[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]]
_______________________________________________________________________
Part II
Department of Transportation
_______________________________________________________________________
Federal Railroad Administration
_______________________________________________________________________
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.
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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
[[Page 50628]]
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.
[[Page 50629]]
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