Qualification and Certification of Locomotive Engineers, 50883-50885 [E8-20032]
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Federal Register / Vol. 73, No. 169 / Friday, August 29, 2008 / Rules and Regulations
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[FR Doc. E8–19983 Filed 8–28–08; 8:45 am]
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DEPARTMENT OF TRANSPORTATION
Federal Railroad Administration
49 CFR Part 240
Qualification and Certification of
Locomotive Engineers
Federal Railroad
Administration (FRA), DOT.
ACTION: Interpretation.
AGENCY:
SUMMARY: FRA is issuing this notice of
interpretation to inform interested
parties of its application and
enforcement of the requirements for
each railroad responsible for controlling
joint operations territory to maintain a
list of person(s) certified as a qualified
locomotive engineer for the purposes of
the joint operations. FRA has discovered
that a number of controlling railroads
are not maintaining accurate lists
primarily because foreign railroads are
not providing the controlling railroads
with accurate information and the
controlling railroads are not demanding
it. If an accurate list is not maintained,
a controlling railroad has little chance of
preventing an uncertified or unqualified
person from operating a locomotive or
train in the joint operations territory.
This document is intended to inform
interested parties of what information is
required to be maintained on the
required list and provides information
as to how often the listings should be
updated.
You may submit comments
to Douglas Taylor, Staff Director,
Operating Practices Division, or John
Conklin, Program Manager Locomotive
Engineer Certification, FRA Office of
Safety Assurance and Compliance, by
facsimile (202–493–6216) or e-mail
(douglas.taylor@dot.gov) or
(john.conklin@dot.gov). Comments may
also be submitted to Alan Nagler, FRA
Office of Chief Counsel, by facsimile
(202–493–6068) or e-mail
(alan.nagler@dot.gov).
ADDRESSES:
FOR FURTHER INFORMATION CONTACT:
Douglas H. Taylor, Staff Director,
Operating Practices Division, Office of
Safety Assurance and Compliance, FRA,
1200 New Jersey Avenue, SE., RRS–11,
Mail Stop 25, Washington, DC 20590
(telephone 202–493–6255); John
Conklin, Program Manager Locomotive
Engineer Certification, Office of Safety
Assurance and Compliance, FRA, 1200
New Jersey Avenue, SE., RRS–11, Mail
Stop 25, Washington, DC 20590
(telephone 202 493–6318); or Alan H.
Nagler, Senior Trial Attorney, Office of
Chief Counsel, FRA, 1200 New Jersey
Avenue, SE., RCC–11, Mail Stop 10,
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50883
Washington, DC 20590 (telephone 202–
493–6038).
SUPPLEMENTARY INFORMATION:
I. General Background
In 1991, FRA published a final rule
requiring each railroad to qualify and
certify each person the railroad would
allow to operate a locomotive or train
over its system. See 56 FR 28228. The
final rule also required a railroad to
maintain written listings identifying
each person designated by it as: (i) A
supervisor of locomotive engineers, (ii)
a certified locomotive engineer, and (iii)
a certified and qualified locomotive
engineer for the purposes of joint
operations. See 49 CFR 240.221(a)
through (c). For each certified engineer,
the listing is required to indicate the
class of service the railroad determines
the person is qualified to perform and
the date of the railroad’s certification
decision. The rule specifies that the
listing required by paragraphs (a), (b),
and (c) shall be updated at least
annually and that a railroad may obtain
approval from FRA to maintain the
listing electronically. See § 240.221(d)
and (f). The rule also specifies where
these records are required to be kept so
that FRA may inspect and copy them
during regular business hours. The
requirements found in § 240.221 have
not been amended since they became
effective on September 17, 1991.
Overall, the industry is in substantial
compliance with the requirements for
identification of qualified persons under
§ 240.221. FRA has not noticed
significant non-compliance with
maintaining the lists required for a
railroad’s own employees, i.e., its own
supervisors of locomotive engineers or
its own certified locomotive engineers.
Again, for its own employees, most
railroads periodically update the listing
with all the required information ‘‘so
that it retains its usefulness’’ which FRA
described as the goal of the listing in the
section-by-section analysis when the
rule was published. See 56 FR at 28249.
