[Federal Register Volume 63, Number 183 (Tuesday, September 22, 1998)]
[Proposed Rules]
[Pages 50626-50658]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-24594]



[[Page 50625]]

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Part II





Department of Transportation





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Federal Railroad Administration



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49 CFR Part 240



Qualifications for Locomotive Engineers; Proposed Rule

  Federal Register / Vol. 63, No. 183 / Tuesday, September 22, 1998 / 
Proposed Rules  

[[Page 50626]]



DEPARTMENT OF TRANSPORTATION

Federal Railroad Administration

49 CFR Part 240

[FRA Docket No. RSOR-9, Notice 10]
RIN 2130-AA74


Qualifications for Locomotive Engineers

AGENCY: Federal Railroad Administration (FRA), DOT.

ACTION: Notice of proposed rulemaking.

-----------------------------------------------------------------------

SUMMARY: In January 1997, FRA convened a working group comprised of 
rail industry and labor representatives to recommend revisions to FRA's 
requirements for the qualification and certification of locomotive 
engineers (49 CFR Part 240). The working group examined data, discussed 
the successes and failures of the current rule, and debated how to 
improve the regulations over a ten month period. This notice of 
proposed rulemaking (NPRM) contains miscellaneous proposed amendments 
derived from those working group meetings. In particular, the FRA 
proposes to: Improve the decertification process; clarify when 
certified locomotive engineers are required to operate service 
vehicles; and address the concern that some designated supervisors of 
locomotive engineers are insufficiently qualified to properly 
supervise, train, or test locomotive engineers.

DATES: Written comments concerning this rule must be received no later 
than November 23, 1998. Comments received after that date will be 
considered to the extent possible without incurring additional expense 
or delay.
    Requests for a public hearing must be made by October 22, 1998. Any 
person interested in requesting a hearing should contact Ms. Renee 
Bridgers, Docket Clerk, at (202) 493-6030 or submit a written request 
to the address shown below.

ADDRESSES: Written comments (three copies) concerning this rule should 
be submitted to Ms. Renee Bridgers, Docket Clerk, Office of Chief 
Counsel, FRA, 400 Seventh Street S.W., Mail Stop 10, Washington, D.C. 
20590. Persons desiring to be notified that their written comments have 
been received by FRA should submit a stamped, self addressed, postcard 
with their comments. The Docket Clerk will indicate on the postcard the 
date on which the comments were received and will return the card to 
the addressee. Written comments will be available for examination 
during normal business hours both before and after the closing date for 
comments in Room 7051 at 1120 Vermont Avenue, NW, Washington, D.C. 
20005. All hand deliveries should be made to the Seventh Street 
address.
    In the very near future, FRA's docket system will be integrated 
with the centralized DOT docket facility which will enable the public 
to view all documents in a public docket through the Internet. At that 
time, all comments received in this proceeding will be transferred to 
the central docket facility and all subsequent documents relating to 
this proceeding will be filed directly in, and be available for 
inspection through, the centralized docket system. A notice of the 
docket system change with complete filing and inspection information 
will be published in the Federal Register at the appropriate time.

FOR FURTHER INFORMATION CONTACT: John Conklin, Operating Practices 
Specialist, Office of Safety Assurance and Compliance, FRA, 400 Seventh 
Street S.W., Mail Stop 25, Washington, D.C. 20590 (telephone: 202-493-
6318); Alan H. Nagler, Trial Attorney, Office of Chief Counsel, FRA, 
400 Seventh Street, S.W., RCC-11, Mail Stop 10, Washington, D.C. 20590 
(telephone: 202-493-6049); or Mark H. McKeon, Regional Administrator, 
55 Broadway, Cambridge, MA 02142 (telephone: 617-494-2243).

SUPPLEMENTARY INFORMATION:

I. Statutory Background

    Section 4 of the Rail Safety Improvement Act of 1988 (``RSIA''), 
Pub. L. 100-342, 102 Stat. 624 (June 22, 1988), later amended and 
recodified by Pub. L. 103-272, 108 Stat. 874 (July 5, 1994), requires 
that FRA issue regulations to establish any necessary program for 
certifying or licensing locomotive operators. This statutory 
requirement was adopted in the wake of an Amtrak/Conrail accident at 
Chase, Maryland which was caused by a failure in human performance. 
Congress thus determined the existence of a safety need for regulations 
concerning the qualifications of engineers.
    In addition to the general need for regulations, Congress required 
that certain subject areas be addressed within those regulations. Now 
codified at 49 U.S.C. Sec. 20135, the amended statute currently 
provides in pertinent part as follows:
    (a) General.--The Secretary of Transportation shall prescribe 
regulations and issue orders to establish a program requiring the 
licensing or certification, after one year after the program is 
established, of any operator of a locomotive.
    (b) Program requirements.--The program established under subsection 
(a) of this section--
    (1) shall be carried out through review and approval of each 
railroad carrier's operator qualification standards;
    (2) shall provide minimum training requirements;
    (3) shall require comprehensive knowledge of applicable railroad 
carrier operating practices and rules;
    (4) except as provided in subsection (c)(1) of this section, shall 
require consideration, to the extent the information is available, of 
the motor vehicle driving record of each individual seeking licensing 
or certification, including--
    (A) any denial, cancellation, revocation, or suspension of a motor 
vehicle operator's license by a State for cause within the prior 5 
years; and
    (B) any conviction within the prior 5 years of an offense described 
in section 30304(a)(3)(A) or (B) of this title;
    (5) may require, based on the individual's driving record, 
disqualification or the granting of a license or certification 
conditioned on requirements the Secretary prescribes; and
    (6) shall require an individual seeking a license or 
certification--
    (A) to request the chief driver licensing official of each State in 
which the individual has held a motor vehicle operator's license within 
the prior 5 years to provide information about the individual's driving 
record to the individual's employer, prospective employer, or the 
Secretary, as the Secretary requires; and
    (B) to make the request provided for in section 30305(b)(4) of this 
title for information to be sent to the individual's employer, 
prospective employer, or the Secretary, as the Secretary requires.
    (c) Waivers.--(1) The Secretary shall prescribe standards and 
establish procedures for waiving subsection (b)(4) of this section for 
an individual or class of individuals who the Secretary decides are not 
currently unfit to operate a locomotive. However, the Secretary may 
waive subsection (b)(4) for an individual or class of individuals with 
a conviction, cancellation, revocation, or suspension described in 
paragraph (2)(A) or (B) of this subsection only if the individual or 
class, after the conviction, cancellation, revocation, or suspension, 
successfully completes a rehabilitation program established by a 
railroad carrier or approved by the Secretary.
    (2) If an individual, after the conviction, cancellation, 
revocation, or suspension, successfully completes a

[[Page 50627]]

rehabilitation program established by a railroad carrier or approved by 
the Secretary, the individual may not be denied a license or 
certification under subsection (b)(4) of this section because of--
    (A) a conviction for operating a motor vehicle when under the 
influence of, or impaired by, alcohol or a controlled substance; or
    (B) the cancellation, revocation, or suspension of the individual's 
motor vehicle operator's license for operating a motor vehicle when 
under the influence of, or impaired by, alcohol or a controlled 
substance.
    (d) Opportunity for hearing.--An individual denied a license or 
certification or whose license or certification is conditioned on 
requirements prescribed under subsection (b)(4) of this section shall 
be entitled to a hearing under section 20103(e) of this title to decide 
whether the license has been properly denied or conditioned.
    (e) Opportunity to examine and comment on information.--The 
Secretary, employer, or prospective employer, as appropriate, shall 
make information obtained under subsection (b)(6) of this section 
available to the individual. The individual shall be given an 
opportunity to comment in writing about the information. Any comment 
shall be included in any record or file maintained by the Secretary, 
employer, or prospective employer that contains information to which 
the comment is related.

II. Regulatory Background

    One year and a half after the passage of the RSIA, FRA published an 
NPRM which proposed a certification program for locomotive operators. 
54 FR 50890 (Dec. 11, 1989). FRA noted that in the preamble to the 
final rule that some of the comments received in response to this NPRM 
suggested ``significant misunderstanding of the proposal.'' 56 FR 
28228, 28229 (June 19, 1991). These misunderstandings and the 
appropriateness of the approach were addressed thoroughly in the final 
rule's preamble. 56 FR 28228, 28229-30 (June 19, 1991).
    The final rule establishing minimum qualification standards for 
locomotive engineers is a certification program, not a licensing 
program. In summary, the rule requires railroads to have a formal 
process for evaluating prospective operators of locomotives and 
determining that they are competent before permitting them to operate a 
locomotive or train. The procedures require that railroads: (1) Make a 
series of four determinations about a person's competency; (2) devise 
and adhere to an FRA-approved training program for locomotive 
engineers; and (3) employ standard methods for identifying qualified 
locomotive engineers and monitoring their performance. At the time of 
publication, FRA noted that the agency ``is adopting this regulation to 
minimize the potentially grave risks posed when unqualified people 
operate trains.'' 56 FR 28228 (June 19, 1991).
    In 1993, less than two years after the publication of the final 
rule, an interim final rule was promulgated ``in response to petitions 
for reconsideration and requests for clarification.'' 58 FR 18982 (Apr. 
9, 1993). Some of the issues addressed in this rule included: (1) The 
application of the rule to service vehicles which could potentially 
function as a locomotive or train; (2) the application of the rule to 
certain minimal, incidental and joint operations; (3) the application 
of the rule to events involving operational misconduct by a locomotive 
engineer; (4) the application of the rule to current railroad practices 
for storing data electronically; (5) the application of the rule to 
events involving testing and evaluation of a locomotive engineer's 
knowledge or skills; (6) the application of the procedural provisions 
of the rule to events involving denial, suspension and revocation of 
certification; and (7) technical changes to correct minor errors in the 
rule text. FRA did not provide additional notice and request for public 
comment prior to making the amendments contained in this interim final 
rule. ``FRA concluded that such notice and comment were impractical, 
unnecessary and contrary to the public interest since FRA is, for the 
most part, only making minor technical changes in response to requests 
for reconsideration of issues that were previously the subject of 
detailed notice and extensive comment in the development of the initial 
final rule in this proceeding.'' 58 FR 18982, 19002 (Apr. 9, 1993). In 
addition, FRA stated that delay in the effective implementation of this 
interim rule could result in the diversion of significant resources by 
all persons and entities effected by this rule. Meanwhile, this interim 
final rule guaranteed a full opportunity to comment on the amendments.
    In 1995, after approximately four years and four months had passed 
since the initial final rule, FRA issued a second interim final rule. 
This second interim final rule contained minor modifications that 
clarified existing procedural rules applicable to the administrative 
hearing process; a series of changes made to provide for omitted 
procedures; and changes to correct typographical errors and minor 
ambiguities that had been detected since the rule's issuance. 60 FR 
53133 (Oct. 12, 1995). Since the Administrative Procedure Act, 
specifically 5 U.S.C. Sec. 553(b)(3), provides that no notice and 
comment period is required when an agency modifies rules of internal 
procedure and practice, FRA issued this regulation without provision of 
such a period of comment prior to its adoption. 60 FR 53133, 53135 
(Oct. 12, 1995). However, FRA did provide for a 30 day comment period 
subsequent to the publication of this interim final rule and stated 
that any comments received would be considered to the extent 
practicable.

III. The Railroad Safety Advisory Committee

    In 1994, FRA established its first formal regulatory negotiation 
committee to address roadway worker safety. This committee successfully 
reached consensus conclusions and recommended an NPRM to the 
Administrator, persuading FRA that a more consensual approach to 
rulemaking would likely yield more effective, and more widely accepted, 
rules. Additionally, President Clinton's March 1995 Presidential 
Memorandum titled ``Regulatory Reinvention Initiative'' directed 
agencies to expand their efforts to promote consensual rulemaking. FRA 
therefore decided to move to a collaborative process by creating a 
Railroad Safety Advisory Committee (RSAC or the Committee) pursuant to 
the Federal Advisory Committee Act (Pub. L. 92-463).
    RSAC was established to provide recommendations and advice to the 
Administrator on development of FRA's railroad safety regulatory 
program, including issuance of new regulations, review and revision of 
existing regulations, and identification of non-regulatory alternatives 
for improvement of railroad safety. RSAC is comprised of 48 
representatives from 27 member organizations, including railroads, 
labor groups, equipment manufacturers, state government groups, public 
associations, and two associate non-voting representatives from Canada 
and Mexico. The Administrator's representative (the Associate 
Administrator for Safety or that person's delegate) is the Chairperson 
of the Committee. The revisions proposed in this NPRM originated from 
the deliberations of RSAC.
    At an RSAC meeting that began on October 31, 1996 and ended on 
November 1, the Committee agreed to take on the task of proposing 
miscellaneous revisions to the

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regulations addressing Locomotive Engineer Certification (49 CFR Part 
240). See 61 FR 54698 (Oct. 21, 1996). The Committee members delegated 
responsibility for creating a proposal to a working group consisting of 
the members' representatives. The Qualification and Certification of 
Locomotive Engineers Working Group (Working Group or Group) met for 
seven week-long meetings prior to submitting the Working Group's 
proposal to the Committee.
    Considering the temporary nature of the two interim final rules and 
the thorough review of the regulation provided for in this rulemaking 
process, the two previously issued interim final rules shall be made 
final when the following proposed rule is published as a final rule. Of 
course, the amendments proposed here would govern any conflicts with 
the previously published interim final rules when published as a final 
rule.
    On May 14, the Committee recommended that the FRA Administrator 
publish the Working Group's consensually reached effort as a proposed 
rule. Simultaneously, the Committee recognized that the proposal 
contains some suggested amendments that may be further improved by 
being subject to more debate. In order to address these concerns and in 
keeping with the established RSAC process, ``[f]ollowing issuance of a 
proposed rule, FRA requests the RSAC to assist FRA in considering 
comments received; [w]ith respect to either a proposed or final rule, 
FRA may schedule one or more meetings of the RSAC during which 
information and views are received from other interested parties.'' 
FRA's ``The RSAC Process'' (Mar. 27, 1996). In conformity with RSAC's 
practice, FRA would expect that this task of resolving any remaining 
details would be performed by the Working Group on behalf of the RSAC 
regardless of whether these details are raised by RSAC members 
themselves or in comments from ``other interested parties.''

IV. The Qualification and Certification of Locomotive Engineers 
Working Group

    The Working Group is comprised of representatives from the 
following organizations:

American Public Transit Association (APTA)
American Short Line and Regional Railroad Association (ASLRRA)
Association of American Railroads (AAR)
Brotherhood of Locomotive Engineers (BLE)
Brotherhood of Maintenance of Way Employes (BMWE)
Brotherhood of Railroad Signalmen (BRS)
Burlington Northern Santa Fe (BNSF)
Canadian Pacific Rail System (CP)
Consolidated Rail Corporation (Conrail)
CSX Transportation, Inc. (CSX)
FRA
Florida East Coast Railway Company
Gateway Western Railway
Herzog Transit Service
Illinois Central Railroad
International Brotherhood of Electrical Workers (IBEW)
Long Island Rail Road (LIRR)
Metro-North Commuter Railroad Company
National Railroad Passenger Corporation (Amtrak)
Norfolk Southern Corporation (NS)
Plasser American Corporation
Railway Progress Institute (RPI)
Transportation Communications International Union (TCU)
Union Pacific Railroad (UP)
United Transportation Union (UTU).

    In addition to these Working Group members, the National 
Transportation Safety Board was represented at some of the meetings.
    In its Task Statement (Task No. 96-6) to the Working Group, RSAC 
charged the Group to report back on the following issues: ``All matters 
related to the revision of the regulations, including data required for 
regulatory analysis, with the exception of Control of Alcohol and Drug 
Use issues (See issues paper for October 31-November 1, 1996 meeting in 
the docket).'' FRA intends to address the alcohol and drug related 
issues in a future proposed rule.
    The Working Group's goal was to produce a preamble and proposed 
rule text recommending revisions to 49 CFR part 240, that are warranted 
by appropriate data and analysis. The Working Group's recommendations 
would then be sent to RSAC for review. FRA would in turn utilize the 
consensus recommendations of RSAC as the basis for proposed and final 
agency action whenever possible, consistent with applicable law and 
Presidential guidance. The Working Group could also recommend specific 
safety policies and procedures that the Working Group considered 
relevant but inappropriate for regulatory action.
    To accomplish this goal, the Working Group held seven meetings, all 
of which were open to the public. Summary minutes were taken, and have 
been placed in a docket available for inspection in Washington, D.C. 
FRA worked in concert with the Working Group to develop this NPRM.
    At a meeting held on May 14, 1998, RSAC voted to recommend that the 
Administrator issue this document as a proposed Federal regulation and 
continue the rulemaking procedures necessary to adopt its principles in 
a final rule. At the conclusion of the comment period on this proposal, 
FRA will work with the Working Group in developing a final rule.
    The section-by-section analysis discusses all of the proposed 
amendments to this part.

V. Major Issues

Background

    In order to facilitate any discussions concerning this rule, FRA 
presented RSAC and the Working Group with a thirty-four page ``Issues 
Paper.'' This document was the agency's attempt to provide background 
information, unanswered questions, and the pros and cons of possible 
``options for consideration'' for all of the issues FRA had identified 
as areas for reconsideration. The tone of the ``Issues Paper'' was 
objective and contemplated both dramatic and subtle changes to the 
regulation.
    By the end of the Working Group's first meeting, the Group had 
created its own list of topics to be discussed at future meetings. At 
that first meeting, twenty-three issues were identified and set out in 
an agenda. By the end of the sixth meeting, the Working Group had added 
five (5) more topics to the agenda. This agenda was challenging, even 
more so since many of these topics contained multiple sub-issues. The 
following is a list of the final twenty-eight topics:
    1. Modification of the Decertification Provisions to Clarify 
Railroad Discretion.
    2. Modification of the Provisions of Sec. 240.117 to Refine the 
Operational Misconduct Events that can cause Decertification, including 
Decertification Rights for Defective Equipment.
    3. Permit Alternate Responses to Operational Misconduct Events.
    4. Should Operational Tests Result in Decertification.
    5. Ways to Improve FRA's Direct Control Over Operational 
Misconduct.
    6. Servicing Track Operations.
    7. Should Operational Experience be a Prerequisite for Designated 
Supervisors of Locomotive Engineers.
    8. Use of Contractors as Designated Supervisors of Locomotive 
Engineers.
    9. Accommodating New Railroads--New Territories.
    10. Conductor Pilots versus Engineer Pilots.
    11. Class 1 Railroads' Acceptance of Class 3 Railroads' 
Certification.

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    12. Electronic Data Storage.
    13. Improving the Dispute Resolution Procedures.
    14. A Person's Right to Exercise Seniority in Another Craft.
    15. Reimbursement for Monetary Losses Due to a Railroad's Improper 
Action Under Part 240, Dispute Resolution Procedures.
    16. Requested Ban for Consecutively Running of Part 240 
Decertification and Disciplinary Punishments Periods.
    17. Data Required to be on Certificates.
    18. Reviewing the Hearing and Visual Acuity Standards.
    19. Class of Service.
    20. Enforcement of Regulations.
    21. Review Timing Constraints as Well as Requirement for State and 
NDR Checks Contained Within Regulation 49 CFR 240.111, 240.217 and 
240.113.
    22. Supplemental Certification of Tenant Railroad Engineers (49 CFR 
240.225 and 240.229).
    23. Application of the Rule to Certain Service Vehicles.
    24. Modify or Eliminate NDR Checks.
    25. Sec. 240.107 Proposal to Modify the Definition of Locomotive 
Servicing Engineer to Permit Them to Move Sand Cars, Air Repeater Cars, 
Locomotive Diesel Fuel Cars, etc.
    26. Proposal to Lengthen the Certification Period from 3 Years to 5 
Years.
    27. Sec. 240.7 Proposal to Specifically Exempt Computer Controlled/
Remote Controlled Hump Locomotive Operations From part 240.
    28. Alleged Conflict Between Sec. 240.221(c) and SA 96-05, 
Regarding the Identification of Qualified Persons.
    In the absence of any proposed changes, it can be assumed that the 
Working Group consensus was to recommend no change concerning the 
specific subject. The Working Group recommended and FRA is proposing to 
make changes on six major topics. A discussion of each of these major 
topics follows.
A. Application of the Rule to Certain Service Vehicles
    Since the rule's inception, there has been profound concern over 
whether certain service vehicles (or ``specialized roadway maintenance 
equipment'' as referred to in this proposed rule) should be considered 
locomotives for the purposes of this rule, and in 1993 FRA promised to 
issue a notice of proposed rulemaking on this issue. 58 FR 18982, 18983 
(Apr. 9, 1993). The definition of a locomotive found in Sec. 240.7 of 
the final rule is sufficiently broad so that the rule would require 
certified operators at the controls of vehicles that are deemed 
locomotives for the purposes of FRA's locomotive safety standards. See 
49 CFR part 229. However, in response to petitions filed by the AAR and 
Sperry Rail Services Incorporated (Sperry), FRA deferred its decision 
on whether to insist that certified engineers operate four types of 
vehicles that fit within that previous definition of a locomotive but 
which are commonly considered ``service vehicles.''
    The basis for the deferment was thoroughly explained within the 
preamble of the interim final rule. 58 FR 18982, 18983 (April 9, 1993). 
Within that preamble, FRA identified four general types of service 
vehicles that are different from the types of vehicles traditionally 
considered locomotives. There is no question that the rule requires 
qualified and certified locomotive engineers to operate the types of 
vehicles traditionally considered locomotives. The proposed amendments 
to the rule attempt to resolve the issue of when other vehicles that 
may perform the same function as a traditional locomotive are required 
to be operated exclusively by certified locomotive engineers.
    During the Working Group's discussions, the question of FRA's legal 
authority was raised. FRA's position is that the legislative history of 
the Rail Safety Improvement Act of 1988 reflects that Congress did not 
intend to limit the certification rule to persons who operate 
traditional locomotives. Instead, the legislative history reflects that 
(1) the statute does not define ``locomotive;'' (2) Congressional 
committee reports and floor speeches do not explicitly define 
``locomotive;'' and, (3) in a joint statement, managers on the part of 
the House and the Senate agreed that the intent of the bill was to 
``require the Secretary [of Transportation] . . . to issue rules, 
regulations, standards, and orders concerning minimum qualifications 
for the operators of trains.'' House Conference Report No. 100-637, at 
21 (May 19, 1988) (emphasis added). As a result of these findings, FRA 
does not believe that the statute or the legislative history precludes 
the agency from regulating the operators of service vehicles that have 
operational characteristics similar to those of a train.
    Given FRA's authority, one follow-up question is whether there is a 
need for certification of the operators of these vehicles as a general 
matter. To a great extent, the Working Group's opinion is influenced by 
the publication of the recently enacted Roadway Worker Protection rule. 
61 Fed. Reg. 65959 (Dec. 16, 1996) (codified at 49 C.F.R. 214). The 
Working Group members recognize that the Roadway Worker Protection rule 
requires the training and qualification in on-track safety for 
operators of specialized roadway maintenance equipment. Hence, it would 
be duplicative, to some degree, to require that these operators of 
specialized roadway maintenance equipment also be certified as 
locomotive engineers.
    Between 1989 and 1993, there were 188 injuries and five (5) 
fatalities as a result of workers being struck by maintenance-of-way 
(MOW) equipment. A review of accidents in which roadway workers were 
struck indicates that roadway workers have been struck by MOW equipment 
during the performance of track and structures construction and 
maintenance performed jointly by ground employees and heavy on-track 
machinery. FRA expects that implementation of the Roadway Worker 
Protection rule will prevent at least half of such potential 
casualties. The probability of occurrence associated with the remaining 
casualties would not likely be affected by requiring exclusive 
operation by certified locomotive engineers. Based upon the history of 
roadway worker casualties, virtually all of these accidents occur at 
low speeds where train handling is not an issue.
    After considering training, the Working Group concentrated on 
categorizing the vehicles into two classes of service: (1) specialized 
roadway maintenance equipment, and (2) dual purpose vehicles. The 
Working Group could not document an accident history or any other 
reason to require certified operators of specialized roadway 
maintenance equipment when these vehicles are used ``in conjunction 
with roadway maintenance and related maintenance of way functions, 
including traveling to and from the work site.'' Sec. 240.104(a). The 
sole purpose of this type of vehicle is to perform its intended MOW 
function.
    On the other hand, dual purpose vehicles, by definition, can be 
used to perform an MOW function and haul cars. Thus, the need to have 
certified operators of these dual purpose vehicles is genuine where the 
vehicle is operating more like a locomotive than a service vehicle. The 
need is not a universal one and the Working Group did not see a need 
for a dual purpose vehicle to be operated by a certified locomotive 
engineer when the following conditions are met: (1) The vehicle is 
operated in conjunction with roadway maintenance and related MOW 
functions; (2) the vehicle's movement is being conducted ``under the 
authority of rules designated by the railroad for

