It was also noted that, in some cases, signal
employees are being required to use new equipment and new technology
without having received any prior training on the equipment or
technology.
On March 7, 2022, FRA met with the railroad industry, including
Norfolk Southern Railway Company (NS), ASLRRA, and AAR. During this
conversation, which was conducted in a videoconference format, FRA also
asked for individualized feedback on how FRA's locomotive engineer and
conductor certification regulations in 49 CFR parts 240 and 242 could
be improved upon with respect to signal employee certification.
Specifically, FRA asked for feedback on any regulatory provisions in 49
CFR parts 240 and 242 that, in their experience, may have been
difficult to implement, as well as whether FRA should explore any
changes to these regulatory provisions.
AAR expressed opposition to FRA's proposal to issue regulations
requiring certification of signal employees, arguing that there was not
a safety benefit to certification. In addition, NS questioned the need
for certification regulations in the absence of any identified gaps in
coverage by existing railroad training programs.
ASLRRA expressed concern that FRA's proposal to issue regulations
requiring certification of dispatchers and signal employees would
result in a big paperwork burden with little benefit. In addition,
ASLRRA asserted that most short line railroads do not have signal
systems. With respect to grade crossings, ASLRRA asserted that most
short line railroads rely on contractors to maintain their grade
crossing warning systems.
After this conversation, FRA provided a short list of written
questions to AAR and ASLRRA. While AAR did not provide additional
feedback in response to FRA's list of questions, ASLRRA responded to
FRA's list of written questions by email on April 13, 2022, a copy of
which has been placed in the docket.\11\
---------------------------------------------------------------------------

\11\ A record of public contact summarizing this meeting has
been posted in the rulemaking docket at: <a href="https://www.regulations.gov/document/FRA-2022-0020-0003">https://www.regulations.gov/document/FRA-2022-0020-0003</a>.
---------------------------------------------------------------------------

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

G. Notice of Proposed Rulemaking

On May 31, 2023, FRA published an NPRM proposing the establishment
of signal employee certification and provided commenters 60 days to
file comments.\12\ On July 5, 2023, FRA extended the comment period by
an additional 30 days.\13\ On August 22, 2023, FRA extended the comment
period again, this time by an additional 15 days until September 14,
2023.\14\
---------------------------------------------------------------------------

\12\ 88 FR 35632 (May 31, 2023).
\13\ 88 FR 42907 (July 5, 2023).
\14\ 88 FR 57044 (Aug. 22, 2023).
---------------------------------------------------------------------------

IV. Discussion of General Comments and FRA's Conclusions

FRA received 24 comments on the NPRM and the related Regulatory
Impact Analysis (RIA) from State agencies, labor organizations, trade
associations, tourist, historic, and excursion railroads, railway
museums, consulting firms, a transportation learning center, and a
public-interest law firm and policy center. The order of the topics or
comments discussed in this document does not reflect the significance
of the comment raised or the standing of the commenter. Additionally,
this summary of comments provides a general understanding of the
overall scope and themes raised by the commenters and gives some
specific descriptions to provide context. Not every comment is
described in this summary. Comments addressing specific sections of
this rule are discussed in the section-by-section analysis below.
Comments regarding the proposed RIA are addressed in the RIA to the
final rule.

A. Cost-Benefit Analysis/Safety Justification

FRA received several comments related to the costs and benefits of
the proposed rule. Comments were received from AAR, ASLRRA, and the
Washington Legal Foundation (WLF), each of whom commented that the
costs of the proposed rule outweigh the benefits.
AAR and ASLRRA commented on several of FRA's cost estimates for
provisions in the proposed rule. AAR and ASLRRA commented that FRA's
estimates for the time to develop the certification programs were low.
ASLRRA commented that it would take 550 hours to develop a model
program and 19 hours per small railroad to implement. For unannounced
compliance tests (monitoring operational performance), AAR and ASLRRA
estimated that the time per supervisor would be much more than the two
hours per year that FRA estimated. Regarding dispute resolution
hearings, AAR and ASLRRA commented that the cost assessments for
hearings are underestimated and that the actual cost would amount to 20
percent of the total estimated costs of the proposed rule. AAR and
ASLRRA also contend that FRA underestimated wage-related costs by using
the 2020 railroad wage rates which ``do not take into account the 24%
wage increase that railroad employees received as part of the 2022
collective bargaining process or the 10.7% increase in Federal
government employee pay rates.'' \15\
---------------------------------------------------------------------------

\15\ FRA-2022-0020-0035.
---------------------------------------------------------------------------

FRA also received comments pertaining to the estimated benefits in
the RIA associated with the proposed rule. AAR and ASLRRA contend that
FRA relied on some incidents that were not caused by signal employee
activities and some incidents for which AAR and ASLRRA assert that it
would be impossible to draw the conclusion that the incident would have
been prevented by a signal employee certification program.
AAR and ASLRRA also contend that there is no safety justification
for this rulemaking and asserted, in their comments, that ``the last
decade was the safest on record for railroads.'' \16\ In support of
this assertion, AAR and ASLRRA provided statistics reflecting a
reduction in rail accidents since 2000.
---------------------------------------------------------------------------

\16\ Ibid.
---------------------------------------------------------------------------

Based on ASLRRA's comment regarding the time to develop a
certification program, FRA has revised the estimated time for ASLRRA to
develop a model program to 550 hours and increased the estimated time
for small railroads to implement a program from 8 hours to 15 hours.
FRA has now accounted for only one template program produced by ASLRRA.
Holding companies will likely use the template program developed by
ASLRRA, instead of producing their own template, as discussed in the
RIA associated with the NPRM.
FRA also reassessed the costs for petitions and hearings based on
comments from AAR and ASLRRA. The

[[Page 44836]]

categories of employees have been revised and estimates have been
increased. FRA determined these estimates by looking at the number of
petitions and hearings associated with the conductor and engineer
certification programs. This baseline was then adjusted for the
population size of signal employees. Additionally, Government costs for
petitions and hearings have been increased and now include more
categories of employees involved in the process.
With respect to AAR and ASLRRA's comment that the time estimate for
unannounced compliance tests is too low, FRA has revised its estimate
for monitoring operational performance. FRA estimates that each signal
employee will require 17 minutes per year for unannounced compliance
tests. This revised estimate reflects 15 minutes of additional tasks
that would not have been performed otherwise and 2 minutes for
documentation.
As for AAR and ASLRRA's comments on the 2020 wage rates used in the
NPRM, FRA notes that the wage rates used during NPRM drafting were the
most recently available data, as provided by the Surface Transportation
Board's (STB) wage data series and General Schedule (GS) pay scales.
With respect to AAR and ASLRRA's comments on FRA's estimate of
benefits in the RIA on the proposed rule, FRA has decreased the number
of activation failures from 45 (as stated in the NPRM RIA) to 41.5. In
addition, FRA adjusted the number of train accidents from 77 to 75 to
align with the FRA supplemental data report to the NPRM RIA.\17\
---------------------------------------------------------------------------

\17\ FRA, ``Certification of Signal Employees Notice of Proposed
Rulemaking: Supplemental Data to the Regulatory Impact Analysis,''
July 2023, <a href="https://www.regulations.gov/document/FRA-2022-0020-0010">https://www.regulations.gov/document/FRA-2022-0020-0010</a>.
---------------------------------------------------------------------------

Turning to the contention from AAR and ASLRRA that there is no
safety justification for this rule, FRA disagrees with the premise that
because railroad safety has improved over the last 20 years, the agency
does not need to take actions that could further improve safety.
Moreover, the associations neglected to mention in their comments that
one of the changes in the railroad industry over the past few decades
has been the introduction of certification requirements. The locomotive
engineer certification requirements in part 240 went into effect in
1991,\18\ and the conductor certification requirements in part 242
became effective just over a decade ago in 2012.\19\ Thus, it stands to
reason that certification has been one of the factors that has improved
railroad safety in recent decades and instituting such requirements for
signal employees could lead to similar improvements in the future.
---------------------------------------------------------------------------

\18\ 56 FR 28227, 28228 (June 19, 1991).
\19\ 76 FR 69802 (Nov. 9, 2011).
---------------------------------------------------------------------------

A more detailed response to these comments is, however, provided in
the RIA.

B. RSIA Authority

In their comments on the proposed rule, AAR and ASLRRA challenge
FRA's assertion that section 402 of the RSIA authorized the Secretary
to prescribe regulations requiring the certification of signal
employees. AAR and ASLRRA assert that Congress only authorized the
Department to issue regulations requiring certification if the
Secretary determined in a report to Congress that regulations are
``necessary to reduce the number and rate of accidents and incidents or
to improve railroad safety.'' \20\ AAR and ASLRRA contend the Secretary
failed to make such a determination in the 2015 report to Congress.
---------------------------------------------------------------------------

\20\ Rail Safety Improvement Act of 2008, Public Law 110-432,
section 402, 122 Stat. 4848, 4884 (2008).
---------------------------------------------------------------------------

While section 402 of the RSIA required the Secretary to issue a
report to Congress ``about whether the certification of certain crafts
or classes of railroad carrier or railroad carrier contractor or
subcontractor employees is necessary to reduce the number and rate of
accidents and incidents or to improve railroad safety,'' it did not
require the Secretary to make an official determination in this report
that the issuance of signal employee certification regulations was
necessary to reduce the number and rate of accidents and incidents or
to improve railroad safety, as a necessary precondition to the
initiation of this rulemaking.
Section 402 of the RSIA authorizes the Secretary (and by
delegation, FRA) to prescribe regulations requiring the certification
of certain crafts or classes of railroad carrier employees (or railroad
carrier contractor or subcontractor employees) ``pursuant to'' the
report to Congress that was required by section 402(b) of the RSIA. The
phrase, ``pursuant to,'' is defined to mean ``in a way that agrees with
or follows (something).'' \21\ Thus, in section 402 of the RSIA,
Congress authorized FRA to prescribe regulations that are consistent
with the 2015 report to Congress. Moreover, FRA notes that it has broad
authority to ``prescribe regulations and issue orders for every area of
railroad safety,'' including this regulation.\22\
---------------------------------------------------------------------------

\21\ <a href="http://www.britannica.com">www.britannica.com</a>.
\22\ 49 U.S.C. 20103. The Secretary delegated this authority to
the Federal Railroad Administrator. 49 CFR 1.89.
---------------------------------------------------------------------------

C. Role of Third Parties

Consistent with FRA's engineer and conductor certification
regulations, this final rule requires railroads to develop and submit
certification programs to FRA for approval and then implement their
FRA-approved certification programs. However, FRA received multiple
comments urging FRA to clarify how signal employee certification
programs will be implemented for the employees of signal contractors.
The International Transportation Learning Center (ITLC) urged FRA
to implement a process that allows railroads to use model programs in a
manner similar to the existing process established pursuant to FRA's
training regulations in part 243 of this chapter. In contrast, AAR and
ASLRRA submitted comments asserting that FRA should authorize
contractors and subcontractors to certify their own employees. AAR and
ASLRRA asserted that locomotive engineers and conductors are not a
useful comparison when considering this issue because Class I railroad
engineers and conductors are almost uniformly company employees. AAR
and ASLRRA asserted that Class I railroads make far greater use of
contractors in the context of signal systems, as railroads typically
engage contractors to perform temporary or intermittent signal work,
such as manufacturing signal bungalows in a shop environment and for
field work like installing signal mast foundations. Then, once the
project is complete, AAR and ASLRRA asserted that the contractor and
the contractor's employees will move on to a new project, possibly on a
different railroad. Therefore, AAR and ASLRRA concluded that requiring
railroads to certify signal employees employed by signal contractors
will be inefficient and result in significant administrative burdens
for railroads.
With respect to short line railroads, AAR, ASLRRA, and the National
Railroad Construction and Maintenance Association (NRCMA) submitted
comments asserting that many short line railroads use contractors
extensively for signal work because they do not have the in-house
expertise to otherwise manage signal maintenance. AAR and ASLRRA noted
that signal contractors often provide signal maintenance for dozens of
short lines at the same time. Therefore, AAR and ASLRRA asserted that
it would be infeasible and an inefficient waste of resources for dozens
of railroads to potentially certify the same individual in any given
period. In addition, NRCMA asserted that, while

[[Page 44837]]

many of FRA's regulations hold a railroad responsible for the actions
of an individual performing tasks in accordance with the regulation, no
other FRA regulation requires railroads to determine whether a non-
employee has the stated qualifications to perform such tasks.
As noted in the proposed rule, especially with respect to Class I,
Class II, and commuter railroads, the railroad is generally most
knowledgeable about the signal systems and signal-related technology
that have been deployed on their territories. Therefore, Class I, Class
II, and commuter railroads are best suited to develop certification
programs to ensure signal employees tasked with installing, testing,
repair, or maintenance of their signal systems and signal-related
technology have been properly trained and qualified on such systems and
technology. However, railroads are encouraged to work with any signal
contractors they hire to obtain records for the contractor's employees
that will assist the railroad in making the signal employee
certification determinations required by this part.
There are a number of provisions in this final rule which are
intended to reduce the burdens associated with developing signal
employee certification programs. As noted in the section-by-section
analysis of Sec. 246.207, parent companies can assist subsidiary
railroads with compliance with this final rule by developing and
submitting signal employee certification programs for one or more of
their subsidiary railroads to FRA for review and approval. For example,
a parent company can submit one signal employee certification program
to FRA for multiple subsidiary railroads. In this scenario, the parent
company must identify and address all variances associated with each
subsidiary railroad that will be covered by the certification program
developed by the parent company and submitted by the parent company to
FRA for approval. After FRA approves the signal employee certification
program, Sec. 246.207 allows either the parent company or the
subsidiary railroad to issue signal employee certificates to the signal
employees of each subsidiary railroad that is covered by the parent
company's certification program.
In addition, to ease the burden of developing signal employee
certification programs, especially with respect to Class III railroads,
this final rule allows railroads to choose between conducting their own
training for signal employees, hiring a third party to provide training
to the railroad's signal employees, or using a training program
developed by a third party (including a parent company). NRCMA asserted
in their comments that signal contractors have expertise in the
equipment they install and maintain and that they are well-situated to
develop a training program to address particular safety issues that may
arise in the course of their work. FRA acknowledges that some signal
contractors may, in fact, be well-situated to develop training programs
for their signal employees. Therefore, some railroads may choose to
hire signal contractors who have their own in-house signal employee
training programs. Railroads that adopt this approach should, however,
keep in mind that most, if not all, existing signal employee training
programs which have been approved by FRA pursuant to 49 CFR part 243
will need to be revised to comply with the training and knowledge
testing requirements in this part that specifically apply to signal
employees. In addition, the operational performance monitoring
requirements in this part must be performed by the certifying railroad.
However, if a railroad chooses to hire a third party to provide
training or use a training program developed by a third party, the
third-party training program must fit the railroad's specific operating
environment and address any unique signal system equipment or signal-
related technology (or any unique deployment of signal system equipment
or signal-related technology) on the railroad's territory.
Ultimately, with respect to railroads who hire signal contractors
to perform work on their signal systems and signal-related technology,
employees of signal contracting companies must be certified by the
railroad before the railroad allows them to work on its signal systems
and signal-related technology, unless they are assigned to work under
the direct and immediate supervision of a mentor or qualified
instructor. As stated in Sec. 246.124(b), railroads are responsible
for ensuring that certified signal employees install, test, maintain,
and repair their signal systems and signal-related technology.

