Qualification and Certification of Locomotive Engineers; Miscellaneous Revisions, 81290-81326 [2020-27209]

Download as PDF 81290 Federal Register / Vol. 85, No. 241 / Tuesday, December 15, 2020 / Rules and Regulations DEPARTMENT OF TRANSPORTATION Federal Railroad Administration 49 CFR Parts 219, 240 and 242 [Docket No. FRA–2018–0053, Notice No. 2] RIN 2130–AC40 Qualification and Certification of Locomotive Engineers; Miscellaneous Revisions Federal Railroad Administration (FRA), Department of Transportation (DOT). ACTION: Final rule; technical amendment. AGENCY: FRA is revising 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 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. To ensure consistency throughout its regulations, FRA is also making conforming amendments to its regulations governing the control of alcohol and drug use, and the qualification and certification of conductors. The changes would reduce regulatory burdens on the railroad industry while maintaining the existing level of safety. DATES: This regulation is effective January 14, 2021. ADDRESSES: For access to the docket to read background documents or comments received, go to https:// www.regulations.gov at any time. FOR FURTHER INFORMATION CONTACT: Christian Holt, Staff Director-Operating Practices Division, U.S. Department of Transportation, Federal Railroad Administration, 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, 1200 New Jersey Avenue SE, Washington, DC 20590 (telephone: 202– 493–6038). SUPPLEMENTARY INFORMATION: SUMMARY: Table of Contents for Supplementary Information I. Executive Summary II. Discussion of General Comments and Conclusions VerDate Sep<11>2014 18:46 Dec 14, 2020 Jkt 253001 A. Remote Control Operators and Operations B. Defining Main Track C. Newly Hired Employee D. Preventing Public Disclosure of Confidential Information E. General Docketing and Service Concerns F. Issues Beyond the Scope of This Rulemaking G. Minor Revisions Identified H. Rejecting the Addition of Implementation Dates III. Section-by-Section Analysis 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; Regulatory Flexibility Certification C. Paperwork Reduction Act D. Federalism Implications E. International Trade Impact Assessment F. Environmental Impact G. Executive Order 12898 (Environmental Justice) H. Unfunded Mandates Reform Act of 1995 I. Energy Impact I. Executive Summary On May 9, 2019, FRA issued a notice of proposed rulemaking (NPRM) to amend title 49 Code of Federal Regulations (CFR) part 240, Qualification and Certification of Locomotive Engineers (part 240).1 In response to that NPRM, FRA received three written comments. This final rule responds to those comments and amends part 240 by: Making part 240 more consistent with the language in 49 CFR part 242, Qualification and Certification of Conductors (part 242); creating two provisions under which railroads may issue temporary locomotive engineer certifications; merging FRA’s locomotive engineer and conductor review boards; adopting aspects of part 242 for locomotive engineer certification; providing labor representatives with the ability to provide input on a railroad’s part 240 program; and allowing for and encouraging the use of electronic document submission of a railroad’s part 240 program. This final rule also makes technical amendments to part 242 to: (1) Make the requirement for calibration of audiometers used during hearing tests for conductors the same as the requirement in part 240 for locomotive engineers; and (2) conform the definition of ‘‘main track’’ in part 242 to the definition of ‘‘main track’’ in part 240. Additionally, this final rule makes conforming amendments to title 49 CFR part 219, Control of Alcohol and Drug 1 84 PO 00000 FR 20472 (May 9, 2019). Frm 00002 Fmt 4701 Sfmt 4700 Use (part 219) to update two crossreferences to part 240. Updating these references is necessary to ensure consistency between part 219 and part 240, as amended. The final rule will create new costs. First, each locomotive engineer certification manager will need to review the amendments made to part 240 to ensure compliance is maintained. Second, amendments to part 240 will require each railroad to provide a copy of its part 240 plan to the president of each labor organization whenever the railroad files a submission, resubmission, or makes a material modification to its plan. Third, a railroad will need to maintain service records for certified locomotive engineers who are not performing service that requires locomotive engineer certification. For the 20-year period of analysis, the cost of the final rule will be $233,779 (undiscounted), $171,764 (PV 7%), and $200,775 (PV 3%). The final rule will also create cost savings. First, adding clarity in part 240 and conforming language in part 240 to part 242 will reduce stakeholder burden related to review and compliance with part 240. Second, it will reduce the burden on a railroad when providing another railroad with information about a former employee’s prior service records. Third, it will update the program submission process to allow for electronic document submission, which will reduce stakeholder paperwork and submission costs related to part 240 program submissions and locomotive engineer certification petitions. Fourth, it will remove the requirement for railroads to obtain a waiver from the annual testing requirements for certified locomotive engineers who are not performing service that requires certification. For the 20-year period of analysis, the cost savings of the final rule will be $12.3 million (undiscounted), $6.9 million (PV 7%), and $9.4 million (PV 3%). As shown in Table ES.1, the regulatory evaluation quantifies the economic impact of the final rule in terms of cost savings and new costs accruing to stakeholders. For the 20-year period of analysis, the final rule will result in a net cost savings of $12.0 million (undiscounted), $6.8 million (PV 7%), and $9.2 million (PV 3%). This final rule is an Executive Order (E.O.) 13771 deregulatory action. Details on the estimated costs of this final rule can be found in the rule’s economic analysis. E:\FR\FM\15DER2.SGM 15DER2 81291 Federal Register / Vol. 85, No. 241 / Tuesday, December 15, 2020 / Rules and Regulations TABLE ES.1—FINAL RULE: NEW COSTS, COST SAVINGS, AND NET COST SAVINGS; 20-YEAR PERIOD Cost of proposed rule Undiscounted New Costs:. Review amendments .................................................... Provide copy of part 240 plan to labor organization .... Maintain service records ............................................... Present value 7% Annualized 7% Present value 3% Annualized 3% $118,383 2,263 113,133 $110,638 1,199 59,927 $10,443 113 5,657 $114,935 1,683 84,157 $7,725 5,657 5,657 Total new costs ..................................................... Cost Savings Conforming part 240 to part 242 .................................. Former employee paperwork ........................................ Petition submission process ......................................... Plan submission process .............................................. Government cost savings ............................................. Removing waiver requirement ...................................... 233,779 171,764 16,213 200,775 19,039 11,838,340 113,133 109,620 6,800 92,448 113,133 6,709,732 59,927 58,066 3,602 48,970 59,927 633,351 5,657 5,481 340 4,622 5,657 9,070,417 84,157 81,543 5,058 60,933 84,157 609,675 5,657 5,481 340 4,096 5,657 Total cost savings .................................................. 12,273,475 6,940,223 655,108 9,386,266 630,904 Net Cost Savings ................................................................. 12,039,696 6,768,459 638,895 9,185,491 611,866 The final rule will create benefits. First, the final rule will amend the part 240 program submission process to require railroads to solicit labor input, providing for fully informed decisions by railroads. Second, it affords railroads additional time and flexibility to comply with some regulatory requirements. Third, it creates certain provisions that allow for temporary locomotive engineer certificates. Fourth, electronic filing will make information more accessible to interested stakeholders and the public. Because FRA lacks sufficient information related to these four benefits, this analysis could not accurately quantify these benefits. Therefore, the rule’s economic analysis qualitatively explains benefits. The final rule will also reduce Governmental administrative costs, including mailing, filing, and storing costs related to amendments to part 240, by allowing the Government and stakeholders to transmit and store documents electronically. II. Discussion of General Comments and Conclusions FRA received three written comments in response to the NPRM. The Association of American Railroads and the American Short Line and Regional Railroad Association submitted one set of joint comments (collectively referred to as ‘‘Railroad Commenters’’). A second set of joint comments was submitted by a group of seven labor organizations (collectively referred to as ‘‘Labor Commenters’’).2 The American 2 The labor organizations that submitted the Labor Comments are: The American Train Dispatchers Association; the Brotherhood of Locomotive Engineers and Trainmen; the Brotherhood of Maintenance of Way Employes Division; the Brotherhood of Railroad Signalmen; the Brotherhood Railway Carmen Division; the VerDate Sep<11>2014 18:18 Dec 14, 2020 Jkt 253001 Association of Nurse Practitioners submitted the third comment. Some of the specific comments are discussed in the Section-by-Section Analysis or in the Regulatory Impact and Notices portion of this final rule directly with the provisions and statements to which they specifically relate. Other comments apply more generally to the final rule as a whole, and FRA is discussing them here. Please note that the order in which the comments are discussed in this document, whether by issue or by commenter, is not intended to reflect the significance of the comment raised or the standing of the commenter. A. Remote Control Operators and Operations In the NPRM, FRA proposed several changes to part 240 to clarify the locomotive engineer certification requirements for remote control operators, including defining ‘‘remote control operator (RCO),’’ ‘‘operator control unit (OCU),’’ and ‘‘remote control locomotive (RCL).’’ FRA received two comments that opposed FRA’s changes related to certification of RCOs. Labor Commenters asserted that FRA should not address RCO issues in this rulemaking because the proposed changes would not be conforming changes to part 242 and would thus be beyond the scope of this rulemaking. Labor Commenters also recommended FRA address remote control safety and operational issues to a much greater degree than proposed. Railroad Commenters asserted that the RCO International Association of Sheet Metal, Air, Rail and Transportation Workers—Transportation Division; and the National Conference of Firemen & Oilers District, Local 32BJ/SEIU. PO 00000 Frm 00003 Fmt 4701 Sfmt 4700 proposed changes are unnecessary, create confusion, and potentially create new administrative burdens. FRA’s Response FRA was persuaded by the comments that the proposed changes regarding RCOs were not strictly conforming changes and that the proposed changes had the potential to create unforeseen problems. Considering that the regulated community understands how to certify RCOs under the current regulatory requirements, and the intent of the proposed changes was to ‘‘catch up [with] industry practice’’ in implementing the existing regulations,3 FRA is not adopting the proposed clarifying requirements regarding remote control operations in this final rule. B. Defining Main Track In the NPRM, FRA proposed to revise part 240’s definition of ‘‘main track’’ to be the same as the definition in part 242 by revising the existing definition to include a reference to positive train control (PTC) as a method of operation that would make a track a ‘‘main track.’’ Railroad Commenters noted that they opposed making this conforming change because PTC is not a method of operation. FRA’s Response In considering these comments, FRA recognizes that it did not explain the inclusion of PTC as a method of operation in the part 242 rulemaking notices. Upon further review, FRA agrees with the comment that PTC is not a method of operation but rather is a technology that helps enforce compliance with a railroad’s method(s) 3 84 E:\FR\FM\15DER2.SGM FR 20479. 15DER2 81292 Federal Register / Vol. 85, No. 241 / Tuesday, December 15, 2020 / Rules and Regulations governing train operations. For this reason, the final rule does not make any changes to the definition of main track in part 240. C. Newly Hired Employee In the NPRM, FRA proposed to delete the definition for the term ‘‘newly hired employee’’ because the term is not used in part 240. Labor Commenters noted that although the term ‘‘newly hired employee’’ is not used in part 240, the terms ‘‘newly hired engineer’’ and ‘‘newly hired conductor’’ are used in parts 240 and 242, respectively. Labor Commenters explain that these existing terms ‘‘establish the benchmark by which a railroad may rely upon qualification determinations made by a prior railroad employer of a candidate for certification.’’ Accordingly, Labor Commenters suggest that instead of deleting the existing definition of ‘‘newly hired employee,’’ FRA change the term to ‘‘newly hired’’ and integrate it into reporting and accident analysis requirements in a future rulemaking. FRA’s Response FRA reviewed the regulatory history to determine the origins of the definition of ‘‘newly hired employee’’ and whether deleting the term as proposed would be the correct approach. FRA notes that the term is not used or defined in part 242. FRA found that its original 1989 proposal for part 240 contained a section titled ‘‘Content and duration of student training programs.’’ 4 As proposed in the 1989 NPRM, § 240.63 contained a requirement for training applicable only to ‘‘newly hired employees.’’ 5 However, in the final rule implementing the 1989 NPRM, FRA explained that a premise of FRA’s original proposal was that every engineer would be trained, tested, and evaluated using the same criteria so that the regulatory requirements would resemble a motor vehicle licensing scheme employed by State governments for issuance of commercial truck driver licenses.6 The final rule implementing this initial proposal, however, took a more individualized, railroad-centric approach that allowed each railroad to formulate a program for setting qualification standards and submitting that program to FRA for approval. As such, the final rule did not adopt proposed § 240.63 or any similar requirement. FRA, however, erroneously adopted the unnecessary definition of ‘‘newly hired employee’’ 4 54 FR 50890 (Dec. 11, 1989) (see proposed 49 CFR 240.63). 5 54 FR at 50930. 6 56 FR 28228, 28230 (June 19, 1991). VerDate Sep<11>2014 18:18 Dec 14, 2020 Jkt 253001 into the 1991 final rule implementing the original 1989 proposal. Thus, the definition is a legacy term left over from the original 1989 NPRM and is not applicable to part 240 as it currently exists. FRA recognizes that, as Labor Commenters note, existing § 240.225(a) refers to a ‘‘newly hired engineer’’ and existing § 242.215 refers to a ‘‘newly hired conductor.’’ Those undefined terms, however, are not equivalent to the term ‘‘newly hired employee’’ (e.g., a newly hired engineer must be a previously certified locomotive engineer, while a newly hired employee could be an individual who has no prior railroad experience or has less than one year of railroad transportation service). Accordingly, in this final rule, FRA is deleting the existing definition of ‘‘newly hired employee’’ from part 240 as proposed. D. Preventing Public Disclosure of Confidential Information In the NPRM, FRA proposed to have parties submit part 240 petitions for FRA review of railroads’ certification decisions (§ 240.403) through DOT’s public docket website at www.regulations.gov. Labor Commenters ask that FRA revise its proposal to include procedures for a party to request that certain information filed in these proceedings be protected from public disclosure (e.g., personally identifiable information and medical records). Labor Commenters note that locomotive engineers typically file petitions under § 240.403 on their own behalf or petitions are filed by local union representatives, not an attorney. Labor Commenters cite to the Federal Rules of Civil Procedure as an example of how this information could be protected. FRA’s Response Although FRA recognizes the Labor Commenters’ concern about the importance of protecting personal information from public disclosure, FRA notes that the Agency’s regulations already include procedures for any person submitting documents or information to FRA to request confidential treatment of that information.7 Accordingly, FRA finds it is unnecessary to include any additional procedures in part 240. FRA notes that the existing filing procedures have been utilized in both parts 240 and 242 for years, and FRA is unaware of any concern raised that it failed to provide confidential treatment of information upon request in any such filing under 7 49 PO 00000 CFR 209.11. Frm 00004 Fmt 4701 Sfmt 4700 part 240 or 242. The changes FRA proposed to § 240.403(b)(2) and that are being adopted in this final rule are limited to moving the Agency’s docket management procedures from the oldfashioned, paper dockets kept at FRA’s headquarters to modern, electronic dockets that are web-based. FRA’s changes to § 240.403 will not only align it with the corresponding procedures in part 242 (§ 242.505) but also with the administrative hearing filing procedures in both parts 240 and 242 (§§ 240.407 and 242.507). Those filing procedures have been in place for many years and FRA believes the procedures are sufficient to enable filers to request protection of personally identifiable information, including medical records, with minimal burden. In proceedings under § 240.403, FRA uses the Federal Government’s on-line docket system at www.regulations.gov. That docket system maintains a privacy and security notice on its website that warns users that the material and personally identifiable information filed in a document may be publicly disclosed in a docket or on the internet. Under the existing procedures of § 240.403 and with FRA’s amendments to that section, a party must decide for itself if there is personally identifiable information or other types of information that should be kept confidential, and it is that party’s duty to request confidentiality. FRA notes that social security numbers or employee identification numbers are not generally necessary in any filings under § 240.403. Accordingly, FRA encourages parties to redact those numbers from any documents submitted to a docket. As noted, FRA’s procedures for requesting confidential treatment of any document or portion of any document are in 49 CFR 209.11. Parties should follow the procedures specified in that regulation when requesting that FRA treat information or documents submitted as confidential information. In general, when requesting confidential treatment of information in a filing, a party should include in its filing a description of each item redacted or not disclosed and the rationale for each non-disclosure (e.g., contains medical information). FRA will then contact the party to obtain any information indicated as redacted if FRA believes it is relevant to issuance of a decision. Questions regarding confidential treatment can be directed to FRA’s Office of the Chief Counsel. E. General Docketing and Service Concerns Labor Commenters raised several general docketing and service concerns. E:\FR\FM\15DER2.SGM 15DER2 Federal Register / Vol. 85, No. 241 / Tuesday, December 15, 2020 / Rules and Regulations For instance, the commenters indicate that some labor representatives and members have experienced problems associated with uploading large files or multiple files to Regulations.gov. Similarly, the commenters state that some labor representatives have experienced difficulty emailing large files to parties (including FRA) as an alternative form of service from mailing copies of the documents. The labor organizations also seek FRA’s answer to the question of how their members and labor representatives are to determine that service/delivery of emails is completed. FRA’s Response Just like petitions submitted in conductor certification cases, petitions to the OCRB for the review of a railroad’s decision to deny, recertify, or revoke a locomotive engineer’s certification may be hand delivered or mailed, and may additionally be submitted by fax or electronically, consistent with the standards and requirements established by the Federal Docket Management System and posted on the Regulations.gov website. The process for filing a petition to the OCRB requires filing in a docket that does not yet exist as the petition itself serves as a request to open a new nonrulemaking docket. To open a new nonrulemaking docket, a filer first electronically submits a document to a pre-existing docket called a ‘‘shell docket.’’ This is accomplished by going to Regulations.gov and entering FRA’s shell docket number ‘‘FRA–2007–0003’’ in the search box. This will open a window for the shell docket and allow a filer to click on ‘‘Comment Now.’’ The filer will then enter the required information and upload one or more files. While entering something in the comment box is required, FRA recommends that filers only use the comments box to list the documents they are filing, as the documents they upload will contain their argument(s) and supporting documentation. After entering the information and uploading any documents, there is an opportunity to preview the information submitted and to receive a receipt. Whether submitting a petition by mail, electronically, or by other method, FRA recommends that the party retain a receipt or other proof of the petition’s filing date. Further, once a docket is created for a petition, FRA recommends the filing party return to Regulations.gov and sign up for email alerts to keep updated on any changes or additions that occur in the docket folder. Typically, the filing party will know that FRA received the submission when VerDate Sep<11>2014 18:18 Dec 14, 2020 Jkt 253001 FRA sends an acknowledgment letter notifying the party of the petition’s assigned docket number. If the petition is deficient because it does not meet the minimum requirements or arrangements need to be made to handle confidential information, FRA will contact the filing party and provide further instructions before issuing an acknowledgment letter with the docket number. Labor Commenters expressed concern that some labor representatives and members have experienced problems uploading large files or multiple files to Regulations.gov. FRA is aware that Regulations.gov has imposed a size limit on uploaded files. Regulations.gov has a ‘‘help’’ tab, and the user can choose ‘‘FAQs’’ in the drop-down menu. One of the FAQs asks ‘‘how many files can I upload to the comment form’’ and the answer provided is ‘‘up to 20 files, but each file cannot exceed 10MB.’’ The answer also clarifies that valid file types include: .bmp, .docx, .gif, .jpeg, .jpg, .pdf, .png, .pptx, .rtf, .sgml, .tif, .tiff, .txt, .wpd, .xlsx, and .xml. Parties have several options for overcoming this size limitation. For example, in some cases it is possible for a filer to split the files and then upload them onto Regulations.gov. Another option would be to file as many documents as possible through uploading at FRA’s shell docket on Regulations.gov, and leave a comment in the comment box describing the large files that cannot be uploaded and how the filing party intends to submit those files. For example, a comment could be entered stating that a large video file will be provided to FRA on a memory storage device sent through the mail, such as a USB memory stick. Comments can also request FRA contact the commenter to discuss other arrangements, such as emailing the file or providing FRA with a way to download the document from a cloud-based file hosting service such as Dropbox. Although FRA can currently receive CD–ROM and DVD– ROM disks, the readers for these disks are becoming antiquated and therefore more difficult for FRA to access reliably. Documents that are not in an acceptable format, including files on proprietary software that FRA does not license to use, will need conversion to an acceptable format or other arrangements will be required that will allow FRA to review the files. If a file cannot be placed in a docket or viewed by FRA, the file cannot be made part of the administrative record, and therefore cannot be considered by FRA in reviewing the petition. Similarly, Labor Commenters state that some labor representatives have experienced difficulty emailing large PO 00000 Frm 00005 Fmt 4701 Sfmt 4700 81293 files to parties or FRA as an alternative form of service from mailing copies of the documents. Serving documents under FRA’s administrative procedures should be no different than serving documents on parties in Federal court litigation. That is why the definition of the term ‘‘serve or service’’ in part 240 states that the term has the same meaning given in Rule 5 of the Federal Rules of Civil Procedure. Service of documents on another party is the responsibility of the party performing service. If files are too large to email, the party performing service must make arrangements to perform the service by mail or other mutually agreed upon method with the party to be served. A party performing service by email has a duty to choose an option for service where it receives a receipt automatically or it can ask the receiving party to reply that receipt was completed satisfactorily. Without proof of completeness, service cannot be proven, and is thus presumably incomplete. Any questions regarding files, filing, and service should be directed to FRA’s Office of the Chief Counsel. F. Issues Beyond the Scope of This Rulemaking In the NPRM, FRA explained 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.8 In response to the NPRM, FRA received several comments which FRA has determined go beyond the scope of this rulemaking and are best saved for such a separate, future rulemaking. The American Association of Nurse Practitioners (AANP) commented that the definition of medical examiners should include nurse practitioners. AANP commented that nurse practitioners are authorized to become certified medical examiners under the Federal Motor Carrier Safety Administration’s (FMCSA) regulations and the National Transportation Safety Board (NTSB) includes nurse practitioners in the category of medical professionals who should be eligible for training and certification as transportation medical examiners for medical fitness for duty tests. FRA finds that the issue of whether nurse practitioners should be included in the definition of medical examiners is best saved for a separate, future rulemaking, as the issue is complex, and FRA expects additional commenters would 8 84 E:\FR\FM\15DER2.SGM FR at 20473. 15DER2 81294 Federal Register / Vol. 85, No. 241 / Tuesday, December 15, 2020 / Rules and Regulations have submitted comments if FRA had provided notice of this issue in the NPRM. In addition, FRA notes that if a nurse practitioner is a licensed or certified technician, the nurse practitioner is permitted to perform the vision and hearing acuity examinations required in parts 240 and 242. However, both parts 240 and 242 require a medical examiner, who is defined as a person licensed as a doctor of medicine or doctor of osteopathy, to conduct any medical evaluation to determine if the locomotive engineer or conductor candidate can operate safely in the event the candidate fails the vision or hearing acuity examination. Although AANP’s comment indicates that nurse practitioners can be trained and certified to perform those type of medical evaluations, beyond the standard testing, AANP did not address the fact that FMCSA has medical examiner certification requirements in its regulations, while FRA does not.9 Accordingly, this issue is not addressed in this final rule. Railroad Commenters raised several issues that are beyond the scope of this rulemaking and, as such, FRA is not addressing them in this final rule. For instance, Railroad Commenters advocate that FRA should amend its approach regarding requirements for joint operations territory, even though FRA explained in the NPRM that it was not proposing any changes to the requirements in § 240.229 because doing so would not conform part 240 to part 242. Labor Commenters also raised several issues that are best saved for a separate, future rulemaking and thus FRA is not addressing them in this final rule. For instance, Labor Commenters advocated for amending § 240.129, so that instead of requiring that a certified engineer be given an operational monitoring observation and unannounced compliance test within 30 days of return to service following a period of not performing a service that requires engineer certification, the certified engineer be provided 30 working trips or tours of duty in engineer service following a return before such testing. Labor Commenters also suggested that FRA amend its denial and revocation procedures, §§ 240.219(c) and 240.307(c)(11), to require each railroad to provide more specificity in its decision as to the citation allegedly violated, and notify the person in writing of the right to request FRA review and the applicable time limits. Since these proposals go beyond the scope of this rulemaking, which FRA 9 49 CFR 390.103 through 390.115. VerDate Sep<11>2014 18:18 Dec 14, 2020 Jkt 253001 intended merely to conform part 240 to part 242 and clarify part 240’s existing requirements, FRA declines to address them in this final rule. Labor Commenters also included a history and analysis of international legal issues that go beyond the scope of this rulemaking. G. Minor Revisions Identified With this final rule, FRA is making many minor revisions that were proposed in the NPRM to fix grammatical errors, typographical errors, reference errors, and superfluous language and citations. These revisions 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) and (i); 240.309(b)(4) and (e)(1), (2), (8), and (9); and appendix D. FRA identified these amendments as proposed in the NPRM and received no comments in response. Accordingly, FRA is adopting the proposed revisions without further discussion in this final rule. H. Rejecting the Addition of Implementation Dates In the NPRM, FRA raised the issue of whether the final rule should include any implementation dates beyond the final rule’s effective date. For example, FRA asked for comments considering whether the NPRM adequately addressed the time necessary for each railroad to incorporate into its part 240 program the changes required in this rulemaking. Labor Commenters suggested that FRA use a two-tiered implementation approach that would provide Class I, intercity passenger, and commuter railroads with six months from the date of publication to amend part 240 programs and provide all other railroads subject to part 240 one year. Railroad Commenters did not comment on this issue. After considering the comments and the revisions to part 240 being adopted in this final rule, FRA has concluded that the revisions will not, by themselves, require material modifications to a railroad’s part 240 certification program. Thus, no railroad will be obligated to file its complete part 240 program with FRA after only making any necessary modifications resulting from this final rule. Further, as the Railroad Commenters did not request an implementation schedule, and the regulatory revisions will not result in material modifications to a railroad’s program, it is unnecessary to create an implementation schedule. Similarly, in the NPRM, FRA proposed amending § 240.403 to shorten the time limit for filing a denial of certification petition with the OCRB PO 00000 Frm 00006 Fmt 4701 Sfmt 4700 from 180 days to 120 days, and asked whether FRA should delay implementation of that shortened time limit. FRA did not receive any comments in response to this question. Accordingly, FRA has concluded that delaying implementation of that shortened time period is not necessary. Consequently, if a railroad’s denial decision is on or after the effective date of this final rule, any petition in response to that denial decision must be filed with FRA within 120 days. III. Section-by-Section Analysis This section responds to public comments and identifies any changes made from the provisions as proposed in the NPRM. Provisions that received no comment, and are otherwise being finalized as proposed, are not discussed again here.10 Part 219 While drafting the final rule, FRA identified two cross-references in part 219 that required updating to reflect the part 240 amendments. As discussed below, the final rule revises these crossreferences in §§ 219.25 and 219.1003 to ensure they conform with part 240, as amended. Although the NPRM did not specifically propose these revisions, they are both non-substantive in nature and within the scope of the rulemaking because they merely conform part 219 with part 240 as amended by the final rule. Section 219.25 Previous Employer Drug and Alcohol Checks Paragraph (b) of this section contains a cross-reference to former § 240.119(c), which this final rule is redesignating as § 240.119(e). FRA is therefore revising paragraph (b) to update the crossreference from § 240.119(c) to § 240.119(e). This section and the revised cross-reference refer to the requirement for a railroad that is considering initially certifying or recertifying a locomotive engineer to review the person’s records from the previous 60 consecutive months and consider any Federal alcohol and drug violations. Section 219.1003 Referral Program Conditions Paragraph (j) of this section contains a cross-reference to former § 240.119(e), which this final rule is redesignating as § 240.119(g). FRA is therefore revising paragraph (j) to update the crossreference from § 240.119(e) to § 240.119(g). This section and the revised cross-reference refer to the 10 See E:\FR\FM\15DER2.SGM 84 FR at 20473–95. 15DER2 Federal Register / Vol. 85, No. 241 / Tuesday, December 15, 2020 / Rules and Regulations various referral programs allowed in part 219 and explains when confidentiality is waived. Part 240 Section 240.7 Definitions FRA is amending this section by: (1) Adding definitions for ‘‘conductor,’’ ‘‘drug and alcohol counselor,’’ ‘‘ineligible or ineligibility,’’ ‘‘on-the-job training (OJT),’’ ‘‘physical characteristics,’’ ‘‘plant railroad,’’ ‘‘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,’’ ‘‘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 amendments will make the definitions in part 240 consistent with the definitions in part 242 and, rather than republish the analysis provided for those definitions, FRA references the analysis as proposed in the NPRM.11 Instructor Engineer In the NPRM, FRA proposed to revise the definition of ‘‘instructor engineer’’ to make it as similar as possible to the definition of ‘‘qualified instructor’’ in part 242, by: (1) Establishing a role for employee representative participation; and (2) establishing methods for identifying instructors through railroad and employee representative coordination, as well as by the railroad unilaterally. Although FRA received comments on the proposed changes to this definition, FRA is adopting the revised definition as proposed. Thus, the analysis provided in the NPRM is applicable. The following is a summary of the comments received and FRA’s responses. Railroad Commenters reiterated concerns raised by at least one Railroad Safety Advisory Committee (RSAC) Conductor Certification Working Group (RSAC Working Group or Working Group) 12 member that FRA addressed 11 See 84 FR at 20474–78. RSAC provides a forum for collaborative rulemaking and program development. RSAC includes representatives from all of the agency’s major stakeholder groups, including railroads and labor organizations. For more information regarding the RSAC process and the conduct of the Working Group, see 76 FR 69802, 69802–69804 (Nov. 9, 2011). 12 The VerDate Sep<11>2014 18:18 Dec 14, 2020 Jkt 253001 in the NPRM.13 Railroad Commenters objected to the proposed requirement that, for each railroad that has designated employee representation, if the railroad seeks to designate a person as an instructor engineer when the designated employee representative declines to provide concurrence, the railroad would be required to select only a person who has a minimum of 12 months of service working in the class of service for which the person is designated to instruct. FRA disagrees with the Railroad Commenters that FRA did not provide a basis for justifying this proposed requirement. FRA’s view is based on the understanding that 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 safetyrelated tasks through OJT training.14 FRA views instructor engineers as mentors that would not be directly testing or making certification decisions. When the conductor certification rule was first proposed in 2010, FRA explained that the purpose of the additional requirements was to allow employees, through their representatives, to have input in the selection of instructors who might be viewed as inexperienced. FRA’s position was that if the railroad selected a person to instruct, but the person had less than 12 months of service working in the class of service, it is fair to presume the person might lack the experience necessary to instruct.15 The conductor rule does not absolutely prohibit the railroad from selecting a person that lacks the 12-month experience requirement, but instead requires the railroad to work with the employees’ representative(s) in the instructor selection process, unless the employees lack such representation. Considering the mentor relationship, if a location lacks experienced engineers and the railroad’s employees are represented, the designated employee representative would have an interest in selecting those engineers who would be in the best position to help fellow colleagues get the proper instruction needed to obtain or retain certification. Also in response to AAR’s and ASLRRA’s comment, FRA believes it is helpful to recall that, in the conductor rule, the minimum of 12-months’ service working as a train service employee may be at any time during that person’s career.16 Likewise, in the 13 84 FR 20472, 20476 (May 9, 2019). FR at 20475. 