[[Page 50630]]

maintenance of way equipment [and] under the direct supervision of an 
employee trained and qualified in accordance with Sec. 214.353 of this 
chapter, which provides Exclusive Track Occupancy for the roadway 
equipment with respect to trains;'' (3) the person operating the 
vehicle has received adequate training pursuant to safety laws 
regulating roadway workers; and (4) the vehicle has met a minimum 
standard for operative air brakes.
    None of the Working Group members submitted statistics showing that 
when dual purpose vehicles are being used for maintenance purposes they 
are causing accidents or incidents that could be prevented by requiring 
that such vehicles be operated by certified locomotive engineers. 
Meanwhile, the Working Group did identify one potential problem. One of 
the proposed conditions for a non-certified locomotive engineer to 
operate a dual purpose vehicle that will be hauling cars involves a 
requirement that ``not less than 85% of the total cars designed for air 
brakes shall have operative air brakes.'' Sec. 240.104(b)(4). The 
Working Group's intent is to make sure that when a dual purpose vehicle 
is hauling cars, to or from a work site, under the direction of 
qualified supervision, and operated by a trained roadway worker, the 
air brakes on the consist can stop the train within the normal stopping 
distance for that equipment. This requirement addresses safety concerns 
raised by a fatal accident involving a burro crane hauling cars from a 
work site on November 5, 1996 which did not have brake pipe hoses 
connected between the locomotive crane and the three freight cars being 
hauled.
    FRA wants to be clear that whenever a dual purpose vehicle is 
hauling cars in a train movement, regardless of whether the train is 
traveling to or from a work site, it must comply with the safety 
regulations found in part 232 of this chapter. These proposed revisions 
to part 240 are not intended to change this requirement, rather the 
proposed rule is merely aimed at determining when a person who is not a 
certified locomotive engineer is able to operate a train under certain 
limited conditions. That is, it is within a railroad's discretion as to 
whether a locomotive engineer or other person, pursuant to 
Sec. 240.104(b)(4), should operate a dual purpose vehicle hauling cars; 
however, regardless of whether the operator is a certified locomotive 
engineer or not, a railroad is required to operate, inspect and equip 
all trains in accordance with the requirements regarding power brakes 
contained in part 232 of this chapter. Thus, while this proposed part 
240 exception provides railroads with the discretion to use other than 
certified locomotive engineers under certain limited circumstances, the 
railroads would not be granted an exception from complying with part 
232 of this chapter.
    We would appreciate comments to learn how others perceive the ``85% 
rule'' found in Sec. 240.104(b)(4). FRA wishes to hear whether 
commenters believe this rule is necessary. We are also interested to 
know whether it is under- or over-inclusive. One alternative may be to 
change this paragraph to read ``any person who operates a dual purpose 
vehicle which is: (iv) hauling cars and which dual purpose vehicle has 
been operated, inspected and equipped in accordance with the 
requirements regarding power brakes contained in part 232 of this 
chapter.''
    One of the components of the Working Group's consensus involves how 
to address the treatment of emerging technologies within the regulatory 
arena. That is, manufacturers of service vehicles indicate that the 
industry is requesting equipment that can perform a specific MOW task 
and haul an increasing number of cars. As these vehicles improve, some 
railroads may decide to take advantage of the vehicles' ability to haul 
cars--even to the exclusion of their MOW function. Without a regulatory 
mechanism to address these dual purpose vehicles, FRA is concerned that 
some railroads might seek to use the dual purpose vehicle as a 
functioning locomotive to avoid the expense of having a certified 
locomotive engineer at the controls. Some Working Group members, 
including FRA, believe that such a use would circumvent the legislative 
intent behind the statute requiring the rule and add an unacceptable 
safety risk.
B. Qualifications for Designated Supervisors of Locomotive Engineers
    The role of the Designated Supervisor of Locomotive Engineers 
(DSLE) is critical to the safety success of this rule. This role is 
twofold. One, the DSLE makes the final determination that a locomotive 
engineer is qualified to safely operate a train. Two, after a person is 
certified, a DSLE is responsible for qualifying engineers on the 
physical characteristics of any additional territories the engineer 
will need to operate over.
    Some members of the Working Group, including FRA, are concerned 
with whether the current qualifications for DSLEs are too lenient. For 
instance, the rule does not make operational experience a prerequisite. 
FRA has noted that some railroads have been seeking to establish 
systems in their implementation programs that do not assure that 
supervisors will be experienced individuals. Moreover, since 
implementation of the original rule, FRA has investigated several 
instances in which there is some evidence that railroads designated 
persons to be supervisors who have only a minimum amount of operational 
experience. Although FRA is able to obtain corrective action in those 
instances where there is evidence that less than fully qualified 
persons are being selected, the case-by-case approach to this issue is 
not the most effective way to resolve the matter.
    From this starting position, the Working Group considered whether 
Sec. 240.105 should be amended to specify a minimum length of time that 
a person must serve as a locomotive engineer before that person would 
meet the criteria for becoming a designated supervisor of locomotive 
engineers. For example, one possible solution is to amend Sec. 240.105 
so that it includes a requirement that all designated supervisors of 
locomotive engineers have a minimum of three (3) years of experience 
operating locomotives. In conjunction with this proposal, the Working 
Group's review considered whether a minimum number of hours actually 
operating a train each year should be articulated. One advantage of 
such an experience requirement might be that DSLE candidates would 
benefit from real world experience. In fact, some labor and management 
Working Group members supported a minimum amount of experience 
requirement since they believe that this type of experience is critical 
to the development of an engineer's knowledge and skill.
    Conversely, other Working Group members point out that the rule 
should give railroads greater discretion since there is no clear safety 
rationale based on accident statistics for an experience requirement. 
These Working Group members state that the current rule assures that 
persons selected to be DSLEs will be competent since it requires that 
candidates for supervisor must be certified engineers. It also requires 
that candidates demonstrate that they have the knowledge, skill, and 
ability to be effective supervisors of engineers; these criteria 
include the capacity to effectively test, evaluate, and prescribe 
appropriate remedial action for noted deficiencies. In the end, the 
Working Group did not reach a consensus on whether FRA should propose 
an experience requirement.
    As the proposed modifications to Sec. 240.105(b)(4) reflect, the 
Working Group's discussion disclosed that an

[[Page 50631]]

underlying concern was the varying degree to which supervisors are 
familiar with the physical characteristics of the territories in which 
they work. Given this universal concern, the Working Group readily 
agreed to a compromise proposal which would require those persons who 
are DSLEs to be qualified on the physical characteristics of the 
portion of the railroad on which they are supervising. As specifically 
addressed in the proposed rule, railroads are required to address how 
they intend to implement the qualification of their DSLEs on physical 
characteristics and include those procedures in their certification 
programs.
    This compromise addresses similar safety concerns to those raised 
by the lack of operational experience. That is, allegations are raised 
that some DSLEs could not properly supervise, train, or test the 
locomotive engineers they supervise without having an engineer's level 
of education regarding the territory over which they are performing 
these supervisory duties. This might be especially true when a 
supervisor is transferred from a relatively flat/level territory to one 
which contains steep grades. [Steep grade territory would require a 
greater degree of train handling ability.] The proposed rule would 
satisfy the concern that, at a minimum, a DSLE who changes territories 
to a territory presenting tougher train handling challenges would 
receive an engineer's level of training on the physical characteristics 
of the new territory. Furthermore, FRA notes that Sec. 240.127(b) 
already requires that certified locomotive engineers must have ``the 
skills to safely operate locomotives and/or trains, including the 
proper application of the railroad's rules and practices for the safe 
operation of locomotives or trains, in the most demanding class or type 
of service that the person will be permitted to perform.'' Since it is 
presumed that a DSLE in a territory would be permitted to perform train 
handling service in that territory, as well as be prepared to offer 
remedial advice for noted deficiencies in the skill level of other 
locomotive engineers, a DSLE would need training that is commensurate 
with the difficulty of that territory.
    The Working Group's discussions recognized that the proposed 
requirement for DSLEs to be qualified on the physical characteristics 
of territory over which they supervise may conflict with other findings 
made by the Group. Consequently, the Working Group discussed these 
conflicts and agreed to a solution. A detailed discussion of this 
concern and the proposed solution is found in the section-by-section 
analysis relating to Sec. 240.127(c)(2).
C. Improving the Dispute Resolution Procedures
    FRA had addressed many procedural issues concerning the initial 
regulation by issuing a second Interim Final Rule. 60 FR 53133 (Oct. 
12, 1995). That Interim Final Rule provided improved procedures for the 
conduct of hearings held in connection with certification of the 
locomotive engineers pursuant to 49 CFR part 240. It clarified the 
standards for initial revocation hearings and provides more detailed 
procedural rules for the review of such decisions within FRA. The 
intention of this interim measure was to increase the effectiveness and 
clarity of the provisions involving hearings conducted in connection 
with the locomotive engineer certification program. From FRA's view, 
the 1995 interim changes have been successful in achieving their 
intended goals.
    Although FRA has already implemented this Interim Final Rule to 
improve the clarity of the existing procedures, the agency recognizes 
that there may be additional procedures that could be clarified or 
changed that would improve the dispute resolution process located in 
Subpart E. FRA received two (2) comments in response to this Interim 
Final Rule, and both comments were distributed to the Working Group for 
its consideration. One commenter, the AAR, is a member of the Working 
Group. In summary, the AAR had two concerns. One, AAR stated that by 
modifying the penalty schedule in Appendix A, FRA has made railroads 
liable for civil penalties for engineer conduct; ``this would 
significantly affect and alter the rights of the railroads.'' FRA 
disagrees that the changes made to the penalty schedule make railroads 
liable for engineer conduct; instead, FRA's position is that the 
penalty schedule needed to accurately reflect the existing rule so that 
it would be clear that railroads would be held responsible for their 
own conduct when requiring an engineer to exceed certificate 
limitations. Sec. 240.305(c). Two, the AAR also stated that ``FRA is 
incorrect in concluding that permitting notice and comment * * *. is 
`contrary to the public interest.' '' In hindsight, FRA stands by its 
reasoning on the denial of notice and comment for the same reasons that 
were originally provided. That is,

    A number of these changes are critical to the effective 
implementation of these rules and the delay that notice and comment 
would cause would be contrary to the public interest in railroad 
safety. The beginning of a new fiscal year on October 1, 1995, 
provides some urgency because budgetary constraints will require the 
use of internal hearing officers on all but emergency matters at the 
conclusion of Fiscal Year 1995. Moreover, the orderly implementation 
of part 240 requires prompt revision of its hearing procedures.

60 FR 53133, 53135-36 (Oct. 12, 1995).
    The other commenter was a concerned citizen who identifies himself 
as a consultant to the BLE and as someone who ``has participated in the 
handling of over two dozen Petitions for Review to FRA's Locomotive 
Engineer Review Board * * * [and] has served as a consultant or a 
representative in four administrative hearing cases.'' This commenter 
was concerned that by eliminating any reference suggesting that an 
appellate review of the Locomotive Engineer Review Board's (LERB) 
decision or a railroad's hearing was intended to occur at the 
administrative proceeding stage, ``the amended rule [would] * * * 
provide a disincentive for railroads to accord a locomotive engineer, 
facing potential revocation, due process.'' Furthermore, this citizen 
was concerned that ``the amended rule would essentially render the LERB 
impotent as an arbiter in certification disputes.''
    In response to these comments and the agency's attempt to revisit 
the whole issue, FRA raised seven (7) options for consideration in the 
``Issues Paper'' presented to the Committee and the Working Group. In 
addressing this issue, the Working Group formed a Task Force consisting 
of a some interested Group members to explore different options. After 
exploring the alternatives, the Working Group accepted the Task Force 
recommendations that the current system is the best choice, assuming 
that the petitions to the LERB and the requests for administrative 
proceedings are handled promptly.
D. Revisiting the Standards for Hearing and Vision
    Since FRA has not modified the standards for hearing and visual 
acuity since publishing the final rule in 1991, FRA suggests that 
sufficient time has passed to evaluate the effectiveness of this rule 
and determine whether any modifications are necessary. For instance, 
several commenters to the 1989 proposed rule raised concerns that were 
addressed in the preamble to the final rule. 56 FR 28228, 28235-36 
(June 19, 1991). Based on these comments, FRA made changes to the 
standards to allow railroads to use some discretion to permit 
individualized assessments of acuity and allow greater freedom in

[[Page 50632]]

selecting ways to accomplish FRA's goals. Meanwhile, FRA rejected 
comments that suggested different acuity standards would be better or 
that no action on this subject was necessary because of existing 
railroad practices.
    When FRA suggested that the Committee and the Working Group review 
these standards, the agency was aware of only a handful of people 
dissatisfied with the rule. This dissatisfaction received the following 
mention in FRA's ``Issues Paper'' presented to the RSAC:

    Meanwhile, FRA is aware of at least two or three persons who 
were dissatisfied with the way in which the rule was enforced to 
their detriment. In addition, FRA is aware of at least one instance 
in which an engineer was denied certification by one railroad due to 
the inability to recognize and distinguish between the colors of 
signals and yet was certified by another railroad.

    Subsequent to the submission of this issue to the Working Group, 
the National Transportation Safety Board (NTSB) issued a report 
determining that a fatal train accident was caused by a train 
engineer's inability to perceive a red block signal. The following is a 
portion of the executive summary taken from the NTSB's Railroad 
Accident Report--Near Head-On Collision and Derailment of Two New 
Jersey Transit Commuter Trains near Secaucus, New Jersey, February 9, 
1996 (NTSB/RAR-97/01):

    On February 9, 1996, about 8:40 a.m., eastbound New Jersey 
Transit (NJT) commuter train 1254 collided nearly head-on with 
westbound NJT commuter train 1107 near Secaucus, New Jersey. About 
400 passengers were on the two trains. The engineers on both trains 
and one passenger riding on train 1254 were killed in the collision.
    The National Transportation Safety Board determines that the 
probable cause of NJT train 1254 proceeding through a stop 
indication and striking another NJT commuter train was the failure 
of the train 1254 engineer to perceive correctly a red signal aspect 
because of his diabetic eye disease and resulting color vision 
deficiency, which he failed to report to New Jersey Transit during 
annual medical examinations. Contributing to the accident was the 
contract physician's use of an eye examination not intended to 
measure color discrimination.

    As a result of its investigation, the NTSB made two (2) 
recommendations to FRA. The first recommendation is numbered R-97-1 and 
recommends that FRA:

    [r]evise the current color vision testing requirements for 
locomotive engineers to specify, based on expert guidance, the test 
to be used, testing procedures, scoring criteria, and qualification 
standards.

    The second recommendation is numbered R-97-2 and recommends that 
FRA:

    [r]equire as a condition of certification that no person may act 
as an engineer with a known medical deficiency, or increase of a 
known medical deficiency, that would make that person unable to meet 
medical certification requirements.

An NTSB representative met with the Working Group and presented these 
recommendations and the NTSB's report upon which the recommendations 
are based.
    Upon receipt of the NTSB's recommendations, a task force consisting 
of Working Group members representing a cross-section of the Group was 
formed to address the NTSB's recommendations. The task force's efforts 
were initially impeded because none of the task force members had the 
medical expertise necessary to make an informed decision. In order to 
address NTSB recommendation R-97-1 effectively, the task force relied 
heavily on the resources of one Working Group member, the AAR. The task 
force scheduled a meeting after securing medical opinions from those 
currently administering the regulation and arranging for other medical 
experts to attend that meeting. That task force meeting proved to be 
productive, especially due to the participation of medical officers 
from the major railroads, the Federal Aviation Administration (FAA), 
and the NTSB. Although these medical officers could not vote on the 
proposals, their counsel was greatly appreciated and carried great 
weight. The information obtained during these contacts was used to 
formulate changes both to Sec. 240.121 and formed the basis for the 
proposed addition of Appendix F. The details of the task force 
recommendations, which FRA adopted, can be found in the proposed 
amendments to paragraphs (b), (c)(3), and (e) and which address NTSB 
recommendation R-97-1.
    In working through possible responses to the concern identified by 
NTSB recommendation R-97-2, the Working Group considered two possible 
alternative amendments that could work together with the change being 
proposed in this notice; however, in the end, the Working Group decided 
not to include these alternative amendments as part of the proposed 
rule. One of the failed amendments was a self estoppel or disbarment 
requirement that would obligate the engineer to avoid service as an 
engineer if that person knew or had reason to know of any medical 
condition that would make that person unable to operate a locomotive in 
a safe manner. Similarly, a self reporting scheme was considered. The 
reporting obligation would have been triggered whenever the engineer 
develops a medical condition that could reasonably be expected to 
adversely affect his or her ability to comply with this part or detects 
a significant change in the severity of such a known medical condition. 
The engineer would have been required to report the new medical 
condition or the change in a known medical condition to the employing 
railroad's medical examiner along with a duty to take appropriate tests 
(such as those set forth in Appendix F) as the medical examiner may 
have required.
    After serious consideration, the Working Group considered these 
proposed alternatives to be flawed and generally were too vague to be 
fairly enforced. They do not give the individual engineer adequate 
notice of the types of medical condition that would require reporting 
and declining to operate a train. Reasonable people can and do differ 
concerning whether a given condition of a given severity would make it 
unsafe to operate a train. Since FRA has not been able to either (1) 
demonstrate that accidents or fatalities are occurring because 
engineers with particular serious medical conditions are operating 
trains, or (2) define with any particularity the medical conditions 
about which we are concerned, it would be unreasonable to require 
locomotive engineers to make subjective medical judgments that may 
disqualify them from earning a living.
    Despite running into the above explained roadblock, the Working 
Group agreed that the factual basis for NTSB's recommendations 
contained reasons for concern. The Group then set out on a different 
tack. The premise of this new approach was to find an objective way to 
measure a deteriorating medical condition serious enough to require a 
locomotive engineer take affirmative action and notify the railroad. 
The duty to notify the railroad was narrowed to include only medical 
conditions affecting vision and hearing since those were the only 
medical criteria for certification. The Working Group's consensus on 
this issue is found in proposed Sec. 240.121(f). As noted above, 
additional background information on the specifics of these proposals 
can be found in the section-by section analysis.
    No parallel concerns have been raised concerning hearing acuity and 
its testing procedures. However, the Working Group considered whether 
changes were necessary to update the hearing requirements. Based on the 
advice of the medical experts attending the task force

[[Page 50633]]

meeting, it was determined that no recommendations for change were 
necessary.
    FRA notes that it has taken the interim action of publishing a 
Safety Advisory that is based on RSAC recommendations made on May 14. 
See 63 FR 29297 (May 28, 1998). Safety Advisory 98-1 addresses the 
vision standards of certified locomotive engineers in order to reduce 
the risk of accidents arising from engineers having impaired vision. We 
firmly believe that the RSAC recommendations reflect the current best 
thinking of the regulated community and that broad sharing of such 
information can be of assistance to medical examiners who are 
responsible for administering the existing regulation.
E. Reviewing the Requirements for Consideration of Unsafe Conduct as a 
Motor Vehicle Operator
    Some Working Group members raised the issue of whether the proposed 
rule should modify or eliminate the consideration of unsafe conduct as 
a motor vehicle operator, as would be found in the National Driver 
Register (NDR) and individual state motor vehicle department records. 
Those requirements originate from the statute requiring the licensing 
or certification of locomotive operators. See Statutory Background 
section, supra. FRA went to great lengths to explain the procedures for 
obtaining and evaluating motor vehicle driving record data in 
Appendices C and D to Part 240.
    Some Working Group members wanted to eliminate motor vehicle data 
requests from the rule. The reasons for doing so are diverse. One issue 
is whether the motor vehicle data are useful as a predictor of railroad 
employment conduct. The experience of some Working Group members is 
that the data are useful in such a small percentage of cases that the 
costs far exceed the benefits. In addition, some Working Group members 
believe the process is an unnecessary invasion of a person's privacy. 
Meanwhile, the process of requesting the data can be frustratingly time 
consuming and unreliable.
    Although FRA is empathic to the concerns raised by some Working 
Group members, the agency believes that eliminating the regulatory 
provisions concerning the review of motor vehicle data would be 
contrary to the plain meaning and intent of the statute. After further 
review, the Working Group members agree that elimination of this data 
review is not possible given the statutory requirements. Further, the 
Working Group members recognized that the need to identify potential 
substance abuse disorders was a primary motivator for the creation of 
these regulations. Based on these determinations, some Working Group 
members declared their intent to work towards requesting a statutory 
change.
    Since the Working Group resigned itself to the fact that 
elimination of the review of motor vehicle driving data was outside the 
Group's authority, the Group focused on identifying problems with the 
current system and whether the regulation could be modified to resolve 
any of those problems. Some Group members noted that it is difficult to 
comply with the procedures for requesting motor vehicle checks. In 
particular, they mentioned that these checks require: (1) A notarized 
signed release from the person; (2) handling by mail only; and (3) a 
separate request to the State in which the person has a valid motor 
vehicle license. In some Working Group members' experiences, responses 
from the States and the NDR could take anywhere from two (2) weeks to 
several months. Occasionally, responses have been lost or claimed not 
to have been received. These are serious concerns because any delay in 
receiving information on potential substance abuse problems could 
effect safety.
    Some Working Group members expressed unhappiness regarding the type 
and accuracy of the data received from the States and the NDR. It was 
noted that data received from the NDR on an individual person only 
advises of a probable match for that engineer in a particular State 
which may have information on traffic violations. The data do not 
contain specific information on what type of traffic violation(s) are 
contained on the state record. The person or the railroad must make a 
separate request to that State to receive specific information on any 
violations. Mismatches often occur or after requesting additional State 
records the information indicates other than alcohol or drug related 
offenses.
    The railroad Working Group members set goals of achieving (1) ``one 
stop shopping'' for both NDR and State motor vehicle data, (2) 
simplified request procedures, and (3) accurate data. The other Working 
Group members agree that these are reasonable requests but that this 
Group does not have the authority to resolve them. In order to achieve 
these goals, individual companies, unions and associations plan to 
contact the National Highway Traffic Safety Administration to discuss 
what possible improvements can be accomplished and FRA has offered its 
assistance on these matters.
    In an attempt to ease the administrative burden posed by complying 
with FRA's current regulations concerning motor vehicle data, the 
Working Group suggested some amendments which FRA is proposing in this 
notice. In Secs. 240.111(a) and (h), the proposal would provide 366 
days, as opposed to the current 180 days, for the individual to furnish 
data on prior safety conduct as a motor vehicle operator. This greater 
time period should allow for lost or missing requests to be found or 
resent. It will also provide greater leeway in straightening out 
potential misinformation.
    Further, a new Sec. 240.111(i) is proposed to make sure that 
railroads receive timely information regarding offenses involving 
prohibitions on the operation of a motor vehicle while under the 
influence or impaired by alcohol or a controlled substance. This 
proposal addresses the concern that by increasing the periods in which 
individuals have a duty to furnish this information will not affect the 
timeliness of the information received. The specifics of how this 
proposal would work can be found in the section-by-section analysis.
F. Addressing Safety Assurance and Compliance
    One of the principles of the current rule is that locomotive 
engineers should comply with certain basic railroad rules and practices 
for the safe operation of trains or risk having their certification 
revoked. The rule provides for persons who hold certificates to be held 
accountable for their improper conduct. The reason for holding people 
accountable for operational misconduct serves one of the principal 
objectives of this regulation; that is, by revoking the certificates of 
locomotive engineers who fail to abide by safe rules and practices, the 
implementation of the rule is instrumental in reducing the potential 
for future train accidents.
    FRA recommended that the Working Group consider the following five 
general issues: (1) the degree of discretion accorded railroads in 
responding to individual incidents; (2) the criteria for the types of 
operational misconduct events that can trigger revocation of a 
certificate; (3) the severity of the consequences for engaging in 
operational misconduct; (4) the value of decertification for violations 
that occur during operational tests required pursuant to Sec. 240.303; 
and (5) the effectiveness of FRA's direct control over operational 
misconduct.
    1. Clarifying Railroad Discretion. Prior to the effective date of 
the 1991 final