D. Interaction With Other FRA Regulations

As stated in the 2015 DOT Report to Congress on the Certification
of Railroad Employees, the purpose of certification is to document and
verify that the holder of the certificate has achieved certain training
and proficiency and to create a record of safety compliance infractions
that prospective employers can review when hiring experienced
employees. While developing this rule, FRA has been mindful of other
regulations that may touch upon topics covered in this rule, including
FRA's training, qualification, and oversight regulations in 49 CFR part
243 (part 243); railroad safety risk reduction programs (SSP/RRP) in 49
CFR parts 270 and 271 (parts 270 and 271); and fatigue risk management
programs (FRMP) in parts 270 and 271. However, FRA finds that this rule
would complement, rather than duplicate, those regulations.
AAR and ASLRRA disagree. In their comments on the proposed rule,
AAR and ASLRRA contend that the gaps in FRA's regulations which this
rule is trying to fill are either non-existent or immaterial. AAR and
ASLRRA assert that there is no safety basis for layering new
certification requirements on top of FRA's training, qualification, and
oversight requirements in part 243 and the railroad safety risk
reduction program requirements in parts 270 and 271. In addition, AAR
and ASLRRA specifically assert that there is significant overlap
between this rule and part 243.
In support of their argument, AAR and ASLRRA point to Sec.
246.119, which requires railroads to provide training on railroad
safety and operating rules, as well as training on the signal systems
and signal-related technology deployed on their networks to their
signal employees. AAR and ASLRRA assert that this provision overlaps
and potentially conflicts with Sec. 243.101(c)(5), which states that
the employer must determine how training ``shall be structured,
developed, and delivered.'' AAR and ASLRRA also assert that Sec.
246.119 overlaps and potentially conflicts with the stated purpose of
part 243 of this chapter ``to ensure that any person employed by a
railroad or a contractor of a railroad as a safety-related railroad
employee is trained and qualified to comply with any relevant Federal
railroad safety laws, regulations, and orders, as well as any relevant
railroad rules and procedures promulgated to implement those Federal
railroad safety laws, regulations, and orders.''
As an initial matter, AAR and ASLRRA's narrative that this rule is
duplicative of parts 243, 270, and 271 appears to be contradicted by
congressional direction. As they note in their joint comment, FRA
issued the training regulations in part 243, the SSP regulations in
part 270, and the RRP regulations in part 271 because of a statutory
mandate in the RSIA. However, in the same law, Congress explicitly
permitted requiring the certification of certain crafts if the
Secretary determined it was necessary

[[Page 44838]]

to improve railroad safety. Had Congress determined that certification
requirements were duplicative of what was already mandated by the RSIA,
it would not have required the Secretary to study whether other crafts
or classes of employees could benefit from certification or given the
Secretary the statutory authority to issue additional certification
regulations.
Turning to any overlap between this rule and part 243, FRA stands
by its position proffered in the NPRM that this rule complements, and
does not duplicate, part 243. This rule builds off the initial
performance skill evaluations required in part 243 by mandating that
certified signal employees also receive an unannounced compliance test
each calendar year to ensure that signal employees continue to safely
perform their duties after their initial certification. Part 243 has no
such continuing compliance testing requirement. While 49 CFR 243.205
requires employers to perform periodic oversight tests and inspections
to determine whether their employees are complying with Federal
railroad safety laws and regulations, the rule does not require that
all employees receive such tests and inspections. In fact, under part
243, an employee could work for decades without being tested or
inspected. Therefore, Sec. 246.123 fills a significant gap in FRA's
training regulations.
Also, as noted in the NPRM, part 243 does not require railroads to
have formal processes in place for promptly removing signal employees
from service if they violate one or more basic regulatory standards
that could have a significant negative impact on the safety of rail
operations. AAR and ALSRRA failed to address this fact in their
comment. Part 246 complements part 243 by mandating that railroads
remove signal employees from service if they commit one of the safety
violations enumerated in Sec. 246.303(e). This rule also requires
railroads to perform certain safety checks before certifying a person
as a signal employee. These safety checks pertain to a person's prior
safety conduct, both working on railroads and as a motor vehicle
operator; their history of substance abuse disorders; and their visual
and hearing acuity. These are basic safety requirements that are not
addressed in part 243. Thus, FRA does not find significant overlap
between this rule and part 243.
AAR and ASLRRA also contend ``the proposed rule would cast aside
the carefully considered risk analysis conducted through the [system
safety/risk reduction programs] in favor of an approach that would have
railroads potentially focus on lower priority risks associated with
signal employees, not because it is an effective safety management
tool, but solely because this rulemaking would require it.'' \23\ AAR
and ASLRRA assert that all Class I railroads have submitted RRPs and
received approval from FRA. If all railroads with passenger rail
operations that operate intercity or commuter service have also
submitted SSPs and received FRA approval, AAR and ASLRRA estimate that
SSP/RRPs could cover more than 83% of the line-haul mileage and 95% of
workers in the rail industry.
---------------------------------------------------------------------------

\23\ Comment submitted by the AAR and ASLRRA, Docket no. FRA-
2022-0020-0035, p. 24.
---------------------------------------------------------------------------

However, even if a railroad has a railroad safety risk reduction
program through which it identifies the risks associated with
installing, testing, maintaining, and repairing signal systems, the
railroad can decide not to implement mitigations to eliminate or reduce
those specific risks. Whether a railroad is required to have a program
that mitigates risks associated with signal systems will depend on how
the railroad prioritizes risks for mitigation and how effectively that
mitigation would promote continuous safety improvement, as compared to
mitigation of other identified hazards and risks. Even if signal
systems are identified as a risk, a railroad may not be required by its
risk reduction program to implement mitigations to eliminate or reduce
that risk.
Moreover, FRA disagrees with AAR and ASLRRA's assertion that this
rulemaking ``cast[s] aside the carefully considered risk analysis
conducted through the [system safety/risk reduction programs] . . . .''
\24\ Nothing in this rule obviates a railroad's responsibilities under
parts 270 and 271. Railroads are expected to continue to perform the
risk analysis and the necessary mitigations to comply with parts 270
and 271, while also implementing a signal employee certification
program. This final rule does not duplicate existing FRA regulations or
hinder railroads from complying with them. To the contrary, part 246
complements FRA's existing regulations and will help promote railroad
safety.
---------------------------------------------------------------------------

\24\ Ibid.
---------------------------------------------------------------------------

E. Confidential Close Call Reporting System

APTA and MTA each commented on the potential interaction between
part 246 and the Confidential Close Call Reporting System (C\3\RS), an
FRA-sponsored program that allows railroad employees reporting close
calls to receive certain protections, which currently includes
protection from decertification for locomotive engineers and
conductors. Each C\3\RS program is established through an Implementing
Memorandum of Understanding (IMOU) signed by FRA and the participating
railroad and labor organization(s). Under the current process, the
participating railroad submits to FRA a petition to waive specific part
240 and/or part 242 requirements necessary to implement the IMOU's
decertification protections. A waiver granted by FRA then incorporates
the IMOU's protections by reference. APTA and MTA request that FRA add
language to this regulation which would state that those railroads with
existing C\3\RS programs with part 240 and 242 waivers do not have to
similarly apply for a waiver of part 246, as their C\3\RS protections
should automatically be applied to part 246 revocable events. APTA and
MTA also request that FRA identify in the rule whether any revocable
events for signal employees will not be afforded C\3\RS protections.
While FRA appreciates the commenters' desire for a more streamlined
C\3\RS process, their request is beyond the scope of the NPRM in this
proceeding and risks introducing inconsistency and confusion into the
C\3\RS implementation process. Specifically, addressing C\3\RS in this
rule would treat signal employees differently than locomotive engineers
and conductors, who receive C\3\RS decertification protection only
pursuant to part 240/242 waivers. The proposed approach would also
treat signal employees at new C\3\RS programs differently, as railroads
joining C\3\RS after the publication of the rule would still have to
file a part 246 waiver petition. This inconsistency could create
confusion and lead to signal employees at C\3\RS-participating
railroads being uncertain about whether they were protected by the
terms of a waiver or by C\3\RS-related provisions in part 246
(particularly signal employees hired after the date of this final rule
who would not necessarily know when their railroad implemented C\3\RS
for signal employees). Such confusion would be compounded if this rule
specified which decertifiable events were not afforded C\3\RS
protections, as any such regulatory provision could differ
substantively from the provisions of an applicable IMOU and waiver.
Confusion is further risked because only some existing C\3\RS IMOUs
cover signal employees, not all. Using part 246 to provide C\3\RS
decertification

[[Page 44839]]

protection to signal employees at railroads with ``existing'' C\3\RS
programs could therefore be particularly confusing for signal employees
at railroads with existing C\3\RS programs that do not currently
include signal employees. Such signal employees may mistakenly believe
that they are covered by C\3\RS simply through the action of part 246,
not realizing that they lack protection due to the absence of an IMOU
that applies to them.
Overall, FRA believes that to promote signal employee confidence in
C\3\RS reporting, signal employees must be certain about the
decertification protection they will receive. Such confidence is best
promoted by a clear understanding that all signal employees may only
report pursuant to an IMOU and waiver that specifically apply to their
railroad, rather than having some signal employees protected by
separate provisions in part 246, depending on whether they were covered
by a C\3\RS program at the time the final rule is published.
FRA also notes that RSAC has established a C\3\RS Working Group
tasked, in part, with examining how C\3\RS could be expanded industry-
wide without a separate waiver required for each participating
railroad.\25\ Instead of addressing C\3\RS in this rule, FRA finds it
preferable to allow the RSAC C\3\RS Working Group to perform its work
and to apply any RSAC-recommended improvements consistently to
locomotive engineers, conductors, signal employees, and any other
certified craft through a future rulemaking or some other means. In the
meantime, any railroad that already has a C\3\RS program that applies
to signal employees will need to file a request to modify its waiver if
the railroad would like the program's decertification protections to
apply to its signal employees. Likewise, a railroad that is not
currently participating in C\3\RS (or a railroad that has a C\3\RS
program, but one that does not apply to its signal employees) will need
to file a petition for relief if the railroad decides to implement a
C\3\RS program covering signal employees.
---------------------------------------------------------------------------

\25\ See Task No. 2022-03.
---------------------------------------------------------------------------

F. PTC

Positive train control (PTC) systems provide an additional layer of
safety to existing signal systems, many of which have been place for
many decades. PTC systems are also interoperable with each other, as
well as with existing signal systems. In their comments on the proposed
rule, AAR and ASLRRA assert that PTC implementation has not increased
the complexity of the work performed by signal employees. Instead, AAR
and ASLRRA assert that the work of signal employees has become less
complex because installing, repairing, and maintaining signal systems
has become more simplified and more efficient as microprocessors
monitor the health of the system and provide automated alerts.
Accordingly, AAR and ASLRRA assert that the implementation of PTC
systems does not provide a justification for this rule.
FRA disagrees with this assertion. Signal employees need to
understand the relationship between signal and PTC systems and the
communication medium and how these systems operate, function, and react
to a myriad of circumstances. Signal systems and PTC systems are also
continually upgraded, so the development and implementation of these
increasingly complex systems need to be properly understood by signal
employees who install, troubleshoot, test, maintain, and repair them.

V. Section-by-Section Analysis

This section responds to public comments and identifies changes
made from the regulatory provisions as proposed in the NPRM.
Accordingly, provisions that received no comment and are otherwise
being finalized as proposed are not discussed below.

Subpart A--General

Subpart A of this rule contains general provisions, including a
formal statement of the rule's purpose and scope. This subpart also
provides that the rule does not constrain the ability of a railroad to
prescribe additional or more stringent requirements for its signal
employees that are not inconsistent with this final rule.
Section 246.3 Application and Responsibility for Compliance
The extent of FRA's jurisdiction, and the agency's exercise of that
jurisdiction, is well-established. See 49 CFR part 209, app. A. This
application and responsibility for compliance section is consistent
with FRA's Statement of Agency Policy Concerning Enforcement of the
Federal Railroad Safety Laws in appendix A to 49 CFR part 209 (Policy
Statement).
This section, derived from 49 CFR 240.3 and 242.3, provides that
this final rule applies to all railroads with four exceptions.
Paragraph (a)(1) of this section notes that this rule does not apply to
railroads that do not have a signal system, as defined in Sec. 246.7.
The second and third exceptions apply to rail operations on tracks
that are not part of the general railroad system of transportation.
Paragraph (a)(2) contains an exception for rail operations that occur
within the confines of industrial installations commonly referred to as
``plant railroads'' and typified by operations such as those in steel
mills that do not go beyond the plant's boundaries and that do not
involve the switching of rail cars for entities other than themselves.
Paragraph (a)(3) contains an exception for ``tourist, scenic,
historic, or excursion operations that are not part of the general
railroad system of transportation,'' as defined in Sec. 246.7. This
reflects a change from the proposed rule, in which paragraph (a)(3)
would have excluded tourist, scenic, historic, and excursion operations
that are not part of the general railroad system of transportation, if
they are deemed to be ``insular.''
As explained in FRA's Statement of Agency Policy Concerning
Enforcement of the Federal Railroad Safety Laws in appendix A to 49 CFR
part 209 (Policy Statement), FRA considers a railroad to be ``insular''
if its operations are limited to a separate enclave in such a way that
there is no reasonable expectation that the safety of any member of the
public (except a business guest, a licensee of a tourist operation or
an affiliated entity, or a trespasser) would be affected by the
operation. A railroad is not considered insular if one or more of the
following exists on its line: (a) A public highway-rail grade crossing
that is in use; (b) an at-grade crossing that is in use; (c) a bridge
over a public road or waters used for commercial navigation; or (d) a
common corridor with a railroad (i.e., its operations are within 30
feet of those of any railroad. Therefore, for example, a tourist
railroad that operates outside the general railroad system of
transportation yet operates over one or more public highway-rail grade
crossings, would have been required by the proposed rule to comply with
these regulatory requirements for signal employees.
FRA received multiple comments on paragraph (a)(3) in the proposed
rule from tourist, scenic, historic, and excursion operations,
including the Monticello Railway Museum, the Colorado Railroad Museum,
the Oregon Coast Scenic Railroad, the Durango and Silverton Narrow
Gauge Railroad, the Great Smoky Mountains Railroad, and the Northwest
Railway Museum, as well as an association (HeritageRail Alliance, Inc.)
and a consultant (George Hardy Consulting). All commenters expressed
support for excluding all tourist, scenic, historic and excursion
operations that operate outside the general railroad