The purpose of this document is to
address issues related to maintaining
the listing of those locomotive engineers
employed by other railroads (foreign
locomotive engineers) that have been
designated as certified and qualified for
the purposes of joint operations
pursuant to § 240.221(c). Several
railroads that have been found not
properly maintaining a listing of foreign
locomotive engineers certified and
qualified for joint operations have taken
some affirmative actions to come into
compliance. However, the number of
railroads in partial non-compliance is
sufficiently wide-spread that FRA
believes that clarification of the
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Federal Register / Vol. 73, No. 169 / Friday, August 29, 2008 / Rules and Regulations
regulatory requirements is necessary to
ensure even greater industry-wide
compliance.
Unless a foreign locomotive engineer
solely operates in the joint operation
with a certified pilot or the regulatory
requirements for ‘‘minimal joint
operations’’ exist, the foreign
locomotive engineer is required to be
certified and qualified for purposes of
the joint operations and is required to be
on the listing required by § 240.221(c).
See § 240.229(a), (e) and (f). Even
though the foreign locomotive engineer
is not employed by the controlling
railroad, the controlling railroad is
required to determine that the person is
certified and qualified for purposes of
the joint operations. See § 240.229(a).
The controlling railroad must choose
between certifying and qualifying the
person directly, or indirectly relying on
the certification issued by another
railroad under certain specific
conditions. See § 240.229(b) and (c).
FRA has previously provided guidance
regarding steps a controlling railroad
can take to ensure that any foreign
locomotive engineers operating over its
lines are properly trained for those joint
operations if the controlling railroad
would like to rely on the certification
issued by another railroad. The
guidance intimates that blind
acceptance of a foreign railroad’s list of
qualified engineers does not satisfy the
intent of the regulation that permits a
controlling railroad to indirectly certify
and qualify a foreign railroads
locomotive engineers. See Technical
Bulletin OP–2000–01, redesignated as
Technical Bulletin OP–04–21 (February
3, 2004) available on FRA’s Web site at
https://www.fra.dot.gov) After a person is
certified and qualified for purposes of
the joint operations, the controlling
railroad must choose between issuing its
own certificate to the foreign locomotive
engineer or noting its ‘‘supplemental
certificate decision’’ on the employing
railroad’s ‘‘original certificate.’’ See
§ 240.229(a) and (d).
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II. Controlling Railroad’s Responsibility
To Maintain an Accurate Listing
A. What are the options for a controlling
railroad?
A controlling railroad that directly
certifies and qualifies foreign
locomotive engineers is likely to be in
compliance with maintaining the
required listing because it controls the
information that is needed to maintain
the list under § 240.221(c). Controlling
railroads that choose to directly certify
and qualify foreign locomotive
engineers are typically short line or
regional railroads with either a small
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number of foreign locomotive engineers
or with limited joint operations.
Railroads that choose to directly certify
and qualify are able to maintain greater
control over who is allowed to operate
over the railroad’s system.
In contrast, a controlling railroad that
indirectly certifies and qualifies foreign
locomotive engineers is reliant on the
foreign railroad to provide accurate and
complete information. It is standard
practice on the major railroads to
indirectly certify and qualify foreign
locomotive engineers. Controlling
railroads that choose to indirectly
certify and qualify are willing to
relinquish some control over who is
allowed to operate over the railroad’s
system. Despite being reliant on another
railroad for information about foreign
locomotive engineers, a controlling
railroad is obligated to maintain the
required listing. Thus, the controlling
railroad must ensure and demand that
accurate and complete information is
provided from foreign railroads that
engage in joint operations.
B. Why is an interpretation necessary?
FRA has not previously issued any
specific written guidance on how to
comply with the requirements related to
maintaining accurate lists of qualified
and certified locomotive engineers
contained in § 240.221. FRA
acknowledges that its personnel may
have incorrectly instructed some
controlling railroads that compliance
was achieved when it accepted a
complete list of each engineer certified
by a foreign railroad even though the list
failed to indicate which engineers were
certified and qualified to operate in the
joint operations territory. In order to
ensure a consistent, nation-wide policy,
we are publishing this notice of
interpretation to clarify the agency’s
position.