[[Page 50634]]

rule, railroads regularly applied varying amounts of discretion 
concerning technical instances of noncompliance, i.e., conduct that 
does not comply exactly with an operating rule but is unlikely to cause 
any type of accident. The application of this discretion was often the 
result of informal procedures with labor organizations representing 
locomotive engineers. Since the effective date of this regulation, FRA 
has received numerous inquiries as to whether or not such discretion is 
permitted by the regulation for technical instances of noncompliance 
with the decertifiable events specified in Sec. 240.117(e).
    Section 240.307(b)(1) provides that it is mandatory for a railroad 
to suspend a person's certificate when the railroad is in receipt of 
reliable information indicating that the person is no longer qualified. 
FRA's purpose in promulgating the rule with this mandatory language was 
to eliminate railroad discretion, thereby creating uniform enforcement 
throughout the industry. By eliminating railroad discretion for non-
compliance of certain serious operating rules, FRA was trying to avoid 
uneven enforcement due to favoritism, whether it be from railroad 
supervisors or labor organizations. In addition, the elimination of 
discretion prevents railroads and labor organizations from loosely 
complying with safety laws in return for some economic benefit. Thus, 
FRA's goal was for all locomotive engineers to be subject to the same 
decertification events regardless of which railroad employed them.
    In addition, FRA's intent was that the decertifiable events 
specified in Sec. 240.117(e) articulate serious instances of non-
compliance, i.e., misconduct of the type that has caused or is likely 
to cause accidents. If technical instances of non-compliance are 
occurring which fit the definitions of the decertifiable events 
specified in Sec. 240.117(e) then the problem may be that these events 
are defined too broadly. If that is so, the solution may be to further 
refine these decertifiable events rather than give railroads some kind 
of limited enforcement discretion.
    FRA hypothesizes that if there is perceived uneven enforcement 
among the railroads due to uneven use of discretion, it may be due to 
the fact that some railroads have not thoroughly considered the 
regulatory language in Sec. 240.307. For example, some railroads may 
consider revocation due to the occurrence of an operational misconduct 
event, but decide against holding a Sec. 240.307 hearing because the 
engineer's actions are deemed defensible. The railroad might want to 
note the incident and the railroad's reasons for not taking further 
enforcement action in the engineer's file so as to provide a record in 
defense of a civil money penalty by the agency for failure to withdraw 
a person from service. See Sec. 240.307(a). Other railroads may 
consistently hold revocation hearings and believe that they must revoke 
the engineer's certificate if there is a violation of Sec. 240.117(e) 
regardless of the mitigating factors or defenses. Hence, a question 
arises as to whether there is suitable railroad discretion already 
built into the rule which is either under or over-utilized by different 
railroads.
    Based on their consideration of the above information in FRA's 
``Issues Paper,'' the Working Group discussed the pros and cons of each 
option. In doing so, they reached several conclusions about this 
subject. One conclusion is that uniform enforcement of the rule is an 
important goal; hence, unbridled railroad discretion would not be in 
accord with the intent of the rule. A second conclusion is that, under 
limited and specified circumstances, railroads must consider certain 
mitigating factors as complete defenses to an alleged violation. The 
Working Group decided that one of FRA's interpretations should be made 
an explicit part of the rule since it was clear that some railroads did 
not understand FRA's position on the subject. That is, certification 
should not be revoked if an intervening cause prevents or materially 
impairs a person's ability to comply with the regulation. 
Sec. 240.307(i)(1). A third conclusion that the Working Group 
recommends is that those violations of Secs. 240.117(e)(1) through 
(e)(5) that are of a minimal nature and had no direct effect on rail 
safety should not give cause to revoke a person's certificate. The 
defenses raised in the second and third conclusions are discussed in 
further detail within the section-by-section analysis.
    In order to ensure the proper application of railroad decisions to 
forgo revocation based on a defense, the proposal would require a 
railroad to maintain a record of such decisions. Sec. 240.307(j). FRA 
could use such records for safety assurance and compliance purposes. 
The main purposes for reviewing such records are to ensure (1) that 
decisions are made based on the intent of the rule and (2) that the 
rule is fairly applied. The fairness requirement involves FRA checking 
that railroads uniformly apply the rule so that persons similarly 
situated are similarly treated.
    In order to achieve consensus, the Working Group needed to address 
how to allay the railroad representatives' fears that FRA could impose 
civil penalties, or take other enforcement action, if FRA judges a 
railroad to have misapplied these proposed defenses. Some Working Group 
members representing railroads stated that these proposed concepts are 
complex and would be applied mainly by non-lawyers. Meanwhile, FRA 
expressed the need for some enforcement control, otherwise the rule 
might be so ambiguous as to lead to the unwanted unbridled discretion. 
The Working Group struck a balance by suggesting that FRA should not 
take enforcement action for situations in which the railroad makes a 
good faith determination after a reasonable inquiry. FRA proposes to 
incorporate that approach in Sec. 240.307(k).
    2. Fine tuning the types of operational misconduct events that can 
trigger revocation. FRA has already modified the operational misconduct 
events listed in Sec. 240.117(e) once since the final rule was 
promulgated. That modification is contained in the first interim final 
rule published on April 9, 1993. FRA's changes were necessary to 
prevent persons from having their certification revoked for certain 
types of incidents considered too minor to warrant decertification.
    Despite these modifications, FRA is aware that some members of the 
industry are unhappy with the types of events that trigger revocation. 
In most instances, the complaints are the result of beliefs that the 
Sec. 240.117(e) cardinal safety rules are either ambiguous or too 
broad. The Working Group's review of these cardinal safety rules 
suggests that changes are necessary.
    In summary, the Working Group consensus largely advocates adopting 
previously published interpretations made by FRA in a safety advisory 
distributed to leaders in the industry known as FRA Safety Advisory--
96-02. The Group's consensus is reflected in the proposed modifications 
to Sec. 240.117(e)(1), (2), (4) and (5).
    The one proposed change that is not derived from a previously 
articulated FRA interpretation involves a modification to the cardinal 
rule delineating speeding violations. The changes to Sec. 240.117(e)(2) 
propose the elimination of the phrase ``or by more than one half of the 
authorized speed, whichever is less,'' and would add a sentence to 
include violations of restricted speed under certain conditions. Hence, 
the result is that revocation would no longer be warranted for low 
speed violations that

[[Page 50635]]

occur when a person is not required to operate at restricted speed. For 
example, a person would no longer risk certificate revocation if the 
train the person is operating is traveling at 16 to 19 miles per hour 
(mph) when the maximum authorized speed is 10 mph, and the person is 
not required to be able to stop the train within one-half the person's 
range of vision.
    The Working Group's decision in making the proposal to eliminate 
low speed violations from the list of operational misconduct events is 
based on their own experiences applying the rule. For instance, the 
Group discussed the difficulties in precision handling at low speeds, 
especially if the locomotive or train encounters any measurable grade. 
Another basis for proposing the elimination of this type of speeding 
violation concerns the admitted inaccuracies of the speed indicators. 
This issue is also one of fairness to the individual. That is, it does 
not seem fair to hold a person accountable for operating at 16 mph, 
when the maximum authorized speed is ten (10) mph, and the regulations 
only require speed indicators operating at speeds between 10 to 30 mph 
to be accurate within plus or minus 3 mph. (See Sec. 229.117). Also, a 
locomotive used as a controlling locomotive at speeds below 20 mph is 
not required to be equipped with a speed indicator.
    In addition, the data do not support a need to continue revoking 
certificates for low speed violations that occur where restricted speed 
is not an issue. Between 1991 and 1996, 29 accidents, resulting in 
three (3) injuries, occurred due to excessive speed between 16 and 19 
mph. Sixteen of these accidents involved a violation of restricted 
speed and would remain decertifiable events under the proposal. 
Thirteen of these accidents were due to excessive speed, but would no 
longer be decertifiable events under the proposal. It is important to 
note that none of the latter group of accidents resulted in any 
injuries. Many of these accidents were due to harmonic rock which 
usually occurs between 15 and 20 mph. In general, accidents which occur 
at such low speeds do not result in casualties. Railroads would retain 
their right to take disciplinary action in such situations pursuant to 
Sec. 240.5(d). Furthermore, it would be unfair to apply to these 
engineers the harsh Federal penalty that is designed for a more serious 
offense, such as exceeding the maximum authorized speed by more than 10 
mph.
    3. Adjusting the severity of the consequences for engaging in 
operational misconduct. Individuals who engage in operational 
misconduct of the type proscribed in this rule are acting in ways that 
routinely cause a significant number of train accidents. Denying 
certificates to those who engage in such conduct both reduces the risk 
that such individuals will repeatedly engage in such operational 
misconduct and serves to inspire others to carefully adhere to these 
critical safety rules. Both factors are intended to help prevent 
possible future accidents attributable in whole or in part to lack of 
routine vigilance concerning adherence to critical safety rules by 
locomotive engineers.
    Although FRA's position is that the current system of revocation 
for operational misconduct is effective, FRA wants to consider whether 
other methods would be equally or more effective. The consequences for 
operational misconduct are found in Secs. 240.117(g) and (h). Some 
labor Working Group members requested that the Group explore how 
additional training of some sort, in addition to or as a substitute for 
a revocation period, may be considered a suitable alternative. FRA 
expressed the concern that non-punitive alternatives could result in 
some engineers taking a more cavalier attitude towards compliance with 
the regulation. One Working Group member commented that the status quo 
should be maintained since most locomotive engineers now know and 
accept the consequences of violations.
    Initially, some Working Group members proposed that for a single 
incident of operational misconduct, a person should receive training 
only, i.e., no revocation period would be imposed. Some railroad 
Working Group members objected to this proposal for two basic reasons. 
One, mandating training would impose a financial burden on a railroad. 
Second, in at least some situations, additional training would be 
unnecessary. For example, if a person was recently trained or willfully 
violated a rule, it might be fruitless to train them again. 
Furthermore, training alone for a willful offender would not serve to 
deter future conduct.
    The Working Group did not deeply explore radical changes to the 
current rule. The discussions indicated that the current consequences 
flowing from operational misconduct were reasonable, but could be 
improved with some adjustment. FRA raised whether the whole system 
should be overhauled, e.g., with the implementation of a point system 
as most states use to implement their individual motor vehicle driver's 
licensing programs. However, the Working Group consensus is that such 
drastic changes could be difficult to implement and are not necessary 
to achieve the intent of the rule. Although the details of how the 
Working Group's proposal would be implemented are explained in the 
section-by-section analysis, some general comments concerning how the 
Group reached consensus may be helpful for those who did not 
participate in this process.
    For instance, the Working Group's proposal includes amending 
Sec. 240.117(h) so that a person who has completed such evaluation and 
training could benefit by having the period of revocation reduced by as 
much as half, as long as the period of revocation initially imposed is 
one year or less. Although the current rule provides for the same type 
of railroad discretion for a period of one year, FRA raised to the 
Working Group the issue of whether it is fair to leave this unfettered 
discretion with a railroad. That is, the issue raised was whether a 
person should have the right to request the conditions which would 
permit the reduction in a period of revocation. The basis for raising 
this issue was FRA's belief that it is arguable that without such a 
right, railroads would have the discretion to offer one person a 
reduction in a revocation period but deny a person similarly situated 
the same benefit.
    After considering this question, the Working Group believes FRA 
still has a legitimate basis for providing railroads with the 
discretion to decide when to offer additional training and evaluation 
in exchange for a reduced revocation period. One reason to provide such 
discretion is that it is illogical to require railroads to provide 
evaluation and training when that training is not always beneficial. As 
discussed earlier, since training is not necessary in every case, a 
railroad should retain discretion on whether evaluation and training 
are necessary. To do otherwise would waste railroad and employee 
resources at their expense. In addition, by declining to reduce a 
revocation period, a railroad would retain the discretion to enforce a 
more severe penalty for willful acts or omissions.
    The consensus of the Working Group is that the revocation periods 
were excessive and disproportionate with the nature of the offenses 
which trigger them. These revised revocation periods were thought by 
the Group to more accurately reflect the reality of daily railroad 
operations. They are measured, progressively more stringent, and 
provide an increased opportunity for mitigation by training. The basic 
philosophical underpinning is that they are intended to be more 
remedial than punitive. The goal of this regulation, consistent with 
the goal of FRA's entire

[[Page 50636]]

safety program, is not to emphasize the punishment of employees, but to 
promote safety by minimizing the likelihood that employees will commit 
acts or omissions which could have unsafe consequences. FRA will make 
an annual analysis of which train accidents are identifiable as being 
caused by the acts or omissions of locomotive engineers. If a nexus can 
reasonably be established between the modification of the revocation 
periods and the incipient indicators of an increase in such accidents, 
FRA will take whatever action is necessary to promote safety.
    4. Revisiting whether revocation should be a consequence for 
violations that occur during operational tests. Under the current rule, 
a person who violates one of the decertifying events listed in 
Sec. 240.117(e) during a properly conducted operational monitoring test 
pursuant to Secs. 240.303 or 217.9, is subject to having their 
certification revoked. FRA has received inquiries as to whether the 
rule could be changed so that a person shall not have certification 
revoked for any violation detected during an operational monitoring 
test. The Working Group considered both the advantages and 
disadvantages of the current rule and found some middle ground which 
serves as the basis for the proposal being made in this NPRM.
    First, the Working Group addressed the reasons for not counting 
operational misconduct that occurs during testing. For instance, one 
opinion was that these tests should be learning experiences for the 
persons tested. If a mistake is made, additional training is the 
answer. In that way, certified people could learn from their mistakes 
in a testing environment where an accident/incident is unlikely.
    In response, some members stated that persons who act unsafely by 
violating one of the Sec. 240.117(e) provisions will receive 
preferential treatment just because their non-complying activity 
occurred during an operational monitoring test, rather than under 
otherwise normal operations. Alternatively, some members believed that 
an operational monitoring test should be an evaluation of a locomotive 
engineer's skills and not a learning experience. Therefore, these 
Working Group members believe that violations detected under such 
circumstances should result in revocations.
    As the discussion of this issue progressed, a related concern was 
articulated. Some Working Group members expressed concern that 
operational monitoring tests are used by some supervisors to entrap 
engineers in tests that are unfair. For example, proponents of this 
position have alleged that some supervisors have hidden a fusee under a 
bucket and only revealed the fusee to the engineer at a point where it 
was impossible for the engineer to stop the train. In other instances, 
the manner in which the test was conducted made it appear that the true 
purpose was not to monitor compliance but to make it inappropriately 
difficult for an engineer to pass. Hence, some labor Working Group 
members believe that some railroad supervisors have and will continue 
to use unfair testing conditions to revoke the certificates of people 
they do not like.
    Since FRA already considers an improperly conducted operational 
test, such as the alleged ``bucket test,'' to be an improper reason for 
decertification, FRA does not give great deference to the unfair test 
argument. The Working Group recognized that while FRA's interpretation 
is helpful, the proposal arose from alleged improper application of the 
rule. Hence, a modification was suggested to clarify this 
interpretation. FRA has adopted the consensus view that it publish 
FRA's interpretation as new Sec. 240.117(f)(3).
    On the larger issue, some Working Group members believed that the 
operational tests are conducted under real world conditions and may 
often represent the only method of checking whether a certified 
locomotive engineer makes an effort to comply with railroad operating 
rules. If a test is properly conducted, a violation found pursuant to a 
test occurs under the same conditions as other operations. Revocations 
for operational misconduct that occur prior to the occurrence of 
accidents constitute desirable prevention and fulfills the intent of 
the rule. Without including operational tests, revocable events would 
mainly be found only when an accident occurs. As a result of 
disagreement as to the veracity of these comments, it was not possible 
to reach a Working Group consensus on this issue. FRA has decided that 
there is a sufficient basis to continue allowing revocation 
consequences to apply when violations of operational testing occurs.
    5. Reviewing the effectiveness of FRA's direct control over 
operational misconduct. The current rule prohibits certain operational 
conduct which is specified in Sec. 240.305. That section makes it 
unlawful to (1) operate a train at excessive speed, (2) fail to halt a 
train at a signal requiring a stop before passing it, and (3) operate a 
train on main track without authority. This section enables FRA to 
initiate civil penalty or disqualification actions when such events 
occur and direct FRA remedial action is appropriate. Since changes to 
Sec. 240.117(e) are proposed, some parallel modifications may be 
necessary under Sec. 240.305.
    In addition, administration of the existing rule has raised a 
safety assurance and compliance issue that may require a change to the 
current rule. In several incidents, FRA has encountered situations in 
which designated supervisors of locomotive engineers have neglected 
their supervisory responsibilities and permitted the engineer at the 
controls to violate the specified prohibitions. Two of these situations 
resulted in train accidents. FRA raised the issue of whether the rule 
needs to explicitly provide that engineers serving in supervisory roles 
who willfully participate in such prohibited activity are also covered 
by this section.
    Although the Working Group agrees that a change is necessary, the 
Group recommended that the supervisors' conduct does not have to be 
willful to be prohibited. In this way, all locomotive engineers, 
supervisors and non-supervisors, would know that they will be held to 
the same standard of care. This clarification is proposed in 
Secs. 240.117(c)(1), (c)(2), and 240.305(a)(6). While FRA maintains 
that the provision currently contains this authority, the proposed rule 
changes would put certified locomotive engineer supervisors on notice 
that their inappropriate supervisory acts or omissions will trigger 
revocation and FRA enforcement authority.

Section-by-Section Analysis

Subpart A--General

Section 240.1--Purpose and Scope
    FRA proposes to make minor amendments to paragraph (b) so that the 
regulatory language used by FRA in all of its rules will become more 
standardized. FRA does not intend that these proposed revisions would 
substantively change the purpose and scope of this part.
Section 240.3--Application and Responsibility for Compliance.
    FRA proposes to amend this section so that the regulatory language 
used by FRA in all of its rules will become more standardized. FRA does 
not believe that these revisions would substantively change the purpose 
and scope of this part.
    Paragraphs (a) and (b) contain the same approach as the current 
rule but with some slight rewording. As under the current provision, 
the new provision would mean that railroads whose entire operations are 
conducted on track that is outside of the general system of 
transportation are not covered by this

[[Page 50637]]

part. Most tourist railroads, for example, involve no general system 
operations and, accordingly, would not be subject to this part. 
Therefore, FRA continues to intend that this rule shall not be 
applicable to ``tourist, scenic or excursion operations that occur on 
tracks that are not part of the general railroad system.'' 54 FR. 
50890, 50893, 50915 (Dec. 11, 1989); see also 56 FR 28228, 28240 (June 
19, 1991). The word ``installation'' is intended to convey a meaning of 
physical (and not just operational) separateness from the general 
system. A railroad that operates only within a distinct enclave that is 
connected to the general system only for purposes of receiving or 
offering its own shipments is within an installation. Examples of such 
installations are chemical and manufacturing plants, most tourist 
railroads, mining railroads, and military bases. However, a rail 
operation conducted over the general system in a block of time during 
which the general system railroad is not operating is not within an 
installation and, accordingly, not outside of the general system merely 
because of the operational separation.
    Paragraph (c) has been proposed so that the rule will more clearly 
identify that any person or contractor that performs a function covered 
by this part will be held responsible for compliance. This is not a 
substantive change since contractors and others are currently 
responsible for compliance with this part as specified in Sec. 240.11.
Section 240.5--Construction
    FRA proposes to amend paragraph (a) so that the regulatory language 
used by FRA in all of its rules will become more standardized. This 
change explains the rule's preemptive effect. This proposed amendment 
reflects FRA's effort to address recent case law developed on the 
subject of preemption.
    FRA proposes to amend paragraph (b) so that the regulatory language 
used by FRA in all of its rules will become more standardized. The only 
change is to remove the word ``any.'' This minor edit would not be a 
substantive revision.
    FRA proposes to amend paragraph (e) of this section by adding the 
words ``or prohibit.'' The purpose of this modification was to clarify 
that the rule does not prevent ``flowback.'' The term flowback has been 
used in the industry to describe a situation where an employee who is 
no longer qualified or able to work in his or her current position, can 
return to a previously held position or craft. An example of flowback 
occurs when a person who holds the position of a conductor subsequently 
qualifies for the position of locomotive engineer, and at some later 
point in time the person finds it necessary or preferable to revert 
back to a conductor position. The reasons for reverting back to the 
previous craft may be as a result of personal choice or of a less 
voluntary nature; e.g., downsizing, certificate ineligibility or 
revocation.
    Many collective bargaining agreements address the issue of 
flowback. FRA does not intend to create or prohibit the right to 
flowback, nor does FRA intend to state a position on whether flowback 
is desirable. In fact, the exact opposite is true. As a result of 
discussions with the RSAC members, FRA has agreed to this clarification 
of the original intent of paragraph (e) so that it is understood by the 
industry that employees who are offered the opportunity to flowback or 
have contractual flowback rights may do so; likewise, employees who are 
not offered the opportunity to flowback or do not have such contractual 
rights are not eligible or entitled to such employment as a consequence 
flowing from this federal regulation.
Section 240.7--Definitions
    The proposed rule would add seven terms and revise the definitions 
of another two terms. The term Administrator would be revised to 
standardize the FRA Administrator's authority in line with FRA's other 
regulations. The effect of this change would be to take away the Deputy 
Administrator's authority to act for the Administrator without being 
delegated such authority by the Administrator. The Deputy Administrator 
would also lose the authority to delegate, unless otherwise provided 
for by the Administrator.
    A definition for dual purpose vehicle would be added to describe a 
type of vehicle that can sometimes substitute for a locomotive by 
hauling cars but can also be used in a roadway maintenance function. 
Exclusive track occupancy is proposed to be added since that term is 
used to clarify an exception to when certified locomotive engineers 
would not be required to operate service vehicles that have the ability 
to haul cars. The current rule uses the word qualified without defining 
it and the proposed rule expands the use of that term. The agency has 
previously neglected to define FRA as the Federal Railroad 
Administration, although that abbreviation has been used in the rule. 
FRA also proposes to define person rather than rely on a definition 
that currently appears in parenthetic remarks within Sec. 240.11.
    FRA proposes to redefine the term railroad so that it becomes 
standard language in all of FRA's regulations. These minor changes are 
not intended to change the applicability of the rule as is presently 
enforced.
    Although FRA has previously defined the term filing, as in filing a 
petition, or any other document, with the FRA Docket Clerk, the rule 
has not defined what constitutes service on other parties. The proposed 
definition references the Rules 5 and 6 of the Federal Rules of Civil 
Procedure (FRCP) as amended. The intent is to incorporate the current 
FRCP rules and not perpetuate those FRCP rules that are in effect when 
this regulation becomes final. By defining the term service, the 
expectation is that the proposed rule would clarify the obligations of 
the parties and improve procedural efficiency.
    A proposed definition for Specialized roadway maintenance equipment 
would be added to define a type of machine that may need to be operated 
by a certified locomotive engineer under certain circumstances. See 
Sec. 240.104. Although similar, this equipment describes a subset of 
that equipment referred to in part 214 as a ``roadway maintenance 
machine;'' the main difference between these similar definitions is 
that a ``roadway maintenance machine'' may be stationary while 
specialized roadway maintenance equipment cannot be stationary.
Section 240.9--Waivers
    FRA proposes to revise this section so that the language used in 
all of FRA's rules become more standardized. The proposed changes to 
paragraph (a) reflect FRA's current intent; that is, a person would not 
request a waiver of one of the rule's provisions unless they were 
subject to a requirement of this rule and the waiver request was 
directed at the requirement for which the person wished he or she did 
not have to abide by. Paragraph (c) would standardize language with 
other FRA rules which clarify the Administrator's authority to grant 
waivers subject to any conditions the Administrator deems necessary.
Section 240.11  Consequences for Noncompliance
    FRA proposes to reword this section slightly. One change would 
respond to the Federal Civil Penalties Inflation Adjustment Act of 
1990, Pub. L. 101-410 Stat. 890, 28 U.S.C. 2461 note, as amended by the 
Debt Collection Improvement Act of 1996 Pub. L. 104-134, April 26, 1996 
which required agencies to adjust for inflation the

[[Page 50638]]

maximum civil monetary penalties within the agencies jurisdiction. The 
resulting $11,000 and $22,000 maximum penalties being proposed were 
determined by applying the criteria set forth in sections 4 and 5 of 
the statute to the maximum penalties otherwise provided for in the 
Federal railroad safety laws.
    Proposed paragraphs (a), (b) and (c) would eliminate a parenthetic 
definition of person since FRA proposes to define person in Sec. 240.7. 
The citation to a statute has also been proposed as a revision.