[[Page 44840]]

system from the scope of this rule--regardless of whether the tourist,
scenic, historic, and excursion operation is deemed to be insular or
not.
Therefore, FRA took a closer look at tourist, scenic, historic, and
excursion operations that operate outside the general railroad system
of transportation. According to FRA's records, out of 818 railroads
nationwide, there are 34 tourist, scenic, historic, and excursion
operations operating outside the general railroad system of
transportation. FRA's records also indicate that these tourist, scenic,
historic, and excursion operations maintain active warning devices at
approximately 105 grade crossings (a small percentage of the 70,289
highway-rail grade crossings nationwide that are equipped with active
warning devices).
Asserting that excursion and heritage railways have traditionally
relied on volunteer and part-time workers located in their host
community to perform signal work, the Northwest Railway Museum
commented that the added burden of medical exams, drug testing,
certification training, and the review of signal employee driving
records may result in smaller entities having to transition to contract
signal maintainers. The Northwest Railway Museum and the Oregon Coast
Scenic Railroad commented that the transition to contract signal
maintainers may result in the unintended consequence of reducing the
timeliness of repairs, as contract signal maintainers could be located
two or more hours away. The Oregon Coast Scenic Railroad asserted that
a highway-rail grade crossing could remain out of service for a lengthy
period of time while a tourist railroad arranges to bring in an
expensive outside contractor for a repair that previously would have
had the crossing back in service within an hour.
Therefore, after taking a closer look at tourist, scenic, historic,
and excursion operations that operate outside the general railroad
system of transportation, and considering the comments that were
submitted to FRA by tourist, scenic, historic, and excursion operations
that may be affected by this rulemaking, FRA has excluded these
operations from the scope of this final rule. This is consistent with
FRA's Policy Statement, which excludes tourist, scenic, historic, and
excursion operations from all but a limited number of Federal railroad
safety laws, regulations, and orders (including FRA regulations
governing alcohol and drug testing in 49 CFR part 219 and employee
training plans in 49 CFR part 243).
The fourth exception, in paragraph (a)(4), applies to rapid transit
operations in an urban area that are not connected to the general
railroad system of transportation. It should, however, be noted that
FRA does exercise jurisdiction over some rapid transit type operations,
given their links to the general railroad system of transportation,
such as rapid transit operations conducted on track used for freight,
intercity passenger, or commuter passenger railroad operations during a
block of time when a general system railroad is not operating (temporal
separation). FRA specifically intends to have this rule apply to those
rapid transit operations.
Paragraph (b) is intended to clarify that any person, as defined in
Sec. 246.7 (including a railroad employee or employee of a railroad
contractor or subcontractor) who performs a function required by this
part will be held responsible for compliance.
Section 246.5 Effect and Construction
This section is derived from 49 CFR 240.5 and 242.5. While FRA has
not revised the language in this section that was proposed in the NPRM,
FRA would like to provide clarification in response to comments from
the AAR and ASLRRA asserting that FRA fails to understand this final
rule will require the altering of existing collective bargaining
agreements. Paragraph (a) does not state that collective bargaining
agreements will not be altered as a result of this new rule. To the
contrary, FRA understands that, due to new requirements in this rule,
collective bargaining agreements may need to be modified to reflect the
training and qualification requirements of the rule. FRA acknowledges
this fact, but this rule allows for mentoring so individuals can obtain
new signal employee positions and be mentored until they become
qualified on the railroad's signal system and signal-related
technology. Paragraph (a) of this section simply acknowledges that the
term ``signal employee'' is defined in this final rule to cover persons
who engage in certain tasks that affect railroad signal systems and
signal-related technology as defined in Sec. 246.7. However, railroads
and labor organizations may use job classification titles other than
``signal employee'' for persons who engage in installing,
troubleshooting, testing, repairing, or maintaining railroad signal
systems and signal-related technology as defined in Sec. 246.7, and
this final rule does not affect the use of such job classification
titles in collective bargaining agreements.
Section 246.7 Definitions
This section defines a number of terms that have specific meaning
in this part. However, consistent with FRA's approach in drafting this
section-by-section analysis, definitions that received no comment and
are being finalized as proposed are not discussed in this section.
The American Association of Nurse Practitioners (AANP) submitted
comments on the definition of ``medical examiner'' in the proposed
rule. Noting that approximately 70% of all nurse practitioner graduates
deliver primary care, AANP requested that FRA revise the definition of
``medical examiner'' to include nurse practitioners and thereby
authorize them to make determinations on signal employees'
certification, recertification, vision acuity and hearing acuity. AANP
asserted that the definition of ``medical examiner'' in the proposed
rule was based on FRA's locomotive engineer certification regulations
in 49 CFR part 240, which are now 32 years old, and not reflective of
the current practice environment where nurse practitioners provide a
substantial portion of care.
While FRA has not revised the definition of ``medical examiner'' to
specifically include nurse practitioners, FRA clarifies that if a nurse
practitioner is a licensed or certified technician, FRA's regulations
in 49 CFR parts 240 and 242 (and this final rule) allow the nurse
practitioner to perform the vision and hearing examinations required in
those parts (and in this rule). However, given the complex nature of
this issue and FRA's lack of regulatory requirements for medical
examiners, the question of whether nurse practitioners should be
allowed to serve as medical examiners (and if so, whether they should
be required to comply with specific regulatory or industry standards)
is best addressed in a future rulemaking during which comments can be
solicited specifically on this issue. Accordingly, only a doctor of
medicine or doctor of osteopathy is authorized by this final rule to
conduct a medical evaluation to determine whether a person can safely
work as a certified signal employee if the person fails the vision or
hearing acuity examination. FRA has, however, revised the last sentence
of this definition by changing ``employee'' to ``individual'' to
reflect the fact that railroad medical examiners will be asked to
conduct medical evaluations of railroad employees, as well as other
individuals seeking signal employee certification or recertification.
In this part, mentor is defined as a certified signal employee who
has at

[[Page 44841]]

least one year of experience as a certified signal employee. For
purposes of this part, a mentor provides direct and immediate
supervision over the work of one or more signal employees. In other
words, FRA views a mentor as a certified signal employee with current,
relevant experience who can be counted on to impart knowledge and
demonstrate safety-related tasks through on-the-job training. Unlike
qualified instructors, mentors are generally not directly involved in
testing or making certification decisions.
BRS and the SMART-TD commented on the definition of ``mentor'' in
the proposed rule and recommended that, after the first year of
implementing this final rule, mentors should be required to have at
least three years of experience working with sophisticated signal
systems. TTD and IBEW submitted similar comments. TTD expressed concern
that one year of experience does not provide enough time for an
employee to demonstrate real proficiency in the signal craft, while
IBEW commented that mentors should have no less than three years of
experience working as a certified signal employee and should be chosen
in concurrence with the applicable designated employee representative.
In contrast, AAR and ASLRRA commented that FRA should only require
signal employee certification, instead of requiring mentors to be
certified signal employees and also have at least one year of
experience as a certified signal employee. Otherwise, AAR and ASLRRA
point out that the experience requirements for mentors are more
stringent than the experience requirements for qualified instructors.
FRA agrees that it would, in most cases, be beneficial for mentors
to have more than one year of signal employee experience and encourages
the selection of mentors with additional years of experience in such
cases. FRA believes it is important to have individuals who are
comfortable with the signal systems and signal-related technology
deployed on the railroad provide direct and immediate supervision of
the tasks performed by uncertified persons on such systems and devices.
However, FRA does not have sufficient data to quantify the
potential impact on rail safety of having signal employees with at
least three years of signal employee experience serve as mentors, as
opposed to having signal employees with between one to three years of
signal employee experience, serve in this role. Accordingly, FRA has
retained the requirement that mentors have at least one year of
certified signal employee experience in this final rule. FRA has not,
however, revised the definition of mentor to require concurrence by
labor organizations in the selection of individuals to serve as
mentors. Concurrence by labor organizations is beneficial for qualified
instructors because qualified instructors participate in the
certification process by confirming that on-the-job proficiency and
qualification on the railroad's signal system and signal-related
technology has been demonstrated. FRA does not, however, anticipate
that mentors will be tasked by railroads with evaluating certification
candidates. Therefore, concurrence by labor organizations in the
selection of mentors seems unnecessary.
BRS and TTD also commented that use of the terms ``oversight'' and
``supervision'' in the same sentence in the definition of ``mentor'' in
the proposed rule may cause confusion. To avoid confusion, BRS and TTD
recommended that FRA clarify that oversight can be provided by a mentor
or supervisor. BRS and TTD explained that, by making this change, the
roles of both mentor and supervisor will be explicitly acknowledged and
there will be clearer understanding of the certified signal employee's
responsibilities when working on unfamiliar equipment.
However, after considering BRS and TTD's comments on this issue,
FRA revised the definition of ``mentor'' to clarify that mentors are
required to provide direct and immediate supervision of the person(s)
they are mentoring. As reflected in Sec. 246.124, mentors are held
responsible for the work performed by the person(s) working under their
direct and immediate supervision. While the verb ``oversee'' is defined
in the Britannica Dictionary as ``to watch and direct (an activity, a
group of workers, etc.) in order to be sure that a job is done
correctly,'' \26\ mentors are held responsible in this final rule for
closely supervising the work performed by the person(s) they are
mentoring. Therefore, the definition of ``mentor'' has been revised in
the final rule to provide this clarification.
---------------------------------------------------------------------------

\26\ <a href="http://Britannica.com">Britannica.com</a>.
---------------------------------------------------------------------------

A definition of ``qualified'' has been added to this final rule,
which is similar to definition of this term in parts 240 and 242 of
this chapter. Use of ``qualified'' as defined in this section is
intended to reflect that the railroad's instruction and training
program not only imparted knowledge of how to perform a task, but also
sufficiently prepared the person to perform the task proficiently. For
example, a signal employee qualified on a specific type of signal
system equipment should have received classroom training on how to
perform required tasks on the signal system equipment, as well as on-
the-job training on how to perform those required tasks proficiently.
Without both instruction and hands-on practice performing required
tasks on the signal system equipment, the signal employee cannot be
considered qualified on the equipment.
In this final rule, the definition of ``qualified instructor'' has
been revised to make it more consistent with the definition of
``qualified instructor'' in 49 CFR 242.7. APTA submitted comments on
the definition of ``qualified instructor'' in the proposed rule,
asserting that the selection of qualified instructors is inherently the
responsibility of railroad management and that discharge of this duty
should not be subject to the consent of another party. APTA also
expressed concern that some current instructors may not be able to be
``qualified instructors'' because they are not engaged in installing,
troubleshooting, testing, repairing, or maintaining railroad signal
systems or signal-related technology and would not be considered
``signal employees,'' as defined in this rule. Network Rail Consulting
Inc. (NRC) commented that the person providing supervision should have
at least two years of experience and no safety-related incidents in the
previous two years, while IBEW commented that qualified instructors
should have no less than three years of experience working as a
certified signal employee.
The definition of ``qualified instructor'' has not, however, been
revised in this final rule to remove the required concurrence of the
designated employee representative when selecting a qualified
instructor or the requirement for the qualified instructor to be a
certified signal employee. The required concurrence of the designated
employee representative has been retained to facilitate input by
designated employee representatives, specifically in situations
involving qualified instructor candidates with minimal experience
(i.e., less than 12 months experience working as a signal employee) or
questionable experience who may be under consideration by railroad
management for employment as qualified instructors.
While FRA agrees that it would be beneficial for qualified
instructors to have more than one year of signal employee experience,
the definition of ``qualified instructor'' has not been revised to
require that qualified instructors have at least two years of
experience with no safety-related

[[Page 44842]]

incidents in the previous two years. FRA does not have sufficient data
to quantify the potential impact on rail safety of having signal
employees with at least two years of signal employee experience serve
as qualified instructors, as opposed to having signal employees with
between one to two years of signal employee experience, serve in this
role. Therefore, FRA has retained the requirement that qualified
instructors have at least one year of signal employee experience in
this final rule.
With respect to the concern expressed by APTA regarding current
instructors who may not be able to work as ``qualified instructors''
because they are not ``signal employees'' as this term is defined in
this rule, FRA notes that a new term ``signal instructor'' has been
added to this section in the final rule. To accommodate current
instructors who may not be able to comply with the definition of
``qualified instructor,'' signal instructors are not required to be
certified signal employees or even employees of a railroad. However, if
authorized by the railroad's certification program, signal instructors
may provide signal employee training.
Although the RSIA required FRA to issue a report to Congress on
whether the certification of certain crafts or classes of railroad
carrier or railroad carrier contractor or subcontractor employees,
including ``signal repair and maintenance employees,'' is necessary to
reduce the number and rate of accidents and incidents or to improve
railroad safety, the RSIA did not define the term, ``signal repair and
maintenance employees.'' In the absence of such a definition in the
RSIA, FRA is using the streamlined term, ``signal employee'' in this
part. This streamlined term, ``signal employee,'' is defined in this
final rule as a person who is engaged in installing, troubleshooting,
testing, repairing, or maintaining railroad signal systems or related
technology. This definition is generally consistent with the definition
of ``signal employee'' in the hours of service laws but includes the
terms ``troubleshooting'' and ``testing'' which are not found in the
statutory definition.\27\
---------------------------------------------------------------------------

\27\ 49 U.S.C. 21101(4). The hours of service law defines
``signal employee'' as ``an individual who is engaged in installing,
repairing, or maintaining signal systems.'' 49 U.S.C. 21101(4).
While FRA believes ``troubleshooting'' and ``testing'' would fall
under the terms ``installing, repairing, or maintaining'' in the
hours of service law definition, FRA wanted to make explicit in this
rule that ``troubleshooting'' and ``testing'' are included in the
definition of ``signal employee.'' The addition of
``troubleshooting'' and ``testing'' in the definition in this final
rule is not intended to capture a broader group of employees than
provided in the hours of service law.
---------------------------------------------------------------------------

