Qualification and Certification of Locomotive Engineers; Miscellaneous Revisions, 20472-20520 [2019-09028]

Download as PDF 20472 Federal Register / Vol. 84, No. 90 / Thursday, May 9, 2019 / Proposed Rules DEPARTMENT OF TRANSPORTATION Federal Railroad Administration 49 CFR Part 240 [Docket No. FRA–2018–0053, Notice No. 1] RIN 2130–AC40 Qualification and Certification of Locomotive Engineers; Miscellaneous Revisions Federal Railroad Administration (FRA), Department of Transportation (DOT). ACTION: Notice of proposed rulemaking (NPRM). AGENCY: FRA is proposing to revise its regulation governing the qualification and certification of locomotive engineers to make it consistent with its regulation for the qualification and certification of conductors. The proposed changes include: Amending the program submission process; handling engineer and conductor petitions for review with a single FRA review board (Operating Crew Review Board or OCRB); and revising the filing requirements for petitions to the OCRB. The proposed revisions would result in cost savings and benefits for railroads and locomotive engineers by adopting the conductor certification regulation’s streamlined processes developed twenty years after the engineer certification regulation. Consistent with Executive Order 13771, the proposed rule would reduce the overall regulatory burden and the paperwork and reporting burden under the Paperwork Reduction Act of 1995 on railroads and locomotive engineers. DATES: Written Comments: Written comments on the proposed rule must be received by July 8, 2019. FRA will consider comments received after that date to the extent practicable. FRA anticipates being able to determine these matters without a public hearing. However, if prior to June 10, 2019, FRA receives a request for a public hearing accompanied by a showing that the party cannot adequately present his or her position by written statement, a hearing will be scheduled and FRA will publish a supplemental document in the Federal Register informing interested parties of the date, time, and location of the hearing. ADDRESSES: You may submit comments identified by the docket number FRA– 2018–0053 by any one of the following methods: • Electronically through the Federal eRulemaking Portal, https:// jbell on DSK3GLQ082PROD with PROPOSALS2 SUMMARY: VerDate Sep<11>2014 19:51 May 08, 2019 Jkt 247001 www.regulations.gov. Follow the online instructions for submitting comments; • Mail: U.S. Department of Transportation, Docket Operations, M– 30, West Building Ground Floor, Room W12–140, 1200 New Jersey Avenue SE, Washington, DC 20590; • Hand Delivery: U.S. Department of Transportation, Docket Operations, West Building Ground Floor, Room W12–140, 1200 New Jersey Avenue SE, Washington, DC 20590, between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays; or • Fax: 1–202–493–2251. Instructions: All submissions must include the agency name, docket name, and docket number or Regulatory Identification Number (RIN) for this rulemaking (2130–AC40). Note that all comments received will be posted without change to https:// www.regulations.gov, including any personal information provided. Please see the Privacy Act heading in the SUPPLEMENTARY INFORMATION section of this document for Privacy Act information related to any submitted comments or materials. Docket: For access to the docket to read background documents or comments received, go to https:// www.regulations.gov at any time or to U.S. Department of Transportation, Docket Operations, M–30, West Building Ground Floor, Room W12–140, 1200 New Jersey Avenue SE, Washington, DC, between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. FOR FURTHER INFORMATION CONTACT: Christian Holt, Railroad Safety Specialist (OP)-Operating Crew Certification, U.S. Department of Transportation, Federal Railroad Administration, Room W33–420, 1200 New Jersey Avenue SE, Washington, DC 20590 (telephone: 202–366–0978); or Alan H. Nagler, Senior Attorney, U.S. Department of Transportation, Federal Railroad Administration, Office of Chief Counsel, Room W31–309, 1200 New Jersey Avenue SE, Washington, DC 20590 (telephone: 202–493–6038). SUPPLEMENTARY INFORMATION: Table of Contents for Supplementary Information I. Executive Summary II. Section-by-Section Analysis III. Additional Issues A. Additional Amendments B. Implementation Date IV. Regulatory Impact and Notices A. Executive Orders 12866 and 13771 and DOT Regulatory Policies and Procedures B. Regulatory Flexibility Act and Executive Order 13272; Initial Regulatory Flexibility Assessment PO 00000 Frm 00002 Fmt 4701 Sfmt 4702 C. Paperwork Reduction Act D. Federalism Implications E. International Trade Impact Assessment F. Environmental Impact G. Unfunded Mandates Reform Act of 1995 H. Energy Impact I. Privacy Act I. Executive Summary The Secretary of Transportation (Secretary) has broad statutory authority to ‘‘prescribe regulations and issue orders for every area of railroad safety.’’ 49 U.S.C. 20103. The Rail Safety Improvement Act of 1988, Public Law 100–342, Sec. 4, 102 Stat. 624, 625–27 (June 22, 1988) (recodified at 49 U.S.C. 20135) (1988 RSIA), specifically required the Secretary to ‘‘prescribe regulations and issue orders to establish a program requiring the licensing or certification . . . of any operator of a locomotive.’’ The Secretary delegated these authorities to the Federal Railroad Administrator (Administrator). See 49 CFR 1.89(a). Exercising these delegated authorities, in 1991, FRA issued a certification final rule for locomotive engineers. 56 FR 28228 (codified at 49 CFR part 240).1 Since that first final rule, FRA has amended the locomotive engineer certification requirements through six rulemakings. In 2009, FRA published the most recent final rule amending the locomotive engineer requirements. 74 FR 68173. In 2008, over 17 years after FRA’s promulgation of the engineer certification rule, Congress required the Secretary to prescribe regulations establishing a program requiring the certification of train conductors. See Rail Safety Improvement Act of 2008, Sec. 402, Public Law 110–432, 122 Stat. 4884 (Oct. 16, 2008) (codified at 49 U.S.C. 20163). The Secretary delegated this authority to the Federal Railroad Administrator. 49 CFR 1.89(b). To implement this statutory provision, FRA established a Railroad Safety Advisory Committee (RSAC) Conductor Certification Working Group (RSAC Working Group or Working Group) 2 to make recommendations regarding the certification of train conductors.3 In 1 Unless otherwise specified, all references to CFR sections and parts refer to title 49 of the CFR. 2 The RSAC 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. For more information regarding the RSAC process and the conduct of the Working Group, see 76 FR 69802, 69802–69804 (Nov. 9, 2011). 3 RSAC accepted the task (Task No. 08–07, titled ‘‘Conductor Certification’’) on December 10, 2008. This issue was thoroughly discussed and analyzed at the part 242 RSAC Working Group meetings and in the part 242 rulemaking documents. See 75 FR 69166, 69168 (Nov. 10, 2010). E:\FR\FM\09MYP2.SGM 09MYP2 jbell on DSK3GLQ082PROD with PROPOSALS2 Federal Register / Vol. 84, No. 90 / Thursday, May 9, 2019 / Proposed Rules 2011, FRA published a final conductor certification rule. 76 FR 69802 (Nov. 9, 2011) (codified at 49 CFR part 242). FRA’s locomotive engineer certification regulation (Part 240) provided a starting point for discussions on what requirements could be appropriate for conductor certification and the final conductor certification regulation (Part 242) is largely organized and comparable to the locomotive engineer certification regulation. The NPRM FRA published in 2010 in the conductor certification rulemaking noted that the Working Group’s accepted task statement included the discretion to ‘‘consider any revisions to 49 CFR part 240 appropriate to conform and update the certification programs for locomotive engineers and conductors.’’ 75 FR 69166, 69167 (2010). During the Working Group’s meetings, some members provided feedback to FRA on whether corresponding amendments to the locomotive engineer rule were preferable. However, this feedback was not part of a consensus recommendation and, after considering the Working Group’s discussions and the limited scope of this proposed rule, FRA decided not to seek RSAC recommendations on the contents of this proposed rule. FRA believes that issues that go beyond conforming FRA’s locomotive engineer regulation with FRA’s conductor certification regulation and updating and clarifying the existing requirements for locomotive engineer certification are best saved for a separate, future rulemaking. Accordingly, FRA is proposing to revise its regulation governing the minimum requirements for the qualification and certification of locomotive engineers to make certain provisions consistent with its regulation for the qualification and certification of conductors and to update and clarify, as appropriate, the existing requirements of the locomotive engineer certification regulation. President Trump issued Executive Order 13771 (E.O. 13771), ‘‘Reducing Regulation and Controlling Regulatory Costs,’’ on January 30, 2017. E.O. 13771 seeks to ‘‘manage the costs associated with the governmental imposition of private expenditures required to comply with Federal regulations’’ and directs each executive department or agency to identify for elimination two existing regulations for every new regulation issued. E.O. 13771 also requires any new incremental cost associated with a new regulation, to the extent permitted by law, be at least offset by the elimination of existing costs associated with at least two prior regulations. VerDate Sep<11>2014 19:51 May 08, 2019 Jkt 247001 Similarly, Executive Order 13610, ‘‘Identifying and Reducing Regulatory Burdens,’’ issued May 12, 2012, seeks ‘‘to modernize our regulatory system and to reduce unjustified regulatory burdens and costs’’ and directs each executive agency to conduct retrospective reviews of its regulatory requirements to identify potentially beneficial modifications to regulations. 77 FR 28469. Executive agencies are to ‘‘give priority, consistent with the law, to those initiatives that will produce significant quantifiable monetary savings or significant quantifiable reductions in paperwork burdens while protecting public health, welfare, safety and our environment.’’ See id. at 28470. In compliance with these E.O.s, FRA expects this rulemaking will reduce the railroad industry’s overall regulatory, paperwork, and cost burden without affecting safety on the nation’s railroad system and, at the same time, benefit individual locomotive engineers. FRA also expects the proposals in this NPRM, if implemented, to generate savings in governmental administrative costs by reducing FRA’s Part 240 program’s reliance on paper documents and conforming its review processes under Part 240 as much as possible to those under Part 242. FRA believes consistency in the processes, procedures and criteria between Part 240 and Part 242 will not only lead to an overall reduction in the regulatory, paperwork and cost burden on the railroad industry, but also benefit individual locomotive engineers by making the processes, procedures and requirements of the two certification systems consistent to the extent possible. Over a 20-year period, FRA estimates $11.6 million in total cost savings would accrue—a present, discounted value of $6.1 million (7% discount). II. Section-by-Section Analysis Section 240.1 Purpose and Scope FRA proposes to amend paragraph (c) of this section to conform it to paragraph (c) of § 242.1. However, the intent of the paragraph remains the same—i.e., even though a person may have a job classification title other than ‘‘locomotive engineer,’’ the locomotive engineer certification requirements of this rule apply to that person if he or she meets the definition of locomotive engineer. Section 240.3 Application and Responsibility for Compliance FRA proposes to amend § 240.3 to clarify FRA’s jurisdiction and conform to § 242.3. Section 242.3 provides that Part 242 applies to all railroads except: PO 00000 Frm 00003 Fmt 4701 Sfmt 4702 20473 (1) ‘‘plant railroads’’; (2) tourist, scenic, historic or excursion operations that are not part of the general railroad system of transportation; and (3) rapid transit operations in an urban area that are not connected to the general railroad system of transportation. As proposed, § 240.3 provides that Part 240 applies to all railroads with the same three exceptions. The first exception applies to ‘‘plant railroads.’’ Plant railroads operate only on track inside installations (see proposed definition in § 240.7). Plant railroads’ operations do not go beyond the plants’ boundaries and do not involve the switching of rail cars for entities other than themselves. The second exception applies to ‘‘tourist, scenic, historic, or excursion operations that are not part of the general railroad system of transportation’’ (as defined in § 240.7). In § 240.7, FRA proposes to define these operations as ‘‘a tourist, scenic, historic, or excursion operation conducted only on track used exclusively for that purpose (i.e., there is no freight, intercity passenger, or commuter passenger railroad operation on the track).’’ This definition is the same as the definition of the term in Part 242. Moreover, excluding these types of railroads from Part 240 is consistent with FRA’s jurisdictional policy that already excludes these operations from all but a limited number of Federal railroad safety requirements. The third exception covers rapid transit operations in an urban area that are not connected to the general system. FRA notes that some rapid transit operations, given their connections to the general system, are within FRA’s jurisdiction and FRA specifically intends Part 240 to apply to those operations, as it always has. FRA does not intend for this proposed rule to have any effect on FRA’s jurisdiction. A more detailed analysis of the applicability of Part 240 is in the preamble discussions of 49 CFR 240.3 in 64 FR 60966, 60974 (Nov. 8, 1999), 63 FR 50626, 50636– 50637 (Sept. 22, 1998), and 56 FR 28228, 28240 (June 19, 1991). Section 240.5 Effect and Construction FRA proposes to amend this section to conform it to 49 CFR 242.5 and, in the process, update the section with respect to issues of preemption and ‘‘flowback.’’ Proposed paragraphs (a), (b), and (d) are the same as the language currently in paragraphs (c), (d), and (f), respectively. FRA proposes to remove existing paragraphs (a) and (b), which address the preemption of State law. A member of the RSAC Working Group recommended FRA not remove existing E:\FR\FM\09MYP2.SGM 09MYP2 jbell on DSK3GLQ082PROD with PROPOSALS2 20474 Federal Register / Vol. 84, No. 90 / Thursday, May 9, 2019 / Proposed Rules paragraph (a) to prevent any ambiguity that Federal preemption of State and local laws remains firmly in place. However, FRA believes these paragraphs are unnecessary because 49 U.S.C. 20106 and other Federal railroad safety statutes sufficiently address the preemptive effect of FRA’s regulations. Maintaining a separate Federal regulatory provision concerning the regulation’s preemptive effect is duplicative and unnecessary.4 FRA notes that Part 242 does not contain any language comparable to the language in existing paragraphs (a) and (b) of this section. Because FRA is proposing removal of the preemption provisions, FRA proposes to remove the word ‘‘preemptive’’ from the title of this section and make the title the same as § 242.5. New proposed paragraph (c) of this section addresses the issue of ‘‘flowback’’ and mirrors paragraph (c) of § 242.5. Industry uses the term flowback to describe a situation where an employee leaves his or her current position to return to a previously held position or craft. An example of flowback occurs when a person who holds a conductor position subsequently qualifies for a locomotive engineer position, and at some later point in time the person seeks to revert back to a conductor position. An individual’s reasons for reverting back to a previous position or craft may be a personal choice or the result of circumstances beyond the individual’s control (e.g., downsizing). Many collective bargaining agreements address the issue of flowback and, generally, FRA does not intend to create or prohibit any individual’s right to flowback or take a position on whether flowback is desirable. Paragraph (c) of this section, however, must be read in conjunction with proposed § 240.308, which limits flowback in certain situations. Therefore, as described in the sectionby-section analysis for § 240.308 below, a person who holds both a conductor and locomotive engineer certificate, and who has had his or her locomotive engineer certificate revoked for certain violations, could not work as a conductor during the period of revocation. In addition, a person who holds both a conductor and locomotive engineer certificate, and who has had his or her conductor certification revoked for certain violations, could not 4 This issue was thoroughly discussed and analyzed at the Part 242 RSAC Working Group meetings and in the Part 242 rulemaking documents. See 75 FR 69166, 69168 (Nov. 10, 2010). VerDate Sep<11>2014 19:51 May 08, 2019 Jkt 247001 work as a locomotive engineer during the period of revocation. Section 240.7 Definitions FRA proposes to amend this section by: (1) Adding definitions for ‘‘conductor,’’ ‘‘drug and alcohol counselor,’’ ‘‘ineligible or ineligibility,’’ ‘‘on-the-job training (OJT),’’ ‘‘physical characteristics,’’ ‘‘plant railroad,’’ ‘‘remote control operator,’’ ‘‘Substance Abuse Professional,’’ ‘‘territorial qualifications,’’ and ‘‘tourist, scenic, historic, or excursion operations that are not part of the general system of transportation’’; (2) revising the definitions of ‘‘file, filed and filing,’’ ‘‘FRA Representative,’’ ‘‘instructor engineer,’’ ‘‘main track,’’ ‘‘medical examiner,’’ ‘‘qualified,’’ ‘‘railroad rolling stock,’’ and ‘‘substance abuse disorder’’; (3) removing the definitions for ‘‘EAP Counselor’’ and ‘‘newly hired employee’’; and (4) replacing the defined term ‘‘service’’ with the term ‘‘serve or service.’’ These proposed amendments will make the definitions in Part 240 consistent with the definitions in Part 242. Conductor This rule proposes to adopt the definition of ‘‘conductor’’ used in Part 242. Part 242 defines the term ‘‘conductor’’ as ‘‘the crewmember in charge of a ‘train or yard crew’ as defined in part 218 of this chapter.’’ Title 49 CFR part 218 (Part 218) defines ‘‘train or yard crew’’ as one or more railroad employees assigned a controlling locomotive, under the charge and control of one crew member; called to perform service covered by Section 2 of the (former) Hours of Service Act; involved with the train or yard movement of railroad rolling equipment they are to work with as an operating crew; reporting and working together as a unit that remains in close contact if more than one employee; and subject to the railroad operating rules and program of operational tests and inspections required in §§ 217.9 and 217.11 of 49 CFR chapter II. FRA’s proposal to adopt the same definition of ‘‘conductor’’ as Part 242 (referring to a single ‘‘crewmember’’) means, under Part 240, only one person can be in charge of a train or yard crew and that person is the conductor. In some circumstances, a locomotive engineer, including a remote control operator (RCO), must be certified as both a locomotive engineer under Part 240 and as a conductor under Part 242. See 49 CFR 242.213(d). See also proposed § 240.308. All other train or yard crew members (e.g., assistant conductors, brakemen, hostlers, PO 00000 Frm 00004 Fmt 4701 Sfmt 4702 trainmen, switchmen, utility persons, flagmen, yard helpers, and others who might have different job titles, but perform similar duties and are not in charge of a train or yard crew) are not ‘‘conductors’’ for purposes of this proposed rule. Drug and Alcohol Counselor (DAC) FRA proposes to adopt the definition of ‘‘drug and alcohol counselor’’ used in Part 242. Part 242 defines the term to mean a person who meets the credentialing and qualification requirements of a ‘‘Substance Abuse Professional’’ (SAP) under part 40. Defining the term this way will avoid interfering with terms used in parts 40 and 219. See Section-by-Section Analysis for ‘‘Substance Abuse Professional.’’ EAP Counselor FRA proposes to remove the definition for EAP Counselor (EAP) and replace that term throughout Part 240 with either a SAP or DAC. This proposed change will not only make Part 240’s handling of substance abuse issues the same as Part 242, but also should improve employee confidence in the substance abuse evaluation process. See Section-by-Section Analysis for ‘‘Substance abuse disorder’’ and ‘‘Substance Abuse Professional.’’ A member of the RSAC Working Group suggested railroads should be permitted to use EAPs interchangeably with SAPs and DACs because small railroads cannot afford full-time employees with DAC/SAP credentials. The RSAC Working Group thoroughly discussed and analyzed this issue and the issue is discussed in the Part 242 rulemaking (see 75 FR 69166, 69171 (Nov. 10, 2010); 76 FR 69802, 69816–69817 (Nov. 9, 2011)). Because replacing EAPs with SAPs and DACs in Part 242 received unanimous consensus from the RSAC Working Group and the full RSAC accepted the proposal in developing Part 242, FRA declines to propose this RSAC Working Group member’s alternative approach in Part 240. File, Filed, and Filing FRA proposes to remove the ‘‘on or after September 4, 2001’’ language from the existing definition of ‘‘file, filed, and filing’’ because the date is obsolete. To conform the definition to the same term in Part 242, FRA also proposes to add ‘‘DOT’’ to the term ‘‘Docket Clerk’’ and a reference to ‘‘FRA’’ to acknowledge that, under this proposed rule, documents will either be filed with the DOT Docket Clerk or, in the case of proposed § 240.103, with FRA. E:\FR\FM\09MYP2.SGM 09MYP2 Federal Register / Vol. 84, No. 90 / Thursday, May 9, 2019 / Proposed Rules A member of the RSAC Working Group suggested FRA add the following sentence to the definition of ‘‘file, filed, filing’’: ‘‘In the application of Section 240.103, a document is not considered properly filed unless it is simultaneously served upon the president of each labor organization that represents the railroad’s employees subject to this part.’’ FRA is not proposing to adopt this suggestion because FRA is proposing to revise § 240.103 to require railroads to serve copies of their locomotive engineer programs on the president of each labor organization that represents each railroad’s employees subject to Part 240. Thus, adopting this suggestion would duplicate the proposed requirement in § 240.103. jbell on DSK3GLQ082PROD with PROPOSALS2 FRA Representative FRA proposes to revise this definition to conform to the definition of ‘‘FRA Representative’’ in Part 242 and update the title of the Associate Administrator referenced in that definition. Ineligible or Ineligibility FRA proposes to add the same definition of this term as the definition of ‘‘ineligible or ineligibility’’ in Part 242 and to describe some instances when a person may not serve as a locomotive engineer. The proposed term ‘‘ineligible or ineligibility’’ means that a person is legally disqualified from serving as a certified locomotive engineer. The term is broadly defined to cover a number of circumstances when a person may not serve as a certified locomotive engineer. Revocation of certification under § 240.307 and denial of certification under § 240.219 are two examples when a person would be ineligible to serve as a certified locomotive engineer. A period of ineligibility may end when a condition or conditions are met. For example, a period of ineligibility may end when a person meets the conditions to serve as a certified locomotive engineer following an alcohol or drug violation under § 240.119. FRA’s original suggested text presented to the RSAC Working Group defined ‘‘ineligible or ineligibility’’ to be when a person is legally disqualified from serving as a ‘‘locomotive engineer.’’ A member of the RSAC Working Group suggested FRA insert ‘‘certified’’ before ‘‘locomotive engineer’’ each place ‘‘locomotive engineer’’ appears in the definition because there might be circumstances where a person performs duties a railroad designates to be performed by an ‘‘engineer,’’ but the duties do not require a ‘‘certified’’ engineer under Part VerDate Sep<11>2014 19:51 May 08, 2019 Jkt 247001 240. Because we propose to use the same definition of ‘‘ineligible or ineligibility’’ in Part 240 as Part 242, and Part 242 contains the term ‘‘certified,’’ FRA is adopting this suggestion in this proposed rule. Other members of the RSAC Working Group suggested that the term ‘‘suspension’’ should be inserted into the definition as another example of when a person would be ineligible to serve as a locomotive engineer. Part 242 does not define ‘‘ineligible or ineligibility’’ to include ‘‘suspension’’ and FRA declines to include it in this proposed rule. Consistent with the definition of the term ‘‘ineligible or ineligibility’’ in Part 242, the proposed definition of ‘‘ineligible or ineligibility’’ in this rule means that a person is ‘‘legally disqualified from serving’’ as a certified locomotive engineer for any railroad. A suspension by one railroad, however, does not create a legal disqualification by all other U.S. railroads that may have certified the individual. The disqualification is legally binding when a person’s certification is denied or revoked. Instructor Engineer FRA proposes to revise the definition of ‘‘instructor engineer’’ to make it as similar as possible to the definition of ‘‘qualified instructor’’ in Part 242. The existing Part 240 definition does not include a role for ‘‘designated employee representatives’’ as the corresponding provision in Part 242 does. Thus, consistent with Part 242’s definition of ‘‘qualified instructor’’ FRA proposes to amend the definition of ‘‘instructor engineer’’ in Part 240 to: (1) Establish a role for employee representative participation; and (2) establish methods for identifying instructors through railroad and employee representative coordination, as well as by the railroad unilaterally. The slight differences FRA proposes to leave between the definitions are necessary to recognize that engineers operate trains and conductors do not. In both Parts 240 and 242, the designation of a certified person as an instructor recognizes that the person chosen can instruct other similarly certified persons. Not every certified person is viewed as automatically having ‘‘the necessary operating experience to effectively instruct in the field.’’ An instructor is typically not a railroad officer or supervisor, but instead a person with current, relevant experience who can be counted on to impart knowledge and demonstrate safety-related tasks through on-the-job (OJT) training. Senior certified people are often chosen as instructors, although PO 00000 Frm 00005 Fmt 4701 Sfmt 4702 20475 some senior people may not be good at teaching others and some certified people who are not considered senior may be excellent teachers. Under the proposed requirements, a designated railroad officer and a designated employee representative may agree that a particular certified engineer should be an instructor engineer because the person is recognized as having the knowledge, skill, and ability ‘‘to teach others proper train handling procedures.’’ Because it is unnecessary for conductors to understand proper train handling procedures, Part 242 does not include such a requirement when a railroad and employee representative select an instructor. However, FRA believes that when a railroad and employee representative select an instructor engineer, the paramount concern is whether the person can teach proper train handling procedures and therefore FRA proposes to retain that language in the Part 240 instructor definition. If the railroad and designated employee representative cannot agree on the selection of a person as an instructor, Part 242 establishes that the railroad can unilaterally select the person as long as the person ‘‘has a minimum of 12 months service working as a train service employee.’’ This Part 242 concept is carried over in the proposed Part 240 definition with the exception that the phrase ‘‘as a train service employee’’ is replaced with ‘‘in the class of service for which the person is designated to instruct.’’ The difference between the two regulatory provisions recognizes the uniqueness of the locomotive engineer position, as compared to other train service employee positions. Only locomotive engineers operate locomotives or trains, while other train service employees line switches for trains, help locomotive engineers make shoving or pushing movements safely, and help trouble shoot mechanical or brake failures. Thus, a conductor with 12 months of service working as a train service employee may have enough experience to instruct conductor candidates. Meanwhile, because of the different classes of locomotive engineer service, FRA proposes a minimum service requirement in the class of service for which a person is designated to instruct. Consequently, because a locomotive servicing engineer is not permitted to move a locomotive or group of locomotives with cars attached, a person who is a certified locomotive servicing engineer for 12 months or more would potentially be qualified to instruct candidates for locomotive servicing engineer certification, but not E:\FR\FM\09MYP2.SGM 09MYP2 jbell on DSK3GLQ082PROD with PROPOSALS2 20476 Federal Register / Vol. 84, No. 90 / Thursday, May 9, 2019 / Proposed Rules candidates for train service engineer service certification if cars would be attached to the movement. The final Part 242 provision FRA is proposing as a requirement for Part 240 instructor engineers addresses the question of what a railroad may do when employees do not have designated employee representation. Under that scenario, a railroad may designate any certified locomotive engineer as an instructor engineer if the person has demonstrated the necessary qualifications under the railroad’s written certification program. This provision is the same as the Part 242 provision, except that the Part 242 provision refers to conductors. This provision gives the maximum flexibility to short line railroads and other railroads where employees do not have designated representatives. A member of the RSAC Working Group recommended FRA remove the requirement to have 12 months of experience from Part 242 and not propose it for Part 240. The member asserted the reduced locomotive engineer population in small railroads will make it impractical if not impossible for all instructor engineers to have this level of experience. FRA notes that as proposed, not all instructor engineers will be required to have a minimum of 12 months of experience in the class of service for which the person is designated to instruct. If a railroad does not have designated employee representation, or if the designated employee representative concurs with the instructor selection, then the proposed 12 months of experience requirement is not applicable. Accordingly, FRA declines to adopt the recommendation. Other RSAC Working Group members suggested that a Part 240 proposed rule should define what constitutes a month, and that one tour of duty in a calendar month should not count as a month. No such limitation is included in Part 242. FRA believes it is in a railroad’s best interests to designate instructors who have experience and have demonstrated they can effectively teach others. The proposed definition of ‘‘instructor engineer’’ includes the requirement that a railroad’s program must contain the criteria the railroad will use to determine who may be an instructor. As such, FRA declines to include a requirement in this proposed rule defining what constitutes a month of experience because there appears to be sufficient safeguards to prevent a railroad from designating instructors with subpar qualifications. During the RSAC Working Group meetings, FRA suggested using the term VerDate Sep<11>2014 19:51 May 08, 2019 Jkt 247001 ‘‘train service engineer’’ in the definition of ‘‘instructor engineer’’ (i.e., FRA’s suggested text would have required a person to have a minimum of 12 months of service working as a ‘‘train service engineer’’). A member of the RSAC Working Group questioned this suggestion by asking FRA to clarify whether the purpose of this restriction would restrict RCOs and hostlers from participating as instructor engineers in the training of other RCOs and hostlers. After careful consideration of this RSAC Working Group member’s response, FRA realized that the suggestion had an unintended consequence. Part 240’s current definition of ‘‘instructor engineer’’ does not restrict instructor engineers to only those people who are in the train service engineer class and FRA does not intend to introduce such a limitation in this proposed rule. Rather, FRA intends to permit a train service engineer or, where appropriate, a locomotive servicing engineer (as described in § 240.107) or RCO to serve as an ‘‘instructor engineer’’ within the parameters of that person’s class. Accordingly, as noted above, FRA proposes that in situations where concurrence is needed between the railroad and the designated employee representative in selecting an instructor engineer, and concurrence is not reached, the person selected must have a minimum of 12 months of service working in ‘‘the class of service for which the person is designated to instruct.’’ For example, a person who had not received concurrence could not serve as an instructor engineer regarding the handling of a locomotive coupled to cars unless that person had a minimum of 12 months of service working as a train service engineer (as described in § 240.107). Given this background, consistent with Part 240’s existing definition of ‘‘instructor engineer,’’ as proposed, RCOs and hostlers could be instructor engineers conducting training of other RCOs and hostlers. To be clear, under both the existing requirements and this proposed rule, any certificate can be restricted, and an instructor can be limited to instructing based on the class of service and the restriction. Presumably, an instructor engineer for RCOs or hostlers may be designated and certified as a train service engineer or locomotive servicing engineer but potentially limited to instructing only in the certain types of work for which the person is qualified. Thus, a person designated as an instructor engineer for RCOs may hold a certification that identifies him or her as a train service engineer restricted to RCO work. Other instructor engineers for RCOs may be PO 00000 Frm 00006 Fmt 4701 Sfmt 4702 designated as train service engineers with no restrictions. Similarly, instructor engineers for hostlers may be designated as train service engineers or locomotive servicing engineers with no restrictions, or train service engineers or locomotive servicing engineers restricted to yard or yard-type work. Of course, consistent with existing Part 240, under this proposed rule, a person may not serve as an ‘‘instructor engineer’’ if the person fails to meet the requirements of an ‘‘instructor engineer’’ described in that definition in § 240.7. Main Track FRA proposes to revise the definition of ‘‘main track’’ to be the same as the definition of ‘‘main track’’ in Part 242 by including a reference to positive train control as a method of operation that would make a track a ‘‘main track.’’ Medical Examiner FRA proposes to revise the definition of ‘‘medical examiner’’ to be the same as the definition of ‘‘medical examiner’’ in Part 242 by removing the portion of the existing definition stating that the medical examiner owes ‘‘a duty to the railroad.’’ Instead, consistent with Part 242, the proposed definition says ‘‘the medical examiner owes a duty to make an honest and fully informed evaluation of the condition of an employee.’’ Newly Hired Employee FRA proposes to delete the definition of ‘‘newly hired employee’’ because that term is not used in Part 240. On-the-Job Training (OJT) The term ‘‘on-the-job training’’ means job training that occurs in the workplace, i.e., the employee learns the job while doing the job. In § 243.5 of this chapter, OJT is described as a type of ‘‘formal training’’ that has a structured and defined curriculum, and that provides an opportunity for training participants to have questions timely answered during the training or at a later date. In appendix B to this part (Appendix B), FRA mentions OJT as one type of training that a railroad may describe in its locomotive engineer certification program. Operator Control Unit (OCU) FRA proposes to add a definition of OCU to Part 240 that is the same as that used in part 229 of this chapter. FRA proposes to add this definition so the proposed RCO class of service in § 240.107 can be precisely explained using the same terms FRA uses in describing the equipment safety standards required for remote control E:\FR\FM\09MYP2.SGM 09MYP2 Federal Register / Vol. 84, No. 90 / Thursday, May 9, 2019 / Proposed Rules locomotives in § 229.15 of this chapter. The conductor certification rule does not contain a definition of OCU because, for purposes of that rule, an RCO is a certified locomotive engineer. Physical Characteristics The term ‘‘physical characteristics’’ is used throughout existing Part 240, but is not defined. Accordingly, FRA proposes to add the same definition for the term used in Part 242. As proposed, ‘‘physical characteristics’’ would mean the actual track profile of and physical location for points within a specific yard or route that affect the movement of a locomotive or train, and include both main track physical characteristics and other than main track physical characteristics. jbell on DSK3GLQ082PROD with PROPOSALS2 Plant Railroad FRA proposes adding a definition of ‘‘plant railroad’’ in this proposed rule to be the same as the definition of ‘‘plant railroad’’ in Part 242 and clarify the applicability of Part 240 as described in § 240.3. The definition is consistent with FRA’s longstanding policy of not exercising its jurisdiction over a plant railroad that does not operate on the general system of railroad transportation and does not move cars for other entities. See 49 CFR part 209, app. A. Qualified FRA proposes to revise the definition of ‘‘qualified’’ to be the same as the definition of ‘‘qualified’’ in Part 242 and to ensure the completeness of a railroad’s instruction and training program. The current definition in Part 240 focuses on an individual’s knowledge whereas the proposed definition in this rule focuses not only on the individual’s knowledge but also on whether the individual could reasonably be expected to be proficient at performing all assigned tasks. The update to the definition of ‘‘qualified’’ is to ensure a railroad’s instruction and training program not only provides knowledge of how to perform a task but also adequately prepares an individual to be able to proficiently perform the task. For example, a qualified locomotive engineer would need to be taught the railroad’s rules and procedures for performing different types of brake tests. An individual who receives classroom training only would be expected to have the requisite knowledge to perform the brake tests, and an individual who is provided OJT or hands-on training would be expected to be able to proficiently perform the tasks required that make up the brake test requirements. Without both knowledge and hands-on practice, the VerDate Sep<11>2014 19:51 May 08, 2019 Jkt 247001 person could not be expected to be qualified to perform brake tests. Some members of the RSAC Working Group suggested an alternative definition of ‘‘qualified’’ emphasizing that the employer’s requirements must be ‘‘identified in the plan submitted in accordance with’’ Part 240. FRA understands the RSAC Working Group members who made this suggestion were concerned that an employer might have qualification requirements outside of a railroad’s locomotive engineer certification plan submitted to FRA. Part 242 does not address this issue and FRA declines to propose such a provision in Part 240. FRA does, however, encourage interested parties to comment on the proposed definition of ‘‘qualified.’’ Railroad Rolling Stock FRA proposes to revise the definition of ‘‘railroad rolling stock’’ to be the same as the definition of the term in Part 242 (i.e., on-track equipment that is either a ‘‘railroad freight car’’ (as defined in § 215.5) or a ‘‘passenger car’’ (as defined in § 238.5)). This proposed definition is the same as the current definition of ‘‘railroad rolling stock’’ in Part 240 except for adding the word ‘‘railroad’’ in front of ‘‘freight car’’ to mirror the definition in § 215.5. Remote Control Locomotive (RCL) FRA proposes to add a definition of RCL to Part 240 that is the same as the definition in § 229.5. FRA is proposing to include this definition in Part 240 so the proposed RCO class of service in § 240.107 can be precisely explained using the same terms FRA uses in describing the equipment safety standards required for an RCL in § 229.15. As proposed, with the use of a radio link, an individual does not have to be physically within the confines of an RCL’s cab to operate the RCL. By definition, the term RCL does not refer to a locomotive or group of locomotives remotely controlled from the lead locomotive of a train, as in a distributed power arrangement. Serve or Service FRA proposes to replace the definition of ‘‘service’’ with a definition of ‘‘serve or service.’’ By replacing the definition, the terminology and definition will be the same as in Part 242. Service is a legal term and is given specific meaning in the Federal Rules of Civil Procedure, which explains why FRA references it. One party serves another party with a document, thereby performing a legal obligation to notify the other party. The act of serving a party with a document is the act of performing service. The words are used PO 00000 Frm 00007 Fmt 4701 Sfmt 4702 20477 interchangeably in the regulation, but FRA is making the change as it may help some readers better understand that serve and service have the same meaning. For example, in proposed § 240.307(c)(11)(iii), FRA proposes that a railroad issuing a decision must serve that decision on the employee and the employee’s representative, if any, as well as a requirement for the railroad to retain proof of that service. Substance Abuse Disorder FRA proposes to revise the definition of ‘‘substance abuse disorder’’ to be the same as the definition of the term in Part 242. Under this definition, a substance abuse disorder is ‘‘active’’ if the person: (1) Is currently using alcohol or other drugs, except under medical supervision consistent with § 219.103; or (2) has failed to successfully complete primary treatment or successfully participate in aftercare as directed by a SAP or DAC. This definition varies from the existing definition in Part 240 in two respects. First, Part 240’s existing definition refers to an ‘‘EAP Counselor’’ rather than a SAP or DAC. SAPs and DACs may be better qualified to direct an individual’s treatment or aftercare because they have more stringent credential, knowledge, training, and continuing education requirements relating to substance abuse than EAPs. Second, existing Part 240 also uses the phrase ‘‘is currently using alcohol and other drugs’’ to describe active substance abuse disorders. As proposed, this definition would revise that phrase to read ‘‘is currently using alcohol or other drugs’’ to clarify that an individual with an active substance abuse disorder could be using alcohol or other drugs. Additional discussion of this definition is found in the preamble to the conductor certification final rule. 76 FR at 69817. Substance Abuse Professional (SAP) FRA proposes to add the same definition of the term ‘‘substance abuse professional’’ as in Part 242. As proposed, ‘‘substance abuse professional’’ is defined to mean ‘‘a person who meets the qualifications of a substance abuse professional, as provided in part 40 of this title.’’ Part 40 defines a SAP as ‘‘[a] person who evaluates employees who have violated a DOT drug and alcohol regulation, and makes recommendations concerning education, treatment, follow-up testing and aftercare.’’ See 49 CFR 40.3. By definition, a SAP may evaluate and treat only an employee who has committed a violation of FRA’s alcohol and drug regulation (Part 219), such as E:\FR\FM\09MYP2.SGM 09MYP2 jbell on DSK3GLQ082PROD with PROPOSALS2 20478 Federal Register / Vol. 84, No. 90 / Thursday, May 9, 2019 / Proposed Rules the prohibitions in §§ 219.101 and 219.102. An employee who may have a substance or alcohol abuse problem but has not violated Part 219 is therefore not eligible for SAP referral. Accordingly, FRA proposes to use the term SAP in § 240.119(d), which addresses the follow-up that must occur after a Part 219 violation. However, because offduty driving of a motor vehicle under the influence (DUI) is not a Part 219 violation, the follow-up required by § 240.115 for a DUI conviction may not be completed by a SAP. Therefore, for those sections of Part 240 that address drug and alcohol evaluation requirements not involving a Federal violation, FRA is proposing to replace the term SAP with the term DAC. As used in this proposed rule, a DAC will have to meet the same qualifications as a SAP. FRA believes these changes will avoid interfering with Parts 40 and 219 while requiring higher qualification and credentialing requirements for persons evaluating substance abuse disorders. intercity passenger, or commuter passenger railroad operation on the track, the track would be considered part of the general system. See part 209, app. A. See the Section-by-Section analysis of § 240.1 for further discussion of the applicability of Part 240 to these types of railroad operations. Territorial Qualifications FRA proposes to add to Part 240 the same definition for the term ‘‘territorial qualifications’’ as in Part 242. As proposed, ‘‘territorial qualifications’’ means ‘‘possessing the necessary knowledge concerning a railroad’s operating rules and timetable special instructions including familiarity with applicable main track and other than main track physical characteristics of the territory over which the locomotive or train movement will occur.’’ Although not currently defined in Part 240, the term is derived from Part 240’s requirement that, with certain exceptions, a locomotive engineer may not operate a locomotive over a territory unless the engineer is ‘‘qualified on the physical characteristics of the territory.’’ See § 240.231. The proposed definition would clarify what ‘‘territorial qualifications’’ means in proposed revisions to §§ 240.125, 240.221, and 240.309. FRA proposes two amendments to this section, which will make the filing and FRA approval process for individual railroads’ Part 240 programs the same as for conductor certification programs under § 242.103. Specifically, FRA proposes revising paragraphs (b) and (c) of this section to require railroads to serve a copy of their program submissions, resubmissions, and material modifications on the president of each labor organization that represents the railroad’s certified locomotive engineers. It also would allow any designated representative of certified locomotive engineers to submit comments to FRA on the railroad’s submission within 45 days of the railroad’s filing with FRA. Although FRA, not the commenters, will decide whether to approve a railroad’s submission, FRA expects comments will be useful in determining whether the railroad’s program conforms to the criteria in this proposed rule. These proposed changes would be in newly added paragraphs (b) and (c). Consequently, FRA proposes redesignating existing paragraphs (b) through (e) as paragraphs (d) through (g), to make the language of these paragraphs consistent with § 242.103(e)(h). Also, FRA is proposing to redesignate existing paragraph (c)(2) as paragraph (e)(2) and then revise that paragraph to be the same as § 242.103(g)(2), indicating that a deficient program may remain in effect for a specified period of time ‘‘so long as the railroad has complied with the requirements’’ for resubmission found in another paragraph of this section. Tourist, Scenic, Historic, or Excursion Operations That Are Not Part of the General Railroad System of Transportation FRA proposes to add to Part 240 the same definition for the phrase ‘‘tourist, scenic, historic, or excursion operations that are not part of the general railroad system of transportation’’ as in Part 242. As proposed, the phrase means a tourist, scenic, historic, or excursion operation conducted only on track used exclusively for that purpose (i.e., there is no freight, intercity passenger, or commuter passenger railroad operation on the track). If there is any freight, VerDate Sep<11>2014 19:51 May 08, 2019 Jkt 247001 Section 240.11 Penalties and Consequences for Noncompliance FRA proposes a minor amendment to paragraph (d) of this section. FRA proposes to revise the words ‘‘Federal Railroad Safety Act’’ (FRSA) in that paragraph to read ‘‘Federal rail safety laws’’ to more accurately describe the source of FRA’s authority since the recodification of the laws comprising the former FRSA. See Public Law 103– 272, 108 Stat. 745 (July 5, 1994). This revision would also make the paragraph the same as § 242.11(d). Section 240.103 Approval of Design of Individual Railroad Programs by FRA PO 00000 Frm 00008 Fmt 4701 Sfmt 4702 In proposed paragraph (h) (which revises existing paragraph (e) and is the same as paragraph (i) of § 242.103), FRA would require a railroad intending to materially modify its FRA-approved program to submit to FRA a description of its intended material modification 60 days before implementing the modification (as opposed to the current requirement to do so 30 days in advance). This proposed revision would allow time for the labor organizations to comment on the proposed modification(s) under proposed paragraph (c) of this section and for FRA to consider any comments from the relevant labor organizations. In developing this NPRM, FRA considered proposing to require railroads to file their complete Part 240 programs (including any modifications made as a result of this rule) with FRA and serve those complete programs on the president of each labor organization that represents the railroad’s certified locomotive engineers. Although the proposed requirement to serve programs would be new to Part 240, FRA considered that Part 240 was effective in 1991 and it would be expected that each president of a relevant labor organization that wanted a copy of a railroad’s locomotive engineer certification program would have obtained it by now. FRA thus views the proposed conforming amendment as requiring a railroad to serve material modifications or wholly new programs on the president of each labor organization that represents the railroad’s certified locomotive engineers but not a program that is revised due to promulgation of this rule. FRA requests comment on the potential adoption of such a requirement in a final rule. Section 240.105 Criteria for Selection of Designated Supervisors of Locomotive Engineers This existing section requires each railroad to designate certain supervisors qualified to test and evaluate the knowledge and skills of locomotive engineers. FRA proposes to add new paragraph (d) to address that some designated supervisors of locomotive engineers (DSLEs) may not be train service engineers. Those that are locomotive servicing engineers or remote control operators may still be DSLEs, but the range of their supervision would be limited by the railroad to the person’s actual qualifications. Although the existing rule does not prohibit a railroad from creating a DSLE subset known as Designated Supervisor of Remote Control Operators (DSRCOs), and many have done just that, the addition of E:\FR\FM\09MYP2.SGM 09MYP2 Federal Register / Vol. 84, No. 90 / Thursday, May 9, 2019 / Proposed Rules jbell on DSK3GLQ082PROD with PROPOSALS2 proposed paragraph (d) recognizes that each railroad is authorized to make such designations that apply additional conditions or operational restrictions on the service that a DSLE may perform just as each railroad may apply conditions and restrictions on any person’s certificate. Because Part 242 does not differentiate among different classes of service for conductors, there is no comparable provision to proposed paragraph (d) in Part 242. FRA intends proposed paragraph (d) to help railroads effectively differentiate among the potential different DSLE classes of service contemplated by Part 240. Section 240.107 Types of Service FRA is proposing several changes to this section, including a change to the heading of this section. The current section heading is ‘‘Criteria for designation of classes of service,’’ and the proposed change would make it the same as the section heading in its Part 242 counterpart. In existing paragraph (a), each railroad is required to state in its program which of the three classes of service named in paragraph (b) it will cover (i.e., train service engineers, locomotive servicing engineers, and student engineers). FRA proposes to add two additional classes of service to paragraph (b) (i.e., remote control operators and student remote control operators). Thus, FRA proposes to revise paragraph (a) to remove the specific reference to ‘‘three’’ because paragraph (b) would now list five classes of service. However, those railroads that already name remote control operators as a class of service in a Part 240 program or do not conduct remote control operations would not need to make any change to their programs as a result. Existing paragraph (c) requires railroads to apply certain operational constraints to each class of service. The proposed changes to paragraph (c) are intended to add operational constraints for the two new classes of service. In paragraph (c)(3), FRA proposes to add operational constraints to the proposed RCO class of service. This new class of service recognizes that many railroads now employ and train individuals who have never operated conventional locomotives, but are instead restricted to operations using an RCL controlled solely by an OCU. Currently, many railroads use RCLs for switching movements or low-speed operations on main track as § 229.15(a)(14) limits this equipment to a maximum speed of 15 mph. An individual certified as a ‘‘train service engineer’’ under § 240.107(c)(1) may operate any type of locomotive, VerDate Sep<11>2014 19:51 May 08, 2019 Jkt 247001 whether conventionally operated from the control stand in the locomotive cab or remotely controlled, and with or without cars or other locomotives coupled to the controlled locomotive. An individual certified as a ‘‘locomotive servicing engineer’’ under § 240.107(c)(2) may operate any type of locomotive, whether conventionally operated from the control stand in the locomotive cab or remotely controlled, with other locomotives coupled to the controlled locomotive but not with cars coupled to the movement. An RCO is distinguishable from these other classes of service because an RCO is limited to operating only remotely controlled locomotives by using the OCU. The industry currently recognizes that an RCO’s service is limited by the type of locomotive and controls used. The changes proposed in paragraph (c)(3) catch up to this industry practice. Existing paragraph (c)(3), which address student engineers, would be redesignated as paragraph (c)(4) with the addition of student RCOs. As proposed, paragraph (c)(4) provides that any student, operating any locomotive, whether conventionally operated from the control stand in the locomotive or from an OCU, is operationally constrained because each student may operate only under the direct and immediate supervision of an instructor engineer. FRA recognizes that in order to learn some RCO duties, an instructor engineer may be separated from the student RCO by a significant physical distance; under those circumstances, the instructor engineer would be required to have some override feature or ability to stop the student’s remotely controlled locomotive or train movement. However, in each case, the instructor must observe the student’s actions to properly monitor the student’s activities. This supervision requirement could not be accomplished if, while riding the point on an RCO move, the student RCO was on one side of the car and the instructor was on the other side. If both the student RCO and instructor were riding the same side of the car (on each end) and the instructor has the ability to stop the move, this would meet the intent of the regulation. The existing rule requires, at a minimum, a student certification for any person operating a locomotive in any capacity, and the type of student certification may further limit the person’s authority to operate equipment. For example, an individual who is a student locomotive serving engineer would be prohibited from operating with a locomotive coupled to cars— even if operating under the direct and immediate supervision of a qualified PO 00000 Frm 00009 Fmt 4701 Sfmt 4702 20479 instructor engineer. Similarly, as proposed, a student RCO is operationally constrained from operating a conventional, i.e., a nonremotely controlled locomotive, even if the student RCO is under the direct and immediate supervision of an instructor engineer. Section 240.111 Individual’s Duty To Furnish Data on Prior Safety Conduct as Motor Vehicle Operator Existing § 240.111 requires persons subject to Part 240 to make information on his or her motor vehicle driving record available to any railroad considering the individual for certification or recertification under Part 240, unless the person reports to the railroad that he or she has never obtained a motor vehicle driver’s license. Because obtaining a motor vehicle driver’s license is not a precondition for obtaining locomotive engineer certification, an individual who reports that fact to a railroad is not required under Part 240 to request the non-existent driving history. FRA proposes a change to paragraph (a)(2) that would add the words ‘‘or foreign law’’ to clarify that the reference to ‘‘State or Federal law’’ is not limited to driver licenses issued within the United States. An individual’s duty under this section extends to providing any necessary consent under foreign law to obtain information from foreign countries that issued the person a motor vehicle driver’s license. This proposed change to paragraph (a)(2) would make the requirement the same as the corresponding requirement in § 242.111(g)(2). Similarly, the proposed changes to paragraphs (c)(1) and (2) would make the paragraphs the same as § 242.111(i)(1) and (2) so that the same requirements would apply to both engineers and conductors to request driver’s license information, whether issued in the United States or by a foreign country. One difference between the locomotive engineer and conductor certification requirements that this proposed rule does not address is that those seeking locomotive engineer certification must request motor vehicle information from the National Driver Register (NDR), even though the NDR statute and regulation (see 49 U.S.C. chapter 303 and 23 CFR 1327) prohibit railroads from requesting NDR information from individuals seeking employment as certified conductors. In 1991, States were not required to provide information to NDR and there only were a limited number of State licensing agencies that had the capacity to make a direct NDR inquiry. Today, E:\FR\FM\09MYP2.SGM 09MYP2 jbell on DSK3GLQ082PROD with PROPOSALS2 20480 Federal Register / Vol. 84, No. 90 / Thursday, May 9, 2019 / Proposed Rules however, each State and the District of Columbia are required to send information on all revocations, suspensions, and license denials within 31 days of receipt of the convictions from the courts to the NDR and each of these driver licensing agencies has the capability to provide NDR’s data. 49 U.S.C. 30304. With that understanding, proposed changes to paragraphs (d) and (e) remove an outdated reference to a list of driver licensing agencies that used to reside in appendix D, and the proposed substitution clarifies that each State and the District of Columbia are able to perform a check of the NDR. As NDR explains, ‘‘[t]he entire driver history record for a licensed driver is maintained at the State level.’’ 5 Thus, under paragraph (d), there is no need to request information directly from NDR if a State or the District of Columbia issued the person a driver’s license and a request is sent directly to the motor vehicle license agency that issued the license. Under paragraph (e), an individual issued a driver’s license by one of the driver licensing agencies of a State or the District of Columbia shall request that the NDR information be added to the request. Again, because Part 240 requires NDR record checks and Part 242 does not, changes are proposed for paragraph (f) that are similar, but not identical to § 242.111(j). These paragraphs address how a railroad must potentially contact additional motor vehicle licensing agencies when an individual’s motor vehicle record reveals that additional information concerning that person’s driving history may exist in the files of another agency not previously contacted. The proposed changes to paragraph (f) would address what an individual must do when a railroad is informed by an authority with driver’s license information that additional information about the individual may exist in files of a foreign country. Existing paragraph (h) requires certified locomotive engineers or engineer candidates to report certain motor vehicle incidents to his or her employing railroad within 48 hours of ‘‘being convicted for, or completed state action to cancel, revoke, suspend, or deny a motor vehicle drivers license for’’ such incidents. FRA proposes to amend paragraph (h) so it is the same as the corresponding conductor certification requirement in § 242.111(l) by adding: ‘‘For purposes of this paragraph and § 240.115(h), ‘state action’ means action of the jurisdiction that has issued the motor vehicle 5 https://www.nhtsa.gov/research-data/nationaldriver-register-ndr. VerDate Sep<11>2014 19:51 May 08, 2019 Jkt 247001 driver’s license, including a foreign country.’’ Thus, the proposed change would clarify that an individual who is a certified engineer has a duty to report certain motor vehicle incidents to any railroads that have certified the person within 48 hours of the completed ‘‘state action’’ by both U.S. states that issue driver licenses and foreign countries. Several members of the RSAC Working Group suggested FRA remove the requirement for an individual seeking certification or recertification as a locomotive engineer to request that the railroad be provided consent to request from the NDR a report of the person’s motor vehicle driving history. Because those checks of the NDR are statutorily required for locomotive engineers, FRA cannot eliminate them. See 49 U.S.C. 20135(b)(6)(B). Section 240.113 Individual’s Duty To Furnish Data on Prior Safety Conduct as an Employee of a Different Railroad Existing § 240.113 requires persons subject to Part 240 to make information on his or her prior railroad service record available to any railroad considering the individual for certification or recertification under Part 240. FRA proposes amending paragraph (a) of this section to make it conform as closely as possible to paragraph (c) of § 242.113 and to clarify what service record information an individual must request from a former railroad employer. Currently, paragraph (a) requires the person ‘‘to make information concerning his or her prior railroad service record available to the railroad that is considering’’ his or her certification or recertification. This proposed rule would require an individual to share only a subset of his or her prior railroad service record (i.e., only information on an individual’s compliance or noncompliance with §§ 240.111 (prior safety conduct as a motor vehicle operator), 240.117 (prior operating rule or practice violations), and 240.119 (prior substance abuse disorders and alcohol/drug rules compliance)). Section 240.115 Criteria for Consideration of Prior Safety Conduct as a Motor Vehicle Operator This section provides the requirements and procedures a railroad must follow when evaluating an engineer’s or engineer candidate’s prior conduct as a motor vehicle operator. FRA proposes revising this section in its entirety to be consistent with paragraphs (a) through (f), and (n) and (o) of § 242.111. Proposed paragraph (a) requires railroads to adopt and comply with an engineer certification program meeting the requirements of § 240.115. PO 00000 Frm 00010 Fmt 4701 Sfmt 4702 Proposed paragraph (b) requires railroads to determine if an individual meets the eligibility requirements of the section before initially certifying or recertifying the person. Proposed paragraphs (c) through (f) incorporate the same temporary certification provisions as in paragraphs (c) through (f) of § 242.111. During RSAC Working Group meetings, members raised concerns about certification candidates who had properly requested motor vehicle operator information but could not be certified or recertified as locomotive engineers because of a driver licensing agency’s delay or mix-up sending the required information to the railroad. To address this concern as it relates to conductors, paragraphs (c) and (d) of § 242.111 require railroads to certify or recertify an individual as a conductor for 60 days if the person: (1) Requested the required information at least 60 days prior to the date of the decision to certify or recertify; and (2) otherwise meets the eligibility requirements provided in the rule. Paragraph (e) of § 242.111 provides that if a railroad certifies or recertifies an individual as a conductor for 60 days under § 242.111, but cannot obtain and evaluate the required information during those 60 days, the person is ineligible to perform as a conductor until the information can be evaluated. However, paragraph (f) of § 242.111 provides that if an individual simply cannot obtain the required information, that person or the certifying or recertifying railroad can petition FRA for a waiver of the requirement (see part 211). During the pendency of the waiver request, a railroad must certify or recertify an individual as a conductor if the person otherwise meets the eligibility requirements of Part 242. Because the RSAC Working Group’s concerns regarding motor vehicle operator information for conductors are equally applicable to locomotive engineers, FRA proposes to adopt the same temporary certification provisions of § 242.111(c) through (f) in § 240.115(c) through (f). With the exception of citations to relevant sections of Part 240, proposed paragraphs (g) and (h) of this section are the same as paragraphs (m) and (n) of § 242.111. These paragraphs prohibit railroads from considering certain information about a certification candidate’s motor vehicle driving record and specify the types of motor vehicle incidents that a railroad may consider when making a certification decision. FRA proposes paragraph (i) of this section to be the same as paragraph (o) of § 242.111, which provides that if a railroad identifies a prior motor vehicle E:\FR\FM\09MYP2.SGM 09MYP2 Federal Register / Vol. 84, No. 90 / Thursday, May 9, 2019 / Proposed Rules jbell on DSK3GLQ082PROD with PROPOSALS2 incident it must provide the data along with ‘‘any information concerning the person’s railroad service record’’ to its DAC (not an ‘‘EAP Counselor’’ as existing paragraph (c) of § 240.115 provides). Further, the same as paragraph (o) of § 242.111, proposed paragraph (i) would require the railroad’s DAC to refer the certification candidate for evaluation to determine if the person is currently affected by an active substance abuse disorder. If the person is currently affected by such a disorder, the person cannot be currently certified. Alternately, even if the person is evaluated as not currently affected by an active substance abuse disorder, the railroad would be required, if recommended by a DAC, to condition certification upon participation in needed aftercare and/or follow-up testing for alcohol or drugs, or both. For the reasons explained in the above section-by-section analysis for the definitions of ‘‘drug and alcohol counselor,’’ ‘‘EAP Counselor,’’ ‘‘Substance abuse disorder,’’ and ‘‘Substance Abuse Professional,’’ 6 FRA notes that any testing performed as a result of a DAC’s recommendation under paragraph (i) of this proposed rule must be done under company authority, not Federal. Such testing, however, would still be required to comply with Part 219, subpart H, and Part 40. The same as paragraph (o)(5) of § 242.111, proposed paragraph (i)(5) would clarify that a failure to cooperate in the DAC evaluation will result in the person being ineligible to perform as a locomotive engineer until the person cooperates in the evaluation. FRA notes it does not intend for DOT’s requirement for direct observation of urine collection to apply to follow-up testing required as a result of motor vehicle alcohol or drug incidents. A motor vehicle alcohol or drug incident requiring follow-up testing is not a Part 219 violation. As such, a motor vehicle alcohol or drug incident does not meet the criteria justifying direct observation as provided by § 40.67. A DAC, however, may recommend direct observation of urine collection as necessary for follow-up testing under company authority. See 76 FR 69802, 69806–69807 (Nov. 9, 2011). 6 A member of the Working Group objected to using a SAP for § 240.115 purposes, asserting that some railroad employees may have to travel great distances to be evaluated by a SAP. This issue was thoroughly discussed at Working Group meetings during the development of Part 242. For the reasons discussed at the Working Group meetings and in the preamble discussion of Part 242 (see 76 FR 69802, 69806–69807 (Nov. 9, 2011)), FRA disagrees with the objection to using a SAP for purposes of § 240.115. VerDate Sep<11>2014 19:51 May 08, 2019 Jkt 247001 Section 240.117 Criteria for Consideration of Operating Rules Compliance Data Existing § 240.117 provides the criteria and procedures a railroad must follow to evaluate an engineer’s or engineer candidate’s compliance with specific types of operating rules and practices. FRA is proposing a number of revisions to clarify the meaning of this section and to conform the section to the corresponding provisions of the conductor certification rule in § 242.403. Existing paragraph (a) requires railroads’ Part 240 programs to include ‘‘criteria and procedures for implementing’’ § 240.117. FRA is proposing to revise paragraph (a) to explicitly state that each railroad, railroad officer, supervisor, or employee who violates any requirement of a railroad’s FRA-approved certification program shall be considered to have violated the requirements of § 240.117. FRA intends this proposed revision to clarify the responsibility of railroads and individuals to comply with § 240.117. FRA proposes parallel changes in several other sections in subpart B, including paragraphs (a) of §§ 240.119, 240.121, 240.123, 240.125, 240.127, and 240.129. These proposed changes would make the implementing language in these sections of Part 240 the same as that in the corresponding sections of Part 242 (i.e., §§ 242.111 through 242.125). Existing paragraph (c)(1) requires the mandatory revocation of a locomotive engineer’s certificate when he or she has ‘‘demonstrated a failure to comply, as described in paragraph (e) of this section, with railroad rules and practices for the safe operation of trains.’’ To clarify this requirement and make it the same as § 242.403(c)(1), but not substantively change it, FRA proposes to revise paragraph (c)(1) in part by removing the phrase ‘‘with railroad rules and practices for the safe operation of trains.’’ Even though that phrase is conditioned by the reference to paragraph (e), some railroads incorrectly read the phrase as expanding the number or type of operating rules or practices violations that require revocation. The more concise proposed revision specifies that the unlawful actions requiring mandatory revocation of a locomotive engineer’s certification are limited to those involving a certified locomotive engineer who has demonstrated a failure to comply with railroad rules and practices described in paragraph (e) of the section. Existing paragraph (c)(3) prohibits the revocation of a locomotive engineer’s PO 00000 Frm 00011 Fmt 4701 Sfmt 4702 20481 certification if he or she is called to perform the duty of a train crew member other than a locomotive engineer and is performing that non-locomotive engineer duty. As proposed, FRA would add the words ‘‘or conductor’’ to paragraph (c)(3) to prohibit revocation of an individual’s locomotive engineer certification when that person is called to perform the duty of a train crew member, other than that of locomotive engineer or conductor, and the person is performing such duties. This proposed revision would make § 240.117(c)(3) similar to the related Part 242 provision (§ 242.403(c)(3)). Proposed paragraph (e)(5) would add an ‘‘or’’ after the semicolon and proposed paragraph (e)(6) would correct the existing typographical error of a semicolon at the end of the paragraph instead of a period. Existing paragraph (f) provides: (1) If a single incident contravenes more than one operating rule or practice listed in paragraph (e) of the section, that incident is to be treated as a single violation; (2) an engineer may have his or her certification revoked for violations occurring during properly conducted operational compliance tests; and (3) an engineer may not have his or her certification revoked for operational tests not conducted in compliance with Part 240, the railroad’s operating rules, or a railroad’s program under § 217.9. FRA proposes adding new paragraph (f)(4), which would prohibit a railroad from denying or revoking an employee’s certification based upon additional conditions or operational restrictions imposed pursuant to § 240.107(d). Thus, a railroad could not revoke a locomotive engineer’s certificate for an alleged violation of a railroad rule or practice that is more stringent than the condition or restrictions required by Part 240. This proposal conforms to § 242.403(f)(4). Existing paragraphs (g)(3)(i) and (ii) currently state the mandatory revocation periods in terms of ‘‘months.’’ FRA proposes to change ‘‘month’’ to 30 days and ‘‘six months’’ to 180 days to ensure uniformity and eliminate any ambiguity. Finally, FRA proposes adding a new paragraph (h) after existing paragraph (g) in this section, providing that all periods of revocation may consist of training. While existing Part 240 does not contain a similar provision, it is certainly not prohibited under the current regulation and FRA is including this proposed revision to make FRA’s intent clear and to conform to § 242.405(b). By inserting proposed paragraph (h) after existing paragraph (g), existing paragraph (h) (addressing an individual’s future eligibility to hold a locomotive engineer certificate after a E:\FR\FM\09MYP2.SGM 09MYP2 20482 Federal Register / Vol. 84, No. 90 / Thursday, May 9, 2019 / Proposed Rules jbell on DSK3GLQ082PROD with PROPOSALS2 denial of certification or revocation event) would be redesignated as proposed paragraph (i). Section 240.119 Criteria for Consideration of Data on Substance Abuse Disorders and Alcohol/Drug Rules Compliance Existing § 240.119 addresses active substance abuse disorders and prior alcohol/drug rules compliance of engineers or engineer candidates. FRA is proposing to revise this section to make it the same as corresponding § 242.115, which FRA believes is better organized and easier to understand than existing § 240.119. The only differences between the proposed Part 240 version of this section and the Part 242 version are the references to locomotive engineer instead of conductor, and citations to the engineer rule instead of the conductor rule. Existing paragraph (b)(2) requires a ‘‘certified engineer who is determined to have an active substance abuse disorder’’ to be ‘‘suspended from certification.’’ Because the word ‘‘suspended’’ is not defined in existing Part 240, FRA proposes to replace the phrase ‘‘suspended from certification’’ with the phrase ‘‘ineligible to hold certification.’’ This revision would make existing § 240.119(b)(2) consistent with the corresponding provision in § 242.115(d)(2), and the revised paragraph would be renumbered as paragraph (d)(2). FRA is also proposing to remove the word ‘‘failure’’ from the phrase ‘‘refusal or failure’’ in existing paragraph (c)(2) and renumber the paragraph as proposed paragraph (e)(2) of this section. Existing paragraph (c)(2) requires a railroad, when determining whether an individual may be or remain certified as a locomotive engineer, to consider any previous violations of §§ 219.101 or 219.102 and any ‘‘refusal or failure to provide a breath or body fluid sample for testing’’ under Part 219. Removing the word ‘‘failure’’ will make this paragraph the same as paragraph (e)(2) of § 242.115 and ensure consistency with subpart I of Part 40, which provides the medical conditions under which an individual’s failure to provide a sufficient sample is not deemed a refusal. In addition, FRA proposes to amend this section by replacing ‘‘EAP Counselor’’ with ‘‘Substance Abuse Professional (SAP) or drug and alcohol counselor (DAC)’’ for the reasons explained above in the section-bysection analysis for the definitions of ‘‘drug and alcohol counselor,’’ ‘‘EAP Counselor,’’ ‘‘substance abuse disorder,’’ and ‘‘Substance Abuse Professional.’’ VerDate Sep<11>2014 19:51 May 08, 2019 Jkt 247001 Finally, existing paragraph (d) of this section, now proposed paragraph (f), prescribes the conditions under which employees may be certified or recertified after a determination that their certification should be denied, suspended, or revoked due to a violation of §§ 219.101 or 219.102. Existing paragraph (d)(1)(iii) provides that an individual is not eligible for certification or recertification unless and until the person presents a urine sample that tests negative for alcohol and controlled substances assayed. FRA is proposing to revise this paragraph to make it the same as § 242.115(f)(1)(iii) and specify that an individual must have ‘‘an alcohol test with an alcohol concentration of less than .02.’’ Specifying the alcohol concentration limit more accurately reflects the provisions of Part 219. FRA notes Part 240, like Part 242, does not require compensation of the employee for the time spent in testing, evaluation, counseling, or other treatment under paragraph (d) (now proposed paragraph (f)) of this section, which, under certain circumstances, is a condition precedent to retention of a locomotive engineer certificate. Instead, any applicable collective bargaining agreement or other terms and conditions of employment under the Railway Labor Act would dictate what compensation, if any, an employee is due. Section 240.121 Criteria for Vision and Hearing Acuity Data Existing § 240.121 contains the requirements for visual and hearing acuity railroads must incorporate into their locomotive engineer certification programs. FRA proposes to amend paragraphs (a) and (c) of this section to conform to § 242.117(a) and (i). These proposed revisions update Part 240’s testing procedures and standards for the hearing acuity requirements. FRA is not proposing language consistent with § 242.117(c), (d), and (e) because similar requirements exist in § 240.207(b), (c), and (d). The proposed testing procedures and standards for the hearing acuity requirements, which mirror those in § 242.117(i), are derived from the procedures and standards in 49 CFR part 227 governing occupational noise exposure and are more stringent than those in existing § 240.121. The criteria an individual must meet to pass the hearing test, however, remains the same (i.e., an individual cannot have an average hearing loss in the better ear greater than 40 decibels with or without use of a hearing aid, at 500 Hz, 1,000 Hz, and 2,000 Hz). The proposed testing procedures and standards for the hearing test or PO 00000 Frm 00012 Fmt 4701 Sfmt 4702 audiogram are the same three choices provided to conductors in § 242.117(i). The hearing test or audiogram must (1) meet the requirements of the Occupational Safety and Health Administration’s requirements in 29 CFR 1910.95(h); (2) comply with § 227.111; or (3) be conducted using an audiometer meeting the specifications of ANSI S3.6–2004, ‘‘Specifications for Audiometers,’’ provided the audiometer is maintained and used as that standard requires. Section 240.123 Training Existing § 240.123 requires railroads to provide their certified locomotive engineers initial and continuing education to ensure each engineer maintains the necessary knowledge, skill, and ability to carry out the duties of a locomotive engineer. FRA proposes to revise this section’s heading to be the same as § 242.119 (Training). FRA also proposes to amend this section to be similar to Part 242 (§ 242.119), and to relate the training and education requirements of Part 240 to the requirements of 49 CFR part 243 (Part 243) for the training, qualification, and oversight of safety-related railroad employees. Although Part 243 was a statutorily mandated rule, it was neither proposed nor effective when Part 242 became effective. However, the Part 243 proposed rule was based on an RSAC recommendation made before Part 242 was published,7 and so the industry was aware of the likely requirements to be proposed and FRA understood RSAC’s intent as a desire for conductor training standards to meet any future, FRA training standard requirements in § 243.101. Part 243 requires each employer of safety-related railroad employees to submit training programs for FRA’s review and approval. FRA’s Part 243 review is intended to ensure that each employer will deliver formal training on all required Federal railroad safety requirements to each occupational category or subcategory of employee doing safety-related work and that OJT is formalized, with a structured curriculum that provides measurable results. In FRA’s estimation, locomotive engineer and conductor training programs have been, and continue to be, sufficiently robust to meet the Part 243 standards. These certification training 7 On November 9, 2011, FRA published the conductor certification final rule which was effective on January 1, 2012. 76 FR 69802. On February 7, 2012, FRA published the Part 243 proposed rule which noted that the Working Group’s recommendations were accepted by the full RSAC on December 14, 2010. 77 FR 6412, 6415. E:\FR\FM\09MYP2.SGM 09MYP2 jbell on DSK3GLQ082PROD with PROPOSALS2 Federal Register / Vol. 84, No. 90 / Thursday, May 9, 2019 / Proposed Rules programs are already required to be submitted to FRA for review and approval under Parts 240 and 242, and thus railroads were exempted from submitting them under Part 243, unless the railroad’s plan did not provide sufficient detail regarding the OJT components (§ 243.103(b)). When that is the case, the railroad is only required to supplement the certification training program with the updated OJT portion as a material modification as required in §§ 240.103(e) and 242.103(i). In keeping with the Part 243 requirements, FRA proposes to amend paragraph (c) of this section to require a railroad training a previously untrained person to be a locomotive engineer to provide initial training that, at a minimum, complies with the requirements of § 243.101. The proposed language is intended to ensure that locomotive engineer OJT programs are properly modified, if necessary to conform to the requirements in § 243.101. The deadlines for implementing the modifications are governed by Part 243. Note that FRA amended the implementation deadlines for compliance with § 243.101, and so railroads and other employers that employ locomotive engineers are not required to modify locomotive engineer OJT programs until January 1, 2020, at the earliest (a May 1, 2021 deadline is established for an employer conducting railroad operations employing fewer than 400,000 total employee work hours annually). 82 FR 20549 (May 3, 2017) (extending all implementation dates in Part 243 by one year) and 82 FR 18455 (April 27, 2018) (extending all implementation dates in Part 243 by an additional year, thereby delaying each of the implementation dates in the 2014 Part 243 final rule by a total of two years). Existing paragraph (c)(4) lists the subject matters a railroad’s initial locomotive engineer training must cover. Proposed paragraph (c)(4)(ii) would add ‘‘railroad operating procedures’’ to the list of subject matter areas to be covered during initial training. Existing paragraph (c)(4)(ii) only references ‘‘railroad operating rules.’’ Proposed paragraph (c)(4)(vi) would clarify that a railroad’s initial locomotive engineer training must cover ‘‘[c]ompliance with Federal railroad safety laws, regulations, and orders.’’ The existing paragraph only mentions compliance with Federal regulations, so the proposed language is more precise in expressing the Federal requirements that must be covered. The proposed language is also the same as that found throughout § 242.119. VerDate Sep<11>2014 19:51 May 08, 2019 Jkt 247001 Existing paragraph (c)(5) specifies that the performance skill component of initial engineer training must meet certain conditions. FRA proposes to add the phrase shall ‘‘meet the following conditions’’ to the introductory text of this paragraph to clarify that each of the listed conditions must be met. Finally, FRA proposes to add new paragraphs (e) and (f) to this section. These paragraphs would require railroads to designate in their locomotive engineer programs the time period in which a locomotive engineer must be absent from a territory or yard before requalification on physical characteristics is required and the procedures used to qualify or requalify an individual on the physical characteristics. These proposed new paragraphs would be the same as paragraphs (j) and (k) of § 242.119, and are important components for ensuring locomotive engineers are familiar with the physical characteristics of the territory over which they will operate. Section 240.125 Knowledge Testing This section requires railroads to provide initial and periodic training and testing of locomotive engineers to determine that each such person has sufficient knowledge of the railroad’s rules and practices for the safe operation of trains. FRA proposes to revise paragraph (a) of this section to be the same as paragraph (a) of § 242.121, which sets forth the requirement that railroads must adopt and comply with a program meeting the requirements of the section. Similar to the proposed revision to § 240.123(c)(4)(vi) discussed above, FRA is also proposing to amend § 240.125(c)(4)(v) to clarify that the criteria for testing a locomotive engineer’s knowledge must cover not only compliance with ‘‘Federal safety laws,’’ but also ‘‘[c]ompliance with Federal railroad safety laws, regulations, and orders.’’ FRA also proposes to add new paragraphs (e), (f), and (g), which would be the same as paragraphs (e), (f), and (g) of § 242.121. Proposed new paragraph (e) would require a railroad to provide the person(s) being tested with an opportunity to consult with a supervisory employee who possesses territorial qualifications for the territory to explain a test question. Proposed new paragraph (f) would require the railroad to keep documentation indicating whether the person passed or failed the knowledge test. Proposed new paragraph (g) would require each railroad to ensure that an individual who fails a knowledge test is not permitted or required to function as a PO 00000 Frm 00013 Fmt 4701 Sfmt 4702 20483 locomotive engineer until that person achieves a passing score during a reexamination of the person’s knowledge. FRA included these requirements in Part 242 to address RSAC Working Group members’ concerns. Proposed paragraph (e) addresses RSAC Working Group members’ concerns that individuals being tested should be able to obtain clarification of test questions by someone with knowledge of the relevant territory. Proposed paragraph (f) ensures test documentation indicates whether the person taking the test passed or failed the test. Proposed paragraph (g) prohibits a railroad from permitting or requiring an individual to function as a locomotive engineer until that person achieves a passing score on his or her knowledge test. This paragraph addresses the concern that an individual who fails a knowledge test would therefore lack adequate knowledge of the railroad’s rules and practices for the safe operation of trains, even if the person is currently certified to do so. Because these same concerns addressed by requirements in the conductor rule are applicable to locomotive engineers, FRA is proposing to incorporate the same requirements into Part 240 as applied to locomotive engineers. Section 240.127 Criteria for Examining Skill Performance Existing § 240.127 requires a railroad to have procedures for examining the performance skills of an individual being evaluated for qualification as a locomotive engineer. As discussed in the above section-by-section analysis of § 240.117, FRA proposes to amend paragraph (a) of this section simply to clarify the responsibilities of railroads, railroad officers, supervisors, and employees regarding the requirements of this section. Section 240.129 Criteria for Monitoring Operational Performance of Certified Engineers Existing § 240.129 requires railroads to have procedures for monitoring the operational performance of locomotive engineers and contains the requirements for railroads to conduct both an operational monitoring observation and an unannounced compliance test each calendar year. FRA proposes to amend this section to provide the same flexibility as in Part 242 to conduct monitoring outside of the calendar year requirement when a certified person is not performing service requiring certification. See § 242.123(f). For example, a certified engineer may be on furlough, in military service, off with an extended illness, or working in another E:\FR\FM\09MYP2.SGM 09MYP2 jbell on DSK3GLQ082PROD with PROPOSALS2 20484 Federal Register / Vol. 84, No. 90 / Thursday, May 9, 2019 / Proposed Rules capacity for the railroad. Existing § 240.129 requires railroads to seek a waiver from FRA for engineers they are unable to test each calendar year. The proposed amendments would remove this requirement and railroads would not be required to conduct unannounced compliance tests or operational monitoring observations on engineers who are not performing service requiring certification. Instead, when such a certified locomotive engineer returns to engineer service, this proposed rule would require that the engineer be given both tests within 30 days of his or her return. This proposed change would make the treatment of certified engineers who are not performing service requiring certification consistent with the treatment of conductors under § 242.123 not performing conductor service. See § 242.123(b) and (f). Moreover, proposed § 240.129(b)(2) would require a railroad intending to avoid conducting an operational monitoring observation or an unannounced compliance test on a certified engineer not performing service requiring certification to retain a written record documenting certain dates regarding a locomotive engineer’s service to prove that the locomotive engineer met the exception in proposed paragraph (h). This is the same recordkeeping requirement as in § 242.123(b)(2). Several other revisions are proposed to add clarity to the existing requirements. Existing paragraph (c) says ‘‘the procedures shall,’’ which does not make clear that the procedures in paragraph (c) apply to the operational monitoring observation, not the unannounced compliance test. Proposed paragraph (c)(2) clarifies that the procedure applies to an ‘‘operational monitoring observation,’’ not the more generic term ‘‘operational performance monitoring’’ which could apply to both the operational monitoring observation and the unannounced compliance test. Proposed paragraph (d) also clarifies that the procedure applies to an ‘‘operational monitoring observation,’’ as the existing language does not clearly specify whether it applies to an operational monitoring observation or an unannounced compliance test. Proposed paragraph (e) clarifies that the requirements listed apply to the unannounced compliance test program and not the ‘‘operational monitoring observation,’’ as the existing language does not clearly specify the type of test. VerDate Sep<11>2014 19:51 May 08, 2019 Jkt 247001 Section 240.205 Procedures for Determining Eligibility Based on Prior Safety Conduct Existing section 240.205 requires railroads, before initially certifying or recertifying an individual as a locomotive engineer, to determine that the person meets the eligibility requirements of §§ 240.115, 240.117 and 240.119 involving the individual’s prior conduct as a motor vehicle operator, prior revocations as a locomotive engineer or railroad worker with duties under Part 240, and prior FRA alcohol and drug violations that may be indicative of substance abuse disorders. FRA proposes to amend paragraph (a) of this section to clarify that a railroad need not, prior to certifying an individual as a student engineer, determine the person meets the listed eligibility requirements. FRA intends this revision as a clarification to make § 240.205(a) consistent with existing § 240.203. Under existing § 240.203, a railroad may certify an individual as a student engineer after determining the person meets the hearing and vision acuity standards of § 240.121, but the railroad does not need to determine if a student engineer meets the eligibility requirements of §§ 240.115, 240.117, and 240.119. There is no comparable provision in Part 242 because the conductor certification regulation does not recognize student conductors as a class of service. For the reasons discussed above in the section-by-section analysis for the definitions of ‘‘drug and alcohol counselor,’’ ‘‘EAP Counselor,’’ ‘‘substance abuse disorder,’’ and ‘‘Substance Abuse Professional,’’ FRA proposes to revise paragraph (b) of this section by replacing ‘‘EAP Counselor’’ with DAC, the abbreviation for drug and alcohol counselor. Section 240.207 Procedures for Making the Determination on Vision and Hearing Acuity FRA proposes to amend this section by adding a semicolon at the end of paragraph (b)(2)(i). This proposed change does not change the meaning of this section. This existing section is the same as § 242.117(b) through (f). Section 240.209 Procedures for Making the Determination on Knowledge FRA proposes to amend this section by adding three punctuation marks and correcting the designation of paragraphs (b)(i) and (b)(ii) to (b)(1) and (b)(2) respectively. At the end of paragraph (b), FRA proposes to add a colon. At the end of paragraph (b)(i), FRA proposes to PO 00000 Frm 00014 Fmt 4701 Sfmt 4702 add a semicolon. Finally, in paragraph (c), FRA proposes to add a comma after the phrase ‘‘[i]f a person fails to achieve a passing score under the testing procedures required by this part.’’ The proposed changes do not change the meaning of this section and the requirements of this existing section are consistent with the requirements of § 242.121(f) and (g). Section 240.211 Procedures for Making the Determination on Performance Skills FRA proposes to amend this section by adding two punctuation marks and correcting the numbered paragraphs in paragraph (b). At the end of paragraph (b)’s introductory text, FRA proposes to add a colon. At the end of paragraphs (b)(i), FRA proposes to add a semicolon. The proposed changes do not change the meaning of this section. Section 240.215 Retaining Information Supporting Determinations This section contains the recordkeeping requirements for railroads that certify locomotive engineers. FRA proposes to amend paragraph (j) of this section to update Part 240’s electronic record retention requirements and make those requirements the same as Part 242’s. See § 242.203(g). While this section currently permits railroads to retain records electronically, proposed paragraph (j) of this section provides more specific requirements regarding the electronic storage system used to retain the records. FRA recognizes the growing prevalence of electronic records, and acknowledges the unique challenges electronic transmission, storage, and retrieval of records can present. FRA also recognizes the need to maintain the integrity and security of records stored electronically. Thus, FRA believes the more specific requirements for electronic storage systems adopted in Part 242 are appropriate. Further, to allow for future advances in technology, the electronic record storage provisions in proposed paragraph (j) are technology-neutral. FRA also proposes to remove a semicolon at the end of paragraph (e)(2). The proposed change in punctuation does not change the meaning of this paragraph. Section 240.217 Time Limitations for Making Determinations This section contains various time constraints precluding railroads from relying on stale information when evaluating a candidate for certification or recertification. FRA proposes amending paragraphs (a)(2) and (a)(4) to E:\FR\FM\09MYP2.SGM 09MYP2 Federal Register / Vol. 84, No. 90 / Thursday, May 9, 2019 / Proposed Rules conform to Part 242 (see § 242.201). Existing paragraph (a)(2) prohibits a railroad from making a certification decision based on a visual and hearing acuity examination more than 366 days before its certification decision. As under § 242.201(a)(2), FRA proposes to allow railroads to use visual and hearing acuity examination data from up to 450 days before the certification decision. The 450-day period corresponds to the requirement in § 227.109 that railroads must offer employees included in a hearing conservation program a hearing test at least every 450 days. To accommodate railroads performing knowledge testing on a two-year cycle, FRA also proposes adding a new paragraph (a)(4) to this section, the same as § 242.201(a)(4), which would allow those railroads to rely on knowledge determinations and knowledge examinations administered up to 24 months before the railroad’s certification decision. Given proposed new paragraph (a)(4), existing paragraph (a)(4) allowing railroads to rely on performance skills and performance skill testing up to 366 days before the railroad’s certification decision would be redesignated as paragraph (a)(5). Part 242 does not contain a comparable provision. FRA proposes to delete the prefatory language in paragraph (d) that refers to an exception during the initial implementation of the program. Because that initial implementation occurred in 1991 when Part 240 first became effective, there is no longer a need to state the exception. FRA is also proposing a grammatical correction to paragraph (a)(1) to change ‘‘were’’ to ‘‘was.’’ jbell on DSK3GLQ082PROD with PROPOSALS2 Section 240.219 Denial of Certification This section provides the minimum procedures railroads must follow before denying an individual’s certification or recertification. FRA proposes to amend this section to update the minimum procedures railroads must follow before denying a candidate’s certification or recertification and make it the same as the process for denying a conductor’s certification or recertification under § 242.401. FRA believes the proposed amendments to paragraphs (a), (c), and (d) will not only improve the transparency of the locomotive engineer certification denial process and improve FRA’s ability to adjudicate petitions seeking review of a railroad’s denial decision pursuant to subpart E of Part 240 (Subpart E), but also ease the regulatory burden on railroads by having one consistent process to follow for denying both locomotive engineer VerDate Sep<11>2014 19:51 May 08, 2019 Jkt 247001 and conductor certifications or recertifications. Existing paragraph (a) of this section requires a railroad, before denying an individual’s certification or recertification, to notify the individual of information known to the railroad that forms a basis for denying his or her certification and to provide the individual with a reasonable opportunity to explain or rebut the information in writing. To make this existing provision the same as § 242.401(a), FRA proposes adding a second sentence to this paragraph requiring a railroad to provide a locomotive engineer certification candidate with any written documents or records ‘‘related to his or her failure to meet a requirement of Part 240 which supports a railroad’s pending denial decision.’’ FRA intends this revision to prevent situations where a railroad does not provide a locomotive engineer certification candidate with enough information regarding a denial decision to draft an appropriate rebuttal. FRA wants to avoid the delay and cost of a locomotive engineer candidate having to petition FRA’s OCRB to obtain the documents he or she needs to rebut the denial decision. If locomotive engineer certification candidates are provided better information upfront, FRA expects they will file fewer petitions with the OCRB. As under Part 242, FRA would not require railroads to provide documentation on employment or personal issues because generally those issues are outside the scope of Part 240. Instead, FRA would require railroads to provide certification candidates with documents related to a failure to meet a requirement of Part 240 that would support a decision to deny the individual certification or recertification. For example, FRA would expect railroads to provide certification candidates locomotive download printouts, Form Bs, and/or transcripts of railroad communications support a pending denial decision. As it does under existing Part 240, under this proposed rule the OCRB would already have the authority to order a railroad to produce these types of documents and FRA would not expect these documents to be privileged. In a small number of petitions to the Locomotive Engineer Review Board (LERB), FRA noticed a railroad merely making the documents or records available for viewing by the person within a railroad office. The changes to this paragraph clarify FRA’s current interpretation that a railroad is required to provide the person with a complete copy of those documents or records relied on, including color copies PO 00000 Frm 00015 Fmt 4701 Sfmt 4702 20485 of photographs and videos in a readable format. Existing paragraph (c) of this section requires each railroad denying an individual certification or recertification to notify the person of its decision in writing and explain, in writing, the basis for its denial decision. This existing paragraph requires the railroad’s written explanation to be ‘‘mailed or delivered’’ to the certification candidate within 10 days after the railroad’s decision. FRA proposes to revise this paragraph to require railroads to ‘‘serve’’ a written explanation of an adverse decision on a certification candidate (see proposed definition of ‘‘serve or service’’ in § 240.7, which is consistent with the term as defined in § 242.7). Using the defined term ‘‘serve,’’ rather than the current phrase ‘‘mailed or delivered,’’ will make Part 240 internally consistent and will help FRA in determining whether a petition seeking review of a denial decision is timely filed under § 240.403. As paragraph (c) to § 242.401 does, the proposed changes to § 240.219 would also explicitly require a railroad’s denial decision address any explanation or rebuttal information a locomotive engineer candidate may have provided in writing under paragraph (a) of this section. The current rule strongly implies a railroad’s denial decision should address any such information a certification candidate provides, but often railroads’ decisions do not address this information. The failure of railroads to explicitly address information certification candidates provide to rebut potential adverse decisions has led to delays in FRA’s review of railroads’ decisions, as FRA often needs to query the railroad on why the explanation or rebuttal was unsatisfactory before determining whether the railroad’s decision was proper. By requiring a railroad’s decision to explicitly address a candidate’s rebuttal, FRA anticipates locomotive engineer candidates petitioning FRA will have a better understanding of the railroad’s reasoning for its denial decision and FRA’s OCRB will be able to complete its review of the railroad’s decision on a more-timely basis. Consistent with paragraph (d) of § 242.401, which prohibits a railroad from denying an individual’s conductor certification for failure to comply with certain operating rules or practices if sufficient evidence exists that an intervening cause prevented or materially impaired the conductor’s ability to comply, FRA proposes to add a new paragraph (d) to this section. Paragraph (d) would explicitly prohibit a railroad from denying an individual’s E:\FR\FM\09MYP2.SGM 09MYP2 20486 Federal Register / Vol. 84, No. 90 / Thursday, May 9, 2019 / Proposed Rules locomotive engineer certification based on his or her failure to comply with § 240.117(e)(1) through (5) if sufficient evidence exists to establish that an intervening cause prevented or materially impaired the locomotive engineer’s ability to comply with those provisions. FRA derived proposed paragraph (d) from the intervening cause exception for revocation in existing § 240.307(i)(1). Although the regulation already implies a railroad may not deny an individual certification for an alleged operating rule violation occurring when the person’s actions are the result of an intervening cause, this proposed revision to paragraph (d) will clarify this limitation. jbell on DSK3GLQ082PROD with PROPOSALS2 Section 240.221 Identification of Qualified Persons Existing § 240.221 requires railroads to maintain, and update at least annually, a written record identifying each person designated as a supervisor of locomotive engineers (DSLE) and as a certified locomotive engineer. Currently, paragraph (d) requires railroads to update the listings this section requires at least annually and paragraph (e) requires railroads to keep the required lists at the divisional or regional headquarters of each railroad. To simplify the regulation, FRA proposes to combine the requirements of existing paragraphs (d) and (e) into one paragraph, proposed paragraph (d). As proposed, paragraph (d) would be the same as paragraph (c) of § 242.205. FRA also proposes to add new language to paragraph (e) clarifying that it is unlawful for a railroad to knowingly, or an individual to willfully, make a false entry on or falsify the lists this section requires. The same language is found in § 242.205(d) and similar language is found in § 240.215(i) (referencing ‘‘records’’ as opposed to ‘‘lists’’). While existing paragraph (f) of this section permits railroads to retain records electronically, the proposed revision to paragraph (f) provides more specific requirements for the electronic storage system used to retain the records and does not require a railroad to obtain FRA approval to maintain the records electronically. The electronic storage requirements in proposed paragraph (f) track those in §§ 242.203(g) and 242.205(e). Section 240.223 Criteria for the Certificate This section contains the requirements for the certificates railroads must issue to each certified locomotive engineer. Among other things, existing § 240.223 requires VerDate Sep<11>2014 19:51 May 08, 2019 Jkt 247001 locomotive engineer certificates to contain the certified individual’s birth date and the date the railroad issued the certificate. To address privacy concerns RSAC Working Group members expressed, conform the requirements of this section to § 242.207, and make it easier for railroads to issue a single certificate to an individual certified as both a conductor and a locomotive engineer, FRA proposes two changes to this section. First, FRA proposes to revise paragraph (a)(3) to be the same as paragraph (a)(3) of § 242.207. As revised, paragraph (a)(3) would require the certificate to contain only the year of the individual’s birth (as opposed to his or her full birth date). FRA also proposes to revise paragraph (a)(5) to be the same as paragraph (a)(5) of § 242.207. As revised, paragraph (a)(5) would require certificates to include the effective date of the certificate (as opposed to the issuance date currently required). Some railroads currently include both the issuance date and the effective date on certificates, which has caused confusion when calculating certificates’ expiration dates. Unless an expiration date is provided on a certificate, the effective date, in conjunction with the railroad’s Part 240 program, is the date that FRA will use to determine when the certificate expires. In other words, when reviewing a certificate that contains only an effective date, FRA will assume that the certificate is valid for 36 months from the effective date unless the railroad’s Part 240 program specifies a shorter expiration period. Section 240.225 Reliance on Qualification Determinations Made by Other Railroads Existing § 240.225 contains the conditions under which a railroad considering certification of an individual as a qualified engineer may rely on determinations concerning that person’s qualifications made by another railroad. FRA is not proposing any substantive change to this section. However, for clarity and consistency with the corresponding provision in Part 242 (§ 242.125), FRA is proposing to redesignate as paragraph (b) the last sentence of paragraph (a)’s introductory text, along with the list in paragraphs (a)(1) through (5). This change would make the structure of § 240.225 consistent with the structure of § 242.125. Paragraph (a) would provide that in making certification decisions, a railroad may rely on determinations made by another railroad, and paragraph (b) would specify the determinations a railroad needs to make when relying on another railroad’s PO 00000 Frm 00016 Fmt 4701 Sfmt 4702 certification of an individual as a qualified locomotive engineer. Section 240.229 Requirements for Joint Operations Territory FRA is not proposing any changes to the requirements in this section, but offers this analysis to address issues raised by some RSAC Working Group members. Under existing § 240.229, the railroad responsible for controlling joint operations with another railroad is also responsible for determining who is permitted to operate in the joint operations territory and for certifying those locomotive engineers to operate in the joint operations territory. Some RSAC Working Group members suggested that a railroad controlling joint operations should not be responsible for making any determinations concerning the certification and territorial qualifications of another railroad’s locomotive engineers. However, because this is a requirement of both Part 240 (see §§ 240.221(c) and (d), and 240.229(c)(1)(i)) and Part 242 (see § 242.301(a)), this suggestion would involve more than just conforming Part 240 to Part 242. Further, this is an issue that FRA extensively addressed in an August 29, 2008 published interpretation. 73 FR 50883. In that interpretation, FRA explained that some controlling railroads directly certify and qualify another railroad’s locomotive engineers, whereas other controlling railroads indirectly certify and qualify. Controlling shortline and regional railroads typically directly certify and qualify; controlling major freight railroads generally indirectly certify and qualify. 73 FR at 50884. FRA maintains that although the employing railroad may generally bear the most direct responsibility to ensure each of its locomotive engineers is certified and qualified to operate in the joint operations territory, the controlling railroad also bears significant responsibility. The controlling railroad that indirectly certifies and qualifies may provide training to the other railroad’s DSLEs who then train their own locomotive engineers, and it is possible that the training provided to the other railroad is inadequate. Although FRA may be willing to revisit this issue in another rulemaking, FRA believes that a controlling railroad must bear some responsibility for hosting another railroad’s locomotive engineers and conductors in joint operations territory and for that reason FRA declines to adopt the suggestion to eliminate that responsibility in this proposed rulemaking. E:\FR\FM\09MYP2.SGM 09MYP2 Federal Register / Vol. 84, No. 90 / Thursday, May 9, 2019 / Proposed Rules Paragraph (f) does provide an exception to this section’s requirements for ‘‘minimal joint operations’’ if four conditions are met. The four conditions include: (1) Maximum authorized speed on the track is 20 miles per hour; (2) the track is other than main track; (3) operations are conducted under operating rules requiring every locomotive and train to proceed at a speed permitting stopping within one half the range of vision of the locomotive engineer; and (4) there is no more than one mile of joint operations territory. This locomotive engineer exception is more lenient than the equivalent conductor provision, which is a strict prohibition on an unqualified conductor working in joint operations territory. § 242.301(a). A RSAC Working Group member suggested FRA revise paragraph (f) of § 240.229 to require compliance with only one of the listed conditions, not all four. FRA declines to propose this suggestion because it would permit locomotive engineers who are unfamiliar with the physical characteristics of the joint operations territory to operate far into that unfamiliar territory under conditions that could be extremely challenging for the locomotive engineer. Thus, it is probable that such a provision would lead to many unsafe situations in joint operations. jbell on DSK3GLQ082PROD with PROPOSALS2 Section 240.301 Replacement of Certificates Existing § 240.301 requires railroads to have a system, reasonably accessible to certified locomotive engineers, for the prompt replacement of lost, stolen, or mutilated certificates. FRA proposes to revise this section to be the same as the corresponding provision in Part 242, § 242.211. Specifically, FRA proposes dividing this section into two paragraphs. Proposed paragraph (a) would be the same as paragraph (a) of § 242.211 and would make railroads responsible for providing replacement certificates to engineers at no cost to the locomotive engineer. Proposed paragraph (b) would be the same as paragraph (b) of § 242.211, which authorizes railroads to issue temporary replacement certificates valid for no more than 30 days. Section 240.303 Operational Monitoring Requirements Section 240.303 currently requires railroads subject to Part 240 to have a program to monitor the conduct of their certified locomotive engineers by performing both operational monitoring observations and by conducting unannounced operating rules VerDate Sep<11>2014 19:51 May 08, 2019 Jkt 247001 compliance tests. For consistency with the proposed revisions to § 240.129 (discussed above in the section-bysection analysis for that section), FRA proposes to amend paragraphs (b) and (c) of this section to exempt railroads from the requirement to conduct unannounced compliance tests on locomotive engineers who are not performing service requiring certification. Section 240.305 Prohibited Conduct This section sets forth the general prohibitions on actions of certified locomotive engineers, requires individual engineers to keep their certificates with them while on duty as engineers, and requires engineers to display their certificates in certain situations. Specifically, under existing paragraph (b) of this section, a certified locomotive engineer must display her or her certificate upon the request of an FRA or railroad representative. In the section-by-section analysis for the conductor certification final rule, FRA clarified its intent that State inspectors authorized under FRA’s State Safety Participation Regulations, 49 CFR part 212 (Part 212), could be considered ‘‘FRA representatives,’’ but that by mentioning such State inspectors separately it would ensure that there would be no dispute regarding their authority. 76 FR at 69824–25. For that same reason, FRA proposes to amend this paragraph to make it the same as paragraph (a) of § 242.209 and expressly add a new paragraph (b)(2)(ii) making clear that, upon request, a locomotive engineer must display his or her certificate to a State inspector authorized under Part 212. In doing so, FRA proposes to add a colon to the end of paragraph (b)(2) and renumber existing paragraphs (b)(2)(ii) and (iii). Section 240.307 Revocation of Certification Existing § 240.307 provides the procedures a railroad must follow to revoke a certified locomotive engineer’s certification. FRA proposes to amend this section to clarify its intent and make it the same as § 242.407, which addresses the revocation of conductor certifications. A more detailed discussion of these changes is found in the section-by-section analysis of § 242.407 in the conductor certification final rule. 76 FR at 69829. Existing paragraph (a) requires a railroad to revoke an engineer’s certification if it ‘‘acquires information’’ about the engineer’s violations of certain operating rules and practices or prior alcohol or drug violations ‘‘which convinces the railroad the person no PO 00000 Frm 00017 Fmt 4701 Sfmt 4702 20487 longer meets the qualification requirements’’ of Part 240. FRA proposes to amend this paragraph to add the word ‘‘reliable’’ before ‘‘information,’’ and to remove the phrase ‘‘which convinces the railroad that the person no longer meets the qualification requirements of this part.’’ These proposed revisions would make paragraph (a) of this section the same as paragraph (a) of § 242.407.8 Paragraph (b)(1) currently requires railroads to immediately suspend an engineer’s certificate upon receipt of ‘‘reliable information indicating the person’s lack of qualification’’ under Part 240. FRA believes this phrase is prone to misinterpretation and proposes to replace the reference to an individual’s ‘‘lack of qualification’’ under Part 240 with more specific language ‘‘regarding violation(s) of § 240.117(e) or § 240.119(c) of this chapter.’’ This proposed change would make paragraph (b)(1) of this section the same as paragraph (b)(1) of § 242.407(b), with the exception of the regulatory provisions cited.9 To mirror the procedures in Part 242, FRA proposes to add a new paragraph (b)(4) to this section specifying that no later than the convening of a hearing, the railroad convening the hearing must provide the person whose engineer certificate is at stake with a ‘‘copy of the written information and list of witnesses the railroad will present at the hearing.’’ Further, if the railroad does not provide the required information until just before the hearing is convened, a recess at the start of the hearing must be granted if requested to consider the information. In addition, any relevant information required to be provided under this section that leads to the suspension of an engineer’s certificate pursuant to paragraph (b)(1), is to be provided through statements of an employee of the convening railroad, and the railroad must make that employee available for examination during the hearing. Finally, FRA proposes to clarify in the last sentence of new paragraph (b)(4) that a witness’s examination may be telephonic where it is impractical to have the witness appear at the hearing. These proposed provisions would make paragraph (b)(4) of § 240.307 the same as paragraph (b)(4) of 242.407. 8 The only difference between proposed paragraph (a) of § 240.307 and existing paragraph (a) of § 242.407 are the regulatory citations referenced for violations of (1) operating rules and practices and (2) alcohol or drug use. Paragraph (a) of § 240.307 refers to the relevant provisions of Part 240 (§ 240.117(e) and § 240.119(c)); paragraph (a) of § 242.407 refers to the relevant provisions of Part 242 (§ 242.403(e) and § 240.115(e)). 9 See footnote 8. E:\FR\FM\09MYP2.SGM 09MYP2 jbell on DSK3GLQ082PROD with PROPOSALS2 20488 Federal Register / Vol. 84, No. 90 / Thursday, May 9, 2019 / Proposed Rules Some members of the RSAC Working Group suggested revising proposed paragraph (b)(4) to require railroads to provide all (as opposed to written) information relied upon to suspend an individual’s certificate and to add the word ‘‘only’’ in the last sentence of that paragraph to read: ‘‘Examination may be telephonic only where it is impractical to provide the witness at the hearing.’’ Because those changes do not conform to Part 242, FRA declines to adopt them for this rulemaking. However, FRA will consider addressing these issues in any future Part 240 and Part 242 rulemaking. As proposed, paragraph (b)(4) would be a new requirement and its insertion in the existing list of six items in paragraph (b) means that paragraphs (b)(4) through (6) would be renumbered as paragraphs (b)(5) through (7). Paragraphs (b)(6) and (b)(7) would contain the same exact requirements as existing paragraphs (b)(5) and (b)(6). The proposed changes to existing paragraph (b)(4) (renumbered as proposed in paragraph (b)(5)), are described below. Existing paragraph (b)(4) (which would become paragraph (b)(5) if new proposed paragraph (b)(4) discussed above is adopted), requires a railroad to ‘‘[d]etermine, on the record of the hearing, whether the person no longer meets the qualification requirements of this part.’’ Similarly, existing paragraph (c)(2) requires the hearing to be conducted by a ‘‘presiding officer, who can be any qualified person authorized by the railroad other than the investigating officer.’’ FRA proposes to replace the words ‘‘qualification’’ and ‘‘qualified’’ in these paragraphs with the words ‘‘certification’’ and ‘‘proficient,’’ respectively. These proposed amendments would make the language of paragraphs (c)(2) and (b)(5) of § 240.307 the same as paragraphs (c)(2) and (b)(5) of §§ 242.407 and FRA intends these amendments to avoid conflicting with the defined the term ‘‘qualified’’ (discussed in the section-bysection analysis for § 240.7). Although FRA is not proposing to revise existing paragraphs (c)(1) and (3) of this section, FRA is taking this opportunity to clarify these existing paragraphs and how they affect an engineer’s rights and a presiding officer’s authority in a certification hearing that is not held in accordance with a collective bargaining agreement. Paragraph (c)(1) requires a Part 240 hearing to be convened within 10 days of an individual’s certificate suspension unless the locomotive engineer requests or consents to delaying the start of the hearing. Paragraph (c)(3), on the other hand, provides the presiding officer VerDate Sep<11>2014 19:51 May 08, 2019 Jkt 247001 with the ‘‘powers necessary to regulate the conduct of the hearing for the purpose of achieving a prompt and fair determination of all material issues in controversy.’’ Thus, while existing paragraph (c)(1) provides a locomotive engineer with significant input into when a hearing is held, the paragraph must be read in conjunction with paragraph (c)(3) which provides the presiding officer with the powers necessary to regulate the conduct of the hearing. Thus, a presiding officer is permitted to deny excessive hearing request delays by a locomotive engineer. Moreover, a presiding officer could find implied consent to postpone a hearing where a locomotive engineer’s witnesses are not available within 10 days of the date the railroad suspends the engineer’s certificate. FRA notes, however, the OCRB may grant a petition on review if it finds the hearing schedule caused a petitioner substantial harm. Existing paragraph (c)(9) provides that a railroad proceeding under § 240.307(c) shall be closed at the conclusion of the hearing unless the presiding officer allows additional time for the submission of information. FRA is proposing typographical corrections to this paragraph to make the paragraph substantively the same as paragraph (c)(9) of § 242.407 (i.e., adding the word ‘‘the’’ before ‘‘conclusion’’ in the first sentence and adding a comma after the introductory phrase ‘‘[i]n such instances’’ in the second sentence). Existing paragraph (c)(11) requires a railroad’s decision to contain the findings of fact and basis for those findings concerning all material issues presented on the record. The paragraph also requires the decision to be served on the employee. FRA is proposing revisions to paragraph (c)(11) to make it the same as paragraph (c)(11) of § 242.407, including expanding what information is required in the railroad’s written decision and who must be served with a copy of that decision. Specifically, FRA proposes to amend paragraph (c)(11)(i) to require a railroad’s written decision to not only include the factual findings, but also include ‘‘citations to all applicable railroad rules and practices.’’ FRA is also proposing a new paragraph (c)(11)(ii), which would require a railroad’s decision to state whether the railroad official found that a revocable event occurred and the applicable period of ineligibility with a citation to § 240.117 or § 240.119. As proposed, the requirement in existing paragraph (c)(11)(ii) for a railroad to serve a copy of the decision on the adverse party would be renumbered as proposed PO 00000 Frm 00018 Fmt 4701 Sfmt 4702 paragraph (c)(11)(iii) and expanded to require the railroad to serve the decision not only on the employee but also on the employee’s representative, if any, and to require the railroad serving the decision to retain proof of service on the employee and the employee’s representative, if any. The existing rule does not specifically require a railroad to retain proof of service, but it is routine for a railroad to do so. In some prior certification cases, employees have complained to FRA that they were unaware of any written decision regarding their revocation, and if a railroad could not provide proof of service then that procedural concern became a viable issue. FRA believes requiring railroads to retain proof of service of their decertification decisions will help reduce the number of OCRB petitions alleging that a railroad did not issue a written decision, when in fact, the railroad did. In short, FRA believes its proposed changes to paragraph (c)(11) will ensure railroads issue clearer and more detailed decisions. Clearer and more detailed decisions will allow individual locomotive engineers to better understand a railroad’s decision to revoke his or her certification and will allow the OCRB to better understand the case if it is asked to review the revocation decision under Part 240. Although the proposed changes are found in paragraph (c) which applies to a hearing not held in conformance with an applicable collective bargaining agreement, FRA would expect each hearing held pursuant to a collective bargaining agreement as permitted by paragraph (e) of this section to comply with these proposed changes to paragraph (c)(11), because they are fundamental to ensuring a railroad can prove its revocation decision was issued and served. Existing paragraph (g) requires a railroad relying on an individual’s locomotive engineer certification by another railroad under §§ 240.227 or 240.229 to revoke the individual’s certification if, during the period the certification is valid, ‘‘the railroad acquires information which convinces it that another railroad has revoked [the person’s] certification after determining in accordance with the provisions of this section, that the person no longer meets the qualification requirements of this part.’’ FRA proposes amending paragraph (g) to make it the same as paragraph (g) of § 242.407. Specifically, FRA proposes to amend paragraph (g) to remove the phrases ‘‘after determining’’ and ‘‘that the person no longer meets the qualification requirements of this E:\FR\FM\09MYP2.SGM 09MYP2 jbell on DSK3GLQ082PROD with PROPOSALS2 Federal Register / Vol. 84, No. 90 / Thursday, May 9, 2019 / Proposed Rules part.’’ By removing those phrases, the proposed paragraph will more clearly require a railroad allowing a certified person from another railroad to operate in joint operations, whether from another U.S. railroad or from Canada, to provide reciprocal revocations when another railroad revokes the person’s certification. Both proposed and existing paragraph (g) are intended to ensure that each railroad issuing a certification to an individual who operates in joint operations does not ‘‘ignore the safety record of one of its engineers that was compiled while the engineer was operating on another railroad’s trackage.’’ 58 FR 18982, 18991 (1993). Similarly, all railroads operating in joint operations that certify an individual as a locomotive engineer ‘‘should rely on the single hearing provided and be bound by the decision made by the railroad conducting the hearing.’’ Id. FRA proposes to clarify existing paragraph (i) of this section by deleting unnecessary references to engineer qualification requirements and specifying when, despite an individual’s violation of § 240.117(e)(1) through (5), a railroad is prohibited from revoking that individual’s certification and when a railroad has discretion not to revoke an individual’s certification for such violations. The proposed revisions to this paragraph will make this paragraph the same as paragraph (i) of § 242.407.10 Both existing paragraph (i) and the proposed revision to paragraph (i) provide two specific defenses for railroad supervisors and hearing officers to consider when deciding whether to suspend or revoke an individual’s certificate due to an alleged revocable event. Paragraph (i)(1) would prohibit a railroad from revoking an individual’s certificate if there is sufficient evidence of an intervening cause that prevented or materially impaired the person’s ability to comply. Paragraph (i)(2) would provide a railroad with the discretion necessary to decide not to revoke an engineer’s certification for an event that violates § 240.117(e)(1) through (5) if the violation was of a ‘‘minimal nature and had no direct or potential effect on rail safety.’’ Proposed paragraph (j) would correct a typographical error by changing a semicolon to a period at the end of the paragraph. 10 The only difference between proposed paragraph (i) of § 240.307 and paragraph (i) of § 242.407 are the regulatory citations referenced. Paragraph (i) of § 240.307 refers to violations of § 240.117(e)(1) through (5); paragraph (i) of § 242.407 refers to § 242.403(e)(1) through (11). VerDate Sep<11>2014 19:51 May 08, 2019 Jkt 247001 Section 240.308 Multiple Certifications FRA proposes to add new § 240.308, which would allow an individual to hold both a locomotive engineer and a conductor certification and would address different scenarios that an individual or railroad might face when the individual holds multiple certifications. This proposed section is based on § 242.213 but would not adopt § 242.213(a) and (g), which address an individual holding multiple types of conductor certifications, i.e., passenger conductor and freight conductor, because holding multiple locomotive engineer certifications would not make sense. Specifically, an individual would not need to hold a train service engineer certificate and a locomotive servicing engineer certificate, because a locomotive servicing engineer’s duties are a subset of a train service engineer’s duties. Similarly, a locomotive servicing engineer and a train service engineer would be expected to be qualified on RCLs, so there would be no need for engineers with either of those classes of service to hold an RCO certificate. As proposed, a railroad needs to issue only one certificate to an individual certified as both a locomotive engineer and a conductor, but that certificate must comply with both §§ 240.223 and 242.207. To the extent possible, a railroad issuing multiple certificates to an individual would have to coordinate the expiration date of those certificates. See proposed § 240.308(a) and (b). These paragraphs mirror the requirements in paragraphs (b) and (c) of § 242.213. With the exception of a situation in which a passenger conductor’s removal from a passenger train is for a medical, police, or other such emergency, a locomotive engineer, including an RCO, must meet certain requirements to operate a locomotive or train without a certified passenger conductor. One option under the proposed requirement is for the person assigned as the certified locomotive engineer to also be a certified conductor. The other option is for the locomotive engineer who is operating without an assigned certified conductor to have a certified conductor attach to the crew ‘‘in a manner similar to that of an independent assignment.’’ See proposed § 240.308(c) and (d). These paragraphs mirror the requirements in paragraphs (d) and (e) of § 242.213. Paragraphs (e) through (m) of proposed § 240.308 correspond to paragraphs (f) and (h) through (o), respectively, of existing § 242.213. A detailed analysis of these provisions is found in the section-by-section analysis PO 00000 Frm 00019 Fmt 4701 Sfmt 4702 20489 of § 242.213 in the conductor certification final rule. 76 FR 69825. Section 240.309 Railroad Oversight Responsibilities Existing § 240.309 requires each Class I railroad (including the National Railroad Passenger Corporation and a railroad providing commuter service) and Class II railroad to conduct an annual review and analysis of its program for responding to detected instances of poor safety conduct by certified engineers. FRA proposes to amend this section to conform, where appropriate, to § 242.215. Existing paragraph (b) of this section requires railroads to include four items in their annual review and analysis. Specifically, paragraph (b)(4) requires railroads conducting joint operations with another railroad or railroads to include the number of locomotive engineers employed by the other railroad(s) ‘‘to which such events were ascribed which the controlling railroad certified for joint operations.’’ FRA proposes to revise existing paragraph (b)(4) for clarity and to make the language mirror that in paragraph (b)(4) of § 242.215, but not to substantively change the requirement. Existing paragraph (e) requires railroads to keep track of nine distinct types of events involving poor safety conduct by locomotive engineers. Specifically, existing paragraphs (e)(1) and (2) require railroads to keep track of incidents involving noncompliance with ‘‘part 218’’ and ‘‘part 219’’. To clarify that these citations refer to 49 CFR parts 218 and 219, FRA proposes to add the phrase ‘‘of this chapter’’ to both paragraphs (e)(1) and (2). Additionally, in paragraphs (e)(8) and (9), FRA proposes to correct typographical errors by adding the word ‘‘and’’ at the end of paragraph (e)(8) after the semicolon and removing the semicolon and word ‘‘and’’ at the end of paragraph (e)(9) and putting a period at the end of the sentence. To accommodate a new paragraph proposed as paragraph (f) to revise the reporting requirements of the section, existing paragraphs (f) through (h) have been redesignated as proposed paragraphs (g) through (i). As paragraph (f) of § 242.215 does, proposed paragraph (f) would require a railroad to report an instance of poor safety conduct involving an individual holding both a conductor and engineer certification only once (i.e., either under § 242.215 or this section). As proposed and consistent with § 242.215(f), a railroad’s determination of whether to report the instance of poor safety conduct under Part 240 or Part 242 must E:\FR\FM\09MYP2.SGM 09MYP2 20490 Federal Register / Vol. 84, No. 90 / Thursday, May 9, 2019 / Proposed Rules jbell on DSK3GLQ082PROD with PROPOSALS2 be based on the work the person was performing at the time the conduct occurred. This determination is similar to the determination made under 49 CFR part 225 in which railroads determine whether an accident was caused by poorly performing what is traditionally considered a conductor’s job function (e.g., switch and derail handling) or whether it was caused by poorly performing what is traditionally considered a locomotive engineer’s job function (e.g., operation of the locomotive or train). Existing paragraph (f)(2) (which FRA is proposing to redesignate as paragraph (g)(2)), requires a railroad imposing formal discipline on a certified locomotive engineer for an instance of poor safety conduct to keep track of the type of punishment the ‘‘hearing officer’’ imposes. FRA proposes to slightly modify this paragraph, to acknowledge that the subject punishments are not always imposed by a ‘‘hearing officer’’ but instead may be imposed by other railroad officers. Accordingly, FRA proposes to replace the term ‘‘hearing officer’’ with the more general term ‘‘railroad.’’ As proposed, paragraph (g)(2) would be the same as paragraph (g)(2) in § 242.215. In addition, existing paragraph (h)(2) (which FRA is proposing to redesignate as paragraph (i)(2)) requires a railroad’s analysis under this section to be capable of showing the total number of incidents of poor safety conduct identified for which an ‘‘FRA accident/incident report’’ was required. FRA proposes to clarify this requirement to specify an ‘‘FRA accident/incident report under part 225 of this chapter,’’ to make clear which accident/incident report FRA is referring to in this paragraph. As proposed, paragraph (i)(2) would be the same as paragraph (i)(2) of § 242.215. Subpart E—Dispute Resolution Procedures Existing Subpart E details the opportunities and procedures for an individual to appeal a decision by a railroad to deny certification or recertification or to revoke an individual’s locomotive engineer certification. Some members of the RSAC Working Group recommended changes to the existing appeals process contained in §§ 240.401 through 240.411. Those members suggested FRA create a pilot program for a dispute resolution procedure based on their recommended changes. Pursuant to the members’ recommendations, FRA would designate one or more Class I railroads to participate in the pilot program. Those railroads, which are not part of the pilot program, would VerDate Sep<11>2014 19:51 May 08, 2019 Jkt 247001 proceed under FRA’s existing procedures. The suggested changes, which were also recommended during the conductor certification rulemaking, include eliminating the opportunity for parties to appeal FRA decisions to the Administrator, incorporating the Administrative Hearing Officer (AHO) level of appeal into the OCRB process, requiring the OCRB to grant a decision if any procedural error by the railroad is shown, adding an attorney as a member of the OCRB, and making the OCRB decision final agency action. For the reasons provided in the conductor certification rulemaking (see, 76 FR 69802 (Nov. 9, 2011) and 77 FR 6482 (Feb. 8, 2012)), in this proposed rule FRA declines to adopt these suggestions to revise the appeals process and create a pilot program. Members of the RSAC Working Group thoroughly discussed these suggestions and most of the suggestions were rejected at those meetings. As explained to the RSAC Working Group, due process requirements and issues concerning trials de novo necessitate FRA retain the OCRB and AHO as distinct levels of review. Further, the pilot program would prevent those railroad employees whose employers were required to participate in the program from taking advantage of the same appeals process opportunities available to employees of other railroads not participating in the program. In addition, the pilot program would require FRA to develop a second appeals process which would only apply to certain railroads for an unspecified amount of time. Accordingly, FRA finds that the pilot program recommended would treat similarly situated engineers disparately and thus FRA declines to propose to adopt the recommendation. Although FRA is not adopting the RSAC Working Group members’ recommendations, FRA has taken steps internally to make the appeals process more efficient. For example, FRA’s LERB and OCRB decided more than twice as many cases in fiscal year 2017 (106 in total) than they did in fiscal year 2016 (51 in total), and rendered their decisions on average 18 days earlier. Further, between fiscal years 2012 and 2017, the average length of time for the AHO to render a decision in a locomotive engineer or conductor case under Parts 240 and 242 averaged between 6 and 8 months compared with 11 to 18 months during fiscal years 2009 through 2011. In fiscal year 2017, the AHO rendered 4 decisions in an average of approximately 7 months; in fiscal year 2009, the AHO rendered 13 decisions in an average of 18 months. PO 00000 Frm 00020 Fmt 4701 Sfmt 4702 In addition, FRA is proposing in this rule to revise Part 240 to require petitions to be submitted to the DOT Docket Clerk rather than FRA’s Docket Clerk. With that change, the process for submitting petitions to the OCRB will be the same as the process for requesting an administrative hearing under § 240.407 and § 242.507. FRA believes this change will make the process more efficient as DOT’s Docket Operations facility is best equipped to process, scan, and store these types of filings. The proposal to change the docketing requirements will also permit a single docket to be maintained throughout the three stages of FRA’s dispute resolution process, rather than an FRA docket maintained for LERB petitions and a separate DOT docket created for AHO cases. Section 240.401 Review Board Established Paragraph (a) of existing § 240.401 provides that an individual who is denied certification or recertification or has his or her engineer certification revoked, and believes that a railroad incorrectly determined that he or she failed to meet the ‘‘qualification’’ requirements of Part 240, may petition FRA to review the railroad’s decision. FRA proposes to amend this section to delegate initial responsibility for adjudicating denial of certification or recertification and revocation disputes to FRA’s OCRB. In paragraph (a), FRA proposes to substitute the word ‘‘certification’’ for ‘‘qualification’’ to clarify that FRA is reviewing railroads’ certification decisions, not railroads’ decisions as to whether individuals meet the ‘‘qualification’’ requirements of Part 240. This proposed change would make paragraph (a) of § 240.401 the same as paragraph (a) of § 242.501 and is not intended to change the substantive requirements of this paragraph. Instead, the proposed change would clarify the existing requirements and ensure internal consistency within Part 240 and consistency with Part 242. As noted above, FRA proposes to revise existing paragraph (b) to provide that the OCRB, not the LERB, is delegated initial responsibility for adjudicating certification disputes under Part 240. FRA proposes to revise paragraphs (b) and (c) to replace the existing name of the FRA review board referenced (the LERB) with the name of the board used in the conductor certification rule, the OCRB. In practice, the LERB and the OCRB are staffed by the same FRA employees, so it is logical to combine them under the same name—a more general name referring to all operating E:\FR\FM\09MYP2.SGM 09MYP2 Federal Register / Vol. 84, No. 90 / Thursday, May 9, 2019 / Proposed Rules jbell on DSK3GLQ082PROD with PROPOSALS2 crewmembers. This will also make it clear that there is only one board, the OCRB, that reviews both conductor and locomotive engineer disputes. FRA proposes to revise paragraph (c) of this section to remove the requirement that the review board be composed of ‘‘at least three’’ FRA employees. The number of board members is an issue of internal agency organization, procedure, or practice that is normally left for an agency to decide. Such internal agency decisions can be made without notice to the public. See 5 U.S.C. 553(b)(3)(A). FRA retains the right to use any number of FRA employees as OCRB members, in coordination with agency resources and priorities. The proposed revisions to § 240.401 would make the section the same as the corresponding section in Part 242, § 242.501. Section 240.403 Petition Requirements Existing § 240.403 provides the requirements for obtaining FRA review of a railroad’s decision to deny certification, deny recertification, or revoke certification. FRA proposes to revise this section to make it the same as the corresponding provision in Part 242 (§ 242.503). The proposed amendments would provide a single process for aggrieved parties to submit FRA locomotive engineer petitions under Part 240 and conductor certification petitions under Part 242. FRA proposes to revise paragraph (b)(2) to provide that petitions under Part 240 must be submitted to the DOT Docket Clerk rather than FRA’s Docket Clerk. With this change, the process for submitting petitions to the OCRB would be the same as the process for submitting petitions under Part 242 (§ 242.503) and for requesting an administrative hearing under both Parts 240 and 242. FRA believes this change will make the process more efficient as DOT’s Docket Operations facility is best equipped to process, scan, and store these types of filings. In addition, filings in OCRB proceedings will become more accessible because they will be available electronically on the DOT’s public docket website (www.regulations.gov). FRA notes that anyone is able to search (at www.regulations.gov) the electronic form of all filings received into any of DOT’s dockets by the name of the individual submitting the filing (or signing the filing, if submitted on behalf of an association, business, labor union, or other organization). You may review DOT’s Privacy Act Statement published on April 11, 2000 (65 FR 19476), DOT’s notice modifying its system of records from DOT’s Docket VerDate Sep<11>2014 19:51 May 08, 2019 Jkt 247001 Management System (DMS) to the current Government-wide Federal DMS published on January 17, 2008 (73 FR 3316), or you may view the privacy notice of the Federal DMS at https:// www.regulations.gov/#!privacyNotice. Although FRA is proposing no changes to existing paragraph (b)(3) of this section, FRA notes that the ‘‘petitioner’’ referred to in paragraph (b)(3) of this section is the person who had his or her certificate revoked, not an employee representative who may respond on the petitioner’s behalf. If the petitioner has a representative, the petitioner is encouraged to also provide the representative’s name, mailing address, daytime telephone number, and email address (if available) in the petition. FRA encourages all parties to an OCRB case to sign up for email alerts on www.regulations.gov. By subscribing to email alerts, a person will receive an email notification stating that information has been added to the specified docket and provide a link to view the addition. Email alerts have the potential to give a party earlier notice of a filing than actual service by mail. FRA proposes to add a new paragraph (b)(7) to this section requiring a petitioner, upon the OCRB’s request, to supplement the petition with ‘‘a copy of the information under 49 CFR 40.329 that laboratories, medical review officers, and other service agents are required to release to employees.’’ That paragraph would also require a petitioner to provide a written explanation in response to an OCRB request if written documents that should be reasonably available to the petitioner are not supplied. FRA is proposing these requirements to clarify a petitioner’s responsibilities for a petition seeking review of a railroad’s decision that is based on a failure to comply with any drug- or alcoholrelated rule or a return-to-service agreement. The addition of proposed paragraph (b)(7) would make the paragraph the same as the corresponding paragraph in Part 242 (§ 242.503(b)(7)). FRA proposes to revise existing paragraph (c) to require a petition seeking review of a railroad’s revocation or denial decision under this section to be filed with FRA within 120 days of the date the railroad served the decision on the petitioner. This revision would make this provision of Part 240 the same as the corresponding provision in Part 242 (see § 242.503(c)). This revision would differ from the current timeline in Part 240, which contains different time requirements depending on whether a person is seeking review of a PO 00000 Frm 00021 Fmt 4701 Sfmt 4702 20491 revocation decision (120 days) or a denial decision (180 days). As proposed, paragraph (d) would also conform to paragraph (d) of § 242.503 by making clear that a person may also appeal a Board decision to the Administrator when the petition is found not to meet this section’s minimum requirements. Currently, paragraph (d) expressly provides only that an appeal is allowed when the Board finds the petition was untimely filed, although FRA has directed petitioners whose petitions did not meet this section’s minimum requirements that they may exercise this type of appeal. The reference to the ‘‘Board’’ in the existing rule refers to the LERB but for this proposed rule the Board is the OCRB. Section 240.405 Processing Certification Review Petitions FRA proposes to revise this section, which details how petitions for review will be handled by FRA, to make it the same as the corresponding provision in Part 242, § 242.505. To more accurately reflect the substance of this section, FRA proposes to revise the section heading to be the same as the heading of § 242.505—‘‘Processing certification review petitions.’’ Proposed paragraph (a) adds the clarification that the Board will ‘‘attempt to’’ render a decision within 180 days once it has all the filings, rather than emphatically state that it will render a decision within that same timeframe. The change proposed to paragraph (a) would make it the same as § 242.505(a). As discussed above in the section-bysection analysis of proposed § 240.403, OCRB petitions would be accessible on www.regulations.gov. Therefore, FRA proposes to revise paragraph (b) of this section to specify that, as opposed to FRA providing the railroad with a copy of each petition it receives under Part 240, FRA will notify the railroad of its receipt of a petition under Part 240 and where the petition may be accessed online. FRA proposes to revise paragraph (c) of this section to clarify the time limit for a railroad to respond to a petition if it chooses to do so. The proposed rule states that a railroad may respond ‘‘[w]ithin 60 days from the date of the [FRA’s] notification provided in paragraph (b).’’ This differs from the existing language in paragraph (c) which states that ‘‘[t]he railroad will be given a period of not to exceed 60 days to submit’’ its response. As FRA has always considered the period to begin to run when service of the notice on the railroad was complete, the practical effect of the proposed change is to E:\FR\FM\09MYP2.SGM 09MYP2 jbell on DSK3GLQ082PROD with PROPOSALS2 20492 Federal Register / Vol. 84, No. 90 / Thursday, May 9, 2019 / Proposed Rules clarify the existing time allowed for a railroad’s response, but not to substantively change the existing requirement. Of course, even if a railroad’s response is late, § 240.405(c) provides that the OCRB will consider the response ‘‘to the extent practicable.’’ FRA is not proposing to change this provision, which is the same as in the conductor certification rule. See § 242.505(c). However, as the OCRB has significantly reduced the amount of time it takes to consider a case, railroads are on notice that the windows for submitting late filings are closing more quickly than in the past. In the current and proposed paragraph (c) requirements, railroads are offered the opportunity to ‘‘submit to FRA any information that the railroad considers pertinent to the petition.’’ The railroad, therefore, has a duty to ensure the documents that formed the basis for its decision are submitted for Board review. Even if a railroad chooses not to submit a response to the petition, it should review the documents submitted to the electronic docket. FRA also recommends that a railroad representative sign up to receive ‘‘email alerts’’ so the railroad will be notified whenever anything is added to the docket. A railroad may choose to submit missing documents, color photos, videos, and other evidence provided as the basis for its decision that may be missing from the docket, even if the railroad chooses not to file a response that rebuts the petitioner’s assertions that the railroad’s decision was improper. FRA proposes to revise paragraph (d)(1) to require railroads to provide FRA with an email address if available. Each railroad should note that if FRA receives an email address, it should expect to receive email service from FRA regarding the case. As proposed, and consistent with FRA’s handling of petitions under Part 242, FRA would be under no duty to serve by both email and by regular mail. FRA proposes to revise paragraph (d)(2) to clarify that a railroad must serve a copy of its response on the petitioner and the petitioner’s representative, if any. Existing paragraph (d)(2) only requires railroads to provide a copy to the petitioner, even though most railroads know to also serve a copy on a petitioner’s representative. FRA proposes to revise paragraph (d)(3) to require a railroad to submit its response to a petition to the DOT Docket Clerk rather than FRA’s Docket Clerk as the paragraph currently requires. FRA believes this change will make the process more efficient as the DOT VerDate Sep<11>2014 19:51 May 08, 2019 Jkt 247001 Docket Clerk is best equipped to process, scan, and store these types of filings. In addition, as noted above, filings in OCRB proceedings will become more accessible because they will be posted on www.regulations.gov. Another significant proposed change to this paragraph would eliminate the existing requirement for a railroad to file three copies of its response. As the DOT dockets are electronic, there would no longer be a need for FRA to mail one copy to the railroad, keep one copy in the docket, and use the third copy as a working copy for the OCRB. FRA expects that this change would reduce copying expenses for both parties by not having to file in triplicate, and may also reduce the amount of time it takes to file a petition. In addition, most parties currently send their petitions by overnight courier service, and filing electronically carries no additional cost if the party already pays for internet access and thus will save petitioners the overnight courier service costs. FRA proposes to revise paragraph (e) to identify the OCRB as the reviewing board, not the LERB, and FRA likewise proposes to revise paragraph (f) to explain the authority of the OCRB. Specifically, proposed paragraph (f) provides that the Board will have the authority to ‘‘grant, deny, dismiss, or remand’’ a petition. This is not a substantive change from existing Part 240, but FRA proposes to add this specific language here to make the language the same as that in § 242.505(e) and to clarify the OCRB’s authority. If the Board grants a petition, then the petitioner has received a favorable ruling. If the Board denies a petition, then the railroad has received a favorable ruling. The Board will dismiss cases falling outside its jurisdiction. For example, if an engineer’s certification is suspended and the railroad has not yet revoked the individual’s certification, the case is not ripe for the Board to hear and the Board will issue a dismissal decision. Also, if the petition does not meet all the requirements of § 240.403, the Board may dismiss the petition. The Board has the authority to remand a case back to the railroad for a new decision. As the LERB has historically done, the Board will typically remand a case back to the railroad when both parties have failed to address an important factual issue and there is a reason to reopen the railroad’s investigation and present evidence on that issue. Obviously, if the railroad is presenting new evidence on an issue it has not previously addressed or needs to clarify, a petitioner should be provided with a new opportunity for a PO 00000 Frm 00022 Fmt 4701 Sfmt 4702 written rebuttal in a denial case or an opportunity to examine witnesses and evidence at a railroad hearing in a revocation case. A remand could also be warranted in a case involving a denial of certification or recertification where the petitioner has raised a potentially legitimate defense that was not addressed by the railroad’s decision; in such cases, the Board expects a railroad to fully consider the defense raised in a new or supplemental decision. Of course, when the Board remands a denial case back to a railroad for a new or supplemental decision, the railroad is not obligated to deny the person certification or recertification again as it may reverse its prior denial decision. In proposed paragraph (g), FRA provides that if there is an insufficient basis for deciding the petition, the Board will issue an order affording the parties an opportunity to provide additional information or argument. To conform Part 240 with Part 242 and to address a concern of some RSAC Working Group members that railroads and petitioners would not know what standards of review the OCRB would use in considering petitions, FRA proposes to add paragraphs (h) through (j) to this section. Included in those proposed new paragraphs are the standards of review that the OCRB will utilize when considering a petition. Those standards are exactly the same standards currently used by the LERB to review locomotive engineer petitions under the existing engineer certification regulation. Like the LERB currently does under existing paragraph (f) of this section, the OCRB would determine only whether a railroad’s decision was improper. Although this requirement is found in existing paragraph (f), this rule proposes to redesignate paragraph (f) as new paragraph (k). If a railroad-conducted hearing were so unfair that it causes a petitioner substantial harm, the OCRB could grant the petition; however, the OCRB’s review is not intended to correct all procedural wrongs committed by a railroad. Further, like the LERB, the OCRB’s authority would be limited to approving the railroad’s decision, overturning the railroad’s decision, or returning the case to the railroad for additional fact finding. The OCRB would not be empowered to mitigate the consequences of a railroad’s decision that was validly made under this regulation. The OCRB is only empowered to make determinations concerning certifications under Part 240. The contractual consequences, if any, of these determinations would have to be resolved, as they currently are, under dispute resolution mechanisms E:\FR\FM\09MYP2.SGM 09MYP2 jbell on DSK3GLQ082PROD with PROPOSALS2 Federal Register / Vol. 84, No. 90 / Thursday, May 9, 2019 / Proposed Rules that do not directly involve FRA. For example, FRA cannot order a railroad to alter its seniority rosters or make an award of back pay to accommodate a finding that a railroad wrongfully denied certification. FRA notes this proposed rule would necessarily require the OCRB to determine whether a railroad revoked the correct certificate of an individual who holds both an engineer and conductor certification. For example, in a case in which a railroad finds that an individual who holds both a conductor and engineer certification violated a railroad rule involving a failure to comply with § 218.99 (i.e., a Part 218, subpart F violation) but revoked that person’s engineer certification, the OCRB, if petitioned, would have to find that the revocation decision was improper because, currently, an engineer cannot have his or her Part 240 certification revoked for violations of Part 218, subpart F. New paragraph (l) of this section would require the OCRB’s written decision to be ‘‘served’’ on the petitioner as opposed to the existing paragraph (g) requirement that ‘‘[n]otice of that decision will be provided in writing.’’ This proposed revision is not a substantive change, but instead is intended to standardize the terminology used in Part 240 and make the language the same as that of § 242.505(l). Although existing § 240.405 does not require FRA to provide notice of the LERB’s decision to a petitioner’s representative, if any, FRA’s past practice has been to do so. In new paragraph (l) of this section, FRA proposes to make the practice of serving a petitioner’s representative mandatory, if the petitioner has a representative. Moreover, the proposed language in new paragraph (l) removes the requirement that every decision include findings of fact, which may not be appropriate or relevant to some decisions. Further, under proposed paragraph (l), a party that has provided an email address under § 240.403(b)(3) voluntarily consents to be served documents, including the OCRB’s decision, by email. Petitioners should note that if FRA receives an email address, FRA’s preference may be to serve all correspondence regarding the petition or case by email. Currently, FRA serves a copy of each decision by mail, even if it has the email addresses for all the parties. Thus, the actual practice has not yet caught up with the flexibility built into the existing regulation. In the near future, potentially before implementation of this rule if it becomes final, FRA intends VerDate Sep<11>2014 19:51 May 08, 2019 Jkt 247001 to begin serving the OCRB notices, orders, and decisions by email to those parties that have provided an email address. A party to a case may also serve another party by email if the email was provided in the petition or railroad’s response filing. However, while electronic service is a proper method of service, each party performing service is responsible for knowing that, under Rule 5(b)(2)(E) of the Federal Rules of Civil Procedure (FRCP), service ‘‘is not effective if the party making service learns that the attempted service did not reach the person to be served.’’ See § 240.7 (defining ‘‘service’’ as having the same meaning as Rule 5 of the FRCP). FRA also notes that recent amendments to FRCP Rule 5, effective December 1, 2018, recognize the benefits of electronic-filing systems, such as the one the OCRB uses found at www.regulations.gov. Once a petition is filed and receives a docket number, the parties and the Board will benefit as the filing process will be considered service and no certificate of service will be necessary unless a party opts out of using the electronic-filing system. FRA plans to explain this process to each party in the FRA Docket Clerk’s letters issued upon receipt of a petition. Section 240.407 Request for a Hearing Existing § 240.407 provides that a party adversely affected by a LERB decision has the opportunity to request an administrative hearing under § 240.409. FRA proposes to make minor revisions to this section to make the language the same as the corresponding provision in Part 242 (§ 242.507). Specifically, FRA proposes to revise the section to indicate that the OCRB would replace the LERB and to require that a party requesting an administrative hearing provide an email address if available. Proposed paragraph (a) substitutes the OCRB for the LERB. Existing paragraph (c) provides that the LERB’s decision will constitute final agency action if a party does not request a hearing under § 240.407. FRA proposes to revise this paragraph to substitute the OCRB for the LERB and also make certain minor edits for clarity that do not change the substance of the existing paragraph. Existing paragraph (d) contains the minimal requirements for a written request submitted under this section. FRA proposes to revise paragraph (d)(1) to require a party requesting a hearing to provide an email address if available. The AHO currently encourages the parties to provide their email addresses and the existing practice has been so widely accepted that it is rare for a party before the AHO to serve filings on other PO 00000 Frm 00023 Fmt 4701 Sfmt 4702 20493 parties in any manner but by email. Again, the practice of permitting service by email reduces the parties’ costs for printing, copying, mailing, and creating or retaining receipts. It also provides service much more quickly than by mail or courier service, which are the other most frequently used forms of service. Section 240.409 Hearings Existing § 240.409 describes the authority of the presiding officer to conduct an administrative hearing and the procedures by which the administrative hearing will be governed. FRA proposes minor revisions to this section to make the language the same as that in the corresponding provision of Part 242 (§ 242.509). Proposed paragraph (a) would substitute the word ‘‘certification’’ for ‘‘qualification’’ without making any practical change in the way in which this requirement is applied; however, the change would clarify that an administrative hearing is based on a certification petition, and not some lesser qualification issue. Proposed paragraphs (p) and (q) substitute the review board’s new name, the OCRB, for the existing name, the LERB. Section 240.411 Appeals Existing § 240.411 permits any party aggrieved by the presiding officer’s decision to file an appeal with the FRA Administrator. FRA proposes to revise this section to make it the same as the corresponding provision in Part 242 (§ 242.511). Specifically, FRA proposes to amend existing paragraphs (a) and (f) to indicate that appeals to the FRA Administrator must be filed with both the Administrator and the DOT Docket Clerk. This change would conform the paragraphs with § 242.511(a) and (f), and ensure that all filings, in any Part 240 FRA dispute resolution proceeding (i.e. the OCRB, the AHO, and the Administrator), are kept in the same docket. These paragraphs also maintain the requirement that a copy of the appeal must be served on each party, which means that the party filing the appeal should serve each person named on the service list of the decision issued by the AHO. FRA also proposes to revise paragraph (f) of this section to clarify the review board’s proposed new name (i.e., the OCRB) and the updated citation for an appeal from an OCRB decision regarding timeliness of a petition. The existing citation is found at § 240.403(e), and this proposed rule would change that citation to paragraph (d) of that section. Consistent with existing § 240.411, proposed paragraph (f) also clarifies that such an appeal must be E:\FR\FM\09MYP2.SGM 09MYP2 20494 Federal Register / Vol. 84, No. 90 / Thursday, May 9, 2019 / Proposed Rules filed within 35 days of the OCRB’s issuance of its decision. By adding the time limit in this proposed paragraph, FRA intends to help readers understand that the time limit for filing such an appeal is the same as for filing other appeals to the Administrator under paragraph (a). jbell on DSK3GLQ082PROD with PROPOSALS2 Appendix A Currently appendix A to Part 240 (Appendix A) contains the schedule of civil penalties for violations of Part 240. In the final rule, Appendix A would contain a revised penalty schedule similar to the schedules that FRA has issued for all of its existing rules. Because such penalty schedules are statements of policy, notice and comment are not required prior to their issuance. See 5 U.S.C. 553(b)(3)(A). Nevertheless, FRA invites interested parties to submit comments regarding this revised penalty schedule. One issue FRA is likely to address in the final rule is the penalty schedule description for § 240.231. The descriptions for paragraphs (a) and (b) are not sufficiently different that it can be confusing which is the proper citation and garden variety penalty. FRA reads the guideline as if paragraph (a) is the more significant violation and occurs when an engineer operates over a territory in violation of the railroad’s certification program with no type of pilot. Paragraph (b) is read by FRA as the lesser violation, when the wrong type of pilot is provided. Thus, FRA intends to change the guideline for paragraph (b) from ‘‘Failure to have a pilot’’ to ‘‘Pilot provided, but the pilot is unqualified.’’ Appendix B Existing Appendix B provides both the organization requirements and a narrative description of the submission required under §§ 240.101 and 240.103. FRA proposes a number of revisions to update job titles and clarify requirements in Appendix B and FRA proposes to revise the Appendix to provide railroads with the option to file their Part 240 program submissions electronically. The option to file programs electronically is currently provided to railroads submitting conductor certification programs. See Part 242, Appendix B. As it did for Part 242, FRA intends to create a secure document submission site and will need basic information from each railroad before setting up the railroad’s account. In order to provide secure access, FRA requires information on a railroad’s appropriate points of contact. FRA anticipates being able to approve or disapprove all or part of a VerDate Sep<11>2014 19:51 May 08, 2019 Jkt 247001 program and generate automated notifications by email to a railroad’s points of contact. Thus, FRA wants each point of contact to understand that by providing any email addresses, the railroad is consenting to receive approval and disapproval notices from FRA by email. Railroads allowing FRA to provide notice by email would gain the benefit of receiving such notices quickly and efficiently. Railroads choosing to submit printed materials to FRA must deliver them directly to the specified address. FRA would discourage railroads from delivering removable media such as a CD, DVD, memory stick, or other electronic storage format to FRA rather than requesting access to upload the documents directly to the secure electronic database. CDs or DVDs may become damaged in the mail or mail scanning process. Rather, FRA will encourage railroads to utilize the electronic submission capabilities of the system. Of course, if FRA does not have the capability to read the type of electronic storage format sent, FRA can reject the submission. Given the nature of the information required in a railroad’s Part 240 program and the proposed requirement for railroads to share their program submissions, resubmissions, and material modifications with the relevant labor organization(s) representing each railroad’s certified engineers (see § 240.103(b)), FRA does not believe it is necessary to develop a secure document submission system to handle confidential materials because FRA does not meaningfully expect there to be confidential materials. A railroad’s program required by this part is not likely to contain copies of training materials that a railroad might want to keep confidential. If a railroad believes it must submit information that FRA should keep confidential, it may request confidential treatment under FRA’s general procedures at 49 CFR 209.11. Appendix C Existing appendix C to Part 240 (Appendix C) provides a narrative discussion of the procedures that a person seeking certification or recertification will have to follow to furnish a railroad with information concerning his or her motor vehicle driving record. FRA proposes revisions to Appendix C to acknowledge that a driver’s license may be issued by a state agency or a foreign country and to remove language about the number of state licensing agencies that have the capacity to make a direct NDR inquiry. PO 00000 Frm 00024 Fmt 4701 Sfmt 4702 Appendix D Existing Appendix D to Part 240 (Appendix D) addresses Part 240’s requirements that each person seeking certification or recertification as a locomotive engineer must request that a check of the NDR be conducted and that the resulting information be furnished to his or her employer or prospective employer. Some RSAC Working Group members recommended adding a sentence to Appendix D stating that once an employee makes a valid request for the information required by § 240.111, his or her duty to comply with this requirement is satisfied. FRA declines to propose this recommendation because it would interfere with the requirements of § 240.111(a)(2) and (f)(2), which require employees to take any additional actions, including providing any necessary consent required by State, Federal, or foreign law to make information concerning his or her driving record available to a railroad. Appendix G FRA proposes to add appendix G to Part 240 to provide a table that explains in spreadsheet-style form, when an individual certified as both an engineer and conductor will be permitted to work following a certification revocation. The same table is found in appendix E to Part 242. III. Additional Issues A. Additional Amendments Although the Section-By-Section Analysis contains descriptions of many minor revisions proposed in this NPRM, the descriptions may not have captured every specific change. In addition to the proposed changes discussed above, FRA is proposing to make some minor revisions to fix grammatical errors, typographical errors, reference errors, and superfluous language and citations. These revisions, provided in ‘‘The Proposed Rule’’ section of this rulemaking, include the following sections: 240.11(d); 240.207(b); 240.209(b) and (c); 240.211(b); 240.215(e); 240.217(a) and (d); 240.225(b); 240.305(b)(2); 240.307(g); 240.307(i); 240.309(b)(4); 240.309(e)(1), (2), (8), and (9); and Appendix D. B. Implementation Date FRA understands railroads will require some time to incorporate into their Part 240 programs the changes proposed in this rulemaking and submit their entire revised programs to FRA for E:\FR\FM\09MYP2.SGM 09MYP2 Federal Register / Vol. 84, No. 90 / Thursday, May 9, 2019 / Proposed Rules review.11 FRA is also aware that it would not be fair to change the time limits for a filing (e.g., changing the time limits for filing a denial of certification petition with the OCRB from 180 days to 120 days in § 240.403) in cases whose time limits have already started to run. Accordingly, FRA invites comments on what an effective date for the final rule should be that will treat all parties affected by this rule fairly. IV. Regulatory Impact and Notices A. Executive Orders 12866 and 13771 and DOT Regulatory Policies and Procedures This proposed rule is a nonsignificant regulatory action and has been evaluated in accordance with existing policies and procedures under Executive Order 12866 and DOT policies and procedures. 44 FR 11034, Feb. 26, 1979; 58 FR 51735, Oct. 4, 1993. The rule is non-significant because the economic effects of this proposed regulatory action would not exceed the $100 million annual threshold defined by E.O. 12866 and the effects of this proposed regulatory action would not be of substantial public interest in transportation safety. This proposed rule is expected to be an E.O. 13771 deregulatory action. Details on the estimated costs and costs savings of this proposed rule can be found in the rule’s economic analysis. The primary purpose of the proposed rule is to reduce the differences between FRA’s two operating crew certification regulations. The proposed rule would amend Part 240 by adopting processes that are more efficient. Some of the proposed amendments address the Part 240 certification review and program submission processes. Other proposed changes reduce the burden on the regulated community by addressing compliance difficulties noted through experience enforcing Part 240. 20495 Furthermore, some proposed changes would codify long-standing agency interpretations of whether a railroad or individual meets and maintains compliance with Part 240 requirements. FRA has prepared and placed in the docket (Docket No. FRA–2018–0053) a regulatory evaluation. The regulatory evaluation details estimated costs and costs savings that the railroads regulated by the proposed rule are likely to incur over a twenty-year period. The table below summarizes the costs, cost savings, and net cost savings that would come from issuing the proposed rule. The total cost of the proposed rule over 20 years would be $166,054 (PV 7%), and $194,843 (PV 3%). The total cost savings of the proposed rule over 20 years would be $6.1 million (PV 7%), and $8.6 million (PV 3%). The net cost savings of the proposed rule over 20 years would be $6.0 million (PV 7%), and $8.4 million (PV 3%). TABLE 1—SUMMARY OF THE PROPOSED RULE’S TOTAL NEW COSTS, TOTAL COST SAVINGS, NET COST SAVINGS (TWENTY-YEAR PERIOD), PV, 7-PERCENT AND PV 3-PERCENT Present value 7% Cost of proposed rule jbell on DSK3GLQ082PROD with PROPOSALS2 New Costs: Review amendments ................................................................................ Serve copy of part 240 plan on labor ....................................................... Maintain service records ........................................................................... Annualized 7% Present value 3% Annualized 3% $104,929 1,199 59,927 $9,905 113 5,657 $109,003 1,683 84,157 $7,327 5,657 5,657 Total new costs ................................................................................. Cost Savings: Conforming part 240 to part 242 .............................................................. Former employee paperwork .................................................................... Removing waiver requirement .................................................................. Petition submission process ..................................................................... Plan submission process .......................................................................... 