[Federal Register Volume 74, Number 245 (Wednesday, December 23, 2009)]
[Rules and Regulations]
[Pages 68173-68185]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-30439]


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DEPARTMENT OF TRANSPORTATION

Federal Railroad Administration

49 CFR Part 240

[Docket No. FRA-2008-0091, Notice No. 4]
RIN 2130-AB95


Qualification and Certification of Locomotive Engineers; 
Miscellaneous Revisions

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

ACTION: Final rule.

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SUMMARY: FRA is making miscellaneous amendments to its regulation 
governing the qualification and certification of locomotive engineers. 
These changes address the unanticipated consequences arising from 
reclassifications, clarify the grounds upon which a railroad may revoke 
a locomotive engineer's certification, and make the regulation 
consistent with other FRA regulations and guidance. In particular, this 
rule: prohibits a railroad from reclassifying a person's locomotive 
engineer certificate to that of a more restrictive class during the 
period in which the certificate is otherwise valid while permitting the 
railroad to place restrictions on the locomotive engineer, if 
appropriate; clarifies that revocation of an engineer's certificate may 
only occur for the reasons specified in the regulation; requires each 
railroad to identify the actions it will take in the event that a 
person fails a skills performance test or the railroad finds 
deficiencies with an engineer's performance during an operational 
monitoring observation or unannounced compliance test; requires each 
railroad to describe the scoring system used by the railroad during 
performance skills tests, operational monitoring observations and 
unannounced compliance tests; and makes some minor clarifying revisions 
to the regulation.

DATES: Effective Date: The rule is effective February 22, 2010.
    Petitions for reconsideration: Any petition for reconsideration of 
any portion of the rule must be submitted no later than January 22, 
2010.

ADDRESSES: Petitions for reconsideration of this rule should include 
the agency name and Docket No. FRA-2008-0091, Notice No. 4, and be 
submitted by any one of the following methods:
     Fax: 1-202-493-2251;
     Mail: U.S. Department of Transportation, Docket 
Operations, M-30, West Building Ground Floor, Room W12-140, 1200 New 
Jersey Avenue, SE., Washington, DC 20590;
     Hand Delivery: U.S. Department of Transportation, Docket 
Operations, West Building Ground Floor, Room W12-140, 1200 New Jersey 
Avenue, SE., Washington, DC 20590, between 9 a.m. and 5 p.m., Monday 
through Friday, except Federal holidays; or
     Electronically through the Federal eRulemaking Portal, 
http://www.regulations.gov. Follow the online instructions for 
submitting comments.
    Instructions: All petitions for reconsideration received will be 
posted without change to http://www.regulations.gov, including any 
personal information provided. Please see the Privacy Act section of 
this document.
    Docket: For access to the docket to read background documents or 
comments received, go to http://www.regulations.gov at any time or to 
U.S. Department of Transportation, Docket Operations, M-30, West 
Building Ground Floor, Room W12-140, 1200 New Jersey Avenue, SE., 
Washington, DC, between 9 a.m. and 5 p.m., Monday through Friday, 
except Federal holidays.

FOR FURTHER INFORMATION CONTACT: John L. Conklin, Program Manager, 
Locomotive Engineer Certification, U.S. Department of Transportation, 
Federal Railroad Administration, Mail Stop 25, West Building 3rd Floor 
West, Room W38-208, 1200 New Jersey Avenue, SE., Washington, DC 20590 
(telephone: 202-493-6318); or John Seguin, Trial Attorney, U.S. 
Department of Transportation, Federal Railroad

[[Page 68174]]

Administration, Office of Chief Counsel, RCC-10, Mail Stop 10, West 
Building 3rd Floor, Room W31-217, 1200 New Jersey Avenue, SE., 
Washington, DC 20590 (telephone: 202-493-6045).