In their comments on the proposed rule, AAR and ASLRRA asserted the
final rule should be clear that it does not apply to employees who are
not subject to the Federal hours of service law. As noted earlier, the
term ``signal employee'' as used in this part is intended to cover all
individuals who are currently subject to the Federal hours of service
law for signal employees (49 U.S.C. 21104). However, should questions
arise as to whether a specific group of employees are considered signal
employees for purposes of this rule, FRA will examine the tasks
performed by the employees to determine whether they are engaged in the
installation, troubleshooting, testing, repair, or maintenance of
railroad signal systems or related technology (even if such tasks are
not the primary focus of the employees' job). If FRA determines that
the employees engage in the installation, troubleshooting, testing,
repair, or maintenance of railroad signal systems or related
technology, FRA will then examine whether the employees are covered by
the Federal hours of service law for signal employees to determine
whether they are signal employees for purposes of this part.
AAR and ASLRRA also commented on the definition of ``signal
employee'', asserting that the definition in the proposed rule was
unmoored from the definition of ``signal employee'' in the Federal
hours of service law (49 U.S.C. 21101(4)), while noting FRA's
acknowledgement in the proposed rule that troubleshooting and testing
are activities that were not listed in the definition. AAR and ASLRRA
asserted that these tasks should be removed from the definition of
``signal employee'' to avoid confusion. However, troubleshooting and
testing signal systems has always been considered signal covered
service for purposes of the Federal hours of service law. Accordingly,
FRA has not revised the definition of ``signal employee'' to remove
these tasks.
In the proposed rule, while describing the roles and
responsibilities of signal employees, FRA stated that signal
maintainers are tasked with inspecting and testing signal systems and
performing minor and emergency repairs as needed. AAR and ASLRRA
objected to this statement, asserting that FRA did not explain what was
meant by ``minor repairs.'' AAR and ASLRRA also asserted that this
description limits the scope of a signal employee's work, which could
have implications for existing collective bargaining agreements. In
addition, AAR and ASLRRA asserted that there are several minor tasks
performed by people who are not signal employees and FRA should avoid
an overlap in terms when differentiating between these employees. After
considering these concerns, FRA revised its description of the work
performed by signal employees in the ``Roles and Responsibilities of
Signal Employees'' section above to more accurately reflect the work
typically performed by signal maintainers.
In their comments on the proposed rule, AAR and ASLRRA also
objected to FRA's assertion that a signal employee certification
program which includes background checks and disqualification from
safety-sensitive service for specified alcohol and drug violations and
for refusing alcohol and drug testing could help prevent employees with
active substance abuse disorders from ``job hopping.'' AAR and ASLRRA
contend FRA presented no evidence that signal employees switch jobs
more frequently than other crafts, including those that are subject to
certification requirements.
FRA's statements on this issue in the proposed rule were based on
FRA's finding in the 2015 report to Congress that the greatest
proportion of contractors covered under the hours of service laws are
signal employees and that they tend to switch employers more frequently
than other crafts of employees. The 2015 report to Congress did not,
however, include data showing the frequency with which the employees of
signal contractors switch employers, as compared to other crafts of
employees. Therefore, FRA has removed statements from this final rule
comparing the frequency with which signal employees switch jobs to the
frequency with which other crafts of railroad employees switch jobs.
AAR and ASLRRA also contend that the hiring process for signal
employees is already thorough. AAR and ASLRRA noted that prospective
signal employees undergo pre-employment drug and alcohol testing. Then,
once they are hired, AAR and ASLRRA noted that signal employees are
subject to random and reasonable basis testing, as well as post-
accident/incident testing. FRA agrees that railroads are well
positioned to identify signal employees with substance abuse disorders,
given existing drug and alcohol testing programs conducted by railroads
in accordance with 49 CFR part 219. However, signal employee
certification will make it difficult for employees who commit certain
safety violations (including violations related to

[[Page 44843]]

prohibited drug and alcohol use) to continue performing safety-
sensitive work on railroad signal systems. By issuing this final rule
requiring signal employee certification, FRA is taking a proactive
approach to minimize (and hopefully eliminate) such occurrences in the
future.
In their comments on the definition of ``signal employee,'' APTA
requested clarification on how FRA defines ``related technology.'' APTA
noted that railroads may have electric traction department employees
performing railhead bonding and contractors performing non-vital work
such as running direct burial cable. However, APTA asserted that
neither the electric traction department employees nor the contractors
engaged in running direct burial cable should be considered signal
employees for purposes of this part. In addition, APTA asserted that
mechanical department employees working on a locomotive's onboard cab
signal/PTC equipment might be considered signal employees for purposes
of this part.
FRA agrees that individuals who engage in electric traction work,
such as railhead bonding, and the running of direct burial cable
(without permanently landing or splicing the cable) should not be
considered signal employees for purposes of this part. As noted in
FRA's Technical Bulletin S-19-01, ``Application of the Hours of Service
Laws to Positive Train Control Systems,'' digging trenches for laying
signal cable and running cable without permanently landing or splicing
the cable are not considered to be signal covered service.
However, employees who test signal system components (even so-
called ``self-tests'' of cab signal equipment installed on locomotives)
that require the employee to interact with the signal system component,
monitor the progress of the test, or interpret the results of the test
are considered to be ``signal employees'' who are subject to the
Federal hours of service law (49 U.S.C. 21104). Therefore, employees of
the railroad's mechanical department are considered ``signal
employees'' for purposes of this part if they test signal system
components that require the employee to interact with the component,
monitor the progress of the test, or interpret the results of the test.
Network Rail Consulting Inc. (NRC) noted in their comments that
employees engaged in signal design have not been included in the
definition of ``signal employee'' in Sec. 246.7. However, NRC contends
that competence management is needed for these employees as well. In
contrast, AAR and ASLRRA commented that the work performed by signal
design engineers (who program and test the vital and non-vital software
programs that perform the functions for a signal system) is very
specific and not related to the repair or maintenance of railroad
signal systems.
NRC is correct in noting that employees engaged in signal design
have not been included in the definition of ``signal employee,'' as
they are not considered signal employees for purposes of this part.
While competence management would likely be beneficial, as indicated in
FRA's Technical Bulletin S-19-01, individuals engaged in the production
and design of signal system hardware and software outside railroad
property are not generally covered by the Federal hours of service law.
NRC also asserted that the maintenance of signal technology in the
operations control center should be covered by this final rule. FRA
agrees that the maintenance of signal technology in the operations
control center plays an important role in signal system safety.
Accordingly, individuals who maintain signal technology in the
operations control center (such as electronic control system
technicians and centralized traffic control (CTC) maintainers) are
considered ``signal employees'' for purposes of this part. As stated in
FRA's Technical Bulletin S-19-01, FRA considers work affecting the
proper functioning of software to be signal covered service, for
purposes of the Federal hours of service law, whether in the field or
in an office location. Therefore, in general, individuals engaged in
loading, verifying, or testing software or configurations into PTC
system hardware are considered to be ``signal employees'' for purposes
of this part.
With respect to back-office employees, AAR and ASLRRA noted that
these employees are not considered to be signal employees for purposes
of the Federal hours of service law (49 U.S.C. 21101(4)). While AAR and
ASLRRA acknowledge that some back-office employees have limited ability
to remotely access onboard and wayside systems for research purposes,
AAR and ASLRRA assert that they do not have the ability to modify any
safety-critical component of PTC systems. Therefore, AAR and ASLRRA
assert that back-office employees should not be considered signal
employees for purposes of this part.
FRA agrees that back-office employees, such as PTC help desk
personnel, who do not have the ability to modify any safety-critical
component of the PTC system are not considered ``signal employees'' for
purposes of this part. However, back-office employees, such as the
centralized traffic control (CTC) maintainers, who engage in the
installation, troubleshooting, testing, repair, or maintenance of
systems that connect the dispatching system to the wayside or onboard
train control systems are considered signal employees for purposes of
this rule. These employees have historically been subject to the
Federal hours of service law for signal employees.
As noted earlier, FRA is adding a definition of ``signal
instructor'' to the final rule to facilitate the continued use of
third-party training organizations by railroads. Unlike qualified
instructors, signal instructors are not required to be certified signal
employees. However, as stated in the definition, signal instructors
must demonstrate adequate knowledge of the subject matter they are
teaching and have the necessary experience to provide formal training
of the subject matter. Therefore, even though the signal instructor may
not be employed by the railroad, FRA expects railroads to verify that
the signal instructors who are providing training on signal systems and
signal-related technology have adequate knowledge and the necessary
experience to do so.
A slight revision has been made to the definition of ``signal
system'' to clarify that this term refers to signal system software and
equipment. NRC commented on the proposed definition of ``signal
system'' in the proposed rule and asked FRA to clarify whether this
definition includes operations control center signal equipment, while
also recommending that FRA revise the definition of ``signal system''
in Sec. 246.7 to include a reference to ``train control and detection
systems.'' As noted earlier, FRA considers individuals who maintain
signal technology in the operations control center (such as electronic
control system technicians and CTC maintainers) to be signal employees
for purposes of this rulemaking. Therefore, even though the definition
of ``signal system'' has not been revised to include a specific
reference to ``train control and detection systems,'' FRA is clarifying
that operations control center signal equipment falls under the
definition of ``signal system'' for purposes of this part.
AAR and ASLRAA also commented on the definition of ``signal
system,'' asserting that FRA's definition of ``signal system'' is
inconsistent with the definition of this term in the Federal hours of
service law (49 U.S.C. 20501). The Federal hours of service law defines
``signal system'' as a block signal system, an interlocking, automatic
train

[[Page 44844]]

stop, train control, or cab-signal device, or a similar appliance,
method, device, or system intended to promote safety in railroad
operations.'' \28\ However, AAR and ASLRRA fail to mention that this
definition of ``signal system'' was issued on July 5, 1994 and covers
most of the signal system components that were regulated by FRA's
signal regulations in 49 CFR part 236 at that time. In the 30 years
that have elapsed since this definition of ``signal system'' was issued
in 49 U.S.C. 20501, FRA promulgated regulations that specifically
address PTC systems, as well as pathway grade crossings. Therefore, if
FRA limited the definition of ``signal system'' to a definition of this
term that was promulgated 30 years ago, FRA would have overlooked
recent developments in signal system technology and might have
inadvertently failed to require certification and related training for
signal employees who are tasked with working on recently developed
signal system components and signal-related technology.
---------------------------------------------------------------------------

\28\ 49 U.S.C. 20501.
---------------------------------------------------------------------------

AAR and ASLRRA also assert FRA needs to clarify that the term,
``signal system,'' does not include signal equipment that is not in
service. AAR and ASLRRA assert that FRA has no authority to regulate
equipment before or after it has been taken out of service. However,
this final rule does not directly regulate signal system equipment.
This final rule is intended to ensure that signal employees who install
(and remove from service) signal system components and signal-related
technology receive sufficient training to perform these tasks in a safe
manner. Given the importance of properly installing signal system
components that have not yet been placed in service, FRA does not agree
with AAR and ASLRRA that persons tasked with installing signal system
components which have not yet been placed in service should be exempt
from the signal employee certification requirements in this part.
Finally, AAR and ASLRRA commented that the definition of ``signal
system'' should not include wayside detection devices used to detect
defective conditions on locomotives and rolling stock (such as high-
wide load, hot or defective bearing, defective wheel detectors) or
other unsafe conditions (such as high-water, high-wind, sliding or
slumping soil, rock, or snow detectors) in non-signaled territory,
especially if the devices are not integrated into a signal system. AAR
and ASLRRA also noted that RSAC Working Group on wayside detectors
recently held its kickoff meeting on August 31, 2023. AAR and ASLRRA
note that, according to the RSAC Working Group's task statement, the
purpose of the Working Group is to consider and review issues related
to wayside detectors, including analyzing existing regulations and
guidance, accident, incident, and performance data, safety complaints,
and existing best practices. Therefore, AAR and ASLRRA assert that any
matters impacting how FRA treats wayside detection equipment should be
reserved for this RSAC Working Group (which consists of a multi-
disciplinary team of subject matter experts.)
As noted earlier, FRA's definition of the term ``signal employee''
is based on FRA's longstanding interpretation of what constitutes
signal covered service, as explained in FRA's Technical Bulletin S-19-
01. As stated in FRA's Technical Bulletin S-19-01, FRA considers
``installing, repairing, or maintaining locomotive and wayside
equipment that encodes or decodes transmissions (e.g., a wayside
messaging server) to be signal covered service.'' \29\ This final rule
does not directly regulate signal system equipment or signal-related
technology (such as wayside detection devices). Instead, the signal
employee certification regulations in this part are intended to ensure
that signal employees who install, troubleshoot, test, repair, or
maintain signal system components and signal-related technology (such
as wayside detection devices) receive sufficient training to perform
these tasks in a safe manner. Therefore, FRA disagrees with AAR and
ASLRRA that the signal certification requirements in this final rule
should not apply to signal employees who work on wayside detection
equipment because an RSAC Working Group has been created to consider
and review issues related to wayside detectors.
---------------------------------------------------------------------------

\29\ FRA Technical Bulletin S-19-01, page 5.
---------------------------------------------------------------------------

Given changes that have been made to the scope of this rulemaking
since the proposed rule stage (see the section-by-section analysis for
Sec. 246.3 above), this final rule contains a definition for the
phrase ``tourist, scenic, historic, or excursion operations that are
not part of the general railroad system of transportation.''. This
phrase means a tourist, scenic, historic, or excursion operation
(``tourist operation'') conducted only on track used exclusively for
that purpose. However, even if a tourist operation has a switch
connecting it to the general railroad system of transportation (general
railroad system), FRA does not consider the tourist operation part of
the general railroad system if the tourist operation's trains do not
enter the general railroad system and general system railroads do not
use the tourist operation's tracks for any purpose other than
delivering or picking up shipments from the tourist operation.
Section 246.11 Penalties and Consequences for Noncompliance
This section, derived from 49 CFR 240.11 and 242.11, explains that
FRA may impose civil penalties on any person, including a railroad or a
contractor (or a subcontractor) providing goods or services to a
railroad, who violates any requirement of this rule. IBEW expressed
support for the language in this section which states that individuals
should only be subject to civil penalties for willful violations.
In their comments on this section, NRC suggested that violations of
FRA regulations involving gross negligence, a pattern of repeated
violations, or death or injury should be grounds for permanent
revocation of signal employee certification. However, as indicated by
paragraph (c) of this section, FRA reserves the right to take
enforcement action against any person who causes or contributes to non-
compliance with FRA's rail safety regulations by assessing a civil
penalty or issuing an order prohibiting an individual from temporarily
or permanently performing safety-sensitive functions in the rail
industry. Therefore, FRA finds it unnecessary to revise this provision.

