Transferring Engineer Certifications (49 CFR 240.223)

Q. 46 - I have a current valid certification. I just quit railroad "A" and have been hired by railroad "B." Do I have to repeat the entire certification process to receive a certificate from railroad B?

Answer: No. 49 CFR 240.225 allows railroads to accept the certification of another railroad when issuing its own certificate. However, railroad B must make the following determinations:

1. The prior certification must be valid (not expired);
2. The prior certification is for the same class of service as the certification being issued;
3. The engineer has received training on and visually observed the physical characteristics of the new territory
    (document the training);
4. The engineer is trained on the operating rules if different (knowledge test must be documented and placed in
    file); and
5. The engineer has demonstrated the necessary performance skills to operate over the new railroad (skills test
    must be documented and placed in file).

This process eliminates the need for railroad B to perform a hearing and visual acuity test and an NDR and State motor vehicle operator’s license check. When issuing the new certificate, however, the railroad should carry over the previous certificate’s expiration date.

Q. 47 - In the same scenario above, what if the engineer’s certificate has expired?

Answer: FRA approved a provision (Section 3) for the standard shortline program that addresses this issue. There is language in that standard program that allows you to perform a standard recertification on the engineer with one exception. As the engineer is new to your railroad, you must have a DSLE evaluate the engineer to determine how much on-the-job training will be needed, if any, and how many trips will be necessary for the engineer to learn the physical characteristics of the new territory. These procedures may also apply to a person who has never been certified, but who has experience as an engineer.

Transferring Engineers or DSLEs from one Railroad to another when owned by the same Company

Q. 48 - I own several railroads. On occasion, I need to transfer engineers or DSLE's from one railroad to another. Since I own all of the railroads, may I just send these employees to those railroads?

Answer: No. If you have separate programs and operating rules for each railroad, then you may transfer engineers according to 49 CFR 240. 225. This section allows you to use a current certification when issuing the certificate for a new railroad.

If you issue all certificates under a parent company name instead of individual railroads and if you use the same operating rules and certification program for all your railroads, the following will apply:

1. When your employee arrives at the new railroad, you must qualify him/her on that railroad. This is accomplished
    by requiring the employee to complete a certain number of qualifying trips;
2. Following completion of the qualification trips, a DSLE on that railroad must determine that the transferred
    engineer may safely operate trains on the new railroad (check ride); and
3. Some type of documentation should be placed in the employee’s file to show that the above procedures were
    followed and to prove that the transferred engineer was properly qualified on the new territory.
4. If the railroad conducts joint operations and the transferred engineer is expected to operate over joint
    operations territory, then the transferred engineer must also be qualified on that territory, as well. The
    qualification procedures would be controlled by the foreign railroad.

It is important to note that you should be prepared to send the rest of the employee’s files to that railroad if an FRA inspector requests to see the certification records for that employee when conducting inspections on that railroad. The above procedures are similar to a large railroad sending engineers to qualify on its many divisions.

Identification of Qualified Persons (49 CFR 240.221).

Q. 49 - Do I need to send a list of my DSLE's and engineers to the FRA?

Answer: No. However, a list of your DSLE's and engineers must be maintained by the railroad.

Q. 50 - Do I need any other information on the list?

Answer: Yes. The list should include the class of service the engineer is qualified to perform and the date of the railroad’s certification decision.

Special Equipment Certification Issues (49 CFR 240.104)

Q. 51 - What is the different between "specialized roadway maintenance equipment" and "dual purpose vehicles?"

Answer: Specialized roadway maintenance equipment is equipment that does not have the capability (no couplers) to move railroad rolling stock (freight and passenger cars). A dual-purpose vehicle is a piece of on-track equipment that is capable of moving railroad rolling stock.

Q. 52 - Do I need a certified engineer to move specialized roadway maintenance equipment?

Answer: No.

Q. 53 - Do I need a certified engineer to move a dual-purpose vehicle 240.104(a)(2)?

Answer: Maybe. The answer depends on how the dual-purpose vehicle is being used. If you are using the dual-purpose vehicle to perform routine switching of cars in revenue service, then you need a certified engineer to operate it. You do not need a certified engineer to operate a dual-purpose vehicle if the vehicle is:

1. Being operated in conjunction with roadway maintenance and related maintenance of way functions, including traveling to and from the work site;
2. Moving under the authority of railroad operating rules designated for the movement of roadway maintenance equipment that ensure the protection of such equipment from train movements; and
3. Being operated by an individual trained and qualified in accordance with Sections 214.341, 214.343, and 214.355 (Roadway Worker Protection Rules)

Certification Records (49 CFR 240.215)

Q. 54 - How long must I keep certification records?

Answer: All certification records must be kept for six (6) years from the date of certification. 240.215(h).