15 75 FR at 69170 (Nov. 10, 2010). 16 76 FR at 69806 (Nov. 9, 2011). 14 84 PO 00000 Frm 00007 Fmt 4701 Sfmt 4700 81295 engineer context, FRA reads the 12month experience requirement in the class of service for which the person will instruct to pertain also to the collective number of months over the person’s career, and not just the previous 12 months. Medical Examiner FRA is revising the definition of ‘‘medical examiner’’ to be the same as the definition of ‘‘medical examiner’’ in part 242 by removing the portion of the definition stating that the medical examiner owes ‘‘a duty to the railroad.’’ Instead, consistent with part 242, FRA is amending the definition to state ‘‘the medical examiner owes a duty to make an honest and fully informed evaluation of the condition of an employee.’’ Newly Hired Employee As discussed in Section II.C, above, FRA is deleting the definition of ‘‘newly hired employee’’ because that term is not used (or necessary) in part 240. Qualified As proposed in the NPRM, FRA is revising the definition of ‘‘qualified’’ to be the same as the definition of ‘‘qualified’’ in part 242. Under the proposed definition, a qualified person is a person who has successfully completed all instruction, training, and examination programs required by the employer and the applicable parts of this chapter, and therefore may reasonably be expected to be proficient on all safety-related tasks the person is assigned to perform. The existing definition in part 240 focuses on an individual’s knowledge, whereas the definition as proposed in the NPRM and adopted in this final rule focuses not only on the individual’s knowledge through completion of training plan requirements 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 perform the task proficiently. 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 only classroom training 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 perform the tasks on the brake test proficiently. Without both instruction and hands-on practice, E:\FR\FM\15DER2.SGM 15DER2 81296 Federal Register / Vol. 85, No. 241 / Tuesday, December 15, 2020 / Rules and Regulations the person could not be expected to be qualified to perform brake tests. Labor Commenters questioned whether FRA’s proposed definition of ‘‘qualified’’ would have a negative impact by lowering the standard for what it means to be qualified. Labor Commenters suggested that FRA’s proposed definition is subject to multiple interpretations, including one that would mean the railroad is no longer required to provide instruction, training, and examination so that the candidate for qualification has a foundation from which qualification— actual knowledge and proficiency—can be demonstrated. Labor Commenters proposed an alternative definition for ‘‘qualified,’’ asking that FRA consider it to mean ‘‘a person who has demonstrated actual knowledge and proficiency of the subject on which the person is qualified by successfully completing all instruction, training and examination programs required by the railroad and the applicable parts of this chapter.’’ FRA concluded that Labor Commenters’ alternative definition of ‘‘qualified’’ would stray from this rule’s purpose of conforming part 240 with part 242, and FRA does not view the conforming definition as lowering the standard of the meaning of ‘‘qualification.’’ Although FRA’s change to the definition focuses on proficiency in safety-related tasks over knowledge, the analysis in determining whether someone is qualified is the same. If the person passes all required training and examination, then the presumption is the person has the knowledge necessary to complete any necessary tasks proficiently. If a person is asked to perform a task that exceeds the training provided, the person could not be expected to have the required knowledge and the person would therefore not be qualified to perform that task safely. For these reasons, FRA is adopting the proposed definition without change from the NPRM. Section 240.103 Approval of Design of Individual Railroad Programs by FRA FRA is making three changes 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. First, FRA is revising paragraph (a) to clarify that the primary method for a railroad to submit its certification program is by email to FRAOPCERTPROG@dot.gov. Previously, FRA would wait until a railroad contacted FRA and asked to submit its program electronically. It is more efficient to publish this FRA email VerDate Sep<11>2014 18:18 Dec 14, 2020 Jkt 253001 address and encourage electronic filing. FRA expects that there are few railroads that do not have sufficient internet access to submit a certification program by email, but is leaving the mailing option open for those smaller entities whose internet service may still be unreliable. The revisions were not proposed in the NPRM, but they address an issue of agency policy or procedure previously addressed in appendix B to part 240. FRA expects that by moving this information from an appendix to this section, railroads will find the information more easily and will spend less time figuring out the submission process. Second, FRA is revising paragraphs (b) and (c) of this section to require railroads to provide a copy of their program submissions, resubmissions, and material modifications to the president of each labor organization that represents the railroad’s certified locomotive engineers. The revision will also 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 final rule. The final revisions to paragraphs (b) and (c) of this section are different from the proposed rule. For instance, in the NPRM, FRA used the term ‘‘serve or service,’’ which is defined in this part and refers to the legal issue of service of process during adjudication. Because the exchange of certification programs and comments to those certification programs are not adjudicatory matters, FRA is revising these requirements to reflect that each railroad and labor organization president must provide, not serve, its documents to each other, and affirm to FRA that it has done so, without the need to abide by strict legal rules for service of process. FRA is not specifying the methods that a railroad or president of a labor organization must use to provide documents to the other party, as FRA expects each party to use those methods it uses in the normal course of business with each other. Also, FRA is adding an email address to make it easier for parties to submit programs or comments to programs. Further, although the NPRM proposed that each railroad affirm that it provided a copy of its program to the president of each labor organization that represents the railroad’s employees subject to this part, the labor organization presidents would have PO 00000 Frm 00008 Fmt 4701 Sfmt 4700 been required to certify that they sent their comments to the railroad; thus, for consistency, FRA is requiring that both parties must affirm that they provided the other party with a copy of the documents they submit to FRA under this requirement. Finally, FRA is making technical amendments to § 242.103 so that the locomotive engineer and conductor certification rules use the same language. Third, in paragraph (h) (which revises former paragraph (e) and is the same as paragraph (i) of § 242.103), FRA is requiring a railroad intending to make material modifications to its FRAapproved program to submit to FRA a description of its intended material modification 60 days before implementing the modification (as opposed to the prior requirement to do so 30 days in advance). This revision will allow time for the labor organizations to comment on the proposed modification(s) under paragraph (c) of this section and for FRA to consider any comments from the relevant labor organizations. In response to the proposed revisions to this section, Labor Commenters requested that FRA amend the final rule to clarify that a representative labor organization has the right to comment on the entirety of a railroad’s program— even when a particular filing is a resubmission or a material modification—and that such comments will be considered by FRA. FRA is declining to amend the requirement to make this clarification as doing so would not conform the requirement to the parallel requirement in part 242. However, despite the lack of an explicit option to comment on the entirety of a railroad’s program, FRA invites any person, including any labor organization, to inform FRA’s Chief Safety Officer of any safety concern regarding a railroad’s certification program at any time. Section 240.107 Types of Service The only change to this section is to the heading. The section heading is changed from ‘‘Criteria for designation of classes of service,’’ to the same section heading in its part 242 counterpart. FRA is not making several other changes that were proposed to this section because, as explained in the discussion of specific comments and conclusions, above, FRA is not adding additional types of service that identify remote control operators. See Section II.A. E:\FR\FM\15DER2.SGM 15DER2 Federal Register / Vol. 85, No. 241 / Tuesday, December 15, 2020 / Rules and Regulations Section 240.111 Individual’s Duty To Furnish Data on Prior Safety Conduct as Motor Vehicle Operator FRA is amending several requirements in § 240.111 to clarify that, for purposes of motor vehicle driving record checks and the reporting of certain motor vehicle incidents, the requirements apply equally to a person with a foreign-issued driver license as to a person with a U.S.-issued driver license. The final rule differs from the proposed version as the proposal contained an incorrect reference in § 240.111(h) to § 240.115(b)(1) and (2) when the reference should have read § 240.115(h)(1) and (2). No comments were received recommending specific changes to this section and the final rule is otherwise identical to the proposed rule; thus, the analysis provided in the NPRM is applicable.17 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 is revising this section in its entirety to be consistent with paragraphs (a) through (f), and (n) and (o) of § 242.111. The final rule is identical to the proposed rule; thus, the analysis provided in the NPRM is applicable.18 Labor Commenters requested alternative language to proposed paragraphs (c) and (d) of this section. As proposed, paragraphs (c) and (d) would provide a 60-day grace period for obtaining motor vehicle operator records, if the records were timely requested. The labor organizations expressed concern that the proposed language could lead to an unintended consequence whereby a railroad could create a temporary locomotive engineer workforce, with each person temporarily certified for a 60-day period. Although theoretically possible, FRA does not share the labor organizations’ concerns that the grace period provided for obtaining motor vehicle operator records will encourage any railroad to create a temporary engineer workforce. The proposed amendment, which FRA is adopting in this final rule, will apply to a person who has met all the other qualifications for certification but is solely missing the motor vehicle records check requirement. The proposed and final rule amendments to this section do not 17 See 18 See 84 FR at 20479–80. 84 FR at 20480–81. VerDate Sep<11>2014 18:18 Dec 14, 2020 Jkt 253001 revise the determinations required as a prerequisite to certification or recertification in § 240.203, including the knowledge testing, performance skills testing, and vision and hearing acuity evaluation requirements. Thus, to take advantage of the flexibility FRA proposed and is making final in this rulemaking, each person that a railroad would want to certify temporarily must already have fulfilled all the qualification requirements, except that the railroad has not yet obtained the motor vehicle records to ensure the person did not incur any alcohol- or drug-related convictions that might indicate the person has an active substance abuse disorder. A railroad that invests the resources necessary to certify a person should want to complete the process by obtaining the motor vehicle operator records, which would allow the railroad to certify the person for up to three years, not temporarily certify the person for 60 days. Further, paragraph (e) prevents a railroad from perpetually certifying or recertifying the same person without obtaining the required motor vehicle driving records and conducting an evaluation of those records. Thus, to create a temporary certification workforce, a railroad would need to employ an available group of people who are qualified for certification except that they are each missing motor vehicle operator records. The theoretical situation is too remote to consider it a reason not to conform the two certification rules in this manner. Section 240.117 Criteria for Consideration of Operating Rules Compliance Data The requirements in this section provide 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 revising this section to improve clarity and conform the section to the corresponding provisions of the conductor certification rule in § 242.403. No comments were received recommending specific changes to this section and the final rule is identical to the proposed rule other than for an edit to paragraph (d) of this section to remove introductory text, including the phrase ‘‘[e]xcept as provided for in paragraph (i) of this section.’’ FRA is removing as unnecessary introductory text from corresponding § 242.403(d) in the conductor certification rule, and FRA removed paragraph (i) from this section through a rulemaking that was PO 00000 Frm 00009 Fmt 4701 Sfmt 4700 81297 effective February 22, 2010.19 For these reasons, the analysis provided in the NPRM is applicable.20 Section 240.121 Criteria for Vision and Hearing Acuity Data This section contains the requirements for visual and hearing acuity railroads must incorporate into their locomotive engineer certification programs. FRA is amending paragraphs (a) and (d) 21 of this section to conform to § 242.117(a) and (i). These revisions will update part 240’s testing procedures and standards for the hearing acuity requirements. No comments were received recommending specific changes to this section and the final rule is identical to the proposed rule except for the revision to paragraph (d)(3), explained below; thus, the analysis provided in the NPRM is applicable.22 FRA is changing proposed paragraph (d)(3) to eliminate the reference to the American National Standards Institute (ANSI) 2004 standard for calibration of audiometric devices. Existing paragraph (d) of this section references the ANSI 1969 calibration standard for audiometric devices (ANSI S3.6–1969, ‘‘Specifications for Audiometers’’). The companion provision in part 242, however, cites the 2004 version of ANSI’s calibration standard.23 Accordingly, in the NPRM, FRA proposed to update the ANSI standard referenced in paragraph (d) to the 2004 standard to conform to part 242. However, ANSI revised the standard in 2018 and FRA expects ANSI will continue to revise the standard in the future. The audiometers covered by the ANSI standard are devices designed for use in determining the hearing threshold level of an individual in comparison with a selected hearing threshold level for reference. The ANSI standard provides specifications and tolerances for pure tone, speech, and masking signals and describes the minimum test capabilities of different types of audiometers. To make clear that audiometers are not subject to a single industry standard, versions of which may change with time, FRA is amending this paragraph to remove the specific citation to the 1969 version of ANSI S3.6 and not adopt the 19 74 FR 68173 (Dec. 23, 2009). 84 FR at 20481–82. 21 In the NPRM, FRA erroneously cited to paragraph (c) instead of (d) in the Section-bySection Analysis, although the regulatory text of the proposed rule contained the correct paragraph cite. 84 FR at 20482, 20509. 22 See 84 FR at 20482. 23 See the discussion of 49 CFR 242.117(i)(3) in the Section-by-Section Analysis, below. 20 See E:\FR\FM\15DER2.SGM 15DER2 81298 Federal Register / Vol. 85, No. 241 / Tuesday, December 15, 2020 / Rules and Regulations proposed specific citation to the 2004 ANSI standard. Instead, this paragraph now expressly provides for use of a formal industry standard, such as ANSI S3.6. This change will allow a licensed or certified audiologist, or a technician responsible to that licensed or certified audiologist, the flexibility to use an audiometer calibrated to a formal industry standard, whether the standard is an older version of ANSI S3.6, a newer version of the standard, or a similar industry standard issued by an organization other than ANSI. Separately, FRA is amending paragraph (b) to remove an unnecessary heading, ‘‘[f]itness requirement.’’ FRA discovered the technical error in preparing the final rule, and this correction makes the locomotive engineer rule consistent with an identical change to the conductor rule. Section 240.123 Training This section 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 is revising this section’s heading to be the same as that for § 242.119 (Training). FRA also is amending this section’s text to be similar to § 242.119’s, 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 safetyrelated railroad employees. Railroad Commenters objected to the proposed language amending § 240.123(c), providing that initial training of an untrained person must comply with § 243.101 of this chapter. Railroad Commenters stated that such a revision would require a railroad to resubmit its part 243 program to FRA even though FRA did not identify any specific deficiencies with existing railroad training plans for locomotive engineers. FRA addressed this issue in the NPRM and the analysis in the proposed rule provides additional background not repeated in the discussion below.24 In summary, FRA is adding the crossreference to part 243 to conform the rule to the parallel part 242 requirement and believes the cross-reference is helpful as a reminder of the requirement in part 243. Because there is an existing requirement, FRA is not creating a new burden. Locomotive engineer and conductor training programs have been, and continue to be, sufficiently robust to meet the part 243 standards. These 24 84 FR at 20482–83. VerDate Sep<11>2014 18:18 Dec 14, 2020 Jkt 253001 certification training programs are already required to be submitted to FRA for review and approval under parts 240 and 242, and thus railroads are exempt from submitting them under part 243, unless a 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). FRA expects each railroad to evaluate the OJT components in its part 240 training program and supplement its certification program only if necessary. The deadlines for implementing the modifications are governed by part 243. Please note that FRA amended the implementation deadlines for compliance with § 243.101; consequently, railroads and other employers that employ locomotive engineers were required to modify locomotive engineer OJT programs beginning January 1, 2020, depending on the size of the railroad operation.25 No additional comments were received recommending specific changes to this section and the final rule is identical to the proposed rule; thus, the analysis provided in the NPRM is applicable.26 Section 240.307 Revocation of Certification This section provides the procedures a railroad must follow to revoke a certified locomotive engineer’s certification. FRA is amending this section to clarify its intent and make it the same as § 242.407, which addresses the revocation of conductor certifications. As discussed in Section II.F, above, Labor Commenters recommended specific changes to paragraph (c)(11) of this section. As noted in Section II.F, FRA has determined that those suggestions are beyond the scope of this rulemaking. No other comments were received recommending specific changes to this section and the final rule is identical to the proposed rule; thus, the analysis provided in the NPRM is applicable.27 Section 240.308 Multiple Certifications Proposed paragraph (d) contained an unnecessary heading, ‘‘[p]assenger railroad operations,’’ based on its corresponding provision in the 25 Contractors and Class II and III railroads that are not intercity or commuter passenger railroads with 400,000 total employee work hours annually or more are required to submit their Part 243 programs by May 1, 2021. 85 FR 10 (Jan. 2, 2020). 26 See 84 FR at 20482–83. 27 See 84 FR at 20487–89. PO 00000 Frm 00010 Fmt 4701 Sfmt 4700 conductor certification rule, § 242.213(e). FRA discovered the technical error in preparing the final rule and is correcting § 242.213(e). Accordingly, FRA is not adopting the heading proposed in paragraph (d) of this section for consistency with the conductor rule, and is instead making clear in the rule text that this paragraph applies to passenger train operations. Subpart E—Dispute Resolution Procedures 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. In the NPRM, FRA proposed some changes to the appeals process contained in §§ 240.401 through 240.411. The comments received recommending specific changes to this subpart are addressed in section II.A, above, or in the Section-BySection analysis, below. However, the final rule is identical to the proposed rule; thus, the analysis provided in the NPRM is applicable.28 Section 240.401 Review Board Established This section 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 is amending this section to delegate initial responsibility for adjudicating denial of locomotive engineer certification or recertification and revocation disputes to FRA’s OCRB. Accordingly, the Locomotive Engineer Review Board (LERB), which previously had this responsibility, will merge into the OCRB, which also has the responsibility for adjudicating denial of conductor certification or recertification and revocation disputes. Labor Commenters requested that FRA ‘‘provide confirmation that (1) the Review Board will be comprised of an odd number of senior FRA staff members with pertinent experience, and (2) the number of Review Board members will be provided by FRA order.’’ Labor Commenters made this request while acknowledging FRA’s position, as stated in the NPRM, that 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 are authorized even if made 28 See E:\FR\FM\15DER2.SGM 84 FR at 20490–94. 15DER2 Federal Register / Vol. 85, No. 241 / Tuesday, December 15, 2020 / Rules and Regulations without notice to the public. See 5 U.S.C. 553(b)(3)(A). Accordingly, FRA declines to adopt the Labor Commenters’ specific suggestions in this final rule. The revisions to § 240.401 make the section the same as the corresponding section in part 242 (§ 242.501). The revisions do not, however, change FRA’s right to use any number of FRA employees as OCRB members, in coordination with Agency resources and priorities. Section 240.403 Petition Requirements This section provides the requirements for obtaining FRA review of a railroad’s decision to deny certification, deny recertification, or revoke an individual’s locomotive engineer certification. FRA is revising this section to make it the same as the corresponding provision in part 242 (§ 242.503). The final rule will provide a single process for aggrieved parties to submit FRA locomotive engineer petitions under part 240 and conductor certification petitions under part 242. FRA is revising paragraph (b) so that a person filing a petition under part 240 will need to file the same information and documentation that is required under part 242. The final rule is different than the NPRM in that FRA did not propose revisions to paragraph (b)(5) or (6). Existing paragraph (b)(5) requires that a petitioner provide a copy of all written documents in the petitioner’s possession that document the railroad’s decision that is being challenged. FRA is revising paragraph (b)(5) to add that a petitioner is required to provide a copy of all written documents that are reasonably available to the petitioner that document the railroad’s decision. Without a complete record, the OCRB may not be able to determine whether a railroad’s decision was improper. FRA wants petitioners to request a complete copy of the documents the railroad used in making its decision and, by revising this requirement, FRA is requiring petitioners to request a copy of any documents from the investigative hearing or railroad’s denial decision that were not provided to them voluntarily. However, FRA recognizes that a petitioner cannot provide the OCRB with documents that the railroad refuses to provide. In that case, when a petitioner requests documents from a railroad and is denied those documents, the petitioner should explain that situation in the petition and provide the Board with any corroborating documents to substantiate that claim. Paragraph (b)(6) is the same, existing requirement, but an ‘‘and’’ was added to the end because it is no longer the last VerDate Sep<11>2014 18:18 Dec 14, 2020 Jkt 253001 item in the list of paragraph (b)’s petition requirements. FRA is revising paragraph (c) to require that a petition for review of a railroad’s revocation or denial decision be filed with FRA within 120 days of the date the railroad serves the decision on the petitioner. This revision will make this provision of part 240 the same as the corresponding provision in part 242 (see § 242.503(c)). The labor organizations’ comment requests that FRA not reduce the time limit for petitioning FRA on a railroad’s denial of certification or recertification from 180 days to 120 days. The labor organizations’ comment contends that the longer period is appropriate because it is often difficult to obtain a complete record. FRA does not agree with this comment for several reasons. FRA believes that 120 days is itself a significant period for an aggrieved locomotive engineer or locomotive engineer candidate to consider whether to request FRA review and submit necessary supporting materials. Part 242 has always imposed this 120-day time limit and FRA has not previously heard that the time limit is too short. To the extent a party finds it difficult to obtain the decision record from the railroad, FRA offers that the party may file its petition with any documents it has and add a description in the petition of the missing documents. FRA expects each railroad to submit any missing evidence it relied on in making its denial decision, even if the railroad chooses not to submit an argument in response to the petition. By making FRA aware of missing documents, the OCRB can follow up as appropriate. Further, although the regulatory text plainly describes the different deadlines for petitioning FRA to review a railroad’s decision to deny certification or recertification and to review a railroad’s decision to revoke certification, some locomotive engineers and their representatives have claimed the different deadlines have confused them into filing a late petition, believing the deadline to be within 180 days of a railroad’s revocation decision instead of the required 120 days. The final rule amendment will eliminate any such confusion. Section 240.405 Processing Certification Review Petitions FRA is revising 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). FRA received comments on this section, some of which are addressed in the discussion of specific comments and conclusions, above, in PO 00000 Frm 00011 Fmt 4701 Sfmt 4700 81299 the section addressing issues beyond the scope of this rulemaking.29 Two comments and one additional revision are addressed below. FRA received a comment from AAR and ASLRRA objecting to proposed § 240.405(d)(2) requiring service of a copy of a railroad’s response to an OCRB petition on petitioner’s representative, if any. The AAR and ASLRRA suggest that this revision would establish a new burden because the change would require railroads to track down and provide service to the person’s representative at the railroad’s on-the-property hearing even if that is not the same person who assisted the individual in filing an OCRB petition. FRA believes the commenters misunderstood the proposal. FRA never intended the proposal to be construed as requiring service on a representative that no longer appears to be representing the person. FRA’s reference to service on petitioner’s representative, if any, is a reference to any representative identified in the petition. FRA is aware that some petitioners file a petition without identifying a representative in the petition. When that happens, this final rule will only require the railroad to serve the petitioner with a copy of the railroad’s response. FRA received a comment from labor organizations objecting to proposed § 240.405(l) because, unlike the rule for the LERB, the proposal did not include the requirement that every OCRB decision contain findings of fact on which the decision is based. In the NPRM, FRA explained that removal of the requirement is necessary because issuing findings of fact may not be appropriate for, or relevant to, some decisions. The revision also conforms to the OCRB’s requirement in § 242.505(l). FRA notes that the labor organizations’ comment recommends amending the regulation by providing flexibility to the OCRB to exclude findings of fact ‘‘where such findings are not appropriate or relevant,’’ which also seems to result in the same outcome. For these reasons, FRA is issuing the final rule as proposed. FRA is revising proposed § 240.405(i) to clarify the OCRB’s standard of review for procedural issues. The final rule will require that when considering procedural issues, the Board will determine whether the petitioner suffered substantial harm that was caused by the failure to adhere to the dictated procedures for making the railroad’s decision. The restated standard uses active voice and removes the passive voice language that similarly 29 See E:\FR\FM\15DER2.SGM Section II.F. 15DER2 81300 Federal Register / Vol. 85, No. 241 / Tuesday, December 15, 2020 / Rules and Regulations explained that the Board will determine whether substantial harm was caused the petitioner by the railroad’s failure to adhere to the dictated procedures. Although the Board will apply the revised standard in the same way as before, the final rule is expected to help the parties better understand the standard. Section 240.411 Appeals FRA is amending paragraphs (a) and (f) so that the instructions for appealing to the Administrator are the same in both parts 240 and 242 (§ 242.511). In the NPRM, FRA proposed to revise this section so that an aggrieved party requesting an appeal to the Administrator would file a copy of the appeal with the Administrator in addition to filing a copy in the docket.30 Although no comments were received regarding this section, FRA is revising the filing requirements so that an aggrieved party will only need to file one copy of an appeal with FRA, instead of the proposed two copies. With the elimination of paper dockets, it is much easier for FRA to know when a document is added to an existing docket. Parties that are filing an appeal, whether under paragraph (a) or (f), would already have a docket number and would be expected to know how to file a document, as they would have already filed at least once, and probably several times, in that same docket kept electronically at www.regulations.gov. Rather than revising this section to require a party to file with FRA in two different places, FRA is amending both parts 240 and 242 so that an aggrieved party needs to file its appeal only in the electronic, public docket. Appendix A In the NPRM, FRA stated that it would likely need to make corresponding changes in the final rule to appendix A to part 240 (appendix A), which then contained the schedule of civil penalties for violations of part 240. Meanwhile, as published on May 23, 2019, FRA removed and reserved appendix A, as FRA moved all its schedules of civil penalties from the CFR to FRA’s website.31 Thus, there is no need to amend appendix A and it will remain reserved. Nonetheless, FRA will modify the schedule of civil penalties on its website at www.railroads.dot.gov as necessary to reflect the requirements of the final rule. Because such penalty schedules are statements of agency policy, notice and comment are not required before their 30 84 31 84 FR at 20493–94. FR 23730. VerDate Sep<11>2014 18:18 Dec 14, 2020 issuance.32 In addition, FRA invited but did not receive any comments on the civil penalties for violations of part 240. Appendix B As explained in the NPRM, appendix B to part 240 (appendix B) provides both the organizational requirements and a narrative description of the submission required under §§ 240.101 and 240.103. FRA is updating job titles and clarifying requirements in appendix B. In the NPRM, FRA proposed revising appendix B to provide railroads with the option to file their part 240 program submissions electronically by adopting language from part 242’s appendix B. As a matter of agency policy or procedure, FRA decided that the certification program submission process could be further streamlined. FRA accomplished this streamlining by adding an email address for direct electronic submission of a railroad’s engineer certification program. There is no secure website for uploading a railroad submission, so FRA eliminated the proposed language in the appendix requesting information to set up a secure account for such a submission. Email is the primary method of railroad submission, and the publication of FRA’s email address for such submission should make the submission process easier for each railroad that must submit. Although FRA is not making similar conforming changes to part 242’s appendix B, FRA revised § 242.103 to provide the same email address and submission information for conductor certification programs as for locomotive engineer certification programs in revised § 240.103. Therefore, under both rules, railroad submission of certification programs should primarily be completed by email, without regard to the size of the paper or the need to mail FRA contact information to arrange for electronic submission. Two comments recommending specific changes to appendix B are discussed below. FRA is revising appendix B based on one of the comments. Otherwise, the analysis provided in the NPRM is applicable.33 FRA received a comment from AAR and ASLRRA objecting to the proposed revision requiring a railroad to comply with requirements for training organizations or learning institutions in § 243.111 of this chapter if the railroad were to train another railroad’s employees. The comment refers specifically to the proposed language for amending appendix B, ‘‘Section 5 of the Submission: Training, Testing, and 32 5 U.S.C. 553(b)(3)(A). 84 FR at 20494. 33 See Jkt 253001 PO 00000 Frm 00012 Fmt 4701 Evaluating Persons Not Previously Certified.’’ 34 In appendix B, Section 5, FRA proposed that a railroad that plans to accept responsibility for the initial training of locomotive engineers may authorize another railroad or a nonrailroad entity to perform the actual training effort if the other entity complies with the requirements for training organizations and learning institutions in § 243.111 of this chapter. The comment suggests that many small railroads work together when training their employees and may, for example, allow one railroad to conduct an operating rules class for the employees of multiple railroads. FRA is also aware that some railroads, especially Class I railroads, have robust training programs administered at specific training centers that could potentially accommodate appropriate training for employees of other railroads. The railroad associations indicate the revision would result in a new burden that could create inefficiencies and costs, and thereby adversely affect safety. After considering the comment, FRA has removed the reference equating a railroad that is not training its own employees with a training organization or learning institution. FRA believes that while these entities may share some common features, a railroad that has an approved training program is not a training organization or learning institution, and therefore does not have an obligation to comply with 49 CFR 243.111. FRA will nonetheless continue to monitor the practice of unaffiliated railroads providing training for any other railroad’s employees, to help ensure the appropriateness of such training. FRA received a comment from the labor organizations requesting that FRA revise appendix B to underscore that a railroad’s certification program should explain, in detail, how its OJT program ensures training on the manual dexterity, cognitive ability, and humanmachine interface skills necessary to be considered qualified. Appendix B, ‘‘Section 3 of the Submission: Training Persons Previously Certified,’’ mentions OJT in a list of the type of formal training necessary for effective evaluation of a railroad’s training program. FRA expects the program to include the subject matter covered, the frequency and duration of the training sessions, and the type of formal training employed, as well as specify which aspects of the program are voluntary or mandatory. Testing each certified person or candidate is required to determine whether the person is qualified to do the work, and passing 34 84 Sfmt 4700 E:\FR\FM\15DER2.SGM FR at 20518. 