Subpart B--Program and Eligibility Requirements

Section 246.101 Certification Program Required
This section, derived from 49 CFR 240.101 and 242.101, requires
railroads to have written certification programs comprised of multiple
elements, each of which comports with specific regulatory provisions in
the rule related to that element. This section has been revised in the
final rule to include a reference to Sec. 246.120, which was added in
this final rule and requires railroads to qualify persons who work on
their signal systems and signal-related technology.
Paragraph (c) requires version control for certification programs.
Therefore, railroads (and parent companies, if applicable) are required
to maintain an up-to-date, detailed list or index tracking every change
made to their FRA-approved certification programs. FRA encourages
railroads and parent companies to maintain ``redlined''

[[Page 44845]]

versions, clearly reflecting revisions and indicating the year of the
version against which the revisions appear, of their certification
programs to reflect changes that have been made over the years.
Section 246.103 FRA Review of Certification Programs
This section, derived from 49 CFR 240.103 and 242.103, describes
FRA's process for reviewing and approving signal employee certification
programs.
BRS and TTD submitted comments contending that the deadlines in
paragraph (a) of this section should be revised. BRS asserted that
Class II and Class III railroads should be required to adhere to the
same deadline for submitting their certification programs to FRA as the
Class I railroads. Since Class I railroads and commuter service
railroads are required to submit their certification programs to FRA
within eight months of the effective date of this rule, BRS asserted
that aligning the certification program submission deadlines would
promote regulatory consistency, while sending a clear message that all
railroads, regardless of their size, are equally responsible for
meeting the certification requirements within a defined timeframe.
TTD commented that FRA should require Class II railroads to submit
their certification programs to FRA within eight months of the
effective date of this rule. IBEW submitted a similar comment asserting
that several Class II railroads have the capability and resources to
develop certification programs within eight months and those Class II
railroads should do so to avoid unnecessary delays in implementing this
rule.
Despite these comments, FRA has decided to retain the program
submission schedule in the proposed rule. In the eight months between
the deadlines referenced in paragraphs (a)(1) and (a)(2) of this
section, FRA will be devoting its resources to reviewing approximately
40 certification programs from Class I and commuter railroads \30\ and
is unlikely to have the capacity to begin its review of programs
submitted by Class II railroads until after the 16-month deadline.
Also, FRA is concerned that the eight-month deadline proposed by the
unions may put too much of a strain on some Class II and III railroads.
Thus, while FRA shares the unions' desire for speedy implementation of
this rule, FRA does not believe that giving Class II and III railroads
16 months to develop and submit their certification programs to FRA
will delay implementation.
---------------------------------------------------------------------------

\30\ Regulatory Impact Analysis of the Certification of Signal
Employees Final Rule, Docket No. FRA-2022-0020, p. 15.
---------------------------------------------------------------------------

Paragraph (c) of this section requires railroads (and parent
companies, if applicable) to submit their certification programs and
their requests for FRA approval (which are described in greater detail
in Sec. 246.106(a)) by emailing them to <a href="/cdn-cgi/l/email-protection#397f6b786a707e7778757a7c6b6d696b767e795d564d175e564f">[email&#160;protected]</a>.
Paragraph (c) has been revised in the final rule to allow parent
companies to submit certification programs on behalf of one or more of
their subsidiary railroads. Paragraph (c) has also been revised to
require railroads and parent companies to submit their certification
programs and requests for FRA approval to a specified email address. In
the NPRM, this paragraph stated that signal employee certification
programs should be uploaded to a secure document submission site.
However, after further consideration, FRA determined that it would be
easier for both railroads and the agency if certification programs and
requests for FRA approval are submitted to a dedicated FRA email
address.
When a railroad or parent company submits its certification program
to FRA, paragraph (d) of this section also requires the railroad or
parent company to submit a copy of the program and the request for FRA
approval to the president of each labor organization that represents
the railroad's signal employees and to all of the railroad's signal
employees who would be subject to this part. In their comments, AAR and
ASLRRA assert that railroads should not have to have their
certification programs approved by the labor union president and all of
the railroad's signal employees. AAR and ASLRRA claim such a
requirement would be a substantial change from FRA's locomotive
engineer and conductor certification rules and would be arbitrary and
capricious. AAR and ASLRRA also expressed concern that a labor union
president could potentially hold up approval forcing the railroad to
miss deadlines. In addition, AAR and ASLRRA contend that requiring
approval of the labor union president creates an inherent conflict of
interest because FRA is allowing the labor union president to approve
and exercise control over when and how the railroad uses contractors to
perform work on certain signal equipment.
AAR and ASLRRA's concern with respect to paragraph (d) of this
section is unwarranted. This rule does not require railroads to obtain
approval of their certification programs from labor union presidents or
their signal employees. Paragraph (d) only provides these individuals
with the opportunity to review and comment on these programs. FRA
believes the source of AAR and ASLRRA's confusion was the reference to
a ``request for approval'' in paragraph (d)(1) of this section in the
proposed rule. However, this document, which is described in greater
detail in Sec. 246.106, is a request for approval from FRA, not from a
union president or signal employee. To avoid further confusion, FRA has
revised references to ``request for approval'' in this section to
``request for FRA approval.''
Several labor organizations, including BRS, IBEW, and TTD expressed
concern about the 45-day comment period for railroad certification
programs in paragraph (e). They are particularly concerned about the
initial influx of programs they will have to review after this rule
takes effect, especially if multiple railroads submit their signal
employee certification programs on or about the same date, and contend
that 45 days will not be enough time to thoroughly review and assess
each railroad's certification program. TTD specifically noted its
experience with FRA's PTC dockets, asserting that it has been rushed to
provide comments on amendments to the critical safety systems described
in PTC Safety Plan Requests for Application in fewer than three weeks,
due to delays in posting notices in the Federal Register that announce
the submission of these documents to FRA. Therefore, these labor
organizations request that the comment period be extended to 90 days.
Based on these comments from labor organizations, FRA has extended
the comment period from 45 days to 60 days. This change will provide
commenters with additional time to draft and submit meaningful comments
to assist FRA in its review of these programs. However, in an effort to
avoid further delays to the implementation of this rule, FRA is
declining to extend the comment period to 90 days. FRA understands that
labor organizations are particularly concerned about the initial influx
of programs they will need to review when this rule first goes into
effect, but once the effective date of this rule is established, labor
organizations will have several months to plan how to efficiently
allocate their resources when they anticipate receiving a large number
of programs to review. Also, FRA will consider late-filed comments to
the extent practicable and will extend comment periods on a case-by-
case basis if circumstances warrant (especially during these initial
periods where there is a high volume of programs to review).
AAR and ASLRRA are also opposed to FRA's review and approval
process in paragraph (f) of this section.

[[Page 44846]]

Specifically, AAR and ASLRRA contend that the proposed process allows
FRA ``to arbitrarily hold railroads in limbo for an indefinite time
period even if their programs are fully compliant'' \31\ and does
nothing to ensure that FRA's review process is handled expeditiously.
Instead, AAR and ASLRRA recommend that FRA implement the same review
and approval process found in parts 240 and 242, whereby a
certification program or material modification is considered approved
30 days after it was submitted unless FRA notifies the railroad in
writing that its program has been disapproved.
---------------------------------------------------------------------------

\31\ FRA-2022-0020-0035.
---------------------------------------------------------------------------

FRA is, however, declining to adopt this suggestion as it is
untenable following a 2020 decision from the U.S. Court of Appeals for
the District of Columbia Circuit (D.C. Circuit). In Brotherhood of
Locomotive Engineers and Trainmen v. Federal Railroad Administration,
the D.C. Circuit invalidated FRA's passive approval of a modification
to Kansas City Southern Railway's locomotive engineer certification
program. In its decision, the court noted that the Administrative
Procedure Act ``requires agencies to reasonably explain to reviewing
courts the bases for the actions they take and the conclusions they
reach.'' \32\ The court found FRA's passive approval system allowed for
a ``complete absence of any accompanying explanation for the agency's
approval'' of the certification program.\33\ Since the administrative
record did not contain any explanation or reasoning for the
determinations made by FRA in approving the program, the court vacated
and remanded the case for FRA to provide a more complete explanation of
the agency's action or to take new agency action altogether.\34\
---------------------------------------------------------------------------

\32\ Brotherhood of Locomotive Engineers & Trainmen v. Fed. R.R.
Admin., 972 F.3d 82, 115 (D.C. Cir. 2020).
\33\ Brotherhood of Locomotive Engineers & Trainmen, 972 F.3d at
116-17.
\34\ Brotherhood of Locomotive Engineers & Trainmen, 972 F.3d at
117.
---------------------------------------------------------------------------

Given the D.C. Circuit's criticism of the passive approval system
in part 240, it would be ill-advised for FRA to include a similar
system in this rule. Therefore, paragraph (f) of this section creates a
new system in which a certification program is not considered approved
by FRA until the agency issues an approval letter to the railroad or
parent company. Contrary to AAR and ASLRRA's comment, FRA will not
arbitrarily hold railroads in limbo for an indefinite period of time.
FRA will make every effort to meet its goal of issuing a decision on a
program within 120 days of submission. (This goal was 90 days in the
NPRM.) However, as noted above, FRA is extending the comment period on
signal employee certification programs to 60 days in this final rule.
Accordingly, 120 days for FRA to complete its review of these programs
is a more realistic goal. As FRA acknowledged in the NPRM, meeting this
goal will not always be feasible and will be especially difficult
during the initial implementation of this rule when FRA will receive
several programs to review at the same time. During this time,
railroads will be able to continue to operate as they did before this
rule went into effect so it is unclear how railroads will be harmed by
such delays.
Paragraph (g) of this section addresses the process for railroads
and parent companies that wish to make a material modification to their
previously approved programs. AAR and ASLRRA assert that the definition
of ``material modification'' in paragraph (g)(1) of this section is
vague and should be revised to avoid stifling innovations in safety
systems. In particular, AAR and ASLRRA recommend that FRA ``allow
railroads to use different delivery methods and to incorporate new
technology without treating those changes as material modifications.''
AAR and ASLRRA also contend that FRA should limit material
modifications to significant content-based changes that are likely to
impact safety, as opposed to treating edits to test questions,
structure, and timelines as material modifications.\35\
---------------------------------------------------------------------------

\35\ FRA-2022-0020-0035.
---------------------------------------------------------------------------

However, the term ``material modification'' is intended to cover
any change in an approved certification program that significantly
affects the certification process. This may include alterations to the
training curriculum; modifications to testing or assessment methods;
changes to the duration of the program or program components (such as
training); changes to the number of test questions or the scoring
system; or any other change that would substantially impact the way
signal employees are trained, evaluated, and certified. It is vital
that FRA and stakeholders have the opportunity to review these proposed
changes to a certification program to ensure they align with the
overall goals of maintaining safety and compliance.
There are significant safety concerns at play when incorporating
new technologies. If new technologies do not receive an appropriate
level of oversight, safety risks can be introduced into the system
which could also undermine public confidence in railroad safety.
Therefore, FRA and stakeholders must be engaged in the review of
modifications to certification programs as provided in paragraph (g) of
this section. Railroads and parent companies should not introduce new
signal technologies without considering them to be material
modifications to their signal employee certification programs.
Paragraph (h) of this section describes the process to resubmit a
program or material modification that was previously disapproved by
FRA. TTD expressed support for paragraph (h)(3) of this section which
states that railroads with operational signal systems as of the
effective date of this final rule must resubmit their certification
program within 30 days, if notified by FRA that their program has been
disapproved. TTD cited to instances of railroads not bringing their
certification programs into compliance with parts 240 and 242 of this
chapter, specifically referencing recent accidents involving Norfolk
Southern Railway Company as support for their position. TTD also
recommended that FRA amend this section to authorize the issuance of
fines against railroads that ``repeatedly are not compliant with the
certification requirements.'' \36\ FRA appreciates TTD's comment;
however, such an amendment is unnecessary, as Sec. 246.11 authorizes
FRA to issue civil penalties for violations of this part. FRA will
publish a civil penalty schedule for this part on its website.
---------------------------------------------------------------------------

\36\ FRA-2022-0020-0032, p.8.
---------------------------------------------------------------------------

Section 246.105 Implementation Schedule for Certification Programs
This section, derived from 49 CFR 240.201 and 242.105, contains the
timetable for implementation of this final rule. APTA commented that
railroads should be allowed to designate individuals who are in an
initial training program when this rule goes into effect so that they
can become certified signal employees upon completion of the training
program. APTA contends that implementing certification requirements in
the middle of a training program would be disruptive to the
participants and instructors.
In response to APTA's comment, paragraph (d) of this section allows
railroads to continue to designate as certified signal employees those
individuals who have been authorized by the railroad to perform the
duties of a signal employee until FRA approves the railroad's
certification program.

[[Page 44847]]

Therefore, railroads will be able to continue to designate individuals
as certified signal employees for several months after the effective
date of this rule, which should include any person who is in a signal
employee training program on the effective date of this rule. However,
railroads will no longer be able to designate persons as certified
signal employees under paragraph (d) once FRA approves the railroad's
program. FRA understands that some individuals will likely be in the
middle of a training program when this occurs, but railroads will have
several months to prepare for this occurrence and to figure out the
best way to minimize any disruption.
FRA is revising paragraph (d) from the proposed rule to clarify
that railroads are only allowed to ``designate'' persons as certified
signal employees in accordance with paragraph (d) between March 17,
2025 and the date FRA approves the railroad's certification program.
Once FRA approves a railroad's certification program, the designation
system described in paragraph (d) will no longer be allowed and
individuals will be required to obtain certification pursuant to the
railroad's certification program.
AAR and ASLRRA submitted comments recommending that FRA create an
exception for circumstances in which non-certified railroad employees
perform minor or routine corrections to signal systems. In support of
this recommendation, AAR and ASLRRA pointed to circumstances in which
maintenance of way personnel are tasked with disabling signals. AAR and
ASLRRA assert that activities of this nature should not require signal
employee certification.
FRA would like to clarify that tasks associated with disabling
signal systems, which are performed outside the signal bungalow, are
not considered to be signal covered service for purposes of the Federal
hours of service law. Therefore, maintenance of way employees engaged
in tasks performed outside the signal bungalow to disable the signal
system are not considered to be performing signal system work that
requires signal employee certification. However, tasks associated with
disabling signal systems that are performed inside the signal bungalow
are considered to be signal covered service under the Federal hours of
service law and, therefore, signal system work that requires signal
employee certification pursuant to this part.
To address the issue of designated signal employees who will be
eligible to retire within three years of the date FRA approves their
railroad's certification program, paragraphs (f)(1) through (3) allow
signal employees who are eligible to receive a retirement pension to
submit a request to their railroad that they not be certified, in
accordance with subpart B of this part, until three years from the date
FRA approves the railroad's program.
AAR and ASLRRA recommended, however, that FRA eliminate paragraphs
(f)(1) through (3), as they contend these provisions are contrary to
FRA's safety rationale for this rule and would allow a signal employee
to forego certification for up to six years. AAR and ASLRRA also assert
that these provisions will be burdensome on railroads, as they will
have to keep track of a special category of employees and establish
special protocols for them.
However, after considering those comments, FRA is retaining
paragraphs (f)(1) through (3) in this final rule. These paragraphs
simply allow signal employees who meet the requirements of paragraph
(f)(1) to request that their employing railroad not make them go
through the full certification process until their designated
certification expires (three years after FRA approves the railroad's
certification program). From FRA's perspective, it does not appear to
be an efficient use of railroad resources to require designated signal
employees who are going to retire before the end of their designation
period to complete the full certification process. However, except as
provided in paragraph (f)(2), railroads are not required to grant these
requests. Paragraph (f)(2) of this section states that, if a railroad
grants any such request, the railroad must grant all other requests
from eligible persons ``to every extent possible.'' In addition, this
paragraph does not create a loophole where a signal employee could
continue to work on railroad signal systems and signal-related
technology for up to six years without a mentor and forego
certification. Paragraph (f) plainly states that no person shall be
allowed to perform service as a certified signal employee more than
three years after their railroad's certification program is approved by
FRA without being tested and evaluated in accordance with procedures
that comply with subpart B of this part.
Section 246.106 Requirements for Certification Programs
This section contains the organizational requirements and a
narrative description of what must be included in a railroad's (or
parent company's) certification program. This section has been revised
in the final rule to address the submission of certification programs
by parent companies. The International Transportation Learning Center
(ITLC) submitted comments recommending that FRA authorize the use of
model signal employee certification programs, which could be
transferable between railroads. FRA anticipates that a non-profit
industry association will likely develop a model signal employee
certification program template, which can be adopted for use by Class
III railroads. However, after considering ITLC's comment, FRA has
decided to authorize the submission of signal employee certification
programs by parent companies on behalf of one or more of their
subsidiary railroads. Therefore, the requirements in this part that
apply to railroads subject to this part also apply to parent companies
who submit signal employee certification programs to FRA for approval
on behalf of one or more of their subsidiary railroads.
Paragraph (a) of this section addresses what must be included in a
certification program submission to FRA. The railroad or parent company
must include two documents in its submission: (1) a request for FRA
approval; and (2) the certification program. If a railroad is
submitting its initial certification program, the request for FRA
approval can be a brief document that simply states the railroad is
submitting its initial signal employee certification program to FRA for
approval. However, if a parent company is submitting a certification
program on behalf of one or more of its subsidiary railroads, the
parent company must provide a list of the railroads that will utilize
the certification program. Also, as stated in paragraph (a)(1)(iii), by
submitting a certification program on behalf of one or more subsidiary
railroads, the parent company assumes responsibility for compliance
with this part for all railroads identified on its list that will
utilize the parent company's certification program.
If a railroad or parent company would like to make a material
modification to a signal employee certification program that has
previously been approved by FRA, the request for FRA approval must
include a copy of the modified certification program that identifies
all of the proposed changes from the last FRA-approved version of the
program.
Paragraph (b) of this section requires that signal employee
certification programs identify the appropriate person to be contacted
in the event FRA needs to discuss an aspect of the railroad's program.
Paragraph (b)(1) also requires that railroads (and parent companies, if
applicable) submit a