C. What is FRA’s interpretation?
FRA’s interprets § 240.221(c) as
requiring the controlling railroad to
maintain a list that specifically
identifies each foreign railroad
locomotive engineer that is deemed
certified and qualified to operate over
the joint operation. Thus, it is
unacceptable for a foreign railroad to
simply provide a list of all its certified
engineers without distinguishing which
engineers are certified and qualified in
the joint operations. Section 240.221(c)
does not require that the listing kept by
a controlling railroad of a joint
operation identify each locomotive
engineer that a foreign railroad has
certified on the foreign railroad’s
system. The regulation only requires
that a person be added to the controlling
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railroad’s listing if the person is a
foreign locomotive engineer who is
certified and qualified for the purposes
of joint operations. Although railroads
may choose to exchange more
information that identifies different
types of qualified persons than what is
required by the regulation, a list that is
over-inclusive is simply not an accurate
list. If a foreign railroad decides to
provide a controlling railroad with a
complete listing of all its certified
locomotive engineers, the foreign
railroad and the controlling railroad
must specifically distinguish those
locomotive engineers who are certified
and qualified to operate in the joint
operations territory from those who are
not so certified and qualified.
III. Frequency of Listing Updates
A. Why is an interpretation necessary?
The provision contained in
§ 240.221(d) states that ‘‘[t]he listing
required by paragraphs (a), (b), and (c)
shall be updated at least annually’’ and
several railroads have complained that
it is not useful to keep a listing that only
needs to be updated annually. These
parties have argued that even if a listing
is updated annually, it will likely
become outdated quickly because the
number of certified and qualified
engineers is in a constant state of flux.
FRA disagrees with this interpretation
and believes the rule requires
maintenance of the listing so it retains
its usefulness.
B. What is FRA’s interpretation?
The plain language of the regulation
does not state that the ‘‘listing only
needs to be updated annually’’ but,
instead, specifically requires that it
‘‘shall be updated at least annually.’’
§ 240.221(d) (emphasis added). Thus,
the plain language of the regulation
contemplates updating the required
listings more frequently than once a
year and that, at a minimum, the listings
must be updated annually. The only
time the annual requirement is relevant
is in those situations where a
controlling railroad does not have any
changes to make to its listing of
qualified locomotive engineers over an
entire year and then paragraph (d)
would require that the listing be
checked and updated at the end of the
year. Moreover, FRA’s intent when
publishing the final rule was to require
the listings to be updated whenever a
change to the listing occurs so that the
listing remains current. The section-bysection analysis contained in the final
rule explained that ‘‘FRA has
specifically provided for the periodic
updating of the list so that it retains its
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usefulness.’’ 56 FR at 28249. FRA
intended that the listing be updated
whenever it does not accurately identify
the person(s) certified and qualified
(i.e., when the listing’s usefulness is
diminished). Ideally, the listing should
be updated each time a person is newly
certified and qualified, and each time a
person is no longer considered certified
or qualified.
With regard to updating the listing of
foreign locomotive engineers in joint
operation territories, it should be noted
that FRA considers it more important to
remove the name of any foreign
engineer who is no longer considered
certified or qualified for joint operations
territory then to fail to add a person who
has recently become certified and
qualified. When a controlling railroad
questions a foreign engineer’s
certification or qualifications and the
engineer’s name is not found on the list,
the controlling railroad would be
expected to immediately contact the
foreign railroad in order to confirm the
person’s status before allowing the
foreign engineer to proceed into the
joint operations territory. Alternatively,
if a controlling railroad were to question
a foreign engineer’s certification or
qualifications and the engineer’s name
is found on the list, the controlling
railroad would likely be expected to rely
on the list and would be exercising due
diligence in doing so. If the list is
incorrect and the person’s name should
have been removed, the controlling
railroad cannot be expected to prevent
an unqualified person from operating in
the joint operations territory.
Several major railroads have voiced
concern that because the listing is in
such a constant state of flux, it would
be extremely difficult to maintain an
accurate listing at all times. In the joint
operation context, a major railroad may
face the challenge of coordinating a
listing that includes separate lists
submitted by more than 100 foreign
railroads. Although FRA agrees that it
will be challenging for some railroads
that allow extensive joint operations to
maintain an accurate written list, such
railroads may find it easier to comply by
maintaining the listing electronically.
Maintaining the listing electronically
has always been an option pursuant to
§ 240.221(f), but it has not been
extensively utilized. There is no
question that modern technology has
greatly improved since the rule’s
issuance in 1991, and thus the ability
and desire to electronically maintain the
listing should be much greater. For
example, it is possible to maintain a
secure Web site where a controlling
railroad can search a foreign railroad’s
uploaded list of locomotive engineers to
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check: (1) Whether the person is
certified and qualified for the joint
operations territory; (2) the person’s
class of service; and, (3) the date of the
railroad’s certification decision. Another
option may be for a foreign railroad to
tap into its railroad crew management
tracking system to produce a more
detailed written or electronic list of its
engineers to controlling railroads than
what is currently being made available.