15DER2 Federal Register / Vol. 85, No. 241 / Tuesday, December 15, 2020 / Rules and Regulations such training is proof that the person’s training is effective. FRA does not believe a person would be able to pass operational monitoring or skill performance testing without having all the skills the labor organizations mention in their comment as necessary. In addition, FRA believes that manual dexterity and cognitive ability may be difficult to measure, train, or test; thus, adding them as necessary requirements could be correspondingly difficult for railroads to implement. For these reasons, FRA is not revising appendix B in response to this comment. Part 242 Section 242.7 Definitions FRA is amending the definition of ‘‘main track’’ after discovering a technical error while addressing a comment on the text in an identical provision in part 240. FRA recognizes that it did not explain the inclusion of PTC as a method of operation in the part 242 rulemaking notices. Upon further review, FRA agrees with Railroad Commenters that PTC is not a method of operation but rather is a technology that helps enforce compliance with a railroad’s method(s) governing train operations. For this reason, FRA is removing the reference to PTC, as defined in 49 CFR part 236, to correct the technical error. FRA is amending the definition of ‘‘Substance abuse disorder’’ so that the locomotive engineer and conductor certification rules use the same language. In the NPRM, FRA proposed that part 240 conform to the definition in part 242. After the NPRM’s publication, FRA decided that the definition in part 242 is improved by moving the word ‘‘successfully’’ in both places it is found in the definition without changing its meaning. Section 242.103 Approval of Design of Individual Railroad Programs by FRA FRA is making technical amendments to § 242.103 so that the locomotive engineer and conductor certification rules use the same language. For example, FRA is revising paragraph (b) so that, like § 240.103(a), both rules reference that the primary method for a railroad to submit its certification programs is by email to FRAOPCERTPROG@dot.gov. FRA is also clarifying that mailing will remain an option, although FRA expects that option will be exercised only by those smaller railroads that do not have internet access suitable for emailing the program. The NPRM proposed certain requirements found in this section for VerDate Sep<11>2014 18:18 Dec 14, 2020 Jkt 253001 adoption in § 240.103. However, as FRA described above in the analysis for § 240.103(b) and (c), some minor changes were made to improve the clarity of the proposed requirements to the locomotive engineer rule and FRA is making technical amendments to the conductor rule so the two certification rules contain the same requirements. For instance, FRA is revising paragraphs (c) and (d) of this section to require railroads to provide a copy of their program submissions, resubmissions, and material modifications to the president of each labor organization that represents the railroad’s certified conductors, rather than serve a copy. FRA is finalizing this change to part 242 because the term ‘‘serve or service,’’ which is defined in this part, refers to the legal issue of service of process during adjudication and the exchange of certification programs and comments to those certification programs are not adjudicatory matters. Thus, FRA is revising these requirements to reflect that each railroad and labor organization president must provide, not serve, its documents to each other, and affirm to FRA that it has done so, without the need to abide by strict legal rules for service of process. FRA is not specifying the methods that a railroad or president of a labor organization must use to provide documents to the other party as FRA expects each party to use those methods it uses in the normal course of business with each other. Also, FRA is adding an email address to make it easier for parties to submit programs or comments to programs. Finally, although part 242 required that each railroad affirm that it provided a copy of its program to the president of each labor organization that represents the railroad’s employees subject to this part, the labor organization presidents were required to certify that they sent their comment to the railroad; hence, for consistency, FRA is requiring that both parties affirm they provided the other party with a copy of the documents they submit to FRA under this requirement. Section 242.117 Vision and Hearing Acuity FRA is amending paragraph (g) to remove an unnecessary heading, ‘‘[f]itness requirement.’’ FRA discovered the technical error in preparing the final rule, and this correction makes the conductor rule consistent with an identical change to the locomotive engineer rule. FRA is amending paragraph (h)(3) to correct the reference from appendix E to appendix D to this part. FRA discovered the technical error in preparing the final rule, and this correction makes the PO 00000 Frm 00013 Fmt 4701 Sfmt 4700 81301 reference to appendix D consistent with the other references to appendix D in this section. FRA is amending paragraph (i)(3) for consistency with corresponding changes to 49 CFR 240.121(d). Section 242.117(i)(3) referenced the 2004 version of the ANSI calibration standard for audiometric devices (ANSI S3.6– 2004, ‘‘Specifications for Audiometers’’) whereas 49 CFR 240.121(d) cited the 1969 version of that standard. See the discussion of 49 CFR 240.121(d) in the Section-by-Section Analysis, above. Further, ANSI revised this standard in 2018 and FRA expects ANSI will continue to revise the standard in the future. The audiometers covered by the ANSI standard are devices designed for use in determining the hearing threshold level of an individual in comparison with a selected hearing threshold level for reference. The ANSI standard provides specifications and tolerances for pure tone, speech, and masking signals and describes the minimum test capabilities of different types of audiometers. To make clear that audiometers are not subject to a single industry standard, versions of which may change with time, FRA is amending this paragraph to remove the specific citation to the 2004 version of ANSI S3.6 and instead provide for use of a formal industry standard, such as ANSI S3.6. This will allow a licensed or certified audiologist, or a technician responsible to that licensed or certified audiologist, the flexibility to use an audiometer calibrated to a formal industry standard, whether the standard is an older version of ANSI S3.6, a newer version of the standard, or a similar industry standard, whether or not issued by ANSI. Section 242.213 Multiple Certifications FRA is amending paragraph (e) to remove an unnecessary heading, ‘‘[p]assenger railroad operations,’’ and is instead making clear in the rule text that this paragraph applies to passenger train operations. FRA discovered the technical error in preparing the final rule, and this correction makes the conductor rule consistent with its corresponding provision in the locomotive engineer rule. Section 242.403 Certification Criteria for Revoking FRA is revising § 242.403(d) to remove unnecessary introductory text. FRA is making a corresponding technical revision to § 240.117(d) to remove the same text. No substantive change is intended. E:\FR\FM\15DER2.SGM 15DER2 81302 Federal Register / Vol. 85, No. 241 / Tuesday, December 15, 2020 / Rules and Regulations Section 242.503 Petition Requirements FRA is revising § 242.503(c)(2) so that the locomotive engineer and conductor certification rules use the same language. The change reverses the phrase ‘‘timely file’’ to ‘‘file timely’’ to match the language in § 240.403(c)(2) without changing its meaning. Section 242.505 Processing Certification Review Petitions FRA is revising § 242.505(i) to clarify the OCRB’s standard of review for procedural issues and make the standard the same as in § 240.405(i). The final rule requires that, when considering procedural issues, the Board determines whether the petitioner suffered substantial harm that was caused by the failure to adhere to the dictated procedures for making the railroad’s decision. The restated standard uses active voice and removes the passive voice language that similarly explained that the Board will determine whether substantial harm was caused the petitioner by the railroad’s failure to adhere to the dictated procedures. Although the Board will apply the revised standard in the same way as before, the final rule is expected to help the parties better understand the standard. FRA is also making certain technical revisions to this section. Specifically, FRA is revising paragraphs (h) through (k) to remove unnecessary introductory text and is revising paragraph (k) to replace the word ‘‘regulation’’ with ‘‘part.’’ These technical revisions do not affect the meaning of this section. Section 242.511 Appeals FRA is amending paragraphs (a) and (f) so that the instructions for appealing to the Administrator are the same in both parts 240 and 242. FRA is revising the filing requirements to eliminate the requirement for an aggrieved party to file two copies of an appeal rather than one. With the elimination of paper dockets, it is much easier for FRA to know when a document is added to an existing docket. Parties that are filing an appeal, whether under paragraph (a) or (f), would already have a docket number and would be expected to know how to file a document, as they would have already filed at least once, and probably several times, in that same docket kept electronically at www.regulations.gov. Filing in the docket will be sufficient to notify FRA, and the final rule will eliminate the requirement to file a separate copy with the Administrator. Appendix E to Part 242—Application of Revocable Events FRA is amending appendix E to part 242 so that both part 240 and part 242 will contain the same 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. In the NPRM, FRA proposed adding the same table to part 240 that is found in appendix E to part 242, and designating it as new appendix G to part 240. However, in adding the table to part 240, FRA made slight changes to include some citations to the different periods of revocation that may be applied in part 240 when a locomotive engineer has a drug or alcohol violation, as only the conductor citations were in the part 242 version of the table. The table in appendix E to part 242 is expected to continue to be a useful reference, and this nonsubstantive revision will conform part 240 with part 242. FRA considered not revising appendix E to part 242 but was concerned that any differences between the two appendices might lead to confusion. The appendices are intended to be identical, insofar as practical, to promote proper understanding and application of both regulations. IV. Regulatory Impact and Notices A. Executive Orders 12866 and 13771 and DOT Regulatory Policies and Procedures This final rule is a non-significant regulatory action and has been evaluated in accordance with existing policies and procedures under E.O. 12866 and DOT’s Administrative Rulemaking, Guidance, and Enforcement Procedures in 49 CFR part 5. The rule is non-significant under the policies and procedures of E.O. 12866 and under DOT’s Rulemaking Procedures. This final rule is also an E.O. 13771 deregulatory action. The primary purpose of the final rule is to reduce the differences between FRA’s two operating crew certification regulations and to make engineer certification more efficient. Some of the amendments address the part 240 certification review and program submission processes. Other changes reduce the burden on the regulated community by addressing compliance difficulties noted through experience enforcing part 240. Further, some changes codify longstanding 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 railroads subject to the final rule are likely to incur over a twenty-year period. The table below summarizes the costs, cost savings, and net cost savings estimated to come from issuing the final rule. For the 20-year period of analysis, the cost of the final rule will be $233,779 (undiscounted), $171,764 (PV 7%), and $200,775 (PV 3%). The total cost savings of the final rule over 20 years will be $12.3 million (undiscounted), $6.9 million (PV 7%), and $9.4 million (PV 3%). For the 20year period of analysis, the final rule will result in a net cost savings of $12.0 million (undiscounted), $6.8 million (PV 7%), and $9.2 million (PV 3%). TABLE 1—SUMMARY OF THE FINAL RULE’S TOTAL NEW COSTS, TOTAL COST SAVINGS, NET COST SAVINGS (TWENTYYEAR PERIOD), PV 7 PERCENT AND PV 3 PERCENT Cost of proposed rule Undiscounted New Costs: Review amendments .................................................... Provide a copy of part 240 plan to labor organization Maintain service records ............................................... Total new costs ..................................................... Cost Savings: Conforming part 240 to part 242 .................................. Former employee paperwork ........................................ Petition submission process ......................................... VerDate Sep<11>2014 18:18 Dec 14, 2020 Jkt 253001 PO 00000 Frm 00014 Present value 7% Annualized 7% Present value 3% Annualized 3% $118,383 2,263 113,133 $110,638 1,199 59,927 $10,443 113 5,657 $114,935 1,683 84,157 $7,725 5,657 5,657 233,779 171,764 16,213 200,775 19,039 11,838,340 113,133 109,620 6,709,732 59,927 58,066 633,351 5,657 5,481 9,070,417 84,157 81,543 609,675 5,657 5,481 Fmt 4701 Sfmt 4700 E:\FR\FM\15DER2.SGM 15DER2 Federal Register / Vol. 85, No. 241 / Tuesday, December 15, 2020 / Rules and Regulations 81303 TABLE 1—SUMMARY OF THE FINAL RULE’S TOTAL NEW COSTS, TOTAL COST SAVINGS, NET COST SAVINGS (TWENTYYEAR PERIOD), PV 7 PERCENT AND PV 3 PERCENT—Continued Cost of proposed rule Undiscounted Present value 7% Annualized 7% Present value 3% Annualized 3% Plan submission process .............................................. Government cost savings ............................................. Removing waiver requirement ...................................... 6,800 92,448 113,133 3,602 48,970 59,927 340 4,622 5,657 5,058 60,933 84,157 340 4,096 5,657 Total cost savings .................................................. Net Cost Savings ................................................... 12,273,475 12,039,696 6,940,223 6,768,459 655,108 638,895 9,386,266 9,185,491 630,904 611,866 The final rule will create benefits, though FRA did not monetize them. Some non-quantifiable benefits include: affording railroads 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 will afford railroads an additional 30 days, increasing from 30 days to 60 days, for a railroad 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 will 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 locomotive engineers sooner and railroads will have available a larger pool of workers who will be qualified to work as locomotive engineers. The regulatory evaluation compares the final rule’s costs and benefits, and estimates the final rule will be cost beneficial because the rule is expected to provide net cost savings and benefits. B. Regulatory Flexibility Act and Executive Order 13272; Regulatory Flexibility Certification The final rule will impact 741 railroads of which 93 percent (690) are small entities. Therefore, FRA has determined that this final rule will have an impact on a substantial number of small entities. However, FRA has determined that the impact on entities affected by the final rule will not be significant as the final rule is deregulatory. Therefore, the impact on entities will be positive, taking the form of costs savings that are greater than any new costs imposed on the entities. For the railroad industry over a 20year period, FRA estimates that issuing the final rule will result in new costs of $171,764 (PV 7%) and $200,775 (PV 3%). Based on information currently available, FRA estimates that $97,905 (PV 7%) and $114,442 (PV 3%) of the total costs associated with implementing the final rule will be borne by small entities. Therefore, less than 60 percent of the final rule’s total cost will be borne by small businesses. In addition, FRA estimates that the final rule will result in cost savings over 20 years of $6.9 million (PV 7%), and $9.4 million (PV 3%). For the 20-year period of analysis, the final rule will result in a net cost savings of $12.0 million (undiscounted), $6.8 million (PV 7%), and $9.2 million (PV 3%). FRA expects that small entities will accrue 94 percent of the cost savings associated with implementing the final rule. Thus, pursuant to the Regulatory Flexibility Act, 5 U.S.C. 601(b), the FRA Administrator hereby certifies that this final rule will not have a significant economic impact on a substantial number of small entities. C. Paperwork Reduction Act The information collection requirements in this final rule are being submitted for approval to the Office of Management and Budget (OMB) under the Paperwork Reduction Act of 1995.35 The sections that contain the new and current information collection requirements and the estimated time to fulfill each requirement are as follows: Respondent universe Total annual responses Average time per response 240.9—Waivers ...................................................... 240.101/103—Certification program: Written program for certifying qualifications of locomotive engineers—amendments. —Certification programs for new railroads ..... —Final review and submission of certification programs for new railroads. (b)(1)—RR provision of copy of certification program submission or resubmission to president of each labor union representing employees simultaneously with filing with FRA (See footnote 36). (b)(2)—RR affirmative statement that it has served certification program copy to each labor union president (See footnote 36 ). (c)—RR employee comment on submission, resubmission or material modification of RR certification program (See footnote 36). 741 railroads ................. 741 railroads ................. 2 waiver petitions .......... 25 amendments ............ 1 hour ............................ 5 minutes ...................... 2 2 $152 152 5 new railroads ............. 5 new railroads ............. 5 programs .................... 5 reviews ....................... 1 hour ............................ 1 hour ............................ 5 5 380 380 62 railroads ................... 62 copies ....................... 5 minutes ...................... 5 380 62 railroads ................... 62 copies ....................... 5 minutes ...................... 5 380 62 railroads ................... 62 comments ................ 8 hours .......................... 496 37,696 35 44 U.S.C. 3501 et seq. revisions to the estimates under OMB control number 2130–0533 are due to adding conforming language in Part 240 to Part 242. Also, 36 The VerDate Sep<11>2014 18:18 Dec 14, 2020 Jkt 253001 burden requirements under § 240.308 are covered under OMB control number 2130–0544 (§ 242.213). 37 Throughout the tables in this document, the dollar equivalent cost is derived from the Surface PO 00000 Frm 00015 Fmt 4701 Sfmt 4700 Total annual burden hours Total annual dollar cost equivalent 37 CFR section 36 Transportation Board’s Full Year Wage A&B data series using the appropriate employee group hourly wage rate that includes 75-percent overhead charges. E:\FR\FM\15DER2.SGM 15DER2 81304 Federal Register / Vol. 85, No. 241 / Tuesday, December 15, 2020 / Rules and Regulations Respondent universe Total annual responses Average time per response (h)—RR material modifications to program after initial FRA approval (formerly under (e)). 240.105(b)—(c) Written reports/determinations of DSLE performance skills. 240.109/App. C—Prior safety conduct ................... 240.111/App C—Driver’s license data requests from chief of driver licensing agency of any jurisdiction, including foreign countries. —NDR match—notifications and requests for data. —Written response from candidate on driver’s license data. 240.111(g)—Notice to RR of absence of license .. 240.111(h)—Duty to furnish data on prior safety conduct as motor vehicle operator. 240.113—Duty to furnish data on prior safety conduct as an employee of a different RR. 240.115(d)—RR temporary certification or recertification of locomotive engineer for 60 days after having requested the motor vehicle information specified in paragraph (h) of this section (See footnote 36). (i)(2)—RR drug and alcohol counselor request of employee’s record of prior counseling or treatment (See footnote 36). (i)(3)—Conditional certification based on recommendation by DAC of employee aftercare and/or follow-up testing for alcohol/drugs (See footnote 36). (i)(4)—RR employee evaluation by DAC as having an active substance abuse disorder (See footnote 36). 240.117(i)(4)—RR employee completion of training/retraining prior to return to service—records (See footnote 36). 240.119(c)—Written records indicating dates that the engineer stopped performing or returned to certification service + compliance/observation test (See footnote 36). 240.119(d)—Self-referral to EAP re: Active substance abuse disorder. 240.119(e)(3)(ii)—RR notification to person that recertification has been denied or revoked (See footnote 36). 240.119(e)(4)(iii)—Locomotive engineer waiver of investigation in case of one violation of § 219.101 (See footnote 36). 240.121—Criteria—vision/hearing acuity data— new railroads. —Conditioned certification .............................. —Not meeting standards—Notice by employee. 240.129(b)—RR documents on file regarding determination made regarding fitness, including DAC written document (See footnote 36). 240.201/221—List of qualified DSLEs ............ —List of qualified loco. engineers ................... 240.201/223/301—Loco. engineer certificates ....... 240.207—Medical certificate showing hearing/vision standards are met:. —Written determinations waiving use of corrective device. 240.219(a)—RR notification letter to employee of certification denial + employee written rebuttal (See footnote 36). —RR notice/written documents/records to candidate that support its pending denial decision (See footnote 36). 240.229—Joint operations—notice—not qualified 240.301(b)—Temporary replacement certificates valid for no more than 30 days (See footnote 36). (c)—Engineer’s notice of non-qualification to RR. (d)—Relaying certification denial or revocation status to other certifying railroad. 240.307(a–b)—Notice to engineer of disqualification. 240.307(b)(4)—RR provision to employee of copy of written information and list of witnesses that it will present at hearing (See footnote 36). 741 railroads ................. 10 modified programs ... 10 minutes .................... 2 152 741 railroads ................. 10 reports ...................... 30 minutes .................... 5 575 17,667 candidates ......... 17,667 candidates ......... 25 responses ................ 17,667 requests ............ 5 minutes ...................... 10 minutes .................... 2 2,945 116 223,820 741 railroads ................. 177 notices + 177 requests. 20 cases/comments ...... 5 mins + 5 mins ............ 30 2,010 741 railroads ................. 10 minutes .................... 3 174 53,000 candidates ......... 741 railroads ................. 4 letters ......................... 100 communications ..... 5 minutes ...................... 5 minutes ...................... 0.3 8 19 464 17,667 candidates ......... 353 requests + 353 responses. 25 recertifications .......... 5 mins + 5 mins ............ 59 4,130 5 minutes ...................... 2 152 17,667 candidates ......... 200 requests + 200 records. 5 minutes ...................... 33 1,914 17,667 candidates ......... 100 conditional certifications/DAC recommendations. 1 hour ............................ 100 5,800 17,667 candidates ......... 100 DAC evaluations .... 1 hour ............................ 100 5,800 53,000 locomotive engineers. 400 trained/retrained records. 5 minutes ...................... 33 1,914 741 railroads ................. 400 records ................... 5 minutes ...................... 33 1,914 53,000 locomotive engineers. 741 railroads ................. 150 self-referrals ........... 5 minutes ...................... 13 754 200 notifications ............ 30 minutes .................... 100 5,800 53,000 locomotive engineers. 200 waivers ................... 2 minutes ...................... 7 406 5 railroads ..................... 5 copies ......................... 5 minutes ...................... 0.4 32 741 railroads ................. 741 railroads ................. 5 reports ........................ 10 notifications .............. 5 minutes ...................... 15 minutes .................... 0.4 3 48 174 53,000 locomotive engineers. 1,000 records ................ 5 hours .......................... 83 6,308 741 railroads ................. 741 railroads ................. 53,000 candidates ......... 53,000 candidates ......... 741 updates .................. 741 updated lists ........... 17,667 certificates ......... 17,667 certificates ......... 5 minutes ...................... 5 minutes ...................... 5 minutes ...................... 30 minutes .................... 62 62 1,472 8,834 4,712 4,712 111,872 1,015,910 741 railroads ................. 30 determinations ......... 5 minutes ...................... 3 345 17,667 candidates ......... 45 letters + 45 responses. 30 minutes .................... 45 3,420 741 railroads ................. 45 documents/records .. 2 minutes ...................... 2 152 321 railroads ................. 741 railroads ................. 184 employee calls ....... 600 replacement certificates. 5 minutes ...................... 30 minutes .................... 15 300 870 22,800 53,000 engineers or candidates. 1,060 engineers ............ 100 notifications ............ 5 minutes ...................... 8 464 2 letters ......................... 15 minutes .................... 1 hour 58 741 railroads ................. 1,100 letters .................. 1 hour ............................ 1,100 73,700 741 railroads ................. 690 copies/list ............... 5 minutes ...................... 58 4,408 VerDate Sep<11>2014 18:58 Dec 14, 2020 Jkt 253001 741 railroads ................. PO 00000 Frm 00016 Fmt 4701 Sfmt 4700 E:\FR\FM\15DER2.SGM 15DER2 Total annual burden hours Total annual dollar cost equivalent 37 CFR section 36 Federal Register / Vol. 85, No. 241 / Tuesday, December 15, 2020 / Rules and Regulations Average time per response Total annual burden hours 81305 Total annual dollar cost equivalent 37 CFR section 36 Respondent universe 240.307(b)(5)—RR determination on hearing record whether person no longer meets certification requirements of part 240 (See footnote 36). 240.307(c)(11)(i)(ii)—RR written decision after close of hearing containing findings of fact & whether a revocable event occurred (See footnote 36). 240.307(c)(11)(iii)—RR service of written decision on employee and employee’s representative (See footnote 36). 240.307(f)—Person’s waiver of right to hearing under this section (See footnote 36). 240.307(j)—RR update of record with relevant information (See footnote 36). 240.309—RR oversight resp.: Detected poor safety conduct—annotation. —Railroad annual review ................................ 741 railroads ................. 690 hearing determinations. 1 hour ............................ 690 52,440 741 railroads ................. 690 written decisions .... 30 minutes .................... 345 26,220 741 railroads ................. 690 copies ..................... 5 minutes ...................... 58 4,408 741 railroads ................. 750 written waivers ....... 5 minutes ...................... 63 3,654 741 railroads ................. 50 updated records ....... 10 minutes .................... 8 608 15 railroads ................... 6 annotations ................ 15 minutes .................... 2 116 51 railroads ................... 51 reviews ..................... 3 .................................... 153 11,628 240.205—Data to EAP counselor .......................... 240.209/213—Written tests .................................... 741 railroads ................. 53,000 candidates ......... 5 minutes ...................... 1 minute ........................ 15 294 1,725 22,344 240.211/213—Performance test ............................ 53,000 candidates ......... 1 minute ........................ 294 22,344 240.215—Retaining info. supporting determination 240.303—Annual operational monitoring observation. 240.303—Annual operating rules compliance test 741 railroads ................. 53,000 candidates ......... 5 minutes ...................... 1 minute ........................ 1,472 883 111,872 67,108 1 minute ........................ 883 67,108 240.307(b)(4)—RR hearings/hearing records (See footnote 36). 741 railroads ................. 177 records ................... 17,667 testing record retention. 17,667 testing record retention. 17,667 records .............. 53,000 testing record retention. 53,000 testing record retention. 690 hearings/records .... 4 hours .......................... 2,760 209,760 Total ................................................................ 741 railroads ................. 224,566 responses ....... N/A ................................ 23,964 2,146,751 Total annual responses Recordkeeping 53,000 candidates ......... All estimates include the time for reviewing instructions; searching existing data sources; gathering or maintaining the needed data; and reviewing the information. For information or a copy of the paperwork package submitted to OMB, contact Ms. Hodan Wells, Information Collection Clearance Officer, Office of Railroad Safety, Federal Railroad Administration, at 202–493–0440. Organizations and individuals desiring to submit comments on the collection of information requirements should direct them to Ms. Hodan Wells via email at Hodan.Wells@dot.gov. OMB must make a decision concerning the collection of information requirements contained in this 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. FRA is not authorized to impose a penalty on persons for violating information collection requirements that do not display a current OMB control number, if required. The current OMB control number for part 240 is 2130– 0533. VerDate Sep<11>2014 18:18 Dec 14, 2020 Jkt 253001 D. Federalism Implications Executive Order 13132, ‘‘Federalism,’’ 38 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 38 64 PO 00000 FR 43255, Aug. 10, 1999. Frm 00017 Fmt 4701 Sfmt 4700 officials in the process of developing the regulation. FRA has analyzed this final rule under the principles and criteria contained in Executive Order 13132. FRA has determined this final rule will 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 final 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 final 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), E:\FR\FM\15DER2.SGM 15DER2 81306 Federal Register / Vol. 85, No. 241 / Tuesday, December 15, 2020 / Rules and Regulations 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 final rule in accordance with the principles and criteria contained in Executive Order 13132. As explained above, FRA has determined that this final 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 final rule is not required. E. International Trade Impact Assessment The Trade Agreements 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 final 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 final rule consistent with the National Environmental Policy Act 39 (NEPA), the Council of Environmental Quality’s NEPA implementing regulations at 40 CFR parts 1500–1508, and FRA’s NEPA implementing regulations at 23 CFR part 771 and determined that it is categorically excluded from environmental review and therefore does not require the preparation of an environmental assessment (EA) or environmental impact statement (EIS). Categorical exclusions (CEs) are actions identified in an agency’s NEPA implementing regulations that do not normally have a significant impact on the environment and therefore do not require either an EA or EIS. 40 CFR 1508.4. Specifically, FRA has determined that this final rule is categorically excluded from detailed environmental review pursuant to 23 CFR 771.116(c)(15), ‘‘[p]romulgation of rules, the issuance of policy statements, the waiver or modification of existing regulatory requirements, or discretionary approvals that do not 39 42 U.S.C. 4321 et seq. VerDate Sep<11>2014 18:18 Dec 14, 2020 Jkt 253001 result in significantly increased emissions of air or water pollutants or noise.’’ The purpose of this rulemaking is to make FRA’s regulation governing the qualification and certification of locomotive engineers consistent with its regulation for the qualification and certification of conductors. This rule does not directly or indirectly impact any environmental resources and will not result in significantly increased emissions of air or water pollutants or noise. In analyzing the applicability of a CE, FRA must also consider whether unusual circumstances are present that would warrant a more detailed environmental review.40 FRA has concluded that no such unusual circumstances exist with respect to this regulation and the final rule meets the requirements for categorical exclusion under 23 CFR 771.116(c)(15). Pursuant to Section 106 of the National Historic Preservation Act and its implementing regulations, FRA has determined this undertaking has no potential to affect historic properties.41 FRA has also determined that this rulemaking does not approve a project resulting in a use of a resource protected by Section 4(f).42 G. Executive Order 12898 (Environmental Justice) Executive Order 12898, Federal Actions to Address Environmental Justice in Minority Populations and Low-Income Populations, and DOT Order 5610.2(a) 43 require DOT agencies to achieve environmental justice as part of their mission by identifying and addressing, as appropriate, disproportionately high and adverse human health or environmental effects, including interrelated social and economic effects, of their programs, policies, and activities on minority populations and low-income populations. The DOT Order instructs DOT agencies to address compliance with Executive Order 12898 and requirements within the DOT Order in rulemaking activities, as appropriate. FRA has evaluated this final rule under Executive Order 12898 and the DOT Order and has determined it will not cause disproportionately high and adverse human health and environmental effects on minority populations or low-income populations. 40 23 CFR 771.116(b). 16 U.S.C. 470. 42 See Department of Transportation Act of 1966, as amended (Pub. L. 89–670, 80 Stat. 931); 49 U.S.C. 303. 43 91 FR 27534 (May 10, 2012). 41 See PO 00000 Frm 00018 Fmt 4701 Sfmt 4700 H. Unfunded Mandates Reform Act of 1995 Under section 201 of the Unfunded Mandates Reform Act of 1995,44 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. This final rule will not result in the expenditure, in the aggregate, of $100,000,000 or more (as adjusted annually for inflation) in in any one year, and thus preparation of such a statement is not required. I. Energy Impact Executive Order 13211 requires Federal agencies to prepare a Statement of Energy Effects for any ‘‘significant energy action.’’ 45 FRA has evaluated this final rule under Executive Order 13211 and determined that this rule 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.46 FRA has evaluated this final rule under Executive Order 13783 and determined that this rule will not burden the development or use of domestically produced energy resources. List of Subjects 49 CFR Part 219 Alcohol abuse, Drug abuse, Drug testing, Penalties, Railroad safety, Reporting and recordkeeping requirements, Safety, Transportation. 44 Public Law 104–4, 2 U.S.C. 1531. FR 28355 (May 22, 2001). 46 82 FR 16093 (Mar. 31, 2017). 45 66 E:\FR\FM\15DER2.SGM 15DER2 Federal Register / Vol. 85, No. 241 / Tuesday, December 15, 2020 / Rules and Regulations 49 CFR Part 240 Administrative practice and procedure, Locomotive engineer, Penalties, Railroad employees, Railroad operating procedures, Railroad safety, Reporting and recordkeeping requirements. 4. The authority citation for part 240 is revised to read as follows: Administrative practice and procedure, Conductor, Penalties, Railroad employees, Railroad operating procedures, Railroad safety, Reporting and recordkeeping requirements. The Final Rule For the reasons discussed in the preamble, FRA amends parts 219, 240, and 242 of chapter II, subtitle B of title 49 of the Code of Federal Regulations as follows: PART 219—CONTROL OF ALCOHOL AND DRUG USE 1. The authority citation for part 219 continues to read as follows: ■ Authority: 49 U.S.C. 20103, 20107, 20140, 21301, 21304, 21311; 28 U.S.C. 2461, note; Sec. 412, Div. A, Pub. L. 110–432, 122 Stat. 4889 (49 U.S.C. 20140, note) and 49 CFR 1.89. 