Subpart B--Component Elements of the Certification Process

Section 240.103--Approval of Design of Individual Railroad Programs by 
FRA
    After the Working Group had concluded their meetings, FRA noted 
that this section was in need of updating. The numbered paragraphs 
under paragraph (a) set forth a schedule for implementing the original 
final rule. Since these dates have long since passed and any railroad 
that was conducting operations in 1991 and 1992 should have filed a 
written program pursuant to this section, the proposed rule suggests 
updating this section to address railroads commencing operations in the 
future. This would not be a substantive amendment since the proposed 
rule treats new railroads in the same way as the current rule. Thus, 
FRA is proposing the elimination of unnecessary paragraphs in the rule 
text.
Section 240.104--Criteria for Determining Whether a Railroad Operation 
Requires a Certified Locomotive Engineer
    FRA proposes to add this new section to address the issue of what 
types of service vehicles should be operated by certified locomotive 
engineers. Since this was an issue of great interest to many members of 
the industry represented in the RSAC process, FRA has addressed this 
issue in detail in the preamble. The proposal presented attempts to 
reframe the issue by creating exemptions based on the type of 
operations in which these non-traditional locomotives are involved 
rather than simply focusing on the type of service vehicle.
Section 240.105--Criteria for Selection of Designated Supervisors of 
Locomotive Engineers
    The change to paragraph (b)(4) requires that those persons who are 
DSLEs be qualified on the physical characteristics of the portion of 
the railroad on which they are supervising and that a railroad's 
program must address how the railroad intends to implement the 
qualification of a DSLE on the physical characteristics. FRA recommends 
that DSLEs acquire some operational experience over the territories 
they supervise because it is arguably the best method for learning how 
to operate over a territory.
    The proposed addition of paragraph (c) is an effort to clear up 
several issues, some of which may not be obvious. These issues involve: 
(1) accommodating new railroads that have never certified a locomotive 
engineer or a DSLE; (2) accommodating railroads that may have had one 
or a few DSLEs at one time but no longer employ any qualified 
individuals; and (3) addressing how contractor engineers may be used. A 
regulatory amendment is necessary to address how railroads, who find 
themselves without a qualified and certified DSLE, can designate and 
train such individuals without reliance on outside sources. See 56 FR 
28228, 28241-42 (June 19, 1991) (stating that a DSLE could be a 
contractor rather than an employee of the railroad).
    One of FRA's philosophies in applying this rule has been that it 
certainly should not be an impediment to entrepreneurship. New or 
start-up railroads that have never certified a locomotive engineer or a 
DSLE have been unable to comply completely with this part without 
relying on outside sources to supply a certified DSLE. The same can be 
said of railroads that may have had one or a few DSLEs at one time but 
no longer employ any qualified individuals. It was never FRA's intent 
to force railroads to rely on outside sources in order to comply with 
the regulation. These proposed changes would provide railroads with 
better guidance than is currently found in the rule text.
    For those railroads that do not have DSLEs, the addition of 
paragraph (c) will enable them to consider several options in creation 
of their first DSLE. (Once a railroad has its first DSLE, that first 
DSLE must certify the others by following the general rule rather than 
this exception). For example, the railroad could hire an engineer from 
another railroad in compliance with Sec. 240.225 without having to 
comply with new paragraph (a)(5). If the individual is receiving 
initial certification or recertification, the railroad could comply 
with new paragraph (c) as an alternative to compliance with 
Sec. 240.203(a)(4). Furthermore, the railroad could choose to work with 
a company that supplies experienced locomotive engineers that can be 
readily trained, qualified, and certified on the host railroad's 
territories.
    FRA has received numerous inquiries regarding the use of outside 
contractors for certification purposes and for the temporary use of 
third party engineers during work stoppages. Section 5 of Appendix B in 
the current Part 240 regulation makes provision for railroads to use 
training companies (contractors). Actual certification must be done by 
the railroad. Use of an outside contractor and how that contractor will 
be used must be described in the railroad's plan submission.
    For instance, a railroad may have temporary engineer employees 
supplied by a contractor where the contractor has conducted the hearing 
and visual acuity tests, the preemployment drug screens, the driver's 
data checks, and operating rules tests. However, the railroad is 
responsible for maintaining records of those tests since the railroad 
is the entity actually responsible for providing proper certification.
    Any contractor providing temporary engineer employees must overcome 
the obstacle that the railroad is the entity that must issue the 
certificate, not the contractor. Therefore, while it is possible for a 
contractor to carry certificates for several or many different 
railroads, the contractor is burdened with keeping each of those 
certificates valid as required of any full-time engineer working for 
any particular railroad. Furthermore, in order for any engineer to 
remain certified, recertification must take place within three years on 
each certificate the person wants to keep valid. See Sec. 240.201(c).
    FRA hopes this discussion of contractors also clarifies how a short 
line railroad could manage to have only one full-time locomotive 
engineer (who is also a DSLE), yet still comply with all the testing 
required for compliance with the regulation. That is, a contractor 
could conduct all of the tests and checks for the short line railroad's 
engineer. The contractor-supplied temporary engineer and the short line 
railroad's engineer could also conduct the required annual check ride 
for each other. Of course, a copy of all records must be maintained by 
the railroad in accordance with Sec. 240.215.
    FRA wants to clarify that by empowering the ``chief operating 
officer of the railroad'' in paragraph (c) the Working Group's 
intention is that the person ultimately responsible for railroad 
operations makes this determination. It is not necessary for that 
person to have the title of ``chief operating officer.'' This intention 
is

[[Page 50639]]

expressed by the use of lower case letters in identifying this person.
Section 240.111--Individual's Duty To Furnish Data on Prior Safety 
Conduct as Motor Vehicle Operator
    Paragraphs (a) and (h) would be modified by changing the time 
limits from 180 days to 366 days. The Working Group members requested 
this change because they could demonstrate clear examples of the 
administrative difficulties being encountered in attempting to meet the 
current shorter period and the differences between the time periods. 
The concern that railroad safety could be diminished by lengthening the 
period of time that a person has to request and furnish data on his or 
her prior safety conduct as a motor vehicle operator will be directly 
addressed by the addition of paragraph (i). This new paragraph requires 
certified locomotive engineers to notify the employing railroad of 
motor vehicle incidents described in Sec. 240.115(b)(1) and (2) within 
48 hours of the conviction or completed state action to cancel, revoke, 
suspend, or deny a motor vehicle driver's license. This requirement 
boils down to an obligation for certified locomotive engineers to 
report to their employing railroad any type of temporary or permanent 
denial to hold a motor vehicle driver's license when the person has 
been found (by the state which issued the license) to have either 
refused an alcohol or drug test, or to be under the influence or 
impaired when operating a motor vehicle. With this new provision, 
railroads will be provided with timely data on two of the most serious 
safety misconduct issues certified locomotive engineers could have in 
conjunction with their motor vehicle operator's license that may 
readily transfer to the locomotive engineer context.
    In accordance with the regulation and the timely motor vehicle 
operator's license data, the railroads will need to continue 
considering these data in a systematic way. This proposal would retain 
the requirements in Sec. 240.115 that each railroad's program include 
criteria and procedures for evaluating a person's motor vehicle driving 
record. Paragraph (c) of Sec. 240.115 requires that if such a motor 
vehicle incident is identified, the railroad must provide the data to 
an EAP Counselor along with ``any information concerning the person's 
railroad service record.'' Furthermore, the person must be referred for 
evaluation to determine if the person has an active substance abuse 
disorder. If the person has such a disorder, the person shall not be 
currently certified. Meanwhile, even if the person is evaluated as not 
currently affected by an active substance abuse disorder, the railroad 
shall, on recommendation of the EAP Counselor, condition certification 
upon participation in any needed aftercare or follow-up testing for 
alcohol or drugs, or both.
    Proposed paragraph (i) also states that, for purposes of locomotive 
engineer certification, a railroad cannot require a person to submit 
motor vehicle operator data earlier than specified in the paragraph. 
The reasoning behind this rule involves several intertwined objectives. 
For instance, some Working Group members did not want the employing 
railroad to revoke, deny, or otherwise make a person ineligible for 
certification until that person had received due process from the state 
agency taking the action against the motor vehicle license. Otherwise, 
action pursuant to this part might be deemed premature since the 
American judicial system is based on the concept of a person being 
innocent until proven guilty.
    By not requiring reporting until 48 hours after the completed state 
action, the rule has the practical effect of insuring that a required 
referral to an EAP Counselor under Sec. 240.115(c) does not occur 
prematurely; however, it does not prevent an eligible person from 
choosing to voluntarily self-refer pursuant to Sec. 240.119(b)(3). Nor 
does it prevent the railroad from referring the person to an EAP 
Counselor pursuant to Sec. 240.119 if there exists other information 
that identifies the person as possibly having a substance abuse 
disorder. Further, the restriction applies only to actions taken 
against a person's certificate and has no effect on a person's right to 
be employed by that railroad.
Section 240.113--Individual's Duty To Furnish Data on Prior Safety 
Conduct as an Employee of a Different Railroad
    Some Working Group members raised the fact that they have 
experienced occasions where they had difficulty complying with this 
section due to the time limit. Paragraph (a) would be modified by 
increasing the number of days an individual has to furnish data on 
prior safety conduct as an employee of a different railroad. The period 
was changed from 180 days to 366 days. The Working Group members 
requested this change because they recognized administrative 
difficulties in meeting the shorter period and the differences between 
time periods. FRA does not believe that railroad safety will be 
diminished by lengthening the period of time that a person has to 
request and furnish this data.
Section 240.117--Criteria for Consideration of Operating Rules 
Compliance Data
    FRA last amended this section in its 1993 Interim Final Rule. Since 
that time, FRA has found that those rule changes had the desired 
results. However, FRA and the other RSAC members agreed that 
clarifications in the rule itself, and some minor changes would further 
improve the rule. In addition, substantial modifications are being 
proposed to the revocation periods to address some concerns that they 
were too long and did not encourage needed training.
    First, paragraph (c) would be redesignated (c)(1) so that a related 
provision could be added as (c)(2). Paragraph (c)(2) clarifies what 
conduct is expected from a supervisor of locomotive engineers. FRA 
believes this is a clarification since supervisors are responsible for 
their conduct in the same manner as other certified engineers.
    Specifically, paragraph (c)(2) identifies a general situation in 
which supervisors of locomotive engineers shall have their 
certification revoked. The thresholds to be met include whether a 
supervisor is monitoring a locomotive engineer and, while doing so, 
whether that supervisor fails to take appropriate action to prevent a 
violation of paragraph (e) of this section. For example, if a DSLE is 
monitoring a locomotive engineer and, while doing so, the train 
encounters a properly displayed Approach Signal, and the engineer is 
not taking effective action to stop at the next signal, the DSLE must 
take appropriate action. Another example would be a supervisor warning 
an engineer that the train is speeding and the engineer is in danger of 
causing a revocable event by operating the train at a speed exceeding 
10 miles per hour over the maximum authorized speed.
    Appropriate action does not mean that the supervisor must prevent 
the violation from occurring at all costs; the duty may be met by 
warning the engineer of a potential or foreseeable violation. Similar 
to the way in which the rule treats student and instructor engineers, 
the decision to revoke a supervisor's certification must be made on a 
case-by-case basis depending on the facts of the particular situation.
    A supervisor of locomotive engineers who is involved in duties 
other than monitoring the locomotive engineer at the controls of the 
lead locomotive at the time an alleged violation of paragraph (e) 
occurs will not have his or her certification revoked. For example, if 
a System Road Foreman of Engines,

[[Page 50640]]

who is also a DSLE, is riding a train to evaluate the performance of 
new locomotives and is involved in one of the scenarios described 
above, his or her certification would not be in jeopardy for failure to 
take appropriate action. Of course, the railroad would be free to take 
whatever disciplinary or administrative action it deemed appropriate.
    In clarifying when a supervisor's conduct will be considered a 
revocable event, the FRA believes that a supervisor who is conducting 
an unannounced operating rules compliance test, which is also known as 
an efficiency test, should not be held culpable for the operating 
locomotive engineer's actions. All the Working Group members agreed 
that it would defeat the purpose of these tests if supervisors were 
required to take appropriate action in order to prevent the operational 
misconduct events the supervisors are monitoring to find. Also, an 
unannounced operating rules compliance test is performed in a 
controlled environment so that the supervisor can test the engineer's 
skills without fear of causing an accident/incident. In contrast, the 
proposal would continue to hold supervisors (DSLEs) responsible during 
both the operational monitoring observation under Sec. 240.129 and the 
skills performance test under Sec. 240.127 since these observations and 
tests are conducted under uncontrolled actual operating conditions. By 
making this defense explicit, the intention is to provide an equivalent 
level of protection or due process to both supervisors and locomotive 
engineers.
    The only change to paragraph (d) would involve shortening the 
period of 60 months to 36 months in reviewing prior railroad operating 
rule compliance. This change would bring the rule into line with the 
other changes made to this section.
    The proposed change to paragraph (e) is an attempt to resolve 
confusion that might surface between the interplay of this section and 
Sec. 240.1(b). According to Sec. 240.1(b), this part prescribes minimum 
Federal safety requirements and does not restrict a railroad from 
implementing additional or more stringent requirements for its 
locomotive engineers that are not inconsistent with this part. It is 
possible that a railroad could interpret that section to permit them to 
revoke a person's certificate for misconduct events more stringent than 
articulated by rule. FRA wants to be clear that we do not hold that 
same interpretation and the Working Group wants FRA to clarify this 
issue by amending the regulation. By adding the word ``only,'' the 
proposed paragraph (e) reads that ``[a] railroad shall only consider 
violations of its operating rules and practices that involve * * * '' 
Thus, the proposed regulation would limit the revocable events to only 
those listed in Sec. 240.117(e).
    Paragraph (e)(1) would be modified to reflect FRA's current 
interpretation that violations of hand or radio signal indications will 
not be considered revocable events. Although the agency had attempted 
to clarify its interpretation of this paragraph in the 1993 Interim 
Final Rule, FRA's preamble contained conflicting statements. As a 
result, this issue is ripe for clarification. The modification in the 
rule will alert the entire industry to a single standard to be applied 
universally and prevent the need for future misguided revocation 
proceedings.
    In addition, FRA notes that a switch will not be considered a 
signal. Although some railroads define a switch as a signal, the 
Working Group agreed with the FRA's interpretation that it would be 
unfair to treat it as such for certification purposes. That is, a 
switch is not readily considered a signal given that its intended 
function is not to alert an engineer to stop. Instead, a switch's 
intended function is to enable a train to change the track it is 
operating over.
    Paragraph (e)(2) defines what constitutes a speed violation 
requiring revocation. One modification to this paragraph is the 
elimination of the phrase ``or by more than one half of the authorized 
speed, whichever is less.'' As a result of this phrase, violations of 
restricted speed and low speed violations not reaching 10 miles per 
hour over the maximum authorized speed could result in revocation. The 
new paragraph (e)(2) would add a sentence to include violations of 
restricted speed under certain conditions, however, the new provision 
would eliminate low speed violations resulting in revocations. For 
example, a person would no longer risk certificate revocation if the 
train he or she operated is traveling at 16 mph when the maximum 
authorized speed is 10 mph.
    After the April 9, 1993, interim final rule was published, FRA 
realized that the application of paragraph (e)(2) to decertification of 
locomotive engineers for violations of restricted speed, or the 
operational equivalent of restricted speed, was not the same as the 
anticipated application. See 58 Fed. Reg. 18982. The problem with 
restricted speed was similar in nature to other problems FRA had hoped 
to fix with its 1993 interim final rule. That is,

the current rule does not distinguish serious offenses from negligible 
offenses. Railroads, believing themselves to be under a regulatory 
mandate to take action even for offenses that might not have been the 
subject of disciplinary action, have in some cases decertified 
employees where FRA had not anticipated such actions.

See 58 Fed. Reg. 18987. While FRA's 1993 regulatory language cleared up 
one set of ambiguities, that rule did not effectively address the 
subset of restricted speed violations.
    Concerning the issue of restricted speed, the rule will formally 
publish FRA's interpretation on this issue. Generally, restricted speed 
rules provide a maximum speed and a conditional clause stating that a 
locomotive engineer must be able to stop the train being operated 
within one half the range of vision. Some railroads have argued that 
the very fact that a collision occurred or that a misaligned switch was 
run through at restricted speed, required the railroad to undertake the 
revocation process. While these incidents indicate a need for further 
railroad investigation, they will not always result in the need for 
decertification.

    Note: This proposal also seeks to clarify that running through a 
switch will not be considered a violation of Sec. 240.117(e)(1); 
i.e., a switch will not be considered a signal requiring a complete 
stop before passing it; however, running through a switch at 
restricted speed may be a revocable event when it is a reportable 
accident/incident pursuant to part 225.

    Since FRA disagreed with the assertion that revocation should be 
mandatory each time a switch is run through or a collision occurs at 
restricted speed, the agency disseminated its interpretation through 
letters to industry associations and unions. As we noted when we 
adopted the initial provisions of this section, FRA's intent was to 
respond to the type of operational misconduct that was causing 
accidents. Implicit in FRA's approach was a focus on decertification 
for significant events instead of for every minor collision or movement 
through a misaligned switch.
    FRA's interpretation of this regulation is captured in the second 
sentence of paragraph (e)(2) which states that ``[r]ailroads shall 
consider only those violations of the conditional clause of restricted 
speed rules, or the operational equivalents thereof, which cause 
reportable accidents or incidents under 49 CFR Part 225 as instances of 
failure to adhere to this section.'' Depending on the specific language 
used in a railroad's code of operating rules, the operational 
equivalent of restricted speed refers to other limitations on train 
speed which

[[Page 50641]]

include the conditional clause similar to that previously described. 
Examples of some of the speed rules which are the operational 
equivalent of restricted speed include those that are called yard 
speed, reduced speed, caution speed, controlled speed or other than 
main track speed.
    It is important to note that this interpretation, and expected 
regulatory amendment, does not and would not alter the agency's belief 
that the current rule is unambiguous concerning the maximum speed 
portion of the restricted speed rule. That is, if the locomotive or 
train is operated at a speed which exceeds the maximum authorized speed 
by at least 10 miles per hour, there would be no need to analyze 
whether a reportable accident/incident occurred since the conditional 
clause of the restricted speed rule would not be the violated 
provision.
    Likewise, if a person violates any one of the other provisions of 
Sec. 240.117(e) while operating at restricted speed, that person is 
subject to certification implications for violating that other 
provision. For example, a person operating a locomotive at restricted 
speed could be found to have violated Sec. 240.117(e)(1) if he or she 
operated a locomotive past a signal indication that requires a complete 
stop before passing it. Any reference to damage thresholds would not be 
applicable since this other provision of Sec. 240.117(e) was 
simultaneously violated.
    This interpretation will benefit the railroad industry by providing 
a clear line of demarcation. The result should prevent the dilemma of a 
railroad bringing certification action against an engineer due to a 
railroad official's belief that federal law requires it to do so. 
Meanwhile, it will benefit both engineers and railroads by eliminating 
many truly minor accidents or incidents from impacting certification 
status.
    FRA notes that it has not proposed any specific changes to 
paragraph (e)(3) which refers to certain brake test requirements in 49 
CFR part 232. This paragraph will likely need amending prior to 
becoming a final rule since two other regulatory proceedings may result 
in new rules which may supersede this reference. FRA has currently 
proposed Passenger Equipment Safety Standards to be published at 49 CFR 
part 238. See 62 FR 49728 (Sept. 23, 1997(citing proposed 
Secs. 238.313, 238.315, and 238.317). FRA also anticipates proposing 
changes to 49 CFR part 232 itself. See 63 FR 48294 (Sept. 9, 1998). In 
the final rule, FRA reserves the right to make conforming changes to 
this paragraph as necessary.
    Paragraph (e)(4) would be revised by adding the words ``or 
permission.'' FRA considers this revision as merely a clarification of 
the existing rule. In 1993, this paragraph was modified to prevent 
minor incidents from becoming revocation issues. The rule was changed 
so that entering ``main track,'' instead of entering a ``track 
segment,'' without proper authority would be considered operational 
misconduct. Main track is defined in Sec. 240.7 as ``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.''
    FRA has received inquiries into what is meant by the term 
``mandatory directive'' as that word was used in the 1993 rule to 
clarify the definition of main track. FRA's intent was for this term to 
be defined in the same way that it has historically been defined in 49 
CFR Part 220; that is, ``mandatory directive'' means ``authority for 
the conduct of a railroad operation.'' It includes all situations where 
a segment of main track is occupied without permission or authority in 
accordance with a railroad's operating rules. However, it does not 
include advisory information, such as that from a yardmaster relative 
to which track to use in a yard. Hence, in order to clarify this point, 
FRA has added the words ``or permission'' in paragraph (e)(4).
    Paragraph (e)(5) would clarify FRA's existing interpretation 
concerning what constitutes a tampering violation that requires 
revocation action. The change would add the phrase ``or knowingly 
operating or permitting to be operated a train with a tampered or 
disabled safety device in the controlling locomotive.'' This 
clarification is intended to answer the question of whether 
``tampering'' is defined only as operating with a safety device that 
was purposefully disabled by the person charged or whether tampering 
also means knowingly operating a train when the controlling locomotive 
of that train is equipped with a disabled safety device. Both FRA's 
current interpretation and the proposed changes concur that tampering 
can also mean knowingly operating a train when the controlling 
locomotive of that train is equipped with a disabled safety device.
    FRA reached its current interpretation and this amending 
clarification by reviewing the RSIA and 49 CFR part 218, App. C. The 
RSIA required DOT to promulgate rules as necessary to prohibit the 
``willful tampering with, or disabling of'' safety devices. Section 21 
of the RSIA states in part that ``[a]ny individual tampering with or 
disabling safety or operational monitoring devices in violation of 
rules, regulations, orders, or standards issued by [DOT], or who 
knowingly operates or permits to be operated a train on which such 
devices have been tampered with or disabled by another person, shall be 
liable for such penalties as may be established by [DOT], which may 
include fines under section 209, suspension from work, or suspension or 
loss of a license or certification issued under subsection (I) [of 45 
U.S.C. 202].'' Subsection (I) refers to the locomotive engineer 
certification rule which was introduced by Congress at the same time. 
Thus, it appears that Congress envisioned that a person who tampers 
with, knowingly operates, or permits to be operated a train with a 
disabled safety device could be liable for suspension or loss of 
locomotive engineer certification.
    Moreover, the proposed change comports with the agency's existing 
regulations concerning tampering with safety devices. When devising 
this proposal, the Working Group referred to 49 CFR 218.55, 218.57 and 
part 218, App. C (``Statement of Agency Policy on Tampering''). After 
considering FRA's existing interpretations, it was concluded that 
extending this policy to locomotive engineers in the certification 
process was necessary.
    Paragraphs (f)(2) and (3) would clarify FRA's existing 
interpretation that violations of the misconduct events listed in 
paragraph (e) of this section that occur during properly conducted 
operational compliance tests shall be considered for certification, 
recertification, or revocation purposes. One reason for further 
clarification is that some RSAC members complained that these 
operational monitoring tests can be used by supervisors to entrap 
engineers in tests that are unfair. For example, FRA has heard 
allegations that some supervisors have been able to get engineers 
decertified by hiding a fusee under a bucket and only revealing the 
fusee to the engineer at a point where it is impossible for the 
engineer to stop the train. Although FRA has not observed any such 
tests, the agency currently considers an ``improperly'' conducted 
operational test, i.e., a test not conducted according to a railroad's 
own operating rules, such as the alleged ``bucket test,'' to be an 
improper reason for decertification. Hence, the agency agreed with the 
RSAC members that the rule needs amending to caution the regulated 
community that improper testing cannot lead to revocation. Meanwhile, 
the RSAC members agreed that an operational monitoring test pursuant to 
Secs. 240.117 and 240.303 is