166,054 15,675 194,843 13,097 5,947,136 59,927 58,066 3,602 59,927 561,368 5,657 5,481 340 5,657 8,351,732 84,157 81,543 5,058 84,157 561,368 5,657 5,481 340 5,657 Total cost savings ............................................................................. 6,128,658 578,502 8,606,648 578,502 Net Cost Savings ....................................................................... 5,962,604 562,828 8,411,804 565,405 The proposed rule would create benefits, though FRA did not monetize them. Some non-quantifiable benefits include: Affording railroads with additional time and flexibility to comply with some regulatory requirements, and creating certain provisions that allow for temporary locomotive engineer certificates. For example, the amendments to § 240.103 would afford railroads with an additional 30 days, increasing from 30 days to 60 days, for which a railroad would have to submit a description of its intended material modification to its Part 240 plan. This additional time to respond to FRA amounts to an unquantified benefit to the railroad. In addition, the amendments to § 240.115 would allow for a temporary certification lasting 60 days for individuals who have properly requested motor vehicle operator information needed to certify or recertify as a locomotive engineer. Such temporary certifications amount to an unquantified benefit to workers and railroads. That is, under the amendments to § 240.115, workers may begin work as a locomotive engineer sooner and railroads would have available a larger pool of workers who would be qualified to work as locomotive engineers. The regulatory evaluation compares the proposed rule’s costs and benefits, and estimates the proposed rule would be cost beneficial because the rule is expected to provide net cost savings and benefits, though the benefits are not quantified. 11 As discussed above, FRA is considering requiring the railroads to file their complete Part 240 programs, with modifications, with FRA and serve the programs on the president of each labor organization that represents the railroad’s certified locomotive engineers. VerDate Sep<11>2014 19:51 May 08, 2019 Jkt 247001 PO 00000 Frm 00025 Fmt 4701 Sfmt 4702 B. Regulatory Flexibility Act and Executive Order 13272; Initial Regulatory Flexibility Assessment The Regulatory Flexibility Act of 1980 (5 U.S.C. 601 et seq.) and Executive Order 13272 (67 FR 53461, Aug. 16, 2002) require agency review of proposed and final rules to examine their impacts on small entities. An agency must prepare an initial regulatory flexibility E:\FR\FM\09MYP2.SGM 09MYP2 jbell on DSK3GLQ082PROD with PROPOSALS2 20496 Federal Register / Vol. 84, No. 90 / Thursday, May 9, 2019 / Proposed Rules analysis (IRFA) unless it determines and certifies that a rule, if issued, would not have a significant economic impact on a substantial number of small entities. As discussed below, FRA does not believe this proposed rule would have a significant economic impact on a substantial number of small entities. However, FRA is publishing this IRFA to obtain public comments about the potential small business impacts that would follow from issuing this NPRM. FRA invites all interested parties to submit data and information regarding the potential economic impact on small entities that would result from the adoption of the proposals in this NPRM. FRA will consider all information, including comments received in the public comment process, to determine whether the rule will have a significant the economic impact on small entities. For the railroad industry over a 20year period, FRA estimates that issuing the proposed rule would result in new costs of $166,054 (PV 7%) and $194,843 (PV 3%). Based on information currently available, FRA estimates that $94,062 (PV 7%) and $102,183 (PV 3%) of the total costs associated with implementing the proposed rule would be borne by small entities. Therefore, less than 60 percent of the proposed rule’s total cost would be borne by small businesses. In addition, FRA estimate that the proposed rule would result in cost savings over 20 years of $6.1 million (PV 7%), and $8.6 million (PV 3%). In total, FRA estimates that the proposed rule would result in net cost savings of $6.0 million (PV 7%), and $8.4 million (PV 3%). FRA expects that small entities would accrue 94 percent of the cost savings associated with implementing the proposed rule. Any railroad who employs locomotive engineers and does business on the general railroad system would be affected by the proposed rule. The regulatory evaluation, which has been placed in the docket for this rulemaking, estimates that the proposed rule would affect approximately 696 railroads including 7 Class I railroads, 11 Class II railroads, 33 passenger railroads, and 645 Class III railroads that perform services on the general railroad system. FRA estimates that approximately 645 out of 696 of these railroads are considered small entities for the purpose of this analysis. However, FRA believes that the issuing proposed rule, as measured by total employees, would impact a minor percentage of a railroad’s operations. In addition, issuing the proposed rule is expected to result in cost savings that would exceed costs. VerDate Sep<11>2014 19:51 May 08, 2019 Jkt 247001 In accordance with the Regulatory Flexibility Act, this IRFA must contain: 1. A description of the reasons why action by the agency is being considered. 2. A succinct statement of the objectives of, and the legal basis for, the proposed rule. 3. A description—and, where feasible, an estimate of the number—of small entities to which the proposed rule will apply. 4. A description of the projected reporting, recordkeeping, and other compliance requirements of the proposed rule, including an estimate of the classes of small entities that will be subject to the requirement and the type of professional skills necessary for preparation of the report or record. 5. Identification, to the extent practicable, of all relevant Federal rules that may duplicate, overlap, or conflict with the proposed rule. 1. Reasons for Considering Agency Action FRA is considering action to reduce burden on industry stakeholders. The existing locomotive engineer certification regulation includes dated processes such as requiring paper document submissions. For example, the existing Part 240 prohibits use of electronic submissions. In addition, FRA’s two operating crew certification regulations (Part 240 and Part 242) lack similarity regarding compliance requirements, which adds a layer of complexity for railroads related to maintaining compliance with both regulations. In direct response to the current lack of conformity between these two regulations, the proposed rule would amend the Part 240 regulation by adopting the Part 242 regulation’s streamlined processes developed 20 years after the Part 240 regulation. Therefore, an important purpose of the proposed amendments is to add clarity and conformance between FRA’s two operating crew certification regulations and address existing inefficiencies related to the Part 240 program submission process. Other proposed changes would reduce the burden on the regulated community by addressing compliance difficulties noted through experience enforcing the locomotive engineer certification rule. The proposed rule would codify long-standing agency interpretations of whether a railroad or individual meets and maintains compliance with FRA’s locomotive engineer certification requirements. Therefore, the proposed rule would result in consistency in the process, procedure, and criteria between Part 240 PO 00000 Frm 00026 Fmt 4701 Sfmt 4702 and Part 242, which would lead to an overall reduction in the burden on the railroad industry. The proposed rule would create provisions that would allow railroads to issue temporary locomotive engineer certificates, which would increase labor market flexibility. The proposed rule would also extend the time railroads may rely on an employee’s visual and hearing examinations. 2. A Succinct Statement of the Objectives of, and Legal Basis for, the Proposed Rule The primary purpose of the proposed rule is to reduce burden on industry stakeholders by reducing the differences between FRA’s two operating crew certification regulations. The proposed rule would amend Part 240 by adopting processes that are more efficient. Some of the proposed amendments address the Part 240 certification review and program submission processes. Other proposed changes reduce the burden on the regulated community by addressing compliance difficulties noted through experience enforcing Part 240. Furthermore, some proposed changes would codify long-standing agency interpretations of whether a railroad or individual meets and maintains compliance with Part 240 requirements. The Secretary of Transportation (Secretary) has broad statutory authority to ‘‘prescribe regulations and issue orders for every area of railroad safety.’’ See 49 U.S.C. 20103. The Secretary delegated these authorities to the Federal Railroad Administrator (Administrator). See 49 CFR 1.89(a). Under this same authority, FRA would issue the proposed rule to further amend the locomotive engineer certification requirements. President Trump issued E.O. 13771 on January 30, 2017. E.O. 13771 seeks to ‘‘manage the costs associated with the governmental imposition of private expenditures required to comply with Federal regulations’’ and directs each executive department or agency to identify for elimination two existing regulations for every new regulation issued. In response to E.O. 13771, FRA initiated a review of its existing regulations with the goal of identifying those it could amend or eliminate to reduce the overall regulatory, paperwork, and cost burden on entities subject to FRA jurisdiction. FRA identified Part 240 as a regulation that FRA could amend and thereby reduce the railroad industry’s overall regulatory, paperwork, and cost burden without affecting safety on the nation’s railroad system and, at the same time, benefit individual locomotive engineers. E:\FR\FM\09MYP2.SGM 09MYP2 jbell on DSK3GLQ082PROD with PROPOSALS2 Federal Register / Vol. 84, No. 90 / Thursday, May 9, 2019 / Proposed Rules 3. Descriptions and Estimates of Small Entities to Which the Proposed Rule Would Apply The proposed rule would affect approximately 696 railroads including 7 Class I railroads, 11 Class II railroads, 645 Class III railroads, and 33 passenger railroads.12 The universe of the entities considered in an IRFA generally includes only those small entities that can reasonably expect to be directly regulated by the proposed action. Based on FRA’s established size standards, only Class III railroads (645) are small entities, which may be potentially affected by this proposed rule. A ‘‘small entity’’ is defined in 5 U.S.C. 601(3) as having the same meaning as ‘‘small business concern’’ under sec. 3 of the Small Business Act. This includes any small business concern that is independently owned and operated, and is not dominant in its field of operation. Title 49 U.S.C. 601(4) likewise includes within the definition of small entities non-profit enterprises that are independently owned and operated, and are not dominant in their field of operation. The U.S. Small Business Administration (SBA) stipulates in its size standards that the largest a ‘‘forprofit’’ railroad business firm may be, and still be classified as a small entity, is 1,500 employees for ‘‘line haul operating railroads’’ and 500 employees for ‘‘switching and terminal establishments.’’ Additionally, 5 U.S.C. 601(5) defines as small entities governments of cities, counties, towns, townships, villages, school districts, or special districts with populations less than 50,000. Federal agencies may adopt their own size standards for small entities in consultation with SBA and in conjunction with public comment. Pursuant to that authority, FRA has published a final Statement of Agency Policy that formally establishes small entities or small businesses as being railroads, contractors, and hazardous materials shippers that meet the revenue requirements of a Class III railroad as set forth in 49 CFR 1201.1–1, which is $20 million or less in inflation-adjusted annual revenues, and commuter railroads or small governmental jurisdictions that serve populations of 50,000 or less. See 68 FR 24891, May 9, 2003 (codified as appendix C to 49 CFR part 209). The $20 million limit is based on the Surface Transportation Board’s revenue threshold for a Class III railroad. Railroad revenue is adjusted 12 Estimates are based on the FRA 2017 Railroad Classification Data. Class III numbers include railroads on the general railroad system. VerDate Sep<11>2014 19:51 May 08, 2019 Jkt 247001 for inflation by applying a revenue deflator formula in accordance with 49 CFR 1201.1–1. This definition is what FRA is proposing to use for the rulemaking. All railroads that do business on the general railroad system would have to comply with the proposed amendments to Part 240. FRA believes that the amount of effort to comply with the proposed rule, or new costs borne on railroads, is positively correlated with the size of the entity. In addition, FRA concluded that the proposed rule is expected to be deregulatory, which means issuing the proposed rule should result in each affected entity, including small entities, accruing cost savings greater than any new costs. 4. Description of the Projected Reporting, Recordkeeping, and Other Compliance Requirements of the Rule There are reporting, recordkeeping, and compliance costs associated with the proposed regulation. FRA believes that the added burden is marginal due to the proposed NPRM requirements. The total 20-year cost of this proposed rulemaking is $166,054 (PV 7%), and $194,843 (PV 3%), of which FRA estimates $94,062 (PV 7%), and $102,183 (PV 3%), will be attributable to Class III railroads (small entities).13 Based on FRA’s regulatory evaluation, which has been placed in the docket for this proposed rulemaking, the average Class III railroad would incur a burden of $146 (PV 7%), and 158 (PV 3%). Most of this burden falls in the first year of analysis, where the average Class III railroad would incur a burden of $129 (PV 7%), and $134 (PV 3%). In each subsequent year, the average Class III railroad would incur no burden or a marginal burden that comes from serving the labor union president with a material modification of a railroad’s Part 240 plan or maintaining service records. For example, each year about 20 Class III railroads would incur a burden of 5 minutes related to serving the labor union president with a material modification of the railroad’s Part 240 plan. For each of these 20 Class III railroads, the quantified burden amounts to $5 (PV 7%) and $5 (PV 3%) in year two, $5 (PV 7%) and $5 (PV 3%) in year three, and a similar amount in each subsequent year during the period of analysis. In addition, each year about 200 Class III railroads would incur a burden of 5 minutes related to maintaining service records. For each of 13 Class III railroads, total new costs (undiscounted) = familiarization of amendments + serve labor representative + maintain service records = $87,565 + $453 + $22,627 = $110,645 (as described later in this section). PO 00000 Frm 00027 Fmt 4701 Sfmt 4702 20497 these 200 Class III railroads, the quantified burden amounts to $5 (PV 7%) and $5 (PV 3%) in year two and $5 (PV 7%) and $5 (PV 3%) in year three. Collectively, Class III railroads would incur a similar burden in each subsequent year thereafter during the period of analysis. Previously, FRA sampled small railroads and found that revenue averaged approximately $4.7 million (undiscounted) in 2006. One percent of average annual revenue per small railroad, or $47,000, is more than 5,222 times the average annual cost that these railroads would incur because of this proposed rule. FRA realizes that some railroads would have lower revenue than $4.7 million. However, FRA believes that this average provides a good representation of the small railroads, in general. In addition, FRA estimates that the proposed rule would result in cost savings of $6.1 million (PV 7%), and $8.6 million (PV 3%). Based on FRA’s regulatory evaluation the average Class III railroad (small entity) would accrue a cost savings of $7,248 (PV 7%), and $10,178 (PV 3%), over the 20-year period of analysis. Overall, FRA believes that the proposed regulation would not be a significant economic burden for small entities. FRA expects that most of the skills necessary to comply with the proposed regulation would be recordkeeping and reporting personnel. The following section outlines the potential additional burden on small railroads for each amendment of the proposed rule: • Familiarization of Amendment to Part 240 Regulation (All Sections) Because the proposed rule would amend Part 240, each locomotive engineer certification manager would need to review these amendments to ensure their railroad maintains compliance with the amended Part 240. This analysis estimates that on average each of the 645 Class III railroads employ one locomotive engineer certification manager. This analysis estimates that each locomotive certification manager would spend two hours reviewing the amendments to Part 240. This cost would be a one-time cost that would occur in the first year following the proposed rule’s effective date. For the 20-year period of analysis, the cost for locomotive certification managers who are employed by a Class III railroad (small entity) to become familiar with amendments to Part 240 is E:\FR\FM\09MYP2.SGM 09MYP2 20498 Federal Register / Vol. 84, No. 90 / Thursday, May 9, 2019 / Proposed Rules $81,837 (PV 7%), and $85,015 (PV 3%).14 • Amending the Part 240 Program Submission Process To Require Railroads To Serve Program Submissions on Relevant Labor Organization Presidents (§§ 240.101 Through 240.103) jbell on DSK3GLQ082PROD with PROPOSALS2 FRA proposes revising paragraphs (b) and (c) of this section to require railroads to serve a copy of their program submissions, resubmissions, and material modifications on the president of each labor organization that represents the railroad’s certified locomotive engineers. The proposed rule would require railroads to serve program submissions on relevant labor organization presidents, while the current locomotive engineer certification rule does not. Therefore, the proposed rule would create a new cost associated with requiring each railroad to contact the president of each labor organization related to Part 240 program submission. This analysis assumes the number of locomotive engineer labor representatives for which a railroad interacts with depends on a railroad’s size. FRA assumes that on average each Class III railroad interacts with one labor representative. This analysis assumes that railroads can simultaneously serve presidents of labor organizations by carbon copying the labor organization president(s) when emailing their Part 240 program to FRA. As such, this analysis estimates the time burden to serve a president of a labor organization is five minutes. Based on a review of Part 240 submissions, this analysis estimates that each year Class III railroads will serve four plan submissions on a president of a labor organization. Therefore, the cost for railroads to notify the president of labor organizations is $21 (PV 7%), and $22 (PV 3%), in year one, and 20 (PV 7%), and $21 (PV 3%), in year two. Collectively, Class III railroads would incur a similar burden in each subsequent year thereafter during the period of analysis. For the 20-year period of analysis, the cost for Class III railroads (small entity) to serve Part 240 programs on the presidents of labor organizations is $240 (PV 7%), and $337 (PV 3%). 14 Familiarization cost for Class III railroads, year one (PV 7%) = [(number of Class III railroads (645) * average number of certification managers per Class III railroad (1) * average review time per certification manager (2 hours) * certification manager compensation rate ($67.88)]/(7% discount rate in year 1) = [645 * 1 * 2 * $67.88]/(1.07) = $87,565/(1.07) = $81,837. VerDate Sep<11>2014 19:51 May 08, 2019 Jkt 247001 • Maintain Certification Records of Certified Locomotive Engineers not Performing Service Requiring Locomotive Engineer Certification (§ 240.129) Proposed § 240.129(b)(2) would require a railroad intending to avoid conducting an operational monitoring observation or an unannounced compliance test on a certified engineer not performing service requiring certification to retain a written record documenting certain dates regarding a locomotive engineer’s service to prove that the locomotive engineer met the exception in proposed paragraph (h). This is the same recordkeeping requirement as in § 242.123(b)(2). FRA believes that most railroads already maintain such locomotive engineer service records. Therefore, there are no costs associated with this requirement. Existing § 240.129 requires a railroad to have procedures for monitoring the operational performance of locomotive engineers. Specifically, in each calendar year, § 240.129 requires railroads to administer both an operational monitoring observation and an unannounced compliance test to each locomotive engineer. The proposed rule would amend § 240.129 to provide the same flexibility as in Part 242 to conduct monitoring outside of the calendar year requirement when a certified person is not performing service requiring certification. See § 242.123(f). For example, a certified engineer may be on furlough, in military service, on leave with an extended illness, or working in another capacity for the railroad. Existing § 240.129 requires railroads to seek a waiver from FRA for each locomotive engineer who is not available to complete testing requirements within a calendar year. In other words, the proposed amendments would remove the requirement for railroads to seek a waiver from FRA from the requirement for railroads to administer unannounced compliance tests or operational monitoring observations to locomotive engineers who are not performing service requiring locomotive engineer certification. However, the proposed § 240.129(b)(2) would require a railroad intending to avoid conducting an operational monitoring observation or an unannounced compliance test on a certified engineer who is not performing service requiring certification to retain a written record documenting certain dates regarding a locomotive engineer’s service to prove that the locomotive engineer met the exception in proposed paragraph (h). This is the same recordkeeping requirement as in PO 00000 Frm 00028 Fmt 4701 Sfmt 4702 § 242.123(b)(2) and amounts to a new time burden. Because railroads already maintain detailed employment records, this new time burden due to documenting certain dates of a locomotive engineer’s service is one line in a database, i.e., a time burden of about five minutes per engineer. This analysis estimates that each year there will be approximately 200 certified locomotive engineers who are on the payroll of a Class III railroads, but not currently working or not performing service that would require locomotive engineer certification. The cost for Class III railroads to document locomotive engineers who are not performing service requiring locomotive engineer certification is $1,057 (PV 7%), and $1,098 (PV 3%), in year two, and $988 (PV 7%), and $1,066 (PV 3%), in year three.15 For the 20-year period of analysis, the cost for Class III railroads to document locomotive engineers who are not performing service requiring locomotive engineer certification is $11,985 (PV 7%), and $16,831 (PV 3%). • Market and Competition Considerations The railroad industry has several significant barriers to entry, such as the need to own or otherwise obtain access to rights-of-way and the high capital expenditure needed to purchase a fleet, as well as track and equipment. Furthermore, the small railroads under consideration would potentially be competing only with the trucking industry and typically deal with the transport of commodities or goods that are not truck-friendly. Thus, while this proposed rule would have an economic impact on all railroads doing business on the general railroad system, it should not have an impact on the competitive position of small railroads. FRA requests comment on these findings and conclusions. 5. Identification of Any Duplicative, Overlapping, or Conflicting Federal Rules FRA is not aware of any relevant Federal rules that may duplicate, overlap, or conflict with the proposed rule. FRA invites all interested parties to submit data and information regarding the potential economic impact that would result from adoption of the 15 Class III railroad cost for maintaining certification records given break in service, year one (PV 7%) = [average annual number of locomotive engineers with break in service (200) * time burden to maintain record (5 minutes or 0.083 hours) * certification manager compensation rate ($67.88)] (year 1 present value 7% discount rate) = $1,131/ (1.07) = $1,057. E:\FR\FM\09MYP2.SGM 09MYP2 20499 Federal Register / Vol. 84, No. 90 / Thursday, May 9, 2019 / Proposed Rules jbell on DSK3GLQ082PROD with PROPOSALS2 proposals in this NPRM. FRA will consider all comments received in the public comment process when making a determination. C. Paperwork Reduction Act The information collection requirements in this proposed rule are being submitted for approval to the Office of Management and Budget (OMB) under the Paperwork Reduction Act of 1995, 44 U.S.C. 3501 et seq. The sections that contain the new information collection requirements are duly designated, and the estimated time to fulfill each requirement is as follows: Respondent universe Total annual responses Average time per response 240.9—Waivers—Petitions for Waiver .................. 240.101/103—Certification Program: Written program for certifying qualifications of locomotive engineers—amendments. —Certification programs for new railroads ............ —New railroads final review and submission of certification program. —RR provision of copy of certification program submission or resubmission to president of labor organizations representing employees simultaneously with filing with FRA (Revised Requirement). —RR affirmative statement that it has served certification program copy to labor organizations (Revised Requirement). —Employee comment on submission, resubmission or material modification of RR certification program (Revised Requirement). —FRA determination that program does not conform and RR revision of certification program. —RR submission of revised program within 30 days of FRA notice of deficiencies and FRA disapproval of revised program. —RR material modifications to program after initial FRA approval. 240.105—Selection criteria for designated supervisors of locomotive engineers (DSLEs)—examinations of DSLEs. —Written report by railroad Chief Operating Officer of testing of DSLE. 240.109—Candidate’s review and written comments on prior safety conduct data. 240.111—Request for state driving data and National Driver Register Data (NDR): Driver’s license data requests from chief of driver licensing agency of any jurisdiction, including foreign countries (Revised Requirement). —Employee written request for a copy of available information after being advised by RR that additional information on person’s driving history may exist in files of a State agency or foreign government (Revised Requirement). —RR Notification of NDR match and employee request to State agency for relevant data. —Written response to RR from candidate on driver’s license record. —Notice to Railroad of Absence of License ......... —Phone calls by locomotive engineer to RR to report a conviction or a completed State action to cancel, revoke, suspend, or deny motor vehicle driver’s license. 240.113—Certification candidate request to former employing railroad of service record and railroad response concerning compliance or non-compliance with §§ 240.111/117/119 (Revised Requirement). 240.115—RR temporary recertification of locomotive engineer for 60 days after having requested the motor vehicle information specified in paragraph (h) of this section (New Requirements). —RR drug and alcohol counselor request of employee’s record of prior counseling or treatment. 696 railroads .... 696 railroads .... 3 petitions ........... 150 amended programs. 90 minutes ........ 1 hour ............... 5 150 $339 10,182 20 railroads ...... 20 railroads ...... 20 new programs 20 reviews .......... 40 hours ........... 1 hour ............... 800 20 54,304 1,358 696 railroads .... 750 copies .......... 5 minutes .......... 63 4,276 696 railroads .... 750 averred statements. 20 minutes ........ 250 16,970 696 railroads .... 25 comments ..... 40 hours ........... 1,000 55,250 696 railroads .... 25 revised programs. 5 resubmitted programs. 4 hours ............. 100 6,788 4 hours ............. 20 1,358 45 minutes ........ 56 3,801 696 railroads .... 75 modified programs. 50 exams ........... 1 hour ............... 50 2,894 10 railroads ...... 10 reports ........... 1 hour ............... 10 679 26,000 candidates. 26,000 candidates. 40 responses ..... 1 hour ............... 40 2,210 26,000 requests 15 minutes ........ 6,500 441,220 696 railroads .... 125 notices + 125 requests. 2 hours + 1 hour 375 20,719 696 railroads .... 260 notices + 260 requests. 20 comments ..... 15 minutes + 15 minutes. 30 minutes ........ 130 8,003 10 553 696 railroads .... 80,000 candidates. 6 letters .............. 300 calls ............. 15 minutes ........ 10 minutes ........ 2 50 136 2,763 26,000 candidates. 520 requests + 520 resp. 15 min.; 30 min. 390 24,832 696 railroads .... 25 documents .... 5 minutes .......... 2 136 26,000 candidates. 200 requests + 200 records. 2 hours + 60 minutes. 600 40,728 VerDate Sep<11>2014 19:51 May 08, 2019 Jkt 247001 PO 00000 696 railroads .... 696 railroads .... 696 railroads .... Frm 00029 Fmt 4701 Sfmt 4702 E:\FR\FM\09MYP2.SGM Total annual burden hours Total annual burden hours dollar cost equivalent CFR section/subject 09MYP2 20500 Federal Register / Vol. 84, No. 90 / Thursday, May 9, 2019 / Proposed Rules Respondent universe CFR section/subject 240.115 –Conditional certification based on recommendation by drug and alcohol counselor of employee aftercare and/or follow-up testing for alcohol or drugs. —Employee is evaluated as having an active substance abuse disorder by RR drug and alcohol counselor (DAC). 240.117—RR adoption & compliance with a program that meets this section’s requirement (Revised Requirement). —Designated supervisor of locomotive engineers (DSLE) evaluation that employee has received adequate remedial training to be eligible for grant of reinstatement of certificate after certification was denied or revoked. —Employee successful completion of mandatory remedial training or retraining. 240.119—Certified engineers determined to have an active substance abuse disorder and thus is ineligible to hold certification. —Employee Self-Referral to EAP Counselor for Substance Abuse Disorder. jbell on DSK3GLQ082PROD with PROPOSALS2 —RR review of certification to determine whether a person may be or remain certified as a locomotive engineer in light of conduct relating to a violation of section 219.101 or 219.102 that occurred within 60 months prior to review. —RR written determination that the most recent incident has occurred which begins period of ineligibility. —RR notification to person that certification has been denied or recertification revoked. —Waiver of investigation by locomotive engineer 240.121—Criteria—hearing/vision acuity: Subsequent years—copies of Part 240 Appendix F to RR medical examiner. —Medical examiner consultation with DSLE to issue conditional certification report. —Notification—hearing/vision change by certified engineer to railroad. 240.125—Criteria for knowledge testing: Consultation by employee being tested with a supervisory employee who possess territorial qualification for territory to explain question (New Requirement). 240.127/129—Criteria for examining skill performance/operational perf.—Revision of RR certification program after engineer’s failure/deficiencies in skills test and description of scoring system. —Written records indicating dates that the engineer stopped performing/returned to certification service + compliance/observation tests (New Requirement). 240.201/221/223/301—List of DSLEs ................... —List of designated qualified locomotive engineers (DQLEs). 240.201/217/223/301—Locomotive Engineers Certificate. 240.205—Furnishing of prior counseling or treatment records to DAC by candidate. 240.207—Medical certificate on hearing/vision acuity—tests and certificate issuance. —Written document to RR from medical examiner stating professional opinion that candidate does not meet one or both acuity standards but nevertheless be certified under certain conditions. VerDate Sep<11>2014 19:51 May 08, 2019 Jkt 247001 PO 00000 Total annual responses Average time per response Total annual burden hours Total annual burden hours dollar cost equivalent 26,000 candidates. 100 DAC testing directions. 60 minutes ........ 100 6,788 26,000 candidates. 100 DAC evaluations. 60 minutes ........ 100 6,788 696 railroads .... 170 programs ..... 60 minutes ........ 170 11,540 80,000 locomotive engineers. 1,600 DSLE evaluations. 60 minutes ........ 1,600 108,608 80,000 locomotive engineers. 80,000 locomotive engineers. 80,000 locomotive engineers. 696 railroads .... 400 trained crew members. 8 hours ............. 3,200 176,800 400 decisions ..... 60 minutes ........ 400 27,152 50 self-referrals .. 5 minutes .......... 4 221 400 reviews ........ 30 minutes ........ 200 13,576 696 railroads .... 400 written determination. 30 minutes ........ 200 13,576 696 railroads .... 200 notices ......... 45 minutes ........ 150 10,182 80,000 locomotive engineers. 20 new railroads. 680 waivers ........ 2 minutes .......... 23 1,271 20 copies ............ 15 min. ............. 5 339 696 railroads .... 20 reports ........... 1 hour ............... 20 1,358 696 railroads .... 10 notices ........... 15 minutes ........ 3 166 26,000 candidates. 8,000 worker consults. 5 minutes .......... 667 36,852 696 railroads .... 18 amended programs + 171 amended programs. 48 hours + 8 hours. 22,232 1,509,108 696 railroads .... 1,000 records ..... 5 minutes .......... 83 5,634 696 railroads .... 696 railroads .... 696 updates ....... 696 updates/ records. 26,000 paper certificates. 185 records ........ 30 minutes ........ 60 minutes ........ 348 696 23,622 47,244 5 minutes .......... 2,167 147,096 5 minutes .......... 15 829 26,000 paper certificates. 20 written documents. 70 minutes ........ 30,333 2,059,004 15 minutes ........ 5 339 80,000 candidates. 696 railroads .... 80,000 candidates. 696 railroads .... Frm 00030 Fmt 4701 Sfmt 4702 E:\FR\FM\09MYP2.SGM 09MYP2 20501 Federal Register / Vol. 84, No. 90 / Thursday, May 9, 2019 / Proposed Rules Respondent universe —Written document to RR from medical examiner stating person’s acuity precludes operating a train even with conditions attached. —Written determination by medical examiner waiving necessity of wearing hearing/vision corrective device. 240.219—Denial of certification—notification to employee of adverse information and employee response. —RR provision of documents/records to candidate that support its pending denial decision (New Requirement). —Notification of adverse decision to person explaining RR basis for denial which addresses any explanation or rebuttal information provided by employee (Revised Requirement). 240.221—Identification of qualified persons: RR provision of list/records of certified engineers to FRA upon request. 240.223—RR written designation of person other than DSLE to sign locomotive engineers certificate. —RR inclusion of additional information on locomotive engineer’s certificate or supplementing the certificate through other documents. 240.229—Joint operations territory requirements: RR determinations made that locomotive engineers working in joint operations are qualified under subpart C of this part or are certified by another railroad. —Notification by engineer of non-qualification to operate train on track segment. 240.301—Replacement of lost, mutilated, or stolen certificates. —Temporary replacement certificates valid for no more than 30 days (New Requirement). 240.305—Display of certificate upon request of authorized representatives of: FRA, State Part 212 inspectors, issuing railroad, or officer of another railroad during joint train operations (Revised Requirement). 240.309—Railroad oversight responsibilities—instances of identified poor safety conduct and remedial/other actions taken. TESTING REQUIREMENTS: 240.209/213—Written test—Prior to certification or recertification. —Test failures and retests of persons .................. 696 railroads .... 20 written documents. 15 minutes ........ 5 339 696 railroads .... 30 decisions ....... 2 hours ............. 60 4,073 26,000 candidates. 45 letters + 45 responses. 1 hour ............... 90 5,541 696 railroads .... 45 documents .... 2 minutes .......... 2 136 696 railroads .... 45 notices/explanations. 1 hour ............... 45 3,055 696 railroads .... 125 lists/record copies. 2 hours ............. 250 16,970 696 railroads .... 100 written designations. 15 minutes ........ 25 1,697 696 railroads .... 100 notations/ documents. 15 minutes ........ 25 1,697 321 railroads .... 10,000 RR determination. 10 minutes ........ 1,667 113,156 321 railroads .... 260 calls ............. 5 minutes .......... 22 1,216 696 railroads .... 2,000 new certificates. 2,000 temp. certificates. 2,500 request/ displayed certificates. 30 minutes ........ 1,000 67,880 30 minutes ........ 1,000 67,880 5 minutes .......... 208 11,492 15 railroads ...... 6 annotations ..... 15 minutes ........ 2 136 80,000 candidates. 80,000 candidates. 80,000 candidates. 80,000 candidates. 80,000 candidates. 26,000 tests ....... 2 hours ............. 52,000 2,873,000 26 retests ........... 2 hours ............. 52 2,873 26,000 tests ....... 2 hours ............. 52,000 2,873,000 26 retests ........... 2 hours ............. 52 2,873 80,000 tests ....... 2 hours ............. 160,000 8,840,000 80,000 candidates. 80,000 tests ....... 1 hour ............... 80,000 4,420,000 696 railroads .... 26,000 cert. records. 150 notices ......... 30 minutes ........ 13,000 882,440 5 minutes .......... 13 718 3 letters .............. 30 minutes ........ 2 111 1,358 written notices. 1 hour ............... 1,358 92,181 jbell on DSK3GLQ082PROD with PROPOSALS2 240.211/213—Performance Test—Prior to certification or recertification. —Test failures and retests of persons .................. 240.303—Annual operational monitoring observation test of locomotive engineers prior to certification or recertification. —Annual unannounced operating rules compliance test. RECORDKEEPING REQUIREMENTS: 240.215—Recordkeeping—Certification of locomotive engineers. 240.305—Engineer notice to RR that he/she is not qualified to perform anticipated service. —Notice to engineer holding two or more certificates that he/she has been denied certification by another RR or that he/she has had certification revoked. 240.307—Written notification to engineer by RR of reasons that it is suspending or revoking certification and mention of opportunity for hearing before impartial presiding officer. VerDate Sep<11>2014 19:51 May 08, 2019 Jkt 247001 PO 00000 696 railroads .... 696 railroads .... 80,000 candidates. 1,060 candidates. 696 railroads .... Frm 00031 Total annual responses Fmt 4701 Sfmt 4702 Average time per response E:\FR\FM\09MYP2.SGM Total annual burden hours Total annual burden hours dollar cost equivalent CFR section/subject 09MYP2 20502 Federal Register / Vol. 84, No. 90 / Thursday, May 9, 2019 / Proposed Rules Respondent universe Total annual responses Average time per response —Convening of hearing within deadline stipulated in (c)(1) of this section. —RR provision to employee of copy of written information and list of witnesses that it will present at hearing (New Requirement). —RR determination on hearing record whether person no longer meets the certification requirements of this part stating explicitly reasons for the conclusion reached. —RR written decision after close of hearing containing findings of fact and whether a revocable event occurred. —RR service of written decision on employee and employee’s representative (Revised Requirement). —Person written waiver of right to hearing under this section. —RR revocation of certification after acquiring information that another RR has revoked person’s certification. —RR updating of records to include relevant information meeting criteria of paragraph (i) of this section. —RR good faith determination after reasonable inquiry that the course of conduct provided for in paragraph (i) of this section is appropriate. 240.308—Person must be certified as both conductor and locomotive engineer when operating locomotive without an assigned certified conductor (New Requirement). —Communication to locomotive engineer on passenger railroad that certified conductor has been removed for a medical, police, or other such emergency after train departs from initial terminal (New Requirement). —Notification to RR by person holding more than one current conductor and/or locomotive certificate that another RR had denied recertification. 240.309—RR Oversight Responsibilities: Performance of Annual Reviews/Analysis. —RR Report of Findings ....................................... Appendix B—Railroad request to FRA for electronic submission of required materials. 696 railroads .... 690 hearings/ records. 690 copies/lists .. 4 hours ............. 2,760 187,349 5 minutes .......... 58 3,937 jbell on DSK3GLQ082PROD with PROPOSALS2 Total ................................................................ All estimates include the time for reviewing instructions; searching existing data sources; gathering or maintaining the needed data; and reviewing the information. Pursuant to 44 U.S.C. 3506(c)(2)(B), FRA solicits comments concerning: Whether these information collection requirements are necessary for the proper performance of the functions of FRA, including whether the information has practical utility; the accuracy of FRA’s estimates of the burden of the information collection requirements; the quality, utility, and clarity of the information to be collected; and whether the burden of collection of information on those who are to respond, including through the use of automated collection techniques or other forms of information technology, may be minimized. VerDate Sep<11>2014 19:51 May 08, 2019 Jkt 247001 696 railroads .... 696 railroads .... 1,600 hearing determination. 1 hour ............... 1,600 108,608 696 railroads .... 690 written decisions. 2 hours ............. 1,380 93,675 696 railroads .... 3,750 copies ....... 30 minutes ........ 1,875 127,275 26,000 candidates. 696 railroads .... 750 written waivers. 50 revoked certifications. 15 minutes ........ 188 10,387 2 hours ............. 100 6,788 696 railroads .... 50 updated records. 15 minutes ........ 8 543 696 railroads .... 50 good faith determination. 60 minutes ........ 50 3,394 26,000 candidates. 8,666 dual certifications. 5 minutes .......... 722 49,009 51 railroads ...... 200 messages .... 15 minutes ........ 50 3,394 26,000 candidates. 100 notices ......... 30 minutes ........ 50 2,763 51 railroads ...... 51 reviews .......... 40 hours ........... 2,040 138,475 51 railroads ...... 696 railroads .... 12 reports ........... 170 requests ...... 1 hour ............... 1 hour ............... 12 170 815 11,540 N/A ................... 372,123 .............. N/A ................... 445,013 25,784,983 Organizations and individuals wishing to obtain a copy of the agency information collection request submitted to OMB or desiring to transmit comments on the collection of information requirements should direct them to Mr. Robert Brogan, Information Collection Clearance Officer, or Ms. Kimberly Toone, Records Management Officer, Federal Railroad Administration, 1200 New Jersey Avenue SE, 3rd Floor, Washington, DC 20590. Also, requests for a copy of the information collection request or comments on the information collection request requirements may be transmitted via email to Mr. Brogan at Robert.Brogan@dot.gov, or to Ms. Toone at Kim.Toone@dot.gov. Additionally, Mr. Brogan and Ms. Toone may be contacted by phone at 202–493–6292, PO 00000 Total annual burden hours Total annual burden hours dollar cost equivalent CFR section/subject Frm 00032 Fmt 4701 Sfmt 4702 and 202–493–6139, respectively. (These numbers are not toll-free.) OMB is required to make a decision concerning the collection of information requirements contained in this proposed rule between 30 and 60 days after publication of this document in the Federal Register. Therefore, a comment to OMB is best assured of having its full effect if OMB receives it within 30 days of publication. The final rule will respond to any OMB or public comments on the information collection requirements contained in this proposal. FRA is not authorized to impose a penalty on persons for violating information collection requirements which do not display a current OMB control number, if required. FRA intends to obtain current OMB control numbers for any new information E:\FR\FM\09MYP2.SGM 09MYP2 Federal Register / Vol. 84, No. 90 / Thursday, May 9, 2019 / Proposed Rules jbell on DSK3GLQ082PROD with PROPOSALS2 collection requirements resulting from this rulemaking action prior to the effective date of the final rule. The OMB control number, when assigned, will be announced by separate notice in the Federal Register. D. Federalism Implications Executive Order 13132, ‘‘Federalism’’ (64 FR 43255, Aug. 10, 1999), requires FRA to develop an accountable process to ensure ‘‘meaningful and timely input by State and local officials in the development of regulatory policies that have federalism implications.’’ ‘‘Policies that have federalism implications’’ are defined in the Executive Order to include regulations having ‘‘substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government.’’ Under Executive Order 13132, the agency may not issue a regulation with federalism implications that imposes substantial direct compliance costs and that is not required by statute, unless the Federal government provides the funds necessary to pay the direct compliance costs incurred by State and local governments or the agency consults with State and local government officials early in the process of developing the regulation. Where a regulation has federalism implications and preempts State law, the agency seeks to consult with State and local officials in the process of developing the regulation. FRA has analyzed this NPRM under the principles and criteria contained in Executive Order 13132. FRA has determined this proposed rule would not have a substantial direct effect on the States or their political subdivisions; on the relationship between the Federal government and the States or their political subdivisions, or on the distribution of power and responsibilities among the various levels of government. In addition, FRA has determined this rule does not impose substantial direct compliance costs on State and local governments. Therefore, the consultation and funding requirements of Executive Order 13132 do not apply. This proposed rule could have preemptive effect by the operation of law under a provision of the former Federal Railroad Safety Act of 1970, repealed and recodified at 49 U.S.C. 20106 (Section 20106). Section 20106 provides that States may not adopt or continue in effect any law, regulation, or order related to railroad safety or security that covers the subject matter of VerDate Sep<11>2014 19:51 May 08, 2019 Jkt 247001 a regulation prescribed or order issued by the Secretary of Transportation (with respect to railroad safety matters) or the Secretary of Homeland Security (with respect to railroad security matters), except when the State law, regulation, or order qualifies under the ‘‘essentially local safety or security hazard’’ exception to section 20106. In sum, FRA has analyzed this proposed rule in accordance with the principles and criteria contained in Executive Order 13132. As explained above, FRA has determined that this proposed rule has no federalism implications, other than the possible preemption of State laws under Federal railroad safety statutes, specifically 49 U.S.C. 20106. Accordingly, FRA has determined that preparation of a federalism summary impact statement for this proposed rule is not required. E. International Trade Impact Assessment The Trade Agreement Act of 1979 prohibits Federal agencies from engaging in any standards or related activities that create unnecessary obstacles to the foreign commerce of the United States. Legitimate domestic objectives, such as safety, are not considered unnecessary obstacles. The statute also requires consideration of international standards and where appropriate, that they be the basis for U.S. standards. This proposed rule is purely domestic in nature and is not expected to affect trade opportunities for U.S. firms doing business overseas or for foreign firms doing business in the United States. F. Environmental Impact FRA has evaluated this rule under its ‘‘Procedures for Considering Environmental Impacts’’ (FRA’s Procedures) (64 FR 28545, May 26, 1999) as required by the National Environmental Policy Act (42 U.S.C. 4321 et seq.), other environmental statutes, Executive Orders, and related regulatory requirements. FRA has determined that this proposed rule is not a major FRA action (requiring the preparation of an environmental impact statement or environmental assessment) because it is categorically excluded from detailed environmental review pursuant to section 4(c)(20) of FRA’s Procedures. See 64 FR 28547 (May 26, 1999). Consistent with section 4(c) and (e) of FRA’s Procedures, the agency has further concluded that no extraordinary circumstances exist with respect to this regulation that might trigger the need for a more detailed environmental review. As a result, FRA finds that this proposed rule is not a major Federal PO 00000 Frm 00033 Fmt 4701 Sfmt 4702 20503 action significantly affecting the quality of the human environment. G. Unfunded Mandates Reform Act of 1995 Pursuant to Section 201 of the Unfunded Mandates Reform Act of 1995 (Pub. L. 104–4, 2 U.S.C. 1531), each Federal agency ‘‘shall, unless otherwise prohibited by law, assess the effects of Federal regulatory actions on State, local, and tribal governments, and the private sector (other than to the extent that such regulations incorporate requirements specifically set forth in law).’’ Section 202 of the Act (2 U.S.C. 1532) further requires that ‘‘before promulgating any general notice of proposed rulemaking that is likely to result in the promulgation of any rule that includes any Federal mandate that may result in expenditure by State, local, and tribal governments, in the aggregate, or by the private sector, of $100,000,000 or more (adjusted annually for inflation) in any 1 year, and before promulgating any final rule for which a general notice of proposed rulemaking was published, the agency shall prepare a written statement’’ detailing the effect on State, local, and tribal governments and the private sector. For the year 2016, this monetary amount has been adjusted to $156,000,000 to account for inflation.16 This proposed rule will not result in the expenditure of more than $156,000,000 by the public sector in in any one year, and thus preparation of such a statement is not required. H. Energy Impact Executive Order 13211 requires Federal agencies to prepare a Statement of Energy Effects for any ‘‘significant energy action.’’ 66 FR 28355 (May 22, 2001). FRA has evaluated this NPRM under Executive Order 13211 and determined that this NPRM is not a ‘‘significant energy action’’ within the meaning of Executive Order 13211. Executive Order 13783 requires Federal agencies to review regulations to determine whether they potentially burden the development or use of domestically produced energy resources, with particular attention to oil, natural gas, coal, and nuclear energy resources. 82 FR 16093 (Mar. 31, 2017). FRA has evaluated this NPRM under Executive Order 13783 and determined 16 Monetary value based on most recent DOT guidance. U.S. Department of Transportation, Office of Secretary of Transportation, Monje, Carlos and Thomson, Kathryn, ‘‘Department Guidance: Threshold of Significant Regulatory Action Under the Unfunded Mandate Reform Act of 1995. April 4, 2016. https://www.transportation.gov/officepolicy/transportation-policy/threshold-significantregulatory-actions-under-unfunded-mandat-0. E:\FR\FM\09MYP2.SGM 09MYP2 20504 Federal Register / Vol. 84, No. 90 / Thursday, May 9, 2019 / Proposed Rules § 240.3 Application and responsibility for compliance. that this proposed rule would not burden the development or use of domestically produced energy resources. I. Privacy Act In accordance with 5 U.S.C. 553(c), DOT solicits comments from the public to better inform its rulemaking process. DOT solicits comments from the public to better inform its rulemaking process. DOT posts these comments, without edit, to www.regulations.gov, as described in the system of records notice, DOT/ALL–14 FDMS, accessible through www.dot.gov/privacy. In order to facilitate comment tracking and response, we encourage commenters to provide their name, or the name of their organization; however, submission of names is completely optional. Whether or not commenters identify themselves, all timely comments will be fully considered. If you wish to provide comments containing proprietary or confidential information, please contact the agency for alternate submission instructions. List of Subjects in 49 CFR Part 240 Administrative practice and procedure, Locomotive engineer, Penalties, Railroad employees, Railroad operating procedures, Railroad safety, Reporting and recordkeeping requirements. The Proposed Rule For the reasons discussed in the preamble, FRA proposes to amend part 240 of chapter II, subtitle B of title 49 of the Code of Federal Regulations as follows: PART 240—[AMENDED] 1. The authority citation for part 240 is revised to read as follows: ■ Authority: 44 U.S.C. 3501 et seq.; 49 U.S.C. 20103, 20107, 20135, 20138, 20162, 20163, 21301, 21304, 21311; 28 U.S.C. 2461, note; and 49 CFR 1.89. 2. Section 240.1 is amended by revising paragraph (c) to read as follows: ■ § 240.1 Purpose and scope. jbell on DSK3GLQ082PROD with PROPOSALS2 * * * * * (c) The locomotive engineer certification requirements prescribed in this part apply to any person who meets the definition of locomotive engineer contained in § 240.7, regardless of the fact that the person may have a job classification title other than that of locomotive engineer. ■ 3. Section 240.3 is revised to read as follows: VerDate Sep<11>2014 19:51 May 08, 2019 Jkt 247001 (a) This part applies to all railroads, except: (1) Railroads that operate only on track inside an installation that is not part of the general railroad system of transportation (i.e., plant railroads, as defined in § 240.7); (2) Tourist, scenic, historic, or excursion operations that are not part of the general railroad system of transportation as defined in § 240.7; or (3) Rapid transit operations in an urban area that are not connected to the general railroad system of transportation. (b) Although the duties imposed by this part are generally stated in terms of the duty of a railroad, each person, including a contractor for a railroad, who performs any function covered by this part must perform that function in accordance with this part. ■ 4. Section 240.5 is revised to read as follows: § 240.5 Effect and construction. (a) FRA does not intend, by use of the term locomotive engineer in this part, to alter the terms, conditions, or interpretation of existing collective bargaining agreements that employ other job classification titles when identifying a person authorized by a railroad to operate a locomotive. (b) FRA does not intend by issuance of these regulations to alter the authority of a railroad to initiate disciplinary sanctions against its employees, including managers and supervisors, in the normal and customary manner, including those contained in its collective bargaining agreements. (c) Except as provided in § 240.308, nothing in this part shall be construed to create or prohibit an eligibility or entitlement to employment in other service for the railroad as a result of denial, suspension, or revocation of certification under this part. (d) Nothing in this part shall be deemed to abridge any additional procedural rights or remedies not inconsistent with this part that are available to the employee under a collective bargaining agreement, the Railway Labor Act, or (with respect to employment at will) at common law with respect to removal from service or other adverse action taken as a consequence of this part. ■ 5. Section 240.7 is amended by: ■ a. Adding in alphabetical order definitions for ‘‘conductor’’ and ‘‘drug and alcohol counselor’’; ■ b. Removing the definition of ‘‘EAP counselor’’; PO 00000 Frm 00034 Fmt 4701 Sfmt 4702 c. Revising the definitions of ‘‘file, filed and filing’’ and ‘‘FRA Representative’’; ■ d. Adding in alphabetical order a definition for ‘‘ineligible or ineligibility’’; ■ e. Revising the definitions of ‘‘instructor engineer’’, ‘‘main track’’, and ‘‘medical examiner’’; ■ f. Removing the definition of ‘‘newly hired employee’’; ■ g. Adding in alphabetical order definitions for ‘‘on-the-job training (OJT)’’, ‘‘physical characteristics’’, and ‘‘plant railroad’’; ■ h. Revising the definitions of ‘‘qualified’’ and ‘‘railroad rolling stock’’; ■ i. Adding in alphabetical order definitions for ‘‘remote control operator’’ and ‘‘serve or service’’; ■ j Removing the definition of ‘‘service’’; ■ k. Revising the definition of ‘‘substance abuse disorder’’; and ■ l. Adding in alphabetical order definitions for ‘‘substance abuse professional’’, ‘‘territorial qualifications’’, and ‘‘tourist, scenic, historic, or excursion operations that are not part of the general system of transportation’’. The additions and revisions read as follows: ■ § 240.7 Definitions. * * * * * Conductor means the crewmember in charge of a ‘‘train or yard crew’’ as defined in part 218 of this chapter. * * * * * Drug and alcohol counselor (DAC) means a person who meets the credentialing and qualification requirements of a ‘‘Substance Abuse Professional’’ (SAP), as provided in 49 CFR part 40. * * * * * File, filed and filing mean submission of a document under this part on the date when the DOT Docket Clerk or FRA receives it, or if sent by mail, the date mailing was completed. * * * * * FRA Representative means the FRA Associate Administrator for Railroad Safety/Chief Safety Officer and the Associate Administrator’s delegate, including any safety inspector employed by the Federal Railroad Administration and any qualified state railroad safety inspector acting under part 212 of this chapter. Ineligible or ineligibility means that a person is legally disqualified from serving as a certified locomotive engineer. The term covers a number of circumstances in which a person may not serve as a certified locomotive E:\FR\FM\09MYP2.SGM 09MYP2 jbell on DSK3GLQ082PROD with PROPOSALS2 Federal Register / Vol. 84, No. 90 / Thursday, May 9, 2019 / Proposed Rules engineer. Revocation of certification pursuant to § 240.307 and denial of certification pursuant to § 240.219 are two examples in which a person would be ineligible to serve as a certified locomotive engineer. A period of ineligibility may end when a condition or conditions are met. For example, a period of ineligibility may end when a person meets the conditions to serve as a certified locomotive engineer following an alcohol or drug violation pursuant to § 240.119. Instructor engineer means (1) A person who has demonstrated, pursuant to the railroad’s written program, an adequate knowledge of the subjects under instruction and, where applicable, has the necessary operating experience to effectively instruct in the field, and has the following qualifications: (i) Is a certified locomotive engineer under this part; and (ii) Has been selected as such by a designated railroad officer, in concurrence with the designated employee representative, where present, to teach others proper train handling procedures, or (iii) In absence of concurrence provided in paragraph (1)(ii) of this definition, has a minimum of 12 months service working in the class of service for which the person is designated to instruct. (2) If a railroad does not have designated employee representation, then a person employed by the railroad need not comply with paragraph (1)(ii) or (iii) of this definition to be an instructor engineer. * * * * * Main track means a track upon which the operation of trains is governed by one or more of the following methods of operation: Timetable; mandatory directive; signal indication; positive train control as defined in part 236 of this chapter; or any form of absolute or manual block system. Medical examiner means a person licensed as a doctor of medicine or doctor of osteopathy. A medical examiner can be a qualified full-time salaried employee of a railroad, a qualified practitioner who contracts with the railroad on a fee-for-service or other basis, or a qualified practitioner designated by the railroad to perform functions in connection with medical evaluations of employees. As used in this rule, the medical examiner owes a duty to make an honest and fully informed evaluation of the condition of an employee. On-the-job training (OJT) means job training that occurs in the workplace, VerDate Sep<11>2014 19:51 May 08, 2019 Jkt 247001 i.e., the employee learns the job while doing the job. Operator control unit (OCU) means a mobile unit that communicates via a radio link the commands for a movement (direction, speed, braking) or for operations (bell, horn, sand) to an RCL. * * * * * Physical characteristics means the actual track profile of and physical location for points within a specific yard or route that affect the movement of a locomotive or train. Physical characteristics includes both main track physical characteristics (see definition of ‘‘main track’’ in this section) and other than main track physical characteristics. Plant railroad means a plant or installation that owns or leases a locomotive, uses that locomotive to switch cars throughout the plant or installation, and is moving goods solely for use in the facility’s own industrial processes. The plant or installation could include track immediately adjacent to the plant or installation if the plant railroad leases the track from the general system railroad and the lease provides for (and actual practice entails) the exclusive use of that trackage by the plant railroad and the general system railroad for purposes of moving only cars shipped to or from the plant. A plant or installation that operates a locomotive to switch or move cars for other entities, even if solely within the confines of the plant or installation, rather than for its own purposes or industrial processes, will not be considered a plant railroad because the performance of such activity makes the operation part of the general railroad system of transportation. Qualified means a person who has successfully completed all instruction, training and examination programs required by the employer and the applicable parts of this chapter, and that the person therefore may reasonably be expected to be proficient on all safetyrelated tasks the person is assigned to perform. * * * * * Railroad rolling stock is on-track equipment that is either a ‘‘railroad freight car’’ (as defined in § 215.5 of this chapter) or a ‘‘passenger car’’ (as defined in § 238.5 of this chapter). Remote control locomotive (RCL) means a remote control locomotive that, through use of a radio link can be operated by a person not physically within the confines of the locomotive cab. For purposes of this part, the term RCL does not refer to a locomotive or group of locomotives remotely PO 00000 Frm 00035 Fmt 4701 Sfmt 4702 20505 controlled from the lead locomotive of a train, as in a distributed power arrangement. * * * * * Serve or service, in the context of serving documents, has the meaning given in Rule 5 of the Federal Rules of Civil Procedure as amended. Similarly, the computation of time provisions in Rule 6 of the Federal Rules of Civil Procedure as amended are also applicable in this part. See also the definition of ‘‘filing’’ in this section. * * * * * Substance abuse disorder refers to a psychological or physical dependence on alcohol or a drug, or another identifiable and treatable mental or physical disorder involving the abuse of alcohol or drugs as a primary manifestation. A substance abuse disorder is ‘‘active’’ within the meaning of this part if the person is currently using alcohol or other drugs, except under medical supervision consistent with the restrictions described in § 219.103 of this chapter or has failed to successfully complete primary treatment or successfully participate in aftercare as directed by a DAC or SAP. Substance abuse professional (SAP) means a person who meets the qualifications of a substance abuse professional, as provided in part 40 of this title. Territorial qualifications means possessing the necessary knowledge concerning a railroad’s operating rules and timetable special instructions, including familiarity with applicable main track and other than main track physical characteristics of the territory over which the locomotive or train movement will occur. Tourist, scenic, historic, or excursion operations that are not part of the general railroad system of transportation means a tourist, scenic, historic, or excursion operation conducted only on track used exclusively for that purpose (i.e., there is no freight, intercity passenger, or commuter passenger railroad operation on the track). * * * * * ■ 6. Section 240.11 is amended by revising paragraph (d) to read as follows: § 240.11 Penalties and consequences for noncompliance. * * * * * (d) In addition to the enforcement methods referred to in paragraphs (a), (b), and (c) of this section, FRA may also address violations of this part by use of the emergency order, compliance order, and/or injunctive provisions of the Federal rail safety laws. E:\FR\FM\09MYP2.SGM 09MYP2 20506 Federal Register / Vol. 84, No. 90 / Thursday, May 9, 2019 / Proposed Rules 7. Section 240.103 is amended by revising paragraphs (b) through (e) and adding paragraphs (f), (g), and (h) to read as follows: ■ § 240.103 Approval of design of individual railroad programs by FRA. jbell on DSK3GLQ082PROD with PROPOSALS2 * * * * * (b) Each railroad shall: (1) Simultaneous with its filing with the FRA, serve a copy of the submission filed pursuant to paragraph (a) of this section, a resubmission filed pursuant to paragraph (f) of this section, or a material modification filed pursuant to paragraph (g) of this section on the president of each labor organization that represents the railroad’s employees subject to this part; and (2) Include in its submission filed pursuant to paragraph (a) of this section, a resubmission filed pursuant to paragraph (f) of this section, or a material modification filed pursuant to paragraph (g) of this section a statement affirming that the railroad has served a copy on the president of each labor organization that represents the railroad’s employees subject to this part, together with a list of the names and addresses of persons served. (c) Not later than 45 days from the date of filing a submission pursuant to paragraph (a) of this section, a resubmission pursuant to paragraph (f) of this section, or a material modification pursuant to paragraph (g) of this section, any designated representative of railroad employees subject to this part may comment on the submission, resubmission, or material modification: (1) Each comment shall set forth specifically the basis upon which it is made, and contain a concise statement of the interest of the commenter in the proceeding; (2) Each comment shall be submitted to the Associate Administrator for Railroad Safety/Chief Safety Officer, FRA, 1200 New Jersey Avenue SE, Washington, DC 20590; and (3) The commenter shall certify that a copy of the comment was served on the railroad. (d) The submission required by paragraph (a) of this section shall state the railroad’s election either: (1) To accept responsibility for the training of student engineers and thereby obtain authority for that railroad to initially certify a person as an engineer in an appropriate class of service, or (2) To recertify only engineers previously certified by other railroads. (e) A railroad that elects to accept responsibility for the training of student engineers shall state in its submission VerDate Sep<11>2014 19:51 May 08, 2019 Jkt 247001 whether it will conduct the training program or employ a training program conducted by some other entity on its behalf but adopted and ratified by that railroad. (f) A railroad’s program is considered approved and may be implemented 30 days after the required filing date (or the actual filing date) unless the Administrator notifies the railroad in writing that the program does not conform to the criteria set forth in this part. (1) If the Administrator determines that the program does not conform, the Administrator will inform the railroad of the specific deficiencies. (2) If the Administrator informs the railroad of deficiencies more than 30 days after the initial filing date, the original program may remain in effect until 30 days after approval of the revised program is received so long as the railroad has complied with the requirements of paragraph (g) of this section. (g) A railroad shall resubmit its program within 30 days after the date of such notice of deficiencies. A failure to resubmit the program with the necessary revisions will be considered a failure to implement a program under this part. (1) The Administrator will inform the railroad in writing whether its revised program conforms to this part. (2) If the program does not conform, the railroad shall resubmit its program. (h) A railroad that intends to materially modify its program after receiving initial FRA approval shall submit a description of how it intends to modify the program in conformity with the specific requirements of this part at least 60 days prior to implementing such a change. (1) A modification is material if it would affect the program’s conformance with this part. (2) The modification submission shall contain a description that conforms to the pertinent portion of the procedures contained in appendix B. (3) The modification submission will be handled in accordance with the procedures of paragraphs (b) and (c) of this section as though it were a new program. ■ 8. Section 240.105 is amended by adding paragraph (d) to read as follows: § 240.105 Criteria for selection of designated supervisors of locomotive engineers. * * * * * (d) Each railroad is authorized to designate a person as a designated supervisor of locomotive engineers with additional conditions or operational PO 00000 Frm 00036 Fmt 4701 Sfmt 4702 restrictions on the service the person may perform. ■ 9. Section 240.107 is amended by: ■ a. Revising the section heading and paragraphs (a), (b)(2) and (3); ■ b. Adding paragraphs (b)(4) and (5); ■ c. Revising paragraphs (c)(2) and (3); and ■ d. Adding paragraph (c)(4). The revisions and additions read as follows: § 240.107 Types of service. (a) Each railroad’s program shall state which of the classes of service, provided for in paragraph (b) of this section, that it will cover. (b) * * * (2) Locomotive servicing engineers, (3) Remote control operators, (4) Student engineers, and (5) Student remote control operators. (c) * * * (2) Locomotive servicing engineers may operate locomotives singly or in multiples but may not move them with cars coupled to them; (3) Remote control operators may operate an RCL singly or attached to multiple locomotives, and may move an RCL with or without cars coupled to the RCL or locomotives, but in all instances the movement must be controlled using an OCU; and (4) Student engineers and student remote control operators may operate only under direct and immediate supervision of an instructor engineer. * * * * * ■ 10. Section 240.111 is amended by revising paragraph (a)(2), republishing paragraph (c) introductory text, and revising paragraphs (c)(1) and (2), (d), (e), (f), and (h) to read as follows: § 240.111 Individual’s duty to furnish data on prior safety conduct as motor vehicle operator. (a) * * * (2) Take any additional actions, including providing any necessary consent required by State, Federal, or foreign law to make information concerning his or her driving record available to that railroad. * * * * * (c) Each person shall request the information required under paragraph (b)(1) of this section from: (1) The chief of the driver licensing agency of any jurisdiction, including a state or foreign country, which last issued that person a driver’s license; and (2) The chief of the driver licensing agency of any other jurisdiction, including states or foreign countries, that issued or reissued him or her a driver’s license within the preceding five years. E:\FR\FM\09MYP2.SGM 09MYP2 jbell on DSK3GLQ082PROD with PROPOSALS2 Federal Register / Vol. 84, No. 90 / Thursday, May 9, 2019 / Proposed Rules (d) Each person shall request the information required under paragraph (b)(2) of this section from the Chief, National Driver Register, National Highway Traffic Safety Administration, 1200 New Jersey Avenue SE, Washington, DC 20590 in accordance with the procedures contained in appendix C unless the person’s motor vehicle driving license was issued by a state or the District of Columbia. (e) If the person’s motor vehicle driving license was issued by one of the driver licensing agencies of a state or the District of Columbia, the person shall request the chief of that driver licensing agency to perform a check of the National Driver Register for the possible existence of additional information concerning his or her driving record and to provide the resulting information to the railroad. (f) If advised by the railroad that a driver licensing agency or the National Highway Traffic Safety Administration has informed the railroad that additional information concerning that person’s driving history may exist in the files of a state agency or foreign country not previously contacted in accordance with this section, such person shall: (1) Request in writing that the chief of the driver licensing agency which compiled the information provide a copy of the available information to the prospective certifying railroad; and (2) Take any additional action required by State, Federal, or foreign law to obtain that additional information. * * * * * (h) Each certified locomotive engineer or person seeking initial certification shall report motor vehicle incidents described in § 240.115(b)(1) and (2) to the employing railroad within 48 hours of being convicted for, or completed state action to cancel, revoke, suspend, or deny a motor vehicle driver’s license for, such violations. For purposes of this paragraph and § 240.115(h), ‘‘state action’’ means action of the jurisdiction that has issued the motor vehicle driver’s license, including a foreign country. For the purposes of engineer certification, no railroad shall require reporting earlier than 48 hours after the conviction, or completed state action to cancel, revoke, or deny a motor vehicle driver’s license. ■ 11. Section 240.113 is amended by revising paragraphs (a) introductory text and (a)(1) and removing and reserving paragraph (b). The revisions read as follows: VerDate Sep<11>2014 19:51 May 08, 2019 Jkt 247001 § 240.113 Individual’s duty to furnish data on prior safety conduct as an employee of a different railroad. (a) Except for persons covered by § 240.109(h), each person seeking certification or recertification under this part shall, within 366 days preceding the date of the railroad’s decision on certification or recertification: (1) Request, in writing, that the chief operating officer or other appropriate person of the former employing railroad provide a copy of that railroad’s available information concerning his or her service record pertaining to compliance or non-compliance with §§ 240.111, 240.117, and 240.119 to the railroad that is considering such certification or recertification; and * * * * * ■ 12. Section 240.115 is revised to read as follows: § 240.115 Criteria for consideration of prior safety conduct as a motor vehicle operator. (a) Each railroad shall adopt and comply with a program meeting the requirements of this section. When any person (including, but not limited to, each railroad, railroad officer, supervisor, and employee) violates any requirement of a program that complies with the requirements of this section, that person shall be considered to have violated the requirements of this section. (b) Except as provided in paragraphs (c) through (f) of this section, each railroad, prior to initially certifying or recertifying any person as a locomotive engineer for any type of service, shall determine that the person meets the eligibility requirements of this section involving prior conduct as a motor vehicle operator. (c) A railroad shall initially certify a person as a locomotive engineer for 60 days if the person: (1) Requested the information required by paragraph (h) of this section at least 60 days prior to the date of the decision to certify that person; and (2) Otherwise meets the eligibility requirements provided in § 240.109. (d) A railroad shall recertify a person as a locomotive engineer for 60 days from the expiration date of that person’s certification if the person: (1) Requested the information required by paragraph (h) of this section at least 60 days prior to the date of the decision to recertify that person; and (2) Otherwise meets the eligibility requirements provided in § 240.109. (e) Except as provided in paragraph (f) of this section, if a railroad who certified or recertified a person pursuant to paragraph (c) or (d) of this section PO 00000 Frm 00037 Fmt 4701 Sfmt 4702 20507 does not obtain and evaluate the information required pursuant to paragraph (h) of this section within 60 days of the pertinent dates identified in paragraph (c) or (d) of this section, that person will be ineligible to perform as a locomotive engineer until the information can be evaluated. (f) If a person requests the information required pursuant to paragraph (h) of this section but is unable to obtain it, that person or the railroad certifying or recertifying that person may petition for a waiver of the requirements of paragraph (b) of this section in accordance with the provisions of part 211 of this chapter. A railroad shall certify or recertify a person during the pendency of the waiver request if the person otherwise meets the eligibility requirements provided in § 240.109. (g) When evaluating a person’s motor vehicle driving record, a railroad shall not consider information concerning motor vehicle driving incidents that occurred more than 36 months before the month in which the railroad is making its certification decision or at a time other than that specifically provided for in § 240.111, § 240.117, § 240.119, or § 240.205. (h) A railroad shall only consider information concerning the following types of motor vehicle incidents: (1) A conviction for, or completed state action to cancel, revoke, suspend, or deny a motor vehicle driver’s license for, operating a motor vehicle while under the influence of or impaired by alcohol or a controlled substance; or (2) A conviction for, or completed state action to cancel, revoke, suspend, or deny a motor vehicle driver’s license for, refusal to undergo such testing as is required by State or foreign law when a law enforcement official seeks to determine whether a person is operating a vehicle while under the influence of alcohol or a controlled substance. (i) If such an incident is identified, (1) The railroad shall provide the data to the railroad’s DAC, together with any information concerning the person’s railroad service record, and shall refer the person for evaluation to determine if the person has an active substance abuse disorder; (2) The person shall cooperate in the evaluation and shall provide any requested records of prior counseling or treatment for review exclusively by the DAC in the context of such evaluation; and (3) If the person is evaluated as not currently affected by an active substance abuse disorder, the subject data shall not be considered further with respect to certification. However, the railroad shall, on recommendation of the DAC, E:\FR\FM\09MYP2.SGM 09MYP2 20508 Federal Register / Vol. 84, No. 90 / Thursday, May 9, 2019 / Proposed Rules condition certification upon participation in any needed aftercare and/or follow-up testing for alcohol or drugs deemed necessary by the DAC consistent with the technical standards specified in § 240.119(d)(3) of this part. (4) If the person is evaluated as currently affected by an active substance abuse disorder, the provisions of § 240.119(b) will apply. (5) If the person fails to comply with the requirements of paragraph (i)(2) of this section, the person shall be ineligible to perform as a locomotive engineer until such time as the person complies with the requirements. ■ 13. Section 240.117 is amended by: ■ a. Revising paragraphs (a), (c)(1) and (3), and (e)(5) and (6); ■ b. Adding paragraph (f)(4); ■ c. Revising paragraphs (g)(3)(i) and (ii); ■ d. Redesignating paragraph (h) as paragraph (i); and ■ e. Adding new paragraph (h). The revisions and additions read as follows: jbell on DSK3GLQ082PROD with PROPOSALS2 § 240.117 Criteria for consideration of operating rules compliance data. (a) Each railroad shall adopt and comply with a program which meets the requirements of this section. When any person including, but not limited to, each railroad, railroad officer, supervisor, and employee violates any requirement of a program that complies with the requirements of this section, that person shall be considered to have violated the requirements of this section. * * * * * (c)(1) A certified locomotive engineer who has demonstrated a failure to comply with railroad rules and practices described in paragraph (e) of this section shall have his or her certification revoked. * * * * * (3) A certified locomotive engineer who is called by a railroad to perform the duty of a train crew member other than that of locomotive engineer or conductor shall not have his or her certification revoked based on actions taken or not taken while performing that duty. * * * * * (e) * * * (5) Failure to comply with prohibitions against tampering with locomotive mounted safety devices, or knowingly operating or permitting to be operated a train with an unauthorized disabled safety device in the controlling locomotive. (See 49 CFR part 218, subpart D and appendix C to part 218); or VerDate Sep<11>2014 19:51 May 08, 2019 Jkt 247001 (6) Incidents of noncompliance with § 219.101 of this chapter; however such incidents shall be considered as a violation only for the purposes of paragraphs (g)(2) and (3) of this section. (f) * * * (4) A railroad shall not be permitted to deny or revoke an employee’s certification based upon additional conditions or operational restrictions imposed pursuant to § 240.107(d). (g) * * * (3) * * * (i) In the case of a single incident involving violation of one or more of the operating rules or practices described in paragraphs (e)(1) through (e)(5) of this section, the person shall have his or her certificate revoked for a period of 30 calendar days. (ii) In the case of two separate incidents involving a violation of one or more of the operating rules or practices described in paragraphs (e)(1) through (e)(5) of this section, that occurred within 24 months of each other, the person shall have his or her certificate revoked for a period of 180 calendar days. * * * * * (h) Any or all periods of revocation provided in this section may consist of training. * * * * * ■ 14. Section 240.119 is revised to read as follows: § 240.119 Criteria for consideration of data on substance abuse disorders and alcohol/ drug rules compliance. (a) Program requirement. Each railroad shall adopt and comply with a program which complies with the requirements of this section. When any person, including, but not limited to, each railroad, railroad officer, supervisor, and employee, violates any requirement of a program which complies with the requirements of this section, that person shall be considered to have violated the requirements of this section. (b) Determination requirement. Each railroad, prior to initially certifying or recertifying any person as a locomotive engineer for any type of service, shall determine that the person meets the eligibility requirements of this section. (c) Recordkeeping requirement. In order to make the determination required under paragraph (d) of this section, a railroad shall have on file documents pertinent to that determination, including a written document from its DAC which states his or her professional opinion that the person has been evaluated as not currently affected by a substance abuse disorder or that the person has been PO 00000 Frm 00038 Fmt 4701 Sfmt 4702 evaluated as affected by an active substance abuse disorder. (d) Fitness requirement. (1) A person who has an active substance abuse disorder shall be denied certification or recertification as a locomotive engineer. (2) Except as provided in paragraph (g) of this section, a certified locomotive engineer who is determined to have an active substance abuse disorder shall be ineligible to hold certification. Consistent with other provisions of this part, certification may be reinstated as provided in paragraph (f) of this section. (3) In the case of a current employee of the railroad evaluated as having an active substance abuse disorder (including a person identified under the procedures of § 240.115), the employee may, if otherwise eligible, voluntarily self-refer for substance abuse counseling or treatment under the policy required by § 219.1001(b)(1) of this chapter; and the railroad shall then treat the substance abuse evaluation as confidential except with respect to ineligibility for certification. (e) Prior alcohol/drug conduct; Federal rule compliance. (1) In determining whether a person may be or remain certified as a locomotive engineer, a railroad shall consider conduct described in paragraph (e)(2) of this section that occurred within a period of 60 consecutive months prior to the review. A review of certification shall be initiated promptly upon the occurrence and documentation of any incident of conduct described in this paragraph. (2) A railroad shall consider any violation of § 219.101 or § 219.102 of this chapter and any refusal to provide a breath or body fluid sample for testing under the requirements of part 219 of this chapter when instructed to do so by a railroad representative. (3) A period of ineligibility described in this paragraph shall begin: (i) For a person not currently certified, on the date of the railroad’s written determination that the most recent incident has occurred; or (ii) For a person currently certified, on the date of the railroad’s notification to the person that recertification has been denied or certification has been revoked; and (4) The period of ineligibility described in this section shall be determined in accordance with the following standards: (i) In the case of a single violation of § 219.102 of this chapter, the person shall be ineligible to hold a certificate during evaluation and any required primary treatment as described in paragraph (f) of this section. In the case of two violations of § 219.102 of this E:\FR\FM\09MYP2.SGM 09MYP2 jbell on DSK3GLQ082PROD with PROPOSALS2 Federal Register / Vol. 84, No. 90 / Thursday, May 9, 2019 / Proposed Rules chapter, the person shall be ineligible to hold a certificate for a period of two years. In the case of more than two such violations, the person shall be ineligible to hold a certificate for a period of five years. (ii) In the case of one violation of § 219.102 of this chapter and one violation of § 219.101 of this chapter, the person shall be ineligible to hold a certificate for a period of three years. (iii) In the case of one violation of § 219.101 of this chapter, the person shall be ineligible to hold a certificate for a period of 9 months (unless identification of the violation was through a qualifying referral program described in § 219.1001 of this chapter and the locomotive engineer waives investigation, in which case the certificate shall be deemed suspended during evaluation and any required primary treatment as described in paragraph (f) of this section). In the case of two or more violations of § 219.101 of this chapter, the person shall be ineligible to hold a certificate for a period of five years. (iv) A refusal to provide a breath or body fluid sample for testing under the requirements of part 219 of this chapter when instructed to do so by a railroad representative shall be treated, for purposes of ineligibility under this paragraph, in the same manner as a violation of: (A) Section 219.102 of this chapter, in the case of a refusal to provide a urine specimen for testing; or (B) Section 219.101 of this chapter, in the case of a refusal to provide a breath sample for alcohol testing or a blood specimen for mandatory post-accident toxicological testing. (f) Future eligibility to hold certificate following alcohol/drug violation. The following requirements apply to a person who has been denied certification or who has had certification suspended or revoked as a result of conduct described in paragraph (e) of this section: (1) The person shall not be eligible for grant or reinstatement of the certificate unless and until the person has: (i) Been evaluated by a SAP to determine if the person currently has an active substance abuse disorder; (ii) Successfully completed any program of counseling or treatment determined to be necessary by the SAP prior to return to service; and (iii) In accordance with the testing procedures of subpart H of part 219 of this chapter, has had an alcohol test with an alcohol concentration of less than .02 and presented a urine sample that tested negative for controlled substances assayed. VerDate Sep<11>2014 19:51 May 08, 2019 Jkt 247001 (2) A locomotive engineer placed in service or returned to service under the above-stated conditions shall continue in any program of counseling or treatment deemed necessary by the SAP and shall be subject to a reasonable program of follow-up alcohol and drug testing without prior notice for a period of not more than 60 months following return to service. Follow-up tests shall include not fewer than 6 alcohol tests and 6 drug tests during the first 12 months following return to service. (3) Return-to-service and follow-up alcohol and drug tests shall be performed consistent with the requirements of subpart H of part 219 of this chapter. (4) This paragraph does not create an entitlement to utilize the services of a railroad SAP, to be afforded leave from employment for counseling or treatment, or to employment as a locomotive engineer. Nor does it restrict any discretion available to the railroad to take disciplinary action based on conduct described herein. (g) Confidentiality protected. Nothing in this part shall affect the responsibility of the railroad under § 219.1003(f) of this chapter to treat qualified referrals for substance abuse counseling and treatment as confidential; and the certification status of a locomotive engineer who is successfully assisted under the procedures of that section shall not be adversely affected. However, the railroad shall include in its referral policy, as required pursuant to § 219.1003(j) of this chapter, a provision that, at least with respect to a certified locomotive engineer or a candidate for certification, the policy of confidentiality is waived (to the extent that the railroad shall receive from the SAP or DAC official notice of the substance abuse disorder and shall suspend or revoke the certification, as appropriate) if the person at any time refuses to cooperate in a recommended course of counseling or treatment. ■ 15. Section 240.121 is amended by revising paragraphs (a) and (d) to read as follows: § 240.121 Criteria for vision and hearing acuity data. (a) Each railroad shall adopt and comply with a program which complies with the requirements of this section. When any person, including, but not limited to, each railroad, railroad officer, supervisor, and employee, violates any requirement of a program that complies with the requirements of this section, that person shall be considered to have violated the requirements of this section. * * * * * PO 00000 Frm 00039 Fmt 4701 Sfmt 4702 20509 (d) Except as provided in paragraph (e) of this section, each person shall have a hearing test or audiogram that shows the person’s hearing acuity meets or exceeds the following thresholds: The person does not have an average hearing loss in the better ear greater than 40 decibels with or without use of a hearing aid, at 500 Hz, 1,000 Hz, and 2,000 Hz. The hearing test or audiogram shall meet the requirements of one of the following: (1) As required in 29 CFR 1910.95(h) (OSHA); (2) As required in § 227.111 of this chapter; or (3) Conducted using an audiometer that meets the specifications of and are maintained and used in accordance with ANSI S3.6–2004 ‘‘Specifications for Audiometers.’’ * * * * * ■ 16. Section 240.123 is amended by revising paragraphs (a), (c) introductory text, (c)(4)(ii) and (vi), and (c)(5) introductory text, and adding paragraphs (e) and (f) to read as follows: § 240.123 Training. (a) Each railroad shall adopt and comply with a program that meets the requirements of this section. When any person, including, but not limited to, each railroad, railroad officer, supervisor, and employee, violates any requirement of a program that complies with the requirements of this section, that person shall be considered to have violated the requirements of this section. * * * * * (c) A railroad that elects to train a previously untrained person to be a locomotive engineer shall provide initial training that, at a minimum, complies with the program requirements of § 243.101 of this chapter and: * * * * * (4) * * * (ii) Railroad operating rules and procedures, * * * * * (vi) Compliance with Federal railroad safety laws, regulations, and orders; (5) Is conducted so that the performance skill component shall meet the following conditions: * * * * * (e) A railroad shall designate in its program required by this section the time period in which a locomotive engineer must be absent from a territory or yard, before requalification on physical characteristics is required. (f) A railroad’s program shall include the procedures used to qualify or E:\FR\FM\09MYP2.SGM 09MYP2 20510 Federal Register / Vol. 84, No. 90 / Thursday, May 9, 2019 / Proposed Rules requalify a person on the physical characteristics. ■ 17. Section 240.125 is amended by revising the section heading and paragraphs (a) and (c)(4)(v) and adding paragraphs (e), (f), and (g) to read as follows: § 240.125 Knowledge testing. (a) Each railroad shall adopt and comply with a program that meets the requirements of this section. When any person, including, but not limited to, each railroad, railroad officer, supervisor, and employee, violates any requirement of a program that complies with the requirements of this section, that person shall be considered to have violated the requirements of this section. * * * * * (c) * * * (4) * * * (v) Compliance with Federal railroad safety laws, regulations, and orders; * * * * * (e) For purposes of paragraph (c) of this section, the railroad must provide the person(s) being tested with an opportunity to consult with a supervisory employee, who possesses territorial qualifications for the territory, to explain a question. (f) The documentation shall indicate whether the person passed or failed the test. (g) If a person fails to pass the test, no railroad shall permit or require that person to function as a locomotive engineer prior to that person’s achieving a passing score during a reexamination of the person’s knowledge. ■ 18. Section 240.127 is amended by revising paragraph (a) to read as follows: jbell on DSK3GLQ082PROD with PROPOSALS2 § 240.127 Criteria for examining skill performance. (a) Each railroad shall adopt and comply with a program which complies with the requirements of this section. When any person, including, but not limited to, each railroad, railroad officer, supervisor, and employee, violates any requirement of a program that complies with the requirements of this section, that person shall be considered to have violated the requirements of this section. * * * * * ■ 19. Section 240.129 is amended by revising paragraphs (a), (b), (c) introductory text, (c)(2), (d) introductory text, (e) introductory text, and (e)(1) and adding paragraph (h) to read as follows: § 240.129 Criteria for monitoring operational performance of certified engineers. (a) Each railroad shall adopt and comply with a program which complies VerDate Sep<11>2014 19:51 May 08, 2019 Jkt 247001 with the requirements of this section. When any person, including, but not limited to, each railroad, railroad officer, supervisor, and employee, violates any requirement of a program which complies with the requirements of this section, that person shall be considered to have violated the requirements of this section. (b) Each railroad shall have a program to monitor the operational performance of those it has determined as qualified as a locomotive engineer in any class of service. The program shall include procedures to address the testing of certified engineers who are not given both an operational monitoring observation and an unannounced compliance test in a calendar year pursuant to paragraph (h) of this section. At a minimum, such procedures shall include the following: (1) A requirement that an operational monitoring observation and an unannounced compliance test must be conducted within 30 days of a return to service as a locomotive engineer; and (2) The railroad must retain a written record indicating the date that the engineer stopped performing service that requires certification pursuant to this part, the date that the engineer returned to performing service that requires certification pursuant to this part, and the dates that the operational monitoring observation and the unannounced compliance test were performed. (c) The procedures for the operational monitoring observation shall: * * * * * (2) Be designed so that each engineer shall be monitored each calendar year by a Designated Supervisor of Locomotive Engineers, who does not need to be qualified on the physical characteristics of the territory over which the operational monitoring observation will be conducted; * * * * * (d) The operational monitoring observation procedures may be designed so that the locomotive engineer being monitored either: * * * * * (e) The unannounced compliance test program shall: (1) Be designed so that, except for as provided in paragraph (h) of this section, each locomotive engineer shall be given at least one unannounced compliance test each calendar year; * * * * * (h) A certified engineer who is not performing a service that requires certification pursuant to this part need not be given an unannounced compliance test or operational PO 00000 Frm 00040 Fmt 4701 Sfmt 4702 monitoring observation. However, when the certified engineer returns to a service that requires certification pursuant to this part, that certified engineer must be tested pursuant to this section and § 240.303 within 30 days of his or her return. ■ 20. Section 240.205 is revised to read as follows: § 240.205 Procedures for determining eligibility based on prior safety conduct. (a) Each railroad, prior to initially certifying or recertifying any person as an engineer for any class of service other than student, shall determine that the person meets the eligibility requirements of § 240.115 involving prior conduct as a motor vehicle operator, § 240.117 involving prior conduct as a railroad worker, and § 240.119 involving substance abuse disorders and alcohol/drug rules compliance. (b) In order to make the determination required under paragraph (a) of this section, a railroad shall have on file documents pertinent to the determinations referred to in paragraph (a) of this section, including a written document from its DAC either reflecting his or her professional opinion that the person has been evaluated as not currently affected by a substance abuse disorder or that the person has been evaluated as affected by an active substance abuse disorder and is ineligible for certification. ■ 21. Section 240.207 is amended by revising paragraphs (b)(2) introductory text and (b)(2)(i) to read as follows: § 240.207 Procedures for making the determination on vision and hearing acuity. * * * * * (b) * * * (2) A written document from its medical examiner documenting his or her professional opinion that the person does not meet one or both acuity standards and stating the basis for his or her determination that: (i) The person can nevertheless be certified under certain conditions; or * * * * * ■ 22. Section 240.209 is amended by revising paragraphs (b) and (c) to read as follows: § 240.209 Procedures for making the determination on knowledge. * * * * * (b) In order to make the determination required by paragraph (a) of this section, a railroad shall have written documentation showing that the person either: (1) Exhibited his or her knowledge by achieving a passing grade in testing that complies with this part; or E:\FR\FM\09MYP2.SGM 09MYP2 Federal Register / Vol. 84, No. 90 / Thursday, May 9, 2019 / Proposed Rules (2) Did not achieve a passing grade in such testing. (c) If a person fails to achieve a passing score under the testing procedures required by this part, no railroad shall permit or require that person to operate a locomotive as a locomotive or train service engineer prior to that person’s achieving a passing score during a reexamination of his or her knowledge. ■ 23. Section 240.211 is amended by revising paragraph (b) to read as follows: § 240.211 Procedures for making the determination on performance skills. * * * * * (b) In order to make this determination, a railroad shall have written documentation showing the person either: (1) Exhibited his or her knowledge by achieving a passing grade in testing that complies with this part; or (2) Did not achieve a passing grade in such testing. * * * * * ■ 24. Section 240.215 is amended by revising paragraph (e)(2), republishing paragraph (j) introductory text, revising paragraphs (j)(1) through (3), and adding paragraphs (j)(4) through (6) to read as follows: § 240.215 Retaining information supporting determinations. jbell on DSK3GLQ082PROD with PROPOSALS2 * * * * * (e) * * * (2) If a railroad relies on the use of a locomotive operations simulator to conduct the performance skills testing required under this part, the relevant data from the railroad’s records concerning the person’s success or failure on the performance skills test(s) that documents the relevant operating facts on which the determination was based including the observations and evaluation of the designated supervisor of locomotive engineers; and * * * * * (j) Nothing in this section precludes a railroad from maintaining the information required to be retained under this section in an electronic format provided that: (1) The railroad maintains an information technology security program adequate to ensure the integrity of the electronic data storage system, including the prevention of unauthorized access to the program logic or individual records; (2) The program and data storage system must be protected by a security system that utilizes an employee identification number and password, or a comparable method, to establish VerDate Sep<11>2014 19:51 May 08, 2019 Jkt 247001 appropriate levels of program access meeting all of the following standards: (i) No two individuals have the same electronic identity; and (ii) A record cannot be deleted or altered by any individual after the record is certified by the employee who created the record; (3) Any amendment to a record is either: (i) Electronically stored apart from the record that it amends; or (ii) Electronically attached to the record as information without changing the original record; (4) Each amendment to a record uniquely identifies the person making the amendment; (5) The system employed by the railroad for data storage permits reasonable access and retrieval of the information in usable format when requested to furnish data by FRA representatives; and (6) Information retrieved from the system can be easily produced in a printed format which can be readily provided to FRA representatives in a timely manner 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. ■ 25. Section 240.217 is amended by republishing paragraph (a) introductory text, revising paragraphs (a)(1) through (4), adding paragraph (a)(5), and revising paragraph (d) to read as follows: § 240.217 Time limitations for making determinations. (a) A railroad shall not certify or recertify a person as a qualified locomotive engineer in any class of train or engine service, if the railroad is making: (1) A determination concerning eligibility and the eligibility data being relied on was furnished more than 366 days before the date of the railroad’s certification decision; (2) A determination concerning visual and hearing acuity and the medical examination being relied on was conducted more than 450 days before the date of the railroad’s recertification decision; (3) A determination concerning demonstrated knowledge and the knowledge examination being relied on was conducted more than 366 days before the date of the railroad’s certification decision; (4) A determination concerning demonstrated knowledge and the knowledge examination being relied on was conducted more than 24 months before the date of the railroad’s PO 00000 Frm 00041 Fmt 4701 Sfmt 4702 20511 certification decision if the railroad administers a knowledge testing program pursuant to § 240.125 at intervals that do not exceed 24 months; or (5) A determination concerning demonstrated performance skills and the performance skill testing being relied on was conducted more than 366 days before the date of the railroad’s certification decision. * * * * * (d) A railroad shall issue each person designated as a certified locomotive engineer a certificate that complies with § 240.223 no later than 30 days from the date of its decision to certify or recertify that person. ■ 26. Section 240.219 is amended by revising paragraphs (a) and (c) and adding paragraph (d) to read as follows: § 240.219 Denial of certification. (a) A railroad shall notify a candidate for certification or recertification of information known to the railroad that forms the basis for denying the person certification and provide the person a reasonable opportunity to explain or rebut that adverse information in writing prior to denying certification. A railroad shall provide the locomotive engineer candidate with any written documents or records, including written statements, related to failure to meet a requirement of this part that support its pending denial decision. * * * * * (c) If a railroad denies a person certification or recertification, it shall notify the person of the adverse decision and explain, in writing, the basis for its denial decision. The basis for a railroad’s denial decision shall address any explanation or rebuttal information that the locomotive engineer candidate may have provided in writing pursuant to paragraph (a) of this section. The document explaining the basis for the denial shall be served on the person within 10 days after the railroad’s decision and shall give the date of the decision. (d) A railroad shall not deny the person’s certification for failing to comply with a railroad operating rule or practice that constitutes a violation under § 240.117(e)(1) through (5) of this part if sufficient evidence exists to establish that an intervening cause prevented or materially impaired the engineer’s ability to comply with that railroad operating rule or practice. ■ 27. Section 240.221 is amended by revising paragraphs (d), (e), and (f) to read as follows: E:\FR\FM\09MYP2.SGM 09MYP2 20512 § 240.221 persons. Federal Register / Vol. 84, No. 90 / Thursday, May 9, 2019 / Proposed Rules Identification of qualified jbell on DSK3GLQ082PROD with PROPOSALS2 * * * * * (d) The listing required by paragraphs (a), (b), and (c) of this section shall: (1) Be updated at least annually; (2) Be available at the divisional or regional headquarters of the railroad; and (3) Be available for inspection or copying by FRA during regular business hours. (e) It shall be unlawful for any railroad to knowingly or any individual to willfully: (1) Make, cause to be made, or participate in the making of a false entry on the list required by this section; or (2) Otherwise falsify such list through material misstatement, omission, or mutilation. (f) Nothing in this section precludes a railroad from maintaining the list required under this section in an electronic format provided that: (1) The railroad maintains an information technology security program adequate to ensure the integrity of the electronic data storage system, including the prevention of unauthorized access to the program logic or the list; (2) The program and data storage system must be protected by a security system that utilizes an employee identification number and password, or a comparable method, to establish appropriate levels of program access meeting all of the following standards: (i) No two individuals have the same electronic identity; and (ii) An entry on the list cannot be deleted or altered by any individual after the entry is certified by the employee who created the entry; (3) Any amendment to the list is either: (i) Electronically stored apart from the entry on the list that it amends; or (ii) Electronically attached to the entry on the list as information without changing the original entry; (4) Each amendment to the list uniquely identifies the person making the amendment; (5) The system employed by the railroad for data storage permits reasonable access and retrieval of the information in usable format when requested to furnish data by FRA representatives; and (6) Information retrieved from the system can be easily produced in a printed format which can be readily provided to FRA representatives in a timely manner 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. VerDate Sep<11>2014 19:51 May 08, 2019 Jkt 247001 28. Section 240.223 is amended by revising paragraph (a)(3) and (5) to read as follows: ■ § 240.223 Criteria for the certificate. (a) * * * (3) Identify the person to whom it is being issued (including the person’s name, employee identification number, the year of birth, and either a physical description or photograph of the person); * * * * * (5) Show the effective date of each certification held; * * * * * ■ 29. Section 240.225 is revised to read as follows: § 240.225 Reliance on qualification determinations made by other railroads. (a) A railroad that is considering certification of a person as a qualified engineer may rely on determinations made by another railroad concerning that person’s qualifications. The railroad’s certification program shall address how the railroad will administer the training of previously uncertified engineers with extensive operating experience or previously certified engineers who have had their certification expire. If a railroad’s certification program fails to specify how it will train a previously certified engineer hired from another railroad, then the railroad shall require the newly hired engineer to take the hiring railroad’s entire training program. (b) A railroad relying on another’s certification shall determine that: (1) The prior certification is still valid in accordance with the provisions of §§ 240.201, 240.217, and 240.307; (2) The prior certification was for the same classification of locomotive or train service as the certification being issued under this section; (3) The person has received training on and visually observed the physical characteristics of the new territory in accordance with § 240.123; (4) The person has demonstrated the necessary knowledge concerning the railroad’s operating rules in accordance with § 240.125; (5) The person has demonstrated the necessary performance skills concerning the railroad’s operating rules in accordance with § 240.127. Subpart D—Administration of the Certification Program 30. Revise the heading of Subpart D to read as set forth above. ■ 31. Section 240.301 is revised to read as follows: ■ PO 00000 Frm 00042 Fmt 4701 Sfmt 4702 § 240.301 Replacement of certificates. (a) A railroad shall have a system for the prompt replacement of lost, stolen or mutilated certificates at no cost to engineers. That system shall be reasonably accessible to certified locomotive engineers in need of a replacement certificate or temporary replacement certificate. (b) At a minimum, a temporary replacement certificate must identify the person to whom it is being issued (including the person’s name, identification number and year of birth); indicate the date of issuance; and be authorized by a supervisor of locomotive engineers or other individual designated in accordance with § 240.223(b). Temporary replacement certificates may be delivered electronically and are valid for a period no greater than 30 days. ■ 32. Section 240.303 is amended by revising paragraphs (b) and (c) to read as follows: § 240.303 Operational monitoring requirements. * * * * * (b) The program shall be conducted so that each locomotive engineer, except as provided in § 240.129(h), shall be given at least one operational monitoring observation by a qualified supervisor of locomotive engineers in each calendar year. (c) The program shall be conducted so that each locomotive engineer, except for as provided in § 240.129(h), shall be given at least one unannounced, compliance test each calendar year. * * * * * ■ 33. Section 240.305 is amended by republishing paragraph (b) introductory text, revising paragraphs (b)(2) introductory text and (b)(2)(ii), redesignating paragraph (b)(2)(iii) as paragraph (b)(2)(iv), and adding new paragraph (b)(2)(iii) to read as follows: § 240.305 Prohibited conduct. * * * * * (b) Each locomotive engineer who has received a certificate required under this part shall: * * * * * (2) Display that certificate upon the receipt of a request to do so from: * * * * * (ii) A State inspector authorized under part 212 of this chapter, (iii) An officer of the issuing railroad, or * * * * * ■ 34. Section 240.307 is amended by: ■ a. Revising paragraph (a); ■ b. Republishing paragraphs (b); ■ c. Revising paragraphs (b)(1) and (4); E:\FR\FM\09MYP2.SGM 09MYP2 Federal Register / Vol. 84, No. 90 / Thursday, May 9, 2019 / Proposed Rules d. Redesignating paragraph (b)(5) as paragraph (b)(6); ■ e. Adding a new paragraph (b)(5) and paragraph (b)(7); ■ f. Revising paragraphs (c)(2) and (9); ■ g. Republishing paragraph (c)(11); ■ h. Revising paragraphs (c)(11)(i) and (ii); ■ i. Adding paragraph (c)(11)(iii) ■ i. Revising paragraph (g); ■ j. Republishing paragraph (i) introductory text; ■ k. Revising paragraphs (i)(1) and (2) and (j)(2); The revisions and additions read as follows: ■ jbell on DSK3GLQ082PROD with PROPOSALS2 § 240.307 Revocation of certification. (a) Except as provided for in § 240.119(e), a railroad that certifies or recertifies a person as a qualified locomotive engineer and, during the period that certification is valid, acquires reliable information regarding violation(s) of § 240.117(e) or § 240.119(c) of this chapter shall revoke the person’s engineer certificate. (b) Pending a revocation determination under this section, the railroad shall: (1) Upon receipt of reliable information regarding violation(s) of § 240.117(e) or § 240.119(c) of this chapter, immediately suspend the person’s certificate; * * * * * (4) No later than the convening of the hearing and notwithstanding the terms of an applicable collective bargaining agreement, the railroad convening the hearing shall provide the person with a copy of the written information and list of witnesses the railroad will present at the hearing. If requested, a recess to the start of the hearing will be granted if that information is not provided until just prior to the convening of the hearing. If the information was provided through statements of an employee of the convening railroad, the railroad will make that employee available for examination during the hearing required by paragraph (b)(3) of this section. Examination may be telephonic where it is impractical to provide the witness at the hearing. (5) Determine, on the record of the hearing, whether the person no longer meets the certification requirements of this part stating explicitly the basis for the conclusion reached; * * * * * (7) Retain the record of the hearing for 3 years after the date the decision is rendered. (c) * * * (2) The hearing shall be conducted by a presiding officer, who can be any VerDate Sep<11>2014 19:51 May 08, 2019 Jkt 247001 proficient person authorized by the railroad other than the investigating officer. * * * * * (9) The record in the proceeding shall be closed at the conclusion of the hearing unless the presiding officer allows additional time for the submission of information. In such instances, the record shall be left open for such time as the presiding officer grants for that purpose. * * * * * (11) The decision shall: (i) Contain the findings of fact as well as the basis therefor, concerning all material issues of fact presented on the record and citations to all applicable railroad rules and practices; (ii) State whether the railroad official found that a revocable event occurred and the applicable period of revocation with a citation to § 240.117 or § 240.119; and (iii) Be served on the employee and the employee’s representative, if any, with the railroad to retain proof of that service. * * * * * (g) A railroad that has relied on the certification by another railroad under the provisions of § 240.227 or § 240.229, shall revoke its certification if, during the period that certification is valid, the railroad acquires information that convinces it that another railroad has revoked its certification in accordance with the provisions of this section. The requirement to provide a hearing under this section is satisfied when any single railroad holds a hearing and no additional hearing is required prior to a revocation by more than one railroad arising from the same facts. * * * * * (i) A railroad: (1) Shall not revoke the person’s certification as provided for in paragraph (a) of this section if sufficient evidence exists to establish that an intervening cause prevented or materially impaired the locomotive engineer’s ability to comply with the railroad operating rule or practice that constitutes a violation under § 240.117(e)(1) through (5) of this part; or (2) May decide not to revoke the person’s certification as provided for in paragraph (a) of this section if sufficient evidence exists to establish that the violation of § 240.117(e)(1) through (5) of this part was of a minimal nature and had no direct or potential effect on rail safety. (j) * * * PO 00000 Frm 00043 Fmt 4701 Sfmt 4702 20513 (2) Prior to the convening of the hearing provided for in this section. * * * * * ■ 35. Section 240.308 is added to read as follows: § 240.308 Multiple certifications. (a) A person may hold both conductor and locomotive engineer certification. (b) A railroad that issues multiple certificates to a person, shall, to the extent possible, coordinate the expiration date of those certificates. (c) Except as provided in paragraph (d) of this section, a locomotive engineer, including a remote control operator, who is operating a locomotive without an assigned certified conductor must either be: (1) Certified as both a locomotive engineer under this part and as a conductor under part 242 of this chapter; or (2) Accompanied by a person certified as a conductor under part 242 of this chapter but who will be attached to the crew in a manner similar to that of an independent assignment. (d) Passenger railroad operations: If the conductor is removed from a train for a medical, police or other such emergency after the train departs from an initial terminal, the train may proceed to the first location where the conductor can be replaced without incurring undue delay without the locomotive engineer being a certified conductor. However, an assistant conductor or brakeman must be on the train and the locomotive engineer must be informed that there is no certified conductor on the train prior to any movement. (e) During the duration of any certification interval, a person who holds a current conductor and/or locomotive engineer certificate from more than one railroad shall immediately notify the other certifying railroad(s) if he or she is denied conductor or locomotive engineer recertification under § 240.219 or § 242.401 of this chapter or has his or her conductor or locomotive engineer certification revoked under § 240.307 or § 242.407 of this chapter by another railroad. (f) A person who holds a current conductor and locomotive engineer certificate and who has had his or her conductor certification revoked under § 242.407 of this chapter for a violation of § 242.403(e)(1) through (5) or (e)(12) may not work as a locomotive engineer during the period of revocation. However, a person who holds a current conductor and locomotive engineer certificate and who has had his or her conductor certification revoked under E:\FR\FM\09MYP2.SGM 09MYP2 jbell on DSK3GLQ082PROD with PROPOSALS2 20514 Federal Register / Vol. 84, No. 90 / Thursday, May 9, 2019 / Proposed Rules § 242.407 of this chapter for a violation of § 242.403(e)(6) through (11) may work as a locomotive engineer during the period of revocation. (1) For purposes of determining the period for which a person may not work as a certified locomotive engineer due to a revocation of his or her conductor certification, only violations of § 242.403(e)(1) through (5) or (e)(12) will be counted. Thus, a person who holds a current conductor and locomotive engineer certificate and who has had his or her conductor certification revoked three times in less than 36 months for two violations of § 242.403(e)(6) and one violation of § 242.403(e)(1) would have his or her conductor certificate revoked for 1 year, but would not be permitted to work as a locomotive engineer for one month (i.e., the period of revocation for one violation of § 242.403(e)(1)). (g) A person who holds a current conductor and locomotive engineer certificate and who has had his or her locomotive engineer certification revoked under § 240.307 of this chapter may not work as a conductor during the period of revocation. (h) A person who has had his or her locomotive engineer certification revoked under § 240.307 of this chapter may not obtain a conductor certificate pursuant to part 242 of this chapter during the period of revocation. (i) A person who had his or her conductor certification revoked under § 242.407 of this chapter for violations of § 242.403(e)(1) through (5) or (e)(12) may not obtain a locomotive engineer certificate pursuant to part 240 of this chapter during the period of revocation. (j) A railroad that denies a person conductor certification or recertification under § 242.401 of this chapter shall not, solely on the basis of that denial, deny or revoke that person’s locomotive engineer certification or recertification. (k) A railroad that denies a person locomotive engineer certification or recertification under § 240.219 shall not, solely on the basis of that denial, deny or revoke that person’s conductor certification or recertification. (l) In lieu of issuing multiple certificates, a railroad may issue one certificate to a person who is certified as a conductor and a locomotive engineer. The certificate must comply with § 240.223 and § 242.207 of this chapter. (m) A person who holds a current conductor and locomotive engineer certification and who is involved in a revocable event under § 242.407 or § 240.307 of this chapter may only have one certificate revoked for that event. The determination by the railroad as to which certificate to revoke for the revocable event must be based on the VerDate Sep<11>2014 19:51 May 08, 2019 Jkt 247001 work the person was performing at the time the event occurred. ■ 36. Section 240.309 is amended by revising paragraphs (b)(4), (e)(1) and (2), (e)(8) and (9), and (f) through (h) and adding paragraph (i) to read as follows: § 240.309 Railroad oversight responsibilities. * * * * * (b) * * * (4) If the railroad conducts joint operations with another railroad, the number of locomotive engineers employed by the other railroad(s) that: Were involved in events described in this paragraph and were determined to be certified and to have possessed the necessary territorial qualifications for joint operations purposes by the controlling railroad. * * * * * (e) * * * (1) Incidents involving noncompliance with part 218 of this chapter; (2) Incidents involving noncompliance with part 219 of this chapter; * * * * * (8) Incidents involving the failure to comply with prohibitions against tampering with locomotive mounted safety devices, or knowingly operating or permitting to be operated a train with an unauthorized or disabled safety device in the controlling locomotive; and (9) Incidents involving noncompliance with the railroad’s operating practices (including train handling procedures) resulting in excessive in-train force levels. (f) For reporting purposes, an instance of poor safety conduct involving a person who holds both conductor certification pursuant to part 242 of this chapter and locomotive engineer certification pursuant to this part need only be reported once (either under 49 CFR 242.215 of this chapter or this section). The determination as to where to report the instance of poor safety conduct should be based on the work the person was performing at the time the conduct occurred. (g) For reporting purposes, each category of detected poor safety conduct identified in paragraph (b) of this section shall be capable of being annotated to reflect the following: (1) The nature of the remedial action taken and the number of events subdivided so as to reflect which of the following actions was selected: (i) Imposition of informal discipline; (ii) Imposition of formal discipline; (iii) Provision of informal training; or (iv) Provision of formal training; and PO 00000 Frm 00044 Fmt 4701 Sfmt 4702 (2) If the nature of the remedial action taken was formal discipline, the number of events further subdivided so as to reflect which of the following punishments was imposed by the railroad: (i) The person was withheld from service; (ii) The person was dismissed from employment; or (iii) The person was issued demerits. If more than one form of punishment was imposed only that punishment deemed the most severe shall be shown. (h) For reporting purposes, each category of detected poor safety conduct identified in paragraph (b) of this section which resulted in the imposition of formal or informal discipline shall be annotated to reflect the following: (1) The number of instances in which the railroad’s internal appeals process reduced the punishment initially imposed at the conclusion of its hearing; and (2) The number of instances in which the punishment imposed by the railroad was reduced by any of the following entities: The National Railroad Adjustment Board, a Public Law Board, a Special Board of Adjustment or other body for the resolution of disputes duly constituted under the provisions of the Railway Labor Act. (i) For reporting purposes each category of detected poor safety conduct identified in paragraph (b) of this section shall be capable of being annotated to reflect the following: (1) The total number of incidents in that category; (2) The number of incidents within that total which reflect incidents requiring an FRA accident/incident report under part 225 of this chapter; and (3) The number of incidents within that total which were detected as a result of a scheduled operational monitoring effort. ■ 37. Section 240.401 is revised to read as follows: § 240.401 Review board established. (a) Any person who has been denied certification, denied recertification, or has had his or her certification revoked and believes that a railroad incorrectly determined that he or she failed to meet the certification requirements of this regulation when making the decision to deny or revoke certification, may petition the Federal Railroad Administrator to review the railroad’s decision. (b) The Administrator has delegated initial responsibility for adjudicating such disputes to the Operating Crew Review Board. E:\FR\FM\09MYP2.SGM 09MYP2 Federal Register / Vol. 84, No. 90 / Thursday, May 9, 2019 / Proposed Rules (c) The Operating Crew Review Board shall be composed of employees of the Federal Railroad Administration selected by the Administrator. ■ 38. Section 240.403 is amended by revising paragraph (b)(2), adding paragraph (b)(7), revising paragraphs (c) and (d), and removing paragraph (e). The revisions and addition read as follows: § 240.403 Petition requirements. jbell on DSK3GLQ082PROD with PROPOSALS2 * * * * * (b) * * * (2) Be filed with the Docket Clerk, U.S. Department of Transportation, Docket Operations (M–30), West Building Ground Floor, Room W12–140, 1200 New Jersey Avenue SE, Washington, DC 20590. The form of such request may be in written or electronic form consistent with the standards and requirements established by the Federal Docket Management System and posted on its website at https://www.regulations.gov. * * * * * (7) Be supplemented, if requested by the Operating Crew Review Board, with a copy of the information under 49 CFR 40.329 that laboratories, medical review officers, and other service agents are required to release to employees. The petitioner must provide written explanation in response to an Operating Crew Review Board request if written documents that should be reasonably available to the petitioner are not supplied. (c) A petition seeking review of a railroad’s decision to deny certification or recertification or revoke certification in accordance with the procedures required by § 240.307 filed with FRA more than 120 days after the date the railroad’s denial or revocation decision was served on the petitioner will be denied as untimely except that the Operating Crew Review Board for cause shown may extend the petition filing period at any time in its discretion: (1) Provided the request for extension is filed before the expiration of the period provided in this paragraph; or (2) Provided that the failure to timely file was the result of excusable neglect. (d) A party aggrieved by a Board decision to deny a petition as untimely or not in compliance with the requirements of this section may file an appeal with the Administrator in accordance with § 240.411. ■ 39. Section 240.405 is revised to read as follows: § 240.405 Processing certification review petitions. (a) Each petition shall be acknowledged in writing by FRA. The VerDate Sep<11>2014 19:51 May 08, 2019 Jkt 247001 acknowledgment shall contain the docket number assigned to the petition and a statement of FRA’s intention that the Board will attempt to render a decision on this petition within 180 days from the date that the railroad’s response is received or from the date upon which the railroad’s response period has lapsed pursuant to paragraph (c) of this section. (b) Upon receipt of the petition, FRA will notify the railroad that it has received the petition and where the petition may be accessed. (c) Within 60 days from the date of the notification provided in paragraph (b) of this section, the railroad may submit to FRA any information that the railroad considers pertinent to the petition. Late filings will only be considered to the extent practicable. (d) A railroad that submits such information shall: (1) Identify the petitioner by name and the docket number of the review proceeding and provide the railroad’s email address (if available); (2) Serve a copy of the information being submitted to FRA to the petitioner and petitioner’s representative, if any; and (3) File the information with the Docket Clerk, U.S. Department of Transportation, Docket Operations (M– 30), West Building Ground Floor, Room W12–140, 1200 New Jersey Avenue SE, Washington, DC 20590. The form of such information may be in written or electronic form consistent with the standards and requirements established by the Federal Docket Management System and posted on its website at https://www.regulations.gov. (e) Each petition will then be referred to the Operating Crew Review Board for a decision. (f) Based on the record, the Board shall have the authority to grant, deny, dismiss, or remand the petition. (g) If the Board finds that there is insufficient basis for granting or denying the petition, the Board shall issue an order affording the parties an opportunity to provide additional information or argument consistent with its findings. (h) Standard of review for factual issues: When considering factual issues, the Board will determine whether there is substantial evidence to support the railroad’s decision, and a negative finding is grounds for granting the petition. (i) Standard of review for procedural issues: When considering procedural issues, the Board will determine whether substantial harm was caused the petitioner by virtue of the failure to adhere to the dictated procedures for PO 00000 Frm 00045 Fmt 4701 Sfmt 4702 20515 making the railroad’s decision. A finding of substantial harm is grounds for reversing the railroad’s decision. To establish grounds upon which the Board may grant relief, Petitioner must show: (1) That procedural error occurred, and (2) The procedural error caused substantial harm. (j) Standard of review for legal issues: Pursuant to its reviewing role, the Board will consider whether the railroad’s legal interpretations are correct based on a de novo review. (k) The Board will determine whether the denial or revocation of certification or recertification was improper under this regulation (i.e., based on an incorrect determination that the person failed to meet the certification requirements of this regulation) and grant or deny the petition accordingly. The Board will not otherwise consider the propriety of a railroad’s decision, i.e., it will not consider whether the railroad properly applied its own more stringent requirements. (l) The Board’s written decision shall be served on the petitioner, including the petitioner’s representative, if any, and the railroad. ■ 40. Section 240.407 is amended by revising paragraphs (a) and (c), republishing paragraph (d) introductory text, and revising paragraph (d)(1) to read as follows: § 240.407 Request for a hearing. (a) If adversely affected by the Operating Crew Review Board’s decision, either the petitioner before the Board or the railroad involved shall have a right to an administrative proceeding as prescribed by § 240.409. * * * * * (c) If a party fails to request a hearing within the period provided in paragraph (b) of this section, the Operating Crew Review Board’s decision will constitute final agency action. (d) If a party elects to request a hearing, that person shall submit a written request to the Docket Clerk containing the following: (1) The name, address, telephone number, and email address (if available) of the respondent and the requesting party’s designated representative, if any; * * * * * ■ 41. Section 240.409 is amended by revising paragraphs (a), (p), and (q) to read as follows: § 240.409 Hearings. (a) An administrative hearing for a locomotive engineer certification petition shall be conducted by a presiding officer, who can be any person E:\FR\FM\09MYP2.SGM 09MYP2 20516 Federal Register / Vol. 84, No. 90 / Thursday, May 9, 2019 / Proposed Rules authorized by the Administrator, including an administrative law judge. * * * * * (p) The petitioner before the Operating Crew Review Board, the railroad involved in taking the certification action, and FRA shall be parties at the hearing. All parties may participate in the hearing and may appear and be heard on their own behalf or through designated representatives. All parties may offer relevant evidence, including testimony, and may conduct such cross-examination of witnesses as may be required to make a record of the relevant facts. (q) The party requesting the administrative hearing shall be the ‘‘hearing petitioner.’’ The hearing petitioner shall have the burden of proving its case by a preponderance of the evidence. Hence, if the hearing petitioner is the railroad involved in taking the certification action, that railroad will have the burden of proving that its decision to deny certification, deny recertification, or revoke certification was correct. Conversely, if the petitioner before the Operating Crew Review Board is the hearing petitioner, that person will have the burden of proving that the railroad’s decision to deny certification, deny recertification, or revoke certification was incorrect. Between the petitioner before the Operating Crew Review Board and the railroad involved in taking the certification action, the party who is not the hearing petitioner will be a respondent. * * * * * ■ 42. Section 240.411 is amended by revising paragraphs (a) and (f) to read as follows: jbell on DSK3GLQ082PROD with PROPOSALS2 § 240.411 Appeals. (a) Any party aggrieved by the presiding officer’s decision may file an appeal. The appeal must be filed within 35 days of issuance of the decision with the Federal Railroad Administrator, 1200 New Jersey Avenue SE, Washington, DC 20590 and with the Docket Clerk, U.S. Department of Transportation, Docket Operations (M– 30), West Building Ground Floor, Room W12–140, 1200 New Jersey Avenue SE, Washington, DC 20590. A copy of the appeal shall be served on each party. The appeal shall set forth objections to the presiding officer’s decision, supported by reference to applicable laws and regulations and with specific reference to the record. If no appeal is timely filed, the presiding officer’s decision constitutes final agency action. * * * * * VerDate Sep<11>2014 19:51 May 08, 2019 Jkt 247001 (f) An appeal from an Operating Crew Review Board decision pursuant to § 240.403(d) must be filed within 35 days of issuance of the decision with the Federal Railroad Administrator, 1200 New Jersey Avenue SE, Washington, DC 20590 and with the Docket Clerk, U.S. Department of Transportation, Docket Operations (M–30), West Building Ground Floor, Room W12–140, 1200 New Jersey Avenue SE, Washington, DC 20590. A copy of the appeal shall be served on each party. The Administrator may affirm or vacate the Board’s decision, and may remand the petition to the Board for further proceedings. An Administrator’s decision to affirm the Board’s decision constitutes final agency action. ■ 43. Revise Appendix B to part 240 to read as follows: Appendix B to Part 240—Procedures for Submission and Approval of Locomotive Engineer Qualification Programs This appendix establishes procedures for the submission and approval of a railroad’s program concerning the training, testing, and evaluating of persons seeking certification or recertification as a locomotive engineer in accordance with the requirements of this part (see §§ 240.101, 240.103, 240.105, 240.107, 240.123, 240.125, 240.127 and 240.129). It also contains guidance on how FRA will exercise its review and approval responsibilities. Submission by a Railroad As provided for in § 240.101, each railroad must have a program for determining the certification of each person it permits or requires to operate a locomotive. In designing its program a railroad must take into account the trackage and terrain over which it operates, the system(s) for train control that are employed, the operational design characteristics of the track and equipment being operated including train length, train makeup, and train speeds. Each railroad must submit its individual program to FRA for approval as provided for in § 240.103. Each program must be accompanied by a request for approval organized in accordance with this appendix. Requests for approval must contain appropriate references to the relevant portion of the program being discussed. Requests should be submitted in writing on standard sized paper (8–1/2×11) and can be in letter or narrative format. The railroad’s submission shall be sent to the Associate Administrator for Railroad Safety/Chief Safety Officer, FRA. The mailing address for FRA is 1200 New Jersey Avenue SE, Washington, DC 20590. Simultaneous with its filing with the FRA, each railroad must serve a copy of its submission on the president of each labor organization that represents the railroad’s employees subject to this part. Each railroad is authorized to file by electronic means any program submissions required under this part. Prior to any person PO 00000 Frm 00046 Fmt 4701 Sfmt 4702 submitting a railroad’s first program submission electronically, the person shall provide the Associate Administrator with the following information in writing: (1) The name of the railroad; (2) The names of two individuals, including job titles, who will be the railroad’s points of contact and will be the only individuals allowed access to FRA’s secure document submission site; (3) The mailing addresses for the railroad’s points of contact; (4) The railroad’s system or main headquarters address located in the United States; (5) The email addresses for the railroad’s points of contact; and (6) The daytime telephone numbers for the railroad’s points of contact. A request for electronic submission or FRA review of written materials shall be addressed to the Associate Administrator for Railroad Safety/Chief Safety Officer, Federal Railroad Administration, 1200 New Jersey Avenue SE, Washington, DC 20590. Upon receipt of a request for electronic submission that contains the information listed above, FRA will then contact the requestor with instructions for electronically submitting its program. A railroad that electronically submits an initial program or new portions or revisions to an approved program required by this part shall be considered to have provided its consent to receive approval or disapproval notices from FRA by email. FRA may electronically store any materials required by this part regardless of whether the railroad that submits the materials does so by delivering the written materials to the Associate Administrator and opts not to submit the materials electronically. A railroad that opts not to submit the materials required by this part electronically, but provides one or more email addresses in its submission, shall be considered to have provided its consent to receive approval or disapproval notices from FRA by email or mail. Organization of the Submission Each request should be organized to present the required information in the following standardized manner. Each section must begin by giving the name, title, telephone number, and email and mailing addresses of the person to be contacted concerning the matters addressed by that section. If a person is identified in a prior section, it is sufficient to merely repeat the person’s name in a subsequent section. Section 1 of the Submission: General Information and Elections The first section of the request must contain the name of the railroad, the person to be contacted concerning the request (including the person’s name, title, telephone number, and email and mailing addresses) and a statement electing either to accept responsibility for educating previously untrained persons to be qualified locomotive engineers or recertify only engineers previously certified by other railroads. See § 240.103(b). If a railroad elects not to provide initial locomotive engineer training, the railroad is E:\FR\FM\09MYP2.SGM 09MYP2 Federal Register / Vol. 84, No. 90 / Thursday, May 9, 2019 / Proposed Rules obligated to states so in its submission. A railroad that makes this election will be limited to recertifying persons initially certified by another railroad. A railroad that makes this election can rescind it by obtaining FRA approval of a modification of its program. See § 240.103(e). If a railroad elects to accept responsibility for training persons not previously trained to be locomotive engineers, the railroad is obligated to submit information on how such persons will be trained but has no duty to actually conduct such training. A railroad that elects to accept the responsibility for the training of such persons may authorize another railroad or a non-railroad entity to perform the actual training effort. The electing railroad remains responsible for assuring that such other training providers adhere to the training program the railroad submits. This section must also state which class or classes of service the railroad will employ. See § 240.107. jbell on DSK3GLQ082PROD with PROPOSALS2 Section 2 of the Submission: Selection of Supervisors of Locomotive Engineers The second section of the request must contain information concerning the railroad’s procedure for selecting the person or persons it will rely on to evaluate the knowledge, skill, and ability of persons seeking certification or recertification. As provided for in § 240.105, each railroad must have a procedure for selecting supervisors of locomotive engineers which assures that persons so designated can appropriately test and evaluate the knowledge, skill, and ability of individuals seeking certification or recertification. Section 240.105 provides a railroad latitude to select the criteria and evaluation methodology it will rely on to determine which person or persons have the required capacity to perform as a supervisor of locomotive engineers. The railroad must describe in this section how it will use that latitude and evaluate those it designates as supervisors of locomotive engineers so as to comply with the performance standard set forth in § 240.105(b). The railroad must identify, in sufficient detail to permit effective review by FRA, the criteria for evaluation it has selected. For example, if a railroad intends to rely on one or more of the following, a minimum level of prior experience as an engineer, successful completion of a course of study, or successful passage of a standardized testing program, the submission must state which criteria it will employ. Section 3 of the Submission: Training Persons Previously Certified The third section of the request must contain information concerning the railroad’s program for training previously certified locomotive engineers. As provided for in § 240.123(b) each railroad must have a program for the ongoing education of its locomotive engineers to assure that they maintain the necessary knowledge concerning personal safety, operating rules and practices, mechanical condition of equipment, methods of safe train handling (including familiarity with physical VerDate Sep<11>2014 19:51 May 08, 2019 Jkt 247001 characteristics), and relevant Federal safety rules. Section 240.123(b) provides a railroad latitude to select the specific subject matter to be covered, duration of the training, method of presenting the information, and the frequency with which the training will be provided. The railroad must describe in this section how it will use that latitude to assure that its engineers remain knowledgeable concerning the safe discharge of their train operation responsibilities so as to comply with the performance standard set forth in § 240.123(b). This section must contain sufficient detail to permit effective evaluation of the railroad’s training program in terms of the subject matter covered, the frequency and duration of the training sessions, the type of formal training employed (including, but not limited to, classroom, computer-based, correspondence, OJT, simulator, or laboratory training) and which aspects of the program are voluntary or mandatory. Without assistance from automation, safe train handling involves both abstract knowledge about the appropriate use of engine controls and the application of that knowledge to trains of differing composition traversing varying terrain. Time and circumstances have the capacity to diminish both abstract knowledge and the proper application of that knowledge to discrete events. Time and circumstances also have the capacity to alter the value of previously obtained knowledge and the application of that knowledge. In formulating how it will use the discretion being afforded, each railroad must design its program to address both loss of retention of knowledge and changed circumstances, and this section of the submission to FRA must address these matters. For example, locomotive engineers need to have their fundamental knowledge of train operations refreshed periodically. Each railroad needs to advise FRA how that need is satisfied in terms of the interval between attendance at such training, the nature of the training being provided, and methods for conducting the training. A matter of particular concern to FRA is how each railroad acts to ensure that engineers remain knowledgeable about safe train handling procedures if the territory over which a locomotive engineer is authorized to operate is territory from which the engineer has been absent. The railroad must have a plan for the familiarization training that addresses the question of how long a person can be absent before needing more education and, once that threshold is reached, how the person will acquire the needed education. Similarly, the program must address how the railroad responds to changes such as the introduction of new technology, new operating rule books, or significant changes in operations including alteration in the territory engineers are authorized to operate over. Section 4 of the Submission: Testing and Evaluating Persons Previously Certified The fourth section of the request must contain information concerning the railroad’s program for testing and evaluating previously certified locomotive engineers. As provided for in § 240.125 and § 240.127, each railroad PO 00000 Frm 00047 Fmt 4701 Sfmt 4702 20517 must have a program for the ongoing testing and evaluating of its locomotive engineers to ensure that they have the necessary knowledge and skills concerning personal safety, operating rules and practices, mechanical condition of equipment, methods of safe train handling (including familiarity with physical characteristics), and relevant Federal safety rules. Similarly, each railroad must have a program for ongoing testing and evaluating to ensure that its locomotive engineers have the necessary vision and hearing acuity as provided for in § 240.121. Sections 240.125 and 240.127 require that a railroad rely on written procedures for determining that each person can demonstrate his or her knowledge of the railroad’s rules and practices and skill at applying those rules and practices for the safe operation of a locomotive or train. Section 240.125 directs that, when seeking a demonstration of the person’s knowledge, a railroad must employ a written test that contains objective questions and answers and covers the following subject matters: (i) Personal safety practices; (ii) operating practices; (iii) equipment inspection practices; (iv) train handling practices (including familiarity with the physical characteristics of the territory); and (v) compliance with relevant Federal safety rules. The test must accurately measure the person’s knowledge of all of these areas. Section 240.125 provides a railroad latitude in selecting the design of its own testing policies (including the number of questions each test will contain, how each required subject matter will be covered, weighting (if any) to be given to particular subject matter responses, selection of passing scores, and the manner of presenting the test information). The railroad must describe in this section how it will use that latitude to ensure that its engineers will demonstrate their knowledge concerning the safe discharge of their train operation responsibilities so as to comply with the performance standard set forth in § 240.125. Section 240.127 directs that, when seeking a demonstration of the person’s skill, a railroad must employ a test and evaluation procedure conducted by a designated supervisor of locomotive engineers that contains an objective evaluation of the person’s skills at applying the railroad’s rules and practices for the safe operation of trains. The test and evaluation procedure must examine the person’s skills in terms of all of the following subject matters: (i) Operating practices; (ii) equipment inspection practices; (iii) train handling practices (including familiarity with the physical characteristics of the territory); and (iv) compliance with relevant Federal safety rules. The test must be sufficient to effectively examine the person’s skills while operating a train in the most demanding type of service which the person is likely to encounter in the normal course of events once he or she is deemed qualified. Section 240.127 provides a railroad latitude in selecting the design of its own testing and evaluation procedures (including the duration of the evaluation process, how each required subject matter will be covered, weighing (if any) to be given to particular E:\FR\FM\09MYP2.SGM 09MYP2 20518 Federal Register / Vol. 84, No. 90 / Thursday, May 9, 2019 / Proposed Rules jbell on DSK3GLQ082PROD with PROPOSALS2 subject matter response, selection of passing scores, and the manner of presenting the test information). However, the railroad must describe the scoring system used by the railroad during a skills test administered in accordance with the procedures required under § 240.211. The description shall include the skills to be tested and the weight or possible score that each skill will be given. The section should also provide information concerning the procedures which the railroad will follow that achieve the objectives described in FRA’s recommended practices (see appendix E) for conducting skill performance testing. The section also gives a railroad the latitude to employ either a Type 1 or a Type 2 simulator (properly programmed) to conduct the test and evaluation procedure. A railroad must describe in this section how it will use that latitude to assure that its engineers will demonstrate their skills concerning the safe discharge of their train operation responsibilities so as to comply with the performance standard set forth in § 240.127. Section 240.121 provides a railroad latitude to rely on the professional medical opinion of the railroad’s medical examiner concerning the ability of a person with substandard acuity to safely operate a locomotive. The railroad must describe in this section how it will ensure that its medical examiner has sufficient information concerning the railroad’s operations to effectively form appropriate conclusions about the ability of a particular individual to safely operate a train. Section 5 of the Submission: Training, Testing, and Evaluating Persons Not Previously Certified Unless a railroad has made an election not to accept responsibility for conducting the initial training of persons to be locomotive engineers, the fifth section of the request must contain information concerning the railroad’s program for educating, testing, and evaluating persons not previously trained as locomotive engineers. As provided for in § 240.123(c), a railroad that is issuing an initial certification to a person to be a locomotive engineer must have a program for the training, testing, and evaluating of its locomotive engineers to ensure that they acquire the necessary knowledge and skills concerning personal safety, operating rules and practices, mechanical condition of equipment, methods of safe train handling (including familiarity with physical characteristics), and relevant Federal safety rules. Section 240.123 establishes a performance standard and gives a railroad latitude in selecting how it will meet that standard. A railroad must describe in this section how it will use that latitude to ensure that its engineers will acquire sufficient knowledge and skill and demonstrate their knowledge and skills concerning the safe discharge of their train operation responsibilities. This section must contain the same level of detail concerning initial training programs as that described for each of the components of the overall program contained in sections 2 through 4 of this appendix. A railroad that plans to accept responsibility for the initial VerDate Sep<11>2014 19:51 May 08, 2019 Jkt 247001 training of locomotive engineers may authorize another railroad or a non-railroad entity to perform the actual training effort as long as the other entity complies with the requirements for training organizations and learning institutions in § 243.111 of this chapter. The authorizing railroad may submit a training program developed by that authorized trainer but the authorizing railroad remains responsible for ensuring that such other training providers adhere to the training program submitted. Railroads that elect to rely on other entities, to conduct training away from the railroad’s own territory, must indicate how the student will be provided with the required familiarization with the physical characteristics for its territory. Section 6 of the Submission: Monitoring Operational Performance by Certified Engineers The final section of the request must contain information concerning the railroad’s program for monitoring the operation of its certified locomotive engineers. As provided for in § 240.129, each railroad must have a program for the ongoing monitoring of its locomotive engineers to ensure that they operate their locomotives in conformity with the railroad’s operating rules and practices including methods of safe train handling and relevant Federal safety rules. Section 240.129 requires that a railroad annually observe each locomotive engineer demonstrating his or her knowledge of the railroad’s rules and practices and skill at applying those rules and practices for the safe operation of a locomotive or train. Section 240.129 directs that the observation be conducted by a designated supervisor of locomotive engineers but provides a railroad latitude in selecting the design of its own observation procedures (including the duration of the observation process, reliance on event recorder downloads that record the specifics of train operation, and the specific aspects of the engineer’s performance to be covered). The section also gives a railroad the latitude to employ either a Type 1 or a Type 2 simulator (properly programmed) to conduct monitoring observations. A railroad must describe in this section how it will use that latitude to assure that the railroad is monitoring that its engineers demonstrate their skills concerning the safe discharge of their train operation responsibilities. A railroad must also describe the scoring system used by the railroad during an operational monitoring observation or unannounced compliance test administered in accordance with the procedures required under § 240.303. A railroad that intends to employ train operation event recorder tapes to comply with this monitoring requirement shall indicate in this section how it anticipates determining what person was at the controls and what signal indications or other operational constraints, if any, were applicable to the train’s movement. Section 7 of the Submission: Procedures for Routine Administration of the Engineer Certification Program The final section of the request must contain a summary of how the railroad’s PO 00000 Frm 00048 Fmt 4701 Sfmt 4702 program and procedures will implement the various specific aspects of the regulatory provisions that relate to routine administration of its certification program for locomotive engineers. At a minimum this section needs to address the procedural aspects of the rule’s provisions identified in the following paragraph. Section 240.109 provides that each railroad must have procedures for review and comment on adverse prior safety conduct, but allows the railroad to devise its own system within generalized parameters. Sections 240.115, 240.117 and 240.119 require a railroad to have procedures for evaluating data concerning prior safety conduct as a motor vehicle operator and as railroad workers, yet leave selection of many details to the railroad. Sections 240.203, 240.217, and 240.219 place a duty on the railroad to make a series of determinations but allow the railroad to select what procedures it will employ to assure that all of the necessary determinations have been made in a timely fashion; who will be authorized to conclude that person is or is not qualified; and how it will communicate adverse decisions. Documentation of the factual basis the railroad relied on in making determinations under §§ 240.205, 240.207, 240.209, 240.211, and 240.213 is required, but these sections permit the railroad to select the procedures it will employ to accomplish compliance with these provisions. Sections 240.225 and 240.227 permit reliance on qualification determinations made by other entities and permit a railroad latitude in selecting the procedures it will employ to ensure compliance with these provisions. Similarly, § 240.229 permits use of railroad selected procedures to meet the requirements for certification of engineers performing service in joint operations territory. Sections 240.301 and 240.307 allow a railroad a certain degree of discretion in complying with the requirements for replacing lost certificates or the conduct of certification revocation proceedings. This section of the request should outline in summary fashion the manner in which the railroad will implement its program so as to comply with the specific aspects of each of the rule’s provisions described in preceding paragraph. FRA Review The submissions made in conformity with this appendix will be deemed approved within 30 days after the required filing date or the actual filing date whichever is later. No formal approval document will be issued by FRA. The brief interval for review reflects FRA’s judgment that railroads generally already have existing programs that will meet the requirements of this part. FRA has taken the responsibility for notifying a railroad when it detects problems with the railroad’s program. FRA retains the right to disapprove a program that has obtained approval due to the passage of time as provided for in section § 240.103. Rather than establish rigid requirements for each element of the program, FRA has given railroads discretion to select the design of their individual programs within a specified E:\FR\FM\09MYP2.SGM 09MYP2 Federal Register / Vol. 84, No. 90 / Thursday, May 9, 2019 / Proposed Rules context for each element. The rule, however, provides a good guide to the considerations that should be addressed in designing a program that will meet the performance standards of this rule. In reviewing program submissions, FRA will focus on the degree to which a particular program deviates from the norms set out in its rule. To the degree that a particular program submission materially deviates from the norms set out in its rule, FRA’s review and approval process will be focused on determining the validity of the reasoning relied on by a railroad for selecting its alternative approach and the degree to which the alternative approach is likely to be effective in producing locomotive engineers who have the knowledge, skill, and ability to safely operate trains. 44. Revise appendix C to part 240 is to read as follows: ■ Appendix C to Part 240—Procedures for Obtaining and Evaluating Motor Vehicle Driving Record Data jbell on DSK3GLQ082PROD with PROPOSALS2 The purpose of this appendix is to outline the procedures available to individuals and railroads for complying with the requirements of section 4(a) of the Railroad Safety Improvement Act of 1988 and §§ 240.109, 240.111, and 240.205 of this part. Those provisions require that railroads consider the motor vehicle driving record of each person prior to issuing him or her certification or recertification as a locomotive engineer. To fulfill that obligation, a railroad must review a certification candidate’s recent motor vehicle driving record. Generally, that will be a single record on file with the state agency that issued the candidate’s current license. However, it can include multiple records if the candidate has been issued a motor vehicle driving license by more than one state agency or foreign country. In addition, the railroad must determine whether the certification candidate is listed in the National Driver Register and, if so listed, to review the data that caused the candidate to be so listed. Access to State Motor Vehicle Driving Record Data The right of railroad workers, their employers, or prospective employers to have access to a state motor vehicle licensing agency’s data concerning an individual’s driving record is controlled by state law. Although many states have mechanisms through which employers and prospective employers such as railroads can obtain such data, there are some states in which privacy concerns make such access very difficult or impossible. Since individuals generally are entitled to obtain access to driving record data that will be relied on by a state motor vehicle licensing agency when that agency is taking action concerning their driving privileges, FRA places responsibility on individuals, who want to serve as locomotive engineers to request that their current state drivers licensing agency or agencies furnish such data directly to the railroad considering certifying them as a locomotive operator. Depending on the procedures adopted by a particular state agency, this will involve the VerDate Sep<11>2014 19:51 May 08, 2019 Jkt 247001 candidate’s either sending the state agency a brief letter requesting such action or executing a state agency form that accomplishes the same effect. It will normally involve payment of a nominal fee established by the state agency for such a records check. In rare instances, when a certification candidate has been issued multiple licenses, it may require more than a single request. The National Driver Register In addition to seeking an individual state’s data, each engineer candidate is required to request that a search and retrieval be performed of any relevant information concerning his or her driving record contained in the National Driver Register (NDR). The NDR is a system of information created by Congress in 1960. In essence it is a nationwide repository of information on problem drivers that was created in an effort to protect motorists. It is a voluntary State/ Federal cooperative program that assists motor vehicle driver licensing agencies in gaining access to data about actions taken by other state agencies concerning an individual’s motor vehicle driving record. The NDR is designed to address the problem that occurs when chronic traffic law violators, after losing their license in one State travel to and receive licenses in another State. Today, each State and the District of Columbia are required to send information on all revocations, suspensions, and license denials within 31 days of receipt of the convictions from the courts to the NDR and each of these driver licensing agencies have the capability to provide NDR’s data. 49 U.S.C. 30304. The NDR data can also be obtained by contacting the National Highway Traffic Safety Administration (NHTSA) of the Department of Transportation directly. The information submitted to NHTSA contains, at a minimum, three specific pieces of data: The identification of the state authority providing the information, the name of the person whose license is being affected, and the date of birth of that person. It may be supplemented by data concerning the person’s height, weight, color of eyes, and social security account number, if a State collects such data. Access to NDR Data Essentially only individuals and state licensing agencies, including the District of Columbia, can obtain access to the NDR data. Since railroads have no direct access to the NDR data, FRA requires that individuals seeking certification as a locomotive engineer request that an NDR search be performed and direct that the results be furnished to the railroad. FRA requires that each person request the NDR information directly from NHTSA unless the prospective operator has a motor vehicle driver license issued by a state motor vehicle licensing agency or the District of Columbia. Participating states and the District of Columbia can directly access the NDR data on behalf of the prospective engineer. Requesting NHTSA To Perform the NDR Check The procedures for requesting NHTSA performance of an NDR check are as follows: PO 00000 Frm 00049 Fmt 4701 Sfmt 4702 20519 1. Each person shall submit a written request to the National Highway Traffic Safety Administration at the following address: Chief, National Driver Register, National Highway Traffic Safety Administration, 1200 New Jersey Avenue SE, Washington, DC 20590. 2. The request must contain: (a) The full legal name; (b) Any other names used by the person (e.g., nickname or professional name); (c) The date of birth; (d) Sex; (e) Height; (f) Weight; (g) Color of eyes; and (h) Driver’s license number (unless that is not available). 3. The request must authorize NHTSA to perform the NDR check and to furnish the results of the search directly to the railroad. 4. The request must identify the railroad to which the results are to be furnished, including the proper name of the railroad, and the proper mailing address of the railroad. 5. The person seeking to become a certified locomotive engineer shall sign the request, and that signature must be notarized. FRA requires that the request be in writing and contain as much detail as is available to improve the reliability of the data search. Any person may supply additional information to that being mandated by FRA. Furnishing additional information, such as the person’s Social Security account number, will help to more positively identify any records that may exist concerning the requester. Although no fee is charged for such NDR checks, a minimal cost may be incurred in having the request notarized. The requirement for notarization is designed to ensure that each person’s right to privacy is being respected and that records are only being disclosed to legally authorized parties. Requesting a State Agency To Perform the NDR Check As discussed earlier in connection with obtaining data compiled by the state agency itself, a person can either write a letter to that agency asking for the NDR check or can use the agency’s forms for making such a request. If a request is made by letter the individual must follow the same procedures required when directly seeking the data from NHTSA. Since it would be more efficient for a prospective locomotive engineer to make a single request for both aspects of the information required under this rule, FRA anticipates that a state agency inquiry should be the predominant method for making these NDR checks. Requests to state agencies may involve payment of a nominal fee established by the state agency for such a records check. State agencies normally will respond in approximately 30 days or less and advise whether there is or is not a listing for a person with that name and date of birth. If there is a potential match and the inquiry state was not responsible for causing that entry, the agency normally will indicate in writing the existence of a probable match and will identify the state licensing agency that suspended, revoked or canceled the relevant license or convicted the person of one of the violations referenced earlier in this appendix. E:\FR\FM\09MYP2.SGM 09MYP2 20520 Federal Register / Vol. 84, No. 90 / Thursday, May 9, 2019 / Proposed Rules Actions When a Probable NDR Match Occurs candidate go beyond these efforts to obtain the information in the control of such a state agency, and a railroad may act upon the pending certification without the data if an individual state agency fails or refuses to supply the records. If the non-issuing state licensing agency does provide the railroad with the available records, the railroad must verify that the record pertains to the person being considered for certification. It is necessary to perform this verification because in some instances only limited identification information is furnished for use in the NDR and this might result in data about a different person being supplied to the railroad. Among the available means for verifying that the additional state record pertains to the certification candidate are physical description, photographs and handwriting comparisons. Once the railroad has obtained the motor vehicle driving record(s) which, depending on the circumstance, may consist of more than two documents, the railroad must afford the prospective engineer an opportunity to review that record and respond in writing to its contents in accordance with the provisions of § 240.219. The review opportunity must occur before the railroad evaluates that record. The railroad’s required evaluation and subsequent decision making must be done in compliance with the provisions of this part. 45. Revise appendix D to part 240 to read as follows: ■ Appendix D to Part 240—Identification of State Agencies That Perform National Driver Register Checks Under the provisions of § 240.111 of this part, each person seeking certification or recertification as a locomotive operator must request that a check of the National Driver Register (NDR) be conducted and that the resulting information be furnished to his or her employer or prospective employer. Under the provisions of paragraphs (d) and (e) of § 240.111, each person seeking certification or recertification as a locomotive engineer must request that the National Highway Traffic Safety Administration (NHTSA) conduct the NDR check, unless he or she was issued a motor vehicle driver license by one of the state agencies that perform such checks, which today includes all state agencies and the District of Columbia. If the certification candidate received a license from one of the state agencies or the District of Columbia, he or she must request the state agency to perform the NDR check. Since these state agencies can more efficiently supply the desired data and, in some instances, can provide a higher quality of information, FRA requires that certification candidates make use of this method in preference to directly contacting NHTSA. 46. Add appendix G to part 240 to read as follows: ■ Appendix G to Part 240—Application of Revocable Events Issued in Washington, DC. Ronald L. Batory, Administrator. [FR Doc. 2019–09028 Filed 5–8–19; 8:45 am] BILLING CODE 4910–06–P VerDate Sep<11>2014 19:51 May 08, 2019 Jkt 247001 PO 00000 Frm 00050 Fmt 4701 Sfmt 9990 E:\FR\FM\09MYP2.SGM 09MYP2 EP09MY19.000</GPH> jbell on DSK3GLQ082PROD with PROPOSALS2 The response provided after performance of an NDR check is limited to either a notification that no potential record match was identified or a notification that a potential record match was identified. If the latter event occurs, the notification will include the identification of the state motor vehicle licensing authority which possesses the relevant record. If the NDR check results indicate a potential match and that the state with the relevant data is the same state which furnished detailed data (because it had issued the person a driving license), no further action is required to obtain additional data. If the NDR check results indicate a potential match and the state with the relevant data is different from the state which furnished detailed data, it then is necessary to contact the individual state motor vehicle licensing authority that furnished the NDR information to obtain the relevant record. FRA places responsibility on the railroad to notify the engineer candidate and on the candidate to contact the state with the relevant information. FRA requires the certification candidate to write to the state licensing agency and request that the agency inform the railroad concerning the person’s driving record. If required by the state agency, the person may have to pay a nominal fee for providing such data and may have to furnish written evidence that the prospective operator consents to the release of the data to the railroad. FRA does not require that a railroad or a certification