2. Section 219.25 is amended by revising paragraph (b) to read as follows: ■ § 219.25 Previous employer drug and alcohol checks. * * * * * (b) When determining whether a person may become or remain certified as a locomotive engineer or a conductor, a railroad must comply with the requirements in § 240.119(e) (for engineers) or § 242.115(e) (for conductors) of this chapter regarding the consideration of Federal alcohol and drug violations that occurred within a period of 60 consecutive months before the review of the person’s records. 3. Section 219.1003 is amended by revising paragraph (j) to read as follows: ■ Referral program conditions. * * * * * (j) Locomotive engineers and conductors. Consistent with §§ 240.119(g) and 242.115(g) of this chapter, for a certified locomotive engineer, certified conductor, or a candidate for engineer or conductor certification, the referral program must state that confidentiality is waived (to the extent the railroad receives from a DAC official notice of the active drug abuse disorder and suspends or revokes the certification, as appropriate) if the employee at any time refuses to VerDate Sep<11>2014 18:18 Dec 14, 2020 PART 240—QUALIFICATION AND CERTIFICATION OF LOCOMOTIVE ENGINEERS ■ 49 CFR Part 242 § 219.1003 cooperate in a recommended course of counseling or treatment. * * * * * Jkt 253001 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. 5. Section 240.1 is amended by revising paragraph (c) to read as follows: ■ § 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 § 240.7, regardless of the fact that the person may have a job classification title other than that of locomotive engineer. ■ 6. Section 240.3 is revised to read as follows: § 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 § 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. ■ 7. 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 PO 00000 Frm 00019 Fmt 4701 Sfmt 4700 81307 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. ■ 8. 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’’; ■ 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’’ 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 a definition for ‘‘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. * * * * * E:\FR\FM\15DER2.SGM 15DER2 81308 Federal Register / Vol. 85, No. 241 / Tuesday, December 15, 2020 / Rules and Regulations 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 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, as used in this part: (1) Means 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 instruct effectively 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 VerDate Sep<11>2014 18:18 Dec 14, 2020 Jkt 253001 need not comply with paragraph (1)(ii) or (iii) of this definition to be an instructor engineer. * * * * * 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. * * * * * 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- PO 00000 Frm 00020 Fmt 4701 Sfmt 4700 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 § 215.5 of this chapter) or a ‘‘passenger car’’ (as defined in § 238.5 of this chapter). * * * * * 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 complete primary treatment successfully or participate in aftercare successfully 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). * * * * * ■ 9. Section 240.11 is amended by revising paragraph (d) to read as follows: § 240.11 Penalties and consequences for noncompliance. * E:\FR\FM\15DER2.SGM * * 15DER2 * * Federal Register / Vol. 85, No. 241 / Tuesday, December 15, 2020 / Rules and Regulations (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. ■ 10. Section 240.103 is revised to read as follows: § 240.103 Approval of design of individual railroad programs by FRA. (a) Each railroad shall submit its written certification program and a description of how its program conforms to the specific requirements of this part in accordance with the procedures contained in appendix B to this part and shall submit this written certification program for approval at least 60 days before commencing operations. The primary method for a railroad’s submission is by email to FRAOPCERTPROG@dot.gov. For those railroads that are unable to send the program by email, the program may be sent to the Associate Administrator for Railroad Safety/Chief Safety Officer, Federal Railroad Administration, 1200 New Jersey Avenue SE, Washington, DC 20590. (b) Each railroad shall: (1) Simultaneous with its filing with FRA, provide 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 to 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 provided a copy to 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 provided a copy. (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 VerDate Sep<11>2014 18:18 Dec 14, 2020 Jkt 253001 of the interest of the commenter in the proceeding; (2) Each comment shall be submitted by email to FRAOPCERTPROG@dot.gov or by mail to the Associate Administrator for Railroad Safety/Chief Safety Officer, FRA, 1200 New Jersey Avenue SE, Washington, DC 20590; and (3) The commenter shall affirm that a copy of the comment was provided to 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 certify initially 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 modify materially 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 PO 00000 Frm 00021 Fmt 4701 Sfmt 4700 81309 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 of this part. (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. ■ 11. 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 restrictions on the service the person may perform. ■ 12. Section 240.107 is amended by revising the section heading to read as follows: § 240.107 Types of service. * * * * * ■ 13. Section 240.111 is amended by revising paragraph (a)(2), revising and republishing paragraph (c), and revising paragraphs (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. (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, E:\FR\FM\15DER2.SGM 15DER2 81310 Federal Register / Vol. 85, No. 241 / Tuesday, December 15, 2020 / Rules and Regulations 1200 New Jersey Avenue SE, Washington, DC 20590 in accordance with the procedures contained in appendix C of this part 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(h)(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 (h) 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. ■ 14. Section 240.113 is revised to read as follows: § 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: VerDate Sep<11>2014 18:18 Dec 14, 2020 Jkt 253001 (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 (2) Take any additional actions, including providing any necessary consent required by State or Federal law to make information concerning his or her service record available to that railroad. (b) [Reserved] ■ 15. 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 which 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 PO 00000 Frm 00022 Fmt 4701 Sfmt 4700 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, condition certification upon participation in any needed aftercare and/or follow-up testing for alcohol or E:\FR\FM\15DER2.SGM 15DER2 Federal Register / Vol. 85, No. 241 / Tuesday, December 15, 2020 / Rules and Regulations drugs deemed necessary by the DAC consistent with the technical standards specified in § 240.119(d)(3). (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. ■ 16. Section 240.117 is amended by: ■ a. Revising paragraphs (a), (c)(1) and (3), (d), 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: § 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. (d) In determining whether a person may be or remain certified as a locomotive engineer, a railroad shall consider as operating rule compliance data only conduct described in paragraphs (e)(1) through (5) of this section that occurred within a period of 36 consecutive months prior to the determination. A review of an existing certification shall be initiated promptly upon the occurrence and documentation of any conduct described in this section. (e) * * * (5) Failure to comply with prohibitions against tampering with VerDate Sep<11>2014 18:18 Dec 14, 2020 Jkt 253001 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 § 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 (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 (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. * * * * * ■ 17. 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 PO 00000 Frm 00023 Fmt 4701 Sfmt 4700 81311 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 § 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 (e)(1). (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 (e) 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. (4) The period of ineligibility described in this section shall be determined in accordance with the following standards: E:\FR\FM\15DER2.SGM 15DER2 81312 Federal Register / Vol. 85, No. 241 / Tuesday, December 15, 2020 / Rules and Regulations (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 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 (e), 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 VerDate Sep<11>2014 18:18 Dec 14, 2020 Jkt 253001 (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 (f) 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. ■ 18. Section 240.121 is amended by revising paragraphs (a), (b), 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 PO 00000 Frm 00024 Fmt 4701 Sfmt 4700 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) In order to be currently certified as a locomotive engineer, except as permitted by paragraph (e) of this section, a person’s vision and hearing shall meet or exceed the standards prescribed in this section and appendix F to this part. It is recommended that each test conducted pursuant to this section should be performed according to any directions supplied by the manufacturer of such test and any American National Standards Institute (ANSI) standards that are applicable. * * * * * (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) (Occupational Safety and Health Administration); (2) As required in § 227.111 of this chapter; or (3) Conducted using an audiometer that meets the specifications of and is maintained and used in accordance with a formal industry standard, such as ANSI S3.6, ‘‘Specifications for Audiometers.’’ * * * * * ■ 19. Section 240.123 is amended by revising the section heading and paragraph (a), revising and republishing paragraph (c), 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 E:\FR\FM\15DER2.SGM 15DER2 Federal Register / Vol. 85, No. 241 / Tuesday, December 15, 2020 / Rules and Regulations requirements of § 243.101 of this chapter and: (1) Is composed of classroom, skill performance, and familiarization with physical characteristics components; (2) Includes both knowledge and performance skill testing; (3) Is conducted under the supervision of a qualified class instructor; (4) Is subdivided into segments or periods of appropriate duration to effectively cover the following subject matter areas: (i) Personal safety; (ii) Railroad operating rules and procedures; (iii) Mechanical condition of equipment; (iv) Train handling procedures (including use of locomotive and train brake systems); (v) Familiarization with physical characteristics including train handling; and (vi) Compliance with Federal railroad safety laws, regulations, and orders; and (5) Is conducted so that the performance skill component shall meet the following conditions: (i) Be under the supervision of a qualified instructor engineer located in the same control compartment whenever possible; (ii) Place the student engineer at the controls of a locomotive for a significant portion of the time; and (iii) Permit the student to experience whatever variety of types of trains are normally operated by the railroad. * * * * * (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 requalify a person on the physical characteristics. ■ 20. Section 240.125 is amended by revising the section heading and paragraph (a), revising and republishing paragraph (c), 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 VerDate Sep<11>2014 18:18 Dec 14, 2020 Jkt 253001 violated the requirements of this section. * * * * * (c) The testing methods selected by the railroad shall be: (1) Designed to examine a person’s knowledge of the railroad’s rules and practices for the safe operation of trains; (2) Objective in nature; (3) Administered in written form; (4) Cover the following subjects: (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 Federal railroad safety laws, regulations, and orders; (5) Sufficient to accurately measure the person’s knowledge of the covered subjects; and (6) Conducted without open reference books or other materials except to the degree the person is being tested on his or her ability to use such reference books or materials. * * * * * (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. ■ 21. Section 240.127 is amended by revising paragraph (a) to read as follows: § 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. * * * * * ■ 22. 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: PO 00000 Frm 00025 Fmt 4701 Sfmt 4700 81313 § 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; * * * * * E:\FR\FM\15DER2.SGM 15DER2 81314 Federal Register / Vol. 85, No. 241 / Tuesday, December 15, 2020 / Rules and Regulations (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 § 240.303 within 30 days of his or her return. ■ 23. 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. ■ 24. 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 * * * * * ■ 25. 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, VerDate Sep<11>2014 18:18 Dec 14, 2020 Jkt 253001 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 (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. ■ 26. 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. * * * * * ■ 27. Section 240.215 is amended by revising and republishing paragraph (e) and revising paragraph (j) to read as follows: § 240.215 Retaining information supporting determinations. * * * * * (e) The information concerning demonstrated performance skills that the railroad shall retain includes: (1) 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 evaluation is based including the observations and evaluation of the designated supervisor of locomotive engineers; (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 (3) The relevant data from the railroad’s records concerning the person’s success or failure on tests the railroad performed to monitor the PO 00000 Frm 00026 Fmt 4701 Sfmt 4700 engineer’s operating performance in accordance with § 240.129. * * * * * (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. ■ 28. Section 240.217 is amended by revising paragraphs (a) and (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 a determination concerning: (1) Eligibility and the eligibility data being relied on was furnished more than 366 days before the date of the railroad’s certification decision; E:\FR\FM\15DER2.SGM 15DER2 Federal Register / Vol. 85, No. 241 / Tuesday, December 15, 2020 / Rules and Regulations (2) 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) 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) 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 § 240.125 at intervals that do not exceed 24 months; or (5) 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. ■ 29. 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 VerDate Sep<11>2014 18:18 Dec 14, 2020 Jkt 253001 comply with a railroad operating rule or practice that constitutes a violation under § 240.117(e)(1) through (5) 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. ■ 30. Section 240.221 is amended by revising paragraphs (d), (e), and (f) to read as follows: § 240.221 persons. Identification of qualified * * * * * (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 PO 00000 Frm 00027 Fmt 4701 Sfmt 4700 81315 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. ■ 31. Section 240.223 is amended by revising and republishing paragraph (a) to read as follows: § 240.223 Criteria for the certificate. (a) As a minimum, each certificate issued in compliance with this part shall: (1) Identify the railroad or parent company that is issuing it; (2) Indicate that the railroad, acting in conformity with this part, has determined that the person to whom it is being issued has been determined to be qualified to operate a locomotive; (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); (4) Identify any conditions or limitations, including the class of service or conditions to ameliorate vision or hearing acuity deficiencies, that restrict the person’s operational authority; (5) Show the effective date of each certification held; (6) Be signed by a supervisor of locomotive engineers or other individual designated in accordance with paragraph (b) of this section; (7) Show the date of the person’s last operational monitoring event as required by §§ 240.129(c) and 240.303(b), unless that information is reflected on supplementary documents which the locomotive engineer has in his or her possession when operating a locomotive; and (8) Be of sufficiently small size to permit being carried in an ordinary pocket wallet. * * * * * ■ 32. 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 E:\FR\FM\15DER2.SGM 15DER2 81316 Federal Register / Vol. 85, No. 241 / Tuesday, December 15, 2020 / Rules and Regulations 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; and (5) The person has demonstrated the necessary performance skills concerning the railroad’s operating rules in accordance with § 240.127. ■ 33. Revise the heading of subpart D to read as follows: Subpart D—Administration of the Certification Program 34. Section 240.301 is revised to read as follows: ■ § 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. ■ 35. Section 240.303 is amended by revising paragraphs (b) and (c) to read as follows: VerDate Sep<11>2014 18:18 Dec 14, 2020 Jkt 253001 § 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 as provided in § 240.129(h), shall be given at least one unannounced, compliance test each calendar year. * * * * * ■ 36. Section 240.305 is amended by revising and republishing paragraph (b) to read as follows: § 240.305 Prohibited conduct. * * * * * (b) Each locomotive engineer who has received a certificate required under this part shall: (1) Have that certificate in his or her possession while on duty as an engineer; and (2) Display that certificate upon the receipt of a request to do so from: (i) A representative of the Federal Railroad Administration; (ii) A State inspector authorized under part 212 of this chapter; (iii) An officer of the issuing railroad; or (iv) An officer of another railroad when operating a locomotive or train in joint operations territory. * * * * * ■ 37. Section 240.307 is amended by: ■ a. Revising paragraph (a); ■ b. Republishing the introductory text to paragraph (b); ■ c. Revising paragraphs (b)(1) and (4); ■ d. Redesignating paragraphs (b)(5) and (6) as paragraphs (b)(6) and (7); ■ e. Adding a new paragraph (b)(5); and ■ f. Revising paragraphs (c)(2), (9), and (11), (g), (i), and (j)(2). The revisions and additions read as follows: § 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) 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 PO 00000 Frm 00028 Fmt 4701 Sfmt 4700 § 240.117(e) or § 240.119(c), 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; * * * * * (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 § 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 E:\FR\FM\15DER2.SGM 15DER2 Federal Register / Vol. 85, No. 241 / Tuesday, December 15, 2020 / Rules and Regulations 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); 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) 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. * * * * * ■ 38. 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) If the conductor is removed from a passenger 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 VerDate Sep<11>2014 18:18 Dec 14, 2020 Jkt 253001 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 (12) of this chapter 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 § 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 (12) of this chapter 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 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 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 PO 00000 Frm 00029 Fmt 4701 Sfmt 4700 81317 of § 242.403(e)(1) through (5) or (12) of this chapter may not obtain a locomotive engineer certificate pursuant to this part 240 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 § 240.307 or § 242.407 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. ■ 39. Section 240.309 is amended by: ■ a. Revising paragraphs (b)(4), (e)(1), (2), (8), and (9), and (f) through (h); and ■ b. Adding paragraph (i). The revisions and addition 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 (b) 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 E:\FR\FM\15DER2.SGM 15DER2 81318 Federal Register / Vol. 85, No. 241 / Tuesday, December 15, 2020 / Rules and Regulations 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 § 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. VerDate Sep<11>2014 18:18 Dec 14, 2020 Jkt 253001 (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. ■ 40. 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 part 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. (c) The Operating Crew Review Board shall be composed of employees of the Federal Railroad Administration selected by the Administrator. ■ 41. Section 240.403 is amended by: ■ a. Revising and republishing paragraph (b); ■ b. Revising paragraphs (c) and (d); and ■ c. Removing paragraph (e). The revisions and addition read as follows: § 240.403 Petition requirements. * * * * * (b) Each petition shall: (1) Be in writing; (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; (3) Contain all available information that the person thinks supports the person’s belief that the railroad acted improperly, including: (i) The petitioner’s full name; (ii) The petitioner’s current mailing address; PO 00000 Frm 00030 Fmt 4701 Sfmt 4700 (iii) The petitioner’s daytime telephone number; (iv) The petitioner’s email address (if available); (v) The name and address of the railroad; and (vi) The facts that the petitioner believes constitute the improper action by the railroad, specifying the locations, dates, and identities of all persons who were present or involved in the railroad’s actions (to the degree known by the petitioner); (4) Explain the nature of the remedial action sought; (5) Be supplemented by a copy of all written documents in the petitioner’s possession or reasonably available to the petitioner that document that railroad’s decision; (6) Be filed in a timely manner; and (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 that the request for extension is filed before the expiration of the period provided in this paragraph (c); or (2) Provided that the failure to file timely 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. ■ 42. 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 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 E:\FR\FM\15DER2.SGM 15DER2 Federal Register / Vol. 85, No. 241 / Tuesday, December 15, 2020 / Rules and Regulations 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) 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) When considering procedural issues, the Board will determine whether the petitioner suffered substantial harm that was caused by 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: VerDate Sep<11>2014 18:18 Dec 14, 2020 Jkt 253001 (1) That procedural error occurred; and (2) The procedural error caused substantial harm. (j) 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 part (i.e., based on an incorrect determination that the person failed to meet the certification requirements of this part) 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. ■ 43. Section 240.407 is amended by revising paragraphs (a) and (c) and revising and republishing paragraph (d) 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; (2) The specific factual issues, industry rules, regulations, or laws that the requesting party alleges need to be examined in connection with the certification decision in question; and (3) The signature of the requesting party or the requesting party’s representative, if any. * * * * * ■ 44. 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 PO 00000 Frm 00031 Fmt 4701 Sfmt 4700 81319 presiding officer, who can be any person 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. * * * * * ■ 45. Section 240.411 is amended by revising paragraphs (a) and (f) to read as follows: § 240.411 Appeals. (a) Any party aggrieved by the presiding officer’s decision may file an appeal in the presiding officer’s docket. The appeal must be filed within 35 days of issuance of the decision. 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 § 240.403(d) must be filed in the Board’s docket within 35 days of issuance of the decision. A copy of the appeal shall be served on each party. The Administrator may affirm or vacate the Board’s E:\FR\FM\15DER2.SGM 15DER2 81320 Federal Register / Vol. 85, No. 241 / Tuesday, December 15, 2020 / Rules and Regulations 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. ■ 46. 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, and 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 can be in letter or narrative format. The primary method for a railroad’s submission is by email to FRAOPCERTPROG@dot.gov. For a railroad that is unable to send the program by email, the program shall be sent to the Associate Administrator for Railroad Safety/Chief Safety Officer, Federal Railroad Administration, 1200 New Jersey Avenue SE, Washington, DC 20590. Simultaneous with its filing with FRA, each railroad must provide a copy of its submission to the president of each labor organization that represents the railroad’s employees subject to this part. 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 VerDate Sep<11>2014 18:18 Dec 14, 2020 Jkt 253001 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 merely to 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. § 240.103(b). If a railroad elects not to provide initial locomotive engineer training, the railroad is obligated to state so in its submission. A railroad that makes this election will be limited to recertifying persons initially certified by another railroad. A railroad that makes this election can rescind it by obtaining FRA approval of a modification of its program. § 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 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. § 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 § 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 PO 00000 Frm 00032 Fmt 4701 Sfmt 4700 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 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 E:\FR\FM\15DER2.SGM 15DER2 Federal Register / Vol. 85, No. 241 / Tuesday, December 15, 2020 / Rules and Regulations 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 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 VerDate Sep<11>2014 18:18 Dec 14, 2020 Jkt 253001 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 examine effectively 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 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 to this part) 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 operate a locomotive safely. The railroad must describe in this section how it will ensure that its medical examiner has sufficient information concerning the railroad’s operations to make appropriate conclusions about the ability of a particular individual to operate a train safely. 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 PO 00000 Frm 00033 Fmt 4701 Sfmt 4700 81321 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 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 E:\FR\FM\15DER2.SGM 15DER2 81322 Federal Register / Vol. 85, No. 241 / Tuesday, December 15, 2020 / Rules and Regulations 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 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 VerDate Sep<11>2014 18:18 Dec 14, 2020 Jkt 253001 the rule’s provisions described in the preceding paragraph. FRA Review The submissions made in conformity with this appendix will be deemed approved within 30 days after the required filing date or the actual filing date whichever is later. No formal approval document will be issued by FRA. 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 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 operate trains safely. 47. Revise appendix C to part 240 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 §§ 240.109, 240.111, and 240.205. 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 PO 00000 Frm 00034 Fmt 4701 Sfmt 4700 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 driver 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 has 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. E:\FR\FM\15DER2.SGM 15DER2 Federal Register / Vol. 85, No. 241 / Tuesday, December 15, 2020 / Rules and Regulations 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 identify more positively 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. VerDate Sep<11>2014 18:18 Dec 14, 2020 Jkt 253001 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. 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 PO 00000 Frm 00035 Fmt 4701 Sfmt 4700 81323 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. 48. 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, 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 contacting NHTSA directly. 49. Add appendix G to part 240 to read as follows: ■ E:\FR\FM\15DER2.SGM 15DER2 81324 Federal Register / Vol. 85, No. 241 / Tuesday, December 15, 2020 / Rules and Regulations PART 242—QUALIFICATION AND CERTIFICATION OF CONDUCTORS 50. The authority citation for part 242 continues to read as follows: ■ Authority: 49 U.S.C. 20103, 20107, 20135, 20138, 20162, 20163, 21301, 21304, 21311; 28 U.S.C. 2461, note; and 49 CFR 1.89. 51. Section 242.7 is amended by revising the definitions of ‘‘Main track’’ and ‘‘Substance abuse disorder’’ to read as follows: ■ § 242.7 Definitions. * * * * * 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; or any form of absolute or manual block system. * * * * * 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 VerDate Sep<11>2014 18:18 Dec 14, 2020 Jkt 253001 § 219.103 of this chapter or has failed to complete primary treatment successfully or participate in aftercare successfully as directed by a DAC or SAP. * * * * * ■ 52. Section 242.103 is amended by revising paragraphs (b), (c)(1) and (2), and (d)(2) and (3) to read as follows: § 242.103 Approval of design of individual railroad programs by FRA. * * * * * (b) A railroad commencing operations after the pertinent date specified in paragraph (a) of this section shall submit its written certification program and request for approval in accordance with the procedures contained in appendix B to this part at least 60 days prior to commencing operations. The primary method for a railroad’s submission is by email to FRAOPCERTPROG@dot.gov. For those railroads that are unable to send the program by email, the program may be sent to the Associate Administrator for Railroad Safety/Chief Safety Officer, Federal Railroad Administration, 1200 New Jersey Avenue SE, Washington, DC 20590. (c) * * * (1) Simultaneous with its filing with FRA, provide a copy of the submission filed pursuant to paragraph (a) or (b) of PO 00000 Frm 00036 Fmt 4701 Sfmt 4700 this section, a resubmission filed pursuant to paragraph (h) of this section, or a material modification filed pursuant to paragraph (i) of this section to 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) or (b) of this section, a resubmission filed pursuant to paragraph (h) of this section, or a material modification filed pursuant to paragraph (i) of this section a statement affirming that the railroad has provided a copy to 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 provided a copy. (d) * * * (2) Each comment shall be submitted by email to FRAOPCERTPROG@dot.gov or by mail to the Associate Administrator for Railroad Safety/Chief Safety Officer, FRA, 1200 New Jersey Avenue SE, Washington, DC 20590; and (3) The commenter shall affirm that a copy of the comment was provided to the railroad. * * * * * ■ 53. Section 242.117 is amended by revising and republishing paragraphs (g), (h), and (i) to read as follows: E:\FR\FM\15DER2.SGM 15DER2 ER15DE20.007</GPH> Appendix G to Part 240—Application of Revocable Events Federal Register / Vol. 85, No. 241 / Tuesday, December 15, 2020 / Rules and Regulations § 242.117 Vision and hearing acuity. * * * * * (g) In order to be currently certified as a conductor, except as permitted by paragraph (j) of this section, a person’s vision and hearing shall meet or exceed the standards prescribed in this section and appendix D to this part. It is recommended that each test conducted pursuant to this section should be performed according to any directions supplied by the manufacturer of such test and any American National Standards Institute (ANSI) standards that are applicable. (h) Except as provided in paragraph (j) of this section, each person shall have visual acuity that meets or exceeds the following thresholds: (1) For distant viewing, either: (i) Distant visual acuity of at least 20/ 40 (Snellen) in each eye without corrective lenses; or (ii) Distant visual acuity separately corrected to at least 20/40 (Snellen) with corrective lenses and distant binocular acuity of at least 20/40 (Snellen) in both eyes with or without corrective lenses; (2) A field of vision of at least 70 degrees in the horizontal meridian in each eye; and (3) The ability to recognize and distinguish between the colors of railroad signals as demonstrated by successfully completing one of the tests in appendix D to this part. (i) Except as provided in paragraph (j) 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) (Occupational Safety and Health Administration); (2) As required in § 227.111 of this chapter; or (3) Conducted using an audiometer that meets the specifications of and is maintained and used in accordance with a formal industry standard, such as ANSI S3.6, ‘‘Specifications for Audiometers.’’ * * * * * ■ 54. Section 242.213 is amended by revising and republishing paragraph (e) to read as follows: § 242.213 Multiple certifications. * * * * * (e) If the conductor is removed from a passenger train for a medical, police VerDate Sep<11>2014 18:18 Dec 14, 2020 Jkt 253001 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. * * * * * ■ 55. Section 242.403 is amended by revising and republishing paragraph (d) to read as follows: § 242.403 Criteria for revoking certification. * * * * * (d) In determining whether a person may be or remain certified as a conductor, a railroad shall consider as operating rule compliance data only conduct described in paragraphs (e)(1) through (11) of this section that occurred within a period of 36 consecutive months prior to the determination. A review of an existing certification shall be initiated promptly upon the occurrence and documentation of any conduct described in this section. * * * * * ■ 56. Section 242.503 is amended by revising and republishing paragraph (c) to read as follows: § 242.503 Petition requirements. * * * * * (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 § 242.407 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 that the request for extension is filed before the expiration of the period provided in this paragraph (c); or (2) Provided that the failure to file timely was the result of excusable neglect. * * * * * ■ 57. Section 242.505 is amended by revising paragraphs (h), (i) introductory text, (j), and (k) to read as follows: § 242.505 Processing certification review petitions. * * * * * (h) When considering factual issues, the Board will determine whether there PO 00000 Frm 00037 Fmt 4701 Sfmt 4700 81325 is substantial evidence to support the railroad’s decision, and a negative finding is grounds for granting the petition. (i) When considering procedural issues, the Board will determine whether the petitioner suffered substantial harm that was caused by 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: * * * * * (j) 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 part (i.e., based on an incorrect determination that the person failed to meet the certification requirements of this part) 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. * * * * * ■ 58. Section 242.511 is amended by revising paragraphs (a) and (f) to read as follows: § 242.511 Appeals. (a) Any party aggrieved by the presiding officer’s decision may file an appeal in the presiding officer’s docket. The appeal must be filed within 35 days of issuance of the decision. 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 § 242.503(d) must be filed in the Board’s docket within 35 days of issuance of the decision. 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. ■ 59. Revise appendix E to part 242 to read as follows: E:\FR\FM\15DER2.SGM 15DER2 81326 Federal Register / Vol. 85, No. 241 / Tuesday, December 15, 2020 / Rules and Regulations Appendix E to Part 242—Application of Revocable Events Issued in Washington, DC. Quintin C. Kendall, Deputy Administrator. [FR Doc. 2020–27209 Filed 12–14–20; 8:45 am] VerDate Sep<11>2014 18:18 Dec 14, 2020 Jkt 253001 PO 00000 Frm 00038 Fmt 4701 Sfmt 9990 E:\FR\FM\15DER2.SGM 15DER2 ER15DE20.008</GPH> BILLING CODE 4910–06–P