Other electronically maintained options
may be available and FRA encourages
railroads controlling joint operations to
consider options that would improve
the usefulness of the required listing.
Any railroad that would like to maintain
the listing electronically is required to
obtain approval from FRA pursuant to
the requirements in § 240.221(f).
While FRA recognizes that recent
changes in status to any particular
engineer might not be reflected in the
listing immediately, FRA expects the
listing to be updated with enough
regularity so that it retains its
usefulness.
FRA believes that this notice provides
sufficient information to guide parties
that may have been confused by the
requirements of § 240.221. However,
FRA seeks comments on this notice
from interested parties including any
suggestions for providing more clarity, if
necessary. Please refer to the Addresses
section for additional information
regarding the submission of comments.
Issued in Washington DC on August 21,
2008.
Jo Strang,
Associate Administrator for Safety.
[FR Doc. E8–20032 Filed 8–28–08; 8:45 am]
BILLING CODE 4910–06–P
DEPARTMENT OF TRANSPORTATION
National Highway Traffic Safety
Administration
49 CFR Part 541
[Docket No. NHTSA–2008–0049]
RIN 2127–AK31
Federal Motor Vehicle Theft Prevention
Standard; Final Listing of 2009 Light
Duty Truck Lines Subject to the
Requirements of This Standard and
Exempted Vehicle Lines for Model Year
2009
Correction
In rule document E8–18890 beginning
on page 47847 in the issue of Friday,
August 15, 2008, make the following
correction:
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Appendix A–I to Part 541 [Corrected]
On page 47849, in Appendix A–I to
Part 541, in the second column of the
table, in the 44th line entry, ‘‘Genesis3’’
should read‘‘Genesis1’’.
[FR Doc. Z8–18890 Filed 8–28–08; 8:45 am]
BILLING CODE 1505–01–D
DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric
Administration
50 CFR Part 635
RIN 0648–XJ69
Atlantic Highly Migratory Species;
Atlantic Bluefin Tuna Fisheries
National Marine Fisheries
Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA),
Commerce.
ACTION: Temporary rule; inseason
retention limit adjustment.
AGENCY:
SUMMARY: NMFS has determined that
the Atlantic tunas General category
daily Atlantic bluefin tuna (BFT)
retention limit should be adjusted for
the September, October-November, and
December time periods of the 2008
fishing year, based on consideration of
the determination criteria regarding
inseason adjustments.
DATES: The effective dates for the
adjusted BFT daily retention limits are
September 1, 2008, through December
31, 2008.
FOR FURTHER INFORMATION CONTACT:
Sarah McLaughlin or Brad McHale,
978–281–9260.
SUPPLEMENTARY INFORMATION:
Regulations implemented under the
authority of the Atlantic Tunas
Convention Act (16 U.S.C. 971 et seq.)
and the Magnuson-Stevens Fishery
Conservation and Management Act
(Magnuson-Stevens Act; 16 U.S.C. 1801
et seq.) governing the harvest of BFT by
persons and vessels subject to U.S.
jurisdiction are found at 50 CFR part
635. Section 635.27 subdivides the U.S.
BFT quota recommended by the
International Commission for the
Conservation of Atlantic Tunas (ICCAT)
among the various domestic fishing
categories, per the allocations
established in the Consolidated Highly
Migratory Species Fishery Management
Plan (Consolidated HMS FMP). The
latest (2006) ICCAT recommendation for
western Atlantic BFT included a U.S.
quota of 1,190.12 mt, effective beginning
in 2007, through 2008, and thereafter
until changed (i.e., via a new ICCAT
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]]>Agencies
[Federal Register Volume 73, Number 169 (Friday, August 29, 2008)]
[Rules and Regulations]
[Pages 50883-50885]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E8-20032]
=======================================================================
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DEPARTMENT OF TRANSPORTATION
Federal Railroad Administration
49 CFR Part 240
Qualification and Certification of Locomotive Engineers
AGENCY: Federal Railroad Administration (FRA), DOT.
ACTION: Interpretation.