Agencies

[Federal Register Volume 84, Number 90 (Thursday, May 9, 2019)]
[Proposed Rules]
[Pages 20472-20520]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2019-09028]

[[Page 20471]]

Vol. 84

Thursday,

No. 90

May 9, 2019

Part II

Department of Transportation

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Federal Railroad Administration

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49 CFR Part 240

Qualification and Certification of Locomotive Engineers; Miscellaneous
Revisions; Proposed Rule

Federal Register / Vol. 84 , No. 90 / Thursday, May 9, 2019 /
Proposed Rules

[[Page 20472]]

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DEPARTMENT OF TRANSPORTATION

Federal Railroad Administration

49 CFR Part 240

[Docket No. FRA-2018-0053, Notice No. 1]
RIN 2130-AC40

Qualification and Certification of Locomotive Engineers;
Miscellaneous Revisions

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

ACTION: Notice of proposed rulemaking (NPRM).

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SUMMARY: FRA is proposing to revise its regulation governing the
qualification and certification of locomotive engineers to make it
consistent with its regulation for the qualification and certification
of conductors. The proposed changes include: Amending the program
submission process; handling engineer and conductor petitions for
review with a single FRA review board (Operating Crew Review Board or
OCRB); and revising the filing requirements for petitions to the OCRB.
The proposed revisions would result in cost savings and benefits for
railroads and locomotive engineers by adopting the conductor
certification regulation's streamlined processes developed twenty years
after the engineer certification regulation. Consistent with Executive
Order 13771, the proposed rule would reduce the overall regulatory
burden and the paperwork and reporting burden under the Paperwork
Reduction Act of 1995 on railroads and locomotive engineers.

DATES: Written Comments: Written comments on the proposed rule must be
received by July 8, 2019. FRA will consider comments received after
that date to the extent practicable. FRA anticipates being able to
determine these matters without a public hearing. However, if prior to
June 10, 2019, FRA receives a request for a public hearing accompanied
by a showing that the party cannot adequately present his or her
position by written statement, a hearing will be scheduled and FRA will
publish a supplemental document in the Federal Register informing
interested parties of the date, time, and location of the hearing.

ADDRESSES: You may submit comments identified by the docket number FRA-
2018-0053 by any one of the following methods:
Electronically through the Federal eRulemaking Portal,
https://www.regulations.gov. Follow the online instructions for
submitting comments;
Mail: U.S. Department of Transportation, Docket
Operations, M-30, West Building Ground Floor, Room W12-140, 1200 New
Jersey Avenue SE, Washington, DC 20590;
Hand Delivery: U.S. Department of Transportation, Docket
Operations, West Building Ground Floor, Room W12-140, 1200 New Jersey
Avenue SE, Washington, DC 20590, between 9 a.m. and 5 p.m., Monday
through Friday, except Federal holidays; or
Fax: 1-202-493-2251.
Instructions: All submissions must include the agency name, docket
name, and docket number or Regulatory Identification Number (RIN) for
this rulemaking (2130-AC40). Note that all comments received will be
posted without change to https://www.regulations.gov, including any
personal information provided. Please see the Privacy Act heading in
the SUPPLEMENTARY INFORMATION section of this document for Privacy Act
information related to any submitted comments or materials.
Docket: For access to the docket to read background documents or
comments received, go to https://www.regulations.gov at any time or to
U.S. Department of Transportation, Docket Operations, M-30, West
Building Ground Floor, Room W12-140, 1200 New Jersey Avenue SE,
Washington, DC, between 9 a.m. and 5 p.m., Monday through Friday,
except Federal holidays.

FOR FURTHER INFORMATION CONTACT: Christian Holt, Railroad Safety
Specialist (OP)-Operating Crew Certification, U.S. Department of
Transportation, Federal Railroad Administration, Room W33-420, 1200 New
Jersey Avenue SE, Washington, DC 20590 (telephone: 202-366-0978); or
Alan H. Nagler, Senior Attorney, U.S. Department of Transportation,
Federal Railroad Administration, Office of Chief Counsel, Room W31-309,
1200 New Jersey Avenue SE, Washington, DC 20590 (telephone: 202-493-
6038).

SUPPLEMENTARY INFORMATION:

Table of Contents for Supplementary Information

I. Executive Summary
II. Section-by-Section Analysis
III. Additional Issues
A. Additional Amendments
B. Implementation Date
IV. Regulatory Impact and Notices
A. Executive Orders 12866 and 13771 and DOT Regulatory Policies
and Procedures
B. Regulatory Flexibility Act and Executive Order 13272; Initial
Regulatory Flexibility Assessment
C. Paperwork Reduction Act
D. Federalism Implications
E. International Trade Impact Assessment
F. Environmental Impact
G. Unfunded Mandates Reform Act of 1995
H. Energy Impact
I. Privacy Act

I. Executive Summary

The Secretary of Transportation (Secretary) has broad statutory
authority to ``prescribe regulations and issue orders for every area of
railroad safety.'' 49 U.S.C. 20103. The Rail Safety Improvement Act of
1988, Public Law 100-342, Sec. 4, 102 Stat. 624, 625-27 (June 22, 1988)
(recodified at 49 U.S.C. 20135) (1988 RSIA), specifically required the
Secretary to ``prescribe regulations and issue orders to establish a
program requiring the licensing or certification . . . of any operator
of a locomotive.'' The Secretary delegated these authorities to the
Federal Railroad Administrator (Administrator). See 49 CFR 1.89(a).
Exercising these delegated authorities, in 1991, FRA issued a
certification final rule for locomotive engineers. 56 FR 28228
(codified at 49 CFR part 240).\1\ Since that first final rule, FRA has
amended the locomotive engineer certification requirements through six
rulemakings. In 2009, FRA published the most recent final rule amending
the locomotive engineer requirements. 74 FR 68173.
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\1\ Unless otherwise specified, all references to CFR sections
and parts refer to title 49 of the CFR.
---------------------------------------------------------------------------

In 2008, over 17 years after FRA's promulgation of the engineer
certification rule, Congress required the Secretary to prescribe
regulations establishing a program requiring the certification of train
conductors. See Rail Safety Improvement Act of 2008, Sec. 402, Public
Law 110-432, 122 Stat. 4884 (Oct. 16, 2008) (codified at 49 U.S.C.
20163). The Secretary delegated this authority to the Federal Railroad
Administrator. 49 CFR 1.89(b). To implement this statutory provision,
FRA established a Railroad Safety Advisory Committee (RSAC) Conductor
Certification Working Group (RSAC Working Group or Working Group) \2\
to make recommendations regarding the certification of train
conductors.\3\ In

[[Page 20473]]

2011, FRA published a final conductor certification rule. 76 FR 69802
(Nov. 9, 2011) (codified at 49 CFR part 242).
---------------------------------------------------------------------------

\2\ The RSAC 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. For more information regarding the RSAC process and the
conduct of the Working Group, see 76 FR 69802, 69802-69804 (Nov. 9,
2011).
\3\ RSAC accepted the task (Task No. 08-07, titled ``Conductor
Certification'') on December 10, 2008. This issue was thoroughly
discussed and analyzed at the part 242 RSAC Working Group meetings
and in the part 242 rulemaking documents. See 75 FR 69166, 69168
(Nov. 10, 2010).
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FRA's locomotive engineer certification regulation (Part 240)
provided a starting point for discussions on what requirements could be
appropriate for conductor certification and the final conductor
certification regulation (Part 242) is largely organized and comparable
to the locomotive engineer certification regulation. The NPRM FRA
published in 2010 in the conductor certification rulemaking noted that
the Working Group's accepted task statement included the discretion to
``consider any revisions to 49 CFR part 240 appropriate to conform and
update the certification programs for locomotive engineers and
conductors.'' 75 FR 69166, 69167 (2010). During the Working Group's
meetings, some members provided feedback to FRA on whether
corresponding amendments to the locomotive engineer rule were
preferable. However, this feedback was not part of a consensus
recommendation and, after considering the Working Group's discussions
and the limited scope of this proposed rule, FRA decided not to seek
RSAC recommendations on the contents of this proposed rule.
FRA believes that issues that go beyond conforming FRA's locomotive
engineer regulation with FRA's conductor certification regulation and
updating and clarifying the existing requirements for locomotive
engineer certification are best saved for a separate, future
rulemaking. Accordingly, FRA is proposing to revise its regulation
governing the minimum requirements for the qualification and
certification of locomotive engineers to make certain provisions
consistent with its regulation for the qualification and certification
of conductors and to update and clarify, as appropriate, the existing
requirements of the locomotive engineer certification regulation.
President Trump issued Executive Order 13771 (E.O. 13771),
``Reducing Regulation and Controlling Regulatory Costs,'' on January
30, 2017. E.O. 13771 seeks to ``manage the costs associated with the
governmental imposition of private expenditures required to comply with
Federal regulations'' and directs each executive department or agency
to identify for elimination two existing regulations for every new
regulation issued. E.O. 13771 also requires any new incremental cost
associated with a new regulation, to the extent permitted by law, be at
least offset by the elimination of existing costs associated with at
least two prior regulations. Similarly, Executive Order 13610,
``Identifying and Reducing Regulatory Burdens,'' issued May 12, 2012,
seeks ``to modernize our regulatory system and to reduce unjustified
regulatory burdens and costs'' and directs each executive agency to
conduct retrospective reviews of its regulatory requirements to
identify potentially beneficial modifications to regulations. 77 FR
28469. Executive agencies are to ``give priority, consistent with the
law, to those initiatives that will produce significant quantifiable
monetary savings or significant quantifiable reductions in paperwork
burdens while protecting public health, welfare, safety and our
environment.'' See id. at 28470.
In compliance with these E.O.s, FRA expects this rulemaking will
reduce the railroad industry's overall regulatory, paperwork, and cost
burden without affecting safety on the nation's railroad system and, at
the same time, benefit individual locomotive engineers. FRA also
expects the proposals in this NPRM, if implemented, to generate savings
in governmental administrative costs by reducing FRA's Part 240
program's reliance on paper documents and conforming its review
processes under Part 240 as much as possible to those under Part 242.
FRA believes consistency in the processes, procedures and criteria
between Part 240 and Part 242 will not only lead to an overall
reduction in the regulatory, paperwork and cost burden on the railroad
industry, but also benefit individual locomotive engineers by making
the processes, procedures and requirements of the two certification
systems consistent to the extent possible. Over a 20-year period, FRA
estimates $11.6 million in total cost savings would accrue--a present,
discounted value of $6.1 million (7% discount).

II. Section-by-Section Analysis

Section 240.1 Purpose and Scope

FRA proposes to amend paragraph (c) of this section to conform it
to paragraph (c) of Sec. 242.1. However, the intent of the paragraph
remains the same--i.e., even though a person may have a job
classification title other than ``locomotive engineer,'' the locomotive
engineer certification requirements of this rule apply to that person
if he or she meets the definition of locomotive engineer.

Section 240.3 Application and Responsibility for Compliance

FRA proposes to amend Sec. 240.3 to clarify FRA's jurisdiction and
conform to Sec. 242.3. Section 242.3 provides that Part 242 applies to
all railroads except: (1) ``plant railroads''; (2) tourist, scenic,
historic or excursion operations that are not part of the general
railroad system of transportation; and (3) rapid transit operations in
an urban area that are not connected to the general railroad system of
transportation. As proposed, Sec. 240.3 provides that Part 240 applies
to all railroads with the same three exceptions.
The first exception applies to ``plant railroads.'' Plant railroads
operate only on track inside installations (see proposed definition in
Sec. 240.7). Plant railroads' operations do not go beyond the plants'
boundaries and do not involve the switching of rail cars for entities
other than themselves.
The second exception applies to ``tourist, scenic, historic, or
excursion operations that are not part of the general railroad system
of transportation'' (as defined in Sec. 240.7). In Sec. 240.7, FRA
proposes to define these operations as ``a tourist, scenic, historic,
or excursion operation conducted only on track used exclusively for
that purpose (i.e., there is no freight, intercity passenger, or
commuter passenger railroad operation on the track).'' This definition
is the same as the definition of the term in Part 242. Moreover,
excluding these types of railroads from Part 240 is consistent with
FRA's jurisdictional policy that already excludes these operations from
all but a limited number of Federal railroad safety requirements.
The third exception covers rapid transit operations in an urban
area that are not connected to the general system. FRA notes that some
rapid transit operations, given their connections to the general
system, are within FRA's jurisdiction and FRA specifically intends Part
240 to apply to those operations, as it always has. FRA does not intend
for this proposed rule to have any effect on FRA's jurisdiction. A more
detailed analysis of the applicability of Part 240 is in the preamble
discussions of 49 CFR 240.3 in 64 FR 60966, 60974 (Nov. 8, 1999), 63 FR
50626, 50636-50637 (Sept. 22, 1998), and 56 FR 28228, 28240 (June 19,
1991).

Section 240.5 Effect and Construction

FRA proposes to amend this section to conform it to 49 CFR 242.5
and, in the process, update the section with respect to issues of
preemption and ``flowback.'' Proposed paragraphs (a), (b), and (d) are
the same as the language currently in paragraphs (c), (d), and (f),
respectively. FRA proposes to remove existing paragraphs (a) and (b),
which address the preemption of State law. A member of the RSAC Working
Group recommended FRA not remove existing

[[Page 20474]]

paragraph (a) to prevent any ambiguity that Federal preemption of State
and local laws remains firmly in place. However, FRA believes these
paragraphs are unnecessary because 49 U.S.C. 20106 and other Federal
railroad safety statutes sufficiently address the preemptive effect of
FRA's regulations. Maintaining a separate Federal regulatory provision
concerning the regulation's preemptive effect is duplicative and
unnecessary.\4\ FRA notes that Part 242 does not contain any language
comparable to the language in existing paragraphs (a) and (b) of this
section. Because FRA is proposing removal of the preemption provisions,
FRA proposes to remove the word ``preemptive'' from the title of this
section and make the title the same as Sec. 242.5.
---------------------------------------------------------------------------

\4\ This issue was thoroughly discussed and analyzed at the Part
242 RSAC Working Group meetings and in the Part 242 rulemaking
documents. See 75 FR 69166, 69168 (Nov. 10, 2010).
---------------------------------------------------------------------------

New proposed paragraph (c) of this section addresses the issue of
``flowback'' and mirrors paragraph (c) of Sec. 242.5. Industry uses
the term flowback to describe a situation where an employee leaves his
or her current position to return to a previously held position or
craft. An example of flowback occurs when a person who holds a
conductor position subsequently qualifies for a locomotive engineer
position, and at some later point in time the person seeks to revert
back to a conductor position. An individual's reasons for reverting
back to a previous position or craft may be a personal choice or the
result of circumstances beyond the individual's control (e.g.,
downsizing).
Many collective bargaining agreements address the issue of flowback
and, generally, FRA does not intend to create or prohibit any
individual's right to flowback or take a position on whether flowback
is desirable. Paragraph (c) of this section, however, must be read in
conjunction with proposed Sec. 240.308, which limits flowback in
certain situations. Therefore, as described in the section-by-section
analysis for Sec. 240.308 below, a person who holds both a conductor
and locomotive engineer certificate, and who has had his or her
locomotive engineer certificate revoked for certain violations, could
not work as a conductor during the period of revocation. In addition, a
person who holds both a conductor and locomotive engineer certificate,
and who has had his or her conductor certification revoked for certain
violations, could not work as a locomotive engineer during the period
of revocation.

Section 240.7 Definitions

FRA proposes to amend this section by: (1) Adding definitions for
``conductor,'' ``drug and alcohol counselor,'' ``ineligible or
ineligibility,'' ``on-the-job training (OJT),'' ``physical
characteristics,'' ``plant railroad,'' ``remote control operator,''
``Substance Abuse Professional,'' ``territorial qualifications,'' and
``tourist, scenic, historic, or excursion operations that are not part
of the general system of transportation''; (2) revising the definitions
of ``file, filed and filing,'' ``FRA Representative,'' ``instructor
engineer,'' ``main track,'' ``medical examiner,'' ``qualified,''
``railroad rolling stock,'' and ``substance abuse disorder''; (3)
removing the definitions for ``EAP Counselor'' and ``newly hired
employee''; and (4) replacing the defined term ``service'' with the
term ``serve or service.'' These proposed amendments will make the
definitions in Part 240 consistent with the definitions in Part 242.
Conductor
This rule proposes to adopt the definition of ``conductor'' used in
Part 242. Part 242 defines the term ``conductor'' as ``the crewmember
in charge of a `train or yard crew' as defined in part 218 of this
chapter.'' Title 49 CFR part 218 (Part 218) defines ``train or yard
crew'' as one or more railroad employees assigned a controlling
locomotive, under the charge and control of one crew member; called to
perform service covered by Section 2 of the (former) Hours of Service
Act; involved with the train or yard movement of railroad rolling
equipment they are to work with as an operating crew; reporting and
working together as a unit that remains in close contact if more than
one employee; and subject to the railroad operating rules and program
of operational tests and inspections required in Sec. Sec. 217.9 and
217.11 of 49 CFR chapter II.
FRA's proposal to adopt the same definition of ``conductor'' as
Part 242 (referring to a single ``crewmember'') means, under Part 240,
only one person can be in charge of a train or yard crew and that
person is the conductor. In some circumstances, a locomotive engineer,
including a remote control operator (RCO), must be certified as both a
locomotive engineer under Part 240 and as a conductor under Part 242.
See 49 CFR 242.213(d). See also proposed Sec. 240.308. All other train
or yard crew members (e.g., assistant conductors, brakemen, hostlers,
trainmen, switchmen, utility persons, flagmen, yard helpers, and others
who might have different job titles, but perform similar duties and are
not in charge of a train or yard crew) are not ``conductors'' for
purposes of this proposed rule.
Drug and Alcohol Counselor (DAC)
FRA proposes to adopt the definition of ``drug and alcohol
counselor'' used in Part 242. Part 242 defines the term to mean a
person who meets the credentialing and qualification requirements of a
``Substance Abuse Professional'' (SAP) under part 40. Defining the term
this way will avoid interfering with terms used in parts 40 and 219.
See Section-by-Section Analysis for ``Substance Abuse Professional.''
EAP Counselor
FRA proposes to remove the definition for EAP Counselor (EAP) and
replace that term throughout Part 240 with either a SAP or DAC. This
proposed change will not only make Part 240's handling of substance
abuse issues the same as Part 242, but also should improve employee
confidence in the substance abuse evaluation process. See Section-by-
Section Analysis for ``Substance abuse disorder'' and ``Substance Abuse
Professional.'' A member of the RSAC Working Group suggested railroads
should be permitted to use EAPs interchangeably with SAPs and DACs
because small railroads cannot afford full-time employees with DAC/SAP
credentials. The RSAC Working Group thoroughly discussed and analyzed
this issue and the issue is discussed in the Part 242 rulemaking (see
75 FR 69166, 69171 (Nov. 10, 2010); 76 FR 69802, 69816-69817 (Nov. 9,
2011)). Because replacing EAPs with SAPs and DACs in Part 242 received
unanimous consensus from the RSAC Working Group and the full RSAC
accepted the proposal in developing Part 242, FRA declines to propose
this RSAC Working Group member's alternative approach in Part 240.
File, Filed, and Filing
FRA proposes to remove the ``on or after September 4, 2001''
language from the existing definition of ``file, filed, and filing''
because the date is obsolete. To conform the definition to the same
term in Part 242, FRA also proposes to add ``DOT'' to the term ``Docket
Clerk'' and a reference to ``FRA'' to acknowledge that, under this
proposed rule, documents will either be filed with the DOT Docket Clerk
or, in the case of proposed Sec. 240.103, with FRA.

[[Page 20475]]

A member of the RSAC Working Group suggested FRA add the following
sentence to the definition of ``file, filed, filing'': ``In the
application of Section 240.103, a document is not considered properly
filed unless it is simultaneously served upon the president of each
labor organization that represents the railroad's employees subject to
this part.'' FRA is not proposing to adopt this suggestion because FRA
is proposing to revise Sec. 240.103 to require railroads to serve
copies of their locomotive engineer programs on the president of each
labor organization that represents each railroad's employees subject to
Part 240. Thus, adopting this suggestion would duplicate the proposed
requirement in Sec. 240.103.
FRA Representative
FRA proposes to revise this definition to conform to the definition
of ``FRA Representative'' in Part 242 and update the title of the
Associate Administrator referenced in that definition.
Ineligible or Ineligibility
FRA proposes to add the same definition of this term as the
definition of ``ineligible or ineligibility'' in Part 242 and to
describe some instances when a person may not serve as a locomotive
engineer. The proposed term ``ineligible or ineligibility'' means that
a person is legally disqualified from serving as a certified locomotive
engineer. The term is broadly defined to cover a number of
circumstances when a person may not serve as a certified locomotive
engineer. Revocation of certification under Sec. 240.307 and denial of
certification under Sec. 240.219 are two examples when a person would
be ineligible to serve as a certified locomotive engineer. A period of
ineligibility may end when a condition or conditions are met. For
example, a period of ineligibility may end when a person meets the
conditions to serve as a certified locomotive engineer following an
alcohol or drug violation under Sec. 240.119.
FRA's original suggested text presented to the RSAC Working Group
defined ``ineligible or ineligibility'' to be when a person is legally
disqualified from serving as a ``locomotive engineer.'' A member of the
RSAC Working Group suggested FRA insert ``certified'' before
``locomotive engineer'' each place ``locomotive engineer'' appears in
the definition because there might be circumstances where a person
performs duties a railroad designates to be performed by an
``engineer,'' but the duties do not require a ``certified'' engineer
under Part 240. Because we propose to use the same definition of
``ineligible or ineligibility'' in Part 240 as Part 242, and Part 242
contains the term ``certified,'' FRA is adopting this suggestion in
this proposed rule.
Other members of the RSAC Working Group suggested that the term
``suspension'' should be inserted into the definition as another
example of when a person would be ineligible to serve as a locomotive
engineer. Part 242 does not define ``ineligible or ineligibility'' to
include ``suspension'' and FRA declines to include it in this proposed
rule. Consistent with the definition of the term ``ineligible or
ineligibility'' in Part 242, the proposed definition of ``ineligible or
ineligibility'' in this rule means that a person is ``legally
disqualified from serving'' as a certified locomotive engineer for any
railroad. A suspension by one railroad, however, does not create a
legal disqualification by all other U.S. railroads that may have
certified the individual. The disqualification is legally binding when
a person's certification is denied or revoked.
Instructor Engineer
FRA proposes to revise the definition of ``instructor engineer'' to
make it as similar as possible to the definition of ``qualified
instructor'' in Part 242. The existing Part 240 definition does not
include a role for ``designated employee representatives'' as the
corresponding provision in Part 242 does. Thus, consistent with Part
242's definition of ``qualified instructor'' FRA proposes to amend the
definition of ``instructor engineer'' in Part 240 to: (1) Establish a
role for employee representative participation; and (2) establish
methods for identifying instructors through railroad and employee
representative coordination, as well as by the railroad unilaterally.
The slight differences FRA proposes to leave between the definitions
are necessary to recognize that engineers operate trains and conductors
do not.
In both Parts 240 and 242, the designation of a certified person as
an instructor recognizes that the person chosen can instruct other
similarly certified persons. Not every certified person is viewed as
automatically having ``the necessary operating experience to
effectively instruct in the field.'' An instructor is typically not a
railroad officer or supervisor, but instead a person with current,
relevant experience who can be counted on to impart knowledge and
demonstrate safety-related tasks through on-the-job (OJT) training.
Senior certified people are often chosen as instructors, although some
senior people may not be good at teaching others and some certified
people who are not considered senior may be excellent teachers.
Under the proposed requirements, a designated railroad officer and
a designated employee representative may agree that a particular
certified engineer should be an instructor engineer because the person
is recognized as having the knowledge, skill, and ability ``to teach
others proper train handling procedures.'' Because it is unnecessary
for conductors to understand proper train handling procedures, Part 242
does not include such a requirement when a railroad and employee
representative select an instructor. However, FRA believes that when a
railroad and employee representative select an instructor engineer, the
paramount concern is whether the person can teach proper train handling
procedures and therefore FRA proposes to retain that language in the
Part 240 instructor definition.
If the railroad and designated employee representative cannot agree
on the selection of a person as an instructor, Part 242 establishes
that the railroad can unilaterally select the person as long as the
person ``has a minimum of 12 months service working as a train service
employee.'' This Part 242 concept is carried over in the proposed Part
240 definition with the exception that the phrase ``as a train service
employee'' is replaced with ``in the class of service for which the
person is designated to instruct.'' The difference between the two
regulatory provisions recognizes the uniqueness of the locomotive
engineer position, as compared to other train service employee
positions. Only locomotive engineers operate locomotives or trains,
while other train service employees line switches for trains, help
locomotive engineers make shoving or pushing movements safely, and help
trouble shoot mechanical or brake failures. Thus, a conductor with 12
months of service working as a train service employee may have enough
experience to instruct conductor candidates. Meanwhile, because of the
different classes of locomotive engineer service, FRA proposes a
minimum service requirement in the class of service for which a person
is designated to instruct. Consequently, because a locomotive servicing
engineer is not permitted to move a locomotive or group of locomotives
with cars attached, a person who is a certified locomotive servicing
engineer for 12 months or more would potentially be qualified to
instruct candidates for locomotive servicing engineer certification,
but not

[[Page 20476]]

candidates for train service engineer service certification if cars
would be attached to the movement.
The final Part 242 provision FRA is proposing as a requirement for
Part 240 instructor engineers addresses the question of what a railroad
may do when employees do not have designated employee representation.
Under that scenario, a railroad may designate any certified locomotive
engineer as an instructor engineer if the person has demonstrated the
necessary qualifications under the railroad's written certification
program. This provision is the same as the Part 242 provision, except
that the Part 242 provision refers to conductors. This provision gives
the maximum flexibility to short line railroads and other railroads
where employees do not have designated representatives.
A member of the RSAC Working Group recommended FRA remove the
requirement to have 12 months of experience from Part 242 and not
propose it for Part 240. The member asserted the reduced locomotive
engineer population in small railroads will make it impractical if not
impossible for all instructor engineers to have this level of
experience. FRA notes that as proposed, not all instructor engineers
will be required to have a minimum of 12 months of experience in the
class of service for which the person is designated to instruct. If a
railroad does not have designated employee representation, or if the
designated employee representative concurs with the instructor
selection, then the proposed 12 months of experience requirement is not
applicable. Accordingly, FRA declines to adopt the recommendation.
Other RSAC Working Group members suggested that a Part 240 proposed
rule should define what constitutes a month, and that one tour of duty
in a calendar month should not count as a month. No such limitation is
included in Part 242. FRA believes it is in a railroad's best interests
to designate instructors who have experience and have demonstrated they
can effectively teach others. The proposed definition of ``instructor
engineer'' includes the requirement that a railroad's program must
contain the criteria the railroad will use to determine who may be an
instructor. As such, FRA declines to include a requirement in this
proposed rule defining what constitutes a month of experience because
there appears to be sufficient safeguards to prevent a railroad from
designating instructors with subpar qualifications.
During the RSAC Working Group meetings, FRA suggested using the
term ``train service engineer'' in the definition of ``instructor
engineer'' (i.e., FRA's suggested text would have required a person to
have a minimum of 12 months of service working as a ``train service
engineer''). A member of the RSAC Working Group questioned this
suggestion by asking FRA to clarify whether the purpose of this
restriction would restrict RCOs and hostlers from participating as
instructor engineers in the training of other RCOs and hostlers.
After careful consideration of this RSAC Working Group member's
response, FRA realized that the suggestion had an unintended
consequence. Part 240's current definition of ``instructor engineer''
does not restrict instructor engineers to only those people who are in
the train service engineer class and FRA does not intend to introduce
such a limitation in this proposed rule. Rather, FRA intends to permit
a train service engineer or, where appropriate, a locomotive servicing
engineer (as described in Sec. 240.107) or RCO to serve as an
``instructor engineer'' within the parameters of that person's class.
Accordingly, as noted above, FRA proposes that in situations where
concurrence is needed between the railroad and the designated employee
representative in selecting an instructor engineer, and concurrence is
not reached, the person selected must have a minimum of 12 months of
service working in ``the class of service for which the person is
designated to instruct.'' For example, a person who had not received
concurrence could not serve as an instructor engineer regarding the
handling of a locomotive coupled to cars unless that person had a
minimum of 12 months of service working as a train service engineer (as
described in Sec. 240.107).
Given this background, consistent with Part 240's existing
definition of ``instructor engineer,'' as proposed, RCOs and hostlers
could be instructor engineers conducting training of other RCOs and
hostlers. To be clear, under both the existing requirements and this
proposed rule, any certificate can be restricted, and an instructor can
be limited to instructing based on the class of service and the
restriction. Presumably, an instructor engineer for RCOs or hostlers
may be designated and certified as a train service engineer or
locomotive servicing engineer but potentially limited to instructing
only in the certain types of work for which the person is qualified.
Thus, a person designated as an instructor engineer for RCOs may hold a
certification that identifies him or her as a train service engineer
restricted to RCO work. Other instructor engineers for RCOs may be
designated as train service engineers with no restrictions. Similarly,
instructor engineers for hostlers may be designated as train service
engineers or locomotive servicing engineers with no restrictions, or
train service engineers or locomotive servicing engineers restricted to
yard or yard-type work. Of course, consistent with existing Part 240,
under this proposed rule, a person may not serve as an ``instructor
engineer'' if the person fails to meet the requirements of an
``instructor engineer'' described in that definition in Sec. 240.7.
Main Track
FRA proposes to revise the definition of ``main track'' to be the
same as the definition of ``main track'' in Part 242 by including a
reference to positive train control as a method of operation that would
make a track a ``main track.''
Medical Examiner
FRA proposes to revise the definition of ``medical examiner'' to be
the same as the definition of ``medical examiner'' in Part 242 by
removing the portion of the existing definition stating that the
medical examiner owes ``a duty to the railroad.'' Instead, consistent
with Part 242, the proposed definition says ``the medical examiner owes
a duty to make an honest and fully informed evaluation of the condition
of an employee.''
Newly Hired Employee
FRA proposes to delete the definition of ``newly hired employee''
because that term is not used in Part 240.
On-the-Job Training (OJT)
The term ``on-the-job training'' means job training that occurs in
the workplace, i.e., the employee learns the job while doing the job.
In Sec. 243.5 of this chapter, OJT is described as a type of ``formal
training'' that has a structured and defined curriculum, and that
provides an opportunity for training participants to have questions
timely answered during the training or at a later date. In appendix B
to this part (Appendix B), FRA mentions OJT as one type of training
that a railroad may describe in its locomotive engineer certification
program.
Operator Control Unit (OCU)
FRA proposes to add a definition of OCU to Part 240 that is the
same as that used in part 229 of this chapter. FRA proposes to add this
definition so the proposed RCO class of service in Sec. 240.107 can be
precisely explained using the same terms FRA uses in describing the
equipment safety standards required for remote control

[[Page 20477]]

locomotives in Sec. 229.15 of this chapter. The conductor
certification rule does not contain a definition of OCU because, for
purposes of that rule, an RCO is a certified locomotive engineer.
Physical Characteristics
The term ``physical characteristics'' is used throughout existing
Part 240, but is not defined. Accordingly, FRA proposes to add the same
definition for the term used in Part 242. As proposed, ``physical
characteristics'' would mean the actual track profile of and physical
location for points within a specific yard or route that affect the
movement of a locomotive or train, and include both main track physical
characteristics and other than main track physical characteristics.
Plant Railroad
FRA proposes adding a definition of ``plant railroad'' in this
proposed rule to be the same as the definition of ``plant railroad'' in
Part 242 and clarify the applicability of Part 240 as described in
Sec. 240.3. The definition is consistent with FRA's longstanding
policy of not exercising its jurisdiction over a plant railroad that
does not operate on the general system of railroad transportation and
does not move cars for other entities. See 49 CFR part 209, app. A.
Qualified
FRA proposes to revise the definition of ``qualified'' to be the
same as the definition of ``qualified'' in Part 242 and to ensure the
completeness of a railroad's instruction and training program. The
current definition in Part 240 focuses on an individual's knowledge
whereas the proposed definition in this rule focuses not only on the
individual's knowledge but also on whether the individual could
reasonably be expected to be proficient at performing all assigned
tasks. The update to the definition of ``qualified'' is to ensure a
railroad's instruction and training program not only provides knowledge
of how to perform a task but also adequately prepares an individual to
be able to proficiently perform the task. For example, a qualified
locomotive engineer would need to be taught the railroad's rules and
procedures for performing different types of brake tests. An individual
who receives classroom training only would be expected to have the
requisite knowledge to perform the brake tests, and an individual who
is provided OJT or hands-on training would be expected to be able to
proficiently perform the tasks required that make up the brake test
requirements. Without both knowledge and hands-on practice, the person
could not be expected to be qualified to perform brake tests. Some
members of the RSAC Working Group suggested an alternative definition
of ``qualified'' emphasizing that the employer's requirements must be
``identified in the plan submitted in accordance with'' Part 240. FRA
understands the RSAC Working Group members who made this suggestion
were concerned that an employer might have qualification requirements
outside of a railroad's locomotive engineer certification plan
submitted to FRA. Part 242 does not address this issue and FRA declines
to propose such a provision in Part 240. FRA does, however, encourage
interested parties to comment on the proposed definition of
``qualified.''
Railroad Rolling Stock
FRA proposes to revise the definition of ``railroad rolling stock''
to be the same as the definition of the term in Part 242 (i.e., on-
track equipment that is either a ``railroad freight car'' (as defined
in Sec. 215.5) or a ``passenger car'' (as defined in Sec. 238.5)).
This proposed definition is the same as the current definition of
``railroad rolling stock'' in Part 240 except for adding the word
``railroad'' in front of ``freight car'' to mirror the definition in
Sec. 215.5.
Remote Control Locomotive (RCL)
FRA proposes to add a definition of RCL to Part 240 that is the
same as the definition in Sec. 229.5. FRA is proposing to include this
definition in Part 240 so the proposed RCO class of service in Sec.
240.107 can be precisely explained using the same terms FRA uses in
describing the equipment safety standards required for an RCL in Sec.
229.15. As proposed, with the use of a radio link, an individual does
not have to be physically within the confines of an RCL's cab to
operate the RCL. By definition, the term RCL does not refer to a
locomotive or group of locomotives remotely controlled from the lead
locomotive of a train, as in a distributed power arrangement.
Serve or Service
FRA proposes to replace the definition of ``service'' with a
definition of ``serve or service.'' By replacing the definition, the
terminology and definition will be the same as in Part 242. Service is
a legal term and is given specific meaning in the Federal Rules of
Civil Procedure, which explains why FRA references it. One party serves
another party with a document, thereby performing a legal obligation to
notify the other party. The act of serving a party with a document is
the act of performing service. The words are used interchangeably in
the regulation, but FRA is making the change as it may help some
readers better understand that serve and service have the same meaning.
For example, in proposed Sec. 240.307(c)(11)(iii), FRA proposes that a
railroad issuing a decision must serve that decision on the employee
and the employee's representative, if any, as well as a requirement for
the railroad to retain proof of that service.
Substance Abuse Disorder
FRA proposes to revise the definition of ``substance abuse
disorder'' to be the same as the definition of the term in Part 242.
Under this definition, a substance abuse disorder is ``active'' if the
person: (1) Is currently using alcohol or other drugs, except under
medical supervision consistent with Sec. 219.103; or (2) has failed to
successfully complete primary treatment or successfully participate in
aftercare as directed by a SAP or DAC. This definition varies from the
existing definition in Part 240 in two respects. First, Part 240's
existing definition refers to an ``EAP Counselor'' rather than a SAP or
DAC. SAPs and DACs may be better qualified to direct an individual's
treatment or aftercare because they have more stringent credential,
knowledge, training, and continuing education requirements relating to
substance abuse than EAPs. Second, existing Part 240 also uses the
phrase ``is currently using alcohol and other drugs'' to describe
active substance abuse disorders. As proposed, this definition would
revise that phrase to read ``is currently using alcohol or other
drugs'' to clarify that an individual with an active substance abuse
disorder could be using alcohol or other drugs. Additional discussion
of this definition is found in the preamble to the conductor
certification final rule. 76 FR at 69817.
Substance Abuse Professional (SAP)
FRA proposes to add the same definition of the term ``substance
abuse professional'' as in Part 242. As proposed, ``substance abuse
professional'' is defined to mean ``a person who meets the
qualifications of a substance abuse professional, as provided in part
40 of this title.'' Part 40 defines a SAP as ``[a] person who evaluates
employees who have violated a DOT drug and alcohol regulation, and
makes recommendations concerning education, treatment, follow-up
testing and aftercare.'' See 49 CFR 40.3.
By definition, a SAP may evaluate and treat only an employee who
has committed a violation of FRA's alcohol and drug regulation (Part
219), such as

[[Page 20478]]

the prohibitions in Sec. Sec. 219.101 and 219.102. An employee who may
have a substance or alcohol abuse problem but has not violated Part 219
is therefore not eligible for SAP referral. Accordingly, FRA proposes
to use the term SAP in Sec. 240.119(d), which addresses the follow-up
that must occur after a Part 219 violation. However, because off-duty
driving of a motor vehicle under the influence (DUI) is not a Part 219
violation, the follow-up required by Sec. 240.115 for a DUI conviction
may not be completed by a SAP. Therefore, for those sections of Part
240 that address drug and alcohol evaluation requirements not involving
a Federal violation, FRA is proposing to replace the term SAP with the
term DAC. As used in this proposed rule, a DAC will have to meet the
same qualifications as a SAP. FRA believes these changes will avoid
interfering with Parts 40 and 219 while requiring higher qualification
and credentialing requirements for persons evaluating substance abuse
disorders.
Territorial Qualifications
FRA proposes to add to Part 240 the same definition for the term
``territorial qualifications'' as in Part 242. As proposed,
``territorial qualifications'' means ``possessing the necessary
knowledge concerning a railroad's operating rules and timetable special
instructions including familiarity with applicable main track and other
than main track physical characteristics of the territory over which
the locomotive or train movement will occur.''
Although not currently defined in Part 240, the term is derived
from Part 240's requirement that, with certain exceptions, a locomotive
engineer may not operate a locomotive over a territory unless the
engineer is ``qualified on the physical characteristics of the
territory.'' See Sec. 240.231. The proposed definition would clarify
what ``territorial qualifications'' means in proposed revisions to
Sec. Sec. 240.125, 240.221, and 240.309.
Tourist, Scenic, Historic, or Excursion Operations That Are Not Part of
the General Railroad System of Transportation
FRA proposes to add to Part 240 the same definition for the phrase
``tourist, scenic, historic, or excursion operations that are not part
of the general railroad system of transportation'' as in Part 242. As
proposed, the phrase means a tourist, scenic, historic, or excursion
operation conducted only on track used exclusively for that purpose
(i.e., there is no freight, intercity passenger, or commuter passenger
railroad operation on the track). If there is any freight, intercity
passenger, or commuter passenger railroad operation on the track, the
track would be considered part of the general system. See part 209,
app. A. See the Section-by-Section analysis of Sec. 240.1 for further
discussion of the applicability of Part 240 to these types of railroad
operations.

Section 240.11 Penalties and Consequences for Noncompliance

FRA proposes a minor amendment to paragraph (d) of this section.
FRA proposes to revise the words ``Federal Railroad Safety Act'' (FRSA)
in that paragraph to read ``Federal rail safety laws'' to more
accurately describe the source of FRA's authority since the
recodification of the laws comprising the former FRSA. See Public Law
103-272, 108 Stat. 745 (July 5, 1994). This revision would also make
the paragraph the same as Sec. 242.11(d).

Section 240.103 Approval of Design of Individual Railroad Programs by
FRA

FRA proposes two amendments to this section, which will make the
filing and FRA approval process for individual railroads' Part 240
programs the same as for conductor certification programs under Sec.
242.103. Specifically, FRA proposes revising paragraphs (b) and (c) of
this section to require railroads to serve a copy of their program
submissions, resubmissions, and material modifications on the president
of each labor organization that represents the railroad's certified
locomotive engineers. It also would allow any designated representative
of certified locomotive engineers to submit comments to FRA on the
railroad's submission within 45 days of the railroad's filing with FRA.
Although FRA, not the commenters, will decide whether to approve a
railroad's submission, FRA expects comments will be useful in
determining whether the railroad's program conforms to the criteria in
this proposed rule. These proposed changes would be in newly added
paragraphs (b) and (c). Consequently, FRA proposes redesignating
existing paragraphs (b) through (e) as paragraphs (d) through (g), to
make the language of these paragraphs consistent with Sec. 242.103(e)-
(h). Also, FRA is proposing to redesignate existing paragraph (c)(2) as
paragraph (e)(2) and then revise that paragraph to be the same as Sec.
242.103(g)(2), indicating that a deficient program may remain in effect
for a specified period of time ``so long as the railroad has complied
with the requirements'' for resubmission found in another paragraph of
this section.
In proposed paragraph (h) (which revises existing paragraph (e) and
is the same as paragraph (i) of Sec. 242.103), FRA would require a
railroad intending to materially modify its FRA-approved program to
submit to FRA a description of its intended material modification 60
days before implementing the modification (as opposed to the current
requirement to do so 30 days in advance). This proposed revision would
allow time for the labor organizations to comment on the proposed
modification(s) under proposed paragraph (c) of this section and for
FRA to consider any comments from the relevant labor organizations.
In developing this NPRM, FRA considered proposing to require
railroads to file their complete Part 240 programs (including any
modifications made as a result of this rule) with FRA and serve those
complete programs on the president of each labor organization that
represents the railroad's certified locomotive engineers. Although the
proposed requirement to serve programs would be new to Part 240, FRA
considered that Part 240 was effective in 1991 and it would be expected
that each president of a relevant labor organization that wanted a copy
of a railroad's locomotive engineer certification program would have
obtained it by now. FRA thus views the proposed conforming amendment as
requiring a railroad to serve material modifications or wholly new
programs on the president of each labor organization that represents
the railroad's certified locomotive engineers but not a program that is
revised due to promulgation of this rule. FRA requests comment on the
potential adoption of such a requirement in a final rule.

Section 240.105 Criteria for Selection of Designated Supervisors of
Locomotive Engineers

This existing section requires each railroad to designate certain
supervisors qualified to test and evaluate the knowledge and skills of
locomotive engineers. FRA proposes to add new paragraph (d) to address
that some designated supervisors of locomotive engineers (DSLEs) may
not be train service engineers. Those that are locomotive servicing
engineers or remote control operators may still be DSLEs, but the range
of their supervision would be limited by the railroad to the person's
actual qualifications. Although the existing rule does not prohibit a
railroad from creating a DSLE subset known as Designated Supervisor of
Remote Control Operators (DSRCOs), and many have done just that, the
addition of

[[Page 20479]]

proposed paragraph (d) recognizes that each railroad is authorized to
make such designations that apply additional conditions or operational
restrictions on the service that a DSLE may perform just as each
railroad may apply conditions and restrictions on any person's
certificate. Because Part 242 does not differentiate among different
classes of service for conductors, there is no comparable provision to
proposed paragraph (d) in Part 242. FRA intends proposed paragraph (d)
to help railroads effectively differentiate among the potential
different DSLE classes of service contemplated by Part 240.

Section 240.107 Types of Service

FRA is proposing several changes to this section, including a
change to the heading of this section. The current section heading is
``Criteria for designation of classes of service,'' and the proposed
change would make it the same as the section heading in its Part 242
counterpart.
In existing paragraph (a), each railroad is required to state in
its program which of the three classes of service named in paragraph
(b) it will cover (i.e., train service engineers, locomotive servicing
engineers, and student engineers). FRA proposes to add two additional
classes of service to paragraph (b) (i.e., remote control operators and
student remote control operators). Thus, FRA proposes to revise
paragraph (a) to remove the specific reference to ``three'' because
paragraph (b) would now list five classes of service. However, those
railroads that already name remote control operators as a class of
service in a Part 240 program or do not conduct remote control
operations would not need to make any change to their programs as a
result.
Existing paragraph (c) requires railroads to apply certain
operational constraints to each class of service. The proposed changes
to paragraph (c) are intended to add operational constraints for the
two new classes of service. In paragraph (c)(3), FRA proposes to add
operational constraints to the proposed RCO class of service. This new
class of service recognizes that many railroads now employ and train
individuals who have never operated conventional locomotives, but are
instead restricted to operations using an RCL controlled solely by an
OCU. Currently, many railroads use RCLs for switching movements or low-
speed operations on main track as Sec. 229.15(a)(14) limits this
equipment to a maximum speed of 15 mph. An individual certified as a
``train service engineer'' under Sec. 240.107(c)(1) may operate any
type of locomotive, whether conventionally operated from the control
stand in the locomotive cab or remotely controlled, and with or without
cars or other locomotives coupled to the controlled locomotive. An
individual certified as a ``locomotive servicing engineer'' under Sec.
240.107(c)(2) may operate any type of locomotive, whether
conventionally operated from the control stand in the locomotive cab or
remotely controlled, with other locomotives coupled to the controlled
locomotive but not with cars coupled to the movement. An RCO is
distinguishable from these other classes of service because an RCO is
limited to operating only remotely controlled locomotives by using the
OCU. The industry currently recognizes that an RCO's service is limited
by the type of locomotive and controls used. The changes proposed in
paragraph (c)(3) catch up to this industry practice.
Existing paragraph (c)(3), which address student engineers, would
be redesignated as paragraph (c)(4) with the addition of student RCOs.
As proposed, paragraph (c)(4) provides that any student, operating any
locomotive, whether conventionally operated from the control stand in
the locomotive or from an OCU, is operationally constrained because
each student may operate only under the direct and immediate
supervision of an instructor engineer. FRA recognizes that in order to
learn some RCO duties, an instructor engineer may be separated from the
student RCO by a significant physical distance; under those
circumstances, the instructor engineer would be required to have some
override feature or ability to stop the student's remotely controlled
locomotive or train movement. However, in each case, the instructor
must observe the student's actions to properly monitor the student's
activities. This supervision requirement could not be accomplished if,
while riding the point on an RCO move, the student RCO was on one side
of the car and the instructor was on the other side. If both the
student RCO and instructor were riding the same side of the car (on
each end) and the instructor has the ability to stop the move, this
would meet the intent of the regulation.
The existing rule requires, at a minimum, a student certification
for any person operating a locomotive in any capacity, and the type of
student certification may further limit the person's authority to
operate equipment. For example, an individual who is a student
locomotive serving engineer would be prohibited from operating with a
locomotive coupled to cars--even if operating under the direct and
immediate supervision of a qualified instructor engineer. Similarly, as
proposed, a student RCO is operationally constrained from operating a
conventional, i.e., a non-remotely controlled locomotive, even if the
student RCO is under the direct and immediate supervision of an
instructor engineer.

Section 240.111 Individual's Duty To Furnish Data on Prior Safety
Conduct as Motor Vehicle Operator

Existing Sec. 240.111 requires persons subject to Part 240 to make
information on his or her motor vehicle driving record available to any
railroad considering the individual for certification or
recertification under Part 240, unless the person reports to the
railroad that he or she has never obtained a motor vehicle driver's
license. Because obtaining a motor vehicle driver's license is not a
precondition for obtaining locomotive engineer certification, an
individual who reports that fact to a railroad is not required under
Part 240 to request the non-existent driving history.
FRA proposes a change to paragraph (a)(2) that would add the words
``or foreign law'' to clarify that the reference to ``State or Federal
law'' is not limited to driver licenses issued within the United
States. An individual's duty under this section extends to providing
any necessary consent under foreign law to obtain information from
foreign countries that issued the person a motor vehicle driver's
license. This proposed change to paragraph (a)(2) would make the
requirement the same as the corresponding requirement in Sec.
242.111(g)(2). Similarly, the proposed changes to paragraphs (c)(1) and
(2) would make the paragraphs the same as Sec. 242.111(i)(1) and (2)
so that the same requirements would apply to both engineers and
conductors to request driver's license information, whether issued in
the United States or by a foreign country.
One difference between the locomotive engineer and conductor
certification requirements that this proposed rule does not address is
that those seeking locomotive engineer certification must request motor
vehicle information from the National Driver Register (NDR), even
though the NDR statute and regulation (see 49 U.S.C. chapter 303 and 23
CFR 1327) prohibit railroads from requesting NDR information from
individuals seeking employment as certified conductors. In 1991, States
were not required to provide information to NDR and there only were a
limited number of State licensing agencies that had the capacity to
make a direct NDR inquiry. Today,

[[Page 20480]]

however, each State and the District of Columbia are required to send
information on all revocations, suspensions, and license denials within
31 days of receipt of the convictions from the courts to the NDR and
each of these driver licensing agencies has the capability to provide
NDR's data. 49 U.S.C. 30304. With that understanding, proposed changes
to paragraphs (d) and (e) remove an outdated reference to a list of
driver licensing agencies that used to reside in appendix D, and the
proposed substitution clarifies that each State and the District of
Columbia are able to perform a check of the NDR. As NDR explains,
``[t]he entire driver history record for a licensed driver is
maintained at the State level.'' \5\ Thus, under paragraph (d), there
is no need to request information directly from NDR if a State or the
District of Columbia issued the person a driver's license and a request
is sent directly to the motor vehicle license agency that issued the
license. Under paragraph (e), an individual issued a driver's license
by one of the driver licensing agencies of a State or the District of
Columbia shall request that the NDR information be added to the
request.
---------------------------------------------------------------------------

\5\ https://www.nhtsa.gov/research-data/national-driver-register-ndr.
---------------------------------------------------------------------------

Again, because Part 240 requires NDR record checks and Part 242
does not, changes are proposed for paragraph (f) that are similar, but
not identical to Sec. 242.111(j). These paragraphs address how a
railroad must potentially contact additional motor vehicle licensing
agencies when an individual's motor vehicle record reveals that
additional information concerning that person's driving history may
exist in the files of another agency not previously contacted. The
proposed changes to paragraph (f) would address what an individual must
do when a railroad is informed by an authority with driver's license
information that additional information about the individual may exist
in files of a foreign country.
Existing paragraph (h) requires certified locomotive engineers or
engineer candidates to report certain motor vehicle incidents to his or
her employing railroad within 48 hours of ``being convicted for, or
completed state action to cancel, revoke, suspend, or deny a motor
vehicle drivers license for'' such incidents. FRA proposes to amend
paragraph (h) so it is the same as the corresponding conductor
certification requirement in Sec. 242.111(l) by adding: ``For purposes
of this paragraph and Sec. 240.115(h), `state action' means action of
the jurisdiction that has issued the motor vehicle driver's license,
including a foreign country.'' Thus, the proposed change would clarify
that an individual who is a certified engineer has a duty to report
certain motor vehicle incidents to any railroads that have certified
the person within 48 hours of the completed ``state action'' by both
U.S. states that issue driver licenses and foreign countries.
Several members of the RSAC Working Group suggested FRA remove the
requirement for an individual seeking certification or recertification
as a locomotive engineer to request that the railroad be provided
consent to request from the NDR a report of the person's motor vehicle
driving history. Because those checks of the NDR are statutorily
required for locomotive engineers, FRA cannot eliminate them. See 49
U.S.C. 20135(b)(6)(B).

Section 240.113 Individual's Duty To Furnish Data on Prior Safety
Conduct as an Employee of a Different Railroad

Existing Sec. 240.113 requires persons subject to Part 240 to make
information on his or her prior railroad service record available to
any railroad considering the individual for certification or
recertification under Part 240. FRA proposes amending paragraph (a) of
this section to make it conform as closely as possible to paragraph (c)
of Sec. 242.113 and to clarify what service record information an
individual must request from a former railroad employer. Currently,
paragraph (a) requires the person ``to make information concerning his
or her prior railroad service record available to the railroad that is
considering'' his or her certification or recertification. This
proposed rule would require an individual to share only a subset of his
or her prior railroad service record (i.e., only information on an
individual's compliance or non-compliance with Sec. Sec. 240.111
(prior safety conduct as a motor vehicle operator), 240.117 (prior
operating rule or practice violations), and 240.119 (prior substance
abuse disorders and alcohol/drug rules compliance)).

Section 240.115 Criteria for Consideration of Prior Safety Conduct as a
Motor Vehicle Operator

This section provides the requirements and procedures a railroad
must follow when evaluating an engineer's or engineer candidate's prior
conduct as a motor vehicle operator. FRA proposes revising this section
in its entirety to be consistent with paragraphs (a) through (f), and
(n) and (o) of Sec. 242.111. Proposed paragraph (a) requires railroads
to adopt and comply with an engineer certification program meeting the
requirements of Sec. 240.115. Proposed paragraph (b) requires
railroads to determine if an individual meets the eligibility
requirements of the section before initially certifying or recertifying
the person.
Proposed paragraphs (c) through (f) incorporate the same temporary
certification provisions as in paragraphs (c) through (f) of Sec.
242.111. During RSAC Working Group meetings, members raised concerns
about certification candidates who had properly requested motor vehicle
operator information but could not be certified or recertified as
locomotive engineers because of a driver licensing agency's delay or
mix-up sending the required information to the railroad. To address
this concern as it relates to conductors, paragraphs (c) and (d) of
Sec. 242.111 require railroads to certify or recertify an individual
as a conductor for 60 days if the person: (1) Requested the required
information at least 60 days prior to the date of the decision to
certify or recertify; and (2) otherwise meets the eligibility
requirements provided in the rule. Paragraph (e) of Sec. 242.111
provides that if a railroad certifies or recertifies an individual as a
conductor for 60 days under Sec. 242.111, but cannot obtain and
evaluate the required information during those 60 days, the person is
ineligible to perform as a conductor until the information can be
evaluated. However, paragraph (f) of Sec. 242.111 provides that if an
individual simply cannot obtain the required information, that person
or the certifying or recertifying railroad can petition FRA for a
waiver of the requirement (see part 211). During the pendency of the
waiver request, a railroad must certify or recertify an individual as a
conductor if the person otherwise meets the eligibility requirements of
Part 242. Because the RSAC Working Group's concerns regarding motor
vehicle operator information for conductors are equally applicable to
locomotive engineers, FRA proposes to adopt the same temporary
certification provisions of Sec. 242.111(c) through (f) in Sec.
240.115(c) through (f).
With the exception of citations to relevant sections of Part 240,
proposed paragraphs (g) and (h) of this section are the same as
paragraphs (m) and (n) of Sec. 242.111. These paragraphs prohibit
railroads from considering certain information about a certification
candidate's motor vehicle driving record and specify the types of motor
vehicle incidents that a railroad may consider when making a
certification decision.
FRA proposes paragraph (i) of this section to be the same as
paragraph (o) of Sec. 242.111, which provides that if a railroad
identifies a prior motor vehicle

[[Page 20481]]

incident it must provide the data along with ``any information
concerning the person's railroad service record'' to its DAC (not an
``EAP Counselor'' as existing paragraph (c) of Sec. 240.115 provides).
Further, the same as paragraph (o) of Sec. 242.111, proposed paragraph
(i) would require the railroad's DAC to refer the certification
candidate for evaluation to determine if the person is currently
affected by an active substance abuse disorder. If the person is
currently affected by such a disorder, the person cannot be currently
certified. Alternately, even if the person is evaluated as not
currently affected by an active substance abuse disorder, the railroad
would be required, if recommended by a DAC, to condition certification
upon participation in needed aftercare and/or follow-up testing for
alcohol or drugs, or both. For the reasons explained in the above
section-by-section analysis for the definitions of ``drug and alcohol
counselor,'' ``EAP Counselor,'' ``Substance abuse disorder,'' and
``Substance Abuse Professional,'' \6\ FRA notes that any testing
performed as a result of a DAC's recommendation under paragraph (i) of
this proposed rule must be done under company authority, not Federal.
Such testing, however, would still be required to comply with Part 219,
subpart H, and Part 40. The same as paragraph (o)(5) of Sec. 242.111,
proposed paragraph (i)(5) would clarify that a failure to cooperate in
the DAC evaluation will result in the person being ineligible to
perform as a locomotive engineer until the person cooperates in the
evaluation.
---------------------------------------------------------------------------

\6\ A member of the Working Group objected to using a SAP for
Sec. 240.115 purposes, asserting that some railroad employees may
have to travel great distances to be evaluated by a SAP. This issue
was thoroughly discussed at Working Group meetings during the
development of Part 242. For the reasons discussed at the Working
Group meetings and in the preamble discussion of Part 242 (see 76 FR
69802, 69806-69807 (Nov. 9, 2011)), FRA disagrees with the objection
to using a SAP for purposes of Sec. 240.115.
---------------------------------------------------------------------------

FRA notes it does not intend for DOT's requirement for direct
observation of urine collection to apply to follow-up testing required
as a result of motor vehicle alcohol or drug incidents. A motor vehicle
alcohol or drug incident requiring follow-up testing is not a Part 219
violation. As such, a motor vehicle alcohol or drug incident does not
meet the criteria justifying direct observation as provided by Sec.
40.67. A DAC, however, may recommend direct observation of urine
collection as necessary for follow-up testing under company authority.
See 76 FR 69802, 69806-69807 (Nov. 9, 2011).

Section 240.117 Criteria for Consideration of Operating Rules
Compliance Data

Existing Sec. 240.117 provides the criteria and procedures a
railroad must follow to evaluate an engineer's or engineer candidate's
compliance with specific types of operating rules and practices. FRA is
proposing a number of revisions to clarify the meaning of this section
and to conform the section to the corresponding provisions of the
conductor certification rule in Sec. 242.403.
Existing paragraph (a) requires railroads' Part 240 programs to
include ``criteria and procedures for implementing'' Sec. 240.117. FRA
is proposing to revise paragraph (a) to explicitly state that each
railroad, railroad officer, supervisor, or employee who violates any
requirement of a railroad's FRA-approved certification program shall be
considered to have violated the requirements of Sec. 240.117. FRA
intends this proposed revision to clarify the responsibility of
railroads and individuals to comply with Sec. 240.117. FRA proposes
parallel changes in several other sections in subpart B, including
paragraphs (a) of Sec. Sec. 240.119, 240.121, 240.123, 240.125,
240.127, and 240.129. These proposed changes would make the
implementing language in these sections of Part 240 the same as that in
the corresponding sections of Part 242 (i.e., Sec. Sec. 242.111
through 242.125).
Existing paragraph (c)(1) requires the mandatory revocation of a
locomotive engineer's certificate when he or she has ``demonstrated a
failure to comply, as described in paragraph (e) of this section, with
railroad rules and practices for the safe operation of trains.'' To
clarify this requirement and make it the same as Sec. 242.403(c)(1),
but not substantively change it, FRA proposes to revise paragraph
(c)(1) in part by removing the phrase ``with railroad rules and
practices for the safe operation of trains.'' Even though that phrase
is conditioned by the reference to paragraph (e), some railroads
incorrectly read the phrase as expanding the number or type of
operating rules or practices violations that require revocation. The
more concise proposed revision specifies that the unlawful actions
requiring mandatory revocation of a locomotive engineer's certification
are limited to those involving a certified locomotive engineer who has
demonstrated a failure to comply with railroad rules and practices
described in paragraph (e) of the section.
Existing paragraph (c)(3) prohibits the revocation of a locomotive
engineer's certification if he or she is called to perform the duty of
a train crew member other than a locomotive engineer and is performing
that non-locomotive engineer duty. As proposed, FRA would add the words
``or conductor'' to paragraph (c)(3) to prohibit revocation of an
individual's locomotive engineer certification when that person is
called to perform the duty of a train crew member, other than that of
locomotive engineer or conductor, and the person is performing such
duties. This proposed revision would make Sec. 240.117(c)(3) similar
to the related Part 242 provision (Sec. 242.403(c)(3)).
Proposed paragraph (e)(5) would add an ``or'' after the semicolon
and proposed paragraph (e)(6) would correct the existing typographical
error of a semicolon at the end of the paragraph instead of a period.
Existing paragraph (f) provides: (1) If a single incident
contravenes more than one operating rule or practice listed in
paragraph (e) of the section, that incident is to be treated as a
single violation; (2) an engineer may have his or her certification
revoked for violations occurring during properly conducted operational
compliance tests; and (3) an engineer may not have his or her
certification revoked for operational tests not conducted in compliance
with Part 240, the railroad's operating rules, or a railroad's program
under Sec. 217.9. FRA proposes adding new paragraph (f)(4), which
would prohibit a railroad from denying or revoking an employee's
certification based upon additional conditions or operational
restrictions imposed pursuant to Sec. 240.107(d). Thus, a railroad
could not revoke a locomotive engineer's certificate for an alleged
violation of a railroad rule or practice that is more stringent than
the condition or restrictions required by Part 240. This proposal
conforms to Sec. 242.403(f)(4).
Existing paragraphs (g)(3)(i) and (ii) currently state the
mandatory revocation periods in terms of ``months.'' FRA proposes to
change ``month'' to 30 days and ``six months'' to 180 days to ensure
uniformity and eliminate any ambiguity.
Finally, FRA proposes adding a new paragraph (h) after existing
paragraph (g) in this section, providing that all periods of revocation
may consist of training. While existing Part 240 does not contain a
similar provision, it is certainly not prohibited under the current
regulation and FRA is including this proposed revision to make FRA's
intent clear and to conform to Sec. 242.405(b). By inserting proposed
paragraph (h) after existing paragraph (g), existing paragraph (h)
(addressing an individual's future eligibility to hold a locomotive
engineer certificate after a

[[Page 20482]]

denial of certification or revocation event) would be redesignated as
proposed paragraph (i).

Section 240.119 Criteria for Consideration of Data on Substance Abuse
Disorders and Alcohol/Drug Rules Compliance

Existing Sec. 240.119 addresses active substance abuse disorders
and prior alcohol/drug rules compliance of engineers or engineer
candidates. FRA is proposing to revise this section to make it the same
as corresponding Sec. 242.115, which FRA believes is better organized
and easier to understand than existing Sec. 240.119. The only
differences between the proposed Part 240 version of this section and
the Part 242 version are the references to locomotive engineer instead
of conductor, and citations to the engineer rule instead of the
conductor rule. Existing paragraph (b)(2) requires a ``certified
engineer who is determined to have an active substance abuse disorder''
to be ``suspended from certification.'' Because the word ``suspended''
is not defined in existing Part 240, FRA proposes to replace the phrase
``suspended from certification'' with the phrase ``ineligible to hold
certification.'' This revision would make existing Sec. 240.119(b)(2)
consistent with the corresponding provision in Sec. 242.115(d)(2), and
the revised paragraph would be renumbered as paragraph (d)(2).
FRA is also proposing to remove the word ``failure'' from the
phrase ``refusal or failure'' in existing paragraph (c)(2) and renumber
the paragraph as proposed paragraph (e)(2) of this section. Existing
paragraph (c)(2) requires a railroad, when determining whether an
individual may be or remain certified as a locomotive engineer, to
consider any previous violations of Sec. Sec. 219.101 or 219.102 and
any ``refusal or failure to provide a breath or body fluid sample for
testing'' under Part 219. Removing the word ``failure'' will make this
paragraph the same as paragraph (e)(2) of Sec. 242.115 and ensure
consistency with subpart I of Part 40, which provides the medical
conditions under which an individual's failure to provide a sufficient
sample is not deemed a refusal.
In addition, FRA proposes to amend this section by replacing ``EAP
Counselor'' with ``Substance Abuse Professional (SAP) or drug and
alcohol counselor (DAC)'' for the reasons explained above in the
section-by-section analysis for the definitions of ``drug and alcohol
counselor,'' ``EAP Counselor,'' ``substance abuse disorder,'' and
``Substance Abuse Professional.''
Finally, existing paragraph (d) of this section, now proposed
paragraph (f), prescribes the conditions under which employees may be
certified or recertified after a determination that their certification
should be denied, suspended, or revoked due to a violation of
Sec. Sec. 219.101 or 219.102. Existing paragraph (d)(1)(iii) provides
that an individual is not eligible for certification or recertification
unless and until the person presents a urine sample that tests negative
for alcohol and controlled substances assayed. FRA is proposing to
revise this paragraph to make it the same as Sec. 242.115(f)(1)(iii)
and specify that an individual must have ``an alcohol test with an
alcohol concentration of less than .02.'' Specifying the alcohol
concentration limit more accurately reflects the provisions of Part
219.
FRA notes Part 240, like Part 242, does not require compensation of
the employee for the time spent in testing, evaluation, counseling, or
other treatment under paragraph (d) (now proposed paragraph (f)) of
this section, which, under certain circumstances, is a condition
precedent to retention of a locomotive engineer certificate. Instead,
any applicable collective bargaining agreement or other terms and
conditions of employment under the Railway Labor Act would dictate what
compensation, if any, an employee is due.

Section 240.121 Criteria for Vision and Hearing Acuity Data

Existing Sec. 240.121 contains the requirements for visual and
hearing acuity railroads must incorporate into their locomotive
engineer certification programs. FRA proposes to amend paragraphs (a)
and (c) of this section to conform to Sec. 242.117(a) and (i). These
proposed revisions update Part 240's testing procedures and standards
for the hearing acuity requirements. FRA is not proposing language
consistent with Sec. 242.117(c), (d), and (e) because similar
requirements exist in Sec. 240.207(b), (c), and (d). The proposed
testing procedures and standards for the hearing acuity requirements,
which mirror those in Sec. 242.117(i), are derived from the procedures
and standards in 49 CFR part 227 governing occupational noise exposure
and are more stringent than those in existing Sec. 240.121. The
criteria an individual must meet to pass the hearing test, however,
remains the same (i.e., an individual cannot have an average hearing
loss in the better ear greater than 40 decibels with or without use of
a hearing aid, at 500 Hz, 1,000 Hz, and 2,000 Hz).
The proposed testing procedures and standards for the hearing test
or audiogram are the same three choices provided to conductors in Sec.
242.117(i). The hearing test or audiogram must (1) meet the
requirements of the Occupational Safety and Health Administration's
requirements in 29 CFR 1910.95(h); (2) comply with Sec. 227.111; or
(3) be conducted using an audiometer meeting the specifications of ANSI
S3.6-2004, ``Specifications for Audiometers,'' provided the audiometer
is maintained and used as that standard requires.