Agencies

[Federal Register Volume 85, Number 241 (Tuesday, December 15, 2020)]
[Rules and Regulations]
[Pages 81290-81326]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-27209]



[[Page 81289]]

Vol. 85

Tuesday,

No. 241

December 15, 2020

Part II





Department of Transportation





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Federal Railroad Administration





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49 CFR Parts 219, 240 and 242





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

Federal Register / Vol. 85, No. 241 / Tuesday, December 15, 2020 / 
Rules and Regulations

[[Page 81290]]


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DEPARTMENT OF TRANSPORTATION

Federal Railroad Administration

49 CFR Parts 219, 240 and 242

[Docket No. FRA-2018-0053, Notice No. 2]
RIN 2130-AC40


Qualification and Certification of Locomotive Engineers; 
Miscellaneous Revisions

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

ACTION: Final rule; technical amendment.

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SUMMARY: FRA is revising 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 
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. To ensure consistency 
throughout its regulations, FRA is also making conforming amendments to 
its regulations governing the control of alcohol and drug use, and the 
qualification and certification of conductors. The changes would reduce 
regulatory burdens on the railroad industry while maintaining the 
existing level of safety.

DATES: This regulation is effective January 14, 2021.

ADDRESSES: For access to the docket to read background documents or 
comments received, go to https://www.regulations.gov at any time.

FOR FURTHER INFORMATION CONTACT: Christian Holt, Staff Director-
Operating Practices Division, U.S. Department of Transportation, 
Federal Railroad Administration, 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, 1200 New Jersey Avenue SE, Washington, DC 
20590 (telephone: 202-493-6038).

SUPPLEMENTARY INFORMATION: 

Table of Contents for Supplementary Information

I. Executive Summary
II. Discussion of General Comments and Conclusions
    A. Remote Control Operators and Operations
    B. Defining Main Track
    C. Newly Hired Employee
    D. Preventing Public Disclosure of Confidential Information
    E. General Docketing and Service Concerns
    F. Issues Beyond the Scope of This Rulemaking
    G. Minor Revisions Identified
    H. Rejecting the Addition of Implementation Dates
III. Section-by-Section Analysis
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; 
Regulatory Flexibility Certification
    C. Paperwork Reduction Act
    D. Federalism Implications
    E. International Trade Impact Assessment
    F. Environmental Impact
    G. Executive Order 12898 (Environmental Justice)
    H. Unfunded Mandates Reform Act of 1995
    I. Energy Impact

I. Executive Summary

    On May 9, 2019, FRA issued a notice of proposed rulemaking (NPRM) 
to amend title 49 Code of Federal Regulations (CFR) part 240, 
Qualification and Certification of Locomotive Engineers (part 240).\1\ 
In response to that NPRM, FRA received three written comments.
---------------------------------------------------------------------------

    \1\ 84 FR 20472 (May 9, 2019).
---------------------------------------------------------------------------

    This final rule responds to those comments and amends part 240 by: 
Making part 240 more consistent with the language in 49 CFR part 242, 
Qualification and Certification of Conductors (part 242); creating two 
provisions under which railroads may issue temporary locomotive 
engineer certifications; merging FRA's locomotive engineer and 
conductor review boards; adopting aspects of part 242 for locomotive 
engineer certification; providing labor representatives with the 
ability to provide input on a railroad's part 240 program; and allowing 
for and encouraging the use of electronic document submission of a 
railroad's part 240 program. This final rule also makes technical 
amendments to part 242 to: (1) Make the requirement for calibration of 
audiometers used during hearing tests for conductors the same as the 
requirement in part 240 for locomotive engineers; and (2) conform the 
definition of ``main track'' in part 242 to the definition of ``main 
track'' in part 240.
    Additionally, this final rule makes conforming amendments to title 
49 CFR part 219, Control of Alcohol and Drug Use (part 219) to update 
two cross-references to part 240. Updating these references is 
necessary to ensure consistency between part 219 and part 240, as 
amended.
    The final rule will create new costs. First, each locomotive 
engineer certification manager will need to review the amendments made 
to part 240 to ensure compliance is maintained. Second, amendments to 
part 240 will require each railroad to provide a copy of its part 240 
plan to the president of each labor organization whenever the railroad 
files a submission, resubmission, or makes a material modification to 
its plan. Third, a railroad will need to maintain service records for 
certified locomotive engineers who are not performing service that 
requires locomotive engineer certification. For the 20-year period of 
analysis, the cost of the final rule will be $233,779 (undiscounted), 
$171,764 (PV 7%), and $200,775 (PV 3%).
    The final rule will also create cost savings. First, adding clarity 
in part 240 and conforming language in part 240 to part 242 will reduce 
stakeholder burden related to review and compliance with part 240. 
Second, it will reduce the burden on a railroad when providing another 
railroad with information about a former employee's prior service 
records. Third, it will update the program submission process to allow 
for electronic document submission, which will reduce stakeholder 
paperwork and submission costs related to part 240 program submissions 
and locomotive engineer certification petitions. Fourth, it will remove 
the requirement for railroads to obtain a waiver from the annual 
testing requirements for certified locomotive engineers who are not 
performing service that requires certification. For the 20-year period 
of analysis, the cost savings of the final rule will be $12.3 million 
(undiscounted), $6.9 million (PV 7%), and $9.4 million (PV 3%).
    As shown in Table ES.1, the regulatory evaluation quantifies the 
economic impact of the final rule in terms of cost savings and new 
costs accruing to stakeholders. For the 20-year period of analysis, the 
final rule will result in a net cost savings of $12.0 million 
(undiscounted), $6.8 million (PV 7%), and $9.2 million (PV 3%). This 
final rule is an Executive Order (E.O.) 13771 deregulatory action. 
Details on the estimated costs of this final rule can be found in the 
rule's economic analysis.

[[Page 81291]]



              Table ES.1--Final Rule: New Costs, Cost Savings, and Net Cost Savings; 20-Year Period
----------------------------------------------------------------------------------------------------------------
                                                   Present value                   Present value
      Cost of proposed rule        Undiscounted         7%        Annualized  7%        3%        Annualized  3%
----------------------------------------------------------------------------------------------------------------
New Costs:......................
    Review amendments...........        $118,383        $110,638         $10,443        $114,935          $7,725
    Provide copy of part 240               2,263           1,199             113           1,683           5,657
     plan to labor organization.
    Maintain service records....         113,133          59,927           5,657          84,157           5,657
                                 -------------------------------------------------------------------------------
        Total new costs.........         233,779         171,764          16,213         200,775          19,039
Cost Savings
    Conforming part 240 to part       11,838,340       6,709,732         633,351       9,070,417         609,675
     242........................
    Former employee paperwork...         113,133          59,927           5,657          84,157           5,657
    Petition submission process.         109,620          58,066           5,481          81,543           5,481
    Plan submission process.....           6,800           3,602             340           5,058             340
    Government cost savings.....          92,448          48,970           4,622          60,933           4,096
    Removing waiver requirement.         113,133          59,927           5,657          84,157           5,657
                                 -------------------------------------------------------------------------------
        Total cost savings......      12,273,475       6,940,223         655,108       9,386,266         630,904
----------------------------------------------------------------------------------------------------------------
Net Cost Savings................      12,039,696       6,768,459         638,895       9,185,491         611,866
----------------------------------------------------------------------------------------------------------------

    The final rule will create benefits. First, the final rule will 
amend the part 240 program submission process to require railroads to 
solicit labor input, providing for fully informed decisions by 
railroads. Second, it affords railroads additional time and flexibility 
to comply with some regulatory requirements. Third, it creates certain 
provisions that allow for temporary locomotive engineer certificates. 
Fourth, electronic filing will make information more accessible to 
interested stakeholders and the public. Because FRA lacks sufficient 
information related to these four benefits, this analysis could not 
accurately quantify these benefits. Therefore, the rule's economic 
analysis qualitatively explains benefits.
    The final rule will also reduce Governmental administrative costs, 
including mailing, filing, and storing costs related to amendments to 
part 240, by allowing the Government and stakeholders to transmit and 
store documents electronically.

II. Discussion of General Comments and Conclusions

    FRA received three written comments in response to the NPRM. The 
Association of American Railroads and the American Short Line and 
Regional Railroad Association submitted one set of joint comments 
(collectively referred to as ``Railroad Commenters''). A second set of 
joint comments was submitted by a group of seven labor organizations 
(collectively referred to as ``Labor Commenters'').\2\ The American 
Association of Nurse Practitioners submitted the third comment.
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    \2\ The labor organizations that submitted the Labor Comments 
are: The American Train Dispatchers Association; the Brotherhood of 
Locomotive Engineers and Trainmen; the Brotherhood of Maintenance of 
Way Employes Division; the Brotherhood of Railroad Signalmen; the 
Brotherhood Railway Carmen Division; the International Association 
of Sheet Metal, Air, Rail and Transportation Workers--Transportation 
Division; and the National Conference of Firemen & Oilers District, 
Local 32BJ/SEIU.
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    Some of the specific comments are discussed in the Section-by-
Section Analysis or in the Regulatory Impact and Notices portion of 
this final rule directly with the provisions and statements to which 
they specifically relate. Other comments apply more generally to the 
final rule as a whole, and FRA is discussing them here. Please note 
that the order in which the comments are discussed in this document, 
whether by issue or by commenter, is not intended to reflect the 
significance of the comment raised or the standing of the commenter.

A. Remote Control Operators and Operations

    In the NPRM, FRA proposed several changes to part 240 to clarify 
the locomotive engineer certification requirements for remote control 
operators, including defining ``remote control operator (RCO),'' 
``operator control unit (OCU),'' and ``remote control locomotive 
(RCL).''
    FRA received two comments that opposed FRA's changes related to 
certification of RCOs. Labor Commenters asserted that FRA should not 
address RCO issues in this rulemaking because the proposed changes 
would not be conforming changes to part 242 and would thus be beyond 
the scope of this rulemaking. Labor Commenters also recommended FRA 
address remote control safety and operational issues to a much greater 
degree than proposed. Railroad Commenters asserted that the RCO 
proposed changes are unnecessary, create confusion, and potentially 
create new administrative burdens.
FRA's Response
    FRA was persuaded by the comments that the proposed changes 
regarding RCOs were not strictly conforming changes and that the 
proposed changes had the potential to create unforeseen problems. 
Considering that the regulated community understands how to certify 
RCOs under the current regulatory requirements, and the intent of the 
proposed changes was to ``catch up [with] industry practice'' in 
implementing the existing regulations,\3\ FRA is not adopting the 
proposed clarifying requirements regarding remote control operations in 
this final rule.
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    \3\ 84 FR 20479.
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B. Defining Main Track

    In the NPRM, FRA proposed to revise part 240's definition of ``main 
track'' to be the same as the definition in part 242 by revising the 
existing definition to include a reference to positive train control 
(PTC) as a method of operation that would make a track a ``main 
track.'' Railroad Commenters noted that they opposed making this 
conforming change because PTC is not a method of operation.
FRA's Response
    In considering these comments, FRA recognizes that it did not 
explain the inclusion of PTC as a method of operation in the part 242 
rulemaking notices. Upon further review, FRA agrees with the comment 
that PTC is not a method of operation but rather is a technology that 
helps enforce compliance with a railroad's method(s)

[[Page 81292]]

governing train operations. For this reason, the final rule does not 
make any changes to the definition of main track in part 240.

C. Newly Hired Employee

    In the NPRM, FRA proposed to delete the definition for the term 
``newly hired employee'' because the term is not used in part 240. 
Labor Commenters noted that although the term ``newly hired employee'' 
is not used in part 240, the terms ``newly hired engineer'' and ``newly 
hired conductor'' are used in parts 240 and 242, respectively. Labor 
Commenters explain that these existing terms ``establish the benchmark 
by which a railroad may rely upon qualification determinations made by 
a prior railroad employer of a candidate for certification.'' 
Accordingly, Labor Commenters suggest that instead of deleting the 
existing definition of ``newly hired employee,'' FRA change the term to 
``newly hired'' and integrate it into reporting and accident analysis 
requirements in a future rulemaking.
FRA's Response
    FRA reviewed the regulatory history to determine the origins of the 
definition of ``newly hired employee'' and whether deleting the term as 
proposed would be the correct approach. FRA notes that the term is not 
used or defined in part 242. FRA found that its original 1989 proposal 
for part 240 contained a section titled ``Content and duration of 
student training programs.'' \4\ As proposed in the 1989 NPRM, Sec.  
240.63 contained a requirement for training applicable only to ``newly 
hired employees.'' \5\ However, in the final rule implementing the 1989 
NPRM, FRA explained that a premise of FRA's original proposal was that 
every engineer would be trained, tested, and evaluated using the same 
criteria so that the regulatory requirements would resemble a motor 
vehicle licensing scheme employed by State governments for issuance of 
commercial truck driver licenses.\6\ The final rule implementing this 
initial proposal, however, took a more individualized, railroad-centric 
approach that allowed each railroad to formulate a program for setting 
qualification standards and submitting that program to FRA for 
approval. As such, the final rule did not adopt proposed Sec.  240.63 
or any similar requirement. FRA, however, erroneously adopted the 
unnecessary definition of ``newly hired employee'' into the 1991 final 
rule implementing the original 1989 proposal. Thus, the definition is a 
legacy term left over from the original 1989 NPRM and is not applicable 
to part 240 as it currently exists.
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    \4\ 54 FR 50890 (Dec. 11, 1989) (see proposed 49 CFR 240.63).
    \5\ 54 FR at 50930.
    \6\ 56 FR 28228, 28230 (June 19, 1991).
---------------------------------------------------------------------------

    FRA recognizes that, as Labor Commenters note, existing Sec.  
240.225(a) refers to a ``newly hired engineer'' and existing Sec.  
242.215 refers to a ``newly hired conductor.'' Those undefined terms, 
however, are not equivalent to the term ``newly hired employee'' (e.g., 
a newly hired engineer must be a previously certified locomotive 
engineer, while a newly hired employee could be an individual who has 
no prior railroad experience or has less than one year of railroad 
transportation service). Accordingly, in this final rule, FRA is 
deleting the existing definition of ``newly hired employee'' from part 
240 as proposed.

D. Preventing Public Disclosure of Confidential Information

    In the NPRM, FRA proposed to have parties submit part 240 petitions 
for FRA review of railroads' certification decisions (Sec.  240.403) 
through DOT's public docket website at www.regulations.gov. Labor 
Commenters ask that FRA revise its proposal to include procedures for a 
party to request that certain information filed in these proceedings be 
protected from public disclosure (e.g., personally identifiable 
information and medical records). Labor Commenters note that locomotive 
engineers typically file petitions under Sec.  240.403 on their own 
behalf or petitions are filed by local union representatives, not an 
attorney. Labor Commenters cite to the Federal Rules of Civil Procedure 
as an example of how this information could be protected.
FRA's Response
    Although FRA recognizes the Labor Commenters' concern about the 
importance of protecting personal information from public disclosure, 
FRA notes that the Agency's regulations already include procedures for 
any person submitting documents or information to FRA to request 
confidential treatment of that information.\7\ Accordingly, FRA finds 
it is unnecessary to include any additional procedures in part 240. FRA 
notes that the existing filing procedures have been utilized in both 
parts 240 and 242 for years, and FRA is unaware of any concern raised 
that it failed to provide confidential treatment of information upon 
request in any such filing under part 240 or 242. The changes FRA 
proposed to Sec.  240.403(b)(2) and that are being adopted in this 
final rule are limited to moving the Agency's docket management 
procedures from the old-fashioned, paper dockets kept at FRA's 
headquarters to modern, electronic dockets that are web-based.
---------------------------------------------------------------------------

    \7\ 49 CFR 209.11.
---------------------------------------------------------------------------

    FRA's changes to Sec.  240.403 will not only align it with the 
corresponding procedures in part 242 (Sec.  242.505) but also with the 
administrative hearing filing procedures in both parts 240 and 242 
(Sec. Sec.  240.407 and 242.507). Those filing procedures have been in 
place for many years and FRA believes the procedures are sufficient to 
enable filers to request protection of personally identifiable 
information, including medical records, with minimal burden.
    In proceedings under Sec.  240.403, FRA uses the Federal 
Government's on-line docket system at www.regulations.gov. That docket 
system maintains a privacy and security notice on its website that 
warns users that the material and personally identifiable information 
filed in a document may be publicly disclosed in a docket or on the 
internet. Under the existing procedures of Sec.  240.403 and with FRA's 
amendments to that section, a party must decide for itself if there is 
personally identifiable information or other types of information that 
should be kept confidential, and it is that party's duty to request 
confidentiality. FRA notes that social security numbers or employee 
identification numbers are not generally necessary in any filings under 
Sec.  240.403. Accordingly, FRA encourages parties to redact those 
numbers from any documents submitted to a docket.
    As noted, FRA's procedures for requesting confidential treatment of 
any document or portion of any document are in 49 CFR 209.11. Parties 
should follow the procedures specified in that regulation when 
requesting that FRA treat information or documents submitted as 
confidential information. In general, when requesting confidential 
treatment of information in a filing, a party should include in its 
filing a description of each item redacted or not disclosed and the 
rationale for each non-disclosure (e.g., contains medical information). 
FRA will then contact the party to obtain any information indicated as 
redacted if FRA believes it is relevant to issuance of a decision. 
Questions regarding confidential treatment can be directed to FRA's 
Office of the Chief Counsel.

E. General Docketing and Service Concerns

    Labor Commenters raised several general docketing and service 
concerns.

[[Page 81293]]

For instance, the commenters indicate that some labor representatives 
and members have experienced problems associated with uploading large 
files or multiple files to Regulations.gov. Similarly, the commenters 
state that some labor representatives have experienced difficulty 
emailing large files to parties (including FRA) as an alternative form 
of service from mailing copies of the documents. The labor 
organizations also seek FRA's answer to the question of how their 
members and labor representatives are to determine that service/
delivery of emails is completed.
FRA's Response
    Just like petitions submitted in conductor certification cases, 
petitions to the OCRB for the review of a railroad's decision to deny, 
recertify, or revoke a locomotive engineer's certification may be hand 
delivered or mailed, and may additionally be submitted by fax or 
electronically, consistent with the standards and requirements 
established by the Federal Docket Management System and posted on the 
Regulations.gov website.
    The process for filing a petition to the OCRB requires filing in a 
docket that does not yet exist as the petition itself serves as a 
request to open a new non-rulemaking docket. To open a new non-
rulemaking docket, a filer first electronically submits a document to a 
pre-existing docket called a ``shell docket.'' This is accomplished by 
going to Regulations.gov and entering FRA's shell docket number ``FRA-
2007-0003'' in the search box. This will open a window for the shell 
docket and allow a filer to click on ``Comment Now.'' The filer will 
then enter the required information and upload one or more files. While 
entering something in the comment box is required, FRA recommends that 
filers only use the comments box to list the documents they are filing, 
as the documents they upload will contain their argument(s) and 
supporting documentation. After entering the information and uploading 
any documents, there is an opportunity to preview the information 
submitted and to receive a receipt. Whether submitting a petition by 
mail, electronically, or by other method, FRA recommends that the party 
retain a receipt or other proof of the petition's filing date. Further, 
once a docket is created for a petition, FRA recommends the filing 
party return to Regulations.gov and sign up for email alerts to keep 
updated on any changes or additions that occur in the docket folder. 
Typically, the filing party will know that FRA received the submission 
when FRA sends an acknowledgment letter notifying the party of the 
petition's assigned docket number. If the petition is deficient because 
it does not meet the minimum requirements or arrangements need to be 
made to handle confidential information, FRA will contact the filing 
party and provide further instructions before issuing an acknowledgment 
letter with the docket number.
    Labor Commenters expressed concern that some labor representatives 
and members have experienced problems uploading large files or multiple 
files to Regulations.gov. FRA is aware that Regulations.gov has imposed 
a size limit on uploaded files. Regulations.gov has a ``help'' tab, and 
the user can choose ``FAQs'' in the drop-down menu. One of the FAQs 
asks ``how many files can I upload to the comment form'' and the answer 
provided is ``up to 20 files, but each file cannot exceed 10MB.'' The 
answer also clarifies that valid file types include: .bmp, .docx, .gif, 
.jpeg, .jpg, .pdf, .png, .pptx, .rtf, .sgml, .tif, .tiff, .txt, .wpd, 
.xlsx, and .xml. Parties have several options for overcoming this size 
limitation. For example, in some cases it is possible for a filer to 
split the files and then upload them onto Regulations.gov. Another 
option would be to file as many documents as possible through uploading 
at FRA's shell docket on Regulations.gov, and leave a comment in the 
comment box describing the large files that cannot be uploaded and how 
the filing party intends to submit those files. For example, a comment 
could be entered stating that a large video file will be provided to 
FRA on a memory storage device sent through the mail, such as a USB 
memory stick. Comments can also request FRA contact the commenter to 
discuss other arrangements, such as emailing the file or providing FRA 
with a way to download the document from a cloud-based file hosting 
service such as Dropbox. Although FRA can currently receive CD-ROM and 
DVD-ROM disks, the readers for these disks are becoming antiquated and 
therefore more difficult for FRA to access reliably. Documents that are 
not in an acceptable format, including files on proprietary software 
that FRA does not license to use, will need conversion to an acceptable 
format or other arrangements will be required that will allow FRA to 
review the files. If a file cannot be placed in a docket or viewed by 
FRA, the file cannot be made part of the administrative record, and 
therefore cannot be considered by FRA in reviewing the petition.
    Similarly, Labor Commenters state that some labor representatives 
have experienced difficulty emailing large files to parties or FRA as 
an alternative form of service from mailing copies of the documents. 
Serving documents under FRA's administrative procedures should be no 
different than serving documents on parties in Federal court 
litigation. That is why the definition of the term ``serve or service'' 
in part 240 states that the term has the same meaning given in Rule 5 
of the Federal Rules of Civil Procedure. Service of documents on 
another party is the responsibility of the party performing service. If 
files are too large to email, the party performing service must make 
arrangements to perform the service by mail or other mutually agreed 
upon method with the party to be served. A party performing service by 
email has a duty to choose an option for service where it receives a 
receipt automatically or it can ask the receiving party to reply that 
receipt was completed satisfactorily. Without proof of completeness, 
service cannot be proven, and is thus presumably incomplete. Any 
questions regarding files, filing, and service should be directed to 
FRA's Office of the Chief Counsel.

F. Issues Beyond the Scope of This Rulemaking

    In the NPRM, FRA explained 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.\8\ In response to the NPRM, FRA received several 
comments which FRA has determined go beyond the scope of this 
rulemaking and are best saved for such a separate, future rulemaking.
---------------------------------------------------------------------------

    \8\ 84 FR at 20473.
---------------------------------------------------------------------------

    The American Association of Nurse Practitioners (AANP) commented 
that the definition of medical examiners should include nurse 
practitioners. AANP commented that nurse practitioners are authorized 
to become certified medical examiners under the Federal Motor Carrier 
Safety Administration's (FMCSA) regulations and the National 
Transportation Safety Board (NTSB) includes nurse practitioners in the 
category of medical professionals who should be eligible for training 
and certification as transportation medical examiners for medical 
fitness for duty tests. FRA finds that the issue of whether nurse 
practitioners should be included in the definition of medical examiners 
is best saved for a separate, future rulemaking, as the issue is 
complex, and FRA expects additional commenters would

[[Page 81294]]

have submitted comments if FRA had provided notice of this issue in the 
NPRM. In addition, FRA notes that if a nurse practitioner is a licensed 
or certified technician, the nurse practitioner is permitted to perform 
the vision and hearing acuity examinations required in parts 240 and 
242. However, both parts 240 and 242 require a medical examiner, who is 
defined as a person licensed as a doctor of medicine or doctor of 
osteopathy, to conduct any medical evaluation to determine if the 
locomotive engineer or conductor candidate can operate safely in the 
event the candidate fails the vision or hearing acuity examination. 
Although AANP's comment indicates that nurse practitioners can be 
trained and certified to perform those type of medical evaluations, 
beyond the standard testing, AANP did not address the fact that FMCSA 
has medical examiner certification requirements in its regulations, 
while FRA does not.\9\ Accordingly, this issue is not addressed in this 
final rule.
---------------------------------------------------------------------------

    \9\ 49 CFR 390.103 through 390.115.
---------------------------------------------------------------------------

    Railroad Commenters raised several issues that are beyond the scope 
of this rulemaking and, as such, FRA is not addressing them in this 
final rule. For instance, Railroad Commenters advocate that FRA should 
amend its approach regarding requirements for joint operations 
territory, even though FRA explained in the NPRM that it was not 
proposing any changes to the requirements in Sec.  240.229 because 
doing so would not conform part 240 to part 242.
    Labor Commenters also raised several issues that are best saved for 
a separate, future rulemaking and thus FRA is not addressing them in 
this final rule. For instance, Labor Commenters advocated for amending 
Sec.  240.129, so that instead of requiring that a certified engineer 
be given an operational monitoring observation and unannounced 
compliance test within 30 days of return to service following a period 
of not performing a service that requires engineer certification, the 
certified engineer be provided 30 working trips or tours of duty in 
engineer service following a return before such testing. Labor 
Commenters also suggested that FRA amend its denial and revocation 
procedures, Sec. Sec.  240.219(c) and 240.307(c)(11), to require each 
railroad to provide more specificity in its decision as to the citation 
allegedly violated, and notify the person in writing of the right to 
request FRA review and the applicable time limits. Since these 
proposals go beyond the scope of this rulemaking, which FRA intended 
merely to conform part 240 to part 242 and clarify part 240's existing 
requirements, FRA declines to address them in this final rule. Labor 
Commenters also included a history and analysis of international legal 
issues that go beyond the scope of this rulemaking.

G. Minor Revisions Identified

    With this final rule, FRA is making many minor revisions that were 
proposed in the NPRM to fix grammatical errors, typographical errors, 
reference errors, and superfluous language and citations. These 
revisions 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) and (i); 240.309(b)(4) and 
(e)(1), (2), (8), and (9); and appendix D. FRA identified these 
amendments as proposed in the NPRM and received no comments in 
response. Accordingly, FRA is adopting the proposed revisions without 
further discussion in this final rule.

H. Rejecting the Addition of Implementation Dates

    In the NPRM, FRA raised the issue of whether the final rule should 
include any implementation dates beyond the final rule's effective 
date. For example, FRA asked for comments considering whether the NPRM 
adequately addressed the time necessary for each railroad to 
incorporate into its part 240 program the changes required in this 
rulemaking. Labor Commenters suggested that FRA use a two-tiered 
implementation approach that would provide Class I, intercity 
passenger, and commuter railroads with six months from the date of 
publication to amend part 240 programs and provide all other railroads 
subject to part 240 one year. Railroad Commenters did not comment on 
this issue. After considering the comments and the revisions to part 
240 being adopted in this final rule, FRA has concluded that the 
revisions will not, by themselves, require material modifications to a 
railroad's part 240 certification program. Thus, no railroad will be 
obligated to file its complete part 240 program with FRA after only 
making any necessary modifications resulting from this final rule. 
Further, as the Railroad Commenters did not request an implementation 
schedule, and the regulatory revisions will not result in material 
modifications to a railroad's program, it is unnecessary to create an 
implementation schedule.
    Similarly, in the NPRM, FRA proposed amending Sec.  240.403 to 
shorten the time limit for filing a denial of certification petition 
with the OCRB from 180 days to 120 days, and asked whether FRA should 
delay implementation of that shortened time limit. FRA did not receive 
any comments in response to this question. Accordingly, FRA has 
concluded that delaying implementation of that shortened time period is 
not necessary. Consequently, if a railroad's denial decision is on or 
after the effective date of this final rule, any petition in response 
to that denial decision must be filed with FRA within 120 days.