[[Page 50642]]

an evaluation of a locomotive engineer's skills and should, therefore, 
have certification consequences flow if violations occur.
    The only change to proposed paragraph (g)(3)(i) was to correct a 
typographical error. The word ``in'' was added after the word 
``described.''
    Paragraphs (g)(3)(ii), (iii), and (iv) would be added for three 
purposes. One, an additional period of revocation was added so that it 
will take four, instead of the current three, separate incidents 
involving violations of one or more of the operating rules or practices 
pursuant to paragraph (e) before the longest period of revocation is 
implemented. Two, the periods of revocation have been shortened; hence, 
a second offense period is shortened from one year to six months and a 
third offense period is reduced from five years to one year. The 
occurrence of a fourth offense would trigger a three year revocation, 
instead of the current five year maximum. These two changes are 
desirable since the Working Group members agreed that the one year and 
five year penalties were overly punitive for second and third offenses 
respectively.
    Third, the time interval in which multiple offenses would trigger 
increasingly stiffer periods of revocation would be reduced. As a 
result of these time interval reductions, if a period of 24 months, 
reduced from 36 months, passes between a first and second offense, the 
second offense revocation period will be treated in the same way as a 
first offense. If a period of 36 months, reduced from five years, 
passes between a second and third offense, or a third and fourth 
offense, this later offense will also be treated in the same way as a 
first offense.
    Under both the proposed and current revocation period schedules, 
the period of revocation is based on a floating window. Hence, under 
the proposal, if a second offense occurs 25 months after the first 
offense, the revocation period will be the same as a first offense; 
however, if a third offense occurs within 36 months of the first 
offense, the revocation period will be one year. The anomaly will be 
that the person's certificate could be revoked twice for one month 
under paragraph (g)(3)(i) but that the third incident could result in a 
one year revocation under paragraph (g)(3)(iii) without the benefit of 
the interim six month revocation period under paragraph (g)(3)(ii). 
Although this may on its face appear to be peculiar, the Working Group 
members agreed that it was fair given the totality of the 
circumstances. FRA recommends that when computing a revocation period, 
one should review whether there were any other revocation incidents 
during the prior 24 and 36 months from the most recent incident; 
creation of a timetable can be useful in making this determination.
    The proposed rule would add paragraph (g)(4) to retroactively apply 
the new, shorter periods of ineligibility to most incidents that have 
occurred prior to the effective date of this rule. The Working Group 
discussed the fairness of retroactively applying this rule rather than 
leaving the more burdensome, longer periods of revocation in place for 
those people who hold revoked certificates. In addition, the Working 
Group discussed their intent that future ineligibility periods would be 
determined by the ``floating window'' effective on the date of the next 
incident. Since the date of the subsequent incident is the deciding 
factor, it should be unnecessary to address this issue in the rule 
text. Furthermore, although Sec. 240.5(e) already states that this part 
shall not be construed to create any entitlement, the Working Group 
noted that they did not intend to create a right to compensation for 
any employee who may have benefited by a reduced period of 
ineligibility as a result of the addition of paragraph (g)(4).
    Paragraph (h) would be amended by adding the words ``or less'' 
after ``one year.'' The reason for this amendment is to capitalize on 
the addition of a separate revocation period for a fourth offense and 
to allow further mitigation of what has been perceived by the RSAC 
members as penalties that are too harsh. That is, the railroads' 
discretion to reduce a revocation period has been extended from only 
second offenses to first, second, and third offenses. As before, all of 
the requirements of (h) would need to be met prior to a reduction in a 
revocation period. Also, a reference to paragraph (g)(2) has been 
corrected to cite to (g)(3).
    Paragraph (j) and its subparagraphs utilize the same technique as 
previously used in paragraph (i) to make a fair transition after 
amendments are made to the regulation. This additional paragraph would 
resolve questions concerning the validity of railroad decisions made in 
conformity with the provisions of this section prior to its proposed 
revisions by this amendment. Railroad decisions made in conformity with 
the initial wording of this section were valid at the time they were 
rendered and it is not the Working Group's recommendation or FRA's 
intent to retroactively invalidate those decisions.
    Although the Working Group believes that the prior decisions should 
not be rendered invalid by this amendment, as a matter of fairness to 
those who violated the underlying railroad rule under the previous 
wording of this provision, those incidents should not have further 
prospective effect on the certification status of those locomotive 
engineers. Under Secs. 240.117(d) and (g), prior incidents of 
operational misconduct result in progressively longer periods of 
ineligibility. Proposed Sec. 240.117(j) precludes railroads from 
considering prior incidents that would no longer violate the rule. Not 
all prior railroad decisions are affected. Only operational misconduct 
incidents that would not be a violation under the proposed rule are 
affected. Subsection 240.117(j) identifies those events. In drafting 
proposed Sec. 240.117(j), the Working Group was attempting to be fair 
to both railroads and employees. The railroads should not be penalized 
for complying with the rule as it previously read. Moreover, any 
economic consequences suffered by employees came as a result of the 
railroad's operation of its disciplinary authority. If the exercise of 
that authority was proper at the time, a change in the federal rule 
does not alter that determination. However, because the RSAC has now 
determined that, henceforth, certain types of incidents are too minor 
to warrant decertification, further reliance on such lesser violations 
would be unfair to the employee. Even though such violations were 
appropriately handled at the time, giving them a cumulative effect in 
the certification process no longer makes sense in terms of RSAC's new 
perception of their importance to the Federal scheme.
Section 240.121--Criteria for Vision and Hearing Acuity Data
    The main purpose behind the proposal to amend this section is to 
prevent potential accidents due to a locomotive engineer's medical 
condition that could compromise or adversely affect safe operations. 
Although FRA originally desired that RSAC review the current medical 
qualifications, this issue gained greater urgency following the 
investigation of a collision in which a locomotive engineer's alleged 
deteriorating vision was considered a factor. See Railroad Accident 
Report--Near Head-On Collision and Derailment of Two New Jersey Transit 
Commuter Trains near Secaucus, New Jersey, February 9, 1996 (NTSB/RAR-
97/01). Specific recommendations were made by the NTSB and those 
recommendations were

[[Page 50643]]

directly addressed by RSAC in paragraphs (b), (c)(3), (e) and (f). See 
NTSB Safety Recommendation R-97-1 and R-97-2, which were previously 
discussed in the preamble section titled ``D. Revisiting the Standards 
for Hearing and Vision.''
    Paragraph (b) suggests two modifications in order to address the 
factual concern identified in NTSB's investigation. One, a reference to 
newly proposed Appendix F has been added so that the color vision 
tests, and scoring criteria would be specified. Two, the testing 
procedures and qualification standards are specified by recommending 
that the tests be performed in accordance with the directions supplied 
by the manufacturer of the chosen test or any American National 
Standards Institute (ANSI) standards that are applicable. As requested 
by the NTSB, this proposal was based on expert guidance from several 
railroad medical officers, an FAA medical officer and an NTSB medical 
officer. While the second modification is a recommendation and not a 
requirement, FRA's position is that the proposal would provide 
sufficient guidance to those administering the tests as to where they 
should look in confirming that they are conducting the tests properly; 
by including this recommendation, FRA would be calling attention to the 
need for test administrators to follow proper medical testing 
methodology and thereby avoid the problem of mistakenly providing the 
wrong type of test.
    It was suggested that paragraph (c)(3) be amended to address NTSB 
recommendation R-97-1. For instance, a reference to proposed Appendix F 
was necessary to integrate the specified color vision tests proposed. 
The word ``railroad'' was added before ``signals'' to further elaborate 
to the medical examiners conducting such tests that the key is being 
able to distinguish railroad signals; without such a clarification, the 
medical experts warned that medical examiners unfamiliar with the 
railroad environment might focus their attention on colors that do not 
appear as railroad signals. Another clarification to this paragraph is 
the addition of the words ``successfully completing one of the tests.'' 
The task force discussed that although these tests should be readily 
available, not every medical office will have more than one of these 
tests. In addition, given the specified failure criteria, it would be 
unnecessary to initiate multiple tests if one is successfully completed 
since that would be redundant.
    Paragraph (e) would be amended to include the words ``upon 
request.'' The reason for adding these words is to create a right for a 
person who has failed to meet the required vision or hearing acuity 
standards. The effect will be that instead of a railroad having the 
discretion to determine whether a person is otherwise qualified to 
operate a locomotive, the person has a right to request such a medical 
evaluation from the railroad's medical examiner. The objective in 
making this change is to encourage uniform and consistent actions so 
that persons with similar medical deficiencies will be treated 
similarly.
    Other significant changes to paragraph (e) are proposed based on 
the task force finding that some railroad medical examiners either do 
not work directly for the railroad or are unfamiliar with railroad 
operations. The most significant proposal to address this concern would 
require the medical examiner to consult a designated supervisor of 
locomotive engineers (DSLE) prior to determining whether a person who 
fails to meet any hearing or vision standard has the ability to safely 
operate. Currently, there is no explicit consultation requirement 
although good sense would suggest that a medical examiner should 
consult someone with railroad expertise if they had any questions about 
railroad operations. The task force clearly intended for the decision 
to remain with the medical examiner, not the DSLE.
    The following proposals also attempt to educate the medical 
examiner who may be unfamiliar with FRA's rule or railroad operations. 
By requiring that the railroads provide their medical examiners with a 
copy of this part as amended, it should insure that those conducting 
the tests will use approved tests and understand the standards to be 
met. The words as amended are intended to require that the railroad 
provide updated copies of the regulation when future proposed changes 
become effective.
    Paragraph (f) is intended to achieve similar goals to those 
suggested by NTSB. It would create a reporting obligation for any 
certified locomotive engineer based on objective, deteriorating changes 
in a person's hearing or vision that is likely to effect safety. In 
practice, it would be expected that the railroad would need to take 
appropriate steps to evaluate a person who notifies the railroad's 
medical department or an appropriate railroad official of this 
condition. Certainly, it is reasonable for FRA to expect that a 
railroad will retest such a person to determine the extent of the 
deteriorating condition. Most likely, it would be necessary for a 
medical examiner to follow the requirements of paragraph (e) of this 
section, which would include a consultation with a DSLE.
    In developing paragraph (f), the medical officers advising the task 
force recommended using the phrase ``best correctable vision or 
hearing.'' This recommendation recognizes that a person could have 
suffered deterioration to any aspect of their hearing or vision, and 
yet corrective lenses or a more powerful hearing aid could provide the 
person with a level of vision or hearing that is equivalent, or better, 
to what the person had prior to the deterioration. In addition, while 
the individual should be concerned and may want to report any 
deteriorating vision or hearing to the railroad, the requirement to 
report would be limited to those instances in which the deteriorating 
condition results in the person no longer meeting one or more of the 
prescribed vision or hearing standards or requirements of this section 
despite the use of corrective devices. FRA's position is that this 
proposal is unambiguous as to the person's obligation and should be 
enforceable if made final.
Section 240.123--Criteria for Initial and Continuing Education
    Paragraphs (d), (d)(1), and (d)(2) would be added to help resolve 
numerous inquiries FRA has received regarding how engineers can become 
familiar with the physical characteristics of a territory on new 
railroads being created, or on portions of a railroad being reopened 
after years of non-use. The new paragraphs seek to clarify the rule and 
reflect FRA's current interpretation. The Working Group recommended 
that rather than have the agency repeatedly address these issues on a 
case-by-case basis, it would be a better use of resources, and fairer 
to all parties, if the guidance were published so that FRA would treat 
all railroads uniformly, not be overly burdensome, and not compromise 
safety.
    Initially, the Working Group sought to address this issue in an 
appendix to the rule. The idea was that this information is guidance 
not requiring a rule change. Based on further evaluation, the Working 
Group recognized that the purposes of the guidance would substantively 
change the rule. Thus, a place for this proposed guidance has been 
integrated into the rule text itself.
Section 240.127--Criteria for Examining Skill Performance
    DSLEs are required to conduct skill performance tests pursuant to 
Sec. 240.127. This formal test is required prior to

[[Page 50644]]

initial certification or recertification of the engineer. A consensus 
was reached that a DSLE can determine an engineer's train handling 
abilities without being familiar with the territory over which the 
engineer is operating. Based on that consensus, the Working Group 
decided that the proposed rule should not require DSLEs to be qualified 
on the physical characteristics of the subject territory in order to 
conduct this test.
    Meanwhile, Sec. 240.127(c)(2) requires that the testing procedures 
selected by the railroad shall be conducted by a DSLE. Without an 
exception, a Catch-22 issue arises as to whether it is possible for a 
railroad to designate a person as a DSLE when that person does not meet 
the definition of a DSLE (because the person is not qualified on the 
territory over which the person is supposed to conduct a skill 
performance test). To relieve this conflict, the Working Group's 
solution was to propose that Sec. 240.127(c)(2) be amended so that it 
would read ``Conducted by a designated supervisor of locomotive 
engineers, who does not need to be qualified on the physical 
characteristics of the territory over which the test will be 
conducted.'' This proposal accommodates the Working Group's findings 
regarding the need for qualified DSLEs.

Subpart C--Implementation of the Certification Process

Section 240.217--Time Limitations for Making Determinations
    All of the modifications being proposed for this section involve 
changes to time limits. The RSAC members requested these changes 
because they recognized administrative difficulties in meeting the 
shorter and inconsistent periods. FRA does not believe that these time 
extensions will make the data so old that they will no longer be 
indicative of the person's ability to safely operate a locomotive or 
train.
    When the rule was originally published, time limits were 
established which seemed reasonable and prudent. The rule contained 
numerous time limits of varying length, which has lead to confusion by 
those governed by the rule. Since publication of the rule, experience 
by the regulated community has shown the potential for simplification 
and consistency without sacrificing safety.
Section 240.223--Criteria for the Certificate
    The proposed amendment to paragraph (a)(1) would require that each 
certificate identify either the railroad or ``parent company'' that is 
issuing it. This change would provide relief to companies, primarily 
holding companies that control multiple short line railroads, from 
having to issue multiple certificates. For these companies, complying 
with the current requirement of identifying each railroad has become a 
major logistical problem. ASLRRA, the original author of this proposal, 
has stated that a holding company managing multiple short line 
railroads is the equivalent of a major railroad operating over its many 
divisions; thus, it is fair to treat them similarly. However, the 
individuals must still qualify under the program of each short line 
railroad for which they are certified to operate and each of those 
railroads must maintain appropriate records as required by this part.
Section 240.225--Reliance on Qualification Determinations Made by Other 
Railroads
    The proposed modification of this section addresses several 
concerns. First, new paragraph (a) addresses the perception that the 
larger railroads often administer a more rigorous training program than 
the smaller railroads due to the nature of their operations. While the 
Working Group did not intend to minimize the quality of the training 
programs of many smaller railroads or the expertise and professionalism 
of their locomotive engineers, it did intend to address the fact that 
small railroads often have more straightforward operations which are 
geographically compact and not topographically diverse.
    The proposal would require a railroad's certification program to 
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 to 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. By articulating both the problem 
and mandating the safe solution, the Working Group believes the 
proposal will save resources.
    This issue is of considerable moment due to the current economic 
climate. Railroad ton-miles per year are at historically high levels. 
Whereas a few years ago, the industry was offering severance packages 
to train and engine crews, more recently the demand for skilled workers 
in these crafts has led to significant hiring of new employees. Larger 
railroads have found smaller railroads to be fertile fields for such 
hiring efforts.
    One example of such a problem might involve a train service 
engineer from a Class III operation. That person would probably be 
trained under the standard Class III certification program and, 
therefore, would receive approximately 3 and \1/2\ weeks of training. 
This is the minimum training acceptable for basic railroad yard type 
operations (slow speed moves with limited numbers of cars). This 
training would not be acceptable for Class I and II railroad operations 
since these usually encompass higher speeds, heavier and longer trains, 
and utilize more complex methods of operation.
Section 240.229--Requirements for Joint Operations Territory
    The proposal to amend paragraph (c) reflects a Working Group desire 
to realign the burden for determining which party is responsible for 
allowing an unqualified person to operate in joint operations. These 
changes are based on the experiences of the Working Group members who 
believe that an inordinate amount of the liability currently rests with 
the controlling railroad. The perceived unfairness rests on the fact 
that it is not always feasible for the controlling railroad to make all 
of the determinations required of current paragraph (c). The guest 
railroad may provide the controlling railroad with a long list of 
hundreds or thousands of locomotive engineers that it deems eligible 
for joint operations; following up on a long, and ever changing list is 
made much more difficult since a controlling railroad does not control 
the personnel files of the engineers on this list.
    The proposed realignment would lead to a sharing of the burden 
among a controlling railroad, a guest railroad and a guest railroad's 
locomotive engineer. The parties responsibilities are found 
respectively in paragraphs (c)(1) through (3). Although a controlling 
railroad still has the same obligations to make sure the person is 
qualified, paragraph (c)(2) would require that a guest railroad make 
these same determinations before calling a person to operate in joint 
operations. Paragraph (3) reiterates the responsibility the rule places 
on engineers to notify a railroad when the person is being asked to 
exceed certificate limitations. While this proposed amendment might 
seem duplicative to some people in light of Sec. 240.305(c), the 
Working Group believed that some people might not readily recognize 
their responsibility unless specifically referenced in this section.

[[Page 50645]]

Section 240.231--Requirements for Locomotive Engineers Unfamiliar With 
Physical Characteristics in Other Than Joint Operations
    The proposed addition of this section will improve safety and clear 
up a complicated issue. Section 240.1 requires ``that only qualified 
persons operate a locomotive or train.'' The term qualified has a 
proposed definition in Sec. 240.7; that definition states that 
qualified ``means a person who has passed all appropriate training and 
testing programs required by the railroad and this part and who, 
therefore, has actual knowledge or may reasonably be expected to have 
knowledge of the subject on which the person is qualified.'' The rule 
is currently silent as to the use of pilots except for joint operations 
territory pursuant to Sec. 240.229(e); however, even in this exception, 
a qualified person is described as ``either a designated supervisor of 
locomotive engineers or a certified train service engineer determined 
by the controlling railroad to have the * * * necessary operating 
skills including familiarity with its physical characteristics 
concerning the joint operations territory.'' Therefore, while the 
regulation does not preclude a locomotive engineer from operating under 
the direction of a qualified engineer pilot, FRA's official 
interpretation is that other employees may not serve as pilots even if 
they are qualified on the operating rules and physical characteristics 
of the territory. This is a controversial interpretation since 
railroads have a history of using conductors and other craft employees 
as pilots.
    The changes to the rule reflect a true consensus-built proposal 
that recognizes the complexity of the problem. Simply requiring 
locomotive engineer pilots in all situations, or in no situations, is 
neither practical nor desirable. Hence, while supervisors of locomotive 
engineers may need to consult the rule more frequently in order to 
ensure compliance, the rule will accommodate more flexibility than the 
current FRA position that only locomotive engineer pilots are 
acceptable.
    Paragraph (a) is a general statement of policy that explicitly 
states the basic concept that, unless an exception applies, only 
certified engineers who are also qualified on the territory upon which 
they are to operate are truly qualified. Paragraph (b) allows a non-
qualified engineer to have a pilot while (b)(1) and (b)(2) identify 
what type of person may serve as a pilot depending on different 
conditions. In either case, paragraph (b) would specifically require 
that a railroad's program must address how these individuals will 
attain qualifications for pilot service.
    Paragraph (b)(1) would require that when an engineer has never been 
qualified as an engineer on a territory, the railroad must provide a 
certified engineer pilot who is both qualified and not an assigned crew 
member. The reasoning behind an engineer pilot in this instance lies on 
the fact that engineers must have a more detailed knowledge of the 
physical characteristics than persons of other crafts in order to 
anticipate how to safely operate their trains. Meanwhile, the 
requirement that this certified engineer pilot not be a crew member is 
based on the idea that crew members would have their own duties that 
would prevent them from providing the controlling engineer their 
undivided attention. Certainly, this undivided attention is necessary 
when the controlling engineer has no expectation of what physical 
characteristics of the territory are like around the next curve or past 
the next signal.
    Paragraph (b)(2) would allow any qualified person to be a pilot if 
the controlling engineer was previously qualified on the territory and 
lost that qualification due to time limitations. Of course, a railroad 
could choose to use a qualified engineer pilot, but this provision 
allows the railroad more flexibility. The concept behind easing the 
engineer pilots only requirement relies on the Working Group members' 
experiences; that is, engineers who have been previously qualified on a 
territory would need less guidance and expertise to refamiliarize 
themselves with the physical characteristics of that territory.
    Paragraph (c) would allow certified engineers who are unqualified 
on the physical characteristics of a territory to operate trains under 
specific circumstances. The four circumstances only apply to track 
segments with an average grade of less than one percent (1%) over a 
distance of three (3) miles. In other words, if a movement requires the 
engineer to operate on a track with heavy grade, a pilot will be 
required regardless of the four circumstances.
    Paragraph (c)(1) would allow certified engineers to operate without 
a pilot on tracks other than a main track, regardless of distance. FRA 
suggests that where railroads anticipate the need to apply this 
exclusion, switch targets indicate names or numbers so that engineers 
who are unfamiliar with a rail yard can safely move their trains to the 
designated location within the rail yard. Most train operations 
conducted off main track require reduced speed limitations and thus 
have fewer and less severe safety implications.
    Paragraph (c)(2) would allow certified engineers to operate on a 
main track without a pilot for a distance not exceeding one mile, 
regardless of maximum authorized speed. As an example, this exception 
would allow an unqualified engineer to operate movements from a yard on 
the south side of a main track, using the main track for less than a 
mile, to a yard on the north side of the main track.
    Paragraph (c)(3) would allow certified engineers to operate on any 
track without a pilot, regardless of distance, provided the established 
or permanent maximum authorized speed limit for all operations does not 
exceed 20 miles per hour.
    Paragraph (c)(4) would allow certified engineers to operate on any 
track without a pilot, regardless of distance where existing operating 
rules require movements to proceed prepared to stop within one half the 
engineer's range of vision. This does not allow railroads to make 
special requirements of only their engineers who are not qualified; 
that is, the conditional clause of the restricted speed type 
restriction must apply to all operations on that track. Hence, it would 
be a violation of the rule if a railroad ordered an engineer who is not 
qualified to operate on a main track with restricted speed instructions 
that did not also apply at all times to every other locomotive and 
train operation on that track.
    In considering whether to suspend or revoke a person's certificate 
when the person is operating pursuant to one of the exceptions in 
paragraph (c), the railroad should consider the following issues: (1) 
whether the locomotive engineer notified a railroad official that he or 
she was unqualified to operate over the territory; (2) whether the 
locomotive engineer was ordered by a railroad official to operate over 
the territory despite the official's knowing that the locomotive 
engineer was unqualified; and, (3) if one of the exceptions in 
paragraph (c) applied, whether there was a direct relationship between 
the alleged operational misconduct event pursuant to Sec. 240.117(e)(1) 
through (5) and the locomotive engineer's unfamiliarity with the 
territory.
    If an alleged violation is caused by the engineer's territorial 
unfamiliarity, proposed Sec. 240.307(i) could be referenced as a 
defense to the alleged misconduct. For example, if an engineer is 
operating for a distance of less than one mile without a pilot and the 
train passes a signal requiring a complete stop that was around a 
curve, it is

[[Page 50646]]

arguable that the engineer passed the signal due to his or her 
unfamiliarity and lack of a pilot; thus, revoking an engineer's 
certificate under such circumstances would be improper.
    On the other hand, if an alleged violation occurs that is unrelated 
to the engineer's unfamiliarity with the territory, the engineer would 
be held liable for his or her conduct. For example, if an engineer is 
operating without a pilot in unfamiliar territory and the type of 
operation requires that any operation on the track does not exceed 20 
MPH pursuant to Sec. 240.231(c)(3), than an engineer should probably 
have his or her certificate revoked for operating at 10 MPH or more 
above the maximum authorized speed. It is unlikely under such 
conditions that the physical characteristics somehow would have helped 
cause the alleged violation since a pilot would be required if the 
unfamiliar territory was over heavy grade. See Sec. 240.231(c).