Q. 55 - May I keep my certification records in an electronic format? 240.215(j).

Answer: Yes, provided that:

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

Q. 56 - Do I have to make the records available to FRA?

Answer: Yes. If requested you must furnish the records during normal business hours. 240.215(h).

Q. 57 - May I keep my records at a central location if I own multiple railroads?

Answer: Yes. However, you should be prepared to transmit records to individual railroads that are being audited by FRA.

Revocation Procedures (49 CFR 240.307)

Q. 58 - May I revoke an engineer’s certification without holding a hearing?

Answer: Yes, but only if the engineer waives his/her right to the hearing. 240.307(f).

Q. 59 - Are there any special requirements to which the waiver must conform?

Answer: Yes. The waiver must:

1. Be made in writing;
2. Reflect the fact that the person has knowledge and understanding of these rights and voluntarily surrenders
    them; and
3. Be signed by the person making the waiver.

Q. 60 - Do I have to follow any special procedures to hold a hearing?

Answer: Yes. If you have a collective bargaining agreement on the property, you may hold the decertification hearing according to that agreement. If you do not have any hearing procedures, refer to 49 CFR 240.307(c). This section contains the hearing procedures that must be followed.

Drug and Alcohol Procedures for Engineer Certification (240.119).

Q.61 - When I am reviewing an employee’s record for drug and alcohol violations, what period do I review?

Answer: The regulation requires that you review the previous 60 consecutive months from the date of your certification decision. Also, be aware that 49 CFR Part 40 requires in section 40.25 that an employer must, after obtaining an employee’s written consent, request information on Federal alcohol & drug violations and refusals from previous DOT employers within the last two years.

Q.62 - We performed a company alcohol test on an engineer and the test was positive. Do we revoke the engineer’s certification?

Answer: No. The regulation [49 CFR 240.119(c)(2)] states that railroads may only consider violations of 219.101 or 219.102. These are violations of 49 CFR Part 219 and are Federal tests, not company tests. Meanwhile, the railroad could take appropriate actions under its company drug and alcohol policies and if the employee is determined to have an active substance abuse disorder, the employee shall not be currently certified as a locomotive engineer.

Q.63 - Why are railroads prohibited from using company drug and alcohol test results? These tests show that the employee was in violation of Rule G.

Answer: Company test results are not used or considered by FRA primarily because the Federal Government may not vouch for their credibility. Federal tests are conducted under Part 40 procedures and the specimens are sent to federally certified laboratories. There are no such requirements or guarantees for company tests.

Additionally, Federal tests are triggered by specific search and seizure criteria identified in Part 219, while railroads often conduct company tests for other reasons. In addition, railroad company tests often include testing for additional drugs than authorized by Federal regulations.

Q.64 - A conductor has a 219.101 or 219.102 violation and a year later is certified as an engineer. One month goes by and while working as an engineer, he tests positive at 0.04 percent on a Federal random breath test. In calculating the ineligibility period, would the current violation be considered a first or second offense?

Answer: The latest violation would be considered a second offense. For drug and alcohol violations, the individual does not have to be working as an engineer on the day of the test for violations to be counted for eligibility purposes. Note, however, that for violations of railroad operating rules in 240.117, the engineer operating the locomotive at the time of the violation is held accountable.

Q. 65 - Once an engineer returns to work following a Federal drug and alcohol violation, are there any special follow-up testing requirements?

Answer: Yes, the railroad must administer at least six alcohol tests and six drug tests during the first 12 months following return to covered service. 240.119(d).

Q. 66 - Is there a limit on the time that the engineer may be subjected to Federal follow-up testing?

Answer: Yes, follow-up testing may not exceed 60 months. See 240.119(d)(2).

Q. 67 - How may I determine if a positive drug and alcohol test is a 219.101 or 219.102 violation in order to apply the proper revocation or ineligibility period to the engineer?

Answer: Generally, a positive alcohol test is considered a 219.101 violation (on-duty use) because it may be immediately determined that the employee reported for covered service or went or remained on duty in covered service having 0.04 or more alcohol concentration. On-duty possession of alcohol is also considered a 219.101 violation.

Conversely, a urine drug test is usually considered a 219.102 violation (illegal use of drugs) because it may not be established that the controlled substances were used on duty. However, if a railroad supervisor discovers an engineer smoking marijuana on the job, then most likely this would be evidence of a 219.101 violation or on-duty use or possession.