Section 240.123 Training

Existing Sec. 240.123 requires railroads to provide their
certified locomotive engineers initial and continuing education to
ensure each engineer maintains the necessary knowledge, skill, and
ability to carry out the duties of a locomotive engineer. FRA proposes
to revise this section's heading to be the same as Sec. 242.119
(Training). FRA also proposes to amend this section to be similar to
Part 242 (Sec. 242.119), and to relate the training and education
requirements of Part 240 to the requirements of 49 CFR part 243 (Part
243) for the training, qualification, and oversight of safety-related
railroad employees.
Although Part 243 was a statutorily mandated rule, it was neither
proposed nor effective when Part 242 became effective. However, the
Part 243 proposed rule was based on an RSAC recommendation made before
Part 242 was published,\7\ and so the industry was aware of the likely
requirements to be proposed and FRA understood RSAC's intent as a
desire for conductor training standards to meet any future, FRA
training standard requirements in Sec. 243.101. Part 243 requires each
employer of safety-related railroad employees to submit training
programs for FRA's review and approval. FRA's Part 243 review is
intended to ensure that each employer will deliver formal training on
all required Federal railroad safety requirements to each occupational
category or subcategory of employee doing safety-related work and that
OJT is formalized, with a structured curriculum that provides
measurable results.
---------------------------------------------------------------------------

\7\ On November 9, 2011, FRA published the conductor
certification final rule which was effective on January 1, 2012. 76
FR 69802. On February 7, 2012, FRA published the Part 243 proposed
rule which noted that the Working Group's recommendations were
accepted by the full RSAC on December 14, 2010. 77 FR 6412, 6415.
---------------------------------------------------------------------------

In FRA's estimation, locomotive engineer and conductor training
programs have been, and continue to be, sufficiently robust to meet the
Part 243 standards. These certification training

[[Page 20483]]

programs are already required to be submitted to FRA for review and
approval under Parts 240 and 242, and thus railroads were exempted from
submitting them under Part 243, unless the railroad's plan did not
provide sufficient detail regarding the OJT components (Sec.
243.103(b)). When that is the case, the railroad is only required to
supplement the certification training program with the updated OJT
portion as a material modification as required in Sec. Sec. 240.103(e)
and 242.103(i). In keeping with the Part 243 requirements, FRA proposes
to amend paragraph (c) of this section to require a railroad training a
previously untrained person to be a locomotive engineer to provide
initial training that, at a minimum, complies with the requirements of
Sec. 243.101. The proposed language is intended to ensure that
locomotive engineer OJT programs are properly modified, if necessary to
conform to the requirements in Sec. 243.101. The deadlines for
implementing the modifications are governed by Part 243. Note that FRA
amended the implementation deadlines for compliance with Sec. 243.101,
and so railroads and other employers that employ locomotive engineers
are not required to modify locomotive engineer OJT programs until
January 1, 2020, at the earliest (a May 1, 2021 deadline is established
for an employer conducting railroad operations employing fewer than
400,000 total employee work hours annually). 82 FR 20549 (May 3, 2017)
(extending all implementation dates in Part 243 by one year) and 82 FR
18455 (April 27, 2018) (extending all implementation dates in Part 243
by an additional year, thereby delaying each of the implementation
dates in the 2014 Part 243 final rule by a total of two years).
Existing paragraph (c)(4) lists the subject matters a railroad's
initial locomotive engineer training must cover. Proposed paragraph
(c)(4)(ii) would add ``railroad operating procedures'' to the list of
subject matter areas to be covered during initial training. Existing
paragraph (c)(4)(ii) only references ``railroad operating rules.''
Proposed paragraph (c)(4)(vi) would clarify that a railroad's
initial locomotive engineer training must cover ``[c]ompliance with
Federal railroad safety laws, regulations, and orders.'' The existing
paragraph only mentions compliance with Federal regulations, so the
proposed language is more precise in expressing the Federal
requirements that must be covered. The proposed language is also the
same as that found throughout Sec. 242.119.
Existing paragraph (c)(5) specifies that the performance skill
component of initial engineer training must meet certain conditions.
FRA proposes to add the phrase shall ``meet the following conditions''
to the introductory text of this paragraph to clarify that each of the
listed conditions must be met.
Finally, FRA proposes to add new paragraphs (e) and (f) to this
section. These paragraphs would require railroads to designate in their
locomotive engineer programs the time period in which a locomotive
engineer must be absent from a territory or yard before requalification
on physical characteristics is required and the procedures used to
qualify or requalify an individual on the physical characteristics.
These proposed new paragraphs would be the same as paragraphs (j) and
(k) of Sec. 242.119, and are important components for ensuring
locomotive engineers are familiar with the physical characteristics of
the territory over which they will operate.

Section 240.125 Knowledge Testing

This section requires railroads to provide initial and periodic
training and testing of locomotive engineers to determine that each
such person has sufficient knowledge of the railroad's rules and
practices for the safe operation of trains. FRA proposes to revise
paragraph (a) of this section to be the same as paragraph (a) of Sec.
242.121, which sets forth the requirement that railroads must adopt and
comply with a program meeting the requirements of the section.
Similar to the proposed revision to Sec. 240.123(c)(4)(vi)
discussed above, FRA is also proposing to amend Sec. 240.125(c)(4)(v)
to clarify that the criteria for testing a locomotive engineer's
knowledge must cover not only compliance with ``Federal safety laws,''
but also ``[c]ompliance with Federal railroad safety laws, regulations,
and orders.''
FRA also proposes to add new paragraphs (e), (f), and (g), which
would be the same as paragraphs (e), (f), and (g) of Sec. 242.121.
Proposed new paragraph (e) would require a railroad to provide the
person(s) being tested with an opportunity to consult with a
supervisory employee who possesses territorial qualifications for the
territory to explain a test question. Proposed new paragraph (f) would
require the railroad to keep documentation indicating whether the
person passed or failed the knowledge test. Proposed new paragraph (g)
would require each railroad to ensure that an individual who fails a
knowledge test is not permitted or required to function as a locomotive
engineer until that person achieves a passing score during a
reexamination of the person's knowledge. FRA included these
requirements in Part 242 to address RSAC Working Group members'
concerns. Proposed paragraph (e) addresses RSAC Working Group members'
concerns that individuals being tested should be able to obtain
clarification of test questions by someone with knowledge of the
relevant territory. Proposed paragraph (f) ensures test documentation
indicates whether the person taking the test passed or failed the test.
Proposed paragraph (g) prohibits a railroad from permitting or
requiring an individual to function as a locomotive engineer until that
person achieves a passing score on his or her knowledge test. This
paragraph addresses the concern that an individual who fails a
knowledge test would therefore lack adequate knowledge of the
railroad's rules and practices for the safe operation of trains, even
if the person is currently certified to do so. Because these same
concerns addressed by requirements in the conductor rule are applicable
to locomotive engineers, FRA is proposing to incorporate the same
requirements into Part 240 as applied to locomotive engineers.

Section 240.127 Criteria for Examining Skill Performance

Existing Sec. 240.127 requires a railroad to have procedures for
examining the performance skills of an individual being evaluated for
qualification as a locomotive engineer. As discussed in the above
section-by-section analysis of Sec. 240.117, FRA proposes to amend
paragraph (a) of this section simply to clarify the responsibilities of
railroads, railroad officers, supervisors, and employees regarding the
requirements of this section.

Section 240.129 Criteria for Monitoring Operational Performance of
Certified Engineers

Existing Sec. 240.129 requires railroads to have procedures for
monitoring the operational performance of locomotive engineers and
contains the requirements for railroads to conduct both an operational
monitoring observation and an unannounced compliance test each calendar
year. FRA proposes to amend this section to provide the same
flexibility as in Part 242 to conduct monitoring outside of the
calendar year requirement when a certified person is not performing
service requiring certification. See Sec. 242.123(f). For example, a
certified engineer may be on furlough, in military service, off with an
extended illness, or working in another

[[Page 20484]]

capacity for the railroad. Existing Sec. 240.129 requires railroads to
seek a waiver from FRA for engineers they are unable to test each
calendar year. The proposed amendments would remove this requirement
and railroads would not be required to conduct unannounced compliance
tests or operational monitoring observations on engineers who are not
performing service requiring certification. Instead, when such a
certified locomotive engineer returns to engineer service, this
proposed rule would require that the engineer be given both tests
within 30 days of his or her return. This proposed change would make
the treatment of certified engineers who are not performing service
requiring certification consistent with the treatment of conductors
under Sec. 242.123 not performing conductor service. See Sec.
242.123(b) and (f). Moreover, proposed Sec. 240.129(b)(2) would
require a railroad intending to avoid conducting an operational
monitoring observation or an unannounced compliance test on a certified
engineer not performing service requiring certification to retain a
written record documenting certain dates regarding a locomotive
engineer's service to prove that the locomotive engineer met the
exception in proposed paragraph (h). This is the same recordkeeping
requirement as in Sec. 242.123(b)(2).
Several other revisions are proposed to add clarity to the existing
requirements. Existing paragraph (c) says ``the procedures shall,''
which does not make clear that the procedures in paragraph (c) apply to
the operational monitoring observation, not the unannounced compliance
test. Proposed paragraph (c)(2) clarifies that the procedure applies to
an ``operational monitoring observation,'' not the more generic term
``operational performance monitoring'' which could apply to both the
operational monitoring observation and the unannounced compliance test.
Proposed paragraph (d) also clarifies that the procedure applies to an
``operational monitoring observation,'' as the existing language does
not clearly specify whether it applies to an operational monitoring
observation or an unannounced compliance test. Proposed paragraph (e)
clarifies that the requirements listed apply to the unannounced
compliance test program and not the ``operational monitoring
observation,'' as the existing language does not clearly specify the
type of test.

Section 240.205 Procedures for Determining Eligibility Based on Prior
Safety Conduct

Existing section 240.205 requires railroads, before initially
certifying or recertifying an individual as a locomotive engineer, to
determine that the person meets the eligibility requirements of
Sec. Sec. 240.115, 240.117 and 240.119 involving the individual's
prior conduct as a motor vehicle operator, prior revocations as a
locomotive engineer or railroad worker with duties under Part 240, and
prior FRA alcohol and drug violations that may be indicative of
substance abuse disorders. FRA proposes to amend paragraph (a) of this
section to clarify that a railroad need not, prior to certifying an
individual as a student engineer, determine the person meets the listed
eligibility requirements. FRA intends this revision as a clarification
to make Sec. 240.205(a) consistent with existing Sec. 240.203. Under
existing Sec. 240.203, a railroad may certify an individual as a
student engineer after determining the person meets the hearing and
vision acuity standards of Sec. 240.121, but the railroad does not
need to determine if a student engineer meets the eligibility
requirements of Sec. Sec. 240.115, 240.117, and 240.119. There is no
comparable provision in Part 242 because the conductor certification
regulation does not recognize student conductors as a class of service.
For the reasons discussed above in the section-by-section analysis
for the definitions of ``drug and alcohol counselor,'' ``EAP
Counselor,'' ``substance abuse disorder,'' and ``Substance Abuse
Professional,'' FRA proposes to revise paragraph (b) of this section by
replacing ``EAP Counselor'' with DAC, the abbreviation for drug and
alcohol counselor.

Section 240.207 Procedures for Making the Determination on Vision and
Hearing Acuity

FRA proposes to amend this section by adding a semicolon at the end
of paragraph (b)(2)(i). This proposed change does not change the
meaning of this section. This existing section is the same as Sec.
242.117(b) through (f).

Section 240.209 Procedures for Making the Determination on Knowledge

FRA proposes to amend this section by adding three punctuation
marks and correcting the designation of paragraphs (b)(i) and (b)(ii)
to (b)(1) and (b)(2) respectively. At the end of paragraph (b), FRA
proposes to add a colon. At the end of paragraph (b)(i), FRA proposes
to add a semicolon. Finally, in paragraph (c), FRA proposes to add a
comma after the phrase ``[i]f a person fails to achieve a passing score
under the testing procedures required by this part.'' The proposed
changes do not change the meaning of this section and the requirements
of this existing section are consistent with the requirements of Sec.
242.121(f) and (g).

Section 240.211 Procedures for Making the Determination on Performance
Skills

FRA proposes to amend this section by adding two punctuation marks
and correcting the numbered paragraphs in paragraph (b). At the end of
paragraph (b)'s introductory text, FRA proposes to add a colon. At the
end of paragraphs (b)(i), FRA proposes to add a semicolon. The proposed
changes do not change the meaning of this section.

Section 240.215 Retaining Information Supporting Determinations

This section contains the recordkeeping requirements for railroads
that certify locomotive engineers. FRA proposes to amend paragraph (j)
of this section to update Part 240's electronic record retention
requirements and make those requirements the same as Part 242's. See
Sec. 242.203(g). While this section currently permits railroads to
retain records electronically, proposed paragraph (j) of this section
provides more specific requirements regarding the electronic storage
system used to retain the records. FRA recognizes the growing
prevalence of electronic records, and acknowledges the unique
challenges electronic transmission, storage, and retrieval of records
can present. FRA also recognizes the need to maintain the integrity and
security of records stored electronically. Thus, FRA believes the more
specific requirements for electronic storage systems adopted in Part
242 are appropriate. Further, to allow for future advances in
technology, the electronic record storage provisions in proposed
paragraph (j) are technology-neutral.
FRA also proposes to remove a semicolon at the end of paragraph
(e)(2). The proposed change in punctuation does not change the meaning
of this paragraph.

Section 240.217 Time Limitations for Making Determinations

This section contains various time constraints precluding railroads
from relying on stale information when evaluating a candidate for
certification or recertification. FRA proposes amending paragraphs
(a)(2) and (a)(4) to

[[Page 20485]]

conform to Part 242 (see Sec. 242.201). Existing paragraph (a)(2)
prohibits a railroad from making a certification decision based on a
visual and hearing acuity examination more than 366 days before its
certification decision. As under Sec. 242.201(a)(2), FRA proposes to
allow railroads to use visual and hearing acuity examination data from
up to 450 days before the certification decision. The 450-day period
corresponds to the requirement in Sec. 227.109 that railroads must
offer employees included in a hearing conservation program a hearing
test at least every 450 days.
To accommodate railroads performing knowledge testing on a two-year
cycle, FRA also proposes adding a new paragraph (a)(4) to this section,
the same as Sec. 242.201(a)(4), which would allow those railroads to
rely on knowledge determinations and knowledge examinations
administered up to 24 months before the railroad's certification
decision.
Given proposed new paragraph (a)(4), existing paragraph (a)(4)
allowing railroads to rely on performance skills and performance skill
testing up to 366 days before the railroad's certification decision
would be redesignated as paragraph (a)(5). Part 242 does not contain a
comparable provision.
FRA proposes to delete the prefatory language in paragraph (d) that
refers to an exception during the initial implementation of the
program. Because that initial implementation occurred in 1991 when Part
240 first became effective, there is no longer a need to state the
exception.
FRA is also proposing a grammatical correction to paragraph (a)(1)
to change ``were'' to ``was.''

Section 240.219 Denial of Certification

This section provides the minimum procedures railroads must follow
before denying an individual's certification or recertification. FRA
proposes to amend this section to update the minimum procedures
railroads must follow before denying a candidate's certification or
recertification and make it the same as the process for denying a
conductor's certification or recertification under Sec. 242.401. FRA
believes the proposed amendments to paragraphs (a), (c), and (d) will
not only improve the transparency of the locomotive engineer
certification denial process and improve FRA's ability to adjudicate
petitions seeking review of a railroad's denial decision pursuant to
subpart E of Part 240 (Subpart E), but also ease the regulatory burden
on railroads by having one consistent process to follow for denying
both locomotive engineer and conductor certifications or
recertifications.
Existing paragraph (a) of this section requires a railroad, before
denying an individual's certification or recertification, to notify the
individual of information known to the railroad that forms a basis for
denying his or her certification and to provide the individual with a
reasonable opportunity to explain or rebut the information in writing.
To make this existing provision the same as Sec. 242.401(a), FRA
proposes adding a second sentence to this paragraph requiring a
railroad to provide a locomotive engineer certification candidate with
any written documents or records ``related to his or her failure to
meet a requirement of Part 240 which supports a railroad's pending
denial decision.'' FRA intends this revision to prevent situations
where a railroad does not provide a locomotive engineer certification
candidate with enough information regarding a denial decision to draft
an appropriate rebuttal. FRA wants to avoid the delay and cost of a
locomotive engineer candidate having to petition FRA's OCRB to obtain
the documents he or she needs to rebut the denial decision. If
locomotive engineer certification candidates are provided better
information upfront, FRA expects they will file fewer petitions with
the OCRB. As under Part 242, FRA would not require railroads to provide
documentation on employment or personal issues because generally those
issues are outside the scope of Part 240. Instead, FRA would require
railroads to provide certification candidates with documents related to
a failure to meet a requirement of Part 240 that would support a
decision to deny the individual certification or recertification. For
example, FRA would expect railroads to provide certification candidates
locomotive download printouts, Form Bs, and/or transcripts of railroad
communications support a pending denial decision. As it does under
existing Part 240, under this proposed rule the OCRB would already have
the authority to order a railroad to produce these types of documents
and FRA would not expect these documents to be privileged. In a small
number of petitions to the Locomotive Engineer Review Board (LERB), FRA
noticed a railroad merely making the documents or records available for
viewing by the person within a railroad office. The changes to this
paragraph clarify FRA's current interpretation that a railroad is
required to provide the person with a complete copy of those documents
or records relied on, including color copies of photographs and videos
in a readable format.
Existing paragraph (c) of this section requires each railroad
denying an individual certification or recertification to notify the
person of its decision in writing and explain, in writing, the basis
for its denial decision. This existing paragraph requires the
railroad's written explanation to be ``mailed or delivered'' to the
certification candidate within 10 days after the railroad's decision.
FRA proposes to revise this paragraph to require railroads to ``serve''
a written explanation of an adverse decision on a certification
candidate (see proposed definition of ``serve or service'' in Sec.
240.7, which is consistent with the term as defined in Sec. 242.7).
Using the defined term ``serve,'' rather than the current phrase
``mailed or delivered,'' will make Part 240 internally consistent and
will help FRA in determining whether a petition seeking review of a
denial decision is timely filed under Sec. 240.403. As paragraph (c)
to Sec. 242.401 does, the proposed changes to Sec. 240.219 would also
explicitly require a railroad's denial decision address any explanation
or rebuttal information a locomotive engineer candidate may have
provided in writing under paragraph (a) of this section. The current
rule strongly implies a railroad's denial decision should address any
such information a certification candidate provides, but often
railroads' decisions do not address this information. The failure of
railroads to explicitly address information certification candidates
provide to rebut potential adverse decisions has led to delays in FRA's
review of railroads' decisions, as FRA often needs to query the
railroad on why the explanation or rebuttal was unsatisfactory before
determining whether the railroad's decision was proper. By requiring a
railroad's decision to explicitly address a candidate's rebuttal, FRA
anticipates locomotive engineer candidates petitioning FRA will have a
better understanding of the railroad's reasoning for its denial
decision and FRA's OCRB will be able to complete its review of the
railroad's decision on a more-timely basis.
Consistent with paragraph (d) of Sec. 242.401, which prohibits a
railroad from denying an individual's conductor certification for
failure to comply with certain operating rules or practices if
sufficient evidence exists that an intervening cause prevented or
materially impaired the conductor's ability to comply, FRA proposes to
add a new paragraph (d) to this section. Paragraph (d) would explicitly
prohibit a railroad from denying an individual's

[[Page 20486]]

locomotive engineer certification based on his or her failure to comply
with Sec. 240.117(e)(1) through (5) if sufficient evidence exists to
establish that an intervening cause prevented or materially impaired
the locomotive engineer's ability to comply with those provisions. FRA
derived proposed paragraph (d) from the intervening cause exception for
revocation in existing Sec. 240.307(i)(1). Although the regulation
already implies a railroad may not deny an individual certification for
an alleged operating rule violation occurring when the person's actions
are the result of an intervening cause, this proposed revision to
paragraph (d) will clarify this limitation.

Section 240.221 Identification of Qualified Persons

Existing Sec. 240.221 requires railroads to maintain, and update
at least annually, a written record identifying each person designated
as a supervisor of locomotive engineers (DSLE) and as a certified
locomotive engineer.
Currently, paragraph (d) requires railroads to update the listings
this section requires at least annually and paragraph (e) requires
railroads to keep the required lists at the divisional or regional
headquarters of each railroad. To simplify the regulation, FRA proposes
to combine the requirements of existing paragraphs (d) and (e) into one
paragraph, proposed paragraph (d). As proposed, paragraph (d) would be
the same as paragraph (c) of Sec. 242.205.
FRA also proposes to add new language to paragraph (e) clarifying
that it is unlawful for a railroad to knowingly, or an individual to
willfully, make a false entry on or falsify the lists this section
requires. The same language is found in Sec. 242.205(d) and similar
language is found in Sec. 240.215(i) (referencing ``records'' as
opposed to ``lists'').
While existing paragraph (f) of this section permits railroads to
retain records electronically, the proposed revision to paragraph (f)
provides more specific requirements for the electronic storage system
used to retain the records and does not require a railroad to obtain
FRA approval to maintain the records electronically. The electronic
storage requirements in proposed paragraph (f) track those in
Sec. Sec. 242.203(g) and 242.205(e).

Section 240.223 Criteria for the Certificate

This section contains the requirements for the certificates
railroads must issue to each certified locomotive engineer. Among other
things, existing Sec. 240.223 requires locomotive engineer
certificates to contain the certified individual's birth date and the
date the railroad issued the certificate. To address privacy concerns
RSAC Working Group members expressed, conform the requirements of this
section to Sec. 242.207, and make it easier for railroads to issue a
single certificate to an individual certified as both a conductor and a
locomotive engineer, FRA proposes two changes to this section. First,
FRA proposes to revise paragraph (a)(3) to be the same as paragraph
(a)(3) of Sec. 242.207. As revised, paragraph (a)(3) would require the
certificate to contain only the year of the individual's birth (as
opposed to his or her full birth date). FRA also proposes to revise
paragraph (a)(5) to be the same as paragraph (a)(5) of Sec. 242.207.
As revised, paragraph (a)(5) would require certificates to include the
effective date of the certificate (as opposed to the issuance date
currently required). Some railroads currently include both the issuance
date and the effective date on certificates, which has caused confusion
when calculating certificates' expiration dates. Unless an expiration
date is provided on a certificate, the effective date, in conjunction
with the railroad's Part 240 program, is the date that FRA will use to
determine when the certificate expires. In other words, when reviewing
a certificate that contains only an effective date, FRA will assume
that the certificate is valid for 36 months from the effective date
unless the railroad's Part 240 program specifies a shorter expiration
period.

Section 240.225 Reliance on Qualification Determinations Made by Other
Railroads

Existing Sec. 240.225 contains the conditions under which a
railroad considering certification of an individual as a qualified
engineer may rely on determinations concerning that person's
qualifications made by another railroad. FRA is not proposing any
substantive change to this section. However, for clarity and
consistency with the corresponding provision in Part 242 (Sec.
242.125), FRA is proposing to redesignate as paragraph (b) the last
sentence of paragraph (a)'s introductory text, along with the list in
paragraphs (a)(1) through (5). This change would make the structure of
Sec. 240.225 consistent with the structure of Sec. 242.125. Paragraph
(a) would provide that in making certification decisions, a railroad
may rely on determinations made by another railroad, and paragraph (b)
would specify the determinations a railroad needs to make when relying
on another railroad's certification of an individual as a qualified
locomotive engineer.

Section 240.229 Requirements for Joint Operations Territory

FRA is not proposing any changes to the requirements in this
section, but offers this analysis to address issues raised by some RSAC
Working Group members. Under existing Sec. 240.229, the railroad
responsible for controlling joint operations with another railroad is
also responsible for determining who is permitted to operate in the
joint operations territory and for certifying those locomotive
engineers to operate in the joint operations territory.
Some RSAC Working Group members suggested that a railroad
controlling joint operations should not be responsible for making any
determinations concerning the certification and territorial
qualifications of another railroad's locomotive engineers. However,
because this is a requirement of both Part 240 (see Sec. Sec.
240.221(c) and (d), and 240.229(c)(1)(i)) and Part 242 (see Sec.
242.301(a)), this suggestion would involve more than just conforming
Part 240 to Part 242. Further, this is an issue that FRA extensively
addressed in an August 29, 2008 published interpretation. 73 FR 50883.
In that interpretation, FRA explained that some controlling railroads
directly certify and qualify another railroad's locomotive engineers,
whereas other controlling railroads indirectly certify and qualify.
Controlling shortline and regional railroads typically directly certify
and qualify; controlling major freight railroads generally indirectly
certify and qualify. 73 FR at 50884. FRA maintains that although the
employing railroad may generally bear the most direct responsibility to
ensure each of its locomotive engineers is certified and qualified to
operate in the joint operations territory, the controlling railroad
also bears significant responsibility. The controlling railroad that
indirectly certifies and qualifies may provide training to the other
railroad's DSLEs who then train their own locomotive engineers, and it
is possible that the training provided to the other railroad is
inadequate. Although FRA may be willing to revisit this issue in
another rulemaking, FRA believes that a controlling railroad must bear
some responsibility for hosting another railroad's locomotive engineers
and conductors in joint operations territory and for that reason FRA
declines to adopt the suggestion to eliminate that responsibility in
this proposed rulemaking.

[[Page 20487]]

Paragraph (f) does provide an exception to this section's
requirements for ``minimal joint operations'' if four conditions are
met. The four conditions include: (1) Maximum authorized speed on the
track is 20 miles per hour; (2) the track is other than main track; (3)
operations are conducted under operating rules requiring every
locomotive and train to proceed at a speed permitting stopping within
one half the range of vision of the locomotive engineer; and (4) there
is no more than one mile of joint operations territory. This locomotive
engineer exception is more lenient than the equivalent conductor
provision, which is a strict prohibition on an unqualified conductor
working in joint operations territory. Sec. 242.301(a).
A RSAC Working Group member suggested FRA revise paragraph (f) of
Sec. 240.229 to require compliance with only one of the listed
conditions, not all four. FRA declines to propose this suggestion
because it would permit locomotive engineers who are unfamiliar with
the physical characteristics of the joint operations territory to
operate far into that unfamiliar territory under conditions that could
be extremely challenging for the locomotive engineer. Thus, it is
probable that such a provision would lead to many unsafe situations in
joint operations.

Section 240.301 Replacement of Certificates

Existing Sec. 240.301 requires railroads to have a system,
reasonably accessible to certified locomotive engineers, for the prompt
replacement of lost, stolen, or mutilated certificates. FRA proposes to
revise this section to be the same as the corresponding provision in
Part 242, Sec. 242.211. Specifically, FRA proposes dividing this
section into two paragraphs. Proposed paragraph (a) would be the same
as paragraph (a) of Sec. 242.211 and would make railroads responsible
for providing replacement certificates to engineers at no cost to the
locomotive engineer. Proposed paragraph (b) would be the same as
paragraph (b) of Sec. 242.211, which authorizes railroads to issue
temporary replacement certificates valid for no more than 30 days.

Section 240.303 Operational Monitoring Requirements

Section 240.303 currently requires railroads subject to Part 240 to
have a program to monitor the conduct of their certified locomotive
engineers by performing both operational monitoring observations and by
conducting unannounced operating rules compliance tests. For
consistency with the proposed revisions to Sec. 240.129 (discussed
above in the section-by-section analysis for that section), FRA
proposes to amend paragraphs (b) and (c) of this section to exempt
railroads from the requirement to conduct unannounced compliance tests
on locomotive engineers who are not performing service requiring
certification.

Section 240.305 Prohibited Conduct

This section sets forth the general prohibitions on actions of
certified locomotive engineers, requires individual engineers to keep
their certificates with them while on duty as engineers, and requires
engineers to display their certificates in certain situations.
Specifically, under existing paragraph (b) of this section, a certified
locomotive engineer must display her or her certificate upon the
request of an FRA or railroad representative. In the section-by-section
analysis for the conductor certification final rule, FRA clarified its
intent that State inspectors authorized under FRA's State Safety
Participation Regulations, 49 CFR part 212 (Part 212), could be
considered ``FRA representatives,'' but that by mentioning such State
inspectors separately it would ensure that there would be no dispute
regarding their authority. 76 FR at 69824-25. For that same reason, FRA
proposes to amend this paragraph to make it the same as paragraph (a)
of Sec. 242.209 and expressly add a new paragraph (b)(2)(ii) making
clear that, upon request, a locomotive engineer must display his or her
certificate to a State inspector authorized under Part 212. In doing
so, FRA proposes to add a colon to the end of paragraph (b)(2) and
renumber existing paragraphs (b)(2)(ii) and (iii).

Section 240.307 Revocation of Certification

Existing Sec. 240.307 provides the procedures a railroad must
follow to revoke a certified locomotive engineer's certification. FRA
proposes to amend this section to clarify its intent and make it the
same as Sec. 242.407, which addresses the revocation of conductor
certifications. A more detailed discussion of these changes is found in
the section-by-section analysis of Sec. 242.407 in the conductor
certification final rule. 76 FR at 69829.
Existing paragraph (a) requires a railroad to revoke an engineer's
certification if it ``acquires information'' about the engineer's
violations of certain operating rules and practices or prior alcohol or
drug violations ``which convinces the railroad the person no longer
meets the qualification requirements'' of Part 240. FRA proposes to
amend this paragraph to add the word ``reliable'' before
``information,'' and to remove the phrase ``which convinces the
railroad that the person no longer meets the qualification requirements
of this part.'' These proposed revisions would make paragraph (a) of
this section the same as paragraph (a) of Sec. 242.407.\8\
---------------------------------------------------------------------------

\8\ The only difference between proposed paragraph (a) of Sec.
240.307 and existing paragraph (a) of Sec. 242.407 are the
regulatory citations referenced for violations of (1) operating
rules and practices and (2) alcohol or drug use. Paragraph (a) of
Sec. 240.307 refers to the relevant provisions of Part 240 (Sec.
240.117(e) and Sec. 240.119(c)); paragraph (a) of Sec. 242.407
refers to the relevant provisions of Part 242 (Sec. 242.403(e) and
Sec. 240.115(e)).
---------------------------------------------------------------------------

Paragraph (b)(1) currently requires railroads to immediately
suspend an engineer's certificate upon receipt of ``reliable
information indicating the person's lack of qualification'' under Part
240. FRA believes this phrase is prone to misinterpretation and
proposes to replace the reference to an individual's ``lack of
qualification'' under Part 240 with more specific language ``regarding
violation(s) of Sec. 240.117(e) or Sec. 240.119(c) of this chapter.''
This proposed change would make paragraph (b)(1) of this section the
same as paragraph (b)(1) of Sec. 242.407(b), with the exception of the
regulatory provisions cited.\9\
---------------------------------------------------------------------------

\9\ See footnote 8.
---------------------------------------------------------------------------

To mirror the procedures in Part 242, FRA proposes to add a new
paragraph (b)(4) to this section specifying that no later than the
convening of a hearing, the railroad convening the hearing must provide
the person whose engineer certificate is at stake with a ``copy of the
written information and list of witnesses the railroad will present at
the hearing.'' Further, if the railroad does not provide the required
information until just before the hearing is convened, a recess at the
start of the hearing must be granted if requested to consider the
information. In addition, any relevant information required to be
provided under this section that leads to the suspension of an
engineer's certificate pursuant to paragraph (b)(1), is to be provided
through statements of an employee of the convening railroad, and the
railroad must make that employee available for examination during the
hearing. Finally, FRA proposes to clarify in the last sentence of new
paragraph (b)(4) that a witness's examination may be telephonic where
it is impractical to have the witness appear at the hearing. These
proposed provisions would make paragraph (b)(4) of Sec. 240.307 the
same as paragraph (b)(4) of 242.407.

[[Page 20488]]

Some members of the RSAC Working Group suggested revising proposed
paragraph (b)(4) to require railroads to provide all (as opposed to
written) information relied upon to suspend an individual's certificate
and to add the word ``only'' in the last sentence of that paragraph to
read: ``Examination may be telephonic only where it is impractical to
provide the witness at the hearing.'' Because those changes do not
conform to Part 242, FRA declines to adopt them for this rulemaking.
However, FRA will consider addressing these issues in any future Part
240 and Part 242 rulemaking.
As proposed, paragraph (b)(4) would be a new requirement and its
insertion in the existing list of six items in paragraph (b) means that
paragraphs (b)(4) through (6) would be renumbered as paragraphs (b)(5)
through (7). Paragraphs (b)(6) and (b)(7) would contain the same exact
requirements as existing paragraphs (b)(5) and (b)(6). The proposed
changes to existing paragraph (b)(4) (renumbered as proposed in
paragraph (b)(5)), are described below.
Existing paragraph (b)(4) (which would become paragraph (b)(5) if
new proposed paragraph (b)(4) discussed above is adopted), requires a
railroad to ``[d]etermine, on the record of the hearing, whether the
person no longer meets the qualification requirements of this part.''
Similarly, existing paragraph (c)(2) requires the hearing to be
conducted by a ``presiding officer, who can be any qualified person
authorized by the railroad other than the investigating officer.'' FRA
proposes to replace the words ``qualification'' and ``qualified'' in
these paragraphs with the words ``certification'' and ``proficient,''
respectively. These proposed amendments would make the language of
paragraphs (c)(2) and (b)(5) of Sec. 240.307 the same as paragraphs
(c)(2) and (b)(5) of Sec. Sec. 242.407 and FRA intends these
amendments to avoid conflicting with the defined the term ``qualified''
(discussed in the section-by-section analysis for Sec. 240.7).
Although FRA is not proposing to revise existing paragraphs (c)(1)
and (3) of this section, FRA is taking this opportunity to clarify
these existing paragraphs and how they affect an engineer's rights and
a presiding officer's authority in a certification hearing that is not
held in accordance with a collective bargaining agreement. Paragraph
(c)(1) requires a Part 240 hearing to be convened within 10 days of an
individual's certificate suspension unless the locomotive engineer
requests or consents to delaying the start of the hearing. Paragraph
(c)(3), on the other hand, provides the presiding officer with the
``powers necessary to regulate the conduct of the hearing for the
purpose of achieving a prompt and fair determination of all material
issues in controversy.'' Thus, while existing paragraph (c)(1) provides
a locomotive engineer with significant input into when a hearing is
held, the paragraph must be read in conjunction with paragraph (c)(3)
which provides the presiding officer with the powers necessary to
regulate the conduct of the hearing. Thus, a presiding officer is
permitted to deny excessive hearing request delays by a locomotive
engineer. Moreover, a presiding officer could find implied consent to
postpone a hearing where a locomotive engineer's witnesses are not
available within 10 days of the date the railroad suspends the
engineer's certificate. FRA notes, however, the OCRB may grant a
petition on review if it finds the hearing schedule caused a petitioner
substantial harm.
Existing paragraph (c)(9) provides that a railroad proceeding under
Sec. 240.307(c) shall be closed at the conclusion of the hearing
unless the presiding officer allows additional time for the submission
of information. FRA is proposing typographical corrections to this
paragraph to make the paragraph substantively the same as paragraph
(c)(9) of Sec. 242.407 (i.e., adding the word ``the'' before
``conclusion'' in the first sentence and adding a comma after the
introductory phrase ``[i]n such instances'' in the second sentence).
Existing paragraph (c)(11) requires a railroad's decision to
contain the findings of fact and basis for those findings concerning
all material issues presented on the record. The paragraph also
requires the decision to be served on the employee. FRA is proposing
revisions to paragraph (c)(11) to make it the same as paragraph (c)(11)
of Sec. 242.407, including expanding what information is required in
the railroad's written decision and who must be served with a copy of
that decision. Specifically, FRA proposes to amend paragraph (c)(11)(i)
to require a railroad's written decision to not only include the
factual findings, but also include ``citations to all applicable
railroad rules and practices.'' FRA is also proposing a new paragraph
(c)(11)(ii), which would require a railroad's decision to state whether
the railroad official found that a revocable event occurred and the
applicable period of ineligibility with a citation to Sec. 240.117 or
Sec. 240.119. As proposed, the requirement in existing paragraph
(c)(11)(ii) for a railroad to serve a copy of the decision on the
adverse party would be renumbered as proposed paragraph (c)(11)(iii)
and expanded to require the railroad to serve the decision not only on
the employee but also on the employee's representative, if any, and to
require the railroad serving the decision to retain proof of service on
the employee and the employee's representative, if any. The existing
rule does not specifically require a railroad to retain proof of
service, but it is routine for a railroad to do so. In some prior
certification cases, employees have complained to FRA that they were
unaware of any written decision regarding their revocation, and if a
railroad could not provide proof of service then that procedural
concern became a viable issue. FRA believes requiring railroads to
retain proof of service of their decertification decisions will help
reduce the number of OCRB petitions alleging that a railroad did not
issue a written decision, when in fact, the railroad did. In short, FRA
believes its proposed changes to paragraph (c)(11) will ensure
railroads issue clearer and more detailed decisions. Clearer and more
detailed decisions will allow individual locomotive engineers to better
understand a railroad's decision to revoke his or her certification and
will allow the OCRB to better understand the case if it is asked to
review the revocation decision under Part 240. Although the proposed
changes are found in paragraph (c) which applies to a hearing not held
in conformance with an applicable collective bargaining agreement, FRA
would expect each hearing held pursuant to a collective bargaining
agreement as permitted by paragraph (e) of this section to comply with
these proposed changes to paragraph (c)(11), because they are
fundamental to ensuring a railroad can prove its revocation decision
was issued and served.
Existing paragraph (g) requires a railroad relying on an
individual's locomotive engineer certification by another railroad
under Sec. Sec. 240.227 or 240.229 to revoke the individual's
certification if, during the period the certification is valid, ``the
railroad acquires information which convinces it that another railroad
has revoked [the person's] certification after determining in
accordance with the provisions of this section, that the person no
longer meets the qualification requirements of this part.'' FRA
proposes amending paragraph (g) to make it the same as paragraph (g) of
Sec. 242.407. Specifically, FRA proposes to amend paragraph (g) to
remove the phrases ``after determining'' and ``that the person no
longer meets the qualification requirements of this

[[Page 20489]]

part.'' By removing those phrases, the proposed paragraph will more
clearly require a railroad allowing a certified person from another
railroad to operate in joint operations, whether from another U.S.
railroad or from Canada, to provide reciprocal revocations when another
railroad revokes the person's certification. Both proposed and existing
paragraph (g) are intended to ensure that each railroad issuing a
certification to an individual who operates in joint operations does
not ``ignore the safety record of one of its engineers that was
compiled while the engineer was operating on another railroad's
trackage.'' 58 FR 18982, 18991 (1993). Similarly, all railroads
operating in joint operations that certify an individual as a
locomotive engineer ``should rely on the single hearing provided and be
bound by the decision made by the railroad conducting the hearing.''
Id.
FRA proposes to clarify existing paragraph (i) of this section by
deleting unnecessary references to engineer qualification requirements
and specifying when, despite an individual's violation of Sec.
240.117(e)(1) through (5), a railroad is prohibited from revoking that
individual's certification and when a railroad has discretion not to
revoke an individual's certification for such violations. The proposed
revisions to this paragraph will make this paragraph the same as
paragraph (i) of Sec. 242.407.\10\ Both existing paragraph (i) and the
proposed revision to paragraph (i) provide two specific defenses for
railroad supervisors and hearing officers to consider when deciding
whether to suspend or revoke an individual's certificate due to an
alleged revocable event. Paragraph (i)(1) would prohibit a railroad
from revoking an individual's certificate if there is sufficient
evidence of an intervening cause that prevented or materially impaired
the person's ability to comply. Paragraph (i)(2) would provide a
railroad with the discretion necessary to decide not to revoke an
engineer's certification for an event that violates Sec. 240.117(e)(1)
through (5) if the violation was of a ``minimal nature and had no
direct or potential effect on rail safety.''
---------------------------------------------------------------------------

\10\ The only difference between proposed paragraph (i) of Sec.
240.307 and paragraph (i) of Sec. 242.407 are the regulatory
citations referenced. Paragraph (i) of Sec. 240.307 refers to
violations of Sec. 240.117(e)(1) through (5); paragraph (i) of
Sec. 242.407 refers to Sec. 242.403(e)(1) through (11).
---------------------------------------------------------------------------

Proposed paragraph (j) would correct a typographical error by
changing a semicolon to a period at the end of the paragraph.

Section 240.308 Multiple Certifications

FRA proposes to add new Sec. 240.308, which would allow an
individual to hold both a locomotive engineer and a conductor
certification and would address different scenarios that an individual
or railroad might face when the individual holds multiple
certifications. This proposed section is based on Sec. 242.213 but
would not adopt Sec. 242.213(a) and (g), which address an individual
holding multiple types of conductor certifications, i.e., passenger
conductor and freight conductor, because holding multiple locomotive
engineer certifications would not make sense. Specifically, an
individual would not need to hold a train service engineer certificate
and a locomotive servicing engineer certificate, because a locomotive
servicing engineer's duties are a subset of a train service engineer's
duties. Similarly, a locomotive servicing engineer and a train service
engineer would be expected to be qualified on RCLs, so there would be
no need for engineers with either of those classes of service to hold
an RCO certificate.
As proposed, a railroad needs to issue only one certificate to an
individual certified as both a locomotive engineer and a conductor, but
that certificate must comply with both Sec. Sec. 240.223 and 242.207.
To the extent possible, a railroad issuing multiple certificates to an
individual would have to coordinate the expiration date of those
certificates. See proposed Sec. 240.308(a) and (b). These paragraphs
mirror the requirements in paragraphs (b) and (c) of Sec. 242.213.
With the exception of a situation in which a passenger conductor's
removal from a passenger train is for a medical, police, or other such
emergency, a locomotive engineer, including an RCO, must meet certain
requirements to operate a locomotive or train without a certified
passenger conductor. One option under the proposed requirement is for
the person assigned as the certified locomotive engineer to also be a
certified conductor. The other option is for the locomotive engineer
who is operating without an assigned certified conductor to have a
certified conductor attach to the crew ``in a manner similar to that of
an independent assignment.'' See proposed Sec. 240.308(c) and (d).
These paragraphs mirror the requirements in paragraphs (d) and (e) of
Sec. 242.213.
Paragraphs (e) through (m) of proposed Sec. 240.308 correspond to
paragraphs (f) and (h) through (o), respectively, of existing Sec.
242.213. A detailed analysis of these provisions is found in the
section-by-section analysis of Sec. 242.213 in the conductor
certification final rule. 76 FR 69825.

Section 240.309 Railroad Oversight Responsibilities

Existing Sec. 240.309 requires each Class I railroad (including
the National Railroad Passenger Corporation and a railroad providing
commuter service) and Class II railroad to conduct an annual review and
analysis of its program for responding to detected instances of poor
safety conduct by certified engineers. FRA proposes to amend this
section to conform, where appropriate, to Sec. 242.215.
Existing paragraph (b) of this section requires railroads to
include four items in their annual review and analysis. Specifically,
paragraph (b)(4) requires railroads conducting joint operations with
another railroad or railroads to include the number of locomotive
engineers employed by the other railroad(s) ``to which such events were
ascribed which the controlling railroad certified for joint
operations.'' FRA proposes to revise existing paragraph (b)(4) for
clarity and to make the language mirror that in paragraph (b)(4) of
Sec. 242.215, but not to substantively change the requirement.
Existing paragraph (e) requires railroads to keep track of nine
distinct types of events involving poor safety conduct by locomotive
engineers. Specifically, existing paragraphs (e)(1) and (2) require
railroads to keep track of incidents involving noncompliance with
``part 218'' and ``part 219''. To clarify that these citations refer to
49 CFR parts 218 and 219, FRA proposes to add the phrase ``of this
chapter'' to both paragraphs (e)(1) and (2). Additionally, in
paragraphs (e)(8) and (9), FRA proposes to correct typographical errors
by adding the word ``and'' at the end of paragraph (e)(8) after the
semicolon and removing the semicolon and word ``and'' at the end of
paragraph (e)(9) and putting a period at the end of the sentence.
To accommodate a new paragraph proposed as paragraph (f) to revise
the reporting requirements of the section, existing paragraphs (f)
through (h) have been redesignated as proposed paragraphs (g) through
(i). As paragraph (f) of Sec. 242.215 does, proposed paragraph (f)
would require a railroad to report an instance of poor safety conduct
involving an individual holding both a conductor and engineer
certification only once (i.e., either under Sec. 242.215 or this
section). As proposed and consistent with Sec. 242.215(f), a
railroad's determination of whether to report the instance of poor
safety conduct under Part 240 or Part 242 must

[[Page 20490]]

be based on the work the person was performing at the time the conduct
occurred. This determination is similar to the determination made under
49 CFR part 225 in which railroads determine whether an accident was
caused by poorly performing what is traditionally considered a
conductor's job function (e.g., switch and derail handling) or whether
it was caused by poorly performing what is traditionally considered a
locomotive engineer's job function (e.g., operation of the locomotive
or train).
Existing paragraph (f)(2) (which FRA is proposing to redesignate as
paragraph (g)(2)), requires a railroad imposing formal discipline on a
certified locomotive engineer for an instance of poor safety conduct to
keep track of the type of punishment the ``hearing officer'' imposes.
FRA proposes to slightly modify this paragraph, to acknowledge that the
subject punishments are not always imposed by a ``hearing officer'' but
instead may be imposed by other railroad officers. Accordingly, FRA
proposes to replace the term ``hearing officer'' with the more general
term ``railroad.'' As proposed, paragraph (g)(2) would be the same as
paragraph (g)(2) in Sec. 242.215.
In addition, existing paragraph (h)(2) (which FRA is proposing to
redesignate as paragraph (i)(2)) requires a railroad's analysis under
this section to be capable of showing the total number of incidents of
poor safety conduct identified for which an ``FRA accident/incident
report'' was required. FRA proposes to clarify this requirement to
specify an ``FRA accident/incident report under part 225 of this
chapter,'' to make clear which accident/incident report FRA is
referring to in this paragraph. As proposed, paragraph (i)(2) would be
the same as paragraph (i)(2) of Sec. 242.215.

Subpart E--Dispute Resolution Procedures

Existing Subpart E details the opportunities and procedures for an
individual to appeal a decision by a railroad to deny certification or
recertification or to revoke an individual's locomotive engineer
certification. Some members of the RSAC Working Group recommended
changes to the existing appeals process contained in Sec. Sec. 240.401
through 240.411. Those members suggested FRA create a pilot program for
a dispute resolution procedure based on their recommended changes.
Pursuant to the members' recommendations, FRA would designate one or
more Class I railroads to participate in the pilot program. Those
railroads, which are not part of the pilot program, would proceed under
FRA's existing procedures.
The suggested changes, which were also recommended during the
conductor certification rulemaking, include eliminating the opportunity
for parties to appeal FRA decisions to the Administrator, incorporating
the Administrative Hearing Officer (AHO) level of appeal into the OCRB
process, requiring the OCRB to grant a decision if any procedural error
by the railroad is shown, adding an attorney as a member of the OCRB,
and making the OCRB decision final agency action.
For the reasons provided in the conductor certification rulemaking
(see, 76 FR 69802 (Nov. 9, 2011) and 77 FR 6482 (Feb. 8, 2012)), in
this proposed rule FRA declines to adopt these suggestions to revise
the appeals process and create a pilot program. Members of the RSAC
Working Group thoroughly discussed these suggestions and most of the
suggestions were rejected at those meetings. As explained to the RSAC
Working Group, due process requirements and issues concerning trials de
novo necessitate FRA retain the OCRB and AHO as distinct levels of
review. Further, the pilot program would prevent those railroad
employees whose employers were required to participate in the program
from taking advantage of the same appeals process opportunities
available to employees of other railroads not participating in the
program. In addition, the pilot program would require FRA to develop a
second appeals process which would only apply to certain railroads for
an unspecified amount of time. Accordingly, FRA finds that the pilot
program recommended would treat similarly situated engineers
disparately and thus FRA declines to propose to adopt the
recommendation.
Although FRA is not adopting the RSAC Working Group members'
recommendations, FRA has taken steps internally to make the appeals
process more efficient. For example, FRA's LERB and OCRB decided more
than twice as many cases in fiscal year 2017 (106 in total) than they
did in fiscal year 2016 (51 in total), and rendered their decisions on
average 18 days earlier. Further, between fiscal years 2012 and 2017,
the average length of time for the AHO to render a decision in a
locomotive engineer or conductor case under Parts 240 and 242 averaged
between 6 and 8 months compared with 11 to 18 months during fiscal
years 2009 through 2011. In fiscal year 2017, the AHO rendered 4
decisions in an average of approximately 7 months; in fiscal year 2009,
the AHO rendered 13 decisions in an average of 18 months.
In addition, FRA is proposing in this rule to revise Part 240 to
require petitions to be submitted to the DOT Docket Clerk rather than
FRA's Docket Clerk. With that change, the process for submitting
petitions to the OCRB will be the same as the process for requesting an
administrative hearing under Sec. 240.407 and Sec. 242.507. FRA
believes this change will make the process more efficient as DOT's
Docket Operations facility is best equipped to process, scan, and store
these types of filings. The proposal to change the docketing
requirements will also permit a single docket to be maintained
throughout the three stages of FRA's dispute resolution process, rather
than an FRA docket maintained for LERB petitions and a separate DOT
docket created for AHO cases.

Section 240.401 Review Board Established

Paragraph (a) of existing Sec. 240.401 provides that an individual
who is denied certification or recertification or has his or her
engineer certification revoked, and believes that a railroad
incorrectly determined that he or she failed to meet the
``qualification'' requirements of Part 240, may petition FRA to review
the railroad's decision. FRA proposes to amend this section to delegate
initial responsibility for adjudicating denial of certification or
recertification and revocation disputes to FRA's OCRB. In paragraph
(a), FRA proposes to substitute the word ``certification'' for
``qualification'' to clarify that FRA is reviewing railroads'
certification decisions, not railroads' decisions as to whether
individuals meet the ``qualification'' requirements of Part 240. This
proposed change would make paragraph (a) of Sec. 240.401 the same as
paragraph (a) of Sec. 242.501 and is not intended to change the
substantive requirements of this paragraph. Instead, the proposed
change would clarify the existing requirements and ensure internal
consistency within Part 240 and consistency with Part 242.
As noted above, FRA proposes to revise existing paragraph (b) to
provide that the OCRB, not the LERB, is delegated initial
responsibility for adjudicating certification disputes under Part 240.
FRA proposes to revise paragraphs (b) and (c) to replace the
existing name of the FRA review board referenced (the LERB) with the
name of the board used in the conductor certification rule, the OCRB.
In practice, the LERB and the OCRB are staffed by the same FRA
employees, so it is logical to combine them under the same name--a more
general name referring to all operating

[[Page 20491]]

crewmembers. This will also make it clear that there is only one board,
the OCRB, that reviews both conductor and locomotive engineer disputes.
FRA proposes to revise paragraph (c) of this section to remove the
requirement that the review board be composed of ``at least three'' FRA
employees. The number of board members is an issue of internal agency
organization, procedure, or practice that is normally left for an
agency to decide. Such internal agency decisions can be made without
notice to the public. See 5 U.S.C. 553(b)(3)(A). FRA retains the right
to use any number of FRA employees as OCRB members, in coordination
with agency resources and priorities.
The proposed revisions to Sec. 240.401 would make the section the
same as the corresponding section in Part 242, Sec. 242.501.

Section 240.403 Petition Requirements

Existing Sec. 240.403 provides the requirements for obtaining FRA
review of a railroad's decision to deny certification, deny
recertification, or revoke certification. FRA proposes to revise this
section to make it the same as the corresponding provision in Part 242
(Sec. 242.503). The proposed amendments would provide a single process
for aggrieved parties to submit FRA locomotive engineer petitions under
Part 240 and conductor certification petitions under Part 242.
FRA proposes to revise paragraph (b)(2) to provide that petitions
under Part 240 must be submitted to the DOT Docket Clerk rather than
FRA's Docket Clerk. With this change, the process for submitting
petitions to the OCRB would be the same as the process for submitting
petitions under Part 242 (Sec. 242.503) and for requesting an
administrative hearing under both Parts 240 and 242. FRA believes this
change will make the process more efficient as DOT's Docket Operations
facility is best equipped to process, scan, and store these types of
filings. In addition, filings in OCRB proceedings will become more
accessible because they will be available electronically on the DOT's
public docket website (www.regulations.gov).
FRA notes that anyone is able to search (at www.regulations.gov)
the electronic form of all filings received into any of DOT's dockets
by the name of the individual submitting the filing (or signing the
filing, if submitted on behalf of an association, business, labor
union, or other organization). You may review DOT's Privacy Act
Statement published on April 11, 2000 (65 FR 19476), DOT's notice
modifying its system of records from DOT's Docket Management System
(DMS) to the current Government-wide Federal DMS published on January
17, 2008 (73 FR 3316), or you may view the privacy notice of the
Federal DMS at https://www.regulations.gov/#!privacyNotice.
Although FRA is proposing no changes to existing paragraph (b)(3)
of this section, FRA notes that the ``petitioner'' referred to in
paragraph (b)(3) of this section is the person who had his or her
certificate revoked, not an employee representative who may respond on
the petitioner's behalf. If the petitioner has a representative, the
petitioner is encouraged to also provide the representative's name,
mailing address, daytime telephone number, and email address (if
available) in the petition.
FRA encourages all parties to an OCRB case to sign up for email
alerts on www.regulations.gov. By subscribing to email alerts, a person
will receive an email notification stating that information has been
added to the specified docket and provide a link to view the addition.
Email alerts have the potential to give a party earlier notice of a
filing than actual service by mail.
FRA proposes to add a new paragraph (b)(7) to this section
requiring a petitioner, upon the OCRB's request, to supplement the
petition with ``a copy of the information under 49 CFR 40.329 that
laboratories, medical review officers, and other service agents are
required to release to employees.'' That paragraph would also require a
petitioner to provide a written explanation in response to an OCRB
request if written documents that should be reasonably available to the
petitioner are not supplied. FRA is proposing these requirements to
clarify a petitioner's responsibilities for a petition seeking review
of a railroad's decision that is based on a failure to comply with any
drug- or alcohol-related rule or a return-to-service agreement. The
addition of proposed paragraph (b)(7) would make the paragraph the same
as the corresponding paragraph in Part 242 (Sec. 242.503(b)(7)).
FRA proposes to revise existing paragraph (c) to require a petition
seeking review of a railroad's revocation or denial decision under this
section to be filed with FRA within 120 days of the date the railroad
served the decision on the petitioner. This revision would make this
provision of Part 240 the same as the corresponding provision in Part
242 (see Sec. 242.503(c)). This revision would differ from the current
timeline in Part 240, which contains different time requirements
depending on whether a person is seeking review of a revocation
decision (120 days) or a denial decision (180 days).
As proposed, paragraph (d) would also conform to paragraph (d) of
Sec. 242.503 by making clear that a person may also appeal a Board
decision to the Administrator when the petition is found not to meet
this section's minimum requirements. Currently, paragraph (d) expressly
provides only that an appeal is allowed when the Board finds the
petition was untimely filed, although FRA has directed petitioners
whose petitions did not meet this section's minimum requirements that
they may exercise this type of appeal. The reference to the ``Board''
in the existing rule refers to the LERB but for this proposed rule the
Board is the OCRB.

Section 240.405 Processing Certification Review Petitions

FRA proposes to revise this section, which details how petitions
for review will be handled by FRA, to make it the same as the
corresponding provision in Part 242, Sec. 242.505. To more accurately
reflect the substance of this section, FRA proposes to revise the
section heading to be the same as the heading of Sec. 242.505--
``Processing certification review petitions.'' Proposed paragraph (a)
adds the clarification that the Board will ``attempt to'' render a
decision within 180 days once it has all the filings, rather than
emphatically state that it will render a decision within that same
timeframe. The change proposed to paragraph (a) would make it the same
as Sec. 242.505(a).
As discussed above in the section-by-section analysis of proposed
Sec. 240.403, OCRB petitions would be accessible on
www.regulations.gov. Therefore, FRA proposes to revise paragraph (b) of
this section to specify that, as opposed to FRA providing the railroad
with a copy of each petition it receives under Part 240, FRA will
notify the railroad of its receipt of a petition under Part 240 and
where the petition may be accessed online.
FRA proposes to revise paragraph (c) of this section to clarify the
time limit for a railroad to respond to a petition if it chooses to do
so. The proposed rule states that a railroad may respond ``[w]ithin 60
days from the date of the [FRA's] notification provided in paragraph
(b).'' This differs from the existing language in paragraph (c) which
states that ``[t]he railroad will be given a period of not to exceed 60
days to submit'' its response. As FRA has always considered the period
to begin to run when service of the notice on the railroad was
complete, the practical effect of the proposed change is to

[[Page 20492]]

clarify the existing time allowed for a railroad's response, but not to
substantively change the existing requirement. Of course, even if a
railroad's response is late, Sec. 240.405(c) provides that the OCRB
will consider the response ``to the extent practicable.'' FRA is not
proposing to change this provision, which is the same as in the
conductor certification rule. See Sec. 242.505(c). However, as the
OCRB has significantly reduced the amount of time it takes to consider
a case, railroads are on notice that the windows for submitting late
filings are closing more quickly than in the past.
In the current and proposed paragraph (c) requirements, railroads
are offered the opportunity to ``submit to FRA any information that the
railroad considers pertinent to the petition.'' The railroad,
therefore, has a duty to ensure the documents that formed the basis for
its decision are submitted for Board review. Even if a railroad chooses
not to submit a response to the petition, it should review the
documents submitted to the electronic docket. FRA also recommends that
a railroad representative sign up to receive ``email alerts'' so the
railroad will be notified whenever anything is added to the docket. A
railroad may choose to submit missing documents, color photos, videos,
and other evidence provided as the basis for its decision that may be
missing from the docket, even if the railroad chooses not to file a
response that rebuts the petitioner's assertions that the railroad's
decision was improper.
FRA proposes to revise paragraph (d)(1) to require railroads to
provide FRA with an email address if available. Each railroad should
note that if FRA receives an email address, it should expect to receive
email service from FRA regarding the case. As proposed, and consistent
with FRA's handling of petitions under Part 242, FRA would be under no
duty to serve by both email and by regular mail.
FRA proposes to revise paragraph (d)(2) to clarify that a railroad
must serve a copy of its response on the petitioner and the
petitioner's representative, if any. Existing paragraph (d)(2) only
requires railroads to provide a copy to the petitioner, even though
most railroads know to also serve a copy on a petitioner's
representative.
FRA proposes to revise paragraph (d)(3) to require a railroad to
submit its response to a petition to the DOT Docket Clerk rather than
FRA's Docket Clerk as the paragraph currently requires. FRA believes
this change will make the process more efficient as the DOT Docket
Clerk is best equipped to process, scan, and store these types of
filings. In addition, as noted above, filings in OCRB proceedings will
become more accessible because they will be posted on
www.regulations.gov. Another significant proposed change to this
paragraph would eliminate the existing requirement for a railroad to
file three copies of its response. As the DOT dockets are electronic,
there would no longer be a need for FRA to mail one copy to the
railroad, keep one copy in the docket, and use the third copy as a
working copy for the OCRB. FRA expects that this change would reduce
copying expenses for both parties by not having to file in triplicate,
and may also reduce the amount of time it takes to file a petition. In
addition, most parties currently send their petitions by overnight
courier service, and filing electronically carries no additional cost
if the party already pays for internet access and thus will save
petitioners the overnight courier service costs.
FRA proposes to revise paragraph (e) to identify the OCRB as the
reviewing board, not the LERB, and FRA likewise proposes to revise
paragraph (f) to explain the authority of the OCRB. Specifically,
proposed paragraph (f) provides that the Board will have the authority
to ``grant, deny, dismiss, or remand'' a petition. This is not a
substantive change from existing Part 240, but FRA proposes to add this
specific language here to make the language the same as that in Sec.
242.505(e) and to clarify the OCRB's authority. If the Board grants a
petition, then the petitioner has received a favorable ruling. If the
Board denies a petition, then the railroad has received a favorable
ruling. The Board will dismiss cases falling outside its jurisdiction.
For example, if an engineer's certification is suspended and the
railroad has not yet revoked the individual's certification, the case
is not ripe for the Board to hear and the Board will issue a dismissal
decision. Also, if the petition does not meet all the requirements of
Sec. 240.403, the Board may dismiss the petition. The Board has the
authority to remand a case back to the railroad for a new decision. As
the LERB has historically done, the Board will typically remand a case
back to the railroad when both parties have failed to address an
important factual issue and there is a reason to reopen the railroad's
investigation and present evidence on that issue. Obviously, if the
railroad is presenting new evidence on an issue it has not previously
addressed or needs to clarify, a petitioner should be provided with a
new opportunity for a written rebuttal in a denial case or an
opportunity to examine witnesses and evidence at a railroad hearing in
a revocation case. A remand could also be warranted in a case involving
a denial of certification or recertification where the petitioner has
raised a potentially legitimate defense that was not addressed by the
railroad's decision; in such cases, the Board expects a railroad to
fully consider the defense raised in a new or supplemental decision. Of
course, when the Board remands a denial case back to a railroad for a
new or supplemental decision, the railroad is not obligated to deny the
person certification or recertification again as it may reverse its
prior denial decision.
In proposed paragraph (g), FRA provides that if there is an
insufficient basis for deciding the petition, the Board will issue an
order affording the parties an opportunity to provide additional
information or argument.
To conform Part 240 with Part 242 and to address a concern of some
RSAC Working Group members that railroads and petitioners would not
know what standards of review the OCRB would use in considering
petitions, FRA proposes to add paragraphs (h) through (j) to this
section. Included in those proposed new paragraphs are the standards of
review that the OCRB will utilize when considering a petition. Those
standards are exactly the same standards currently used by the LERB to
review locomotive engineer petitions under the existing engineer
certification regulation.
Like the LERB currently does under existing paragraph (f) of this
section, the OCRB would determine only whether a railroad's decision
was improper. Although this requirement is found in existing paragraph
(f), this rule proposes to redesignate paragraph (f) as new paragraph
(k). If a railroad-conducted hearing were so unfair that it causes a
petitioner substantial harm, the OCRB could grant the petition;
however, the OCRB's review is not intended to correct all procedural
wrongs committed by a railroad. Further, like the LERB, the OCRB's
authority would be limited to approving the railroad's decision,
overturning the railroad's decision, or returning the case to the
railroad for additional fact finding. The OCRB would not be empowered
to mitigate the consequences of a railroad's decision that was validly
made under this regulation. The OCRB is only empowered to make
determinations concerning certifications under Part 240. The
contractual consequences, if any, of these determinations would have to
be resolved, as they currently are, under dispute resolution mechanisms

[[Page 20493]]

that do not directly involve FRA. For example, FRA cannot order a
railroad to alter its seniority rosters or make an award of back pay to
accommodate a finding that a railroad wrongfully denied certification.
FRA notes this proposed rule would necessarily require the OCRB to
determine whether a railroad revoked the correct certificate of an
individual who holds both an engineer and conductor certification. For
example, in a case in which a railroad finds that an individual who
holds both a conductor and engineer certification violated a railroad
rule involving a failure to comply with Sec. 218.99 (i.e., a Part 218,
subpart F violation) but revoked that person's engineer certification,
the OCRB, if petitioned, would have to find that the revocation
decision was improper because, currently, an engineer cannot have his
or her Part 240 certification revoked for violations of Part 218,
subpart F.
New paragraph (l) of this section would require the OCRB's written
decision to be ``served'' on the petitioner as opposed to the existing
paragraph (g) requirement that ``[n]otice of that decision will be
provided in writing.'' This proposed revision is not a substantive
change, but instead is intended to standardize the terminology used in
Part 240 and make the language the same as that of Sec. 242.505(l).
Although existing Sec. 240.405 does not require FRA to provide notice
of the LERB's decision to a petitioner's representative, if any, FRA's
past practice has been to do so. In new paragraph (l) of this section,
FRA proposes to make the practice of serving a petitioner's
representative mandatory, if the petitioner has a representative.
Moreover, the proposed language in new paragraph (l) removes the
requirement that every decision include findings of fact, which may not
be appropriate or relevant to some decisions.
Further, under proposed paragraph (l), a party that has provided an
email address under Sec. 240.403(b)(3) voluntarily consents to be
served documents, including the OCRB's decision, by email. Petitioners
should note that if FRA receives an email address, FRA's preference may
be to serve all correspondence regarding the petition or case by email.
Currently, FRA serves a copy of each decision by mail, even if it has
the email addresses for all the parties. Thus, the actual practice has
not yet caught up with the flexibility built into the existing
regulation. In the near future, potentially before implementation of
this rule if it becomes final, FRA intends to begin serving the OCRB
notices, orders, and decisions by email to those parties that have
provided an email address. A party to a case may also serve another
party by email if the email was provided in the petition or railroad's
response filing. However, while electronic service is a proper method
of service, each party performing service is responsible for knowing
that, under Rule 5(b)(2)(E) of the Federal Rules of Civil Procedure
(FRCP), service ``is not effective if the party making service learns
that the attempted service did not reach the person to be served.'' See
Sec. 240.7 (defining ``service'' as having the same meaning as Rule 5
of the FRCP).
FRA also notes that recent amendments to FRCP Rule 5, effective
December 1, 2018, recognize the benefits of electronic-filing systems,
such as the one the OCRB uses found at www.regulations.gov. Once a
petition is filed and receives a docket number, the parties and the
Board will benefit as the filing process will be considered service and
no certificate of service will be necessary unless a party opts out of
using the electronic-filing system. FRA plans to explain this process
to each party in the FRA Docket Clerk's letters issued upon receipt of
a petition.

Section 240.407 Request for a Hearing

Existing Sec. 240.407 provides that a party adversely affected by
a LERB decision has the opportunity to request an administrative
hearing under Sec. 240.409. FRA proposes to make minor revisions to
this section to make the language the same as the corresponding
provision in Part 242 (Sec. 242.507). Specifically, FRA proposes to
revise the section to indicate that the OCRB would replace the LERB and
to require that a party requesting an administrative hearing provide an
email address if available. Proposed paragraph (a) substitutes the OCRB
for the LERB.
Existing paragraph (c) provides that the LERB's decision will
constitute final agency action if a party does not request a hearing
under Sec. 240.407. FRA proposes to revise this paragraph to
substitute the OCRB for the LERB and also make certain minor edits for
clarity that do not change the substance of the existing paragraph.
Existing paragraph (d) contains the minimal requirements for a
written request submitted under this section. FRA proposes to revise
paragraph (d)(1) to require a party requesting a hearing to provide an
email address if available. The AHO currently encourages the parties to
provide their email addresses and the existing practice has been so
widely accepted that it is rare for a party before the AHO to serve
filings on other parties in any manner but by email. Again, the
practice of permitting service by email reduces the parties' costs for
printing, copying, mailing, and creating or retaining receipts. It also
provides service much more quickly than by mail or courier service,
which are the other most frequently used forms of service.

Section 240.409 Hearings

Existing Sec. 240.409 describes the authority of the presiding
officer to conduct an administrative hearing and the procedures by
which the administrative hearing will be governed. FRA proposes minor
revisions to this section to make the language the same as that in the
corresponding provision of Part 242 (Sec. 242.509). Proposed paragraph
(a) would substitute the word ``certification'' for ``qualification''
without making any practical change in the way in which this
requirement is applied; however, the change would clarify that an
administrative hearing is based on a certification petition, and not
some lesser qualification issue.
Proposed paragraphs (p) and (q) substitute the review board's new
name, the OCRB, for the existing name, the LERB.

Section 240.411 Appeals

Existing Sec. 240.411 permits any party aggrieved by the presiding
officer's decision to file an appeal with the FRA Administrator. FRA
proposes to revise this section to make it the same as the
corresponding provision in Part 242 (Sec. 242.511). Specifically, FRA
proposes to amend existing paragraphs (a) and (f) to indicate that
appeals to the FRA Administrator must be filed with both the
Administrator and the DOT Docket Clerk. This change would conform the
paragraphs with Sec. 242.511(a) and (f), and ensure that all filings,
in any Part 240 FRA dispute resolution proceeding (i.e. the OCRB, the
AHO, and the Administrator), are kept in the same docket. These
paragraphs also maintain the requirement that a copy of the appeal must
be served on each party, which means that the party filing the appeal
should serve each person named on the service list of the decision
issued by the AHO.
FRA also proposes to revise paragraph (f) of this section to
clarify the review board's proposed new name (i.e., the OCRB) and the
updated citation for an appeal from an OCRB decision regarding
timeliness of a petition. The existing citation is found at Sec.
240.403(e), and this proposed rule would change that citation to
paragraph (d) of that section. Consistent with existing Sec. 240.411,
proposed paragraph (f) also clarifies that such an appeal must be

[[Page 20494]]

filed within 35 days of the OCRB's issuance of its decision. By adding
the time limit in this proposed paragraph, FRA intends to help readers
understand that the time limit for filing such an appeal is the same as
for filing other appeals to the Administrator under paragraph (a).

Appendix A

Currently appendix A to Part 240 (Appendix A) contains the schedule
of civil penalties for violations of Part 240. In the final rule,
Appendix A would contain a revised penalty schedule similar to the
schedules that FRA has issued for all of its existing rules. Because
such penalty schedules are statements of policy, notice and comment are
not required prior to their issuance. See 5 U.S.C. 553(b)(3)(A).
Nevertheless, FRA invites interested parties to submit comments
regarding this revised penalty schedule.
One issue FRA is likely to address in the final rule is the penalty
schedule description for Sec. 240.231. The descriptions for paragraphs
(a) and (b) are not sufficiently different that it can be confusing
which is the proper citation and garden variety penalty. FRA reads the
guideline as if paragraph (a) is the more significant violation and
occurs when an engineer operates over a territory in violation of the
railroad's certification program with no type of pilot. Paragraph (b)
is read by FRA as the lesser violation, when the wrong type of pilot is
provided. Thus, FRA intends to change the guideline for paragraph (b)
from ``Failure to have a pilot'' to ``Pilot provided, but the pilot is
unqualified.''

Appendix B

Existing Appendix B provides both the organization requirements and
a narrative description of the submission required under Sec. Sec.
240.101 and 240.103. FRA proposes a number of revisions to update job
titles and clarify requirements in Appendix B and FRA proposes to
revise the Appendix to provide railroads with the option to file their
Part 240 program submissions electronically. The option to file
programs electronically is currently provided to railroads submitting
conductor certification programs. See Part 242, Appendix B.
As it did for Part 242, FRA intends to create a secure document
submission site and will need basic information from each railroad
before setting up the railroad's account. In order to provide secure
access, FRA requires information on a railroad's appropriate points of
contact. FRA anticipates being able to approve or disapprove all or
part of a program and generate automated notifications by email to a
railroad's points of contact. Thus, FRA wants each point of contact to
understand that by providing any email addresses, the railroad is
consenting to receive approval and disapproval notices from FRA by
email. Railroads allowing FRA to provide notice by email would gain the
benefit of receiving such notices quickly and efficiently.
Railroads choosing to submit printed materials to FRA must deliver
them directly to the specified address. FRA would discourage railroads
from delivering removable media such as a CD, DVD, memory stick, or
other electronic storage format to FRA rather than requesting access to
upload the documents directly to the secure electronic database. CDs or
DVDs may become damaged in the mail or mail scanning process. Rather,
FRA will encourage railroads to utilize the electronic submission
capabilities of the system. Of course, if FRA does not have the
capability to read the type of electronic storage format sent, FRA can
reject the submission.
Given the nature of the information required in a railroad's Part
240 program and the proposed requirement for railroads to share their
program submissions, resubmissions, and material modifications with the
relevant labor organization(s) representing each railroad's certified
engineers (see Sec. 240.103(b)), FRA does not believe it is necessary
to develop a secure document submission system to handle confidential
materials because FRA does not meaningfully expect there to be
confidential materials. A railroad's program required by this part is
not likely to contain copies of training materials that a railroad
might want to keep confidential. If a railroad believes it must submit
information that FRA should keep confidential, it may request
confidential treatment under FRA's general procedures at 49 CFR 209.11.

Appendix C

Existing appendix C to Part 240 (Appendix C) provides a narrative
discussion of the procedures that a person seeking certification or
recertification will have to follow to furnish a railroad with
information concerning his or her motor vehicle driving record. FRA
proposes revisions to Appendix C to acknowledge that a driver's license
may be issued by a state agency or a foreign country and to remove
language about the number of state licensing agencies that have the
capacity to make a direct NDR inquiry.