Subpart D--Administration of the Certification Program

Section 240.305--Prohibited Conduct
    Parallel to the discussion in the section-by-section analysis above 
concerning Sec. 240.117(c)(2), the Working Group recommended adding 
paragraph (a)(6) to strengthen FRA's authority to take enforcement 
action against DSLEs under appropriate circumstances. That is, a DSLE, 
who is already a certified locomotive engineer, must realize that if he 
or she allows prohibited conduct to occur without taking ``appropriate 
action,'' other than in a test monitoring capacity, FRA could take 
enforcement action against the DSLE. ``Appropriate action'' is not 
defined in the regulation and would depend on the facts and 
circumstances of each case.
    The regulatory language, and the reasoning behind that language, 
mirrors the Sec. 240.117(c)(2) amendment. Given FRA's authority 
pursuant to Sec. 240.11, it is arguable that the agency currently has 
this authority. However, to reiterate, this amendment certainly would 
put supervisors on notice that they cannot actively or passively 
acquiesce to misconduct events caused by certified engineers they are 
observing.
    In addition, several paragraphs would be added to Sec. 240.305(a) 
so that the prohibited conduct list is equivalent to the list of 
misconduct events in Sec. 240.117(e) which require the railroad to 
initiate revocation action. This section is needed so that FRA may 
initiate enforcement action. For example, FRA may want to initiate 
enforcement action in the event that a railroad fails to initiate 
revocation action or a person is not a certified locomotive engineer 
under this part. Furthermore, FRA will make conforming changes to 
paragraph (a)(3) as necessary considering proposed Passenger Equipment 
Safety Standards to be published at 49 CFR part 238. See 62 FR 49728 
(Sept. 23, 1997. Also, FRA anticipates proposed changes to 49 CFR part 
232 that may requiring conforming changes to paragraph (a)(3). See 63 
FR 48294 (Sept. 9, 1998).
Section 240.307--Revocation of Certification
    When the final rule was published in 1991, FRA intended that the 
notice of suspension in paragraph (b) would be written notice. FRA 
explicitly stated in the preamble to that first final rule on this 
subject that ``[p]aragraph (b) requires that before suspending a 
certificate, or contemporaneous with the suspension, the railroad shall 
give the engineer written notice of the reason for the pending 
revocation action and provide an opportunity for a hearing.'' 56 FR 
28228, 28251 (June 19, 1991). Despite these intentions, the rule itself 
failed to specify that notice must be made in writing. Consequently, 
many persons effected by this rule have not received written notice of 
proposed actions against them.
    FRA proposed to the Working Group that the word ``written'' be 
added to paragraph (b)(2) so that the agency's intentions would be 
reflected in the rule. The Working Group surprised FRA by countering 
that this was not the only problem with this paragraph and that without 
clarification, written notice would pose problems for some operations. 
A discussion ensued so the Working Group could identify the problems 
and attempt to resolve them.
    The main problem identified by the addition of the word ``written'' 
to paragraph (b)(2) was that a railroad may be in ``receipt of reliable 
information indicating the person's lack of qualification under this 
part,'' have the desire to immediately suspend the person's 
certificate, but lack the means to immediately draft a competent 
written notice. See Sec. 240.307(b)(1). As a compromise, the Working 
Group proposed that the initial notice may be either verbal or written. 
Confirmation of the suspension must be made in writing at a later date. 
The amount of time the railroad has to confirm the notice in writing 
depends on whether or not a collective bargaining agreement is 
applicable. The Working Group believed that if no collective bargaining 
agreement is applicable, 96 hours is sufficient time for a railroad to 
provide this important information.
    Another of the problems identified by the Working Group was that 
throughout Sec. 240.307, the regulation refers to an individual whose 
function is the ``charging official.'' Several Working Group members 
noted that the railroad industry does not generally use this term and 
that a better description of the individual the regulation is referring 
to would be ``investigating officer.'' FRA voted for, and now proposes, 
the change of this term, but wants to clarify that the agency's 
position is that both terms refer to the railroad official who accepts 
the prosecutorial role.
    Paragraph (c) would be modified to reflect the consequences of 
adding paragraph (i). Paragraph (i) provides specific standards of 
review for railroad supervisors and hearing officers to consider when 
deciding whether to suspend or revoke a person's certificate due to an 
alleged violation of an operational misconduct event. Pursuant to 
paragraph (i), either defense must be proven by substantial evidence.
    One issue that has bothered both FRA and many persons affected by 
this rule involves the presiding officer's actions pursuant to 
paragraph (c)(10). Paragraph (c) specifies that unless a hearing is 
held pursuant to a collective bargaining agreement as specified in 
paragraph (d) or is waived according to paragraph (f), the railroad is 
required to provide a hearing consistent with procedures specified in 
paragraph (c). Paragraph (c)(10) requires that the presiding officer 
prepare a written decision, which on its face seems like a 
straightforward requirement. However, some petitioners have argued that 
procedural error has occurred when written decisions have been signed 
by a presiding officer's supervisor or a railroad official other than 
the presiding officer. The issue appears to be whether the presiding 
officer must also be the decision-maker or whether the presiding 
officer can merely take the passive role of presiding over the 
proceedings only. There is also a separate issue of whether a railroad 
official who is someone other than the presiding officer may have a 
conflict of interest that should disqualify that railroad official from 
signing the written decision; i.e., there may be the appearance of 
impropriety if the non-presiding railroad official has ex-parte 
communications with the charging official (or investigating officer). 
This kind of ethical issue could be raised in a petition to the LERB as 
a procedural issue and could be alleged to cause a petitioner 
substantial harm.
    The agency's intentions were articulated in the preamble to the 
1993

[[Page 50647]]

interim final rule. FRA stated that ``FRA's design for Subpart D was 
structured to ensure that such decisions would come only after the 
certified locomotive engineer had been afforded an opportunity for an 
investigatory hearing at which the hearing officer would determine 
whether there was sufficient evidence to establish that the engineer's 
conduct warranted revocation of his or her certification.'' 58 FR 
18982, 18999 (Apr. 9, 1993). FRA also discussed in this 1993 preamble 
how the revocation process pursuant to this part should be integrated 
with the collective bargaining process. FRA stated that if the 
collective bargaining process is used ``the hearing officer will be 
limited to reaching findings based on the record of the hearing'' and 
not other factors as may be allowed by a bargaining agreement; the rule 
was written to ``guard against hearing officers who might be tempted to 
make decisions based on data not fully examined at the hearing.'' 58 FR 
18982, 19000 (Apr. 9, 1993). Hence, it appears that the agency did not 
even contemplate that someone other than the presiding officer might 
make the revocation decision.
    In contrast to the agency's initial position, several Working Group 
members said that their organizations have set up this process to allow 
someone other than the presiding officer to make the revocation 
decision. This other person is always a railroad official who reviews 
the record made at the railroad hearing. Although this is not what the 
agency expected when it drafted the original final rule in 1991, FRA 
and the LERB have found this practice acceptable as long as the 
relevant railroad official has not been the charging official (or 
investigating officer, as proposed). The theory of this NPRM is that 
fairness of the hearing and the decision is maintained by separating 
the person who plays the prosecutorial role from the person who acts as 
the decision-maker. Thus, the Working Group recommends and FRA proposes 
to codify this position in paragraph (c)(10). FRA has reservations, 
however, about such decisions being made by persons who have not had 
the opportunity to evaluate the credibility of witnesses in the case by 
receiving their testimony at first hand. FRA seeks comments on this 
issue.
    Paragraph (i)(1) would make it explicitly known that a person's 
certificate shall not be revoked when there is substantial evidence of 
an intervening cause that prevented or materially impaired the person's 
ability to comply. FRA has always maintained this position and the RSAC 
members agreed that it would be useful to incorporate it into the rule. 
FRA expects that railroads which have previously believed they were 
under a mandate to decertify a person for a violation regardless of the 
particular factual defenses the person may have had, will more 
carefully consider similar defenses in future cases. In 1993, FRA 
stated that ``[f]actual disputes could also involve whether certain 
equitable considerations warrant reversal of the railroad's decision on 
the grounds that, due to certain peculiar underlying facts, the 
railroad's decision would produce an unjust result not intended by 
FRA's rules.'' 58 FR 18982, 19001 (Apr. 9, 1993). The example FRA used 
in 1993 applies to this proposal as well. That is, the LERB ``will 
consider assertions that a person failed to operate the train within 
the prescribed speed limits because of defective equipment.'' 
Similarly, the actions of other people may sometimes be an intervening 
cause. For instance, a conductor or dispatcher may relay incorrect 
information to the engineer which is relied on in making a prohibited 
train movement.
    Meanwhile, locomotive engineers and railroad managers should note 
that not all equipment failures or errors caused by others should serve 
to absolve the person from certification action. The factual issues of 
each circumstance must be analyzed on a case-by-case basis. For 
example, a broken speedometer would certainly not be an intervening 
factor in a violation of Sec. 240.117(e)(3) (failure to do certain 
required brake tests).
    Paragraph (i)(2) would constitute an important change to the 
enforcement philosophy of this part and was a popular concept among the 
RSAC members. This section, which only applies to the operational 
misconduct events, requires railroads to forgo revocation when two 
criteria are met. First, the violation must be of a minimal nature; for 
example, on high speed track at the bottom of a steep grade, the front 
of the lead unit in a four unit consist hauling 100 cars enters a speed 
restriction at 10 miles per hour over speed, but the third unit and the 
balance of the train enters the speed restriction at the proper speed, 
and maintains that speed for the remainder of the train. Other examples 
would include slowing down for speed restrictions that are located 
within difficult train-handling territory, flat switching-kicking cars, 
snow plow operations, and certain industrial switching operations 
requiring short bursts of speed to spot cars on steep inclines. While a 
railroad would be free to take such disciplinary action as it deems 
appropriate consistent with the collective bargaining agreement and the 
Railway Labor Act, the consensus of the Working Group is that this is a 
violation so minimal that safety is not compromised and federal 
government intervention is not warranted.
    However, a violation could not be considered of a minimal nature if 
an engineer blatantly disregarded the operating rules. For example, 
using the same consist and location in the previous example, if the 
entire train were operated through the speed restriction at 10 miles 
per hour over the prescribed speed, then the event could not be 
considered of a minimal nature.
    Second, for paragraph (i)(2) to apply, there must also be 
substantial evidence that the violation did not have either a direct or 
potential effect on rail safety. This proposed defense would certainly 
not apply to a violation that actually caused a collision or injury 
because that would be a direct effect on rail safety. It would also not 
apply to a violation that, given the factual circumstances surrounding 
the violation, could have resulted in a collision or injury because 
that would be a potential effect on rail safety. For instance, an 
example used to illustrate the term ``minimal nature'' described a 
situation involving a train that had the first two locomotives enter a 
speed restriction too fast, yet the balance of the train was in 
compliance with the speed restriction; since the train in this example 
would not be endangering other trains because it had the authority to 
travel on that track at a particular speed, there would be no direct or 
potential effect on rail safety caused by this violation.
    In contrast, if a train fails to stop short of a banner, which is 
acting as a signal requiring a complete stop before passing it, during 
an efficiency test, that striking of a banner may have no direct effect 
on rail safety but it has a potential effect since a banner would be 
simulating a railroad car or another train. Meanwhile, there is a 
difference between passing a banner versus making an incidental 
touching of a banner. If a locomotive or train barely touches a banner 
so that the locomotive or train does not run over the banner, break the 
banner, or cause the banner to fall down, this incidental touching 
should be considered a minimal nature violation that does not have any 
direct or potential effect on rail safety. This is because such an 
incidental touching is not likely to cause damage to equipment or 
injuries to crew members even if the banner was another train.
    Similarly, if a train has verbal and written authority to occupy a 
segment of main track, the written authority refers to the correct 
train number, and the

[[Page 50648]]

written authority refers to the wrong locomotive because someone 
transposed the numbers, the engineer's violation in not catching this 
error before entering the track without proper authority could be 
considered of a minimal nature with no direct or potential effect on 
rail safety. Since the railroad would be aware of the whereabouts of 
this train, the additional risk to safety of this paperwork mistake is 
practically none. Under the same scenario, where there are no other 
trains or equipment operating within the designated limits, there may 
be no potential effect on rail safety as well as no direct effect.
    Paragraph (j) would require that railroads keep records of those 
violations in which they elect not to revoke the person's certificate 
pursuant to paragraph (i). The keeping of these records is 
substantially less burdensome than the current rule since the current 
rule requires this type of recordkeeping plus the opportunity for a 
hearing under Sec. 240.307. The purpose for keeping such records is so 
that FRA can oversee enforcement of the rule. As noted earlier in the 
preamble (when explaining one of RSAC's major issues as addressing 
safety assurance and compliance by clarifying railroad discretion), 
paragraph (j)(1) would require that railroads keep records even when 
they decide not to suspend a person's certificate due to a 
determination pursuant to paragraph (i). Paragraph (j)(2) would require 
that railroads keep records even when they make their determination 
prior to the convening of the hearing held pursuant to Sec. 240.307.
    Paragraph (k) would address concerns from some Working Group 
members that problems could arise if FRA disagrees with a railroad's 
decision not to suspend a locomotive engineer's certificate for an 
alleged misconduct event pursuant to Sec. 240.117(e). The idea behind 
new paragraph (i) is that as long as the railroads make good faith 
determinations after reasonable inquiries, they should have a defense 
to civil enforcement for making, what the agency believes is, an 
incorrect determination. Since paragraph (i) will require the railroads 
to make some difficult decisions based on factual circumstances on a 
case-by-case basis, the RSAC members felt that it was only fair that 
the railroads should not be penalized for making what the agency in 
hindsight may decide to be the wrong decision. However, railroads shall 
be put on notice that if they do not conduct a reasonable inquiry or 
act in good faith, they are subject to civil penalty enforcement.
Section 240.309--Railroad Oversight Responsibilities
    This recordkeeping section needs modification to better reflect the 
types of poor safety conduct identified in Sec. 240.117(e). Paragraph 
(e)(3) would also need amending to include a reference to part 238 
[Passenger Equipment Safety Standards] if that proposed rule becomes 
final. Paragraphs (e)(6), (7) and (8) currently concern train handling 
issues that are no longer considered operational misconduct events. 
Hence, the new paragraphs (e)(6), (7) and (8) mirror those operational 
misconduct events that were mistakenly left off this list of conduct 
that needs to be reported for study and evaluation purposes.
    New paragraph (h) would correct a clerical error which had 
mistakenly created two paragraphs labeled as (e).

Subpart E--Dispute Resolution Procedures

Section 240.403--Petition Requirements
    The proposed changes to paragraph (d) would shorten the amount of 
time an aggrieved person can take to file a petition with the LERB from 
180 days to 120 days. The main reason for this change is wrapped up in 
the overall concept that the entire certification review process should 
be as short as possible because timely decisions are more meaningful. 
Another reason for shortening this filing period is that the RSAC 
members, many of whom have had significant exposure to the LERB 
petition process, found this time period unnecessarily long in order to 
complete a petition. These industry leaders recognize that the evidence 
typically needed for the LERB's review is readily available at the time 
the railroad makes its revocation decision. Petitioners need to send 
the LERB this evidence and add an explanation as to why they believe 
the railroad's decision was improper. Since this period of time was so 
great, some RSAC members reported that it only encouraged aggrieved 
persons to procrastinate before deciding whether to file a petition.
Section 240.405--Processing Qualification Review Petitions
    Paragraph (a) would be modified to include a public pronouncement 
of FRA's goal to issue timely decisions. Many of the RSAC members 
applauded the thoroughness of the LERB's decisions; meanwhile, all of 
the Working Group members, including FRA, agreed that the LERB needs to 
issue all of its decisions in a timely fashion. As FRA discussed in the 
RSAC meetings, FRA has improved the process; however, FRA's efforts 
have led to mixed results. Therefore, by publishing FRA's goal of 
rendering decisions within 180 days from the date FRA has received all 
the information from the parties and stating that intention in a letter 
to Petitioner, FRA will be recognizing these decisions as projects 
requiring specific deadlines.
    Paragraph (c) would lengthen the amount of time the railroad will 
be given to respond to a petition from 30 days to 60 days. After 
several years of responding to petitions, the RSAC members representing 
railroads complained of the great burden and difficulty they had in 
issuing timely responses. Although there was some reluctance to 
lengthening this period and thereby the overall process, there was 
consensus that this 30-day time period was unfairly short. FRA would 
expect that when possible, railroads will continue to file responses as 
soon as possible rather than wait until the sixtieth day to file.
    Paragraph (d)(3) would be added so that railroads which submit 
information in response to a petition will be required to file such 
submission in triplicate. While this proposal creates an additional 
mandatory paperwork burden for the railroads that choose to respond, it 
should not be a great hardship since most railroads have been 
voluntarily supplying FRA with three copies of their submissions. Many 
submissions contain several hundred pages since they typically include 
a copy of the hearing transcript developed at the railroad on-the-
property hearing pursuant to Sec. 240.307. When the Docket Clerk 
receives a single copy of a railroad's response to a petition, the 
Docket Clerk typically makes two additional photocopies of the response 
or calls the railroad's representative to see if the railroad is 
willing to voluntarily provide two additional copies; consequently, 
making this a mandatory requirement will ease an administrative burden 
for FRA and clarify what FRA really needs to process the petition. 
Since persons filing petitions are specifically required to submit each 
petition in triplicate, this requirement would provide parity between 
the parties. Furthermore, without this requirement, the burden placed 
on the Docket Clerk could cause undesirable delay in this process.
Section 240.411--Appeals
    Although FRA has proceeded without legal challenge, some questioned 
the fact that the current rule does not specify that the Administrator 
has the power to remand or vacate. A remand is a tool which allows the 
appellate decision-maker to send a case back to

[[Page 50649]]

the tribunal or body from which it was appealed for further 
deliberation. For example, if the Administrator reverses a judgment 
made pursuant to Sec. 240.409, the Administrator may remand the matter 
for a new proceeding or hearing to be carried out consistent with the 
principles announced in the Administrator's decision. The authority to 
vacate may be necessary if the Administrator wishes to annul or set 
aside an entry of record or a judgment. Since the powers to remand and 
vacate should prove beneficial to the dispute resolution procedures, 
they are proposed as additions to paragraph (e).
    The phrase ``when these administrative remedies have been 
exhausted'' is included as part of the regulation so that parties would 
understand that a remand, or other intermediate decision, would not 
constitute final agency action. The inclusion of this phrase is made in 
deference to those parties that are not represented by an attorney or 
who might otherwise be confused as to whether any action taken by the 
Administrator should be considered final agency action.
Appendix A to Part 240--Schedule of Civil Penalties
    FRA proposes that footnote number 1 to this schedule of civil 
penalties should be revised to reflect recent changes in the law. The 
Federal Civil Penalties Inflation Adjustment Act of 1990, Pub. L. 101-
410 Stat. 890, 28 U.S.C. 2461 note, as amended by the Debt Collection 
Improvement Act of 1996 Pub. L. 104-134, April 26, 1996 required 
agencies to adjust for inflation the maximum civil monetary penalties 
within the agencies jurisdiction. The resulting $11,000 and $22,000 
maximum penalties were determined by applying the criteria set forth in 
sections 4 and 5 of the statute to the maximum penalties otherwise 
provided for in the Federal railroad safety laws.
    At the time it issues a final rule, FRA will consider whether any 
additional revision of the current penalty schedule is necessary. 
Although penalty schedules are statements of policy and FRA is not 
obligated to provide an opportunity for public comment, FRA would 
welcome comments on this issue.

Regulatory Impact

E.O. 12866 and DOT Regulatory Policies and Procedures

    This notice of proposed rulemaking has been evaluated in accordance 
with existing regulatory policies and is considered to be 
nonsignificant under Executive Order 12866 and is not significant under 
the DOT policies and procedures (44 F.R. 11034; February 26, 1979). FRA 
has prepared and placed in the docket a regulatory evaluation of the 
proposed rule.
    FRA expects that overall the proposed rule will save the rail 
industry approximately $890,000 Net Present Value (NPV) over the next 
twenty-years. The NPV of the total twenty-year additional costs 
associated with the proposed rule is $1,086,959. The NPV of the total 
twenty-year monetary cost savings expected to accrue to the industry 
from the proposed rule is $1,976,684. For some rail operators, the 
total costs they incur may exceed the total costs they save. For 
others, the cost savings will outweigh the costs incurred.
    FRA believes it is reasonable to expect that several injuries and 
fatalities would be avoided as a result of implementing some of the 
proposed changes. FRA also believes that the safety of rail operations 
will not be compromised as a result of implementing the cost savings 
changes.
    The following table presents estimated twenty-year monetary impacts 
associated with the proposed rule modifications.

------------------------------------------------------------------------
                                                      Costs      Costs  
                   Description                      incurred     saved  
------------------------------------------------------------------------
Supervisors of Locomotive Engineers--............                       
    Qualifications...............................  $1,053,207  .........
    First Designated Supervisor..................  ..........    $16,844
    Extending Culpability........................      17,798  .........
Revocable Event Criteria (Speed).................  ..........    232,486
Ineligibility Schedule...........................  ..........    574,746
Vision and Hearing Acuity........................      14,185  .........
New Railroads/New Territories....................  ..........     16,844
Pilots for Locomotive Engineers..................  ..........  1,047,282
Written Notice of Revocation.....................       1,769  .........
Added Railroad Discretion........................  ..........     88,481
                                                  ----------------------
    Total (rounded)..............................   1,086,959  1,976,684
    Net Savings (rounded)........................  ..........    889,725
------------------------------------------------------------------------

    Additionally, note that the NPV of the total savings to individual 
locomotive engineers that commit second and third violations of 
railroad operating rules and practices within a three-year period is 
expected to total approximately $2,487,263 over the next twenty years. 
However, because one engineer's lost employment opportunity would 
remain another locomotive engineer's gained opportunity, these cost 
savings are presented for information purposes only.

Regulatory Flexibility Act

    The Regulatory Flexibility Act of 1980 (5 U.S.C. 601 et seq.) 
requires an assessment of the impacts of rules on small entities. 
``Small entity,'' is defined in 5 U.S.C. 601 as a small business 
concern that is independently owned and operated, and is not dominant 
in its field of operation. The United States Small Business 
Administration (SBA) stipulates in its ``Size Standards'' that the 
largest a ``for-profit'' railroad may be, and still be classified as a 
``small entity,'' is 1,500 employees for ``Line-Haul Operating'' 
Railroads, and 500 employees for ``Switching and Terminal 
Establishments.'' Table of Size Standards,'' U.S. Small Business 
Administration, January 31, 1996, 13 CFR part 121.
    The proposed rule would affect small railroads as defined by the 
SBA. For government entities the definition of small entities is based 
on population served (50,000). Governmental jurisdictions and transit 
authorities providing intercity and commuter rail service impacted by 
this rulemaking do not serve communities with population levels below 
50,000.
    Because FRA does not have information regarding the number of 
people employed by railroads, it cannot determine exactly how many 
small railroads, by SBA definition, are in operation in the United 
States. Using the SBA parameters, Class III railroads would probably 
classify as small businesses. Therefore, FRA has issued an interim 
policy establishing the delineation of Class III as being 
representative of small businesses for the railroad industry. The 
Regulatory Flexibility Assessment for this NPRM is included in the 
Regulatory Evaluation that was placed in the docket for this 
rulemaking.
    About 650 of the approximately 700 railroads in the United States 
are probably Class III railroads and would be considered small 
businesses by FRA. Small railroads that would be affected by the 
proposed rule provide less than 10 percent of the industry's 
employment, own about 10 percent of the track, and operate less than 10 
percent of the ton-miles. Approximately 50 of these railroads are 
tourist, scenic, excursion, or museum railroads that operate on the 
general railroad system.
    The proposed standards were developed by an industry Working Group 
that has members from ASLRRA that represent the interests of small 
freight railroads and some excursion railroads operating in the United 
States.