[[Page 44848]]

statement electing either to accept responsibility for training persons
not previously certified as signal employees (``initial signal employee
training'') or to not accept this responsibility.
If the railroad or parent company elects to not accept
responsibility for providing initial signal employee training, the
railroad or parent company will be limited to certifying signal
employees previously certified by another railroad. Prior to certifying
these signal employees, however, the railroad or parent company is
required by Sec. 246.125 to determine that the signal employee: (a) is
qualified on the signal system equipment and signal-related technology
deployed on the railroad territory where the signal employee is
expected to work; and (b) has demonstrated sufficient knowledge of the
certifying railroad or parent company's signal standards, test
procedures, and instructions for the installation, operation, testing,
maintenance, troubleshooting, and repair of the certifying railroad or
parent company's signal system equipment and signal-related technology.
On the other hand, if the railroad or parent company elects to
accept responsibility for providing initial signal employee training to
persons not previously certified as signal employees, paragraph
(b)(1)(iii) requires the railroad or parent company to submit
information in their certification program explaining how such persons
will be trained. The railroad or parent company has two options. The
first option is to provide training through a program developed by the
railroad or through a training program adopted by the railroad. The
second option is to authorize another railroad or non-railroad entity
(which may include a railroad association or rail-labor organization)
to provide training. However, if the railroad or parent company chooses
the second option, the railroad or parent company will be responsible
for ensuring that the training provider adheres to the training program
submitted in the railroad or parent company's FRA-approved
certification program. A railroad or parent company that chooses to
authorize another railroad or non-railroad entity to provide the
training must also provide the name of the training provider in its
certification program.
For railroads and parent companies that elect to classify their
certified signal employees into more than one occupational category or
subcategory by class, task, location, or other suitable terminology,
paragraph (b)(1)(iv) requires the railroad or parent company to provide
detailed information about each occupational category (and subcategory,
if applicable) of certified signal employee service in Section One of
its certification program.
Paragraph (b)(2) requires railroads (and parent companies, if
applicable) to address in Section Two of their certification programs
how they will provide training for previously certified signal
employees. A matter of particular concern to FRA is how each railroad
will ensure previously certified signal employees receive sufficient
training on the signal systems and signal-related technology deployed
on the railroad's territory. Railroads have the latitude to select the
specific subject matters to be covered, the duration of continuing
education sessions, the methods of presenting the information, and the
frequency with which continuing education will be provided. However,
railroads (and parent companies, if applicable) must describe in this
section how they will ensure their certified signal employees maintain
the necessary knowledge and skills and receive up-to-date and
comprehensive training on their signal system equipment and signal-
related technology (including new or modified equipment and software
modifications) so as to ensure their certified signal employees are
qualified on the equipment and technology and compliant with the
training standards set forth in Sec. 246.119.
Time and circumstances can diminish both abstract knowledge and the
proper application of that knowledge to discrete events. Time and
circumstances can also alter the value of previously obtained knowledge
and the application of that knowledge. Therefore, certified signal
employees also need to have their fundamental knowledge of applicable
Federal railroad safety laws and regulations, as well as railroad
signal system safety rules and practices, refreshed periodically.
Therefore, railroads (and parent companies, if applicable) must also
describe in Section Two how they will ensure their certified signal
employees remain knowledgeable about the safe discharge of their
responsibilities, in accordance with Sec. 246.119. In addition,
railroads (and parent companies, if applicable) must explain in Section
Two how training will be administered for previously certified signal
employees who have had their certification expire. (This requirement
was included in Sec. 246.125(b) in the NPRM.) If the railroad or
parent company fails to address in Section Two of its certification
program how training will be administered to these signal employees,
the railroad or parent company must require completion of its entire
training program by previously certified signal employees who have had
their certification expire.
Section Three of the certification program must address
requirements for the testing and evaluation of previously certified
signal employees. Paragraph (b)(3)(i) requires railroads (and parent
companies, if applicable) to address how their certification programs
will comply with the standards found in Sec. 246.121. Section 246.121
requires railroads to employ a written or electronic test containing
objective questions that address the following subject matters: (i)
compliance with all applicable Federal railroad safety laws,
regulations, and orders governing signal systems and signal-related
technology; (ii) compliance with all applicable railroad safety and
operating rules; and (iii) compliance with all applicable railroad
standards, procedures, and instructions for the installation,
operation, testing, maintenance, troubleshooting, and repair of the
railroad's signal systems and related technology. In addition, the test
must include a practical demonstration component. Paragraph (b)(3)(ii)
requires railroads (and parent companies, if applicable) to explain
their procedures for testing visual and hearing acuity and for ensuring
that their medical examiners have sufficient information to make
determinations on whether candidates for signal employee certification
or recertification can safely work as certified signal employees.
Section Four of the certification program addresses the
requirements for training, testing, and evaluating persons not
previously certified as signal employees. Railroads and parent
companies that elect, in Section One of the certification program, to
not accept responsibility for providing initial signal employee
training can skip this section. Paragraph (b)(4) requires railroads and
parent companies that elect to provide training to persons who have not
been previously certified as signal employees to provide details in
Section Four of their certification programs on how they will train,
test, and evaluate these individuals to ensure they acquire and
demonstrate sufficient knowledge and skills to safely perform the job
of a certified signal employee.
Railroads and parent companies can authorize non-railroad entities
(including signal contractors) to provide the required training.
Railroads and parent companies that choose to authorize non-railroad
entities to provide the required training will likely find that most,
if not all, existing signal

[[Page 44849]]

employee training programs approved by FRA pursuant to part 243 of this
chapter will need to be revised to comply with the additional training
and knowledge testing requirements in this part that specifically apply
to signal employees.
Railroads (and parent companies, if applicable) are also required
by paragraph (b)(4)(iv) to explain how training will be administered to
previously uncertified signal employees who have extensive signal
experience. This requirement was previously contained in Sec.
246.125(b) in the proposed rule. If a railroad or parent company elects
to provide training to persons who have not been previously certified
as signal employees, but fails to specify how it will train these
signal employees, the railroad or parent company must require
previously uncertified signal employees with extensive signal
experience to complete its entire training program.
Paragraph (b)(5) requires railroads (and parent companies, if
applicable) to discuss in Section Five of their certification programs
how they monitor the operational performance of their certified signal
employees in accordance with Sec. 246.123. In particular, the railroad
or parent company must discuss the processes and procedures it will use
for ensuring that such monitoring and testing is performed. This must
include a description of the scoring system the railroad or parent
company will employ during monitoring observations and unannounced
tests.
Finally, paragraph (b)(6) requires Section Six of a railroad or
parent company's certification program to address how the railroad or
parent company will perform routine administration of the program. This
section must include a summary of how the program will comply with each
of the regulatory provisions listed in paragraph (b)(6).
Section 246.107 Signal Service Classifications
This section allows, but does not require, railroads to issue
certificates for one or more occupational categories or subcategories
of certified signal employee service. While some railroads with only
one type of signal employee service might not have any interest in
certifying multiple types of signal employee service, larger railroads
that have already established multiple categories of signal employee
service (such as signal maintainers, signal inspectors, locomotive
signal/electrical technicians, etc.) on their territories may find it
beneficial to issue certificates for multiple types of signal employee
service. Therefore, by allowing railroads to classify their certified
signal employees into multiple occupational categories or
subcategories, railroads will have the flexibility to shape the
structure of their certification programs to highlight the specific
tasks and responsibilities for each category and subcategory of
certified signal employee working on their territories.
A railroad that classifies its certified signal employees into
separate categories, such as signal maintainers, signal inspectors, and
locomotive signal/electrical technicians, can issue specific
certificates for each category of signal employee service. This section
also permits railroads to certify signal employees for signal system
work on specific railroad divisions or subdivisions, as opposed to
issuing one universal signal employee certificate that would certify
the signal employee to perform signal system work anywhere on the
certifying railroad's territory. As further explained in the section-
by-section analysis of Sec. 246.106(b), railroads that choose to
classify their certified signal employees into multiple occupational
categories and subcategories are required by Sec. 246.106(b)(1)(iv) to
provide detailed information about each occupational category (and
subcategory, if applicable) of its certified signal employees.
The Washington Utilities and Transportation Commission (UTC)
recommended, in their comments, that FRA require railroads to have
multiple classifications of signal employees. Noting that there are
many technical differences in signal job categories, as well as varying
signal employee experience and skill levels, UTC asserted that
requiring signal employee classification will ensure signal employees
are trained to work only on the signal system for which they are
certified. FRA shares UTC's concern with railroad practices that result
in signal employees working on signal systems on which they have not
been sufficiently trained.
Accordingly, paragraph (b) of this section requires individuals to
immediately notify the railroad (or their employer, if they are not
employed by a railroad) if they are called to work on a signal system
or signal-related technology on which they have not been certified.
However, even more importantly, when notified that a person has been
called to work on a signal system or signal-related technology on which
they have not been certified, paragraph (c) prohibits the railroad from
requiring the person to work on the signal system or signal-related
technology unless the person is allowed to work under the direct and
immediate supervision of a mentor or qualified instructor in accordance
with Sec. 246.124. FRA believes these requirements, in addition to the
overarching requirement that railroads develop signal employee
certification programs with training, knowledge testing, and
operational performance monitoring components for FRA approval, will
address UTC's concern regarding signal employees who are instructed to
work on signal systems on which the signal employee has not been
sufficiently trained.
With respect to paragraph (c), BRS expressed concern that the
wording in this paragraph may cause confusion. FRA has therefore
revised paragraph (c) to provide clarification. After a railroad's
signal employee certification program has been approved by FRA,
paragraph (c) prohibits the railroad from requiring any person to work
on a signal system or signal-related technology on which the person has
not been certified and qualified, unless the person works under the
direct and immediate supervision of a mentor or qualified instructor.
Section 246.109 Determinations Required for Certification and
Recertification
This section lists the determinations that railroads are required
to make when evaluating a candidate's eligibility to be certified or
recertified as a signal employee. This section has been revised in the
final rule by including a reference to the qualification requirements
in Sec. 246.120. An additional minor revision has also been made to
replace the reference to ``vision . . . acuity standards'' in paragraph
(a)(3) of the NPRM with a reference to ``visual . . . acuity
standards'' in this final rule.
Section 246.111 Prior Safety Conduct as Motor Vehicle Operator
This section, derived from 49 CFR 240.111, 240.115, and 242.111,
contains the requirements and procedures that railroads are required to
follow when evaluating the motor vehicle driving records of a candidate
for signal employee certification or recertification. BRS, IBEW, and
TTD submitted comments on this section expressing concern that a 60-day
time period may not allow enough time to request and obtain driving
records as part of the recertification process, due to administrative
delays outside the recertification candidate's control. However,
paragraph (c) requires candidates for signal employee recertification
to request their driving records at least 60 days prior to the date

[[Page 44850]]

on which their certification expires. Therefore, at least 120 days will
elapse between the date on which candidates for recertification
requests their driving records and the end of the 60-day period ``grace
period'' authorized by paragraph (c). However, if a candidate for
signal employee certification or recertification is unable to obtain
their driving records, despite the grace period provided in paragraph
(c), paragraph (e) authorizes either the railroad or the candidate for
signal employee certification or recertification to submit a waiver
petition for regulatory relief.
BRS and TTD recommended that FRA differentiate requirements for
obtaining driving records based on the position a signal employee
occupies and whether the signal employee is required to operate a motor
vehicle. In addition to BRS and TTD, IBEW and NRC expressed concern
that requiring railroads to include a review of driving records in
their certification programs may inadvertently result in barring
certified signal employees and otherwise perfect candidates for signal
employee certification who have unsatisfactory driving records from
obtaining signal employee certification and recertification.
The intent of this section is not to ensure that every certified
signal employee can operate company vehicles, if required to do so.
Instead, the intent of this section is to obtain and review motor
vehicle records to identify candidates for signal employee
certification and recertification who have either been convicted of (or
subject to the cancellation, revocation, suspension, or denial of a
motor vehicle driver's license for) operating a motor vehicle while
under the influence of, or impairment by, alcohol or a controlled
substance. By identifying these individuals, they can be referred for
evaluation (and potentially treatment) for an active substance abuse
disorder, given the safety sensitive nature of certified signal
employee work on railroad signal systems and other signal-related
technology. Accordingly, as explained in paragraph (m) of this section,
the only motor vehicle incidents railroads may consider are related to
being under the influence of, or impaired by, alcohol or a controlled
substance. This means railroads are not allowed to consider a person's
speeding violations or other aspects of their motor vehicle driving
record that are not related to alcohol or drug use when making a
determination for signal employee certification.
In the NPRM, paragraph (h)(2) of this section required all persons
seeking certification or recertification to request driving records
from the chief of the driver licensing agency of any jurisdiction,
including states or foreign countries, that issued or reissued that
person a driver's license in the past five years. This paragraph
mirrored 49 CFR 240.111(c)(2).\37\ However, FRA determined that a five-
year lookback period was unnecessary in this final rule because
paragraph (l)(2) of this section only allows railroads to consider
motor vehicle driving incidents that occurred within the three years
prior to the date of the railroad's certification decision. Thus, FRA
changed the lookback period to three years. Furthermore, rather than
focusing on when a jurisdiction issued or reissued a driver's license,
FRA thinks the more appropriate inquiry is whether a person held a
driver's license from the jurisdiction within the previous three years.
Therefore, this paragraph has been revised in accordance with these
changes.
---------------------------------------------------------------------------