III. Section-by-Section Analysis

    This section responds to public comments and identifies any changes 
made from the provisions as proposed in the NPRM. Provisions that 
received no comment, and are otherwise being finalized as proposed, are 
not discussed again here.\10\
---------------------------------------------------------------------------

    \10\ See 84 FR at 20473-95.
---------------------------------------------------------------------------

Part 219

    While drafting the final rule, FRA identified two cross-references 
in part 219 that required updating to reflect the part 240 amendments. 
As discussed below, the final rule revises these cross-references in 
Sec. Sec.  219.25 and 219.1003 to ensure they conform with part 240, as 
amended. Although the NPRM did not specifically propose these 
revisions, they are both non-substantive in nature and within the scope 
of the rulemaking because they merely conform part 219 with part 240 as 
amended by the final rule.

Section 219.25 Previous Employer Drug and Alcohol Checks

    Paragraph (b) of this section contains a cross-reference to former 
Sec.  240.119(c), which this final rule is redesignating as Sec.  
240.119(e). FRA is therefore revising paragraph (b) to update the 
cross-reference from Sec.  240.119(c) to Sec.  240.119(e). This section 
and the revised cross-reference refer to the requirement for a railroad 
that is considering initially certifying or recertifying a locomotive 
engineer to review the person's records from the previous 60 
consecutive months and consider any Federal alcohol and drug 
violations.

Section 219.1003 Referral Program Conditions

    Paragraph (j) of this section contains a cross-reference to former 
Sec.  240.119(e), which this final rule is redesignating as Sec.  
240.119(g). FRA is therefore revising paragraph (j) to update the 
cross-reference from Sec.  240.119(e) to Sec.  240.119(g). This section 
and the revised cross-reference refer to the

[[Page 81295]]

various referral programs allowed in part 219 and explains when 
confidentiality is waived.

Part 240

Section 240.7 Definitions

    FRA is amending this section by: (1) Adding definitions for 
``conductor,'' ``drug and alcohol counselor,'' ``ineligible or 
ineligibility,'' ``on-the-job training (OJT),'' ``physical 
characteristics,'' ``plant railroad,'' ``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,'' 
``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 amendments 
will make the definitions in part 240 consistent with the definitions 
in part 242 and, rather than republish the analysis provided for those 
definitions, FRA references the analysis as proposed in the NPRM.\11\
---------------------------------------------------------------------------

    \11\ See 84 FR at 20474-78.
---------------------------------------------------------------------------

Instructor Engineer
    In the NPRM, FRA proposed to revise the definition of ``instructor 
engineer'' to make it as similar as possible to the definition of 
``qualified instructor'' in part 242, by: (1) Establishing a role for 
employee representative participation; and (2) establishing methods for 
identifying instructors through railroad and employee representative 
coordination, as well as by the railroad unilaterally.
    Although FRA received comments on the proposed changes to this 
definition, FRA is adopting the revised definition as proposed. Thus, 
the analysis provided in the NPRM is applicable. The following is a 
summary of the comments received and FRA's responses.
    Railroad Commenters reiterated concerns raised by at least one 
Railroad Safety Advisory Committee (RSAC) Conductor Certification 
Working Group (RSAC Working Group or Working Group) \12\ member that 
FRA addressed in the NPRM.\13\ Railroad Commenters objected to the 
proposed requirement that, for each railroad that has designated 
employee representation, if the railroad seeks to designate a person as 
an instructor engineer when the designated employee representative 
declines to provide concurrence, the railroad would be required to 
select only a person who has a minimum of 12 months of service working 
in the class of service for which the person is designated to instruct. 
FRA disagrees with the Railroad Commenters that FRA did not provide a 
basis for justifying this proposed requirement. FRA's view is based on 
the understanding that 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 OJT training.\14\ FRA views instructor 
engineers as mentors that would not be directly testing or making 
certification decisions. When the conductor certification rule was 
first proposed in 2010, FRA explained that the purpose of the 
additional requirements was to allow employees, through their 
representatives, to have input in the selection of instructors who 
might be viewed as inexperienced. FRA's position was that if the 
railroad selected a person to instruct, but the person had less than 12 
months of service working in the class of service, it is fair to 
presume the person might lack the experience necessary to instruct.\15\ 
The conductor rule does not absolutely prohibit the railroad from 
selecting a person that lacks the 12-month experience requirement, but 
instead requires the railroad to work with the employees' 
representative(s) in the instructor selection process, unless the 
employees lack such representation. Considering the mentor 
relationship, if a location lacks experienced engineers and the 
railroad's employees are represented, the designated employee 
representative would have an interest in selecting those engineers who 
would be in the best position to help fellow colleagues get the proper 
instruction needed to obtain or retain certification.
---------------------------------------------------------------------------

    \12\ 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 and labor 
organizations. For more information regarding the RSAC process and 
the conduct of the Working Group, see 76 FR 69802, 69802-69804 (Nov. 
9, 2011).
    \13\ 84 FR 20472, 20476 (May 9, 2019).
    \14\ 84 FR at 20475.
    \15\ 75 FR at 69170 (Nov. 10, 2010).
---------------------------------------------------------------------------

    Also in response to AAR's and ASLRRA's comment, FRA believes it is 
helpful to recall that, in the conductor rule, the minimum of 12-
months' service working as a train service employee may be at any time 
during that person's career.\16\ Likewise, in the engineer context, FRA 
reads the 12-month experience requirement in the class of service for 
which the person will instruct to pertain also to the collective number 
of months over the person's career, and not just the previous 12 
months.
---------------------------------------------------------------------------

    \16\ 76 FR at 69806 (Nov. 9, 2011).
---------------------------------------------------------------------------

Medical Examiner
    FRA is revising the definition of ``medical examiner'' to be the 
same as the definition of ``medical examiner'' in part 242 by removing 
the portion of the definition stating that the medical examiner owes 
``a duty to the railroad.'' Instead, consistent with part 242, FRA is 
amending the definition to state ``the medical examiner owes a duty to 
make an honest and fully informed evaluation of the condition of an 
employee.''
Newly Hired Employee
    As discussed in Section II.C, above, FRA is deleting the definition 
of ``newly hired employee'' because that term is not used (or 
necessary) in part 240.
Qualified
    As proposed in the NPRM, FRA is revising the definition of 
``qualified'' to be the same as the definition of ``qualified'' in part 
242. Under the proposed definition, a qualified person is a person who 
has successfully completed all instruction, training, and examination 
programs required by the employer and the applicable parts of this 
chapter, and therefore may reasonably be expected to be proficient on 
all safety-related tasks the person is assigned to perform. The 
existing definition in part 240 focuses on an individual's knowledge, 
whereas the definition as proposed in the NPRM and adopted in this 
final rule focuses not only on the individual's knowledge through 
completion of training plan requirements 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 perform the task proficiently. 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 only classroom training 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 perform the 
tasks on the brake test proficiently. Without both instruction and 
hands-on practice,

[[Page 81296]]

the person could not be expected to be qualified to perform brake 
tests.
    Labor Commenters questioned whether FRA's proposed definition of 
``qualified'' would have a negative impact by lowering the standard for 
what it means to be qualified. Labor Commenters suggested that FRA's 
proposed definition is subject to multiple interpretations, including 
one that would mean the railroad is no longer required to provide 
instruction, training, and examination so that the candidate for 
qualification has a foundation from which qualification--actual 
knowledge and proficiency--can be demonstrated. Labor Commenters 
proposed an alternative definition for ``qualified,'' asking that FRA 
consider it to mean ``a person who has demonstrated actual knowledge 
and proficiency of the subject on which the person is qualified by 
successfully completing all instruction, training and examination 
programs required by the railroad and the applicable parts of this 
chapter.''
    FRA concluded that Labor Commenters' alternative definition of 
``qualified'' would stray from this rule's purpose of conforming part 
240 with part 242, and FRA does not view the conforming definition as 
lowering the standard of the meaning of ``qualification.'' Although 
FRA's change to the definition focuses on proficiency in safety-related 
tasks over knowledge, the analysis in determining whether someone is 
qualified is the same. If the person passes all required training and 
examination, then the presumption is the person has the knowledge 
necessary to complete any necessary tasks proficiently. If a person is 
asked to perform a task that exceeds the training provided, the person 
could not be expected to have the required knowledge and the person 
would therefore not be qualified to perform that task safely. For these 
reasons, FRA is adopting the proposed definition without change from 
the NPRM.

Section 240.103 Approval of Design of Individual Railroad Programs by 
FRA

    FRA is making three changes 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. First, FRA is revising paragraph (a) to clarify that the 
primary method for a railroad to submit its certification program is by 
email to [email protected]. Previously, FRA would wait until a 
railroad contacted FRA and asked to submit its program electronically. 
It is more efficient to publish this FRA email address and encourage 
electronic filing. FRA expects that there are few railroads that do not 
have sufficient internet access to submit a certification program by 
email, but is leaving the mailing option open for those smaller 
entities whose internet service may still be unreliable. The revisions 
were not proposed in the NPRM, but they address an issue of agency 
policy or procedure previously addressed in appendix B to part 240. FRA 
expects that by moving this information from an appendix to this 
section, railroads will find the information more easily and will spend 
less time figuring out the submission process.
    Second, FRA is revising paragraphs (b) and (c) of this section to 
require railroads to provide a copy of their program submissions, 
resubmissions, and material modifications to the president of each 
labor organization that represents the railroad's certified locomotive 
engineers. The revision will also 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 final rule.
    The final revisions to paragraphs (b) and (c) of this section are 
different from the proposed rule. For instance, in the NPRM, FRA used 
the term ``serve or service,'' which is defined in this part and refers 
to the legal issue of service of process during adjudication. Because 
the exchange of certification programs and comments to those 
certification programs are not adjudicatory matters, FRA is revising 
these requirements to reflect that each railroad and labor organization 
president must provide, not serve, its documents to each other, and 
affirm to FRA that it has done so, without the need to abide by strict 
legal rules for service of process. FRA is not specifying the methods 
that a railroad or president of a labor organization must use to 
provide documents to the other party, as FRA expects each party to use 
those methods it uses in the normal course of business with each other. 
Also, FRA is adding an email address to make it easier for parties to 
submit programs or comments to programs. Further, although the NPRM 
proposed that each railroad affirm that it provided a copy of its 
program to the president of each labor organization that represents the 
railroad's employees subject to this part, the labor organization 
presidents would have been required to certify that they sent their 
comments to the railroad; thus, for consistency, FRA is requiring that 
both parties must affirm that they provided the other party with a copy 
of the documents they submit to FRA under this requirement. Finally, 
FRA is making technical amendments to Sec.  242.103 so that the 
locomotive engineer and conductor certification rules use the same 
language.
    Third, in paragraph (h) (which revises former paragraph (e) and is 
the same as paragraph (i) of Sec.  242.103), FRA is requiring a 
railroad intending to make material modifications to 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 prior requirement to do so 30 days in advance). This revision 
will allow time for the labor organizations to comment on the proposed 
modification(s) under paragraph (c) of this section and for FRA to 
consider any comments from the relevant labor organizations.
    In response to the proposed revisions to this section, Labor 
Commenters requested that FRA amend the final rule to clarify that a 
representative labor organization has the right to comment on the 
entirety of a railroad's program--even when a particular filing is a 
resubmission or a material modification--and that such comments will be 
considered by FRA. FRA is declining to amend the requirement to make 
this clarification as doing so would not conform the requirement to the 
parallel requirement in part 242. However, despite the lack of an 
explicit option to comment on the entirety of a railroad's program, FRA 
invites any person, including any labor organization, to inform FRA's 
Chief Safety Officer of any safety concern regarding a railroad's 
certification program at any time.

Section 240.107 Types of Service

    The only change to this section is to the heading. The section 
heading is changed from ``Criteria for designation of classes of 
service,'' to the same section heading in its part 242 counterpart.
    FRA is not making several other changes that were proposed to this 
section because, as explained in the discussion of specific comments 
and conclusions, above, FRA is not adding additional types of service 
that identify remote control operators. See Section II.A.

[[Page 81297]]

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

    FRA is amending several requirements in Sec.  240.111 to clarify 
that, for purposes of motor vehicle driving record checks and the 
reporting of certain motor vehicle incidents, the requirements apply 
equally to a person with a foreign-issued driver license as to a person 
with a U.S.-issued driver license. The final rule differs from the 
proposed version as the proposal contained an incorrect reference in 
Sec.  240.111(h) to Sec.  240.115(b)(1) and (2) when the reference 
should have read Sec.  240.115(h)(1) and (2). No comments were received 
recommending specific changes to this section and the final rule is 
otherwise identical to the proposed rule; thus, the analysis provided 
in the NPRM is applicable.\17\
---------------------------------------------------------------------------

    \17\ See 84 FR at 20479-80.
---------------------------------------------------------------------------

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 is revising this section in 
its entirety to be consistent with paragraphs (a) through (f), and (n) 
and (o) of Sec.  242.111. The final rule is identical to the proposed 
rule; thus, the analysis provided in the NPRM is applicable.\18\
---------------------------------------------------------------------------

    \18\ See 84 FR at 20480-81.
---------------------------------------------------------------------------

    Labor Commenters requested alternative language to proposed 
paragraphs (c) and (d) of this section. As proposed, paragraphs (c) and 
(d) would provide a 60-day grace period for obtaining motor vehicle 
operator records, if the records were timely requested. The labor 
organizations expressed concern that the proposed language could lead 
to an unintended consequence whereby a railroad could create a 
temporary locomotive engineer workforce, with each person temporarily 
certified for a 60-day period. Although theoretically possible, FRA 
does not share the labor organizations' concerns that the grace period 
provided for obtaining motor vehicle operator records will encourage 
any railroad to create a temporary engineer workforce. The proposed 
amendment, which FRA is adopting in this final rule, will apply to a 
person who has met all the other qualifications for certification but 
is solely missing the motor vehicle records check requirement. The 
proposed and final rule amendments to this section do not revise the 
determinations required as a prerequisite to certification or 
recertification in Sec.  240.203, including the knowledge testing, 
performance skills testing, and vision and hearing acuity evaluation 
requirements. Thus, to take advantage of the flexibility FRA proposed 
and is making final in this rulemaking, each person that a railroad 
would want to certify temporarily must already have fulfilled all the 
qualification requirements, except that the railroad has not yet 
obtained the motor vehicle records to ensure the person did not incur 
any alcohol- or drug-related convictions that might indicate the person 
has an active substance abuse disorder. A railroad that invests the 
resources necessary to certify a person should want to complete the 
process by obtaining the motor vehicle operator records, which would 
allow the railroad to certify the person for up to three years, not 
temporarily certify the person for 60 days. Further, paragraph (e) 
prevents a railroad from perpetually certifying or recertifying the 
same person without obtaining the required motor vehicle driving 
records and conducting an evaluation of those records. Thus, to create 
a temporary certification workforce, a railroad would need to employ an 
available group of people who are qualified for certification except 
that they are each missing motor vehicle operator records. The 
theoretical situation is too remote to consider it a reason not to 
conform the two certification rules in this manner.

Section 240.117 Criteria for Consideration of Operating Rules 
Compliance Data

    The requirements in this section provide 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 revising this section to improve clarity and conform 
the section to the corresponding provisions of the conductor 
certification rule in Sec.  242.403. No comments were received 
recommending specific changes to this section and the final rule is 
identical to the proposed rule other than for an edit to paragraph (d) 
of this section to remove introductory text, including the phrase 
``[e]xcept as provided for in paragraph (i) of this section.'' FRA is 
removing as unnecessary introductory text from corresponding Sec.  
242.403(d) in the conductor certification rule, and FRA removed 
paragraph (i) from this section through a rulemaking that was effective 
February 22, 2010.\19\ For these reasons, the analysis provided in the 
NPRM is applicable.\20\
---------------------------------------------------------------------------

    \19\ 74 FR 68173 (Dec. 23, 2009).
    \20\ See 84 FR at 20481-82.
---------------------------------------------------------------------------

Section 240.121 Criteria for Vision and Hearing Acuity Data

    This section contains the requirements for visual and hearing 
acuity railroads must incorporate into their locomotive engineer 
certification programs. FRA is amending paragraphs (a) and (d) \21\ of 
this section to conform to Sec.  242.117(a) and (i). These revisions 
will update part 240's testing procedures and standards for the hearing 
acuity requirements. No comments were received recommending specific 
changes to this section and the final rule is identical to the proposed 
rule except for the revision to paragraph (d)(3), explained below; 
thus, the analysis provided in the NPRM is applicable.\22\
---------------------------------------------------------------------------

    \21\ In the NPRM, FRA erroneously cited to paragraph (c) instead 
of (d) in the Section-by-Section Analysis, although the regulatory 
text of the proposed rule contained the correct paragraph cite. 84 
FR at 20482, 20509.
    \22\ See 84 FR at 20482.
---------------------------------------------------------------------------

    FRA is changing proposed paragraph (d)(3) to eliminate the 
reference to the American National Standards Institute (ANSI) 2004 
standard for calibration of audiometric devices. Existing paragraph (d) 
of this section references the ANSI 1969 calibration standard for 
audiometric devices (ANSI S3.6-1969, ``Specifications for 
Audiometers''). The companion provision in part 242, however, cites the 
2004 version of ANSI's calibration standard.\23\ Accordingly, in the 
NPRM, FRA proposed to update the ANSI standard referenced in paragraph 
(d) to the 2004 standard to conform to part 242.
---------------------------------------------------------------------------

    \23\ See the discussion of 49 CFR 242.117(i)(3) in the Section-
by-Section Analysis, below.
---------------------------------------------------------------------------

    However, ANSI revised the standard in 2018 and FRA expects ANSI 
will continue to revise the standard in the future. The audiometers 
covered by the ANSI standard are devices designed for use in 
determining the hearing threshold level of an individual in comparison 
with a selected hearing threshold level for reference. The ANSI 
standard provides specifications and tolerances for pure tone, speech, 
and masking signals and describes the minimum test capabilities of 
different types of audiometers.
    To make clear that audiometers are not subject to a single industry 
standard, versions of which may change with time, FRA is amending this 
paragraph to remove the specific citation to the 1969 version of ANSI 
S3.6 and not adopt the

[[Page 81298]]

proposed specific citation to the 2004 ANSI standard. Instead, this 
paragraph now expressly provides for use of a formal industry standard, 
such as ANSI S3.6. This change will allow a licensed or certified 
audiologist, or a technician responsible to that licensed or certified 
audiologist, the flexibility to use an audiometer calibrated to a 
formal industry standard, whether the standard is an older version of 
ANSI S3.6, a newer version of the standard, or a similar industry 
standard issued by an organization other than ANSI.
    Separately, FRA is amending paragraph (b) to remove an unnecessary 
heading, ``[f]itness requirement.'' FRA discovered the technical error 
in preparing the final rule, and this correction makes the locomotive 
engineer rule consistent with an identical change to the conductor 
rule.

Section 240.123 Training

    This section 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 is revising this section's 
heading to be the same as that for Sec.  242.119 (Training). FRA also 
is amending this section's text to be similar to Sec.  242.119's, 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.
    Railroad Commenters objected to the proposed language amending 
Sec.  240.123(c), providing that initial training of an untrained 
person must comply with Sec.  243.101 of this chapter. Railroad 
Commenters stated that such a revision would require a railroad to 
resubmit its part 243 program to FRA even though FRA did not identify 
any specific deficiencies with existing railroad training plans for 
locomotive engineers. FRA addressed this issue in the NPRM and the 
analysis in the proposed rule provides additional background not 
repeated in the discussion below.\24\
---------------------------------------------------------------------------

    \24\ 84 FR at 20482-83.
---------------------------------------------------------------------------

    In summary, FRA is adding the cross-reference to part 243 to 
conform the rule to the parallel part 242 requirement and believes the 
cross-reference is helpful as a reminder of the requirement in part 
243. Because there is an existing requirement, FRA is not creating a 
new burden. Locomotive engineer and conductor training programs have 
been, and continue to be, sufficiently robust to meet the part 243 
standards. These certification training programs are already required 
to be submitted to FRA for review and approval under parts 240 and 242, 
and thus railroads are exempt from submitting them under part 243, 
unless a 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).
    FRA expects each railroad to evaluate the OJT components in its 
part 240 training program and supplement its certification program only 
if necessary. The deadlines for implementing the modifications are 
governed by part 243. Please note that FRA amended the implementation 
deadlines for compliance with Sec.  243.101; consequently, railroads 
and other employers that employ locomotive engineers were required to 
modify locomotive engineer OJT programs beginning January 1, 2020, 
depending on the size of the railroad operation.\25\
---------------------------------------------------------------------------

    \25\ Contractors and Class II and III railroads that are not 
intercity or commuter passenger railroads with 400,000 total 
employee work hours annually or more are required to submit their 
Part 243 programs by May 1, 2021. 85 FR 10 (Jan. 2, 2020).
---------------------------------------------------------------------------

    No additional comments were received recommending specific changes 
to this section and the final rule is identical to the proposed rule; 
thus, the analysis provided in the NPRM is applicable.\26\
---------------------------------------------------------------------------

    \26\ See 84 FR at 20482-83.
---------------------------------------------------------------------------

Section 240.307 Revocation of Certification

    This section provides the procedures a railroad must follow to 
revoke a certified locomotive engineer's certification. FRA is amending 
this section to clarify its intent and make it the same as Sec.  
242.407, which addresses the revocation of conductor certifications. As 
discussed in Section II.F, above, Labor Commenters recommended specific 
changes to paragraph (c)(11) of this section. As noted in Section II.F, 
FRA has determined that those suggestions are beyond the scope of this 
rulemaking. No other comments were received recommending specific 
changes to this section and the final rule is identical to the proposed 
rule; thus, the analysis provided in the NPRM is applicable.\27\
---------------------------------------------------------------------------

    \27\ See 84 FR at 20487-89.
---------------------------------------------------------------------------

Section 240.308 Multiple Certifications

    Proposed paragraph (d) contained an unnecessary heading, 
``[p]assenger railroad operations,'' based on its corresponding 
provision in the conductor certification rule, Sec.  242.213(e). FRA 
discovered the technical error in preparing the final rule and is 
correcting Sec.  242.213(e). Accordingly, FRA is not adopting the 
heading proposed in paragraph (d) of this section for consistency with 
the conductor rule, and is instead making clear in the rule text that 
this paragraph applies to passenger train operations.

Subpart E--Dispute Resolution Procedures

    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. In the NPRM, FRA proposed some changes to the appeals 
process contained in Sec. Sec.  240.401 through 240.411. The comments 
received recommending specific changes to this subpart are addressed in 
section II.A, above, or in the Section-By-Section analysis, below. 
However, the final rule is identical to the proposed rule; thus, the 
analysis provided in the NPRM is applicable.\28\
---------------------------------------------------------------------------

    \28\ See 84 FR at 20490-94.
---------------------------------------------------------------------------

Section 240.401 Review Board Established

    This section 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 is amending this section to delegate initial 
responsibility for adjudicating denial of locomotive engineer 
certification or recertification and revocation disputes to FRA's OCRB. 
Accordingly, the Locomotive Engineer Review Board (LERB), which 
previously had this responsibility, will merge into the OCRB, which 
also has the responsibility for adjudicating denial of conductor 
certification or recertification and revocation disputes.
    Labor Commenters requested that FRA ``provide confirmation that (1) 
the Review Board will be comprised of an odd number of senior FRA staff 
members with pertinent experience, and (2) the number of Review Board 
members will be provided by FRA order.'' Labor Commenters made this 
request while acknowledging FRA's position, as stated in the NPRM, that 
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 are authorized even if 
made

[[Page 81299]]

without notice to the public. See 5 U.S.C. 553(b)(3)(A). Accordingly, 
FRA declines to adopt the Labor Commenters' specific suggestions in 
this final rule. The revisions to Sec.  240.401 make the section the 
same as the corresponding section in part 242 (Sec.  242.501). The 
revisions do not, however, change FRA's right to use any number of FRA 
employees as OCRB members, in coordination with Agency resources and 
priorities.

Section 240.403 Petition Requirements

    This section provides the requirements for obtaining FRA review of 
a railroad's decision to deny certification, deny recertification, or 
revoke an individual's locomotive engineer certification. FRA is 
revising this section to make it the same as the corresponding 
provision in part 242 (Sec.  242.503). The final rule will provide a 
single process for aggrieved parties to submit FRA locomotive engineer 
petitions under part 240 and conductor certification petitions under 
part 242.
    FRA is revising paragraph (b) so that a person filing a petition 
under part 240 will need to file the same information and documentation 
that is required under part 242. The final rule is different than the 
NPRM in that FRA did not propose revisions to paragraph (b)(5) or (6). 
Existing paragraph (b)(5) requires that a petitioner provide a copy of 
all written documents in the petitioner's possession that document the 
railroad's decision that is being challenged. FRA is revising paragraph 
(b)(5) to add that a petitioner is required to provide a copy of all 
written documents that are reasonably available to the petitioner that 
document the railroad's decision. Without a complete record, the OCRB 
may not be able to determine whether a railroad's decision was 
improper. FRA wants petitioners to request a complete copy of the 
documents the railroad used in making its decision and, by revising 
this requirement, FRA is requiring petitioners to request a copy of any 
documents from the investigative hearing or railroad's denial decision 
that were not provided to them voluntarily. However, FRA recognizes 
that a petitioner cannot provide the OCRB with documents that the 
railroad refuses to provide. In that case, when a petitioner requests 
documents from a railroad and is denied those documents, the petitioner 
should explain that situation in the petition and provide the Board 
with any corroborating documents to substantiate that claim. Paragraph 
(b)(6) is the same, existing requirement, but an ``and'' was added to 
the end because it is no longer the last item in the list of paragraph 
(b)'s petition requirements.
    FRA is revising paragraph (c) to require that a petition for review 
of a railroad's revocation or denial decision be filed with FRA within 
120 days of the date the railroad serves the decision on the 
petitioner. This revision will make this provision of part 240 the same 
as the corresponding provision in part 242 (see Sec.  242.503(c)). The 
labor organizations' comment requests that FRA not reduce the time 
limit for petitioning FRA on a railroad's denial of certification or 
recertification from 180 days to 120 days. The labor organizations' 
comment contends that the longer period is appropriate because it is 
often difficult to obtain a complete record. FRA does not agree with 
this comment for several reasons. FRA believes that 120 days is itself 
a significant period for an aggrieved locomotive engineer or locomotive 
engineer candidate to consider whether to request FRA review and submit 
necessary supporting materials. Part 242 has always imposed this 120-
day time limit and FRA has not previously heard that the time limit is 
too short. To the extent a party finds it difficult to obtain the 
decision record from the railroad, FRA offers that the party may file 
its petition with any documents it has and add a description in the 
petition of the missing documents. FRA expects each railroad to submit 
any missing evidence it relied on in making its denial decision, even 
if the railroad chooses not to submit an argument in response to the 
petition. By making FRA aware of missing documents, the OCRB can follow 
up as appropriate. Further, although the regulatory text plainly 
describes the different deadlines for petitioning FRA to review a 
railroad's decision to deny certification or recertification and to 
review a railroad's decision to revoke certification, some locomotive 
engineers and their representatives have claimed the different 
deadlines have confused them into filing a late petition, believing the 
deadline to be within 180 days of a railroad's revocation decision 
instead of the required 120 days. The final rule amendment will 
eliminate any such confusion.

Section 240.405 Processing Certification Review Petitions

    FRA is revising 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). FRA received comments on this 
section, some of which are addressed in the discussion of specific 
comments and conclusions, above, in the section addressing issues 
beyond the scope of this rulemaking.\29\ Two comments and one 
additional revision are addressed below.
---------------------------------------------------------------------------

    \29\ See Section II.F.
---------------------------------------------------------------------------

    FRA received a comment from AAR and ASLRRA objecting to proposed 
Sec.  240.405(d)(2) requiring service of a copy of a railroad's 
response to an OCRB petition on petitioner's representative, if any. 
The AAR and ASLRRA suggest that this revision would establish a new 
burden because the change would require railroads to track down and 
provide service to the person's representative at the railroad's on-
the-property hearing even if that is not the same person who assisted 
the individual in filing an OCRB petition. FRA believes the commenters 
misunderstood the proposal. FRA never intended the proposal to be 
construed as requiring service on a representative that no longer 
appears to be representing the person. FRA's reference to service on 
petitioner's representative, if any, is a reference to any 
representative identified in the petition. FRA is aware that some 
petitioners file a petition without identifying a representative in the 
petition. When that happens, this final rule will only require the 
railroad to serve the petitioner with a copy of the railroad's 
response.
    FRA received a comment from labor organizations objecting to 
proposed Sec.  240.405(l) because, unlike the rule for the LERB, the 
proposal did not include the requirement that every OCRB decision 
contain findings of fact on which the decision is based. In the NPRM, 
FRA explained that removal of the requirement is necessary because 
issuing findings of fact may not be appropriate for, or relevant to, 
some decisions. The revision also conforms to the OCRB's requirement in 
Sec.  242.505(l). FRA notes that the labor organizations' comment 
recommends amending the regulation by providing flexibility to the OCRB 
to exclude findings of fact ``where such findings are not appropriate 
or relevant,'' which also seems to result in the same outcome. For 
these reasons, FRA is issuing the final rule as proposed.
    FRA is revising proposed Sec.  240.405(i) to clarify the OCRB's 
standard of review for procedural issues. The final rule will require 
that when considering procedural issues, the Board will determine 
whether the petitioner suffered substantial harm that was caused by the 
failure to adhere to the dictated procedures for making the railroad's 
decision. The restated standard uses active voice and removes the 
passive voice language that similarly

[[Page 81300]]

explained that the Board will determine whether substantial harm was 
caused the petitioner by the railroad's failure to adhere to the 
dictated procedures. Although the Board will apply the revised standard 
in the same way as before, the final rule is expected to help the 
parties better understand the standard.