[[Page 50650]]

A representative of the Tourist Railway Association, Incorporated is a 
member of the Rail Safety Advisory Committee which was responsible for 
approving the proposed standards developed by the Working Group. 
Individual small rail operators have an opportunity to comment on this 
NPRM.
    FRA has not estimated the level of impact of this rule on small 
entities at this time. The impact on a particular entity will vary in 
proportion to the size of the railroad. FRA requests information 
regarding the number of locomotive engineers employed by Class III 
railroads as well as information regarding the average number of 
locomotive engineer certification revocations that occur each year on 
Class III railroads. This information will assist FRA in estimating the 
level of impact on small entities.
    FRA has identified four specific proposed requirements that would 
result in additional regulatory burden for small railroads. The 
proposed extension of culpability to DSLEs, locomotive engineers' right 
to receive further medical evaluation following a vision and hearing 
acuity test, distribution of the Final Rule to medical officers, and 
written notification of suspension of certification would all affect 
small railroads. The level of costs associated with these standards 
should vary in proportion to the size of each railroad. Railroads with 
fewer locomotive engineers would experience lower costs. These 
standards do not offer opportunities for larger railroads to experience 
economies of scale.
    Also note that railroads would be relieved of some of the costs 
associated with current Federal regulations. Small railroads are 
actually expected to benefit relatively more than their larger 
counterparts from three particular proposals. The criteria for 
requiring pilots for locomotive engineers not qualified on the physical 
characteristics of a territory grant exemptions based on factors 
favorable to small railroads such as operating speed and type of 
terrain. The allowance for a single certificate for certified 
locomotive engineers qualified to operate on more than one railroad 
would have particular applicability to small railroads owned by holding 
companies. Finally, the joint operations requirement for the shared 
responsibility of determining which locomotive engineers are qualified 
to operate over the host railroad's territory would provide small 
railroads that provide other railroads trackage rights over all or part 
of their territory with significant opportunities for cost savings.
    FRA expects that overall the economic benefits that would accrue to 
small railroads if the requirements of this proposal are implemented 
will exceed the regulatory costs. FRA is also confident that the costs 
associated with particular requirements will be justified by the safety 
benefits achieved.
    The Working Group considered proposals made by the ASLRRA to 
provide small railroads with economic relief from some of the burdens 
imposed by the existing and proposed federal regulations addressing 
locomotive engineer qualifications and certification. Initially, the 
ASLRRA proposed that recertification of locomotive engineers occur 
every 5 years, versus the current 3 year interval. The Working Group 
considered this proposal. However, the proposal would decrease the 
level of confidence that railroads have regarding the level of safety 
with which trains are operated. The recertification process provides 
railroads with the opportunity to ascertain that locomotive engineers 
can operate trains in a safe manner. Unsafe locomotive engineer train 
operating practices are detected during the tests administered as part 
of the recertification process and can be corrected through appropriate 
training. Because the timing of training of locomotive engineers 
coincides with their recertification, lengthening the recertification 
interval could translate into delaying needed refresher training 
sessions. This would decrease the level of safety with which trains are 
operated. This extension would advance the economic interests of small 
entities but, would not advance the interests of rail safety.
    Taking into account the safety concerns of the Working Group, the 
ASLRRA proposed that recertification remain at a 3 year interval, but 
that the National Driver Register (NDR) check and the hearing and 
vision tests be performed at 5 year intervals (instead of the current 3 
year interval) for Class III railroads that do not operate passenger 
trains, do not operate in territory where passenger trains are 
operated, do not operate in territory with a grade of two percent or 
greater over a distance of two continuous miles or, do not operate in 
signal territory, and, within the past year, have not transported any 
hazardous materials in hazard classes 1 (explosives), 2.3 (poisonous 
gases) or 7 (radioactive materials). The rationale for allowing longer 
intervals between hearing and vision acuity tests for locomotive 
engineers in smaller operations is that on site management would be 
more likely to notice changes in a person's medical condition. By 
excluding territories with passenger rail traffic, steep grades, 
signals, and railroads that haul hazardous materials from the 
extension, the proposal limits the impact of the extension to 
situations with the lowest level of exposure to accidents and the 
lowest severity of accident.
    Extending the interval between NDR checks, however, raises safety 
concerns. This NPRM proposes requiring implementation of an honor 
system through which locomotive engineers self report to the railroads 
their motor vehicle driving incidents involving reckless behavior. The 
NDR check for motor vehicle drivers will confirm whether there were any 
incidents of reckless behavior while driving a highway vehicle. This 
information provides employers insight into whether a person can be 
trusted with the operation of a locomotive. The potential, and in 
certain cases even the incentive, exists for locomotive engineers who 
operate cars under the influence of alcohol or drugs to not self-report 
and protect their certification and jobs. Increasing the interval 
between NDR checks would actually increase the amount of time an 
engineer could continue to operate trains without the railroad being 
aware of reckless motor vehicle driving incidents. This, in turn, would 
increase the risk of an accident occurring due to reckless behavior 
while operating a locomotive or train.
    Nevertheless, in an attempt to expedite the regulatory process 
associated with this rulemaking the ASLRRA withdrew their proposal for 
extending intervals from this particular rulemaking activity. Thus, the 
intervals for both the NDR checks, as well as the hearing and vision 
tests, remain at 3 years. FRA remains open and receptive to exploring 
the merits of extending the interval between hearing and vision acuity 
tests based on supporting data that is presented.
    FRA requests information regarding the monetary savings and costs 
as well as the safety impacts associated with providing greater 
flexibility to small entities affected by the proposed requirements. 
FRA also requests comment regarding implementation time frames for 
small railroads. In the past, so as not to unduly burden small 
entities, FRA has allowed for delayed implementation dates for 
railroads that have fewer than 400,000 annual employee hours. FRA 
requests information regarding any undue burdens that the proposed 
implementation dates would cause small entities.

[[Page 50651]]

Paperwork Reduction Act

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

----------------------------------------------------------------------------------------------------------------
                                                                                           Total                
                                    Respondent        Total annual      Average time       annual       Total   
      CFR section/subject            universe          responses        per response       burden       annual  
                                                                                           hours     burden cost
----------------------------------------------------------------------------------------------------------------
       NEW REQUIREMENTS                                                                                         
                                                                                                                
240.105--Selection Criteria     25 railroads.....  25 reports.......  1 hour..........           25         $425
 For Design. Supervisors of                                                                                     
 Locomotive Engineers.                                                                                          
    Qualification--DSLEs--phys  698 railroads....  698 amend........  6 hours.........        4,188      164,728
     . characteristics.                                                                                         
240.111--Indiv. Duty to         698 railroads....  400 calls........  10 min..........           67        2,680
 Furnish Data on Prior Safety                                                                                   
 Conduct as M.V. Operator.                                                                                      
240.117--Criteria For           698 railroads....  3 appeals........  42 hours........          126        5,040
 Consideration of Operating                                                                                     
 Rules Compliance Data.                                                                                         
240.121--Criteria--Hearing/     698 railroads....  698 copies.......  15 min..........          175        5,425
 Vision Acuity--First Year.                                                                                     
    Criteria--Hearing/Vision--  25 new railroads.  25 copies........  15 min..........            6          186
     Subseq. Yrs.                                                                                               
    Medical Examiner            698 railroads....  17 reports.......  1 hour..........           17          527
     Consultation w DSLE.                                                                                       
    Notification--Hearing/      698 railroads....  10 notificatns...  15 min..........            3          120
     Vision Change.                                                                                             
240.229--Reqmnts--Joint Oper.   321 railroads....  184 calls........  5 min...........           15          600
 Terr..                                                                                                         
240.307--Revocation of          698 railroads....  650 notices......  10 min..........          108        3,348
 Certification.                                                                                                 
240.309--Railroad Oversight     43 railroads.....  10 annotation....  15 min..........            3          120
 Resp.                                                                                                          
                                                                                                                
     CURRENT REQUIREMENTS                                                                                       
                                                                                                                
240.9--Waivers................  698 railroads....  5 waivers........  1 hour..........            5          165
    Certification Program.....  25 new railroads.  25 programs......  200hrs/40 hrs...        4,520      140,120
    Final Review + Program      25 new railroads.  25 reviews.......  1 hour..........           25          775
     Submission.                                                                                                
240.11--Penalties For Non-      698 railroads....  2 falsification..  10 min..........       20 min           13
 Compliance.                                                                                                    
240.111--Request--State         13,333 candidates  13,333 reqsts....  15 minutes......        3,333      133,320
 Driving Lic. Data.                                                                                             
    Request for NDR Data--      50 candidate.....  50 requests......  30 minutes......           25        1,000
     State Agency.                                                                                              
    Response--State Agency--    1 state/gov.       50 requests......  15 minutes......           13          403
     NDR Data.                   entity.                                                                        
    Railroad Notification--NDR  698 railroads....  267 requests.....  30 minutes......          134        4,757
     match.                                                                                                     
    Written Response from       698 railroads....  267 comment......  15 minutes......           67        2,680
     Candidate.                                                                                                 
    Notice to Railroad--No      40,000 candidates  4 letters........  15 minutes......            1           40
     License.                                                                                                   
240.113--Notice to Railroad     13,333 candidates  267 requests/267   15 min/30 min...          200        6,803
 Furnishing Data on Prior                           responses.                                                  
 Safety Conduct.                                                                                                
240.115--Candidate's Review +   13,333 candidates  400 responses....  30 min..........          200        8,000
 Written Comments--Prior                                                                                        
 Safety Conduct Data.                                                                                           
240.123--Criteria For Init./    30 railroads.....  30 amend.........  1 hour..........           30        1,200
 Cont. Educ.                                                                                                    
240.201/223/301--List of DSLEs  698 railroads....  698 updates......  15 minutes......          175        7,000
    --List of Design. Qual.     698 railroads....  698 updates......  15 minutes......          175        5,425
     Loc. Engineers.                                                                                            
    --Locomotive Engineers      40,000 candidates  13,333 cert......  5 minutes.......        1,111       34,441
     Certificate.                                                                                               
    --List--Des. Persons to     698 railroads....  20 lists.........  15 minutes......            5          165
     sign L.E. Cert.                                                                                            
240.205--Data to EAP Counselor  698 railroads....  267 records......  5 minutes.......           22          880
240.207--Medical Certificate..  40,000 candidates  13,333 cert......  70 minutes......       15,555     1,555,50
240.209/213--Written Test.....  40,000 candidates  13,333 tests.....  2 hours.........       26,666      826,646
240.211/213--Performance Test.  40,000 candidates  13,333 tests.....  2 hours.........       26,666      826,646
240.215--Recordkeeping--Cert.   698 railroads....  13,333 record....  10 minutes......        2,222       68,882
 Loc. Eng.                                                                                                      
240.219--Denial of              13,333 candidates  1,333 lettrs/      30 min./1 hr....        2,000       73,997
 Certification.                                     1,333 respnse.                                              
    --Written Basis For Denial  698 railroads....  1,333 notific....  1 hour..........        1,333       45,322
240.227--Canadian Cert. Data..  Canadian RRs.....  200 certific.....  15 minutes......           50        1,550
240.303--Annual Op. Monit.      40,000 candidates  40,000 tests.....  4 hours.........      160,000    6,400,000
 Obs..                                                                                                          
    Annual Operational          40,000 candidates  40,000 tests.....  2 hours.........       80,000    3,200,000
     Observation.                                                                                               
240.305--Engineer's Non-Qual.   40,000 candidates  400 notific......  15 minutes......    100 hours        4,000
 Notific.                                                                                                       
    Engineer's Notice--Loss of  40,000 candidates  600 letters......  1 hour..........          600       24,000
     Qualification.                                                                                             
240.307--Notice to Engineer--   698 railroads....  650 letters......  1 hour..........          650       20,150
 Disqual.                                                                                                       
240.309--Railroad Oversight     44 railroads.....  44 reviews.......  80 hours........        3,520      197,120
 Resp.                                                                                                          
240.401--Engineer's Appeal to   698 railroads....  76 petitions.....  2 hours.........          152        6,080
 FRA.                                                                                                           
240.405--Railroad's Response    698 railroads....  76 responses.....  30 minutes......           38        1,786
 to Appeal.                                                                                                     
240.407--Request For a Hearing  698 railroads....  11 responses.....  30 minutes......            6          240
240.411--Appeals..............  698 railroads....  2 notices........  2 hours.........            4          160
----------------------------------------------------------------------------------------------------------------

    All estimates include the time for reviewing instructions; 
searching existing data sources; gathering or maintaining the needed 
data; and reviewing the information. Pursuant to 44 U.S.C. 
3506(c)(2)(B), the FRA solicits comments concerning: whether these 
information collection requirements are necessary for the proper 
performance of the function of FRA, including whether the information 
has practical utility; the accuracy of FRA's estimates of the

[[Page 50652]]

burden of the information collection requirements; the quality, 
utility, and clarity of the information to be collected; and whether 
the burden of collection of information on those who are to respond, 
including through the use of automated collection techniques or other 
forms of information technology, may be minimized. For information or a 
copy of the paperwork package submitted to OMB contact Robert Brogan at 
202-493-6292.
    Organizations and individuals desiring to submit comments on the 
collection of information requirements should direct them to Robert 
Brogan, Federal Railroad Administration, RRS-21, Mail Stop 25, 400 7th 
Street, S.W., Washington. D.C. 20590.
    OMB is obligated to make a decision concerning the collection of 
information requirements contained in this proposed rule between 30 and 
60 days after publication of this document in the Federal Register. 
Therefore, a comment to OMB is best assured of having its full effect 
if OMB receives it within 30 days of publication. The final rule will 
respond to any OMB or public comments on the information collection 
requirements contained in this proposal.
    FRA cannot impose a penalty on persons for violating information 
collection requirements which do not display a current OMB control 
number, if required. FRA intends to obtain current OMB control numbers 
for any new information collection requirements resulting from this 
rulemaking action prior to the effective date of a final rule. The OMB 
control number, when assigned, will be announced by separate notice in 
the Federal Register.

Environmental Impact

    FRA has evaluated this regulation in accordance with its procedure 
for ensuring full consideration of the environmental impacts of FRA 
actions as required by the National Environmental Policy Act (42 U.S.C. 
4321 et seq.), other environmental statutes, Executive Orders, and 
related directives. This regulation meets the criteria that establish 
this as a non-major action for environmental purposes.

Federalism Implications

    This rule will not have a substantial effect 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. Thus in accordance with Executive Order 12612, preparation 
of a Federalism Assessment is not warranted.

List of Subjects in 49 CFR Part 240

    Penalties, Railroad employees, Railroad safety, Reporting and 
recordkeeping requirements.

    Therefore, in consideration of the foregoing, FRA proposes to amend 
Part 240, Title 49, Code of Federal Regulations as follows:

PART 240--[AMENDED]

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

    Authority: 49 U.S.C. Chs. 20103, 20107, 20135; 49 CFR 1.49.

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


Sec. 240.1  Purpose and scope.

    (a) * * *
    (b) This part prescribes minimum Federal safety standards for the 
eligibility, training, testing, certification and monitoring of all 
locomotive engineers. This part does not restrict a railroad from 
adopting and enforcing additional or more stringent requirements not 
inconsistent with this part.
* * * * *
    3. Section 240.3 is revised to read as follows:


Sec. 240.3  Application and responsibility for compliance.

    (a) Except as provided in paragraph (b) of this section, this part 
applies to all railroads.
    (b) This part does not apply to--
    (1) A railroad that operates only on track inside an installation 
that is not part of the general railroad system of transportation; or
    (2) Rapid transit operations in an urban area that are not 
connected to the general railroad system of transportation.
    (c) Although the duties imposed by this part are generally stated 
in terms of the duty of a railroad, any person, including a contractor 
for a railroad, who performs any function covered by this part must 
perform that function in accordance with this part.
    4. Section 240.5 is amended by revising the title and paragraphs 
(a), (b) and (e) to read as follows:


Sec. 240.5  Preemptive effect and construction.

    (a) Under 49 U.S.C. 20106, issuance of the regulations in this part 
preempts any State law, regulation, or order covering the same subject 
matter, except an additional or more stringent law, regulation, or 
order that is necessary to eliminate or reduce an essentially local 
safety hazard; is not incompatible with a law, regulation, or order of 
the United States Government; and does not impose an unreasonable 
burden on interstate commerce.
    (b) FRA does not intend by issuance of these regulations to preempt 
provisions of State criminal law that impose sanctions for reckless 
conduct that leads to actual loss of life, injury, or damage to 
property, whether such provisions apply specifically to railroad 
employees or generally to the public at large.
    (c) * * *
    (d) * * *
    (e) 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.


Sec. 240.7  [Amended].

    5. Section 240.7 is amended by revising the definitions of 
Administrator and Railroad and adding definitions of Dual purpose 
vehicle, Exclusive Track Occupancy, FRA, Person, Qualified, Service, 
and Specialized roadway maintenance equipment, to read as follows:
* * * * *
    Administrator means the Administrator of the Federal Railroad 
Administration or the Administrator's delegate.
* * * * *
    Dual purpose vehicle means a piece of on-track equipment which can 
function as either a locomotive or specialized roadway maintenance 
equipment.
* * * * *
    Exclusive Track Occupancy means a method of establishing work 
limits on controlled track in which movement authority of trains and 
other equipment is withheld by the train dispatcher or control 
operator, or restricted by flagmen, as prescribed in Sec. 214.321 of 
this chapter.
* * * * *
    FRA means the Federal Railroad Administration.
* * * * *
    Person means an entity of any type covered under 1 U.S.C. 1, 
including but not limited to the following: a railroad; a manager, 
supervisor, official, or other employee or agent of a railroad; any 
owner, manufacturer, lessor, or lessee of railroad equipment, track, or 
facilities; any independent contractor providing goods or services to a 
railroad; and any employee of such owner, manufacturer, lessor, lessee, 
or independent contractor.

[[Page 50653]]

    Qualified means a person who has passed all appropriate training 
and testing programs required by the railroad and this part and who, 
therefore, has actual knowledge or may reasonably be expected to have 
knowledge of the subject on which the person is qualified.
    Railroad means any form of nonhighway ground transportation that 
runs on rails or electromagnetic guideways and any entity providing 
such transportation, including:
    (1) Commuter or other short-haul railroad passenger service in a 
metropolitan or suburban area and commuter railroad service that was 
operated by the Consolidated Rail Corporation on January 1, 1979; and
    (2) High speed ground transportation systems that connect 
metropolitan areas, without regard to whether those systems use new 
technologies not associated with traditional railroads; but does not 
include rapid transit operations in an urban area that are not 
connected to the general railroad system of transportation.
* * * * *
    Service 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.
* * * * *
    Specialized roadway maintenance equipment is equipment powered by 
any means of energy other than hand power which is designed to be used 
in conjunction with maintenance, repair, construction or inspection of 
track, bridges, roadway, signal, communications, or electric traction 
systems.
* * * * *
    6. Section 240.9 is amended by revising paragraphs (a) and (c) to 
read as follows:


Sec. 240.9  Waivers.

    (a) A person subject to a requirement of this part may petition the 
Administrator for a waiver of compliance with such requirement. The 
filing of such a petition does not affect that person's responsibility 
for compliance with that requirement while the petition is being 
considered.
    (b) * * *
    (c) If the Administrator finds that a waiver of compliance is in 
the public interest and is consistent with railroad safety, the 
Administrator may grant the waiver subject to any conditions the 
Administrator deems necessary.
    7. Section 240.11 is amended by revising the title and paragraphs 
(a), (b) and (c) to read as follows:


Sec. 240.11  Penalties and consequences for noncompliance.

    (a) Any person who violates any requirement of this part or causes 
the violation of any such requirement is subject to a civil penalty of 
at least $500 and not more than $11,000 per violation, except that: 
Penalties may be assessed against individuals only for willful 
violations, and, where a grossly negligent violation or a pattern of 
repeated violations has created an imminent hazard of death or injury 
to persons, or has caused death or injury, a penalty not to exceed 
$22,000 per violation may be assessed. Each day a violation continues 
shall constitute a separate offense. See appendix A to this part for a 
statement of agency civil penalty policy.
    (b) Any person who violates any requirement of this part or causes 
the violation of any such requirement may be subject to 
disqualification from all safety-sensitive service in accordance with 
part 209 of this chapter.
    (c) Any person who knowingly and willfully falsifies a record or 
report required by this part may be subject to criminal penalties under 
49 U.S.C. 21311.
    (d) * * *
    8. Section 240.103 is amended by removing paragraphs (a)(1), 
(a)(2), (a)(3) and (a)(4) and revising paragraph (a) to read as 
follows:


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

    (a) Each railroad shall submit its written 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 and 
shall submit its certification program for approval at least 60 days 
before commencing operations.
* * * * *
    9. Section 240.104 is added to read as follows:


Sec. 240.104  Criteria for determining whether a railroad operation 
requires a certified locomotive engineer.

    Any person who operates a locomotive or group of locomotives when 
moving with or without being coupled to other rolling equipment shall 
be a certified locomotive engineer except:
    (a) Any person who operates specialized roadway maintenance 
equipment in conjunction with roadway maintenance and related 
maintenance of way functions, including traveling to and from the work 
site; or
    (b) Any person who operates a dual purpose vehicle which is:
    (1) Being operated in conjunction with roadway maintenance and 
related maintenance of way functions, including traveling to and from 
the work site;
    (2) Moving under authority of rules designated by the railroad for 
maintenance of way equipment under the direct supervision of an 
employee trained and qualified in accordance with Sec. 214.353 of this 
chapter, which rules provide Exclusive Track Occupancy for the roadway 
equipment with respect to trains;
    (3) Being operated by an individual trained and qualified in 
accordance with Secs. 214.341, 214.343, and 214.355 of this chapter; 
and
    (4) When hauling cars, not less than 85% of the total cars designed 
for air brakes shall have operative air brakes.
    10. Section 240.105 is amended by revising paragraph (b)(4) and by 
adding paragraph (c) to read as follows:


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

* * * * *
    (b) * * *
    (4) Is a certified engineer who is qualified on the physical 
characteristics of the portion of the railroad on which that person 
will perform the duties of a designated supervisor of locomotive 
engineers.
    (c) If a railroad does not have any Designated Supervisors of 
Locomotive Engineers, and wishes to hire one, the chief operating 
officer of the railroad shall make a determination in writing that the 
Designated Supervisor of Locomotive Engineers designate possesses the 
necessary performance skills in accordance with Sec. 240.127. This 
determination shall take into account any special operating 
characteristics which are unique to that railroad.
    11. Section 240.111 is amended by revising paragraphs (a) 
introductory text, (a)(1), and (h), and adding paragraph (i) to read as 
follows:


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

    (a) Except for initial certifications under paragraph (b), (h), or 
(i) of Sec. 240.201 or 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:

[[Page 50654]]

    (1) Take the actions required by paragraphs (b) through (i) or 
paragraph (g) of this section to make information concerning his or her 
driving record available to the railroad that is considering such 
certification or recertification; and
* * * * *
    (h) The actions required for compliance with paragraph (a) of this 
section shall be undertaken within the 366 days preceding the date of 
the railroad's decision concerning certification or recertification.
    (i) Each certified locomotive engineer or person seeking initial 
certification shall report motor vehicle incidents described in 
Sec. 240.115(b)(1) and (2) to the employing railroad within 48 hours of 
being convicted for, or completed state action to cancel, revoke, 
suspend, or deny a motor vehicle drivers license for, such violations. 
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 drivers 
license.
    12. Section 240.113 is amended by revising paragraph (a) 
introductory text 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 initial certifications under paragraph (b), (h), or 
(i) of Sec. 240.201 or for persons covered by Sec. 240.109(h), each 
person seeking certification under this part shall, within 366 days 
preceding the date of the railroad's decision on certification or 
recertification:
* * * * *
    13. Section 240.117 is revised to read as follows:


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

    (a) Each railroad's program shall include criteria and procedures 
for implementing this section.
    (b) A person who has demonstrated a failure to comply, as described 
in paragraph (e) of this section, with railroad rules and practices for 
the safe operation of trains shall not be currently certified as a 
locomotive engineer.
    (c)(1) A certified engineer who has demonstrated a failure to 
comply, as described in paragraph (e) of this section, with railroad 
rules and practices for the safe operation of trains shall have his or 
her certification revoked.
    (2) A supervisor of locomotive engineers who is monitoring a 
locomotive engineer and fails to take appropriate action to prevent a 
violation of paragraph (e) of this section, shall have his or her 
certification revoked. Appropriate action does not mean that a 
supervisor must prevent a violation from occurring at all costs; the 
duty may be met by warning an engineer of a potential or foreseeable 
violation. A designated supervisor of locomotive engineers will not be 
held culpable under this section when this monitoring event is 
conducted as part of the railroad's operational compliance tests as 
defined in Secs. 217.9 and 240.303 of this chapter.
    (d) Limitations on consideration of prior operating rule compliance 
data. Except as provided for in paragraph (i) of this section, 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 paragraph (e) 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) A railroad shall only consider violations of its operating 
rules and practices that involve:
    (1) Failure to control a locomotive or train in accordance with a 
signal indication, excluding a hand or a radio signal indication or a 
switch, that requires a complete stop before passing it;
    (2) Failure to adhere to limitations concerning train speed when 
the speed at which the train was operated exceeds the maximum 
authorized limit by at least 10 miles per hour. Railroads shall 
consider only those violations of the conditional clause of restricted 
speed rules, or the operational equivalent thereof, which cause 
reportable accidents or incidents under 49 CFR part 225, as instances 
of failure to adhere to this section;
    (3) Failure to adhere to procedures for the safe use of train or 
engine brakes when the procedures are required for compliance with the 
transfer, initial, or intermediate terminal test provisions of 49 CFR 
part 232 (see 49 CFR 232.12 and 232.13);
    (4) Occupying Main Track or a segment of Main Track without proper 
authority or permission;
    (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);
    (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) (1) If in any single incident the person's conduct contravened 
more than one operating rule or practice, that event shall be treated 
as a single violation for the purposes of this section.
    (2) A violation of one or more operating rules or practices 
described in paragraph (e)(1) through (e)(5) of this section that 
occurs during a properly conducted operational compliance test subject 
to the provisions of this chapter shall be counted in determining the 
periods of ineligibility described in paragraph (g) of this section.
    (3) An operational test that is not conducted in compliance with 
this part, a railroad's operating rules, or a railroad's program under 
Sec. 217.9, of this chapter will not be considered a legitimate test of 
operational skill or knowledge, and will not be considered for 
certification, recertification or revocation purposes.
    (g) A period of ineligibility described in this paragraph shall:
    (1) Begin, for a person not currently certified, on the date of the 
railroad's written determination that the most recent incident has 
occurred; or
    (2) Begin, for a person currently certified, on the date of the 
railroad's notification to the person that recertification has been 
denied or certification has been revoked; and
    (3) Be determined according to the following standards:
    (i) In the case of a single incident involving violation of one or 
more of the operating rules or practices described in paragraphs (e)(1) 
through (e)(5) of this section, the person shall have his or her 
certificate revoked for a period of one month.
    (ii) In the case of two separate incidents involving a violation of 
one or more of the operating rules or practices described in paragraphs 
(e)(1) through (e)(5) of this section, that occurred within 24 months 
of each other, the person shall have his or her certificate revoked for 
a period of six months.
    (iii) In the case of three separate incidents involving violations 
of one or more of the operating rules or practices that occurred within 
36 months of each other, the person shall have his or her certificate 
revoked for a period of one year.
    (iv) In the case of four separate incidents involving violations of 
one or more of the operating rules or practices that occurred within 36 
months of each other, the person shall have his or her

[[Page 50655]]

certificate revoked for a period of three years.
    (v) Where, based on the occurrence of violations described in 
paragraph (e)(6) of this section, different periods of ineligibility 
may result under the provisions of this section and Sec. 240.119, the 
longest period of revocation shall control.
    (4) Be reduced to the shorter periods of ineligibility imposed by 
paragraphs (g) (1) through (3) of this section, if the incident:
    (i) Occurred prior to [effective date of the final rule]; and
    (ii) Involved violations described in paragraphs (e)(1) through (5) 
of this section; and
    (iii) Did not occur within 60 months of a prior violation as 
described in paragraph (e)(6) of this section.
    (h) Future eligibility to hold certificate. Only a person whose 
certification has been denied or revoked for a period of one year or 
less in accordance with the provisions of paragraph (g)(3) of this 
section for reasons other than noncompliance with Sec. 219.101 of this 
chapter shall be eligible for grant or reinstatement of the certificate 
prior to the expiration of the initial period of revocation. Such a 
person shall not be eligible for grant or reinstatement unless and 
until--
    (1) The person has been evaluated by a designated supervisor of 
locomotive engineers and determined to have received adequate remedial 
training;
    (2) The person has successfully completed any mandatory program of 
training or retraining, if that was determined to be necessary by the 
railroad prior to return to service; and
    (3) At least one half the pertinent period of ineligibility 
specified in paragraph (g)(2) of this section has elapsed.
    (i) In no event shall incidents that meet the criteria of 
paragraphs (i) (1) through (4) of this section be considered as prior 
incidents for the purposes of paragraph (g)(3) of this section even 
though such incidents could have been or were validly determined to be 
violations at the time they occurred. Incidents that shall not be 
considered under paragraph (g)(3) of this section are those that:
    (1) Occurred prior to May 10, 1993;
    (2) Involved violations of one or more of the following operating 
rules or practices:
    (i) Failure to control a locomotive or train in accordance with a 
signal indication;
    (ii) Failure to adhere to limitations concerning train speed;
    (iii) Failure to adhere to procedures for the safe use of train or 
engine brakes; or
    (iv) Entering track segment without proper authority;
    (3) Were or could have been found to be violations under this 
section in effect prior to May 10, 1993 and contained in the 49 CFR, 
parts 200 to 399, edition revised as of October 1, 1992; and
    (4) Would not be a violation of paragraph (e) of this section.
    (j) In no event shall incidents that meet the criteria of 
paragraphs (j) (1) through (2) of this section be considered as prior 
incidents for the purposes of paragraph (g)(3) of this section even 
though such incidents could have been or were validly determined to be 
violations at the time they occurred. Incidents that shall not be 
considered under paragraph (g)(3) of this section are those that:
    (1) Occurred prior to [effective date of the final rule];
    (2) Involved violations of one or more of the following operating 
rules or practices:
    (i) Failure to control a locomotive or train in accordance with a 
signal indication that requires a complete stop before passing it;
    (ii) Failure to adhere to limitations concerning train speed when 
the speed at which the train was operated exceeds the maximum 
authorized limit by at least 10 miles per hour or by more than one half 
of the authorized speed, whichever is less;
    (3) Were or could have been found to be violations under this 
section in effect prior to [effective date of the final rule and 
contained in the 49 CFR, parts 200 to 399, edition revised as of 
October 1, 1998]; and
    (4) Would not be a violation of paragraph (e) of this section.
    14. Section 240.121 is amended by revising paragraphs (b), (c)(3) 
and (e), and adding paragraph (f) to read as follows:


Sec. 240.121  Criteria for vision and hearing acuity data.

 * * * * *
    (b) Fitness requirement. 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. 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.
    (c) * * *
    (3) The ability to recognize and distinguish between the colors of 
railroad signals as demonstrated by successfully completing one of the 
tests in appendix F.
    (d) * * *
    (e) A person not meeting the thresholds in paragraphs (c) and (d) 
of this section shall, upon request, be subject to further medical 
evaluation by a railroad's medical examiner to determine that person's 
ability to safely operate a locomotive. The railroad shall provide its 
medical examiner with a current copy of this part, including all 
appendices. If, after consultation with one of the railroad's 
designated supervisors of locomotive engineers, the medical examiner 
concludes that, despite not meeting the threshold(s) in paragraphs (c) 
and (d) of this section, the person has the ability to safely operate a 
locomotive, the person may be certified as a locomotive engineer and 
such certification conditioned on any special restrictions the medical 
examiner determines in writing to be necessary.
    (f) As a condition of maintaining certification, it is the 
obligation of each certified locomotive engineer to notify his or her 
employing railroad's medical department or, if no such department 
exists, an appropriate railroad official if the person's best 
correctable vision or hearing has deteriorated to the extent that the 
person no longer meets one or more of the prescribed vision or hearing 
standards or requirements of this section.
    15. Section 240.123 is amended by adding paragraph (d) to read as 
follows:


Sec. 240.123  Criteria for initial and continuing education.

* * * * *
    (d) Pursuant to paragraphs (b) and (c) of this section, a person 
may acquire familiarity with the physical characteristics of a 
territory through the following methods if the specific conditions 
included in the description of each method are met. The methods used by 
a railroad for familiarizing its engineers with new territory while 
starting up a new railroad, starting operations over newly acquired 
rail lines, or reopening of a long unused route, shall be described in 
the railroad's plan submission as described in appendix B of this part.
    (1) If ownership of a railroad is being transferred from one 
company to another, the engineer(s) of the acquiring company may 
receive familiarization training from the selling company prior to the 
acquiring railroad commencing operation; or

[[Page 50656]]

    (2) Failing to obtain familiarization training from the previous 
owner, opening a new rail line, or reopening an unused route would 
require that the engineer(s) obtain familiarization through other 
methods. Acceptable methods of obtaining familiarization include using 
hyrail trips or initial lite locomotive trips in compliance with what 
is specified in the part 240 plan submission.
    16. Section 240.127 is amended by revising paragraph (c)(2) to read 
as follows:


Sec. 240.127  Criteria for examining skill performance.

* * * * *
    (c) * * *
    (2) Conducted by a designated supervisor of locomotive engineers, 
who does not need to be qualified on the physical characteristics of 
the territory over which the test will be conducted;
* * * * *
    17. Section 240.217 is amended by revising paragraphs (a)(1), 
(a)(2), (a)(3), (a)(4), and (c)(2) to read as follows:


Sec. 240.217  Time limitations for making determinations.

    (a) * * *
    (1) A determination concerning eligibility and the eligibility data 
being relied on were furnished more than 366 days before the date of 
the railroad's certification decision;
    (2) A determination concerning visual and hearing acuity and the 
medical examination being relied on was conducted more than 366 days 
before the date of the railroad's recertification decision;
    (3) A determination concerning demonstrated knowledge and the 
knowledge examination being relied on was conducted more than 366 days 
before the date of the railroad's certification decision; or
    (4) A determination concerning demonstrated performance skills and 
the performance skill testing being relied on was conducted more than 
366 days before the date of the railroad's certification decision;
    (b) * * *
    (c) * * *
    (2) Rely on a certification issued by another railroad that is more 
than 36 months old.
* * * * *
    18. Section 240.223 is amended by revising paragraph (a)(1) to read 
as follows:


Sec. 240.223  Criteria for the certificate.

    (a) * * *
    (1) Identify the railroad or parent company that is issuing it;
* * * * *
    19. Section 240.225 is revised to read as follow:


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

    After December 31, 1991, any railroad that is considering 
certification of a person as a qualified engineer may rely on 
determinations made by another railroad concerning that person's 
qualifications. The railroad's certification program shall address how 
the railroad will administer the training of previously uncertified 
engineers with extensive operating experience or previously certified 
engineers who have had their certification expire. If a railroad's 
certification program fails to specify how to 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. A railroad relying on another's certification shall 
determine that:
    (a) The prior certification is still valid in accordance with the 
provisions of Secs. 240.201, 240.217, and 240.307;
    (b) The prior certification was for the same classification of 
locomotive or train service as the certification being issued under 
this section;
    (c) The person has received training on and visually observed the 
physical characteristics of the new territory in accordance with 
Sec. 240.123;
    (d) The person has demonstrated the necessary knowledge concerning 
the railroad's operating rules in accordance with Sec. 240.125;
    (e) The person has demonstrated the necessary performance skills 
concerning the railroad's operating rules in accordance with 
Sec. 240.127.
    20. Section 240.229 is amended by revising paragraph (c) to read as 
follows:


Sec. 240.229  Requirements for joint operations territory.

* * * * *
    (c) A railroad that controls joint operations may rely on the 
certification issued by another railroad under the following 
conditions:
    (1) The controlling railroad shall determine:
    (i) That the person has been certified as a qualified engineer 
under the provisions of this part by the railroad which employs that 
individual;
    (ii) That the person certified as a locomotive engineer by the 
other railroad has demonstrated the necessary knowledge concerning the 
controlling railroad's operating rules, if the rules are different;
    (iii) That the person certified as a locomotive engineer by the 
other railroad has the necessary operating skills concerning the joint 
operations territory; and,
    (iv) That the person certified as a locomotive engineer by the 
other railroad has the necessary familiarity with the physical 
characteristics for the joint operations territory; and,
    (2) The railroad which employs the individual shall determine that 
the person called to operate on the controlling railroad is a certified 
engineer who is qualified to operate on that track segment; and,
    (3) Any locomotive engineer who is called to operate on another 
railroad shall:
    (i) Be qualified on the segment of track upon which he or she will 
operate in accordance with the requirements set forth by the 
controlling railroad; and,
    (ii) Immediately notify the railroad upon which he or she is 
employed if he or she is not qualified to perform that service.
* * * * *
    21. Section 240.231 is added to subpart C to read as follows:


Sec. 240.231  Requirements for locomotive engineers unfamiliar with 
physical characteristics in other than joint operations.

    (a) Except as provided in paragraph (b) of this section, no 
locomotive engineer shall operate a locomotive over a territory unless 
he or she is qualified on the physical characteristics of the territory 
pursuant to the railroad's certification program.
    (b) Except as provided in paragraph (c), if a locomotive engineer 
lacks qualification on the physical characteristics required by 
paragraph (a), he or she shall be assisted by a pilot qualified over 
the territory pursuant to the railroad's program submission.
    (1) For a locomotive engineer who has never been qualified on the 
physical characteristics of the territory over which he or she is to 
operate a locomotive or train, the pilot shall be a person qualified 
and certified as a locomotive engineer who is not an assigned crew 
member.
    (2) For a locomotive engineer who was previously qualified on the 
physical characteristics of the territory over which he or she is to 
operate a locomotive or train, but whose qualification has expired, the 
pilot may be any person, who is not an assigned crew member, qualified 
on the physical characteristics of the territory.
    (c) Pilots are not required if the movement is on a section of 
track with an average grade of less than 1% over 3 continuous miles, 
and
    (1) The track is other than a main track; or

[[Page 50657]]

    (2) The maximum distance the locomotive or train will be operated 
does not exceed one mile; or
    (3) The maximum authorized speed for any operation on the track 
does not exceed 20 miles per hour; or
    (4) Operations are conducted under operating rules that require 
every locomotive and train to proceed at a speed that permits stopping 
within one half the range of vision of the locomotive engineer.
    22. Section 240.305 is amended by revising paragraph (a) to read as 
follows:


Sec. 240.305  Prohibited conduct.

    (a) It shall be unlawful to:
    (1) Operate a locomotive or train past a signal indication, 
excluding a hand or a radio signal indication or a switch, that 
requires a complete stop before passing it; or
    (2) Operate a locomotive or train at a speed which exceeds the 
maximum authorized limit by at least 10 miles per hour. Only those 
violations of the conditional clause of restricted speed rules, or the 
operational equivalent thereof, which cause reportable accidents or 
incidents under 49 CFR part 225, shall be considered instances of 
failure to adhere to this section; or
    (3) Operate a locomotive or train without adhering to procedures 
for the safe use of train or engine brakes when the procedures are 
required for compliance with the transfer, initial, or intermediate 
terminal test provisions of 49 CFR part 232 (see 49 CFR 232.12 and 
232.13); or
    (4) Fail to comply with any mandatory directive concerning the 
movement of a locomotive or train by occupying main track or a segment 
of main track without proper authority or permission;
    (5) Fail 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);
    (6) Be a supervisor of locomotive engineers who is monitoring a 
locomotive engineer and fails to take appropriate action to prevent a 
violation of paragraphs (a)(1) through (a)(5) of this section. A 
designated supervisor of locomotive engineers will not be held culpable 
under this section when this monitoring event is conducted as part of 
the railroad's operational compliance tests as defined in Secs. 217.9 
and 240.303 of this chapter.
* * * * *
    23. Section 240.307 is amended by revising paragraphs (b)(2), (c) 
introductory text and (c)(10), and adding paragraphs (i), (j), and (k) 
to read as follows:


Sec. 240.307  Revocation of certification.

* * * * *
    (b) * * *
    (2) Prior to or upon suspending the person's certificate, provide 
notice of the reason for the suspension, the pending revocation, and an 
opportunity for a hearing before a presiding officer other than the 
investigating officer. The notice may initially be given either 
verbally or in writing. If given verbally, it must be confirmed in 
writing and the written confirmation must be made promptly. Written 
confirmation which conforms to the notification provisions of an 
applicable collective bargaining agreement shall be deemed to satisfy 
the written confirmation requirements of this section. In the absence 
of an applicable collective bargaining agreement provision, the written 
confirmation must be made within 96 hours.
* * * * *
    (c) Except as provided for in paragraphs (d), (f), (i) and (j) of 
this section, a hearing required by this section shall be conducted in 
accordance with the following procedures:
* * * * *
    (10) At the close of the record, a railroad official, other than 
the investigating officer, shall prepare and sign a written decision in 
the proceeding.
* * * * *
    (i) The railroad shall not determine that the person failed to meet 
the qualification requirements of this part and shall not revoke the 
person's certification as provided for in paragraph (a) of this section 
if substantial evidence exists that:
    (1) An intervening cause prevented or materially impaired the 
locomotive engineer's ability to comply with the railroad operating 
rule or practice which constitutes a violation under Sec. 240.117 
(e)(1) through (e)(5); or
    (2) The violation of Secs. 240.117 (e)(1) through (e)(5) was of a 
minimal nature and had no direct or potential effect on rail safety.
    (j) The railroad shall place the relevant information in the 
records maintained in compliance with Sec. 240.309 for Class I 
(including the National Railroad Passenger Corporation) and Class II 
railroads, and Sec. 240.215 for Class III railroads, if substantial 
evidence, meeting the criteria provided for in paragraph (i) of this 
section, becomes available either:
    (1) Prior to a railroad's action to suspend the certificate as 
provided for in paragraph (b)(1) of this section; or
    (2) Prior to the convening of the hearing provided for in this 
section.
    (k) Provided that the railroad makes a good faith determination 
after a reasonable inquiry that the course of conduct provided for in 
paragraph (i) of this section is appropriate, the railroad which does 
not suspend a locomotive engineer's certification, as provided for in 
paragraph (a) of this section, is not in violation of paragraph (a) of 
this section.
    24. Section 240.309 is amended by revising paragraphs (e) 
introductory text, (e)(3), (e)(5), (e)(6), (e)(7), and (e)(8), removing 
paragraph (e)(10), and redesignating the second paragraph (e) as 
paragraph (h).


Sec. 240.309  Railroad oversight responsibilities.

* * * * *
    (e) For reporting purposes, the nature of detected poor safety 
conduct shall be capable of segregation for study and evaluation 
purposes in the following manner:
* * * * *
    (3) Incidents involving noncompliance with the procedures required 
for compliance with the transfer, initial, or intermediate terminal 
test provisions of 49 CFR part 232;
    (4) * * *
    (5) Incidents involving noncompliance with the railroad's operating 
rules resulting in operation of a locomotive or train past any signal, 
excluding a hand or a radio signal indication or a switch, that 
requires a complete stop before passing it;
    (6) Incidents involving noncompliance with the provisions of 
restricted speed, and the operational equivalent thereof, that require 
reporting under the provisions of part 225 of this chapter;
    (7) Incidents involving occupying Main Track or a segment of Main 
Track without proper authority or permission;
    (8) Incidents involving the failure to comply with prohibitions 
against tampering with locomotive mounted safety devices, or knowingly 
operating or permitting to be operated a train with an unauthorized or 
disabled safety device in the controlling locomotive;
* * * * *
    25. Section 240.403 is amended by revising paragraph (d) to read as 
follows:


Sec. 240.403  Petition requirements.

* * * * *
    (d) A petition seeking review of a railroad's decision to revoke 
certification in accordance with the

[[Page 50658]]

procedures required by Sec. 240.307 filed with FRA more than 120 days 
after the date of the railroad's revocation decision will be denied as 
untimely.
    26. Section 240.405 is amended by revising paragraphs (a) and (c), 
and adding paragraph (d)(3).


Sec. 240.405  Processing qualification 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 render a 
decision on this petition within 180 days from the date that the 
railroad's response is received or from the date upon which the 
railroad's response period has lapsed pursuant to paragraph (c) of this 
section.
    (b) * * *
    (c) The railroad will be given a period of not to exceed 60 days to 
submit to FRA any information that the railroad considers pertinent to 
the petition.
    (d) * * *
    (3) Submit the information in triplicate to the Docket Clerk, 
Federal Railroad Administration, 400 Seventh Street SW., Washington, DC 
20590;
* * * * *
    27. Section 240.411 is amended by revising paragraph (e) to read as 
follows:


Sec. 240.411  Appeals.

* * * * *
    (e) The Administrator may remand, vacate, affirm, reverse, alter or 
modify the decision of the presiding officer and the Administrator's 
decision constitutes final agency action when these administrative 
remedies have been exhausted.
    28. Appendix A to part 240 is revised to read as follows:

                                                                        
         Appendix A to Part 240--Schedule of Civil Penalties \1\        
------------------------------------------------------------------------
             Section                   Violation       Willful violation
------------------------------------------------------------------------
[applicable sections and civil penalty amounts to be determined in final
 rule]                                                                  
------------------------------------------------------------------------
\1\ A penalty may be assessed against an individual only for a willful  
  violation. The Administrator reserves the right to assess a penalty of
  up to $22,000 for any violation where circumstances warrant. See 49   
  CFR part 209, Appendix A.                                             

* * * * *
    29. Appendix F is added to read as follows:

Appendix F to Part 240--Medical Standards Guidelines

    The purpose of this appendix is to provide greater guidance on 
the procedures that should be employed in administering the vision 
and hearing requirements of Secs. 240.121 and 240.207.
    In determining whether a person has the visual acuity that meets 
or exceeds the requirements of this part, the following testing 
protocols are deemed acceptable testing methods for determining 
whether a person has the ability to recognize and distinguish among 
the colors used as signals in the railroad industry. The acceptable 
test methods are shown in the left hand column and the criteria that 
should be employed to determine whether a person has failed the 
particular testing protocol are shown in the right hand column.

------------------------------------------------------------------------
             Accepted tests                      Failure criteria       
------------------------------------------------------------------------
                     Pseudoisochromatic Plate Tests                     
------------------------------------------------------------------------
American Optical Company 1965..........  5 or more errors on plates 1-  
                                          15.                           
AOC--Hardy-Rand-Ritter plates--second    Any error on plates 1-6 (plates
 edition.                                 1-4 are for demonstration--   
                                          test plate 1 is actually plate
                                          5 in book).                   
Dvorine--Second edition................  3 or more errors on plates 1-  
                                          15.                           
Ishihara (14 plate)....................  2 or more errors on plates 1-  
                                          11.                           
Ishihara (16 plate)....................  2 or more errors on plates 1-8.
Ishihara (24 plate)....................  3 or more errors on plates 1-  
                                          15.                           
Ishihara (38 plate)....................  4 or more errors on plates 1-  
                                          21.                           
Richmond Plates 1983...................  5 or more errors on plates 1-  
                                          15.                           
------------------------------------------------------------------------
                       Multifunction Vision Tester                      
------------------------------------------------------------------------
Keystone Orthoscope....................  Any error.                     
OPTEC 2000.............................  Any error.                     
Titmus Vision Tester...................  Any error.                     
Titmus II Vision Tester................  Any error.                     
------------------------------------------------------------------------

    In administering any of these protocols, the person conducting 
the examination should be aware that railroad signals do not always 
occur in the same sequence and that ``yellow signals'' do not always 
appear to be the same. It is not acceptable to use ``yarn'' or other 
materials to conduct a simple test to determine whether the 
certification candidate has the requisite vision. No person shall be 
allowed to wear chromatic lenses during an initial test of the 
person's color vision; the initial test is one conducted in 
accordance with one of the accepted tests in the above chart and 
Sec. 240.121(c)(3). Chromatic lenses may be worn in accordance with 
any subsequent testing pursuant to Sec. 240.121(e) if permitted by 
the medical examiner and the railroad.
    An examinee who fails to meet the above criteria, may be further 
evaluated as determined by the railroad's medical examiner. 
Ophthalmologic referral, field testing, or other practical color 
testing may be utilized depending on the experience of the examinee. 
The railroad's medical examiner will review all pertinent 
information and, under some circumstances, may restrict an examinee 
who does not meet the criteria from operating the train at night, 
during adverse weather conditions or under other circumstances.
    Engineers who wear contact lenses should have good tolerance to 
the lenses and should be instructed to have a pair of corrective 
glasses available when on duty.
    Issued in Washington, D.C. on September 8, 1998.
Jolene M. Molitoris,
Administrator.
[FR Doc. 98-24594 Filed 9-21-98; 8:45 am]
BILLING CODE 4910-06-P