\37\ The Rail Safety Improvement Act of 1998 required the five-
year lookback period for persons seeking locomotive engineer
certification. Public Law 100-342, sec. 4, 102 Stat. 624, 625
(1988). However, no such requirement applies to this rule.
---------------------------------------------------------------------------

Paragraph (k) of this section requires certified signal employees
and candidates seeking signal employee certification to notify their
certifying railroad of motor vehicle incidents described in paragraphs
(m)(1) and (2) (i.e., drug and alcohol offenses) of this section within
48 hours of conviction or completed state action to cancel, revoke,
suspend, or deny the employee or candidate's motor vehicle driver's
license for operating a motor vehicle while under the influence of, or
impairment by, alcohol or a controlled substance or refusal to undergo
such testing. Paragraph (k) also provides that, for purposes of signal
employee certification, a railroad cannot have a more restrictive
company rule requiring a signal employee to report a conviction or
completed state action to cancel, revoke, suspend, or deny a motor
vehicle driver's license in less than 48 hours. AAR and ASLRRA
criticized the language in this provision that precludes railroads from
having more restrictive company rules requiring signal employees to
report a conviction or completed State action to cancel, revoke, or
deny a motor vehicle driver's license in less than 48 hours. AAR and
ASLRRA assert that, as a practical matter, railroads should be able to
request notification in less than 48 hours as a matter of company
policy if they determine notification is in the safety interest of the
railroad. AAR and ASLRRA further assert that they could easily envision
a scenario where safety would be decreased because an employee takes
advantage of the 48-hour grace period after being convicted to delay
notification. After considering these concerns, FRA is declining to
adopt this requested change. By keeping this requirement in paragraph
(k), a railroad cannot revoke, deny, or otherwise make a person
ineligible for certification until that person has received due process
from the state agency taking action against their motor vehicle
driver's license. However, this 48-hour restriction only applies to
actions taken against a person's signal employee certification and has
no effect on a person's right to be employed by that railroad. By
keeping this restriction, paragraph (k) maintains conformity with 49
CFR 240.111(h) and 242.111(l).\38\
---------------------------------------------------------------------------

\38\ This issue was also addressed and discussed 25 years ago
when FRA was amending its locomotive engineer certification rule.
See 63 FR 50626, 50639 (Sept. 22, 1998).
---------------------------------------------------------------------------

Paragraph (l) of this section prohibits railroads from considering
motor vehicle driving incidents that occurred prior to the effective
date of this rule or more than three years before the date of the
railroad's certification decision. AAR and ASLRRA commented that there
is no safety reason to limit the review of motor vehicle records to
three years as this limitation makes it difficult to establish a
pattern of safety abuses.
However, the three-year limit on motor vehicle driving records that
can be reviewed for purposes of this rule is based on practical
considerations. The three-year limit in paragraph (l) is intended to be
consistent with minimum record retention practices of state driver
licensing agencies. The three-year limit is also consistent with 49 CFR
parts 240 and 242.
With respect to FRA's decision to prohibit railroads from
considering safety conduct that occurred prior to the effective date of
this rule, FRA is guided both by fairness and by the law. While
retroactive effects are not completely prohibited by the Administrative
Procedure Act, the U.S. Supreme Court has stated that ``[r]etroactivity
is not favored in the law.'' \39\ Moreover, even if there were a
substantial justification for the retroactive application of a
rulemaking, ``courts should be reluctant to find such authority absent
an express statutory grant.'' \40\ Given that there is no express
statutory grant of authority for this rule to have retroactive effects,
FRA has decided not to allow railroads to

[[Page 44851]]

consider safety conduct that occurred prior to the effective date of
this rule.
---------------------------------------------------------------------------

\39\ Bowen v. Georgetown University Hosp., 488 U.S. 204, 208
(1988).
\40\ Bowen, 488 U.S. at 208-09.
---------------------------------------------------------------------------

Section 246.117 Visual Acuity
This section, derived from 49 CFR 240.121, 240.207, and 242.117,
contains requirements for visual acuity testing that railroads must
incorporate in their signal employee certification programs. As an
initial matter, in the NPRM, FRA used the terms ``visual acuity'' and
``vision acuity.'' In the interest of consistency, FRA is using the
term ``visual acuity'' throughout this final rule, which includes
changing the title of this section to ``visual acuity.'' \41\
---------------------------------------------------------------------------

\41\ ``Visual acuity'' appears to be the term used in the
medical field. See Visual Acuity, American Optometric Association,
found at <a href="https://www.aoa.org/healthy-eyes/vision-and-vision-correction/visual-acuity?sso=y">https://www.aoa.org/healthy-eyes/vision-and-vision-correction/visual-acuity?sso=y</a>.
---------------------------------------------------------------------------

FRA solicited comments in the NPRM on whether visual acuity
standards are necessary for certified signal employees and if so,
whether they should be as stringent as existing standards for
locomotive engineers and conductors. Multiple comments were submitted,
including comments from labor organizations and railroad industry
associations. Most commenters, including BRS and TTD, expressed support
for requiring individuals to meet the distant visual acuity standard of
at least 20/40 (Snellen) in each eye when initially hired to work as a
signal employee. Noting that vision and hearing standards are critical
to job performance, NRC commented that the visual and hearing acuity
standards for certified signal employees should be the same as FRA's
visual and hearing acuity standards for certified locomotive engineers
and conductors.
In contrast, AAR and ASLRRA submitted comments urging FRA to
consider whether the visual acuity requirements are tailored to the
work performed by signal employees. AAR and ASLRRA recommended that,
prior to implementing visual and hearing acuity requirements, FRA
should analyze the components of a signal employee's duties and address
how particular visual and hearing acuity requirements impact the
ability of signal employees to safely perform their work.
In response to these comments, FRA closely reviewed the tasks
performed by signal employees and determined that a signal employee's
visual acuity is a critical component of a signal employee's roles and
responsibilities. In recent years the equipment on which signal
employees work has significantly evolved. Historically, employees were
required to interpret circuit plans, manuals, railroad standards, relay
positions, and the color of signals. North American signals generally
fall into three categories of multi-head electrically lit units. These
are the searchlight, color light, position light/color position light.
Each of these units requires a colored lens or roundel to be installed
in front of the light. Visual acuity is therefore critical to a person
performing signal employee work. Being able to distinguish the color of
signal lenses/roundels utilized in the industry signals is critical to
ensure the correct signal aspect is presented as intended to the train
crew. In the past, the color of a signal lens/roundel was often
embossed on the lens itself, which helped signal employees ensure the
correct lens was placed in the proper position within a signal head.
However, some lenses/roundels are not marked in a manner to indicate
their color. So, it is incumbent on the signal employee installing the
lenses/roundels to be able to distinguish its color.
With the introduction of light emitting diodes (LED), a signal
employee must be able to distinguish the actual color the LED emits.
When testing, this must be accomplished a significant distance away
from the signal. LED technology also allows a signal head to display a
variety of signal colors. Therefore, it is critical for signal
employees to distinguish the color of signals and not simply the
position of the signal head being lit. When testing earlier versions of
signals or the current LED versions, this must be accomplished a
significant distance away from the signal.
With the introduction of microprocessor equipment, signal employees
need to see the position of micro-switches and the color of micro-
indicators located on circuit boards. These items, which are often very
small (sometimes less than an 1/8-inch in size), are prevalent on
microprocessor equipment used within both signal and highway-rail grade
crossing warning systems. In addition, signal employees need to be able
to distinguish the correct color of proposed circuit changes on circuit
plans. Proposed circuit changes are often indicated by lines of
different colors on a circuit plan.
Therefore, after taking a closer look at the safety-sensitive tasks
performed by signal employees, FRA decided to retain the visual acuity
standards proposed in the NPRM. These visual acuity standards are
consistent with the visual acuity standards for other modal
professionals throughout the transportation industry, such as air
traffic controllers and pilots.\42\
---------------------------------------------------------------------------

\42\ 14 CFR 67.303.
---------------------------------------------------------------------------

FRA also received comments that were critical of FRA's proposal in
paragraph (b)(3) in the proposed rule to periodically test signal
employees seeking recertification on their ability to recognize and
distinguish between the colors of railroad signals. BRS explained that
after the first year of employment, the emphasis on color distinction
becomes less relevant. BRS asserted that signal workers quickly become
familiar with blueprints, enabling them to determine the intended
aspect to be illuminated without solely relying on color
identification. IBEW expressed concern that FRA's proposal to test both
initial hires and signal employees seeking recertification on their
ability to recognize and distinguish between the colors of railroad
signals would unnecessarily penalize and disqualify signal workers who
are colorblind.
To accommodate signal employees who develop color vision
deficiencies during the course of their employment, BRS, IBEW, and TTD
recommended that FRA establish an alternative assessment. More
specifically, BRS and TTD recommended FRA establish an alternative
assessment that evaluates an employee's knowledge of signal aspects and
their ability to interpret blueprints accurately to help ensure
railroads retain a skilled signal workforce.
FRA acknowledges that some individuals may not be able to meet the
threshold visual acuity standards in this section but may be able to
compensate in other ways that will allow them to safely perform their
duties as a certified signal employee. However, FRA has determined that
the flexibility afforded by paragraph (d) of this section is preferable
to establishing an alternative assessment.
Paragraph (d) of this section permits a railroad to have procedures
whereby doctors can evaluate individuals who cannot meet the threshold
visual acuity standards in this section and make discrete
determinations about the individual's ability to compensate in ways
that will allow them to safely perform their tasks as a signal
employee. If the railroad's medical examiner concludes that the
individual could safely serve as a certified signal employee, the
railroad can certify that person after the railroad obtains the medical
examiner's professional medical opinion to that effect. If necessary,
medical examiners can condition their opinion on certain circumstances
or restrictions, such as the use of corrective lens.
APTA expressed support for the flexibility provided by paragraph
(d) and asserted this flexibility should be maintained so that signal
employees

[[Page 44852]]

who have the ability to recognize and distinguish the different aspects
of railroad signals can remain eligible for certification. While IBEW
expressed concern that paragraph (d) gives too much discretion to
railroad medical examiners, FRA disagrees. Whether a person meets the
standards for visual acuity in this final rule is a medical
determination. Therefore, it is appropriate for a medical professional
to determine whether a person can safely perform as a certified signal
employee. Second, a medical examiner will only exercise discretion
pursuant to this section if a person does not satisfy the objective
visual acuity criteria in paragraph (c) of this section. Finally,
railroad medical examiners have been handling these issues for over 30
years for locomotive engineer certification and for over 10 years for
conductor certification. To date, FRA is unaware of any significant
problems involving the exercise of this discretion.
Section 246.118 Hearing Acuity
This section, derived from 49 CFR 240.121, 240.207, and 242.117,
contains requirements for hearing acuity testing that railroads must
incorporate in their signal employee certification programs.
Paragraph (c) of this section contains the general hearing
standards that a person must satisfy to be certified as a signal
employee unless they are determined to have sufficient hearing acuity
under paragraph (d) of this section. The standards in paragraph (c)
mirror the hearing acuity standards for locomotive engineers and
conductors in 49 CFR parts 240 and 242.
In the proposed rule, FRA solicited comments on whether hearing
acuity standards are necessary for certified signal employees and if
so, whether they should be as strict as the standards for locomotive
engineers and conductors. FRA received a range of comments in response
to these questions. BRS noted in their comments that railroaders
encounter high noise levels during their day-to-day work, due to a
variety of sources of noise in their work environment, including
locomotive engines, train horns, heavy equipment operations, and rail
grinding. While the use of earplugs is common practice to mitigate
noise exposure, BRS asserted that earplugs can only provide a certain
level of protection against hearing loss throughout a railroader's
career. Accordingly, BRS acknowledged the value of hearing acuity tests
for monitoring and detecting hearing loss.
BRS and IBEW contended, however, that hearing acuity tests should
be limited to testing candidates for signal employee certification and
recertification to verify that they can accurately differentiate
important auditory cues or signals. In addition, IBEW expressed concern
that this section gives too much discretion to railroad medical
examiners. On the other hand, NRC contended that vision and hearing
standards are critical to job performance. NRC commented that the
visual and hearing acuity standards for certified signal employees
should be the same as FRA's visual and hearing acuity standards for
certified locomotive engineers and conductors.
AAR and ASLRRA recommended that FRA consider whether the hearing
acuity requirements are tailored to the work performed by signal
employees. AAR and ASLRRA also asserted that, prior to implementing
vision and hearing requirements, ``FRA needs to analyze the components
of a signal employee's duties and address how particular vision and
[hearing] acuity requirements impact the ability of signal employees to
safely perform their work.'' \43\
---------------------------------------------------------------------------

\43\ FRA-2022-0020-0035, pp. 28-29.
---------------------------------------------------------------------------

Given the range of comments on this issue, FRA closely reviewed the
tasks performed by signal employees and determined that a signal
employee's hearing acuity is critical to their personal safety and the
safety of others. A signal employee must be able to communicate with a
dispatcher to ensure on-track safety has been properly established for
themselves or others. Signal employees often rely on the sound of a
locomotive horn when they utilize train approach warning as a form of
protection for tasks that are performed near the track. On-track safety
is a key item covered in the required job briefings. Signal employees
must be able to understand the job briefing prior to fouling the track.
Signal employees must also communicate safety sensitive
instructions to the dispatcher to obtain protection for defective
signal system equipment, such as a stop and flag order to protect a
malfunctioning highway-rail grade crossing warning system. In addition,
signal employees need to hear other signal employees when they perform
signal tests. Employees are often called upon to call out signal
aspects while locking tests are performed. With the evolution of
microprocessor equipment, signal employees also need to be able to hear
the distinct codes being transmitted by the equipment, such as micro-
lock or electrocode. Signal employees listen for unusual sounds while
inspecting signal system equipment, such as switch machines and gate
mechanisms, as such sounds can indicate a need for additional
investigation or maintenance.
FRA acknowledges that some individuals may not be able to meet the
threshold hearing acuity standards in this section but may be able to
compensate in other ways that will allow them to safely perform their
duties as a certified signal employee. However, FRA has determined that
the flexibility afforded by paragraph (d) of this section is preferable
to limiting hearing acuity tests to verifying that the individual can
accurately differentiate between auditory cues or signals.
Therefore, after close review of the safety-sensitive tasks
performed by signal employees, FRA decided to retain the hearing acuity
standards proposed in the NPRM. For the reasons explained in the
section-by-section analysis for Sec. 246.117 above, FRA does not share
IBEW's concern that this section gives too much discretion to a
railroad medical examiner.
Section 246.119 Training Requirements
This section requires railroads to provide initial, periodic, and
qualification training to certified signal employees. Such training is
necessary to ensure certified signal employees have the knowledge,
skills, and abilities necessary to safely perform all of the safety-
related duties mandated by Federal law, regulations, and orders.
As an initial matter, FRA deleted paragraph (b) of this section in
the proposed rule. In the proposed rule, paragraph (b) would have
required the railroad to state in its certification program whether the
railroad elects to accept responsibility for training persons who have
not been previously certified as signal employees or only certify
persons who have been previously certified by other railroads. FRA
removed this language from this section because it is duplicative of
what is already required under Sec. 246.106(b)(1). Accordingly,
paragraph (b) in this final rule focuses on training requirements that
apply to railroads or parent companies that elect to accept
responsibility for training persons who have not been previously
certified as signal employees.
NRC commented that FRA should set minimum standards for training
program design and issue those standards in a circular or other
supplemental guidance. However, FRA does not plan to issue a circular
or supplemental guidance (such as an appendix to this part) at this
time because Sec. 246.106 addresses NRC's concern. Section 246.106,
which is derived from appendix B to part 240