Section 240.411 Appeals

    FRA is amending paragraphs (a) and (f) so that the instructions for 
appealing to the Administrator are the same in both parts 240 and 242 
(Sec.  242.511). In the NPRM, FRA proposed to revise this section so 
that an aggrieved party requesting an appeal to the Administrator would 
file a copy of the appeal with the Administrator in addition to filing 
a copy in the docket.\30\ Although no comments were received regarding 
this section, FRA is revising the filing requirements so that an 
aggrieved party will only need to file one copy of an appeal with FRA, 
instead of the proposed two copies. With the elimination of paper 
dockets, it is much easier for FRA to know when a document is added to 
an existing docket. Parties that are filing an appeal, whether under 
paragraph (a) or (f), would already have a docket number and would be 
expected to know how to file a document, as they would have already 
filed at least once, and probably several times, in that same docket 
kept electronically at www.regulations.gov. Rather than revising this 
section to require a party to file with FRA in two different places, 
FRA is amending both parts 240 and 242 so that an aggrieved party needs 
to file its appeal only in the electronic, public docket.
---------------------------------------------------------------------------

    \30\ 84 FR at 20493-94.
---------------------------------------------------------------------------

Appendix A

    In the NPRM, FRA stated that it would likely need to make 
corresponding changes in the final rule to appendix A to part 240 
(appendix A), which then contained the schedule of civil penalties for 
violations of part 240. Meanwhile, as published on May 23, 2019, FRA 
removed and reserved appendix A, as FRA moved all its schedules of 
civil penalties from the CFR to FRA's website.\31\ Thus, there is no 
need to amend appendix A and it will remain reserved.
---------------------------------------------------------------------------

    \31\ 84 FR 23730.
---------------------------------------------------------------------------

    Nonetheless, FRA will modify the schedule of civil penalties on its 
website at www.railroads.dot.gov as necessary to reflect the 
requirements of the final rule. Because such penalty schedules are 
statements of agency policy, notice and comment are not required before 
their issuance.\32\ In addition, FRA invited but did not receive any 
comments on the civil penalties for violations of part 240.
---------------------------------------------------------------------------

    \32\ 5 U.S.C. 553(b)(3)(A).
---------------------------------------------------------------------------

Appendix B

    As explained in the NPRM, appendix B to part 240 (appendix B) 
provides both the organizational requirements and a narrative 
description of the submission required under Sec. Sec.  240.101 and 
240.103. FRA is updating job titles and clarifying requirements in 
appendix B. In the NPRM, FRA proposed revising appendix B to provide 
railroads with the option to file their part 240 program submissions 
electronically by adopting language from part 242's appendix B. As a 
matter of agency policy or procedure, FRA decided that the 
certification program submission process could be further streamlined. 
FRA accomplished this streamlining by adding an email address for 
direct electronic submission of a railroad's engineer certification 
program. There is no secure website for uploading a railroad 
submission, so FRA eliminated the proposed language in the appendix 
requesting information to set up a secure account for such a 
submission. Email is the primary method of railroad submission, and the 
publication of FRA's email address for such submission should make the 
submission process easier for each railroad that must submit. Although 
FRA is not making similar conforming changes to part 242's appendix B, 
FRA revised Sec.  242.103 to provide the same email address and 
submission information for conductor certification programs as for 
locomotive engineer certification programs in revised Sec.  240.103. 
Therefore, under both rules, railroad submission of certification 
programs should primarily be completed by email, without regard to the 
size of the paper or the need to mail FRA contact information to 
arrange for electronic submission.
    Two comments recommending specific changes to appendix B are 
discussed below. FRA is revising appendix B based on one of the 
comments. Otherwise, the analysis provided in the NPRM is 
applicable.\33\
---------------------------------------------------------------------------

    \33\ See 84 FR at 20494.
---------------------------------------------------------------------------

    FRA received a comment from AAR and ASLRRA objecting to the 
proposed revision requiring a railroad to comply with requirements for 
training organizations or learning institutions in Sec.  243.111 of 
this chapter if the railroad were to train another railroad's 
employees. The comment refers specifically to the proposed language for 
amending appendix B, ``Section 5 of the Submission: Training, Testing, 
and Evaluating Persons Not Previously Certified.'' \34\ In appendix B, 
Section 5, FRA proposed that 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 if the other entity complies with the 
requirements for training organizations and learning institutions in 
Sec.  243.111 of this chapter. The comment suggests that many small 
railroads work together when training their employees and may, for 
example, allow one railroad to conduct an operating rules class for the 
employees of multiple railroads. FRA is also aware that some railroads, 
especially Class I railroads, have robust training programs 
administered at specific training centers that could potentially 
accommodate appropriate training for employees of other railroads. The 
railroad associations indicate the revision would result in a new 
burden that could create inefficiencies and costs, and thereby 
adversely affect safety. After considering the comment, FRA has removed 
the reference equating a railroad that is not training its own 
employees with a training organization or learning institution. FRA 
believes that while these entities may share some common features, a 
railroad that has an approved training program is not a training 
organization or learning institution, and therefore does not have an 
obligation to comply with 49 CFR 243.111. FRA will nonetheless continue 
to monitor the practice of unaffiliated railroads providing training 
for any other railroad's employees, to help ensure the appropriateness 
of such training.
---------------------------------------------------------------------------

    \34\ 84 FR at 20518.
---------------------------------------------------------------------------

    FRA received a comment from the labor organizations requesting that 
FRA revise appendix B to underscore that a railroad's certification 
program should explain, in detail, how its OJT program ensures training 
on the manual dexterity, cognitive ability, and human-machine interface 
skills necessary to be considered qualified. Appendix B, ``Section 3 of 
the Submission: Training Persons Previously Certified,'' mentions OJT 
in a list of the type of formal training necessary for effective 
evaluation of a railroad's training program. FRA expects the program to 
include the subject matter covered, the frequency and duration of the 
training sessions, and the type of formal training employed, as well as 
specify which aspects of the program are voluntary or mandatory. 
Testing each certified person or candidate is required to determine 
whether the person is qualified to do the work, and passing

[[Page 81301]]

such training is proof that the person's training is effective. FRA 
does not believe a person would be able to pass operational monitoring 
or skill performance testing without having all the skills the labor 
organizations mention in their comment as necessary. In addition, FRA 
believes that manual dexterity and cognitive ability may be difficult 
to measure, train, or test; thus, adding them as necessary requirements 
could be correspondingly difficult for railroads to implement. For 
these reasons, FRA is not revising appendix B in response to this 
comment.

Part 242

Section 242.7 Definitions

    FRA is amending the definition of ``main track'' after discovering 
a technical error while addressing a comment on the text in an 
identical provision in part 240. FRA recognizes that it did not explain 
the inclusion of PTC as a method of operation in the part 242 
rulemaking notices. Upon further review, FRA agrees with Railroad 
Commenters that PTC is not a method of operation but rather is a 
technology that helps enforce compliance with a railroad's method(s) 
governing train operations. For this reason, FRA is removing the 
reference to PTC, as defined in 49 CFR part 236, to correct the 
technical error.
    FRA is amending the definition of ``Substance abuse disorder'' so 
that the locomotive engineer and conductor certification rules use the 
same language. In the NPRM, FRA proposed that part 240 conform to the 
definition in part 242. After the NPRM's publication, FRA decided that 
the definition in part 242 is improved by moving the word 
``successfully'' in both places it is found in the definition without 
changing its meaning.

Section 242.103 Approval of Design of Individual Railroad Programs by 
FRA

    FRA is making technical amendments to Sec.  242.103 so that the 
locomotive engineer and conductor certification rules use the same 
language. For example, FRA is revising paragraph (b) so that, like 
Sec.  240.103(a), both rules reference that the primary method for a 
railroad to submit its certification programs is by email to 
[email protected]. FRA is also clarifying that mailing will remain 
an option, although FRA expects that option will be exercised only by 
those smaller railroads that do not have internet access suitable for 
emailing the program.
    The NPRM proposed certain requirements found in this section for 
adoption in Sec.  240.103. However, as FRA described above in the 
analysis for Sec.  240.103(b) and (c), some minor changes were made to 
improve the clarity of the proposed requirements to the locomotive 
engineer rule and FRA is making technical amendments to the conductor 
rule so the two certification rules contain the same requirements. For 
instance, FRA is revising paragraphs (c) and (d) of this section to 
require railroads to provide a copy of their program submissions, 
resubmissions, and material modifications to the president of each 
labor organization that represents the railroad's certified conductors, 
rather than serve a copy. FRA is finalizing this change to part 242 
because the term ``serve or service,'' which is defined in this part, 
refers to the legal issue of service of process during adjudication and 
the exchange of certification programs and comments to those 
certification programs are not adjudicatory matters. Thus, FRA is 
revising these requirements to reflect that each railroad and labor 
organization president must provide, not serve, its documents to each 
other, and affirm to FRA that it has done so, without the need to abide 
by strict legal rules for service of process. FRA is not specifying the 
methods that a railroad or president of a labor organization must use 
to provide documents to the other party as FRA expects each party to 
use those methods it uses in the normal course of business with each 
other. Also, FRA is adding an email address to make it easier for 
parties to submit programs or comments to programs. Finally, although 
part 242 required that each railroad affirm that it provided a copy of 
its program to the president of each labor organization that represents 
the railroad's employees subject to this part, the labor organization 
presidents were required to certify that they sent their comment to the 
railroad; hence, for consistency, FRA is requiring that both parties 
affirm they provided the other party with a copy of the documents they 
submit to FRA under this requirement.

Section 242.117 Vision and Hearing Acuity

    FRA is amending paragraph (g) to remove an unnecessary heading, 
``[f]itness requirement.'' FRA discovered the technical error in 
preparing the final rule, and this correction makes the conductor rule 
consistent with an identical change to the locomotive engineer rule.
    FRA is amending paragraph (h)(3) to correct the reference from 
appendix E to appendix D to this part. FRA discovered the technical 
error in preparing the final rule, and this correction makes the 
reference to appendix D consistent with the other references to 
appendix D in this section.
    FRA is amending paragraph (i)(3) for consistency with corresponding 
changes to 49 CFR 240.121(d). Section 242.117(i)(3) referenced the 2004 
version of the ANSI calibration standard for audiometric devices (ANSI 
S3.6-2004, ``Specifications for Audiometers'') whereas 49 CFR 
240.121(d) cited the 1969 version of that standard. See the discussion 
of 49 CFR 240.121(d) in the Section-by-Section Analysis, above. 
Further, ANSI revised this standard in 2018 and FRA expects ANSI will 
continue to revise the standard in the future. The audiometers covered 
by the ANSI standard are devices designed for use in determining the 
hearing threshold level of an individual in comparison with a selected 
hearing threshold level for reference. The ANSI standard provides 
specifications and tolerances for pure tone, speech, and masking 
signals and describes the minimum test capabilities of different types 
of audiometers.
    To make clear that audiometers are not subject to a single industry 
standard, versions of which may change with time, FRA is amending this 
paragraph to remove the specific citation to the 2004 version of ANSI 
S3.6 and instead provide for use of a formal industry standard, such as 
ANSI S3.6. This will allow a licensed or certified audiologist, or a 
technician responsible to that licensed or certified audiologist, the 
flexibility to use an audiometer calibrated to a formal industry 
standard, whether the standard is an older version of ANSI S3.6, a 
newer version of the standard, or a similar industry standard, whether 
or not issued by ANSI.

Section 242.213 Multiple Certifications

    FRA is amending paragraph (e) to remove an unnecessary heading, 
``[p]assenger railroad operations,'' and is instead making clear in the 
rule text that this paragraph applies to passenger train operations. 
FRA discovered the technical error in preparing the final rule, and 
this correction makes the conductor rule consistent with its 
corresponding provision in the locomotive engineer rule.

Section 242.403 Criteria for Revoking Certification

    FRA is revising Sec.  242.403(d) to remove unnecessary introductory 
text. FRA is making a corresponding technical revision to Sec.  
240.117(d) to remove the same text. No substantive change is intended.

[[Page 81302]]

Section 242.503 Petition Requirements

    FRA is revising Sec.  242.503(c)(2) so that the locomotive engineer 
and conductor certification rules use the same language. The change 
reverses the phrase ``timely file'' to ``file timely'' to match the 
language in Sec.  240.403(c)(2) without changing its meaning.

Section 242.505 Processing Certification Review Petitions

    FRA is revising Sec.  242.505(i) to clarify the OCRB's standard of 
review for procedural issues and make the standard the same as in Sec.  
240.405(i). The final rule requires that, when considering procedural 
issues, the Board determines whether the petitioner suffered 
substantial harm that was caused by the failure to adhere to the 
dictated procedures for making the railroad's decision. The restated 
standard uses active voice and removes the passive voice language that 
similarly explained that the Board will determine whether substantial 
harm was caused the petitioner by the railroad's failure to adhere to 
the dictated procedures. Although the Board will apply the revised 
standard in the same way as before, the final rule is expected to help 
the parties better understand the standard.
    FRA is also making certain technical revisions to this section. 
Specifically, FRA is revising paragraphs (h) through (k) to remove 
unnecessary introductory text and is revising paragraph (k) to replace 
the word ``regulation'' with ``part.'' These technical revisions do not 
affect the meaning of this section.

Section 242.511 Appeals

    FRA is amending paragraphs (a) and (f) so that the instructions for 
appealing to the Administrator are the same in both parts 240 and 242. 
FRA is revising the filing requirements to eliminate the requirement 
for an aggrieved party to file two copies of an appeal rather than one. 
With the elimination of paper dockets, it is much easier for FRA to 
know when a document is added to an existing docket. Parties that are 
filing an appeal, whether under paragraph (a) or (f), would already 
have a docket number and would be expected to know how to file a 
document, as they would have already filed at least once, and probably 
several times, in that same docket kept electronically at 
www.regulations.gov. Filing in the docket will be sufficient to notify 
FRA, and the final rule will eliminate the requirement to file a 
separate copy with the Administrator.

Appendix E to Part 242--Application of Revocable Events

    FRA is amending appendix E to part 242 so that both part 240 and 
part 242 will contain the same 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. In the NPRM, FRA proposed adding the same table to part 240 
that is found in appendix E to part 242, and designating it as new 
appendix G to part 240. However, in adding the table to part 240, FRA 
made slight changes to include some citations to the different periods 
of revocation that may be applied in part 240 when a locomotive 
engineer has a drug or alcohol violation, as only the conductor 
citations were in the part 242 version of the table. The table in 
appendix E to part 242 is expected to continue to be a useful 
reference, and this non-substantive revision will conform part 240 with 
part 242. FRA considered not revising appendix E to part 242 but was 
concerned that any differences between the two appendices might lead to 
confusion. The appendices are intended to be identical, insofar as 
practical, to promote proper understanding and application of both 
regulations.

IV. Regulatory Impact and Notices

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

    This final rule is a non-significant regulatory action and has been 
evaluated in accordance with existing policies and procedures under 
E.O. 12866 and DOT's Administrative Rulemaking, Guidance, and 
Enforcement Procedures in 49 CFR part 5. The rule is non-significant 
under the policies and procedures of E.O. 12866 and under DOT's 
Rulemaking Procedures. This final rule is also an E.O. 13771 
deregulatory action.
    The primary purpose of the final rule is to reduce the differences 
between FRA's two operating crew certification regulations and to make 
engineer certification more efficient. Some of the amendments address 
the part 240 certification review and program submission processes. 
Other changes reduce the burden on the regulated community by 
addressing compliance difficulties noted through experience enforcing 
part 240. Further, some changes codify longstanding 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 railroads subject to the final 
rule are likely to incur over a twenty-year period. The table below 
summarizes the costs, cost savings, and net cost savings estimated to 
come from issuing the final rule. For the 20-year period of analysis, 
the cost of the final rule will be $233,779 (undiscounted), $171,764 
(PV 7%), and $200,775 (PV 3%). The total cost savings of the final rule 
over 20 years will be $12.3 million (undiscounted), $6.9 million (PV 
7%), and $9.4 million (PV 3%). For the 20-year period of analysis, the 
final rule will result in a net cost savings of $12.0 million 
(undiscounted), $6.8 million (PV 7%), and $9.2 million (PV 3%).

Table 1--Summary of the Final 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        Undiscounted         7%        Annualized  7%        3%        Annualized  3%
----------------------------------------------------------------------------------------------------------------
New Costs:
    Review amendments...........        $118,383        $110,638         $10,443        $114,935          $7,725
    Provide a copy of part 240             2,263           1,199             113           1,683           5,657
     plan to labor organization.
    Maintain service records....         113,133          59,927           5,657          84,157           5,657
                                 -------------------------------------------------------------------------------
        Total new costs.........         233,779         171,764          16,213         200,775          19,039
Cost Savings:
    Conforming part 240 to part       11,838,340       6,709,732         633,351       9,070,417         609,675
     242........................
    Former employee paperwork...         113,133          59,927           5,657          84,157           5,657
    Petition submission process.         109,620          58,066           5,481          81,543           5,481

[[Page 81303]]

 
    Plan submission process.....           6,800           3,602             340           5,058             340
    Government cost savings.....          92,448          48,970           4,622          60,933           4,096
    Removing waiver requirement.         113,133          59,927           5,657          84,157           5,657
----------------------------------------------------------------------------------------------------------------
        Total cost savings......      12,273,475       6,940,223         655,108       9,386,266         630,904
        Net Cost Savings........      12,039,696       6,768,459         638,895       9,185,491         611,866
----------------------------------------------------------------------------------------------------------------

    The final rule will create benefits, though FRA did not monetize 
them. Some non-quantifiable benefits include: affording railroads 
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 will afford railroads an additional 30 days, increasing from 30 
days to 60 days, for a railroad 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 will 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 
locomotive engineers sooner and railroads will have available a larger 
pool of workers who will be qualified to work as locomotive engineers.
    The regulatory evaluation compares the final rule's costs and 
benefits, and estimates the final rule will be cost beneficial because 
the rule is expected to provide net cost savings and benefits.

B. Regulatory Flexibility Act and Executive Order 13272; Regulatory 
Flexibility Certification

    The final rule will impact 741 railroads of which 93 percent (690) 
are small entities. Therefore, FRA has determined that this final rule 
will have an impact on a substantial number of small entities.
    However, FRA has determined that the impact on entities affected by 
the final rule will not be significant as the final rule is 
deregulatory. Therefore, the impact on entities will be positive, 
taking the form of costs savings that are greater than any new costs 
imposed on the entities.
    For the railroad industry over a 20-year period, FRA estimates that 
issuing the final rule will result in new costs of $171,764 (PV 7%) and 
$200,775 (PV 3%). Based on information currently available, FRA 
estimates that $97,905 (PV 7%) and $114,442 (PV 3%) of the total costs 
associated with implementing the final rule will be borne by small 
entities. Therefore, less than 60 percent of the final rule's total 
cost will be borne by small businesses. In addition, FRA estimates that 
the final rule will result in cost savings over 20 years of $6.9 
million (PV 7%), and $9.4 million (PV 3%). For the 20-year period of 
analysis, the final rule will result in a net cost savings of $12.0 
million (undiscounted), $6.8 million (PV 7%), and $9.2 million (PV 3%). 
FRA expects that small entities will accrue 94 percent of the cost 
savings associated with implementing the final rule.
    Thus, pursuant to the Regulatory Flexibility Act, 5 U.S.C. 601(b), 
the FRA Administrator hereby certifies that this final rule will not 
have a significant economic impact on a substantial number of small 
entities.

C. Paperwork Reduction Act

    The information collection requirements in this final rule are 
being submitted for approval to the Office of Management and Budget 
(OMB) under the Paperwork Reduction Act of 1995.\35\ The sections that 
contain the new and current information collection requirements and the 
estimated time to fulfill each requirement are as follows:
---------------------------------------------------------------------------

    \35\ 44 U.S.C. 3501 et seq.
    \36\ The revisions to the estimates under OMB control number 
2130-0533 are due to adding conforming language in Part 240 to Part 
242. Also, burden requirements under Sec.  240.308 are covered under 
OMB control number 2130-0544 (Sec.  242.213).
    \37\ Throughout the tables in this document, the dollar 
equivalent cost is derived from the Surface Transportation Board's 
Full Year Wage A&B data series using the appropriate employee group 
hourly wage rate that includes 75-percent overhead charges.

----------------------------------------------------------------------------------------------------------------
                                                                                                   Total annual
                                  Respondent      Total annual     Average time    Total annual     dollar cost
       CFR section \36\            universe        responses      per  response    burden hours     equivalent
                                                                                                       \37\
----------------------------------------------------------------------------------------------------------------
240.9--Waivers...............  741 railroads..  2 waiver         1 hour.........               2            $152
                                                 petitions.
    240.101/103--              741 railroads..  25 amendments..  5 minutes......               2             152
     Certification program:
     Written program for
     certifying
     qualifications of
     locomotive engineers--
     amendments.
    --Certification programs   5 new railroads  5 programs.....  1 hour.........               5             380
     for new railroads.
    --Final review and         5 new railroads  5 reviews......  1 hour.........               5             380
     submission of
     certification programs
     for new railroads.
    (b)(1)--RR provision of    62 railroads...  62 copies......  5 minutes......               5             380
     copy of certification
     program submission or
     resubmission to
     president of each labor
     union representing
     employees simultaneously
     with filing with FRA
     (See footnote 36).
    (b)(2)--RR affirmative     62 railroads...  62 copies......  5 minutes......               5             380
     statement that it has
     served certification
     program copy to each
     labor union president
     (See footnote 36 ).
    (c)--RR employee comment   62 railroads...  62 comments....  8 hours........             496          37,696
     on submission,
     resubmission or material
     modification of RR
     certification program
     (See footnote 36).

[[Page 81304]]

 
    (h)--RR material           741 railroads..  10 modified      10 minutes.....               2             152
     modifications to program                    programs.
     after initial FRA
     approval (formerly under
     (e)).
240.105(b)--(c) Written        741 railroads..  10 reports.....  30 minutes.....               5             575
 reports/determinations of
 DSLE performance skills.
240.109/App. C--Prior safety   17,667           25 responses...  5 minutes......               2             116
 conduct.                       candidates.
240.111/App C--Driver's        17,667           17,667 requests  10 minutes.....           2,945         223,820
 license data requests from     candidates.
 chief of driver licensing
 agency of any jurisdiction,
 including foreign countries.
    --NDR match--              741 railroads..  177 notices +    5 mins + 5 mins              30           2,010
     notifications and                           177 requests.
     requests for data.
    --Written response from    741 railroads..  20 cases/        10 minutes.....               3             174
     candidate on driver's                       comments.
     license data.
240.111(g)--Notice to RR of    53,000           4 letters......  5 minutes......             0.3              19
 absence of license.            candidates.
240.111(h)--Duty to furnish    741 railroads..  100              5 minutes......               8             464
 data on prior safety conduct                    communications.
 as motor vehicle operator.
240.113--Duty to furnish data  17,667           353 requests +   5 mins + 5 mins              59           4,130
 on prior safety conduct as     candidates.      353 responses.
 an employee of a different
 RR.
240.115(d)--RR temporary       741 railroads..  25               5 minutes......               2             152
 certification or                                recertificatio
 recertification of                              ns.
 locomotive engineer for 60
 days after having requested
 the motor vehicle
 information specified in
 paragraph (h) of this
 section (See footnote 36).
    (i)(2)--RR drug and        17,667           200 requests +   5 minutes......              33           1,914
     alcohol counselor          candidates.      200 records.
     request of employee's
     record of prior
     counseling or treatment
     (See footnote 36).
    (i)(3)--Conditional        17,667           100 conditional  1 hour.........             100           5,800
     certification based on     candidates.      certifications/
     recommendation by DAC of                    DAC
     employee aftercare and/                     recommendation
     or follow-up testing for                    s.
     alcohol/drugs (See
     footnote 36).
    (i)(4)--RR employee        17,667           100 DAC          1 hour.........             100           5,800
     evaluation by DAC as       candidates.      evaluations.
     having an active
     substance abuse disorder
     (See footnote 36).
240.117(i)(4)--RR employee     53,000           400 trained/     5 minutes......              33           1,914
 completion of training/        locomotive       retrained
 retraining prior to return     engineers.       records.
 to service--records (See
 footnote 36).
240.119(c)--Written records    741 railroads..  400 records....  5 minutes......              33           1,914
 indicating dates that the
 engineer stopped performing
 or returned to certification
 service + compliance/
 observation test (See
 footnote 36).
240.119(d)--Self-referral to   53,000           150 self-        5 minutes......              13             754
 EAP re: Active substance       locomotive       referrals.
 abuse disorder.                engineers.
240.119(e)(3)(ii)--RR          741 railroads..  200              30 minutes.....             100           5,800
 notification to person that                     notifications.
 recertification has been
 denied or revoked (See
 footnote 36).
240.119(e)(4)(iii)--Locomotiv  53,000           200 waivers....  2 minutes......               7             406
 e engineer waiver of           locomotive
 investigation in case of one   engineers.
 violation of Sec.   219.101
 (See footnote 36).
240.121--Criteria--vision/     5 railroads....  5 copies.......  5 minutes......             0.4              32
 hearing acuity data--new
 railroads.
    --Conditioned              741 railroads..  5 reports......  5 minutes......             0.4              48
     certification.
    --Not meeting standards--  741 railroads..  10               15 minutes.....               3             174
     Notice by employee.                         notifications.
240.129(b)--RR documents on    53,000           1,000 records..  5 hours........              83           6,308
 file regarding determination   locomotive
 made regarding fitness,        engineers.
 including DAC written
 document (See footnote 36).
    240.201/221--List of       741 railroads..  741 updates....  5 minutes......              62           4,712
     qualified DSLEs.
    --List of qualified loco.  741 railroads..  741 updated      5 minutes......              62           4,712
     engineers.                                  lists.
240.201/223/301--Loco.         53,000           17,667           5 minutes......           1,472         111,872
 engineer certificates.         candidates.      certificates.
240.207--Medical certificate   53,000           17,667           30 minutes.....           8,834       1,015,910
 showing hearing/vision         candidates.      certificates.
 standards are met:.
    --Written determinations   741 railroads..  30               5 minutes......               3             345
     waiving use of                              determinations.
     corrective device.
240.219(a)--RR notification    17,667           45 letters + 45  30 minutes.....              45           3,420
 letter to employee of          candidates.      responses.
 certification denial +
 employee written rebuttal
 (See footnote 36).
    --RR notice/written        741 railroads..  45 documents/    2 minutes......               2             152
     documents/records to                        records.
     candidate that support
     its pending denial
     decision (See footnote
     36).
240.229--Joint operations--    321 railroads..  184 employee     5 minutes......              15             870
 notice--not qualified.                          calls.
240.301(b)--Temporary          741 railroads..  600 replacement  30 minutes.....             300          22,800
 replacement certificates                        certificates.
 valid for no more than 30
 days (See footnote 36).
    (c)--Engineer's notice of  53,000           100              5 minutes......               8             464
     non-qualification to RR.   engineers or     notifications.
                                candidates.
    (d)--Relaying              1,060 engineers  2 letters......  15 minutes.....          1 hour              58
     certification denial or
     revocation status to
     other certifying
     railroad.
240.307(a-b)--Notice to        741 railroads..  1,100 letters..  1 hour.........           1,100          73,700
 engineer of disqualification.
240.307(b)(4)--RR provision    741 railroads..  690 copies/list  5 minutes......              58           4,408
 to employee of copy of
 written information and list
 of witnesses that it will
 present at hearing (See
 footnote 36).