Appendix D

Existing Appendix D to Part 240 (Appendix D) addresses Part 240's
requirements that each person seeking certification or recertification
as a locomotive engineer must request that a check of the NDR be
conducted and that the resulting information be furnished to his or her
employer or prospective employer. Some RSAC Working Group members
recommended adding a sentence to Appendix D stating that once an
employee makes a valid request for the information required by Sec.
240.111, his or her duty to comply with this requirement is satisfied.
FRA declines to propose this recommendation because it would interfere
with the requirements of Sec. 240.111(a)(2) and (f)(2), which require
employees to take any additional actions, including providing any
necessary consent required by State, Federal, or foreign law to make
information concerning his or her driving record available to a
railroad.

Appendix G

FRA proposes to add appendix G to Part 240 to provide a table that
explains in spreadsheet-style form, when an individual certified as
both an engineer and conductor will be permitted to work following a
certification revocation. The same table is found in appendix E to Part
242.

III. Additional Issues

A. Additional Amendments

Although the Section-By-Section Analysis contains descriptions of
many minor revisions proposed in this NPRM, the descriptions may not
have captured every specific change. In addition to the proposed
changes discussed above, FRA is proposing to make some minor revisions
to fix grammatical errors, typographical errors, reference errors, and
superfluous language and citations. These revisions, provided in ``The
Proposed Rule'' section of this rulemaking, include the following
sections: 240.11(d); 240.207(b); 240.209(b) and (c); 240.211(b);
240.215(e); 240.217(a) and (d); 240.225(b); 240.305(b)(2); 240.307(g);
240.307(i); 240.309(b)(4); 240.309(e)(1), (2), (8), and (9); and
Appendix D.

B. Implementation Date

FRA understands railroads will require some time to incorporate
into their Part 240 programs the changes proposed in this rulemaking
and submit their entire revised programs to FRA for

[[Page 20495]]

review.\11\ FRA is also aware that it would not be fair to change the
time limits for a filing (e.g., changing the time limits for filing a
denial of certification petition with the OCRB from 180 days to 120
days in Sec. 240.403) in cases whose time limits have already started
to run. Accordingly, FRA invites comments on what an effective date for
the final rule should be that will treat all parties affected by this
rule fairly.
---------------------------------------------------------------------------

\11\ As discussed above, FRA is considering requiring the
railroads to file their complete Part 240 programs, with
modifications, with FRA and serve the programs on the president of
each labor organization that represents the railroad's certified
locomotive engineers.
---------------------------------------------------------------------------

IV. Regulatory Impact and Notices

A. Executive Orders 12866 and 13771 and DOT Regulatory Policies and
Procedures

This proposed rule is a non-significant regulatory action and has
been evaluated in accordance with existing policies and procedures
under Executive Order 12866 and DOT policies and procedures. 44 FR
11034, Feb. 26, 1979; 58 FR 51735, Oct. 4, 1993. The rule is non-
significant because the economic effects of this proposed regulatory
action would not exceed the $100 million annual threshold defined by
E.O. 12866 and the effects of this proposed regulatory action would not
be of substantial public interest in transportation safety. This
proposed rule is expected to be an E.O. 13771 deregulatory action.
Details on the estimated costs and costs savings of this proposed rule
can be found in the rule's economic analysis.
The primary purpose of the proposed rule is to reduce the
differences between FRA's two operating crew certification regulations.
The proposed rule would amend Part 240 by adopting processes that are
more efficient. Some of the proposed amendments address the Part 240
certification review and program submission processes. Other proposed
changes reduce the burden on the regulated community by addressing
compliance difficulties noted through experience enforcing Part 240.
Furthermore, some proposed changes would codify long-standing agency
interpretations of whether a railroad or individual meets and maintains
compliance with Part 240 requirements.
FRA has prepared and placed in the docket (Docket No. FRA-2018-
0053) a regulatory evaluation. The regulatory evaluation details
estimated costs and costs savings that the railroads regulated by the
proposed rule are likely to incur over a twenty-year period. The table
below summarizes the costs, cost savings, and net cost savings that
would come from issuing the proposed rule. The total cost of the
proposed rule over 20 years would be $166,054 (PV 7%), and $194,843 (PV
3%). The total cost savings of the proposed rule over 20 years would be
$6.1 million (PV 7%), and $8.6 million (PV 3%). The net cost savings of
the proposed rule over 20 years would be $6.0 million (PV 7%), and $8.4
million (PV 3%).

Table 1--Summary of the Proposed Rule's Total New Costs, Total Cost Savings, Net Cost Savings (Twenty-Year
Period), PV, 7-Percent and PV 3-Percent
----------------------------------------------------------------------------------------------------------------
Present value Present value
Cost of proposed rule 7% Annualized 7% 3% Annualized 3%
----------------------------------------------------------------------------------------------------------------
New Costs:
Review amendments........................... $104,929 $9,905 $109,003 $7,327
Serve copy of part 240 plan on labor........ 1,199 113 1,683 5,657
Maintain service records.................... 59,927 5,657 84,157 5,657
---------------------------------------------------------------
Total new costs......................... 166,054 15,675 194,843 13,097
Cost Savings:
Conforming part 240 to part 242............. 5,947,136 561,368 8,351,732 561,368
Former employee paperwork................... 59,927 5,657 84,157 5,657
Removing waiver requirement................. 58,066 5,481 81,543 5,481
Petition submission process................. 3,602 340 5,058 340
Plan submission process..................... 59,927 5,657 84,157 5,657
---------------------------------------------------------------
Total cost savings...................... 6,128,658 578,502 8,606,648 578,502
---------------------------------------------------------------
Net Cost Savings.................... 5,962,604 562,828 8,411,804 565,405
----------------------------------------------------------------------------------------------------------------

The proposed rule would create benefits, though FRA did not
monetize them. Some non-quantifiable benefits include: Affording
railroads with additional time and flexibility to comply with some
regulatory requirements, and creating certain provisions that allow for
temporary locomotive engineer certificates. For example, the amendments
to Sec. 240.103 would afford railroads with an additional 30 days,
increasing from 30 days to 60 days, for which a railroad would have to
submit a description of its intended material modification to its Part
240 plan. This additional time to respond to FRA amounts to an
unquantified benefit to the railroad. In addition, the amendments to
Sec. 240.115 would allow for a temporary certification lasting 60 days
for individuals who have properly requested motor vehicle operator
information needed to certify or recertify as a locomotive engineer.
Such temporary certifications amount to an unquantified benefit to
workers and railroads. That is, under the amendments to Sec. 240.115,
workers may begin work as a locomotive engineer sooner and railroads
would have available a larger pool of workers who would be qualified to
work as locomotive engineers.
The regulatory evaluation compares the proposed rule's costs and
benefits, and estimates the proposed rule would be cost beneficial
because the rule is expected to provide net cost savings and benefits,
though the benefits are not quantified.

B. Regulatory Flexibility Act and Executive Order 13272; Initial
Regulatory Flexibility Assessment

The Regulatory Flexibility Act of 1980 (5 U.S.C. 601 et seq.) and
Executive Order 13272 (67 FR 53461, Aug. 16, 2002) require agency
review of proposed and final rules to examine their impacts on small
entities. An agency must prepare an initial regulatory flexibility

[[Page 20496]]

analysis (IRFA) unless it determines and certifies that a rule, if
issued, would not have a significant economic impact on a substantial
number of small entities. As discussed below, FRA does not believe this
proposed rule would have a significant economic impact on a substantial
number of small entities. However, FRA is publishing this IRFA to
obtain public comments about the potential small business impacts that
would follow from issuing this NPRM. FRA invites all interested parties
to submit data and information regarding the potential economic impact
on small entities that would result from the adoption of the proposals
in this NPRM. FRA will consider all information, including comments
received in the public comment process, to determine whether the rule
will have a significant the economic impact on small entities.
For the railroad industry over a 20-year period, FRA estimates that
issuing the proposed rule would result in new costs of $166,054 (PV 7%)
and $194,843 (PV 3%). Based on information currently available, FRA
estimates that $94,062 (PV 7%) and $102,183 (PV 3%) of the total costs
associated with implementing the proposed rule would be borne by small
entities. Therefore, less than 60 percent of the proposed rule's total
cost would be borne by small businesses. In addition, FRA estimate that
the proposed rule would result in cost savings over 20 years of $6.1
million (PV 7%), and $8.6 million (PV 3%). In total, FRA estimates that
the proposed rule would result in net cost savings of $6.0 million (PV
7%), and $8.4 million (PV 3%). FRA expects that small entities would
accrue 94 percent of the cost savings associated with implementing the
proposed rule.
Any railroad who employs locomotive engineers and does business on
the general railroad system would be affected by the proposed rule. The
regulatory evaluation, which has been placed in the docket for this
rulemaking, estimates that the proposed rule would affect approximately
696 railroads including 7 Class I railroads, 11 Class II railroads, 33
passenger railroads, and 645 Class III railroads that perform services
on the general railroad system. FRA estimates that approximately 645
out of 696 of these railroads are considered small entities for the
purpose of this analysis. However, FRA believes that the issuing
proposed rule, as measured by total employees, would impact a minor
percentage of a railroad's operations. In addition, issuing the
proposed rule is expected to result in cost savings that would exceed
costs.
In accordance with the Regulatory Flexibility Act, this IRFA must
contain:
1. A description of the reasons why action by the agency is being
considered.
2. A succinct statement of the objectives of, and the legal basis
for, the proposed rule.
3. A description--and, where feasible, an estimate of the number--
of small entities to which the proposed rule will apply.
4. A description of the projected reporting, recordkeeping, and
other compliance requirements of the proposed rule, including an
estimate of the classes of small entities that will be subject to the
requirement and the type of professional skills necessary for
preparation of the report or record.
5. Identification, to the extent practicable, of all relevant
Federal rules that may duplicate, overlap, or conflict with the
proposed rule.
1. Reasons for Considering Agency Action
FRA is considering action to reduce burden on industry
stakeholders. The existing locomotive engineer certification regulation
includes dated processes such as requiring paper document submissions.
For example, the existing Part 240 prohibits use of electronic
submissions. In addition, FRA's two operating crew certification
regulations (Part 240 and Part 242) lack similarity regarding
compliance requirements, which adds a layer of complexity for railroads
related to maintaining compliance with both regulations. In direct
response to the current lack of conformity between these two
regulations, the proposed rule would amend the Part 240 regulation by
adopting the Part 242 regulation's streamlined processes developed 20
years after the Part 240 regulation. Therefore, an important purpose of
the proposed amendments is to add clarity and conformance between FRA's
two operating crew certification regulations and address existing
inefficiencies related to the Part 240 program submission process.
Other proposed changes would reduce the burden on the regulated
community by addressing compliance difficulties noted through
experience enforcing the locomotive engineer certification rule. The
proposed rule would codify long-standing agency interpretations of
whether a railroad or individual meets and maintains compliance with
FRA's locomotive engineer certification requirements. Therefore, the
proposed rule would result in consistency in the process, procedure,
and criteria between Part 240 and Part 242, which would lead to an
overall reduction in the burden on the railroad industry. The proposed
rule would create provisions that would allow railroads to issue
temporary locomotive engineer certificates, which would increase labor
market flexibility. The proposed rule would also extend the time
railroads may rely on an employee's visual and hearing examinations.
2. A Succinct Statement of the Objectives of, and Legal Basis for, the
Proposed Rule
The primary purpose of the proposed rule is to reduce burden on
industry stakeholders by reducing the differences between FRA's two
operating crew certification regulations. The proposed rule would amend
Part 240 by adopting processes that are more efficient. Some of the
proposed amendments address the Part 240 certification review and
program submission processes. Other proposed changes reduce the burden
on the regulated community by addressing compliance difficulties noted
through experience enforcing Part 240. Furthermore, some proposed
changes would codify long-standing agency interpretations of whether a
railroad or individual meets and maintains compliance with Part 240
requirements.
The Secretary of Transportation (Secretary) has broad statutory
authority to ``prescribe regulations and issue orders for every area of
railroad safety.'' See 49 U.S.C. 20103. The Secretary delegated these
authorities to the Federal Railroad Administrator (Administrator). See
49 CFR 1.89(a). Under this same authority, FRA would issue the proposed
rule to further amend the locomotive engineer certification
requirements.
President Trump issued E.O. 13771 on January 30, 2017. E.O. 13771
seeks to ``manage the costs associated with the governmental imposition
of private expenditures required to comply with Federal regulations''
and directs each executive department or agency to identify for
elimination two existing regulations for every new regulation issued.
In response to E.O. 13771, FRA initiated a review of its existing
regulations with the goal of identifying those it could amend or
eliminate to reduce the overall regulatory, paperwork, and cost burden
on entities subject to FRA jurisdiction. FRA identified Part 240 as a
regulation that FRA could amend and thereby reduce the railroad
industry's overall regulatory, paperwork, and cost burden without
affecting safety on the nation's railroad system and, at the same time,
benefit individual locomotive engineers.

[[Page 20497]]

3. Descriptions and Estimates of Small Entities to Which the Proposed
Rule Would Apply
The proposed rule would affect approximately 696 railroads
including 7 Class I railroads, 11 Class II railroads, 645 Class III
railroads, and 33 passenger railroads.\12\ The universe of the entities
considered in an IRFA generally includes only those small entities that
can reasonably expect to be directly regulated by the proposed action.
Based on FRA's established size standards, only Class III railroads
(645) are small entities, which may be potentially affected by this
proposed rule.
---------------------------------------------------------------------------

\12\ Estimates are based on the FRA 2017 Railroad Classification
Data. Class III numbers include railroads on the general railroad
system.
---------------------------------------------------------------------------

A ``small entity'' is defined in 5 U.S.C. 601(3) as having the same
meaning as ``small business concern'' under sec. 3 of the Small
Business Act. This includes any small business concern that is
independently owned and operated, and is not dominant in its field of
operation. Title 49 U.S.C. 601(4) likewise includes within the
definition of small entities non-profit enterprises that are
independently owned and operated, and are not dominant in their field
of operation.
The U.S. Small Business Administration (SBA) stipulates in its size
standards that the largest a ``for-profit'' railroad business firm may
be, and still be classified as a small entity, is 1,500 employees for
``line haul operating railroads'' and 500 employees for ``switching and
terminal establishments.'' Additionally, 5 U.S.C. 601(5) defines as
small entities governments of cities, counties, towns, townships,
villages, school districts, or special districts with populations less
than 50,000.
Federal agencies may adopt their own size standards for small
entities in consultation with SBA and in conjunction with public
comment. Pursuant to that authority, FRA has published a final
Statement of Agency Policy that formally establishes small entities or
small businesses as being railroads, contractors, and hazardous
materials shippers that meet the revenue requirements of a Class III
railroad as set forth in 49 CFR 1201.1-1, which is $20 million or less
in inflation-adjusted annual revenues, and commuter railroads or small
governmental jurisdictions that serve populations of 50,000 or less.
See 68 FR 24891, May 9, 2003 (codified as appendix C to 49 CFR part
209). The $20 million limit is based on the Surface Transportation
Board's revenue threshold for a Class III railroad. Railroad revenue is
adjusted for inflation by applying a revenue deflator formula in
accordance with 49 CFR 1201.1-1. This definition is what FRA is
proposing to use for the rulemaking.
All railroads that do business on the general railroad system would
have to comply with the proposed amendments to Part 240. FRA believes
that the amount of effort to comply with the proposed rule, or new
costs borne on railroads, is positively correlated with the size of the
entity. In addition, FRA concluded that the proposed rule is expected
to be deregulatory, which means issuing the proposed rule should result
in each affected entity, including small entities, accruing cost
savings greater than any new costs.
4. Description of the Projected Reporting, Recordkeeping, and Other
Compliance Requirements of the Rule
There are reporting, recordkeeping, and compliance costs associated
with the proposed regulation. FRA believes that the added burden is
marginal due to the proposed NPRM requirements. The total 20-year cost
of this proposed rulemaking is $166,054 (PV 7%), and $194,843 (PV 3%),
of which FRA estimates $94,062 (PV 7%), and $102,183 (PV 3%), will be
attributable to Class III railroads (small entities).\13\ Based on
FRA's regulatory evaluation, which has been placed in the docket for
this proposed rulemaking, the average Class III railroad would incur a
burden of $146 (PV 7%), and 158 (PV 3%). Most of this burden falls in
the first year of analysis, where the average Class III railroad would
incur a burden of $129 (PV 7%), and $134 (PV 3%). In each subsequent
year, the average Class III railroad would incur no burden or a
marginal burden that comes from serving the labor union president with
a material modification of a railroad's Part 240 plan or maintaining
service records. For example, each year about 20 Class III railroads
would incur a burden of 5 minutes related to serving the labor union
president with a material modification of the railroad's Part 240 plan.
For each of these 20 Class III railroads, the quantified burden amounts
to $5 (PV 7%) and $5 (PV 3%) in year two, $5 (PV 7%) and $5 (PV 3%) in
year three, and a similar amount in each subsequent year during the
period of analysis. In addition, each year about 200 Class III
railroads would incur a burden of 5 minutes related to maintaining
service records. For each of these 200 Class III railroads, the
quantified burden amounts to $5 (PV 7%) and $5 (PV 3%) in year two and
$5 (PV 7%) and $5 (PV 3%) in year three. Collectively, Class III
railroads would incur a similar burden in each subsequent year
thereafter during the period of analysis.
---------------------------------------------------------------------------

\13\ Class III railroads, total new costs (undiscounted) =
familiarization of amendments + serve labor representative +
maintain service records = $87,565 + $453 + $22,627 = $110,645 (as
described later in this section).
---------------------------------------------------------------------------

Previously, FRA sampled small railroads and found that revenue
averaged approximately $4.7 million (undiscounted) in 2006. One percent
of average annual revenue per small railroad, or $47,000, is more than
5,222 times the average annual cost that these railroads would incur
because of this proposed rule. FRA realizes that some railroads would
have lower revenue than $4.7 million. However, FRA believes that this
average provides a good representation of the small railroads, in
general.
In addition, FRA estimates that the proposed rule would result in
cost savings of $6.1 million (PV 7%), and $8.6 million (PV 3%). Based
on FRA's regulatory evaluation the average Class III railroad (small
entity) would accrue a cost savings of $7,248 (PV 7%), and $10,178 (PV
3%), over the 20-year period of analysis.
Overall, FRA believes that the proposed regulation would not be a
significant economic burden for small entities. FRA expects that most
of the skills necessary to comply with the proposed regulation would be
recordkeeping and reporting personnel.
The following section outlines the potential additional burden on
small railroads for each amendment of the proposed rule:
Familiarization of Amendment to Part 240 Regulation (All
Sections)
Because the proposed rule would amend Part 240, each locomotive
engineer certification manager would need to review these amendments to
ensure their railroad maintains compliance with the amended Part 240.
This analysis estimates that on average each of the 645 Class III
railroads employ one locomotive engineer certification manager. This
analysis estimates that each locomotive certification manager would
spend two hours reviewing the amendments to Part 240. This cost would
be a one-time cost that would occur in the first year following the
proposed rule's effective date. For the 20-year period of analysis, the
cost for locomotive certification managers who are employed by a Class
III railroad (small entity) to become familiar with amendments to Part
240 is

[[Page 20498]]

$81,837 (PV 7%), and $85,015 (PV 3%).\14\
---------------------------------------------------------------------------

\14\ Familiarization cost for Class III railroads, year one (PV
7%) = [(number of Class III railroads (645) * average number of
certification managers per Class III railroad (1) * average review
time per certification manager (2 hours) * certification manager
compensation rate ($67.88)]/(7% discount rate in year 1) = [645 * 1
* 2 * $67.88]/(1.07) = $87,565/(1.07) = $81,837.
---------------------------------------------------------------------------

Amending the Part 240 Program Submission Process To Require
Railroads To Serve Program Submissions on Relevant Labor Organization
Presidents (Sec. Sec. 240.101 Through 240.103)
FRA proposes revising paragraphs (b) and (c) of this section to
require railroads to serve a copy of their program submissions,
resubmissions, and material modifications on the president of each
labor organization that represents the railroad's certified locomotive
engineers. The proposed rule would require railroads to serve program
submissions on relevant labor organization presidents, while the
current locomotive engineer certification rule does not. Therefore, the
proposed rule would create a new cost associated with requiring each
railroad to contact the president of each labor organization related to
Part 240 program submission.
This analysis assumes the number of locomotive engineer labor
representatives for which a railroad interacts with depends on a
railroad's size. FRA assumes that on average each Class III railroad
interacts with one labor representative. This analysis assumes that
railroads can simultaneously serve presidents of labor organizations by
carbon copying the labor organization president(s) when emailing their
Part 240 program to FRA. As such, this analysis estimates the time
burden to serve a president of a labor organization is five minutes.
Based on a review of Part 240 submissions, this analysis estimates that
each year Class III railroads will serve four plan submissions on a
president of a labor organization. Therefore, the cost for railroads to
notify the president of labor organizations is $21 (PV 7%), and $22 (PV
3%), in year one, and 20 (PV 7%), and $21 (PV 3%), in year two.
Collectively, Class III railroads would incur a similar burden in each
subsequent year thereafter during the period of analysis. For the 20-
year period of analysis, the cost for Class III railroads (small
entity) to serve Part 240 programs on the presidents of labor
organizations is $240 (PV 7%), and $337 (PV 3%).
Maintain Certification Records of Certified Locomotive
Engineers not Performing Service Requiring Locomotive Engineer
Certification (Sec. 240.129)
Proposed Sec. 240.129(b)(2) would require a railroad intending to
avoid conducting an operational monitoring observation or an
unannounced compliance test on a certified engineer not performing
service requiring certification to retain a written record documenting
certain dates regarding a locomotive engineer's service to prove that
the locomotive engineer met the exception in proposed paragraph (h).
This is the same recordkeeping requirement as in Sec. 242.123(b)(2).
FRA believes that most railroads already maintain such locomotive
engineer service records. Therefore, there are no costs associated with
this requirement.
Existing Sec. 240.129 requires a railroad to have procedures for
monitoring the operational performance of locomotive engineers.
Specifically, in each calendar year, Sec. 240.129 requires railroads
to administer both an operational monitoring observation and an
unannounced compliance test to each locomotive engineer. The proposed
rule would amend Sec. 240.129 to provide the same flexibility as in
Part 242 to conduct monitoring outside of the calendar year requirement
when a certified person is not performing service requiring
certification. See Sec. 242.123(f). For example, a certified engineer
may be on furlough, in military service, on leave with an extended
illness, or working in another capacity for the railroad. Existing
Sec. 240.129 requires railroads to seek a waiver from FRA for each
locomotive engineer who is not available to complete testing
requirements within a calendar year. In other words, the proposed
amendments would remove the requirement for railroads to seek a waiver
from FRA from the requirement for railroads to administer unannounced
compliance tests or operational monitoring observations to locomotive
engineers who are not performing service requiring locomotive engineer
certification. However, the proposed Sec. 240.129(b)(2) would require
a railroad intending to avoid conducting an operational monitoring
observation or an unannounced compliance test on a certified engineer
who is not performing service requiring certification to retain a
written record documenting certain dates regarding a locomotive
engineer's service to prove that the locomotive engineer met the
exception in proposed paragraph (h). This is the same recordkeeping
requirement as in Sec. 242.123(b)(2) and amounts to a new time burden.
Because railroads already maintain detailed employment records,
this new time burden due to documenting certain dates of a locomotive
engineer's service is one line in a database, i.e., a time burden of
about five minutes per engineer. This analysis estimates that each year
there will be approximately 200 certified locomotive engineers who are
on the payroll of a Class III railroads, but not currently working or
not performing service that would require locomotive engineer
certification. The cost for Class III railroads to document locomotive
engineers who are not performing service requiring locomotive engineer
certification is $1,057 (PV 7%), and $1,098 (PV 3%), in year two, and
$988 (PV 7%), and $1,066 (PV 3%), in year three.\15\ For the 20-year
period of analysis, the cost for Class III railroads to document
locomotive engineers who are not performing service requiring
locomotive engineer certification is $11,985 (PV 7%), and $16,831 (PV
3%).
---------------------------------------------------------------------------

\15\ Class III railroad cost for maintaining certification
records given break in service, year one (PV 7%) = [average annual
number of locomotive engineers with break in service (200) * time
burden to maintain record (5 minutes or 0.083 hours) * certification
manager compensation rate ($67.88)] (year 1 present value 7%
discount rate) = $1,131/(1.07) = $1,057.
---------------------------------------------------------------------------

Market and Competition Considerations
The railroad industry has several significant barriers to entry,
such as the need to own or otherwise obtain access to rights-of-way and
the high capital expenditure needed to purchase a fleet, as well as
track and equipment. Furthermore, the small railroads under
consideration would potentially be competing only with the trucking
industry and typically deal with the transport of commodities or goods
that are not truck-friendly. Thus, while this proposed rule would have
an economic impact on all railroads doing business on the general
railroad system, it should not have an impact on the competitive
position of small railroads.
FRA requests comment on these findings and conclusions.
5. Identification of Any Duplicative, Overlapping, or Conflicting
Federal Rules
FRA is not aware of any relevant Federal rules that may duplicate,
overlap, or conflict with the proposed rule.
FRA invites all interested parties to submit data and information
regarding the potential economic impact that would result from adoption
of the

[[Page 20499]]

proposals in this NPRM. FRA will consider all comments received in the
public comment process when making a determination.

C. Paperwork Reduction Act

The information collection requirements in this proposed rule are
being submitted for approval to the Office of Management and Budget
(OMB) under the Paperwork Reduction Act of 1995, 44 U.S.C. 3501 et seq.
The sections that contain the new information collection requirements
are duly designated, and the estimated time to fulfill each requirement
is as follows:

--------------------------------------------------------------------------------------------------------------------------------------------------------
Total annual
Average time per Total annual burden hours
CFR section/subject Respondent universe Total annual responses response burden hours dollar cost
equivalent
--------------------------------------------------------------------------------------------------------------------------------------------------------
240.9--Waivers--Petitions for Waiver.. 696 railroads............ 3 petitions.............. 90 minutes.............. 5 $339
240.101/103--Certification Program: 696 railroads............ 150 amended programs..... 1 hour.................. 150 10,182
Written program for certifying
qualifications of locomotive
engineers--amendments.
--Certification programs for new 20 railroads............. 20 new programs.......... 40 hours................ 800 54,304
railroads.
--New railroads final review and 20 railroads............. 20 reviews............... 1 hour.................. 20 1,358
submission of certification program.
--RR provision of copy of 696 railroads............ 750 copies............... 5 minutes............... 63 4,276
certification program submission or
resubmission to president of labor
organizations representing employees
simultaneously with filing with FRA
(Revised Requirement).
--RR affirmative statement that it has 696 railroads............ 750 averred statements... 20 minutes.............. 250 16,970
served certification program copy to
labor organizations (Revised
Requirement).
--Employee comment on submission, 696 railroads............ 25 comments.............. 40 hours................ 1,000 55,250
resubmission or material modification
of RR certification program (Revised
Requirement).
--FRA determination that program does 696 railroads............ 25 revised programs...... 4 hours................. 100 6,788
not conform and RR revision of
certification program.
--RR submission of revised program 696 railroads............ 5 resubmitted programs... 4 hours................. 20 1,358
within 30 days of FRA notice of
deficiencies and FRA disapproval of
revised program.
--RR material modifications to program 696 railroads............ 75 modified programs..... 45 minutes.............. 56 3,801
after initial FRA approval.
240.105--Selection criteria for 696 railroads............ 50 exams................. 1 hour.................. 50 2,894
designated supervisors of locomotive
engineers (DSLEs)--examinations of
DSLEs.
--Written report by railroad Chief 10 railroads............. 10 reports............... 1 hour.................. 10 679
Operating Officer of testing of DSLE.
240.109--Candidate's review and 26,000 candidates........ 40 responses............. 1 hour.................. 40 2,210
written comments on prior safety
conduct data.
240.111--Request for state driving 26,000 candidates........ 26,000 requests.......... 15 minutes.............. 6,500 441,220
data and National Driver Register
Data (NDR): Driver's license data
requests from chief of driver
licensing agency of any jurisdiction,
including foreign countries (Revised
Requirement).
--Employee written request for a copy 696 railroads............ 125 notices + 125 2 hours + 1 hour........ 375 20,719
of available information after being requests.
advised by RR that additional
information on person's driving
history may exist in files of a State
agency or foreign government (Revised
Requirement).
--RR Notification of NDR match and 696 railroads............ 260 notices + 260 15 minutes + 15 minutes. 130 8,003
employee request to State agency for requests.
relevant data.
--Written response to RR from 696 railroads............ 20 comments.............. 30 minutes.............. 10 553
candidate on driver's license record.
--Notice to Railroad of Absence of 696 railroads............ 6 letters................ 15 minutes.............. 2 136
License.
--Phone calls by locomotive engineer 80,000 candidates........ 300 calls................ 10 minutes.............. 50 2,763
to RR to report a conviction or a
completed State action to cancel,
revoke, suspend, or deny motor
vehicle driver's license.
240.113--Certification candidate 26,000 candidates........ 520 requests + 520 resp.. 15 min.; 30 min......... 390 24,832
request to former employing railroad
of service record and railroad
response concerning compliance or non-
compliance with Sec. Sec. 240.111/
117/119 (Revised Requirement).
240.115--RR temporary recertification 696 railroads............ 25 documents............. 5 minutes............... 2 136
of locomotive engineer for 60 days
after having requested the motor
vehicle information specified in
paragraph (h) of this section (New
Requirements).
--RR drug and alcohol counselor 26,000 candidates........ 200 requests + 200 2 hours + 60 minutes.... 600 40,728
request of employee's record of prior records.
counseling or treatment.

[[Page 20500]]

240.115 -Conditional certification 26,000 candidates........ 100 DAC testing 60 minutes.............. 100 6,788
based on recommendation by drug and directions.
alcohol counselor of employee
aftercare and/or follow-up testing
for alcohol or drugs.
--Employee is evaluated as having an 26,000 candidates........ 100 DAC evaluations...... 60 minutes.............. 100 6,788
active substance abuse disorder by RR
drug and alcohol counselor (DAC).
240.117--RR adoption & compliance with 696 railroads............ 170 programs............. 60 minutes.............. 170 11,540
a program that meets this section's
requirement (Revised Requirement).
--Designated supervisor of locomotive 80,000 locomotive 1,600 DSLE evaluations... 60 minutes.............. 1,600 108,608
engineers (DSLE) evaluation that engineers.
employee has received adequate
remedial training to be eligible for
grant of reinstatement of certificate
after certification was denied or
revoked.
--Employee successful completion of 80,000 locomotive 400 trained crew members. 8 hours................. 3,200 176,800
mandatory remedial training or engineers.
retraining.
240.119--Certified engineers 80,000 locomotive 400 decisions............ 60 minutes.............. 400 27,152
determined to have an active engineers.
substance abuse disorder and thus is
ineligible to hold certification.
--Employee Self-Referral to EAP 80,000 locomotive 50 self-referrals........ 5 minutes............... 4 221
Counselor for Substance Abuse engineers.
Disorder.
--RR review of certification to 696 railroads............ 400 reviews.............. 30 minutes.............. 200 13,576
determine whether a person may be or
remain certified as a locomotive
engineer in light of conduct relating
to a violation of section 219.101 or
219.102 that occurred within 60
months prior to review.
--RR written determination that the 696 railroads............ 400 written determination 30 minutes.............. 200 13,576
most recent incident has occurred
which begins period of ineligibility.
--RR notification to person that 696 railroads............ 200 notices.............. 45 minutes.............. 150 10,182
certification has been denied or
recertification revoked.
--Waiver of investigation by 80,000 locomotive 680 waivers.............. 2 minutes............... 23 1,271
locomotive engineer. engineers.
240.121--Criteria--hearing/vision 20 new railroads......... 20 copies................ 15 min.................. 5 339
acuity: Subsequent years--copies of
Part 240 Appendix F to RR medical
examiner.
--Medical examiner consultation with 696 railroads............ 20 reports............... 1 hour.................. 20 1,358
DSLE to issue conditional
certification report.
--Notification--hearing/vision change 696 railroads............ 10 notices............... 15 minutes.............. 3 166
by certified engineer to railroad.
240.125--Criteria for knowledge 26,000 candidates........ 8,000 worker consults.... 5 minutes............... 667 36,852
testing: Consultation by employee
being tested with a supervisory
employee who possess territorial
qualification for territory to
explain question (New Requirement).
240.127/129--Criteria for examining 696 railroads............ 18 amended programs + 171 48 hours + 8 hours...... 22,232 1,509,108
skill performance/operational perf.-- amended programs.
Revision of RR certification program
after engineer's failure/deficiencies
in skills test and description of
scoring system.
--Written records indicating dates 696 railroads............ 1,000 records............ 5 minutes............... 83 5,634
that the engineer stopped performing/
returned to certification service +
compliance/observation tests (New
Requirement).
240.201/221/223/301--List of DSLEs.... 696 railroads............ 696 updates.............. 30 minutes.............. 348 23,622
--List of designated qualified 696 railroads............ 696 updates/records...... 60 minutes.............. 696 47,244
locomotive engineers (DQLEs).
240.201/217/223/301--Locomotive 80,000 candidates........ 26,000 paper certificates 5 minutes............... 2,167 147,096
Engineers Certificate.
240.205--Furnishing of prior 696 railroads............ 185 records.............. 5 minutes............... 15 829
counseling or treatment records to
DAC by candidate.
240.207--Medical certificate on 80,000 candidates........ 26,000 paper certificates 70 minutes.............. 30,333 2,059,004
hearing/vision acuity--tests and
certificate issuance.
--Written document to RR from medical 696 railroads............ 20 written documents..... 15 minutes.............. 5 339
examiner stating professional opinion
that candidate does not meet one or
both acuity standards but
nevertheless be certified under
certain conditions.

[[Page 20501]]

--Written document to RR from medical 696 railroads............ 20 written documents..... 15 minutes.............. 5 339
examiner stating person's acuity
precludes operating a train even with
conditions attached.
--Written determination by medical 696 railroads............ 30 decisions............. 2 hours................. 60 4,073
examiner waiving necessity of wearing
hearing/vision corrective device.
240.219--Denial of certification-- 26,000 candidates........ 45 letters + 45 responses 1 hour.................. 90 5,541
notification to employee of adverse
information and employee response.
--RR provision of documents/records to 696 railroads............ 45 documents............. 2 minutes............... 2 136
candidate that support its pending
denial decision (New Requirement).
--Notification of adverse decision to 696 railroads............ 45 notices/explanations.. 1 hour.................. 45 3,055
person explaining RR basis for denial
which addresses any explanation or
rebuttal information provided by
employee (Revised Requirement).
240.221--Identification of qualified 696 railroads............ 125 lists/record copies.. 2 hours................. 250 16,970
persons: RR provision of list/records
of certified engineers to FRA upon
request.
240.223--RR written designation of 696 railroads............ 100 written designations. 15 minutes.............. 25 1,697
person other than DSLE to sign
locomotive engineers certificate.
--RR inclusion of additional 696 railroads............ 100 notations/documents.. 15 minutes.............. 25 1,697
information on locomotive engineer's
certificate or supplementing the
certificate through other documents.
240.229--Joint operations territory 321 railroads............ 10,000 RR determination.. 10 minutes.............. 1,667 113,156
requirements: RR determinations made
that locomotive engineers working in
joint operations are qualified under
subpart C of this part or are
certified by another railroad.
--Notification by engineer of non- 321 railroads............ 260 calls................ 5 minutes............... 22 1,216
qualification to operate train on
track segment.
240.301--Replacement of lost, 696 railroads............ 2,000 new certificates... 30 minutes.............. 1,000 67,880
mutilated, or stolen certificates.
--Temporary replacement certificates 696 railroads............ 2,000 temp. certificates. 30 minutes.............. 1,000 67,880
valid for no more than 30 days (New
Requirement).
240.305--Display of certificate upon 696 railroads............ 2,500 request/displayed 5 minutes............... 208 11,492
request of authorized representatives certificates.
of: FRA, State Part 212 inspectors,
issuing railroad, or officer of
another railroad during joint train
operations (Revised Requirement).
240.309--Railroad oversight 15 railroads............. 6 annotations............ 15 minutes.............. 2 136
responsibilities--instances of
identified poor safety conduct and
remedial/other actions taken.
TESTING REQUIREMENTS:
240.209/213--Written test--Prior to 80,000 candidates........ 26,000 tests............. 2 hours................. 52,000 2,873,000
certification or recertification.
--Test failures and retests of persons 80,000 candidates........ 26 retests............... 2 hours................. 52 2,873
240.211/213--Performance Test--Prior 80,000 candidates........ 26,000 tests............. 2 hours................. 52,000 2,873,000
to certification or recertification.
--Test failures and retests of persons 80,000 candidates........ 26 retests............... 2 hours................. 52 2,873
240.303--Annual operational monitoring 80,000 candidates........ 80,000 tests............. 2 hours................. 160,000 8,840,000
observation test of locomotive
engineers prior to certification or
recertification.
--Annual unannounced operating rules 80,000 candidates........ 80,000 tests............. 1 hour.................. 80,000 4,420,000
compliance test.
RECORDKEEPING REQUIREMENTS:
240.215--Recordkeeping--Certification 696 railroads............ 26,000 cert. records..... 30 minutes.............. 13,000 882,440
of locomotive engineers.
240.305--Engineer notice to RR that he/ 80,000 candidates........ 150 notices.............. 5 minutes............... 13 718
she is not qualified to perform
anticipated service.
--Notice to engineer holding two or 1,060 candidates......... 3 letters................ 30 minutes.............. 2 111
more certificates that he/she has
been denied certification by another
RR or that he/she has had
certification revoked.
240.307--Written notification to 696 railroads............ 1,358 written notices.... 1 hour.................. 1,358 92,181
engineer by RR of reasons that it is
suspending or revoking certification
and mention of opportunity for
hearing before impartial presiding
officer.

[[Page 20502]]

--Convening of hearing within deadline 696 railroads............ 690 hearings/records..... 4 hours................. 2,760 187,349
stipulated in (c)(1) of this section.
--RR provision to employee of copy of 696 railroads............ 690 copies/lists......... 5 minutes............... 58 3,937
written information and list of
witnesses that it will present at
hearing (New Requirement).
--RR determination on hearing record 696 railroads............ 1,600 hearing 1 hour.................. 1,600 108,608
whether person no longer meets the determination.
certification requirements of this
part stating explicitly reasons for
the conclusion reached.
--RR written decision after close of 696 railroads............ 690 written decisions.... 2 hours................. 1,380 93,675
hearing containing findings of fact
and whether a revocable event
occurred.
--RR service of written decision on 696 railroads............ 3,750 copies............. 30 minutes.............. 1,875 127,275
employee and employee's
representative (Revised Requirement).
--Person written waiver of right to 26,000 candidates........ 750 written waivers...... 15 minutes.............. 188 10,387
hearing under this section.
--RR revocation of certification after 696 railroads............ 50 revoked certifications 2 hours................. 100 6,788
acquiring information that another RR
has revoked person's certification.
--RR updating of records to include 696 railroads............ 50 updated records....... 15 minutes.............. 8 543
relevant information meeting criteria
of paragraph (i) of this section.
--RR good faith determination after 696 railroads............ 50 good faith 60 minutes.............. 50 3,394
reasonable inquiry that the course of determination.
conduct provided for in paragraph (i)
of this section is appropriate.
240.308--Person must be certified as 26,000 candidates........ 8,666 dual certifications 5 minutes............... 722 49,009
both conductor and locomotive
engineer when operating locomotive
without an assigned certified
conductor (New Requirement).
--Communication to locomotive engineer 51 railroads............. 200 messages............. 15 minutes.............. 50 3,394
on passenger railroad that certified
conductor has been removed for a
medical, police, or other such
emergency after train departs from
initial terminal (New Requirement).
--Notification to RR by person holding 26,000 candidates........ 100 notices.............. 30 minutes.............. 50 2,763
more than one current conductor and/
or locomotive certificate that
another RR had denied recertification.
240.309--RR Oversight 51 railroads............. 51 reviews............... 40 hours................ 2,040 138,475
Responsibilities: Performance of
Annual Reviews/Analysis.
--RR Report of Findings............... 51 railroads............. 12 reports............... 1 hour.................. 12 815
Appendix B--Railroad request to FRA 696 railroads............ 170 requests............. 1 hour.................. 170 11,540
for electronic submission of required
materials.
-----------------------------------------------------------------------------------------------------------------
Total............................. N/A...................... 372,123.................. N/A..................... 445,013 25,784,983
--------------------------------------------------------------------------------------------------------------------------------------------------------

All estimates include the time for reviewing instructions;
searching existing data sources; gathering or maintaining the needed
data; and reviewing the information. Pursuant to 44 U.S.C.
3506(c)(2)(B), FRA solicits comments concerning: Whether these
information collection requirements are necessary for the proper
performance of the functions of FRA, including whether the information
has practical utility; the accuracy of FRA's estimates of the burden of
the information collection requirements; the quality, utility, and
clarity of the information to be collected; and whether the burden of
collection of information on those who are to respond, including
through the use of automated collection techniques or other forms of
information technology, may be minimized.
Organizations and individuals wishing to obtain a copy of the
agency information collection request submitted to OMB or desiring to
transmit comments on the collection of information requirements should
direct them to Mr. Robert Brogan, Information Collection Clearance
Officer, or Ms. Kimberly Toone, Records Management Officer, Federal
Railroad Administration, 1200 New Jersey Avenue SE, 3rd Floor,
Washington, DC 20590. Also, requests for a copy of the information
collection request or comments on the information collection request
requirements may be transmitted via email to Mr. Brogan at
[email protected], or to Ms. Toone at [email protected].
Additionally, Mr. Brogan and Ms. Toone may be contacted by phone at
202-493-6292, and 202-493-6139, respectively. (These numbers are not
toll-free.)
OMB is required to make a decision concerning the collection of
information requirements contained in this proposed rule between 30 and
60 days after publication of this document in the Federal Register.
Therefore, a comment to OMB is best assured of having its full effect
if OMB receives it within 30 days of publication. The final rule will
respond to any OMB or public comments on the information collection
requirements contained in this proposal.
FRA is not authorized to impose a penalty on persons for violating
information collection requirements which do not display a current OMB
control number, if required. FRA intends to obtain current OMB control
numbers for any new information

[[Page 20503]]

collection requirements resulting from this rulemaking action prior to
the effective date of the final rule. The OMB control number, when
assigned, will be announced by separate notice in the Federal Register.

D. Federalism Implications

Executive Order 13132, ``Federalism'' (64 FR 43255, Aug. 10, 1999),
requires FRA to develop an accountable process to ensure ``meaningful
and timely input by State and local officials in the development of
regulatory policies that have federalism implications.'' ``Policies
that have federalism implications'' are defined in the Executive Order
to include regulations having ``substantial direct effects on the
States, on the relationship between the national government and the
States, or on the distribution of power and responsibilities among the
various levels of government.'' Under Executive Order 13132, the agency
may not issue a regulation with federalism implications that imposes
substantial direct compliance costs and that is not required by
statute, unless the Federal government provides the funds necessary to
pay the direct compliance costs incurred by State and local governments
or the agency consults with State and local government officials early
in the process of developing the regulation. Where a regulation has
federalism implications and preempts State law, the agency seeks to
consult with State and local officials in the process of developing the
regulation.
FRA has analyzed this NPRM under the principles and criteria
contained in Executive Order 13132. FRA has determined this proposed
rule would not have a substantial direct effect on the States or their
political subdivisions; on the relationship between the Federal
government and the States or their political subdivisions, or on the
distribution of power and responsibilities among the various levels of
government. In addition, FRA has determined this rule does not impose
substantial direct compliance costs on State and local governments.
Therefore, the consultation and funding requirements of Executive Order
13132 do not apply.
This proposed rule could have preemptive effect by the operation of
law under a provision of the former Federal Railroad Safety Act of
1970, repealed and recodified at 49 U.S.C. 20106 (Section 20106).
Section 20106 provides that States may not adopt or continue in effect
any law, regulation, or order related to railroad safety or security
that covers the subject matter of a regulation prescribed or order
issued by the Secretary of Transportation (with respect to railroad
safety matters) or the Secretary of Homeland Security (with respect to
railroad security matters), except when the State law, regulation, or
order qualifies under the ``essentially local safety or security
hazard'' exception to section 20106.
In sum, FRA has analyzed this proposed rule in accordance with the
principles and criteria contained in Executive Order 13132. As
explained above, FRA has determined that this proposed rule has no
federalism implications, other than the possible preemption of State
laws under Federal railroad safety statutes, specifically 49 U.S.C.
20106. Accordingly, FRA has determined that preparation of a federalism
summary impact statement for this proposed rule is not required.

E. International Trade Impact Assessment

The Trade Agreement Act of 1979 prohibits Federal agencies from
engaging in any standards or related activities that create unnecessary
obstacles to the foreign commerce of the United States. Legitimate
domestic objectives, such as safety, are not considered unnecessary
obstacles. The statute also requires consideration of international
standards and where appropriate, that they be the basis for U.S.
standards. This proposed rule is purely domestic in nature and is not
expected to affect trade opportunities for U.S. firms doing business
overseas or for foreign firms doing business in the United States.

F. Environmental Impact

FRA has evaluated this rule under its ``Procedures for Considering
Environmental Impacts'' (FRA's Procedures) (64 FR 28545, May 26, 1999)
as required by the National Environmental Policy Act (42 U.S.C. 4321 et
seq.), other environmental statutes, Executive Orders, and related
regulatory requirements. FRA has determined that this proposed rule is
not a major FRA action (requiring the preparation of an environmental
impact statement or environmental assessment) because it is
categorically excluded from detailed environmental review pursuant to
section 4(c)(20) of FRA's Procedures. See 64 FR 28547 (May 26, 1999).
Consistent with section 4(c) and (e) of FRA's Procedures, the
agency has further concluded that no extraordinary circumstances exist
with respect to this regulation that might trigger the need for a more
detailed environmental review. As a result, FRA finds that this
proposed rule is not a major Federal action significantly affecting the
quality of the human environment.

G. Unfunded Mandates Reform Act of 1995

Pursuant to Section 201 of the Unfunded Mandates Reform Act of 1995
(Pub. L. 104-4, 2 U.S.C. 1531), each Federal agency ``shall, unless
otherwise prohibited by law, assess the effects of Federal regulatory
actions on State, local, and tribal governments, and the private sector
(other than to the extent that such regulations incorporate
requirements specifically set forth in law).'' Section 202 of the Act
(2 U.S.C. 1532) further requires that ``before promulgating any general
notice of proposed rulemaking that is likely to result in the
promulgation of any rule that includes any Federal mandate that may
result in expenditure by State, local, and tribal governments, in the
aggregate, or by the private sector, of $100,000,000 or more (adjusted
annually for inflation) in any 1 year, and before promulgating any
final rule for which a general notice of proposed rulemaking was
published, the agency shall prepare a written statement'' detailing the
effect on State, local, and tribal governments and the private sector.
For the year 2016, this monetary amount has been adjusted to
$156,000,000 to account for inflation.\16\ This proposed rule will not
result in the expenditure of more than $156,000,000 by the public
sector in in any one year, and thus preparation of such a statement is
not required.
---------------------------------------------------------------------------

\16\ Monetary value based on most recent DOT guidance. U.S.
Department of Transportation, Office of Secretary of Transportation,
Monje, Carlos and Thomson, Kathryn, ``Department Guidance: Threshold
of Significant Regulatory Action Under the Unfunded Mandate Reform
Act of 1995. April 4, 2016. https://www.transportation.gov/office-policy/transportation-policy/threshold-significant-regulatory-actions-under-unfunded-mandat-0.
---------------------------------------------------------------------------

H. Energy Impact

Executive Order 13211 requires Federal agencies to prepare a
Statement of Energy Effects for any ``significant energy action.'' 66
FR 28355 (May 22, 2001). FRA has evaluated this NPRM under Executive
Order 13211 and determined that this NPRM is not a ``significant energy
action'' within the meaning of Executive Order 13211.
Executive Order 13783 requires Federal agencies to review
regulations to determine whether they potentially burden the
development or use of domestically produced energy resources, with
particular attention to oil, natural gas, coal, and nuclear energy
resources. 82 FR 16093 (Mar. 31, 2017). FRA has evaluated this NPRM
under Executive Order 13783 and determined

[[Page 20504]]

that this proposed rule would not burden the development or use of
domestically produced energy resources.

I. Privacy Act

In accordance with 5 U.S.C. 553(c), DOT solicits comments from the
public to better inform its rulemaking process. DOT solicits comments
from the public to better inform its rulemaking process. DOT posts
these comments, without edit, to www.regulations.gov, as described in
the system of records notice, DOT/ALL-14 FDMS, accessible through
www.dot.gov/privacy. In order to facilitate comment tracking and
response, we encourage commenters to provide their name, or the name of
their organization; however, submission of names is completely
optional. Whether or not commenters identify themselves, all timely
comments will be fully considered. If you wish to provide comments
containing proprietary or confidential information, please contact the
agency for alternate submission instructions.

List of Subjects in 49 CFR Part 240

Administrative practice and procedure, Locomotive engineer,
Penalties, Railroad employees, Railroad operating procedures, Railroad
safety, Reporting and recordkeeping requirements.

The Proposed Rule

For the reasons discussed in the preamble, FRA proposes to amend
part 240 of chapter II, subtitle B of title 49 of the Code of Federal
Regulations as follows:

PART 240--[AMENDED]

0
1. The authority citation for part 240 is revised to read as follows:

Authority: 44 U.S.C. 3501 et seq.; 49 U.S.C. 20103, 20107,
20135, 20138, 20162, 20163, 21301, 21304, 21311; 28 U.S.C. 2461,
note; and 49 CFR 1.89.

0
2. Section 240.1 is amended by revising paragraph (c) to read as
follows:

Sec. 240.1 Purpose and scope.

* * * * *
(c) The locomotive engineer certification requirements prescribed
in this part apply to any person who meets the definition of locomotive
engineer contained in Sec. 240.7, regardless of the fact that the
person may have a job classification title other than that of
locomotive engineer.
0
3. Section 240.3 is revised to read as follows:

Sec. 240.3 Application and responsibility for compliance.

(a) This part applies to all railroads, except:
(1) Railroads that operate only on track inside an installation
that is not part of the general railroad system of transportation
(i.e., plant railroads, as defined in Sec. 240.7);
(2) Tourist, scenic, historic, or excursion operations that are not
part of the general railroad system of transportation as defined in
Sec. 240.7; or
(3) Rapid transit operations in an urban area that are not
connected to the general railroad system of transportation.
(b) Although the duties imposed by this part are generally stated
in terms of the duty of a railroad, each person, including a contractor
for a railroad, who performs any function covered by this part must
perform that function in accordance with this part.
0
4. Section 240.5 is revised to read as follows:

Sec. 240.5 Effect and construction.

(a) FRA does not intend, by use of the term locomotive engineer in
this part, to alter the terms, conditions, or interpretation of
existing collective bargaining agreements that employ other job
classification titles when identifying a person authorized by a
railroad to operate a locomotive.
(b) FRA does not intend by issuance of these regulations to alter
the authority of a railroad to initiate disciplinary sanctions against
its employees, including managers and supervisors, in the normal and
customary manner, including those contained in its collective
bargaining agreements.
(c) Except as provided in Sec. 240.308, nothing in this part shall
be construed to create or prohibit an eligibility or entitlement to
employment in other service for the railroad as a result of denial,
suspension, or revocation of certification under this part.
(d) Nothing in this part shall be deemed to abridge any additional
procedural rights or remedies not inconsistent with this part that are
available to the employee under a collective bargaining agreement, the
Railway Labor Act, or (with respect to employment at will) at common
law with respect to removal from service or other adverse action taken
as a consequence of this part.
0
5. Section 240.7 is amended by:
0
a. Adding in alphabetical order definitions for ``conductor'' and
``drug and alcohol counselor'';
0
b. Removing the definition of ``EAP counselor'';
0
c. Revising the definitions of ``file, filed and filing'' and ``FRA
Representative'';
0
d. Adding in alphabetical order a definition for ``ineligible or
ineligibility'';
0
e. Revising the definitions of ``instructor engineer'', ``main track'',
and ``medical examiner'';
0
f. Removing the definition of ``newly hired employee'';
0
g. Adding in alphabetical order definitions for ``on-the-job training
(OJT)'', ``physical characteristics'', and ``plant railroad'';
0
h. Revising the definitions of ``qualified'' and ``railroad rolling
stock'';
0
i. Adding in alphabetical order definitions for ``remote control
operator'' and ``serve or service'';
0
j Removing the definition of ``service'';
0
k. Revising the definition of ``substance abuse disorder''; and
0
l. Adding in alphabetical order definitions for ``substance abuse
professional'', ``territorial qualifications'', and ``tourist, scenic,
historic, or excursion operations that are not part of the general
system of transportation''.
The additions and revisions read as follows:

Sec. 240.7 Definitions.

* * * * *
Conductor means the crewmember in charge of a ``train or yard
crew'' as defined in part 218 of this chapter.
* * * * *
Drug and alcohol counselor (DAC) means a person who meets the
credentialing and qualification requirements of a ``Substance Abuse
Professional'' (SAP), as provided in 49 CFR part 40.
* * * * *
File, filed and filing mean submission of a document under this
part on the date when the DOT Docket Clerk or FRA receives it, or if
sent by mail, the date mailing was completed.
* * * * *
FRA Representative means the FRA Associate Administrator for
Railroad Safety/Chief Safety Officer and the Associate Administrator's
delegate, including any safety inspector employed by the Federal
Railroad Administration and any qualified state railroad safety
inspector acting under part 212 of this chapter.
Ineligible or ineligibility means that a person is legally
disqualified from serving as a certified locomotive engineer. The term
covers a number of circumstances in which a person may not serve as a
certified locomotive

[[Page 20505]]

engineer. Revocation of certification pursuant to Sec. 240.307 and
denial of certification pursuant to Sec. 240.219 are two examples in
which a person would be ineligible to serve as a certified locomotive
engineer. A period of ineligibility may end when a condition or
conditions are met. For example, a period of ineligibility may end when
a person meets the conditions to serve as a certified locomotive
engineer following an alcohol or drug violation pursuant to Sec.
240.119.
Instructor engineer means
(1) A person who has demonstrated, pursuant to the railroad's
written program, an adequate knowledge of the subjects under
instruction and, where applicable, has the necessary operating
experience to effectively instruct in the field, and has the following
qualifications:
(i) Is a certified locomotive engineer under this part; and
(ii) Has been selected as such by a designated railroad officer, in
concurrence with the designated employee representative, where present,
to teach others proper train handling procedures, or
(iii) In absence of concurrence provided in paragraph (1)(ii) of
this definition, has a minimum of 12 months service working in the
class of service for which the person is designated to instruct.
(2) If a railroad does not have designated employee representation,
then a person employed by the railroad need not comply with paragraph
(1)(ii) or (iii) of this definition to be an instructor engineer.
* * * * *
Main track means a track upon which the operation of trains is
governed by one or more of the following methods of operation:
Timetable; mandatory directive; signal indication; positive train
control as defined in part 236 of this chapter; or any form of absolute
or manual block system.
Medical examiner means a person licensed as a doctor of medicine or
doctor of osteopathy. A medical examiner can be a qualified full-time
salaried employee of a railroad, a qualified practitioner who contracts
with the railroad on a fee-for-service or other basis, or a qualified
practitioner designated by the railroad to perform functions in
connection with medical evaluations of employees. As used in this rule,
the medical examiner owes a duty to make an honest and fully informed
evaluation of the condition of an employee.
On-the-job training (OJT) means job training that occurs in the
workplace, i.e., the employee learns the job while doing the job.
Operator control unit (OCU) means a mobile unit that communicates
via a radio link the commands for a movement (direction, speed,
braking) or for operations (bell, horn, sand) to an RCL.
* * * * *
Physical characteristics means the actual track profile of and
physical location for points within a specific yard or route that
affect the movement of a locomotive or train. Physical characteristics
includes both main track physical characteristics (see definition of
``main track'' in this section) and other than main track physical
characteristics.
Plant railroad means a plant or installation that owns or leases a
locomotive, uses that locomotive to switch cars throughout the plant or
installation, and is moving goods solely for use in the facility's own
industrial processes. The plant or installation could include track
immediately adjacent to the plant or installation if the plant railroad
leases the track from the general system railroad and the lease
provides for (and actual practice entails) the exclusive use of that
trackage by the plant railroad and the general system railroad for
purposes of moving only cars shipped to or from the plant. A plant or
installation that operates a locomotive to switch or move cars for
other entities, even if solely within the confines of the plant or
installation, rather than for its own purposes or industrial processes,
will not be considered a plant railroad because the performance of such
activity makes the operation part of the general railroad system of
transportation.
Qualified means a person who has successfully completed all
instruction, training and examination programs required by the employer
and the applicable parts of this chapter, and that the person therefore
may reasonably be expected to be proficient on all safety-related tasks
the person is assigned to perform.
* * * * *
Railroad rolling stock is on-track equipment that is either a
``railroad freight car'' (as defined in Sec. 215.5 of this chapter) or
a ``passenger car'' (as defined in Sec. 238.5 of this chapter).
Remote control locomotive (RCL) means a remote control locomotive
that, through use of a radio link can be operated by a person not
physically within the confines of the locomotive cab. For purposes of
this part, the term RCL does not refer to a locomotive or group of
locomotives remotely controlled from the lead locomotive of a train, as
in a distributed power arrangement.
* * * * *
Serve or service, in the context of serving documents, has the
meaning given in Rule 5 of the Federal Rules of Civil Procedure as
amended. Similarly, the computation of time provisions in Rule 6 of the
Federal Rules of Civil Procedure as amended are also applicable in this
part. See also the definition of ``filing'' in this section.
* * * * *
Substance abuse disorder refers to a psychological or physical
dependence on alcohol or a drug, or another identifiable and treatable
mental or physical disorder involving the abuse of alcohol or drugs as
a primary manifestation. A substance abuse disorder is ``active''
within the meaning of this part if the person is currently using
alcohol or other drugs, except under medical supervision consistent
with the restrictions described in Sec. 219.103 of this chapter or has
failed to successfully complete primary treatment or successfully
participate in aftercare as directed by a DAC or SAP.
Substance abuse professional (SAP) means a person who meets the
qualifications of a substance abuse professional, as provided in part
40 of this title.
Territorial qualifications means possessing the necessary knowledge
concerning a railroad's operating rules and timetable special
instructions, including familiarity with applicable main track and
other than main track physical characteristics of the territory over
which the locomotive or train movement will occur.
Tourist, scenic, historic, or excursion operations that are not
part of the general railroad system of transportation means a tourist,
scenic, historic, or excursion operation conducted only on track used
exclusively for that purpose (i.e., there is no freight, intercity
passenger, or commuter passenger railroad operation on the track).
* * * * *
0
6. Section 240.11 is amended by revising paragraph (d) to read as
follows:

Sec. 240.11 Penalties and consequences for noncompliance.

* * * * *
(d) In addition to the enforcement methods referred to in
paragraphs (a), (b), and (c) of this section, FRA may also address
violations of this part by use of the emergency order, compliance
order, and/or injunctive provisions of the Federal rail safety laws.

[[Page 20506]]

0
7. Section 240.103 is amended by revising paragraphs (b) through (e)
and adding paragraphs (f), (g), and (h) to read as follows:

Sec. 240.103 Approval of design of individual railroad programs by
FRA.

* * * * *
(b) Each railroad shall:
(1) Simultaneous with its filing with the FRA, serve a copy of the
submission filed pursuant to paragraph (a) of this section, a
resubmission filed pursuant to paragraph (f) of this section, or a
material modification filed pursuant to paragraph (g) of this section
on the president of each labor organization that represents the
railroad's employees subject to this part; and
(2) Include in its submission filed pursuant to paragraph (a) of
this section, a resubmission filed pursuant to paragraph (f) of this
section, or a material modification filed pursuant to paragraph (g) of
this section a statement affirming that the railroad has served a copy
on the president of each labor organization that represents the
railroad's employees subject to this part, together with a list of the
names and addresses of persons served.
(c) Not later than 45 days from the date of filing a submission
pursuant to paragraph (a) of this section, a resubmission pursuant to
paragraph (f) of this section, or a material modification pursuant to
paragraph (g) of this section, any designated representative of
railroad employees subject to this part may comment on the submission,
resubmission, or material modification:
(1) Each comment shall set forth specifically the basis upon which
it is made, and contain a concise statement of the interest of the
commenter in the proceeding;
(2) Each comment shall be submitted to the Associate Administrator
for Railroad Safety/Chief Safety Officer, FRA, 1200 New Jersey Avenue
SE, Washington, DC 20590; and
(3) The commenter shall certify that a copy of the comment was
served on the railroad.
(d) The submission required by paragraph (a) of this section shall
state the railroad's election either:
(1) To accept responsibility for the training of student engineers
and thereby obtain authority for that railroad to initially certify a
person as an engineer in an appropriate class of service, or
(2) To recertify only engineers previously certified by other
railroads.
(e) A railroad that elects to accept responsibility for the
training of student engineers shall state in its submission whether it
will conduct the training program or employ a training program
conducted by some other entity on its behalf but adopted and ratified
by that railroad.
(f) A railroad's program is considered approved and may be
implemented 30 days after the required filing date (or the actual
filing date) unless the Administrator notifies the railroad in writing
that the program does not conform to the criteria set forth in this
part.
(1) If the Administrator determines that the program does not
conform, the Administrator will inform the railroad of the specific
deficiencies.
(2) If the Administrator informs the railroad of deficiencies more
than 30 days after the initial filing date, the original program may
remain in effect until 30 days after approval of the revised program is
received so long as the railroad has complied with the requirements of
paragraph (g) of this section.
(g) A railroad shall resubmit its program within 30 days after the
date of such notice of deficiencies. A failure to resubmit the program
with the necessary revisions will be considered a failure to implement
a program under this part.
(1) The Administrator will inform the railroad in writing whether
its revised program conforms to this part.
(2) If the program does not conform, the railroad shall resubmit
its program.
(h) A railroad that intends to materially modify its program after
receiving initial FRA approval shall submit a description of how it
intends to modify the program in conformity with the specific
requirements of this part at least 60 days prior to implementing such a
change.
(1) A modification is material if it would affect the program's
conformance with this part.
(2) The modification submission shall contain a description that
conforms to the pertinent portion of the procedures contained in
appendix B.
(3) The modification submission will be handled in accordance with
the procedures of paragraphs (b) and (c) of this section as though it
were a new program.
0
8. Section 240.105 is amended by adding paragraph (d) to read as
follows:

Sec. 240.105 Criteria for selection of designated supervisors of
locomotive engineers.

* * * * *
(d) Each railroad is authorized to designate a person as a
designated supervisor of locomotive engineers with additional
conditions or operational restrictions on the service the person may
perform.
0
9. Section 240.107 is amended by:
0
a. Revising the section heading and paragraphs (a), (b)(2) and (3);
0
b. Adding paragraphs (b)(4) and (5);
0
c. Revising paragraphs (c)(2) and (3); and
0
d. Adding paragraph (c)(4).
The revisions and additions read as follows:

Sec. 240.107 Types of service.

(a) Each railroad's program shall state which of the classes of
service, provided for in paragraph (b) of this section, that it will
cover.
(b) * * *
(2) Locomotive servicing engineers,
(3) Remote control operators,
(4) Student engineers, and
(5) Student remote control operators.
(c) * * *
(2) Locomotive servicing engineers may operate locomotives singly
or in multiples but may not move them with cars coupled to them;
(3) Remote control operators may operate an RCL singly or attached
to multiple locomotives, and may move an RCL with or without cars
coupled to the RCL or locomotives, but in all instances the movement
must be controlled using an OCU; and
(4) Student engineers and student remote control operators may
operate only under direct and immediate supervision of an instructor
engineer.
* * * * *
0
10. Section 240.111 is amended by revising paragraph (a)(2),
republishing paragraph (c) introductory text, and revising paragraphs
(c)(1) and (2), (d), (e), (f), and (h) to read as follows:

Sec. 240.111 Individual's duty to furnish data on prior safety
conduct as motor vehicle operator.

(a) * * *
(2) Take any additional actions, including providing any necessary
consent required by State, Federal, or foreign law to make information
concerning his or her driving record available to that railroad.
* * * * *
(c) Each person shall request the information required under
paragraph (b)(1) of this section from:
(1) The chief of the driver licensing agency of any jurisdiction,
including a state or foreign country, which last issued that person a
driver's license; and
(2) The chief of the driver licensing agency of any other
jurisdiction, including states or foreign countries, that issued or
reissued him or her a driver's license within the preceding five years.

[[Page 20507]]

(d) Each person shall request the information required under
paragraph (b)(2) of this section from the Chief, National Driver
Register, National Highway Traffic Safety Administration, 1200 New
Jersey Avenue SE, Washington, DC 20590 in accordance with the
procedures contained in appendix C unless the person's motor vehicle
driving license was issued by a state or the District of Columbia.
(e) If the person's motor vehicle driving license was issued by one
of the driver licensing agencies of a state or the District of
Columbia, the person shall request the chief of that driver licensing
agency to perform a check of the National Driver Register for the
possible existence of additional information concerning his or her
driving record and to provide the resulting information to the
railroad.
(f) If advised by the railroad that a driver licensing agency or
the National Highway Traffic Safety Administration has informed the
railroad that additional information concerning that person's driving
history may exist in the files of a state agency or foreign country not
previously contacted in accordance with this section, such person
shall:
(1) Request in writing that the chief of the driver licensing
agency which compiled the information provide a copy of the available
information to the prospective certifying railroad; and
(2) Take any additional action required by State, Federal, or
foreign law to obtain that additional information.
* * * * *
(h) Each certified locomotive engineer or person seeking initial
certification shall report motor vehicle incidents described in Sec.
240.115(b)(1) and (2) to the employing railroad within 48 hours of
being convicted for, or completed state action to cancel, revoke,
suspend, or deny a motor vehicle driver's license for, such violations.
For purposes of this paragraph and Sec. 240.115(h), ``state action''
means action of the jurisdiction that has issued the motor vehicle
driver's license, including a foreign country. For the purposes of
engineer certification, no railroad shall require reporting earlier
than 48 hours after the conviction, or completed state action to
cancel, revoke, or deny a motor vehicle driver's license.
0
11. Section 240.113 is amended by revising paragraphs (a) introductory
text and (a)(1) and removing and reserving paragraph (b).
The revisions read as follows:

Sec. 240.113 Individual's duty to furnish data on prior safety
conduct as an employee of a different railroad.

(a) Except for persons covered by Sec. 240.109(h), each person
seeking certification or recertification under this part shall, within
366 days preceding the date of the railroad's decision on certification
or recertification:
(1) Request, in writing, that the chief operating officer or other
appropriate person of the former employing railroad provide a copy of
that railroad's available information concerning his or her service
record pertaining to compliance or non-compliance with Sec. Sec.
240.111, 240.117, and 240.119 to the railroad that is considering such
certification or recertification; and
* * * * *
0
12. Section 240.115 is revised to read as follows:

Sec. 240.115 Criteria for consideration of prior safety conduct as a
motor vehicle operator.

(a) Each railroad shall adopt and comply with a program meeting the
requirements of this section. When any person (including, but not
limited to, each railroad, railroad officer, supervisor, and employee)
violates any requirement of a program that complies with the
requirements of this section, that person shall be considered to have
violated the requirements of this section.
(b) Except as provided in paragraphs (c) through (f) of this
section, each railroad, prior to initially certifying or recertifying
any person as a locomotive engineer for any type of service, shall
determine that the person meets the eligibility requirements of this
section involving prior conduct as a motor vehicle operator.
(c) A railroad shall initially certify a person as a locomotive
engineer for 60 days if the person:
(1) Requested the information required by paragraph (h) of this
section at least 60 days prior to the date of the decision to certify
that person; and
(2) Otherwise meets the eligibility requirements provided in Sec.
240.109.
(d) A railroad shall recertify a person as a locomotive engineer
for 60 days from the expiration date of that person's certification if
the person:
(1) Requested the information required by paragraph (h) of this
section at least 60 days prior to the date of the decision to recertify
that person; and
(2) Otherwise meets the eligibility requirements provided in Sec.
240.109.
(e) Except as provided in paragraph (f) of this section, if a
railroad who certified or recertified a person pursuant to paragraph
(c) or (d) of this section does not obtain and evaluate the information
required pursuant to paragraph (h) of this section within 60 days of
the pertinent dates identified in paragraph (c) or (d) of this section,
that person will be ineligible to perform as a locomotive engineer
until the information can be evaluated.
(f) If a person requests the information required pursuant to
paragraph (h) of this section but is unable to obtain it, that person
or the railroad certifying or recertifying that person may petition for
a waiver of the requirements of paragraph (b) of this section in
accordance with the provisions of part 211 of this chapter. A railroad
shall certify or recertify a person during the pendency of the waiver
request if the person otherwise meets the eligibility requirements
provided in Sec. 240.109.
(g) When evaluating a person's motor vehicle driving record, a
railroad shall not consider information concerning motor vehicle
driving incidents that occurred more than 36 months before the month in
which the railroad is making its certification decision or at a time
other than that specifically provided for in Sec. 240.111, Sec.
240.117, Sec. 240.119, or Sec. 240.205.
(h) A railroad shall only consider information concerning the
following types of motor vehicle incidents:
(1) A conviction for, or completed state action to cancel, revoke,
suspend, or deny a motor vehicle driver's license for, operating a
motor vehicle while under the influence of or impaired by alcohol or a
controlled substance; or
(2) A conviction for, or completed state action to cancel, revoke,
suspend, or deny a motor vehicle driver's license for, refusal to
undergo such testing as is required by State or foreign law when a law
enforcement official seeks to determine whether a person is operating a
vehicle while under the influence of alcohol or a controlled substance.
(i) If such an incident is identified,
(1) The railroad shall provide the data to the railroad's DAC,
together with any information concerning the person's railroad service
record, and shall refer the person for evaluation to determine if the
person has an active substance abuse disorder;
(2) The person shall cooperate in the evaluation and shall provide
any requested records of prior counseling or treatment for review
exclusively by the DAC in the context of such evaluation; and
(3) If the person is evaluated as not currently affected by an
active substance abuse disorder, the subject data shall not be
considered further with respect to certification. However, the railroad
shall, on recommendation of the DAC,

[[Page 20508]]

condition certification upon participation in any needed aftercare and/
or follow-up testing for alcohol or drugs deemed necessary by the DAC
consistent with the technical standards specified in Sec.
240.119(d)(3) of this part.
(4) If the person is evaluated as currently affected by an active
substance abuse disorder, the provisions of Sec. 240.119(b) will
apply.
(5) If the person fails to comply with the requirements of
paragraph (i)(2) of this section, the person shall be ineligible to
perform as a locomotive engineer until such time as the person complies
with the requirements.
0
13. Section 240.117 is amended by:
0
a. Revising paragraphs (a), (c)(1) and (3), and (e)(5) and (6);
0
b. Adding paragraph (f)(4);
0
c. Revising paragraphs (g)(3)(i) and (ii);
0
d. Redesignating paragraph (h) as paragraph (i); and
0
e. Adding new paragraph (h).
The revisions and additions read as follows:

Sec. 240.117 Criteria for consideration of operating rules
compliance data.