[[Page 44853]]

and appendix B to part 242, provides railroads with more information on
how to design and structure their programs. Section 246.106 provides a
description of what information should be included in each section of
the program. FRA has found through its experience with locomotive
engineer and conductor certification that issuing a separate circular
or appendix is unnecessary as railroads can look to the appendices in
parts 240 and 242 for guidance on how to satisfy the requirements of
those rules. Thus, FRA does not see a need for issuing a separate
circular or appendix with respect to signal employee certification.
If a railroad (or parent company) accepts responsibility for
training persons who have not been previously certified as signal
employees, paragraph (b) of this section requires the railroad or
parent company to state in its certification program whether it will
conduct the training or whether it will authorize a third party to
provide the training on its behalf.
This section gives railroads (and parent companies, if applicable)
the latitude to design and develop the training and delivery methods
they will employ. Pursuant to paragraph (c), a railroad or parent
company that elects to accept responsibility for training persons who
have not been previously certified as signal employees is required to
explain how training will be structured, developed, and delivered,
including an appropriate combination of classroom, simulator, computer-
based, correspondence, practical demonstration, on-the-job training, or
other formal training. Paragraph (c)(3) also requires railroads (and
parent companies, if applicable) to review and modify their training
programs whenever new safety-related railroad laws, regulations,
orders, and procedures are issued, as well as whenever new signal
system equipment or signal-related technology are introduced into the
workplace.
TTD submitted comments expressing concern that many railroads are
not providing an acceptable level of training to employees. IBEW
expressed a similar concern and asserted that Sec. 246.125 allows one
railroad to rely upon a signal employee's certification awarded by
another railroad. Accordingly, IBEW recommended that FRA require 160
hours of on-the-job training, at least half of which should be in the
field.
FRA acknowledges these concerns and suggestions and is taking this
opportunity to clarify some of the requirements of this subpart. FRA
agrees that recent industry trends have resulted in declining quality
and/or quantity of training and testing, a concern FRA has voiced to
the industry on multiple occasions including recent disapproval of
conductor certification programs. These instances reveal that some
railroads have misinterpreted the discretion provided to them in parts
240 and 242 as permission to submit certification programs that are
sparse on details. Such railroads are mistaken as to what is required
under parts 240 and 242, and FRA audits have highlighted significant
issues with these programs and underscored the critical need for
railroads to provide detailed and comprehensive submissions.
While FRA believes railroads should be provided some flexibility in
the design of their certification programs to address specific signal-
related risks and unique needs, FRA's review and approval process
outlined in Sec. 246.103 is meant to ensure that railroads do not
abuse this discretion with respect to their signal employee
certification programs. This rule requires a railroad to document the
details of its training and testing program and Sec. 246.106 mandates
that each certification program include sufficient detail for effective
evaluation. FRA will disapprove programs that are vague or
insufficiently detailed, in accordance with Sec. 246.103(f)(2).
While every railroad is different and the training needed to be
certified signal employee for a Class I railroad may vary significantly
from the training needed to be a certified signal employee for a short
line railroad, FRA will review each signal employee certification
program and determine, on a case-by-case basis, whether the program
contains sufficient on-the-job training. Railroads are required to
provide enough detail in their certification programs to allow for
effective evaluation of the training that will be provided (including
on-the-job training) to ensure that their certified signal employees
can safely perform their assigned duties.
Also, as will be discussed further in the section-by-section
analysis of Sec. 246.125, this final rule does not allow railroads to
rely completely on the signal employee certification awarded by another
railroad. Each railroad is required to certify the signal employees who
will be working on their signal systems and signal-related technology
(or require that non-certified persons perform work on their signal
systems and signal-related technology under the direct and immediate
supervision of a mentor).
Paragraph (e) of this section contains the requirements a person,
not previously certified as a signal employee, has to satisfy in order
to become a certified signal employee. Paragraph (e)(2) states that the
person must successfully complete on-the-job training and demonstrate
on-the-job proficiency by successfully completing the tasks and using
the signal system equipment and signal-related technology necessary to
be a certified signal employee on the certifying railroad. The
paragraph has been revised in this final rule to clarify that, if the
railroad has elected to classify its certified signal employees into
more than one occupational category or subcategory, the person must
successfully complete the tasks applicable to the signal employee
occupational category or subcategory in which the person is seeking to
be certified.
NRC asked for clarification on whether railroads that accept
responsibility for providing initial signal employee training are
required by paragraph (e) to structure their training programs to
ensure candidates for initial signal employee certification demonstrate
on-the-job proficiency using wayside signal equipment, as well as
signal technology in the operations control center. However, the type
of equipment used by candidates for initial signal employee
certification to demonstrate on-the-job proficiency will vary depending
upon the nature of the work each candidate will be assigned to perform.
As discussed earlier, FRA considers individuals who maintain signal
technology in the operations control center (such as electronic control
system technicians and CTC maintainers) to be signal employees for
purposes of this part. Therefore, FRA expects that railroads who accept
responsibility for providing initial signal employee training and have
employees or contractors maintain signal technology in their operations
control centers will require candidates for signal employee
certification to demonstrate on-the-job proficiency using signal
technology in the operations control center if there is a reasonable
possibility that the candidate may be assigned to work there.
Paragraph (g) requires railroads, regardless of their election in
paragraph (b) of this section, to provide comprehensive training on the
installation, operation, testing, maintenance, and repair of the signal
systems and signal-related technology deployed on their territory. This
training must include training on both signal software and signal
equipment. To implement this requirement, paragraph (g) requires
railroads to address in their certification program how such training
will be provided and

[[Page 44854]]

how the railroad will ensure that each certified signal employee is
qualified on the signal system equipment and signal-related technology
deployed on the railroad's territory before the employee is required to
install, operate, test, maintain, or repair that equipment or
technology.
UTC staff and NRC expressed support for this requirement in their
comments on the proposed rule. UTC staff contended that comprehensive
training should include all new and existing signal systems and signal-
related technologies. NRC recommended that comprehensive training
include common principles, in addition to the specifics of the
equipment that the railroad's certified signal employees will work on.
As reflected in this section, railroads must provide comprehensive
training that includes detailed training on the specific signal system
equipment and signal-related technology that the signal employee will
be required to use, as well as detailed training on any new signal
system equipment and signal-related technology that will be deployed on
the railroad's territory before the employee is required to install,
operate, test, maintain, or repair the equipment or technology.
NRC recommended that comprehensive training for certified signal
employees include some level of design knowledge as a functional role.
NRC also recommended that installation staff and maintenance staff not
be trained on tasks that they will not perform as part of their job
duties. While FRA agrees that it would be beneficial for certified
signal employees to understand the functional role of the design of the
signal systems and signal-related technology on which they are assigned
to work, FRA has not incorporated this recommendation as an explicit
requirement in this final rule. In addition, this rule allows railroads
the flexibility to decide whether to classify their certified signal
employees into multiple categories (and subcategories), as well as the
flexibility to decide which tasks will be performed by their employees.
Therefore, while FRA has not included a regulatory provision that would
prohibit railroads from training installation and maintenance staff on
tasks they are unlikely to perform as part of their job duties,
railroads are only required by Sec. 246.119(g) to ensure that each
certified signal employee is qualified on the signal system equipment
and signal-related technology deployed on their territory before the
certified signal employee is required to install, operate, test,
maintain, or repair it.
Paragraph (g)(3) requires railroads to discuss, in their training
programs, the maximum amount of time that a certified signal employee
can be absent from performing work on signal systems or signal-related
technology that requires certification before requalification will be
required. This time period cannot exceed 12 months. However, railroads
may choose a shorter time period if they desire.
IBEW commented on this provision in the proposed rule, recommending
that FRA reduce the maximum period of time during which signal
employees can be absent from performing safety-sensitive work on signal
systems before refresher training will be required to six months. IBEW
also recommended that FRA require railroads to provide 16 hours of on-
the-job training, as part of the required refresher training. IBEW
recommended that FRA increase the number of required hours of on-the-
job training to 24 hours, if the signal employee is absent from
performing safety-sensitive work for 12-23 months. In addition, for
signal employees who are absent from performing safety-sensitive work
for 24 months or more, IBEW recommended that FRA require
recertification. FRA strongly recommends that railroads provide
refresher on-the-job training to signal employees who fail to
successfully complete the unannounced compliance test required by Sec.
246.123 after returning to work on the railroad's signal systems and
signal-related technology that requires certification. However, if a
certified signal employee has not performed work on signal system
equipment or signal-related technology that requires certification for
more than 12 months, they will no longer be qualified on signal system
equipment or signal-related technology as set forth in Sec.
246.120(c). Therefore, when the certified signal employee returns to
work on the railroad's signal systems and signal-related technology
that requires certification, they will be required to work under the
direct and immediate supervision of a mentor until they become
qualified on signal system equipment and signal-related technology
pursuant to Sec. 246.106(b)(2)(v). In addition, railroads are required
to submit their signal employee certification programs to FRA for
approval. Therefore, FRA will evaluate railroad plans to provide
refresher training as discussed in their signal employee certification
programs on a railroad-by-railroad basis.
Paragraph (h) of this section (which was paragraph (i) in the
proposed rule) addresses transfers of railroad ownership. NRC commented
on paragraph (i) in the proposed rule, and suggested that instead of
saying signal employees of the acquiring company ``may receive
familiarization training'' from the selling company, the paragraph
should state that signal employees of the acquiring company ``will
receive training from the selling company''.\44\ Whether a selling
company will provide familiarization training to the acquiring
company's signal employees is, however, a decision that should be made
by both parties. If FRA were to make the permissive language in this
paragraph mandatory, it would essentially entangle itself in the
contract negotiations between the two parties which is not FRA's role.
FRA's main concern with respect to this issue is that the training is
performed properly, not who performs the training. FRA does not see a
compelling reason for mandating that the selling company provide this
training and since NRC did not provide a rationale for this suggested
change, FRA is not adopting this suggestion. By not adopting this
suggestion, paragraph (h) in this final rule will remain consistent
with the analogous provisions found at 49 CFR 240.123(d)(1) and
242.119(i).
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\44\ FRA-2022-0020-0027.
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NRC also contends paragraph (h) should apply when there is a change
in the private operator of a commuter railroad. Since NRC did not
provide a rationale for why such a change would be necessary or
beneficial, FRA is not adopting this suggestion. However, FRA notes
that in situations involving a change in the operator of a commuter
railroad, there is nothing in part 246 that would prohibit the prior
operator from providing familiarization training to the signal
employees of the new operator.
Paragraph (i) of this section requires each railroad to provide for
the continuing education of its certified signal employees to ensure
each certified signal employee maintains the necessary knowledge
concerning compliance with all applicable Federal railroad safety laws,
regulations, and orders; compliance with all applicable railroad safety
and operating rules; and compliance with all applicable standards,
procedures, and instructions for the installation, operation, testing,
maintenance, troubleshooting, and repair of new and existing signal
systems and new and existing signal-related technology deployed on its
territory.

[[Page 44855]]

Section 246.120 Requirements for Qualification
Section 246.120 has been added to the final rule to clarify that
railroads are required to provide sufficient training on the signal
system equipment and signal-related technology that have been deployed
on their territories to ensure their certified signal employees are
qualified on the railroad's signal systems and signal-related
technology, and, therefore, may reasonably be expected to be proficient
on their operation and use. Prior to attaining qualification, all
individuals assigned to work on the railroad's signal system equipment
and signal-related technology are required by paragraph (a)(2) of this
section to work under the direct and immediate supervision of a mentor
or qualified instructor.
Section 246.121 Knowledge Testing
This section, derived from 49 CFR 240.125, 240.209, and 242.121,
requires railroads to include procedures for the initial and periodic
testing of certified signal employees in their certification programs.
Paragraph (b) of this section outlines the general requirements for
such testing. This testing must effectively examine a signal employee's
knowledge of: (a) all applicable Federal railroad safety laws,
regulations, and orders governing signal systems and signal-related
technology; (b) all applicable railroad safety and operating rules; and
(c) all applicable railroad standards, procedures, and instructions for
the installation, operation, testing, maintenance, troubleshooting, and
repair of the railroad's signal systems and related technology.
With respect to written tests used by railroads to determine
whether candidates for certification have sufficient knowledge of their
signal systems and signal-related technology, BRS, ITLC and TTD
recommended that FRA require railroads provide accommodations to
employees who require them, including giving candidates for signal
employee certification the option to request having the test questions
read aloud to them. TTD also recommended that railroads be required to
provide additional time to prepare, access to reference materials, and
extended time for testing, to employees who require these
accommodations. IBEW requested language advising that all employees
subject to tests required by this part are covered by all applicable
facets of the Americans with Disabilities Act (ADA).
In this subpart, FRA is establishing general parameters for the
testing that must be conducted to determine whether candidates for
certification have the skills and knowledge necessary to perform the
tasks that are assigned to certified signal employees by the certifying
railroad. FRA has determined that, in general, a person needs to be
able to read and comprehend written instructions to safely perform the
job of a certified signal employee. FRA is not, however, creating or
administering the tests required by this part. Railroads continue to
have the flexibility to determine how to develop and administer testing
in accordance with Federal anti-discrimination laws, including Title I
of the ADA. Therefore, FRA finds it unnecessary to include language in
this final rule to remind railroads that they need to comply with
Federal anti-discrimination laws.
In their joint comments on paragraph (b)(1) of this section, AAR
and ASLRRA noted the requirement to test knowledge of ``[t]he
railroad's rules and standards for disabling and removing signal
systems from service.'' AAR and ASLRRA recommended FRA clarify that it
does not intend to restrict tasks related to the disabling of signal
systems to signal employees with this rulemaking. Therefore, FRA
clarifies that those tasks associated with disabling signal systems
that are performed outside the signal bungalow are not considered
signal covered service for purposes of the Federal hours of service
law. Therefore, employees engaged in tasks performed outside the signal
bungalow are not performing signal system work that requires signal
employee certification. However, tasks associated with disabling signal
systems that are performed inside the signal bun

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