[[Page 81305]]

 
240.307(b)(5)--RR              741 railroads..  690 hearing      1 hour.........             690          52,440
 determination on hearing                        determinations.
 record whether person no
 longer meets certification
 requirements of part 240
 (See footnote 36).
240.307(c)(11)(i)(ii)--RR      741 railroads..  690 written      30 minutes.....             345          26,220
 written decision after close                    decisions.
 of hearing containing
 findings of fact & whether a
 revocable event occurred
 (See footnote 36).
240.307(c)(11)(iii)--RR        741 railroads..  690 copies.....  5 minutes......              58           4,408
 service of written decision
 on employee and employee's
 representative (See footnote
 36).
240.307(f)--Person's waiver    741 railroads..  750 written      5 minutes......              63           3,654
 of right to hearing under                       waivers.
 this section (See footnote
 36).
240.307(j)--RR update of       741 railroads..  50 updated       10 minutes.....               8             608
 record with relevant                            records.
 information (See footnote
 36).
240.309--RR oversight resp.:   15 railroads...  6 annotations..  15 minutes.....               2             116
 Detected poor safety
 conduct--annotation.
    --Railroad annual review.  51 railroads...  51 reviews.....  3..............             153          11,628
----------------------------------------------------------------------------------------------------------------
                                                  Recordkeeping
----------------------------------------------------------------------------------------------------------------
240.205--Data to EAP           741 railroads..  177 records....  5 minutes......              15           1,725
 counselor.
240.209/213--Written tests...  53,000           17,667 testing   1 minute.......             294          22,344
                                candidates.      record
                                                 retention.
240.211/213--Performance test  53,000           17,667 testing   1 minute.......             294          22,344
                                candidates.      record
                                                 retention.
240.215--Retaining info.       741 railroads..  17,667 records.  5 minutes......           1,472         111,872
 supporting determination.
240.303--Annual operational    53,000           53,000 testing   1 minute.......             883          67,108
 monitoring observation.        candidates.      record
                                                 retention.
240.303--Annual operating      53,000           53,000 testing   1 minute.......             883          67,108
 rules compliance test.         candidates.      record
                                                 retention.
240.307(b)(4)--RR hearings/    741 railroads..  690 hearings/    4 hours........           2,760         209,760
 hearing records (See                            records.
 footnote 36).
                              ----------------------------------------------------------------------------------
    Total....................  741 railroads..  224,566          N/A............          23,964       2,146,751
                                                 responses.
----------------------------------------------------------------------------------------------------------------

    All estimates include the time for reviewing instructions; 
searching existing data sources; gathering or maintaining the needed 
data; and reviewing the information.
    For information or a copy of the paperwork package submitted to 
OMB, contact Ms. Hodan Wells, Information Collection Clearance Officer, 
Office of Railroad Safety, Federal Railroad Administration, at 202-493-
0440.
    Organizations and individuals desiring to submit comments on the 
collection of information requirements should direct them to Ms. Hodan 
Wells via email at [email protected].
    OMB must make a decision concerning the collection of information 
requirements contained in this 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.
    FRA is not authorized to impose a penalty on persons for violating 
information collection requirements that do not display a current OMB 
control number, if required. The current OMB control number for part 
240 is 2130-0533.

D. Federalism Implications

    Executive Order 13132, ``Federalism,'' \38\ 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.
---------------------------------------------------------------------------

    \38\ 64 FR 43255, Aug. 10, 1999.
---------------------------------------------------------------------------

    FRA has analyzed this final rule under the principles and criteria 
contained in Executive Order 13132. FRA has determined this final rule 
will 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 final 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 final 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),

[[Page 81306]]

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 final rule in accordance with the 
principles and criteria contained in Executive Order 13132. As 
explained above, FRA has determined that this final 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 final rule is not required.

E. International Trade Impact Assessment

    The Trade Agreements 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 final 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 final rule consistent with the National 
Environmental Policy Act \39\ (NEPA), the Council of Environmental 
Quality's NEPA implementing regulations at 40 CFR parts 1500-1508, and 
FRA's NEPA implementing regulations at 23 CFR part 771 and determined 
that it is categorically excluded from environmental review and 
therefore does not require the preparation of an environmental 
assessment (EA) or environmental impact statement (EIS). Categorical 
exclusions (CEs) are actions identified in an agency's NEPA 
implementing regulations that do not normally have a significant impact 
on the environment and therefore do not require either an EA or EIS. 40 
CFR 1508.4. Specifically, FRA has determined that this final rule is 
categorically excluded from detailed environmental review pursuant to 
23 CFR 771.116(c)(15), ``[p]romulgation of rules, the issuance of 
policy statements, the waiver or modification of existing regulatory 
requirements, or discretionary approvals that do not result in 
significantly increased emissions of air or water pollutants or 
noise.''
---------------------------------------------------------------------------

    \39\ 42 U.S.C. 4321 et seq.
---------------------------------------------------------------------------

    The purpose of this rulemaking is to make FRA's regulation 
governing the qualification and certification of locomotive engineers 
consistent with its regulation for the qualification and certification 
of conductors. This rule does not directly or indirectly impact any 
environmental resources and will not result in significantly increased 
emissions of air or water pollutants or noise. In analyzing the 
applicability of a CE, FRA must also consider whether unusual 
circumstances are present that would warrant a more detailed 
environmental review.\40\ FRA has concluded that no such unusual 
circumstances exist with respect to this regulation and the final rule 
meets the requirements for categorical exclusion under 23 CFR 
771.116(c)(15).
---------------------------------------------------------------------------

    \40\ 23 CFR 771.116(b).
---------------------------------------------------------------------------

    Pursuant to Section 106 of the National Historic Preservation Act 
and its implementing regulations, FRA has determined this undertaking 
has no potential to affect historic properties.\41\ FRA has also 
determined that this rulemaking does not approve a project resulting in 
a use of a resource protected by Section 4(f).\42\
---------------------------------------------------------------------------

    \41\ See 16 U.S.C. 470.
    \42\ See Department of Transportation Act of 1966, as amended 
(Pub. L. 89-670, 80 Stat. 931); 49 U.S.C. 303.
---------------------------------------------------------------------------

G. Executive Order 12898 (Environmental Justice)

    Executive Order 12898, Federal Actions to Address Environmental 
Justice in Minority Populations and Low-Income Populations, and DOT 
Order 5610.2(a) \43\ require DOT agencies to achieve environmental 
justice as part of their mission by identifying and addressing, as 
appropriate, disproportionately high and adverse human health or 
environmental effects, including interrelated social and economic 
effects, of their programs, policies, and activities on minority 
populations and low-income populations. The DOT Order instructs DOT 
agencies to address compliance with Executive Order 12898 and 
requirements within the DOT Order in rulemaking activities, as 
appropriate. FRA has evaluated this final rule under Executive Order 
12898 and the DOT Order and has determined it will not cause 
disproportionately high and adverse human health and environmental 
effects on minority populations or low-income populations.
---------------------------------------------------------------------------

    \43\ 91 FR 27534 (May 10, 2012).
---------------------------------------------------------------------------

H. Unfunded Mandates Reform Act of 1995

    Under section 201 of the Unfunded Mandates Reform Act of 1995,\44\ 
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. This final rule will not result in 
the expenditure, in the aggregate, of $100,000,000 or more (as adjusted 
annually for inflation) in in any one year, and thus preparation of 
such a statement is not required.
---------------------------------------------------------------------------

    \44\ Public Law 104-4, 2 U.S.C. 1531.
---------------------------------------------------------------------------

I. Energy Impact

    Executive Order 13211 requires Federal agencies to prepare a 
Statement of Energy Effects for any ``significant energy action.'' \45\ 
FRA has evaluated this final rule under Executive Order 13211 and 
determined that this rule is not a ``significant energy action'' within 
the meaning of Executive Order 13211.
---------------------------------------------------------------------------

    \45\ 66 FR 28355 (May 22, 2001).
---------------------------------------------------------------------------

    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.\46\ FRA has evaluated this final rule under Executive Order 
13783 and determined that this rule will not burden the development or 
use of domestically produced energy resources.
---------------------------------------------------------------------------

    \46\ 82 FR 16093 (Mar. 31, 2017).
---------------------------------------------------------------------------

List of Subjects

49 CFR Part 219

    Alcohol abuse, Drug abuse, Drug testing, Penalties, Railroad 
safety, Reporting and recordkeeping requirements, Safety, 
Transportation.

[[Page 81307]]

49 CFR Part 240

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

49 CFR Part 242

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

The Final Rule

    For the reasons discussed in the preamble, FRA amends parts 219, 
240, and 242 of chapter II, subtitle B of title 49 of the Code of 
Federal Regulations as follows:

PART 219--CONTROL OF ALCOHOL AND DRUG USE

0
1. The authority citation for part 219 continues to read as follows:

    Authority:  49 U.S.C. 20103, 20107, 20140, 21301, 21304, 21311; 
28 U.S.C. 2461, note; Sec. 412, Div. A, Pub. L. 110-432, 122 Stat. 
4889 (49 U.S.C. 20140, note) and 49 CFR 1.89.

0
2. Section 219.25 is amended by revising paragraph (b) to read as 
follows:


Sec.  219.25   Previous employer drug and alcohol checks.

* * * * *
    (b) When determining whether a person may become or remain 
certified as a locomotive engineer or a conductor, a railroad must 
comply with the requirements in Sec.  240.119(e) (for engineers) or 
Sec.  242.115(e) (for conductors) of this chapter regarding the 
consideration of Federal alcohol and drug violations that occurred 
within a period of 60 consecutive months before the review of the 
person's records.

0
3. Section 219.1003 is amended by revising paragraph (j) to read as 
follows:


Sec.  219.1003   Referral program conditions.

* * * * *
    (j) Locomotive engineers and conductors. Consistent with Sec. Sec.  
240.119(g) and 242.115(g) of this chapter, for a certified locomotive 
engineer, certified conductor, or a candidate for engineer or conductor 
certification, the referral program must state that confidentiality is 
waived (to the extent the railroad receives from a DAC official notice 
of the active drug abuse disorder and suspends or revokes the 
certification, as appropriate) if the employee at any time refuses to 
cooperate in a recommended course of counseling or treatment.
* * * * *

PART 240--QUALIFICATION AND CERTIFICATION OF LOCOMOTIVE ENGINEERS

0
4. 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
5. 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
6. 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
7. 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
8. 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'' 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 a definition for ``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.
* * * * *

[[Page 81308]]

    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 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, as used in this part:
    (1) Means 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 instruct effectively 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.
* * * * *
    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.
* * * * *
    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).
* * * * *
    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 complete primary treatment successfully or participate in 
aftercare successfully 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
9. Section 240.11 is amended by revising paragraph (d) to read as 
follows:


Sec.  240.11   Penalties and consequences for noncompliance.

* * * * *

[[Page 81309]]

    (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.

0
10. Section 240.103 is revised to read as follows:


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

    (a) Each railroad shall submit its written certification program 
and a description of how its program conforms to the specific 
requirements of this part in accordance with the procedures contained 
in appendix B to this part and shall submit this written certification 
program for approval at least 60 days before commencing operations. The 
primary method for a railroad's submission is by email to 
[email protected]. For those railroads that are unable to send the 
program by email, the program may be sent to the Associate 
Administrator for Railroad Safety/Chief Safety Officer, Federal 
Railroad Administration, 1200 New Jersey Avenue SE, Washington, DC 
20590.
    (b) Each railroad shall:
    (1) Simultaneous with its filing with FRA, provide 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 
to 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 provided a 
copy to 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 provided a copy.
    (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 by email to 
[email protected] or by mail to the Associate Administrator for 
Railroad Safety/Chief Safety Officer, FRA, 1200 New Jersey Avenue SE, 
Washington, DC 20590; and
    (3) The commenter shall affirm that a copy of the comment was 
provided to 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 certify initially 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 modify materially 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 of this part.
    (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
11. 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
12. Section 240.107 is amended by revising the section heading to read 
as follows:


Sec.  240.107   Types of service.

* * * * *

0
13. Section 240.111 is amended by revising paragraph (a)(2), revising 
and republishing paragraph (c), and revising paragraphs (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.
    (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,

[[Page 81310]]

1200 New Jersey Avenue SE, Washington, DC 20590 in accordance with the 
procedures contained in appendix C of this part 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(h)(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 (h) 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
14. Section 240.113 is revised to 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
    (2) Take any additional actions, including providing any necessary 
consent required by State or Federal law to make information concerning 
his or her service record available to that railroad.
    (b) [Reserved]

0
15. 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 which 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, condition certification upon 
participation in any needed aftercare and/or follow-up testing for 
alcohol or

[[Page 81311]]

drugs deemed necessary by the DAC consistent with the technical 
standards specified in Sec.  240.119(d)(3).
    (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
16. Section 240.117 is amended by:
0
a. Revising paragraphs (a), (c)(1) and (3), (d), 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.
    (d) In determining whether a person may be or remain certified as a 
locomotive engineer, a railroad shall consider as operating rule 
compliance data only conduct described in paragraphs (e)(1) through (5) 
of this section that occurred within a period of 36 consecutive months 
prior to the determination. A review of an existing certification shall 
be initiated promptly upon the occurrence and documentation of any 
conduct described in this section.
    (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 (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 (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
17. 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 (e)(1).
    (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 (e) 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.
    (4) The period of ineligibility described in this section shall be 
determined in accordance with the following standards:

[[Page 81312]]

    (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 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 (e), 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 (f) 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
18. Section 240.121 is amended by revising paragraphs (a), (b), and (d) 
to read as follows:


Sec.  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.
    (b) In order to be currently certified as a locomotive engineer, 
except as permitted by paragraph (e) of this section, a person's vision 
and hearing shall meet or exceed the standards prescribed in this 
section and appendix F to this part. It is recommended that each test 
conducted pursuant to this section should be performed according to any 
directions supplied by the manufacturer of such test and any American 
National Standards Institute (ANSI) standards that are applicable.
* * * * *
    (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) (Occupational Safety and 
Health Administration);
    (2) As required in Sec.  227.111 of this chapter; or
    (3) Conducted using an audiometer that meets the specifications of 
and is maintained and used in accordance with a formal industry 
standard, such as ANSI S3.6, ``Specifications for Audiometers.''
* * * * *

0
19. Section 240.123 is amended by revising the section heading and 
paragraph (a), revising and republishing paragraph (c), and adding 
paragraphs (e) and (f) to read as follows:


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

[[Page 81313]]

requirements of Sec.  243.101 of this chapter and:
    (1) Is composed of classroom, skill performance, and 
familiarization with physical characteristics components;
    (2) Includes both knowledge and performance skill testing;
    (3) Is conducted under the supervision of a qualified class 
instructor;
    (4) Is subdivided into segments or periods of appropriate duration 
to effectively cover the following subject matter areas:
    (i) Personal safety;
    (ii) Railroad operating rules and procedures;
    (iii) Mechanical condition of equipment;
    (iv) Train handling procedures (including use of locomotive and 
train brake systems);
    (v) Familiarization with physical characteristics including train 
handling; and
    (vi) Compliance with Federal railroad safety laws, regulations, and 
orders; and
    (5) Is conducted so that the performance skill component shall meet 
the following conditions:
    (i) Be under the supervision of a qualified instructor engineer 
located in the same control compartment whenever possible;
    (ii) Place the student engineer at the controls of a locomotive for 
a significant portion of the time; and
    (iii) Permit the student to experience whatever variety of types of 
trains are normally operated by the railroad.
* * * * *
    (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 requalify a person on the physical characteristics.

0
20. Section 240.125 is amended by revising the section heading and 
paragraph (a), revising and republishing paragraph (c), 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) The testing methods selected by the railroad shall be:
    (1) Designed to examine a person's knowledge of the railroad's 
rules and practices for the safe operation of trains;
    (2) Objective in nature;
    (3) Administered in written form;
    (4) Cover the following subjects:
    (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 Federal railroad safety laws, regulations, and 
orders;
    (5) Sufficient to accurately measure the person's knowledge of the 
covered subjects; and
    (6) Conducted without open reference books or other materials 
except to the degree the person is being tested on his or her ability 
to use such reference books or materials.
* * * * *
    (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
21. Section 240.127 is amended by revising paragraph (a) to read as 
follows:


Sec.  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.
* * * * *

0
22. 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:


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;
* * * * *

[[Page 81314]]

    (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
23. 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
24. 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
25. 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
    (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
26. 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
27. Section 240.215 is amended by revising and republishing paragraph 
(e) and revising paragraph (j) to read as follows:


Sec.  240.215   Retaining information supporting determinations.

* * * * *
    (e) The information concerning demonstrated performance skills that 
the railroad shall retain includes:
    (1) 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 evaluation is based 
including the observations and evaluation of the designated supervisor 
of locomotive engineers;
    (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
    (3) The relevant data from the railroad's records concerning the 
person's success or failure on tests the railroad performed to monitor 
the engineer's operating performance in accordance with Sec.  240.129.
* * * * *
    (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
28. Section 240.217 is amended by revising paragraphs (a) and (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 a determination concerning:
    (1) Eligibility and the eligibility data being relied on was 
furnished more than 366 days before the date of the railroad's 
certification decision;

[[Page 81315]]

    (2) 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) 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) 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) 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
29. 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) 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
30. Section 240.221 is amended by revising paragraphs (d), (e), and (f) 
to read as follows:


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
31. Section 240.223 is amended by revising and republishing paragraph 
(a) to read as follows:


Sec.  240.223   Criteria for the certificate.

    (a) As a minimum, each certificate issued in compliance with this 
part shall:
    (1) Identify the railroad or parent company that is issuing it;
    (2) Indicate that the railroad, acting in conformity with this 
part, has determined that the person to whom it is being issued has 
been determined to be qualified to operate a locomotive;
    (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);
    (4) Identify any conditions or limitations, including the class of 
service or conditions to ameliorate vision or hearing acuity 
deficiencies, that restrict the person's operational authority;
    (5) Show the effective date of each certification held;
    (6) Be signed by a supervisor of locomotive engineers or other 
individual designated in accordance with paragraph (b) of this section;
    (7) Show the date of the person's last operational monitoring event 
as required by Sec. Sec.  240.129(c) and 240.303(b), unless that 
information is reflected on supplementary documents which the 
locomotive engineer has in his or her possession when operating a 
locomotive; and
    (8) Be of sufficiently small size to permit being carried in an 
ordinary pocket wallet.
* * * * *

0
32. 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

[[Page 81316]]

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; and
    (5) The person has demonstrated the necessary performance skills 
concerning the railroad's operating rules in accordance with Sec.  
240.127.

0
33. Revise the heading of subpart D to read as follows:

Subpart D--Administration of the Certification Program

0
34. 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
35. 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 as provided in Sec.  240.129(h), shall be given at 
least one unannounced, compliance test each calendar year.
* * * * *

0
36. Section 240.305 is amended by revising and republishing paragraph 
(b) to read as follows:


Sec.  240.305   Prohibited conduct.

* * * * *
    (b) Each locomotive engineer who has received a certificate 
required under this part shall:
    (1) Have that certificate in his or her possession while on duty as 
an engineer; and
    (2) Display that certificate upon the receipt of a request to do so 
from:
    (i) A representative of the Federal Railroad Administration;
    (ii) A State inspector authorized under part 212 of this chapter;
    (iii) An officer of the issuing railroad; or
    (iv) An officer of another railroad when operating a locomotive or 
train in joint operations territory.
* * * * *

0
37. Section 240.307 is amended by:
0
a. Revising paragraph (a);
0
b. Republishing the introductory text to paragraph (b);
0
c. Revising paragraphs (b)(1) and (4);
0
d. Redesignating paragraphs (b)(5) and (6) as paragraphs (b)(6) and 
(7);
0
e. Adding a new paragraph (b)(5); and
0
f. Revising paragraphs (c)(2), (9), and (11), (g), (i), 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) 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), 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;
* * * * *
    (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

[[Page 81317]]

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); 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) 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
38. 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) If the conductor is removed from a passenger 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 (12) of this chapter 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 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 (12) of this chapter 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 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 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 (12) of this chapter may not obtain a 
locomotive engineer certificate pursuant to this part 240 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.  
240.307 or Sec.  242.407 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
39. Section 240.309 is amended by:
0
a. Revising paragraphs (b)(4), (e)(1), (2), (8), and (9), and (f) 
through (h); and
0
b. Adding paragraph (i).
    The revisions and addition 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 
(b) 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

[[Page 81318]]

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 Sec.  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
40. 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 part 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.
    (c) The Operating Crew Review Board shall be composed of employees 
of the Federal Railroad Administration selected by the Administrator.

0
41. Section 240.403 is amended by:
0
a. Revising and republishing paragraph (b);
0
b. Revising paragraphs (c) and (d); and
0
c. Removing paragraph (e).
    The revisions and addition read as follows:


Sec.  240.403   Petition requirements.

* * * * *
    (b) Each petition shall:
    (1) Be in writing;
    (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;
    (3) Contain all available information that the person thinks 
supports the person's belief that the railroad acted improperly, 
including:
    (i) The petitioner's full name;
    (ii) The petitioner's current mailing address;
    (iii) The petitioner's daytime telephone number;
    (iv) The petitioner's email address (if available);
    (v) The name and address of the railroad; and
    (vi) The facts that the petitioner believes constitute the improper 
action by the railroad, specifying the locations, dates, and identities 
of all persons who were present or involved in the railroad's actions 
(to the degree known by the petitioner);
    (4) Explain the nature of the remedial action sought;
    (5) Be supplemented by a copy of all written documents in the 
petitioner's possession or reasonably available to the petitioner that 
document that railroad's decision;
    (6) Be filed in a timely manner; and
    (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 that the request for extension is filed before the 
expiration of the period provided in this paragraph (c); or
    (2) Provided that the failure to file timely 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
42. 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

[[Page 81319]]

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) 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) When considering procedural issues, the Board will determine 
whether the petitioner suffered substantial harm that was caused by 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) 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 part (i.e., 
based on an incorrect determination that the person failed to meet the 
certification requirements of this part) 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
43. Section 240.407 is amended by revising paragraphs (a) and (c) and 
revising and republishing paragraph (d) 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;
    (2) The specific factual issues, industry rules, regulations, or 
laws that the requesting party alleges need to be examined in 
connection with the certification decision in question; and
    (3) The signature of the requesting party or the requesting party's 
representative, if any.
* * * * *

0
44. 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 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
45. 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 in the presiding officer's docket. The appeal must be 
filed within 35 days of issuance of the decision. 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 in the Board's docket within 35 days 
of issuance of the decision. A copy of the appeal shall be served on 
each party. The Administrator may affirm or vacate the Board's

[[Page 81320]]

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
46. 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, and 
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 can be in letter or narrative format. The primary method 
for a railroad's submission is by email to [email protected]. 
For a railroad that is unable to send the program by email, the 
program shall be sent to the Associate Administrator for Railroad 
Safety/Chief Safety Officer, Federal Railroad Administration, 1200 
New Jersey Avenue SE, Washington, DC 20590. Simultaneous with its 
filing with FRA, each railroad must provide a copy of its submission 
to the president of each labor organization that represents the 
railroad's employees subject to this part.
    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 merely to 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. Sec.  240.103(b).
    If a railroad elects not to provide initial locomotive engineer 
training, the railroad is obligated to state so in its submission. A 
railroad that makes this election will be limited to recertifying 
persons initially certified by another railroad. A railroad that 
makes this election can rescind it by obtaining FRA approval of a 
modification of its program. 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 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. 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

[[Page 81321]]

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. Sec.  240.125 and 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 examine effectively 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 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 to this part) 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 
operate a locomotive safely. The railroad must describe in this 
section how it will ensure that its medical examiner has sufficient 
information concerning the railroad's operations to make appropriate 
conclusions about the ability of a particular individual to operate 
a train safely.

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 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

[[Page 81322]]

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 the preceding paragraph.

FRA Review

    The submissions made in conformity with this appendix will be 
deemed approved within 30 days after the required filing date or the 
actual filing date whichever is later. No formal approval document 
will be issued by FRA. 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 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 operate trains safely.


0
47. Revise appendix C to part 240 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. 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 driver 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 has 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.

[[Page 81323]]

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 identify more 
positively 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.

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
48. 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, 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 contacting NHTSA directly.


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

[[Page 81324]]

Appendix G to Part 240--Application of Revocable Events
[GRAPHIC] [TIFF OMITTED] TR15DE20.007

PART 242--QUALIFICATION AND CERTIFICATION OF CONDUCTORS

0
50. The authority citation for part 242 continues to read as follows:

    Authority:  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
51. Section 242.7 is amended by revising the definitions of ``Main 
track'' and ``Substance abuse disorder'' to read as follows:


Sec.  242.7   Definitions.

* * * * *
    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; or any form of 
absolute or manual block system.
* * * * *
    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 complete primary treatment successfully or participate in 
aftercare successfully as directed by a DAC or SAP.
* * * * *

0
52. Section 242.103 is amended by revising paragraphs (b), (c)(1) and 
(2), and (d)(2) and (3) to read as follows:


Sec.  242.103   Approval of design of individual railroad programs by 
FRA.

* * * * *
    (b) A railroad commencing operations after the pertinent date 
specified in paragraph (a) of this section shall submit its written 
certification program and request for approval in accordance with the 
procedures contained in appendix B to this part at least 60 days prior 
to commencing operations. The primary method for a railroad's 
submission is by email to [email protected]. For those railroads 
that are unable to send the program by email, the program may be sent 
to the Associate Administrator for Railroad Safety/Chief Safety 
Officer, Federal Railroad Administration, 1200 New Jersey Avenue SE, 
Washington, DC 20590.
    (c) * * *
    (1) Simultaneous with its filing with FRA, provide a copy of the 
submission filed pursuant to paragraph (a) or (b) of this section, a 
resubmission filed pursuant to paragraph (h) of this section, or a 
material modification filed pursuant to paragraph (i) of this section 
to 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) or 
(b) of this section, a resubmission filed pursuant to paragraph (h) of 
this section, or a material modification filed pursuant to paragraph 
(i) of this section a statement affirming that the railroad has 
provided a copy to 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 provided a copy.
    (d) * * *
    (2) Each comment shall be submitted by email to 
[email protected] or by mail to the Associate Administrator for 
Railroad Safety/Chief Safety Officer, FRA, 1200 New Jersey Avenue SE, 
Washington, DC 20590; and
    (3) The commenter shall affirm that a copy of the comment was 
provided to the railroad.
* * * * *

0
53. Section 242.117 is amended by revising and republishing paragraphs 
(g), (h), and (i) to read as follows:

[[Page 81325]]

Sec.  242.117   Vision and hearing acuity.

* * * * *
    (g) In order to be currently certified as a conductor, except as 
permitted by paragraph (j) of this section, a person's vision and 
hearing shall meet or exceed the standards prescribed in this section 
and appendix D to this part. It is recommended that each test conducted 
pursuant to this section should be performed according to any 
directions supplied by the manufacturer of such test and any American 
National Standards Institute (ANSI) standards that are applicable.
    (h) Except as provided in paragraph (j) of this section, each 
person shall have visual acuity that meets or exceeds the following 
thresholds:
    (1) For distant viewing, either:
    (i) Distant visual acuity of at least 20/40 (Snellen) in each eye 
without corrective lenses; or
    (ii) Distant visual acuity separately corrected to at least 20/40 
(Snellen) with corrective lenses and distant binocular acuity of at 
least 20/40 (Snellen) in both eyes with or without corrective lenses;
    (2) A field of vision of at least 70 degrees in the horizontal 
meridian in each eye; and
    (3) The ability to recognize and distinguish between the colors of 
railroad signals as demonstrated by successfully completing one of the 
tests in appendix D to this part.
    (i) Except as provided in paragraph (j) 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) (Occupational Safety and 
Health Administration);
    (2) As required in Sec.  227.111 of this chapter; or
    (3) Conducted using an audiometer that meets the specifications of 
and is maintained and used in accordance with a formal industry 
standard, such as ANSI S3.6, ``Specifications for Audiometers.''
* * * * *

0
54. Section 242.213 is amended by revising and republishing paragraph 
(e) to read as follows:


Sec.  242.213   Multiple certifications.

* * * * *
    (e) If the conductor is removed from a passenger 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.
* * * * *

0
55. Section 242.403 is amended by revising and republishing paragraph 
(d) to read as follows:


Sec.  242.403   Criteria for revoking certification.

* * * * *
    (d) In determining whether a person may be or remain certified as a 
conductor, a railroad shall consider as operating rule compliance data 
only conduct described in paragraphs (e)(1) through (11) of this 
section that occurred within a period of 36 consecutive months prior to 
the determination. A review of an existing certification shall be 
initiated promptly upon the occurrence and documentation of any conduct 
described in this section.
* * * * *

0
56. Section 242.503 is amended by revising and republishing paragraph 
(c) to read as follows:


Sec.  242.503   Petition requirements.

* * * * *
    (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.  242.407 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 that the request for extension is filed before the 
expiration of the period provided in this paragraph (c); or
    (2) Provided that the failure to file timely was the result of 
excusable neglect.
* * * * *

0
57. Section 242.505 is amended by revising paragraphs (h), (i) 
introductory text, (j), and (k) to read as follows:


Sec.  242.505   Processing certification review petitions.

* * * * *
    (h) 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) When considering procedural issues, the Board will determine 
whether the petitioner suffered substantial harm that was caused by 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:
* * * * *
    (j) 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 part (i.e., 
based on an incorrect determination that the person failed to meet the 
certification requirements of this part) 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.
* * * * *

0
58. Section 242.511 is amended by revising paragraphs (a) and (f) to 
read as follows:


Sec.  242.511   Appeals.

    (a) Any party aggrieved by the presiding officer's decision may 
file an appeal in the presiding officer's docket. The appeal must be 
filed within 35 days of issuance of the decision. 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.  242.503(d) must be filed in the Board's docket within 35 days 
of issuance of the decision. 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
59. Revise appendix E to part 242 to read as follows:

[[Page 81326]]

Appendix E to Part 242--Application of Revocable Events
[GRAPHIC] [TIFF OMITTED] TR15DE20.008


    Issued in Washington, DC.
Quintin C. Kendall,
Deputy Administrator.
[FR Doc. 2020-27209 Filed 12-14-20; 8:45 am]
BILLING CODE 4910-06-P

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