-----------------------------------------------------------------------
SUMMARY: FRA is issuing this notice of interpretation to inform
interested parties of its application and enforcement of the
requirements for each railroad responsible for controlling joint
operations territory to maintain a list of person(s) certified as a
qualified locomotive engineer for the purposes of the joint operations.
FRA has discovered that a number of controlling railroads are not
maintaining accurate lists primarily because foreign railroads are not
providing the controlling railroads with accurate information and the
controlling railroads are not demanding it. If an accurate list is not
maintained, a controlling railroad has little chance of preventing an
uncertified or unqualified person from operating a locomotive or train
in the joint operations territory. This document is intended to inform
interested parties of what information is required to be maintained on
the required list and provides information as to how often the listings
should be updated.
ADDRESSES: You may submit comments to Douglas Taylor, Staff Director,
Operating Practices Division, or John Conklin, Program Manager
Locomotive Engineer Certification, FRA Office of Safety Assurance and
Compliance, by facsimile (202-493-6216) or e-mail
(douglas.taylor@dot.gov) or (john.conklin@dot.gov). Comments may also
be submitted to Alan Nagler, FRA Office of Chief Counsel, by facsimile
(202-493-6068) or e-mail (alan.nagler@dot.gov).
FOR FURTHER INFORMATION CONTACT: Douglas H. Taylor, Staff Director,
Operating Practices Division, Office of Safety Assurance and
Compliance, FRA, 1200 New Jersey Avenue, SE., RRS-11, Mail Stop 25,
Washington, DC 20590 (telephone 202-493-6255); John Conklin, Program
Manager Locomotive Engineer Certification, Office of Safety Assurance
and Compliance, FRA, 1200 New Jersey Avenue, SE., RRS-11, Mail Stop 25,
Washington, DC 20590 (telephone 202 493-6318); or Alan H. Nagler,
Senior Trial Attorney, Office of Chief Counsel, FRA, 1200 New Jersey
Avenue, SE., RCC-11, Mail Stop 10, Washington, DC 20590 (telephone 202-
493-6038).
SUPPLEMENTARY INFORMATION:
I. General Background
In 1991, FRA published a final rule requiring each railroad to
qualify and certify each person the railroad would allow to operate a
locomotive or train over its system. See 56 FR 28228. The final rule
also required a railroad to maintain written listings identifying each
person designated by it as: (i) A supervisor of locomotive engineers,
(ii) a certified locomotive engineer, and (iii) a certified and
qualified locomotive engineer for the purposes of joint operations. See
49 CFR 240.221(a) through (c). For each certified engineer, the listing
is required to indicate the class of service the railroad determines
the person is qualified to perform and the date of the railroad's
certification decision. The rule specifies that the listing required by
paragraphs (a), (b), and (c) shall be updated at least annually and
that a railroad may obtain approval from FRA to maintain the listing
electronically. See Sec. 240.221(d) and (f). The rule also specifies
where these records are required to be kept so that FRA may inspect and
copy them during regular business hours. The requirements found in
Sec. 240.221 have not been amended since they became effective on
September 17, 1991.
Overall, the industry is in substantial compliance with the
requirements for identification of qualified persons under Sec.
240.221. FRA has not noticed significant non-compliance with
maintaining the lists required for a railroad's own employees, i.e.,
its own supervisors of locomotive engineers or its own certified
locomotive engineers. Again, for its own employees, most railroads
periodically update the listing with all the required information ``so
that it retains its usefulness'' which FRA described as the goal of the
listing in the section-by-section analysis when the rule was published.
See 56 FR at 28249.
The purpose of this document is to address issues related to
maintaining the listing of those locomotive engineers employed by other
railroads (foreign locomotive engineers) that have been designated as
certified and qualified for the purposes of joint operations pursuant
to Sec. 240.221(c). Several railroads that have been found not
properly maintaining a listing of foreign locomotive engineers
certified and qualified for joint operations have taken some
affirmative actions to come into compliance. However, the number of
railroads in partial non-compliance is sufficiently wide-spread that
FRA believes that clarification of the
[[Page 50884]]
regulatory requirements is necessary to ensure even greater industry-
wide compliance.
Unless a foreign locomotive engineer solely operates in the joint
operation with a certified pilot or the regulatory requirements for
``minimal joint operations'' exist, the foreign locomotive engineer is
required to be certified and qualified for purposes of the joint
operations and is required to be on the listing required by Sec.