(a) Each railroad shall adopt and comply with a program which meets
the requirements of this section. When any person including, but not
limited to, each railroad, railroad officer, supervisor, and employee
violates any requirement of a program that complies with the
requirements of this section, that person shall be considered to have
violated the requirements of this section.
* * * * *
(c)(1) A certified locomotive engineer who has demonstrated a
failure to comply with railroad rules and practices described in
paragraph (e) of this section shall have his or her certification
revoked.
* * * * *
(3) A certified locomotive engineer who is called by a railroad to
perform the duty of a train crew member other than that of locomotive
engineer or conductor shall not have his or her certification revoked
based on actions taken or not taken while performing that duty.
* * * * *
(e) * * *
(5) Failure to comply with prohibitions against tampering with
locomotive mounted safety devices, or knowingly operating or permitting
to be operated a train with an unauthorized disabled safety device in
the controlling locomotive. (See 49 CFR part 218, subpart D and
appendix C to part 218); or
(6) Incidents of noncompliance with Sec. 219.101 of this chapter;
however such incidents shall be considered as a violation only for the
purposes of paragraphs (g)(2) and (3) of this section.
(f) * * *
(4) A railroad shall not be permitted to deny or revoke an
employee's certification based upon additional conditions or
operational restrictions imposed pursuant to Sec. 240.107(d).
(g) * * *
(3) * * *
(i) In the case of a single incident involving violation of one or
more of the operating rules or practices described in paragraphs (e)(1)
through (e)(5) of this section, the person shall have his or her
certificate revoked for a period of 30 calendar days.
(ii) In the case of two separate incidents involving a violation of
one or more of the operating rules or practices described in paragraphs
(e)(1) through (e)(5) of this section, that occurred within 24 months
of each other, the person shall have his or her certificate revoked for
a period of 180 calendar days.
* * * * *
(h) Any or all periods of revocation provided in this section may
consist of training.
* * * * *
0
14. Section 240.119 is revised to read as follows:

Sec. 240.119 Criteria for consideration of data on substance abuse
disorders and alcohol/drug rules compliance.

(a) Program requirement. Each railroad shall adopt and comply with
a program which complies with the requirements of this section. When
any person, including, but not limited to, each railroad, railroad
officer, supervisor, and employee, violates any requirement of a
program which complies with the requirements of this section, that
person shall be considered to have violated the requirements of this
section.
(b) Determination requirement. Each railroad, prior to initially
certifying or recertifying any person as a locomotive engineer for any
type of service, shall determine that the person meets the eligibility
requirements of this section.
(c) Recordkeeping requirement. In order to make the determination
required under paragraph (d) of this section, a railroad shall have on
file documents pertinent to that determination, including a written
document from its DAC which states his or her professional opinion that
the person has been evaluated as not currently affected by a substance
abuse disorder or that the person has been evaluated as affected by an
active substance abuse disorder.
(d) Fitness requirement. (1) A person who has an active substance
abuse disorder shall be denied certification or recertification as a
locomotive engineer.
(2) Except as provided in paragraph (g) of this section, a
certified locomotive engineer who is determined to have an active
substance abuse disorder shall be ineligible to hold certification.
Consistent with other provisions of this part, certification may be
reinstated as provided in paragraph (f) of this section.
(3) In the case of a current employee of the railroad evaluated as
having an active substance abuse disorder (including a person
identified under the procedures of Sec. 240.115), the employee may, if
otherwise eligible, voluntarily self-refer for substance abuse
counseling or treatment under the policy required by Sec.
219.1001(b)(1) of this chapter; and the railroad shall then treat the
substance abuse evaluation as confidential except with respect to
ineligibility for certification.
(e) Prior alcohol/drug conduct; Federal rule compliance. (1) In
determining whether a person may be or remain certified as a locomotive
engineer, a railroad shall consider conduct described in paragraph
(e)(2) of this section that occurred within a period of 60 consecutive
months prior to the review. A review of certification shall be
initiated promptly upon the occurrence and documentation of any
incident of conduct described in this paragraph.
(2) A railroad shall consider any violation of Sec. 219.101 or
Sec. 219.102 of this chapter and any refusal to provide a breath or
body fluid sample for testing under the requirements of part 219 of
this chapter when instructed to do so by a railroad representative.
(3) A period of ineligibility described in this paragraph shall
begin:
(i) For a person not currently certified, on the date of the
railroad's written determination that the most recent incident has
occurred; or
(ii) For a person currently certified, on the date of the
railroad's notification to the person that recertification has been
denied or certification has been revoked; and
(4) The period of ineligibility described in this section shall be
determined in accordance with the following standards:
(i) In the case of a single violation of Sec. 219.102 of this
chapter, the person shall be ineligible to hold a certificate during
evaluation and any required primary treatment as described in paragraph
(f) of this section. In the case of two violations of Sec. 219.102 of
this

[[Page 20509]]

chapter, the person shall be ineligible to hold a certificate for a
period of two years. In the case of more than two such violations, the
person shall be ineligible to hold a certificate for a period of five
years.
(ii) In the case of one violation of Sec. 219.102 of this chapter
and one violation of Sec. 219.101 of this chapter, the person shall be
ineligible to hold a certificate for a period of three years.
(iii) In the case of one violation of Sec. 219.101 of this
chapter, the person shall be ineligible to hold a certificate for a
period of 9 months (unless identification of the violation was through
a qualifying referral program described in Sec. 219.1001 of this
chapter and the locomotive engineer waives investigation, in which case
the certificate shall be deemed suspended during evaluation and any
required primary treatment as described in paragraph (f) of this
section). In the case of two or more violations of Sec. 219.101 of
this chapter, the person shall be ineligible to hold a certificate for
a period of five years.
(iv) A refusal to provide a breath or body fluid sample for testing
under the requirements of part 219 of this chapter when instructed to
do so by a railroad representative shall be treated, for purposes of
ineligibility under this paragraph, in the same manner as a violation
of:
(A) Section 219.102 of this chapter, in the case of a refusal to
provide a urine specimen for testing; or
(B) Section 219.101 of this chapter, in the case of a refusal to
provide a breath sample for alcohol testing or a blood specimen for
mandatory post-accident toxicological testing.
(f) Future eligibility to hold certificate following alcohol/drug
violation. The following requirements apply to a person who has been
denied certification or who has had certification suspended or revoked
as a result of conduct described in paragraph (e) of this section:
(1) The person shall not be eligible for grant or reinstatement of
the certificate unless and until the person has:
(i) Been evaluated by a SAP to determine if the person currently
has an active substance abuse disorder;
(ii) Successfully completed any program of counseling or treatment
determined to be necessary by the SAP prior to return to service; and
(iii) In accordance with the testing procedures of subpart H of
part 219 of this chapter, has had an alcohol test with an alcohol
concentration of less than .02 and presented a urine sample that tested
negative for controlled substances assayed.
(2) A locomotive engineer placed in service or returned to service
under the above-stated conditions shall continue in any program of
counseling or treatment deemed necessary by the SAP and shall be
subject to a reasonable program of follow-up alcohol and drug testing
without prior notice for a period of not more than 60 months following
return to service. Follow-up tests shall include not fewer than 6
alcohol tests and 6 drug tests during the first 12 months following
return to service.
(3) Return-to-service and follow-up alcohol and drug tests shall be
performed consistent with the requirements of subpart H of part 219 of
this chapter.
(4) This paragraph does not create an entitlement to utilize the
services of a railroad SAP, to be afforded leave from employment for
counseling or treatment, or to employment as a locomotive engineer. Nor
does it restrict any discretion available to the railroad to take
disciplinary action based on conduct described herein.
(g) Confidentiality protected. Nothing in this part shall affect
the responsibility of the railroad under Sec. 219.1003(f) of this
chapter to treat qualified referrals for substance abuse counseling and
treatment as confidential; and the certification status of a locomotive
engineer who is successfully assisted under the procedures of that
section shall not be adversely affected. However, the railroad shall
include in its referral policy, as required pursuant to Sec.
219.1003(j) of this chapter, a provision that, at least with respect to
a certified locomotive engineer or a candidate for certification, the
policy of confidentiality is waived (to the extent that the railroad
shall receive from the SAP or DAC official notice of the substance
abuse disorder and shall suspend or revoke the certification, as
appropriate) if the person at any time refuses to cooperate in a
recommended course of counseling or treatment.
0
15. Section 240.121 is amended by revising paragraphs (a) and (d) to
read as follows:

Sec. 240.121 Criteria for vision and hearing acuity data.

Sec. 240.123 Training.

(a) Each railroad shall adopt and comply with a program that meets
the requirements of this section. When any person, including, but not
limited to, each railroad, railroad officer, supervisor, and employee,
violates any requirement of a program that complies with the
requirements of this section, that person shall be considered to have
violated the requirements of this section.
* * * * *
(c) A railroad that elects to train a previously untrained person
to be a locomotive engineer shall provide initial training that, at a
minimum, complies with the program requirements of Sec. 243.101 of
this chapter and:
* * * * *
(4) * * *
(ii) Railroad operating rules and procedures,
* * * * *
(vi) Compliance with Federal railroad safety laws, regulations, and
orders;
(5) Is conducted so that the performance skill component shall meet
the following conditions:
* * * * *
(e) A railroad shall designate in its program required by this
section the time period in which a locomotive engineer must be absent
from a territory or yard, before requalification on physical
characteristics is required.
(f) A railroad's program shall include the procedures used to
qualify or

[[Page 20510]]

requalify a person on the physical characteristics.
0
17. Section 240.125 is amended by revising the section heading and
paragraphs (a) and (c)(4)(v) and adding paragraphs (e), (f), and (g) to
read as follows:

Sec. 240.125 Knowledge testing.

(a) Each railroad shall adopt and comply with a program that meets
the requirements of this section. When any person, including, but not
limited to, each railroad, railroad officer, supervisor, and employee,
violates any requirement of a program that complies with the
requirements of this section, that person shall be considered to have
violated the requirements of this section.
* * * * *
(c) * * *
(4) * * *
(v) Compliance with Federal railroad safety laws, regulations, and
orders;
* * * * *
(e) For purposes of paragraph (c) of this section, the railroad
must provide the person(s) being tested with an opportunity to consult
with a supervisory employee, who possesses territorial qualifications
for the territory, to explain a question.
(f) The documentation shall indicate whether the person passed or
failed the test.
(g) If a person fails to pass the test, no railroad shall permit or
require that person to function as a locomotive engineer prior to that
person's achieving a passing score during a reexamination of the
person's knowledge.
0
18. Section 240.127 is amended by revising paragraph (a) to read as
follows:

Sec. 240.127 Criteria for examining skill performance.

Sec. 240.129 Criteria for monitoring operational performance of
certified engineers.

(a) Each railroad shall adopt and comply with a program which
complies with the requirements of this section. When any person,
including, but not limited to, each railroad, railroad officer,
supervisor, and employee, violates any requirement of a program which
complies with the requirements of this section, that person shall be
considered to have violated the requirements of this section.
(b) Each railroad shall have a program to monitor the operational
performance of those it has determined as qualified as a locomotive
engineer in any class of service. The program shall include procedures
to address the testing of certified engineers who are not given both an
operational monitoring observation and an unannounced compliance test
in a calendar year pursuant to paragraph (h) of this section. At a
minimum, such procedures shall include the following:
(1) A requirement that an operational monitoring observation and an
unannounced compliance test must be conducted within 30 days of a
return to service as a locomotive engineer; and
(2) The railroad must retain a written record indicating the date
that the engineer stopped performing service that requires
certification pursuant to this part, the date that the engineer
returned to performing service that requires certification pursuant to
this part, and the dates that the operational monitoring observation
and the unannounced compliance test were performed.
(c) The procedures for the operational monitoring observation
shall:
* * * * *
(2) Be designed so that each engineer shall be monitored each
calendar year by a Designated Supervisor of Locomotive Engineers, who
does not need to be qualified on the physical characteristics of the
territory over which the operational monitoring observation will be
conducted;
* * * * *
(d) The operational monitoring observation procedures may be
designed so that the locomotive engineer being monitored either:
* * * * *
(e) The unannounced compliance test program shall:
(1) Be designed so that, except for as provided in paragraph (h) of
this section, each locomotive engineer shall be given at least one
unannounced compliance test each calendar year;
* * * * *
(h) A certified engineer who is not performing a service that
requires certification pursuant to this part need not be given an
unannounced compliance test or operational monitoring observation.
However, when the certified engineer returns to a service that requires
certification pursuant to this part, that certified engineer must be
tested pursuant to this section and Sec. 240.303 within 30 days of his
or her return.
0
20. Section 240.205 is revised to read as follows:

Sec. 240.205 Procedures for determining eligibility based on prior
safety conduct.

(a) Each railroad, prior to initially certifying or recertifying
any person as an engineer for any class of service other than student,
shall determine that the person meets the eligibility requirements of
Sec. 240.115 involving prior conduct as a motor vehicle operator,
Sec. 240.117 involving prior conduct as a railroad worker, and Sec.
240.119 involving substance abuse disorders and alcohol/drug rules
compliance.
(b) In order to make the determination required under paragraph (a)
of this section, a railroad shall have on file documents pertinent to
the determinations referred to in paragraph (a) of this section,
including a written document from its DAC either reflecting his or her
professional opinion that the person has been evaluated as not
currently affected by a substance abuse disorder or that the person has
been evaluated as affected by an active substance abuse disorder and is
ineligible for certification.
0
21. Section 240.207 is amended by revising paragraphs (b)(2)
introductory text and (b)(2)(i) to read as follows:

Sec. 240.207 Procedures for making the determination on vision and
hearing acuity.

* * * * *
(b) * * *
(2) A written document from its medical examiner documenting his or
her professional opinion that the person does not meet one or both
acuity standards and stating the basis for his or her determination
that:
(i) The person can nevertheless be certified under certain
conditions; or
* * * * *
0
22. Section 240.209 is amended by revising paragraphs (b) and (c) to
read as follows:

Sec. 240.209 Procedures for making the determination on knowledge.

* * * * *
(b) In order to make the determination required by paragraph (a) of
this section, a railroad shall have written documentation showing that
the person either:
(1) Exhibited his or her knowledge by achieving a passing grade in
testing that complies with this part; or

[[Page 20511]]

(2) Did not achieve a passing grade in such testing.
(c) If a person fails to achieve a passing score under the testing
procedures required by this part, no railroad shall permit or require
that person to operate a locomotive as a locomotive or train service
engineer prior to that person's achieving a passing score during a
reexamination of his or her knowledge.
0
23. Section 240.211 is amended by revising paragraph (b) to read as
follows:

Sec. 240.211 Procedures for making the determination on performance
skills.

* * * * *
(b) In order to make this determination, a railroad shall have
written documentation showing the person either:
(1) Exhibited his or her knowledge by achieving a passing grade in
testing that complies with this part; or
(2) Did not achieve a passing grade in such testing.
* * * * *
0
24. Section 240.215 is amended by revising paragraph (e)(2),
republishing paragraph (j) introductory text, revising paragraphs
(j)(1) through (3), and adding paragraphs (j)(4) through (6) to read as
follows:

Sec. 240.215 Retaining information supporting determinations.

* * * * *
(e) * * *
(2) If a railroad relies on the use of a locomotive operations
simulator to conduct the performance skills testing required under this
part, the relevant data from the railroad's records concerning the
person's success or failure on the performance skills test(s) that
documents the relevant operating facts on which the determination was
based including the observations and evaluation of the designated
supervisor of locomotive engineers; and
* * * * *
(j) Nothing in this section precludes a railroad from maintaining
the information required to be retained under this section in an
electronic format provided that:
(1) The railroad maintains an information technology security
program adequate to ensure the integrity of the electronic data storage
system, including the prevention of unauthorized access to the program
logic or individual records;
(2) The program and data storage system must be protected by a
security system that utilizes an employee identification number and
password, or a comparable method, to establish appropriate levels of
program access meeting all of the following standards:
(i) No two individuals have the same electronic identity; and
(ii) A record cannot be deleted or altered by any individual after
the record is certified by the employee who created the record;
(3) Any amendment to a record is either:
(i) Electronically stored apart from the record that it amends; or
(ii) Electronically attached to the record as information without
changing the original record;
(4) Each amendment to a record uniquely identifies the person
making the amendment;
(5) The system employed by the railroad for data storage permits
reasonable access and retrieval of the information in usable format
when requested to furnish data by FRA representatives; and
(6) Information retrieved from the system can be easily produced in
a printed format which can be readily provided to FRA representatives
in a timely manner 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.
0
25. Section 240.217 is amended by republishing paragraph (a)
introductory text, revising paragraphs (a)(1) through (4), adding
paragraph (a)(5), and revising paragraph (d) to read as follows:

Sec. 240.217 Time limitations for making determinations.

(a) A railroad shall not certify or recertify a person as a
qualified locomotive engineer in any class of train or engine service,
if the railroad is making:
(1) A determination concerning eligibility and the eligibility data
being relied on was furnished more than 366 days before the date of the
railroad's certification decision;
(2) A determination concerning visual and hearing acuity and the
medical examination being relied on was conducted more than 450 days
before the date of the railroad's recertification decision;
(3) A determination concerning demonstrated knowledge and the
knowledge examination being relied on was conducted more than 366 days
before the date of the railroad's certification decision;
(4) A determination concerning demonstrated knowledge and the
knowledge examination being relied on was conducted more than 24 months
before the date of the railroad's certification decision if the
railroad administers a knowledge testing program pursuant to Sec.
240.125 at intervals that do not exceed 24 months; or
(5) A determination concerning demonstrated performance skills and
the performance skill testing being relied on was conducted more than
366 days before the date of the railroad's certification decision.
* * * * *
(d) A railroad shall issue each person designated as a certified
locomotive engineer a certificate that complies with Sec. 240.223 no
later than 30 days from the date of its decision to certify or
recertify that person.
0
26. Section 240.219 is amended by revising paragraphs (a) and (c) and
adding paragraph (d) to read as follows:

Sec. 240.219 Denial of certification.

(a) A railroad shall notify a candidate for certification or
recertification of information known to the railroad that forms the
basis for denying the person certification and provide the person a
reasonable opportunity to explain or rebut that adverse information in
writing prior to denying certification. A railroad shall provide the
locomotive engineer candidate with any written documents or records,
including written statements, related to failure to meet a requirement
of this part that support its pending denial decision.
* * * * *
(c) If a railroad denies a person certification or recertification,
it shall notify the person of the adverse decision and explain, in
writing, the basis for its denial decision. The basis for a railroad's
denial decision shall address any explanation or rebuttal information
that the locomotive engineer candidate may have provided in writing
pursuant to paragraph (a) of this section. The document explaining the
basis for the denial shall be served on the person within 10 days after
the railroad's decision and shall give the date of the decision.
(d) A railroad shall not deny the person's certification for
failing to comply with a railroad operating rule or practice that
constitutes a violation under Sec. 240.117(e)(1) through (5) of this
part if sufficient evidence exists to establish that an intervening
cause prevented or materially impaired the engineer's ability to comply
with that railroad operating rule or practice.
0
27. Section 240.221 is amended by revising paragraphs (d), (e), and (f)
to read as follows:

[[Page 20512]]

Sec. 240.221 Identification of qualified persons.

* * * * *
(d) The listing required by paragraphs (a), (b), and (c) of this
section shall:
(1) Be updated at least annually;
(2) Be available at the divisional or regional headquarters of the
railroad; and
(3) Be available for inspection or copying by FRA during regular
business hours.
(e) It shall be unlawful for any railroad to knowingly or any
individual to willfully:
(1) Make, cause to be made, or participate in the making of a false
entry on the list required by this section; or
(2) Otherwise falsify such list through material misstatement,
omission, or mutilation.
(f) Nothing in this section precludes a railroad from maintaining
the list required under this section in an electronic format provided
that:
(1) The railroad maintains an information technology security
program adequate to ensure the integrity of the electronic data storage
system, including the prevention of unauthorized access to the program
logic or the list;
(2) The program and data storage system must be protected by a
security system that utilizes an employee identification number and
password, or a comparable method, to establish appropriate levels of
program access meeting all of the following standards:
(i) No two individuals have the same electronic identity; and
(ii) An entry on the list cannot be deleted or altered by any
individual after the entry is certified by the employee who created the
entry;
(3) Any amendment to the list is either:
(i) Electronically stored apart from the entry on the list that it
amends; or
(ii) Electronically attached to the entry on the list as
information without changing the original entry;
(4) Each amendment to the list uniquely identifies the person
making the amendment;
(5) The system employed by the railroad for data storage permits
reasonable access and retrieval of the information in usable format
when requested to furnish data by FRA representatives; and
(6) Information retrieved from the system can be easily produced in
a printed format which can be readily provided to FRA representatives
in a timely manner 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.
0
28. Section 240.223 is amended by revising paragraph (a)(3) and (5) to
read as follows:

Sec. 240.223 Criteria for the certificate.

(a) * * *
(3) Identify the person to whom it is being issued (including the
person's name, employee identification number, the year of birth, and
either a physical description or photograph of the person);
* * * * *
(5) Show the effective date of each certification held;
* * * * *
0
29. Section 240.225 is revised to read as follows:

Sec. 240.225 Reliance on qualification determinations made by other
railroads.

(a) A railroad that is considering certification of a person as a
qualified engineer may rely on determinations made by another railroad
concerning that person's qualifications. The railroad's certification
program shall address how the railroad will administer the training of
previously uncertified engineers with extensive operating experience or
previously certified engineers who have had their certification expire.
If a railroad's certification program fails to specify how it will
train a previously certified engineer hired from another railroad, then
the railroad shall require the newly hired engineer to take the hiring
railroad's entire training program.
(b) A railroad relying on another's certification shall determine
that:
(1) The prior certification is still valid in accordance with the
provisions of Sec. Sec. 240.201, 240.217, and 240.307;
(2) The prior certification was for the same classification of
locomotive or train service as the certification being issued under
this section;
(3) The person has received training on and visually observed the
physical characteristics of the new territory in accordance with Sec.
240.123;
(4) The person has demonstrated the necessary knowledge concerning
the railroad's operating rules in accordance with Sec. 240.125;
(5) The person has demonstrated the necessary performance skills
concerning the railroad's operating rules in accordance with Sec.
240.127.

Subpart D--Administration of the Certification Program

0
30. Revise the heading of Subpart D to read as set forth above.
0
31. Section 240.301 is revised to read as follows:

Sec. 240.301 Replacement of certificates.

(a) A railroad shall have a system for the prompt replacement of
lost, stolen or mutilated certificates at no cost to engineers. That
system shall be reasonably accessible to certified locomotive engineers
in need of a replacement certificate or temporary replacement
certificate.
(b) At a minimum, a temporary replacement certificate must identify
the person to whom it is being issued (including the person's name,
identification number and year of birth); indicate the date of
issuance; and be authorized by a supervisor of locomotive engineers or
other individual designated in accordance with Sec. 240.223(b).
Temporary replacement certificates may be delivered electronically and
are valid for a period no greater than 30 days.
0
32. Section 240.303 is amended by revising paragraphs (b) and (c) to
read as follows:

Sec. 240.303 Operational monitoring requirements.

* * * * *
(b) The program shall be conducted so that each locomotive
engineer, except as provided in Sec. 240.129(h), shall be given at
least one operational monitoring observation by a qualified supervisor
of locomotive engineers in each calendar year.
(c) The program shall be conducted so that each locomotive
engineer, except for as provided in Sec. 240.129(h), shall be given at
least one unannounced, compliance test each calendar year.
* * * * *
0
33. Section 240.305 is amended by republishing paragraph (b)
introductory text, revising paragraphs (b)(2) introductory text and
(b)(2)(ii), redesignating paragraph (b)(2)(iii) as paragraph
(b)(2)(iv), and adding new paragraph (b)(2)(iii) to read as follows:

Sec. 240.305 Prohibited conduct.

* * * * *
(b) Each locomotive engineer who has received a certificate
required under this part shall:
* * * * *
(2) Display that certificate upon the receipt of a request to do so
from:
* * * * *
(ii) A State inspector authorized under part 212 of this chapter,
(iii) An officer of the issuing railroad, or
* * * * *
0
34. Section 240.307 is amended by:
0
a. Revising paragraph (a);
0
b. Republishing paragraphs (b);
0
c. Revising paragraphs (b)(1) and (4);

[[Page 20513]]

0
d. Redesignating paragraph (b)(5) as paragraph (b)(6);
0
e. Adding a new paragraph (b)(5) and paragraph (b)(7);
0
f. Revising paragraphs (c)(2) and (9);
0
g. Republishing paragraph (c)(11);
0
h. Revising paragraphs (c)(11)(i) and (ii);
0
i. Adding paragraph (c)(11)(iii)
0
i. Revising paragraph (g);
0
j. Republishing paragraph (i) introductory text;
0
k. Revising paragraphs (i)(1) and (2) and (j)(2);
The revisions and additions read as follows:

Sec. 240.307 Revocation of certification.

(a) Except as provided for in Sec. 240.119(e), a railroad that
certifies or recertifies a person as a qualified locomotive engineer
and, during the period that certification is valid, acquires reliable
information regarding violation(s) of Sec. 240.117(e) or Sec.
240.119(c) of this chapter shall revoke the person's engineer
certificate.
(b) Pending a revocation determination under this section, the
railroad shall:
(1) Upon receipt of reliable information regarding violation(s) of
Sec. 240.117(e) or Sec. 240.119(c) of this chapter, immediately
suspend the person's certificate;
* * * * *
(4) No later than the convening of the hearing and notwithstanding
the terms of an applicable collective bargaining agreement, the
railroad convening the hearing shall provide the person with a copy of
the written information and list of witnesses the railroad will present
at the hearing. If requested, a recess to the start of the hearing will
be granted if that information is not provided until just prior to the
convening of the hearing. If the information was provided through
statements of an employee of the convening railroad, the railroad will
make that employee available for examination during the hearing
required by paragraph (b)(3) of this section. Examination may be
telephonic where it is impractical to provide the witness at the
hearing.
(5) Determine, on the record of the hearing, whether the person no
longer meets the certification requirements of this part stating
explicitly the basis for the conclusion reached;
* * * * *
(7) Retain the record of the hearing for 3 years after the date the
decision is rendered.
(c) * * *
(2) The hearing shall be conducted by a presiding officer, who can
be any proficient person authorized by the railroad other than the
investigating officer.
* * * * *
(9) The record in the proceeding shall be closed at the conclusion
of the hearing unless the presiding officer allows additional time for
the submission of information. In such instances, the record shall be
left open for such time as the presiding officer grants for that
purpose.
* * * * *
(11) The decision shall:
(i) Contain the findings of fact as well as the basis therefor,
concerning all material issues of fact presented on the record and
citations to all applicable railroad rules and practices;
(ii) State whether the railroad official found that a revocable
event occurred and the applicable period of revocation with a citation
to Sec. 240.117 or Sec. 240.119; and
(iii) Be served on the employee and the employee's representative,
if any, with the railroad to retain proof of that service.
* * * * *
(g) A railroad that has relied on the certification by another
railroad under the provisions of Sec. 240.227 or Sec. 240.229, shall
revoke its certification if, during the period that certification is
valid, the railroad acquires information that convinces it that another
railroad has revoked its certification in accordance with the
provisions of this section. The requirement to provide a hearing under
this section is satisfied when any single railroad holds a hearing and
no additional hearing is required prior to a revocation by more than
one railroad arising from the same facts.
* * * * *
(i) A railroad:
(1) Shall not revoke the person's certification as provided for in
paragraph (a) of this section if sufficient evidence exists to
establish that an intervening cause prevented or materially impaired
the locomotive engineer's ability to comply with the railroad operating
rule or practice that constitutes a violation under Sec. 240.117(e)(1)
through (5) of this part; or
(2) May decide not to revoke the person's certification as provided
for in paragraph (a) of this section if sufficient evidence exists to
establish that the violation of Sec. 240.117(e)(1) through (5) of this
part was of a minimal nature and had no direct or potential effect on
rail safety.
(j) * * *
(2) Prior to the convening of the hearing provided for in this
section.
* * * * *
0
35. Section 240.308 is added to read as follows:

Sec. 240.308 Multiple certifications.

(a) A person may hold both conductor and locomotive engineer
certification.
(b) A railroad that issues multiple certificates to a person,
shall, to the extent possible, coordinate the expiration date of those
certificates.
(c) Except as provided in paragraph (d) of this section, a
locomotive engineer, including a remote control operator, who is
operating a locomotive without an assigned certified conductor must
either be:
(1) Certified as both a locomotive engineer under this part and as
a conductor under part 242 of this chapter; or
(2) Accompanied by a person certified as a conductor under part 242
of this chapter but who will be attached to the crew in a manner
similar to that of an independent assignment.
(d) Passenger railroad operations: If the conductor is removed from
a train for a medical, police or other such emergency after the train
departs from an initial terminal, the train may proceed to the first
location where the conductor can be replaced without incurring undue
delay without the locomotive engineer being a certified conductor.
However, an assistant conductor or brakeman must be on the train and
the locomotive engineer must be informed that there is no certified
conductor on the train prior to any movement.
(e) During the duration of any certification interval, a person who
holds a current conductor and/or locomotive engineer certificate from
more than one railroad shall immediately notify the other certifying
railroad(s) if he or she is denied conductor or locomotive engineer
recertification under Sec. 240.219 or Sec. 242.401 of this chapter or
has his or her conductor or locomotive engineer certification revoked
under Sec. 240.307 or Sec. 242.407 of this chapter by another
railroad.
(f) A person who holds a current conductor and locomotive engineer
certificate and who has had his or her conductor certification revoked
under Sec. 242.407 of this chapter for a violation of Sec.
242.403(e)(1) through (5) or (e)(12) may not work as a locomotive
engineer during the period of revocation. However, a person who holds a
current conductor and locomotive engineer certificate and who has had
his or her conductor certification revoked under

[[Page 20514]]

Sec. 242.407 of this chapter for a violation of Sec. 242.403(e)(6)
through (11) may work as a locomotive engineer during the period of
revocation.
(1) For purposes of determining the period for which a person may
not work as a certified locomotive engineer due to a revocation of his
or her conductor certification, only violations of Sec. 242.403(e)(1)
through (5) or (e)(12) will be counted. Thus, a person who holds a
current conductor and locomotive engineer certificate and who has had
his or her conductor certification revoked three times in less than 36
months for two violations of Sec. 242.403(e)(6) and one violation of
Sec. 242.403(e)(1) would have his or her conductor certificate revoked
for 1 year, but would not be permitted to work as a locomotive engineer
for one month (i.e., the period of revocation for one violation of
Sec. 242.403(e)(1)).
(g) A person who holds a current conductor and locomotive engineer
certificate and who has had his or her locomotive engineer
certification revoked under Sec. 240.307 of this chapter may not work
as a conductor during the period of revocation.
(h) A person who has had his or her locomotive engineer
certification revoked under Sec. 240.307 of this chapter may not
obtain a conductor certificate pursuant to part 242 of this chapter
during the period of revocation.
(i) A person who had his or her conductor certification revoked
under Sec. 242.407 of this chapter for violations of Sec.
242.403(e)(1) through (5) or (e)(12) may not obtain a locomotive
engineer certificate pursuant to part 240 of this chapter during the
period of revocation.
(j) A railroad that denies a person conductor certification or
recertification under Sec. 242.401 of this chapter shall not, solely
on the basis of that denial, deny or revoke that person's locomotive
engineer certification or recertification.
(k) A railroad that denies a person locomotive engineer
certification or recertification under Sec. 240.219 shall not, solely
on the basis of that denial, deny or revoke that person's conductor
certification or recertification.
(l) In lieu of issuing multiple certificates, a railroad may issue
one certificate to a person who is certified as a conductor and a
locomotive engineer. The certificate must comply with Sec. 240.223 and
Sec. 242.207 of this chapter.
(m) A person who holds a current conductor and locomotive engineer
certification and who is involved in a revocable event under Sec.
242.407 or Sec. 240.307 of this chapter may only have one certificate
revoked for that event. The determination by the railroad as to which
certificate to revoke for the revocable event must be based on the work
the person was performing at the time the event occurred.
0
36. Section 240.309 is amended by revising paragraphs (b)(4), (e)(1)
and (2), (e)(8) and (9), and (f) through (h) and adding paragraph (i)
to read as follows:

Sec. 240.309 Railroad oversight responsibilities.

* * * * *
(b) * * *
(4) If the railroad conducts joint operations with another
railroad, the number of locomotive engineers employed by the other
railroad(s) that: Were involved in events described in this paragraph
and were determined to be certified and to have possessed the necessary
territorial qualifications for joint operations purposes by the
controlling railroad.
* * * * *
(e) * * *
(1) Incidents involving noncompliance with part 218 of this
chapter;
(2) Incidents involving noncompliance with part 219 of this
chapter;
* * * * *
(8) Incidents involving the failure to comply with prohibitions
against tampering with locomotive mounted safety devices, or knowingly
operating or permitting to be operated a train with an unauthorized or
disabled safety device in the controlling locomotive; and
(9) Incidents involving noncompliance with the railroad's operating
practices (including train handling procedures) resulting in excessive
in-train force levels.
(f) For reporting purposes, an instance of poor safety conduct
involving a person who holds both conductor certification pursuant to
part 242 of this chapter and locomotive engineer certification pursuant
to this part need only be reported once (either under 49 CFR 242.215 of
this chapter or this section). The determination as to where to report
the instance of poor safety conduct should be based on the work the
person was performing at the time the conduct occurred.
(g) For reporting purposes, each category of detected poor safety
conduct identified in paragraph (b) of this section shall be capable of
being annotated to reflect the following:
(1) The nature of the remedial action taken and the number of
events subdivided so as to reflect which of the following actions was
selected:
(i) Imposition of informal discipline;
(ii) Imposition of formal discipline;
(iii) Provision of informal training; or
(iv) Provision of formal training; and
(2) If the nature of the remedial action taken was formal
discipline, the number of events further subdivided so as to reflect
which of the following punishments was imposed by the railroad:
(i) The person was withheld from service;
(ii) The person was dismissed from employment; or
(iii) The person was issued demerits. If more than one form of
punishment was imposed only that punishment deemed the most severe
shall be shown.
(h) For reporting purposes, each category of detected poor safety
conduct identified in paragraph (b) of this section which resulted in
the imposition of formal or informal discipline shall be annotated to
reflect the following:
(1) The number of instances in which the railroad's internal
appeals process reduced the punishment initially imposed at the
conclusion of its hearing; and
(2) The number of instances in which the punishment imposed by the
railroad was reduced by any of the following entities: The National
Railroad Adjustment Board, a Public Law Board, a Special Board of
Adjustment or other body for the resolution of disputes duly
constituted under the provisions of the Railway Labor Act.
(i) For reporting purposes each category of detected poor safety
conduct identified in paragraph (b) of this section shall be capable of
being annotated to reflect the following:
(1) The total number of incidents in that category;
(2) The number of incidents within that total which reflect
incidents requiring an FRA accident/incident report under part 225 of
this chapter; and
(3) The number of incidents within that total which were detected
as a result of a scheduled operational monitoring effort.
0
37. Section 240.401 is revised to read as follows:

Sec. 240.401 Review board established.

(a) Any person who has been denied certification, denied
recertification, or has had his or her certification revoked and
believes that a railroad incorrectly determined that he or she failed
to meet the certification requirements of this regulation when making
the decision to deny or revoke certification, may petition the Federal
Railroad Administrator to review the railroad's decision.
(b) The Administrator has delegated initial responsibility for
adjudicating such disputes to the Operating Crew Review Board.

[[Page 20515]]

(c) The Operating Crew Review Board shall be composed of employees
of the Federal Railroad Administration selected by the Administrator.
0
38. Section 240.403 is amended by revising paragraph (b)(2), adding
paragraph (b)(7), revising paragraphs (c) and (d), and removing
paragraph (e).
The revisions and addition read as follows:

Sec. 240.403 Petition requirements.

* * * * *
(b) * * *
(2) Be filed with the Docket Clerk, U.S. Department of
Transportation, Docket Operations (M-30), West Building Ground Floor,
Room W12-140, 1200 New Jersey Avenue SE, Washington, DC 20590. The form
of such request may be in written or electronic form consistent with
the standards and requirements established by the Federal Docket
Management System and posted on its website at https://www.regulations.gov.
* * * * *
(7) Be supplemented, if requested by the Operating Crew Review
Board, with a copy of the information under 49 CFR 40.329 that
laboratories, medical review officers, and other service agents are
required to release to employees. The petitioner must provide written
explanation in response to an Operating Crew Review Board request if
written documents that should be reasonably available to the petitioner
are not supplied.
(c) A petition seeking review of a railroad's decision to deny
certification or recertification or revoke certification in accordance
with the procedures required by Sec. 240.307 filed with FRA more than
120 days after the date the railroad's denial or revocation decision
was served on the petitioner will be denied as untimely except that the
Operating Crew Review Board for cause shown may extend the petition
filing period at any time in its discretion:
(1) Provided the request for extension is filed before the
expiration of the period provided in this paragraph; or
(2) Provided that the failure to timely file was the result of
excusable neglect.
(d) A party aggrieved by a Board decision to deny a petition as
untimely or not in compliance with the requirements of this section may
file an appeal with the Administrator in accordance with Sec. 240.411.
0
39. Section 240.405 is revised to read as follows:

Sec. 240.405 Processing certification review petitions.

(a) Each petition shall be acknowledged in writing by FRA. The
acknowledgment shall contain the docket number assigned to the petition
and a statement of FRA's intention that the Board will attempt to
render a decision on this petition within 180 days from the date that
the railroad's response is received or from the date upon which the
railroad's response period has lapsed pursuant to paragraph (c) of this
section.
(b) Upon receipt of the petition, FRA will notify the railroad that
it has received the petition and where the petition may be accessed.
(c) Within 60 days from the date of the notification provided in
paragraph (b) of this section, the railroad may submit to FRA any
information that the railroad considers pertinent to the petition. Late
filings will only be considered to the extent practicable.
(d) A railroad that submits such information shall:
(1) Identify the petitioner by name and the docket number of the
review proceeding and provide the railroad's email address (if
available);
(2) Serve a copy of the information being submitted to FRA to the
petitioner and petitioner's representative, if any; and
(3) File the information with the Docket Clerk, U.S. Department of
Transportation, Docket Operations (M-30), West Building Ground Floor,
Room W12-140, 1200 New Jersey Avenue SE, Washington, DC 20590. The form
of such information may be in written or electronic form consistent
with the standards and requirements established by the Federal Docket
Management System and posted on its website at https://www.regulations.gov.
(e) Each petition will then be referred to the Operating Crew
Review Board for a decision.
(f) Based on the record, the Board shall have the authority to
grant, deny, dismiss, or remand the petition.
(g) If the Board finds that there is insufficient basis for
granting or denying the petition, the Board shall issue an order
affording the parties an opportunity to provide additional information
or argument consistent with its findings.
(h) Standard of review for factual issues: When considering factual
issues, the Board will determine whether there is substantial evidence
to support the railroad's decision, and a negative finding is grounds
for granting the petition.
(i) Standard of review for procedural issues: When considering
procedural issues, the Board will determine whether substantial harm
was caused the petitioner by virtue of the failure to adhere to the
dictated procedures for making the railroad's decision. A finding of
substantial harm is grounds for reversing the railroad's decision. To
establish grounds upon which the Board may grant relief, Petitioner
must show:
(1) That procedural error occurred, and
(2) The procedural error caused substantial harm.
(j) Standard of review for legal issues: Pursuant to its reviewing
role, the Board will consider whether the railroad's legal
interpretations are correct based on a de novo review.
(k) The Board will determine whether the denial or revocation of
certification or recertification was improper under this regulation
(i.e., based on an incorrect determination that the person failed to
meet the certification requirements of this regulation) and grant or
deny the petition accordingly. The Board will not otherwise consider
the propriety of a railroad's decision, i.e., it will not consider
whether the railroad properly applied its own more stringent
requirements.
(l) The Board's written decision shall be served on the petitioner,
including the petitioner's representative, if any, and the railroad.
0
40. Section 240.407 is amended by revising paragraphs (a) and (c),
republishing paragraph (d) introductory text, and revising paragraph
(d)(1) to read as follows:

Sec. 240.407 Request for a hearing.

(a) If adversely affected by the Operating Crew Review Board's
decision, either the petitioner before the Board or the railroad
involved shall have a right to an administrative proceeding as
prescribed by Sec. 240.409.
* * * * *
(c) If a party fails to request a hearing within the period
provided in paragraph (b) of this section, the Operating Crew Review
Board's decision will constitute final agency action.
(d) If a party elects to request a hearing, that person shall
submit a written request to the Docket Clerk containing the following:
(1) The name, address, telephone number, and email address (if
available) of the respondent and the requesting party's designated
representative, if any;
* * * * *
0
41. Section 240.409 is amended by revising paragraphs (a), (p), and (q)
to read as follows:

Sec. 240.409 Hearings.

(a) An administrative hearing for a locomotive engineer
certification petition shall be conducted by a presiding officer, who
can be any person

[[Page 20516]]

authorized by the Administrator, including an administrative law judge.
* * * * *
(p) The petitioner before the Operating Crew Review Board, the
railroad involved in taking the certification action, and FRA shall be
parties at the hearing. All parties may participate in the hearing and
may appear and be heard on their own behalf or through designated
representatives. All parties may offer relevant evidence, including
testimony, and may conduct such cross-examination of witnesses as may
be required to make a record of the relevant facts.
(q) The party requesting the administrative hearing shall be the
``hearing petitioner.'' The hearing petitioner shall have the burden of
proving its case by a preponderance of the evidence. Hence, if the
hearing petitioner is the railroad involved in taking the certification
action, that railroad will have the burden of proving that its decision
to deny certification, deny recertification, or revoke certification
was correct. Conversely, if the petitioner before the Operating Crew
Review Board is the hearing petitioner, that person will have the
burden of proving that the railroad's decision to deny certification,
deny recertification, or revoke certification was incorrect. Between
the petitioner before the Operating Crew Review Board and the railroad
involved in taking the certification action, the party who is not the
hearing petitioner will be a respondent.
* * * * *
0
42. Section 240.411 is amended by revising paragraphs (a) and (f) to
read as follows:

Sec. 240.411 Appeals.

(a) Any party aggrieved by the presiding officer's decision may
file an appeal. The appeal must be filed within 35 days of issuance of
the decision with the Federal Railroad Administrator, 1200 New Jersey
Avenue SE, Washington, DC 20590 and with the Docket Clerk, U.S.
Department of Transportation, Docket Operations (M-30), West Building
Ground Floor, Room W12-140, 1200 New Jersey Avenue SE, Washington, DC
20590. A copy of the appeal shall be served on each party. The appeal
shall set forth objections to the presiding officer's decision,
supported by reference to applicable laws and regulations and with
specific reference to the record. If no appeal is timely filed, the
presiding officer's decision constitutes final agency action.
* * * * *
(f) An appeal from an Operating Crew Review Board decision pursuant
to Sec. 240.403(d) must be filed within 35 days of issuance of the
decision with the Federal Railroad Administrator, 1200 New Jersey
Avenue SE, Washington, DC 20590 and with the Docket Clerk, U.S.
Department of Transportation, Docket Operations (M-30), West Building
Ground Floor, Room W12-140, 1200 New Jersey Avenue SE, Washington, DC
20590. A copy of the appeal shall be served on each party. The
Administrator may affirm or vacate the Board's decision, and may remand
the petition to the Board for further proceedings. An Administrator's
decision to affirm the Board's decision constitutes final agency
action.
0
43. Revise Appendix B to part 240 to read as follows:

Appendix B to Part 240--Procedures for Submission and Approval of
Locomotive Engineer Qualification Programs

This appendix establishes procedures for the submission and
approval of a railroad's program concerning the training, testing,
and evaluating of persons seeking certification or recertification
as a locomotive engineer in accordance with the requirements of this
part (see Sec. Sec. 240.101, 240.103, 240.105, 240.107, 240.123,
240.125, 240.127 and 240.129). It also contains guidance on how FRA
will exercise its review and approval responsibilities.

Submission by a Railroad

As provided for in Sec. 240.101, each railroad must have a
program for determining the certification of each person it permits
or requires to operate a locomotive. In designing its program a
railroad must take into account the trackage and terrain over which
it operates, the system(s) for train control that are employed, the
operational design characteristics of the track and equipment being
operated including train length, train makeup, and train speeds.
Each railroad must submit its individual program to FRA for approval
as provided for in Sec. 240.103. Each program must be accompanied
by a request for approval organized in accordance with this
appendix. Requests for approval must contain appropriate references
to the relevant portion of the program being discussed. Requests
should be submitted in writing on standard sized paper (8-1/2x11)
and can be in letter or narrative format. The railroad's submission
shall be sent to the Associate Administrator for Railroad Safety/
Chief Safety Officer, FRA. The mailing address for FRA is 1200 New
Jersey Avenue SE, Washington, DC 20590. Simultaneous with its filing
with the FRA, each railroad must serve a copy of its submission on
the president of each labor organization that represents the
railroad's employees subject to this part.
Each railroad is authorized to file by electronic means any
program submissions required under this part. Prior to any person
submitting a railroad's first program submission electronically, the
person shall provide the Associate Administrator with the following
information in writing:
(1) The name of the railroad;
(2) The names of two individuals, including job titles, who will
be the railroad's points of contact and will be the only individuals
allowed access to FRA's secure document submission site;
(3) The mailing addresses for the railroad's points of contact;
(4) The railroad's system or main headquarters address located
in the United States;
(5) The email addresses for the railroad's points of contact;
and
(6) The daytime telephone numbers for the railroad's points of
contact.
A request for electronic submission or FRA review of written
materials shall be addressed to the Associate Administrator for
Railroad Safety/Chief Safety Officer, Federal Railroad
Administration, 1200 New Jersey Avenue SE, Washington, DC 20590.
Upon receipt of a request for electronic submission that contains
the information listed above, FRA will then contact the requestor
with instructions for electronically submitting its program.
A railroad that electronically submits an initial program or new
portions or revisions to an approved program required by this part
shall be considered to have provided its consent to receive approval
or disapproval notices from FRA by email. FRA may electronically
store any materials required by this part regardless of whether the
railroad that submits the materials does so by delivering the
written materials to the Associate Administrator and opts not to
submit the materials electronically. A railroad that opts not to
submit the materials required by this part electronically, but
provides one or more email addresses in its submission, shall be
considered to have provided its consent to receive approval or
disapproval notices from FRA by email or mail.

Organization of the Submission

Each request should be organized to present the required
information in the following standardized manner. Each section must
begin by giving the name, title, telephone number, and email and
mailing addresses of the person to be contacted concerning the
matters addressed by that section. If a person is identified in a
prior section, it is sufficient to merely repeat the person's name
in a subsequent section.

Section 1 of the Submission: General Information and Elections

The first section of the request must contain the name of the
railroad, the person to be contacted concerning the request
(including the person's name, title, telephone number, and email and
mailing addresses) and a statement electing either to accept
responsibility for educating previously untrained persons to be
qualified locomotive engineers or recertify only engineers
previously certified by other railroads. See Sec. 240.103(b).
If a railroad elects not to provide initial locomotive engineer
training, the railroad is

[[Page 20517]]

obligated to states so in its submission. A railroad that makes this
election will be limited to recertifying persons initially certified
by another railroad. A railroad that makes this election can rescind
it by obtaining FRA approval of a modification of its program. See
Sec. 240.103(e).
If a railroad elects to accept responsibility for training
persons not previously trained to be locomotive engineers, the
railroad is obligated to submit information on how such persons will
be trained but has no duty to actually conduct such training. A
railroad that elects to accept the responsibility for the training
of such persons may authorize another railroad or a non-railroad
entity to perform the actual training effort. The electing railroad
remains responsible for assuring that such other training providers
adhere to the training program the railroad submits.
This section must also state which class or classes of service
the railroad will employ. See Sec. 240.107.

Section 2 of the Submission: Selection of Supervisors of Locomotive
Engineers

The second section of the request must contain information
concerning the railroad's procedure for selecting the person or
persons it will rely on to evaluate the knowledge, skill, and
ability of persons seeking certification or recertification. As
provided for in Sec. 240.105, each railroad must have a procedure
for selecting supervisors of locomotive engineers which assures that
persons so designated can appropriately test and evaluate the
knowledge, skill, and ability of individuals seeking certification
or recertification.
Section 240.105 provides a railroad latitude to select the
criteria and evaluation methodology it will rely on to determine
which person or persons have the required capacity to perform as a
supervisor of locomotive engineers. The railroad must describe in
this section how it will use that latitude and evaluate those it
designates as supervisors of locomotive engineers so as to comply
with the performance standard set forth in Sec. 240.105(b). The
railroad must identify, in sufficient detail to permit effective
review by FRA, the criteria for evaluation it has selected. For
example, if a railroad intends to rely on one or more of the
following, a minimum level of prior experience as an engineer,
successful completion of a course of study, or successful passage of
a standardized testing program, the submission must state which
criteria it will employ.

Section 3 of the Submission: Training Persons Previously Certified

The third section of the request must contain information
concerning the railroad's program for training previously certified
locomotive engineers. As provided for in Sec. 240.123(b) each
railroad must have a program for the ongoing education of its
locomotive engineers to assure that they maintain the necessary
knowledge concerning personal safety, operating rules and practices,
mechanical condition of equipment, methods of safe train handling
(including familiarity with physical characteristics), and relevant
Federal safety rules.
Section 240.123(b) provides a railroad latitude to select the
specific subject matter to be covered, duration of the training,
method of presenting the information, and the frequency with which
the training will be provided. The railroad must describe in this
section how it will use that latitude to assure that its engineers
remain knowledgeable concerning the safe discharge of their train
operation responsibilities so as to comply with the performance
standard set forth in Sec. 240.123(b). This section must contain
sufficient detail to permit effective evaluation of the railroad's
training program in terms of the subject matter covered, the
frequency and duration of the training sessions, the type of formal
training employed (including, but not limited to, classroom,
computer-based, correspondence, OJT, simulator, or laboratory
training) and which aspects of the program are voluntary or
mandatory.
Without assistance from automation, safe train handling involves
both abstract knowledge about the appropriate use of engine controls
and the application of that knowledge to trains of differing
composition traversing varying terrain. Time and circumstances have
the capacity to diminish both abstract knowledge and the proper
application of that knowledge to discrete events. Time and
circumstances also have the capacity to alter the value of
previously obtained knowledge and the application of that knowledge.
In formulating how it will use the discretion being afforded, each
railroad must design its program to address both loss of retention
of knowledge and changed circumstances, and this section of the
submission to FRA must address these matters.
For example, locomotive engineers need to have their fundamental
knowledge of train operations refreshed periodically. Each railroad
needs to advise FRA how that need is satisfied in terms of the
interval between attendance at such training, the nature of the
training being provided, and methods for conducting the training. A
matter of particular concern to FRA is how each railroad acts to
ensure that engineers remain knowledgeable about safe train handling
procedures if the territory over which a locomotive engineer is
authorized to operate is territory from which the engineer has been
absent. The railroad must have a plan for the familiarization
training that addresses the question of how long a person can be
absent before needing more education and, once that threshold is
reached, how the person will acquire the needed education.
Similarly, the program must address how the railroad responds to
changes such as the introduction of new technology, new operating
rule books, or significant changes in operations including
alteration in the territory engineers are authorized to operate
over.

Section 4 of the Submission: Testing and Evaluating Persons
Previously Certified

The fourth section of the request must contain information
concerning the railroad's program for testing and evaluating
previously certified locomotive engineers. As provided for in Sec.
240.125 and Sec. 240.127, each railroad must have a program for the
ongoing testing and evaluating of its locomotive engineers to ensure
that they have the necessary knowledge and skills concerning
personal safety, operating rules and practices, mechanical condition
of equipment, methods of safe train handling (including familiarity
with physical characteristics), and relevant Federal safety rules.
Similarly, each railroad must have a program for ongoing testing and
evaluating to ensure that its locomotive engineers have the
necessary vision and hearing acuity as provided for in Sec.
240.121.
Sections 240.125 and 240.127 require that a railroad rely on
written procedures for determining that each person can demonstrate
his or her knowledge of the railroad's rules and practices and skill
at applying those rules and practices for the safe operation of a
locomotive or train. Section 240.125 directs that, when seeking a
demonstration of the person's knowledge, a railroad must employ a
written test that contains objective questions and answers and
covers the following subject matters: (i) Personal safety practices;
(ii) operating practices; (iii) equipment inspection practices; (iv)
train handling practices (including familiarity with the physical
characteristics of the territory); and (v) compliance with relevant
Federal safety rules. The test must accurately measure the person's
knowledge of all of these areas.
Section 240.125 provides a railroad latitude in selecting the
design of its own testing policies (including the number of
questions each test will contain, how each required subject matter
will be covered, weighting (if any) to be given to particular
subject matter responses, selection of passing scores, and the
manner of presenting the test information). The railroad must
describe in this section how it will use that latitude to ensure
that its engineers will demonstrate their knowledge concerning the
safe discharge of their train operation responsibilities so as to
comply with the performance standard set forth in Sec. 240.125.
Section 240.127 directs that, when seeking a demonstration of
the person's skill, a railroad must employ a test and evaluation
procedure conducted by a designated supervisor of locomotive
engineers that contains an objective evaluation of the person's
skills at applying the railroad's rules and practices for the safe
operation of trains. The test and evaluation procedure must examine
the person's skills in terms of all of the following subject
matters: (i) Operating practices; (ii) equipment inspection
practices; (iii) train handling practices (including familiarity
with the physical characteristics of the territory); and (iv)
compliance with relevant Federal safety rules. The test must be
sufficient to effectively examine the person's skills while
operating a train in the most demanding type of service which the
person is likely to encounter in the normal course of events once he
or she is deemed qualified.
Section 240.127 provides a railroad latitude in selecting the
design of its own testing and evaluation procedures (including the
duration of the evaluation process, how each required subject matter
will be covered, weighing (if any) to be given to particular

[[Page 20518]]

subject matter response, selection of passing scores, and the manner
of presenting the test information). However, the railroad must
describe the scoring system used by the railroad during a skills
test administered in accordance with the procedures required under
Sec. 240.211. The description shall include the skills to be tested
and the weight or possible score that each skill will be given. The
section should also provide information concerning the procedures
which the railroad will follow that achieve the objectives described
in FRA's recommended practices (see appendix E) for conducting skill
performance testing. The section also gives a railroad the latitude
to employ either a Type 1 or a Type 2 simulator (properly
programmed) to conduct the test and evaluation procedure. A railroad
must describe in this section how it will use that latitude to
assure that its engineers will demonstrate their skills concerning
the safe discharge of their train operation responsibilities so as
to comply with the performance standard set forth in Sec. 240.127.
Section 240.121 provides a railroad latitude to rely on the
professional medical opinion of the railroad's medical examiner
concerning the ability of a person with substandard acuity to safely
operate a locomotive. The railroad must describe in this section how
it will ensure that its medical examiner has sufficient information
concerning the railroad's operations to effectively form appropriate
conclusions about the ability of a particular individual to safely
operate a train.

Section 5 of the Submission: Training, Testing, and Evaluating
Persons Not Previously Certified

Unless a railroad has made an election not to accept
responsibility for conducting the initial training of persons to be
locomotive engineers, the fifth section of the request must contain
information concerning the railroad's program for educating,
testing, and evaluating persons not previously trained as locomotive
engineers. As provided for in Sec. 240.123(c), a railroad that is
issuing an initial certification to a person to be a locomotive
engineer must have a program for the training, testing, and
evaluating of its locomotive engineers to ensure that they acquire
the necessary knowledge and skills concerning personal safety,
operating rules and practices, mechanical condition of equipment,
methods of safe train handling (including familiarity with physical
characteristics), and relevant Federal safety rules.
Section 240.123 establishes a performance standard and gives a
railroad latitude in selecting how it will meet that standard. A
railroad must describe in this section how it will use that latitude
to ensure that its engineers will acquire sufficient knowledge and
skill and demonstrate their knowledge and skills concerning the safe
discharge of their train operation responsibilities. This section
must contain the same level of detail concerning initial training
programs as that described for each of the components of the overall
program contained in sections 2 through 4 of this appendix. A
railroad that plans to accept responsibility for the initial
training of locomotive engineers may authorize another railroad or a
non-railroad entity to perform the actual training effort as long as
the other entity complies with the requirements for training
organizations and learning institutions in Sec. 243.111 of this
chapter. The authorizing railroad may submit a training program
developed by that authorized trainer but the authorizing railroad
remains responsible for ensuring that such other training providers
adhere to the training program submitted. Railroads that elect to
rely on other entities, to conduct training away from the railroad's
own territory, must indicate how the student will be provided with
the required familiarization with the physical characteristics for
its territory.

Section 6 of the Submission: Monitoring Operational Performance by
Certified Engineers

The final section of the request must contain information
concerning the railroad's program for monitoring the operation of
its certified locomotive engineers. As provided for in Sec.
240.129, each railroad must have a program for the ongoing
monitoring of its locomotive engineers to ensure that they operate
their locomotives in conformity with the railroad's operating rules
and practices including methods of safe train handling and relevant
Federal safety rules.
Section 240.129 requires that a railroad annually observe each
locomotive engineer demonstrating his or her knowledge of the
railroad's rules and practices and skill at applying those rules and
practices for the safe operation of a locomotive or train. Section
240.129 directs that the observation be conducted by a designated
supervisor of locomotive engineers but provides a railroad latitude
in selecting the design of its own observation procedures (including
the duration of the observation process, reliance on event recorder
downloads that record the specifics of train operation, and the
specific aspects of the engineer's performance to be covered). The
section also gives a railroad the latitude to employ either a Type 1
or a Type 2 simulator (properly programmed) to conduct monitoring
observations. A railroad must describe in this section how it will
use that latitude to assure that the railroad is monitoring that its
engineers demonstrate their skills concerning the safe discharge of
their train operation responsibilities. A railroad must also
describe the scoring system used by the railroad during an
operational monitoring observation or unannounced compliance test
administered in accordance with the procedures required under Sec.
240.303. A railroad that intends to employ train operation event
recorder tapes to comply with this monitoring requirement shall
indicate in this section how it anticipates determining what person
was at the controls and what signal indications or other operational
constraints, if any, were applicable to the train's movement.

Section 7 of the Submission: Procedures for Routine Administration
of the Engineer Certification Program

The final section of the request must contain a summary of how
the railroad's program and procedures will implement the various
specific aspects of the regulatory provisions that relate to routine
administration of its certification program for locomotive
engineers. At a minimum this section needs to address the procedural
aspects of the rule's provisions identified in the following
paragraph.
Section 240.109 provides that each railroad must have procedures
for review and comment on adverse prior safety conduct, but allows
the railroad to devise its own system within generalized parameters.
Sections 240.115, 240.117 and 240.119 require a railroad to have
procedures for evaluating data concerning prior safety conduct as a
motor vehicle operator and as railroad workers, yet leave selection
of many details to the railroad. Sections 240.203, 240.217, and
240.219 place a duty on the railroad to make a series of
determinations but allow the railroad to select what procedures it
will employ to assure that all of the necessary determinations have
been made in a timely fashion; who will be authorized to conclude
that person is or is not qualified; and how it will communicate
adverse decisions. Documentation of the factual basis the railroad
relied on in making determinations under Sec. Sec. 240.205,
240.207, 240.209, 240.211, and 240.213 is required, but these
sections permit the railroad to select the procedures it will employ
to accomplish compliance with these provisions. Sections 240.225 and
240.227 permit reliance on qualification determinations made by
other entities and permit a railroad latitude in selecting the
procedures it will employ to ensure compliance with these
provisions. Similarly, Sec. 240.229 permits use of railroad
selected procedures to meet the requirements for certification of
engineers performing service in joint operations territory. Sections
240.301 and 240.307 allow a railroad a certain degree of discretion
in complying with the requirements for replacing lost certificates
or the conduct of certification revocation proceedings.
This section of the request should outline in summary fashion
the manner in which the railroad will implement its program so as to
comply with the specific aspects of each of the rule's provisions
described in preceding paragraph.

FRA Review

The submissions made in conformity with this appendix will be
deemed approved within 30 days after the required filing date or the
actual filing date whichever is later. No formal approval document
will be issued by FRA. The brief interval for review reflects FRA's
judgment that railroads generally already have existing programs
that will meet the requirements of this part. FRA has taken the
responsibility for notifying a railroad when it detects problems
with the railroad's program. FRA retains the right to disapprove a
program that has obtained approval due to the passage of time as
provided for in section Sec. 240.103.
Rather than establish rigid requirements for each element of the
program, FRA has given railroads discretion to select the design of
their individual programs within a specified

[[Page 20519]]

context for each element. The rule, however, provides a good guide
to the considerations that should be addressed in designing a
program that will meet the performance standards of this rule. In
reviewing program submissions, FRA will focus on the degree to which
a particular program deviates from the norms set out in its rule. To
the degree that a particular program submission materially deviates
from the norms set out in its rule, FRA's review and approval
process will be focused on determining the validity of the reasoning
relied on by a railroad for selecting its alternative approach and
the degree to which the alternative approach is likely to be
effective in producing locomotive engineers who have the knowledge,
skill, and ability to safely operate trains.

0
44. Revise appendix C to part 240 is to read as follows:

Appendix C to Part 240--Procedures for Obtaining and Evaluating Motor
Vehicle Driving Record Data

The purpose of this appendix is to outline the procedures
available to individuals and railroads for complying with the
requirements of section 4(a) of the Railroad Safety Improvement Act
of 1988 and Sec. Sec. 240.109, 240.111, and 240.205 of this part.
Those provisions require that railroads consider the motor vehicle
driving record of each person prior to issuing him or her
certification or recertification as a locomotive engineer.
To fulfill that obligation, a railroad must review a
certification candidate's recent motor vehicle driving record.
Generally, that will be a single record on file with the state
agency that issued the candidate's current license. However, it can
include multiple records if the candidate has been issued a motor
vehicle driving license by more than one state agency or foreign
country. In addition, the railroad must determine whether the
certification candidate is listed in the National Driver Register
and, if so listed, to review the data that caused the candidate to
be so listed.

Access to State Motor Vehicle Driving Record Data

The right of railroad workers, their employers, or prospective
employers to have access to a state motor vehicle licensing agency's
data concerning an individual's driving record is controlled by
state law. Although many states have mechanisms through which
employers and prospective employers such as railroads can obtain
such data, there are some states in which privacy concerns make such
access very difficult or impossible. Since individuals generally are
entitled to obtain access to driving record data that will be relied
on by a state motor vehicle licensing agency when that agency is
taking action concerning their driving privileges, FRA places
responsibility on individuals, who want to serve as locomotive
engineers to request that their current state drivers licensing
agency or agencies furnish such data directly to the railroad
considering certifying them as a locomotive operator. Depending on
the procedures adopted by a particular state agency, this will
involve the candidate's either sending the state agency a brief
letter requesting such action or executing a state agency form that
accomplishes the same effect. It will normally involve payment of a
nominal fee established by the state agency for such a records
check. In rare instances, when a certification candidate has been
issued multiple licenses, it may require more than a single request.

The National Driver Register

In addition to seeking an individual state's data, each engineer
candidate is required to request that a search and retrieval be
performed of any relevant information concerning his or her driving
record contained in the National Driver Register (NDR). The NDR is a
system of information created by Congress in 1960. In essence it is
a nationwide repository of information on problem drivers that was
created in an effort to protect motorists. It is a voluntary State/
Federal cooperative program that assists motor vehicle driver
licensing agencies in gaining access to data about actions taken by
other state agencies concerning an individual's motor vehicle
driving record. The NDR is designed to address the problem that
occurs when chronic traffic law violators, after losing their
license in one State travel to and receive licenses in another
State. Today, each State and the District of Columbia are required
to send information on all revocations, suspensions, and license
denials within 31 days of receipt of the convictions from the courts
to the NDR and each of these driver licensing agencies have the
capability to provide NDR's data. 49 U.S.C. 30304. The NDR data can
also be obtained by contacting the National Highway Traffic Safety
Administration (NHTSA) of the Department of Transportation directly.
The information submitted to NHTSA contains, at a minimum, three
specific pieces of data: The identification of the state authority
providing the information, the name of the person whose license is
being affected, and the date of birth of that person. It may be
supplemented by data concerning the person's height, weight, color
of eyes, and social security account number, if a State collects
such data.

Access to NDR Data

Essentially only individuals and state licensing agencies,
including the District of Columbia, can obtain access to the NDR
data. Since railroads have no direct access to the NDR data, FRA
requires that individuals seeking certification as a locomotive
engineer request that an NDR search be performed and direct that the
results be furnished to the railroad. FRA requires that each person
request the NDR information directly from NHTSA unless the
prospective operator has a motor vehicle driver license issued by a
state motor vehicle licensing agency or the District of Columbia.
Participating states and the District of Columbia can directly
access the NDR data on behalf of the prospective engineer.

Requesting NHTSA To Perform the NDR Check

The procedures for requesting NHTSA performance of an NDR check
are as follows:
1. Each person shall submit a written request to the National
Highway Traffic Safety Administration at the following address:
Chief, National Driver Register, National Highway Traffic Safety
Administration, 1200 New Jersey Avenue SE, Washington, DC 20590.
2. The request must contain:
(a) The full legal name;
(b) Any other names used by the person (e.g., nickname or
professional name);
(c) The date of birth;
(d) Sex;
(e) Height;
(f) Weight;
(g) Color of eyes; and
(h) Driver's license number (unless that is not available).
3. The request must authorize NHTSA to perform the NDR check and
to furnish the results of the search directly to the railroad.
4. The request must identify the railroad to which the results
are to be furnished, including the proper name of the railroad, and
the proper mailing address of the railroad.
5. The person seeking to become a certified locomotive engineer
shall sign the request, and that signature must be notarized.
FRA requires that the request be in writing and contain as much
detail as is available to improve the reliability of the data
search. Any person may supply additional information to that being
mandated by FRA. Furnishing additional information, such as the
person's Social Security account number, will help to more
positively identify any records that may exist concerning the
requester. Although no fee is charged for such NDR checks, a minimal
cost may be incurred in having the request notarized. The
requirement for notarization is designed to ensure that each
person's right to privacy is being respected and that records are
only being disclosed to legally authorized parties.

Requesting a State Agency To Perform the NDR Check

As discussed earlier in connection with obtaining data compiled
by the state agency itself, a person can either write a letter to
that agency asking for the NDR check or can use the agency's forms
for making such a request. If a request is made by letter the
individual must follow the same procedures required when directly
seeking the data from NHTSA. Since it would be more efficient for a
prospective locomotive engineer to make a single request for both
aspects of the information required under this rule, FRA anticipates
that a state agency inquiry should be the predominant method for
making these NDR checks. Requests to state agencies may involve
payment of a nominal fee established by the state agency for such a
records check.
State agencies normally will respond in approximately 30 days or
less and advise whether there is or is not a listing for a person
with that name and date of birth. If there is a potential match and
the inquiry state was not responsible for causing that entry, the
agency normally will indicate in writing the existence of a probable
match and will identify the state licensing agency that suspended,
revoked or canceled the relevant license or convicted the person of
one of the violations referenced earlier in this appendix.

[[Page 20520]]

Actions When a Probable NDR Match Occurs

The response provided after performance of an NDR check is
limited to either a notification that no potential record match was
identified or a notification that a potential record match was
identified. If the latter event occurs, the notification will
include the identification of the state motor vehicle licensing
authority which possesses the relevant record. If the NDR check
results indicate a potential match and that the state with the
relevant data is the same state which furnished detailed data
(because it had issued the person a driving license), no further
action is required to obtain additional data. If the NDR check
results indicate a potential match and the state with the relevant
data is different from the state which furnished detailed data, it
then is necessary to contact the individual state motor vehicle
licensing authority that furnished the NDR information to obtain the
relevant record. FRA places responsibility on the railroad to notify
the engineer candidate and on the candidate to contact the state
with the relevant information. FRA requires the certification
candidate to write to the state licensing agency and request that
the agency inform the railroad concerning the person's driving
record. If required by the state agency, the person may have to pay
a nominal fee for providing such data and may have to furnish
written evidence that the prospective operator consents to the
release of the data to the railroad. FRA does not require that a
railroad or a certification candidate go beyond these efforts to
obtain the information in the control of such a state agency, and a
railroad may act upon the pending certification without the data if
an individual state agency fails or refuses to supply the records.
If the non-issuing state licensing agency does provide the
railroad with the available records, the railroad must verify that
the record pertains to the person being considered for
certification. It is necessary to perform this verification because
in some instances only limited identification information is
furnished for use in the NDR and this might result in data about a
different person being supplied to the railroad. Among the available
means for verifying that the additional state record pertains to the
certification candidate are physical description, photographs and
handwriting comparisons.
Once the railroad has obtained the motor vehicle driving
record(s) which, depending on the circumstance, may consist of more
than two documents, the railroad must afford the prospective
engineer an opportunity to review that record and respond in writing
to its contents in accordance with the provisions of Sec. 240.219.
The review opportunity must occur before the railroad evaluates that
record. The railroad's required evaluation and subsequent decision
making must be done in compliance with the provisions of this part.

0
45. Revise appendix D to part 240 to read as follows:

Appendix D to Part 240--Identification of State Agencies That Perform
National Driver Register Checks

Under the provisions of Sec. 240.111 of this part, each person
seeking certification or recertification as a locomotive operator
must request that a check of the National Driver Register (NDR) be
conducted and that the resulting information be furnished to his or
her employer or prospective employer. Under the provisions of
paragraphs (d) and (e) of Sec. 240.111, each person seeking
certification or recertification as a locomotive engineer must
request that the National Highway Traffic Safety Administration
(NHTSA) conduct the NDR check, unless he or she was issued a motor
vehicle driver license by one of the state agencies that perform
such checks, which today includes all state agencies and the
District of Columbia. If the certification candidate received a
license from one of the state agencies or the District of Columbia,
he or she must request the state agency to perform the NDR check.
Since these state agencies can more efficiently supply the desired
data and, in some instances, can provide a higher quality of
information, FRA requires that certification candidates make use of
this method in preference to directly contacting NHTSA.

0
46. Add appendix G to part 240 to read as follows:

Appendix G to Part 240--Application of Revocable Events
[GRAPHIC] [TIFF OMITTED] TP09MY19.000

Issued in Washington, DC.
Ronald L. Batory,
Administrator.
[FR Doc. 2019-09028 Filed 5-8-19; 8:45 am]
BILLING CODE 4910-06-P

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