240.221(c). See Sec. 240.229(a), (e) and (f). Even though the foreign
locomotive engineer is not employed by the controlling railroad, the
controlling railroad is required to determine that the person is
certified and qualified for purposes of the joint operations. See Sec.
240.229(a). The controlling railroad must choose between certifying and
qualifying the person directly, or indirectly relying on the
certification issued by another railroad under certain specific
conditions. See Sec. 240.229(b) and (c). FRA has previously provided
guidance regarding steps a controlling railroad can take to ensure that
any foreign locomotive engineers operating over its lines are properly
trained for those joint operations if the controlling railroad would
like to rely on the certification issued by another railroad. The
guidance intimates that blind acceptance of a foreign railroad's list
of qualified engineers does not satisfy the intent of the regulation
that permits a controlling railroad to indirectly certify and qualify a
foreign railroads locomotive engineers. See Technical Bulletin OP-2000-
01, redesignated as Technical Bulletin OP-04-21 (February 3, 2004)
available on FRA's Web site at https://www.fra.dot.gov) After a person
is certified and qualified for purposes of the joint operations, the
controlling railroad must choose between issuing its own certificate to
the foreign locomotive engineer or noting its ``supplemental
certificate decision'' on the employing railroad's ``original
certificate.'' See Sec. 240.229(a) and (d).
II. Controlling Railroad's Responsibility To Maintain an Accurate
Listing
A. What are the options for a controlling railroad?
A controlling railroad that directly certifies and qualifies
foreign locomotive engineers is likely to be in compliance with
maintaining the required listing because it controls the information
that is needed to maintain the list under Sec. 240.221(c). Controlling
railroads that choose to directly certify and qualify foreign
locomotive engineers are typically short line or regional railroads
with either a small number of foreign locomotive engineers or with
limited joint operations. Railroads that choose to directly certify and
qualify are able to maintain greater control over who is allowed to
operate over the railroad's system.
In contrast, a controlling railroad that indirectly certifies and
qualifies foreign locomotive engineers is reliant on the foreign
railroad to provide accurate and complete information. It is standard
practice on the major railroads to indirectly certify and qualify
foreign locomotive engineers. Controlling railroads that choose to
indirectly certify and qualify are willing to relinquish some control
over who is allowed to operate over the railroad's system. Despite
being reliant on another railroad for information about foreign
locomotive engineers, a controlling railroad is obligated to maintain
the required listing. Thus, the controlling railroad must ensure and
demand that accurate and complete information is provided from foreign
railroads that engage in joint operations.
B. Why is an interpretation necessary?
FRA has not previously issued any specific written guidance on how
to comply with the requirements related to maintaining accurate lists
of qualified and certified locomotive engineers contained in Sec.
240.221. FRA acknowledges that its personnel may have incorrectly
instructed some controlling railroads that compliance was achieved when
it accepted a complete list of each engineer certified by a foreign
railroad even though the list failed to indicate which engineers were
certified and qualified to operate in the joint operations territory.
In order to ensure a consistent, nation-wide policy, we are publishing
this notice of interpretation to clarify the agency's position.
C. What is FRA's interpretation?
FRA's interprets Sec. 240.221(c) as requiring the controlling
railroad to maintain a list that specifically identifies each foreign
railroad locomotive engineer that is deemed certified and qualified to
operate over the joint operation. Thus, it is unacceptable for a
foreign railroad to simply provide a list of all its certified
engineers without distinguishing which engineers are certified and
qualified in the joint operations. Section 240.221(c) does not require
that the listing kept by a controlling railroad of a joint operation
identify each locomotive engineer that a foreign railroad has certified
on the foreign railroad's system. The regulation only requires that a
person be added to the controlling railroad's listing if the person is
a foreign locomotive engineer who is certified and qualified for the
purposes of joint operations. Although railroads may choose to exchange
more information that identifies different types of qualified persons
than what is required by the regulation, a list that is over-inclusive
is simply not an accurate list. If a foreign railroad decides to
provide a controlling railroad with a complete listing of all its
certified locomotive engineers, the foreign railroad and the
controlling railroad must specifically distinguish those locomotive
engineers who are certified and qualified to operate in the joint
operations territory from those who are not so certified and qualified.
III. Frequency of Listing Updates
A. Why is an interpretation necessary?
The provision contained in Sec. 240.221(d) states that ``[t]he
listing required by paragraphs (a), (b), and (c) shall be updated at
least annually'' and several railroads have complained that it is not
useful to keep a listing that only needs to be updated annually. These
parties have argued that even if a listing is updated annually, it will
likely become outdated quickly because the number of certified and
qualified engineers is in a constant state of flux. FRA disagrees with
this interpretation and believes the rule requires maintenance of the
listing so it retains its usefulness.
B. What is FRA's interpretation?
The plain language of the regulation does not state that the
``listing only needs to be updated annually'' but, instead,
specifically requires that it ``shall be updated at least annually.''
Sec. 240.221(d) (emphasis added). Thus, the plain language of the
regulation contemplates updating the required listings more frequently
than once a year and that, at a minimum, the listings must be updated
annually. The only time the annual requirement is relevant is in those
situations where a controlling railroad does not have any changes to
make to its listing of qualified locomotive engineers over an entire
year and then paragraph (d) would require that the listing be checked
and updated at the end of the year. Moreover, FRA's intent when
publishing the final rule was to require the listings to be updated
whenever a change to the listing occurs so that the listing remains
current. The section-by-section analysis contained in the final rule
explained that ``FRA has specifically provided for the periodic
updating of the list so that it retains its
[[Page 50885]]
usefulness.'' 56 FR at 28249. FRA intended that the listing be updated
whenever it does not accurately identify the person(s) certified and
qualified (i.e., when the listing's usefulness is diminished). Ideally,
the listing should be updated each time a person is newly certified and
qualified, and each time a person is no longer considered certified or
qualified.
With regard to updating the listing of foreign locomotive engineers
in joint operation territories, it should be noted that FRA considers
it more important to remove the name of any foreign engineer who is no
longer considered certified or qualified for joint operations territory
then to fail to add a person who has recently become certified and
qualified. When a controlling railroad questions a foreign engineer's
certification or qualifications and the engineer's name is not found on
the list, the controlling railroad would be expected to immediately
contact the foreign railroad in order to confirm the person's status
before allowing the foreign engineer to proceed into the joint
operations territory. Alternatively, if a controlling railroad were to
question a foreign engineer's certification or qualifications and the
engineer's name is found on the list, the controlling railroad would
likely be expected to rely on the list and would be exercising due
diligence in doing so. If the list is incorrect and the person's name
should have been removed, the controlling railroad cannot be expected
to prevent an unqualified person from operating in the joint operations
territory.
Several major railroads have voiced concern that because the
listing is in such a constant state of flux, it would be extremely
difficult to maintain an accurate listing at all times. In the joint
operation context, a major railroad may face the challenge of
coordinating a listing that includes separate lists submitted by more
than 100 foreign railroads. Although FRA agrees that it will be
challenging for some railroads that allow extensive joint operations to
maintain an accurate written list, such railroads may find it easier to
comply by maintaining the listing electronically. Maintaining the
listing electronically has always been an option pursuant to Sec.
240.221(f), but it has not been extensively utilized. There is no
question that modern technology has greatly improved since the rule's
issuance in 1991, and thus the ability and desire to electronically
maintain the listing should be much greater. For example, it is
possible to maintain a secure Web site where a controlling railroad can
search a foreign railroad's uploaded list of locomotive engineers to
check: (1) Whether the person is certified and qualified for the joint
operations territory; (2) the person's class of service; and, (3) the
date of the railroad's certification decision. Another option may be
for a foreign railroad to tap into its railroad crew management
tracking system to produce a more detailed written or electronic list
of its engineers to controlling railroads than what is currently being
made available. Other electronically maintained options may be
available and FRA encourages railroads controlling joint operations to
consider options that would improve the usefulness of the required
listing. Any railroad that would like to maintain the listing
electronically is required to obtain approval from FRA pursuant to the
requirements in Sec. 240.221(f).
While FRA recognizes that recent changes in status to any
particular engineer might not be reflected in the listing immediately,
FRA expects the listing to be updated with enough regularity so that it
retains its usefulness.
FRA believes that this notice provides sufficient information to
guide parties that may have been confused by the requirements of Sec.
240.221. However, FRA seeks comments on this notice from interested
parties including any suggestions for providing more clarity, if
necessary. Please refer to the Addresses section for additional
information regarding the submission of comments.
Issued in Washington DC on August 21, 2008.
Jo Strang,
Associate Administrator for Safety.
[FR Doc. E8-20032 Filed 8-28-08; 8:45 am]
BILLING CODE 4910-06-P