SUPPLEMENTARY INFORMATION:

I. Background

    Pursuant to the Rail Safety Improvement Act of 1988, Public Law 
100-342, Sec.  4, 102 Stat. 624, 625-27 (June 22, 1988) (recodified at 
49 U.S.C. 20135), Congress conferred on the Secretary of DOT the 
authority to establish a locomotive engineer qualification licensing or 
certification program. The Secretary of Transportation delegated this 
authority to the Federal Railroad Administrator. 49 CFR 1.49(m). In 
1991, FRA implemented this statutory provision by issuing a final rule. 
56 FR 28228, 28254 (June 19, 1991) (codified at 49 CFR part 240).
    By notice of proposed rulemaking (NPRM) published on December 31, 
2008 (73 FR 80349), FRA proposed revisions to its regulations governing 
the qualification and certification of locomotive engineers. The 
comment period for the NPRM closed on March 2, 2009. FRA received 
written comments submitted by the Association of American Railroads, 
the Union Pacific Railroad Company, the Brotherhood of Locomotive 
Engineers and Trainmen, and the United Transportation Union. FRA also 
received a written request from the United Transportation Union, 
Nebraska State Legislative Board, for a hearing. Pursuant to 49 U.S.C. 
20103(e), which requires that ``[a]n opportunity for an oral 
presentation shall be provided'' when prescribing or amending a 
railroad safety regulation, FRA held a public hearing on April 14, 
2009. The Union Pacific Railroad Company and the BNSF Railway Company 
provided oral comments at the hearing. Additionally, on April 14, 2009, 
FRA reopened the NPRM comment period for an additional 30 days so that 
(i) FRA could make the public hearing transcript available for review 
and comment by the general public, (ii) interested parties could 
provide additional comments or documents, and (iii) interested parties 
could respond to testimony provided at the public hearing.
    By letter dated May 18, 2009, the Brotherhood of Locomotive 
Engineers and Trainmen requested an extension of that comment period, 
which closed on May 14, 2009. Based on that request, FRA reopened the 
comment period for an additional 30 days until June 15, 2009. See 74 FR 
25,208 (May 27, 2009). FRA received written, post-hearing comments 
submitted by the Association of American Railroads, the Brotherhood of 
Locomotive Engineers and Trainmen, and the United Transportation Union. 
The comment period for the NPRM closed on June 15, 2009.

II. General Summary of the Comments

A. Prohibiting Reclassification

    FRA proposed to amend 49 CFR 240.107 by adding a new paragraph (e) 
that would prohibit a railroad from reclassifying the certification of 
any type of certified engineer to a more restrictive class of 
certificate or to a student engineer certificate during the period in 
which the certification is otherwise valid. See 73 FR 80349, 80351-
80352 (December 31, 2008).
Reaction to the NPRM
    While some commenters supported the NPRM's proposal to prohibit 
reclassifications, others argued against it. Those commenters who 
opposed the proposal raised four main concerns:
    (1) FRA seeks to deny railroads the ability to use skill 
performance testing failures as opportunities to correct deficiencies 
in employee skill-sets during the 3-year certificate period which will: 
(i) Increase denials at recertification and (ii) take away incentive 
for employees to improve their skills during the remedial training time 
prior to recertification.
    (2) Sections 240.209 and 240.211 provide that a person who fails to 
achieve a passing score under the testing and evaluation requirements 
of part 240 shall not be permitted to operate as a locomotive servicing 
or train service engineer prior to that person achieving a passing 
score. However, the NPRM prohibits a railroad from reclassifying the 
certificate of any type of certified engineer to a more restrictive 
class or a student, and thus, would prevent a person who fails from 
ever operating, testing, or going through remedial training again.
    (3) The proposed rule changes will require some type of training 
for the entire time an engineer's current certificate is valid and then 
a denial process when the engineer is up for recertification. This 
could impose up to three years of training of an engineer with the same 
outcome as the current reclassification process.
    (4) FRA does not recognize the medical component of the engineer 
certification process. Engineers may be released to return to work 
after a major illness, because their bodies are medically fit for duty. 
However, in some instances, they have lost the cognitive ability to 
properly perform their job responsibilities. While a doctor may not be 
able to test for such diminished cognitive abilities, a Designated 
Supervisor of Locomotive Engineers (DSLE) can observe an engineer's 
ability to timely make correct decisions in operating a train. By 
disallowing a DSLE to make this judgment, FRA is closing off an 
important avenue of safety by assuming that any time a doctor allows an 
employee to return to duty, the employee is fit to work.
FRA's Response
    (1) The commenters appear to be blending the three requirements of 
Part 240. Those requirements are (i) unannounced compliance 
(efficiency) tests, (ii) annual check rides and (iii) skills tests. 
Federal regulations only require knowledge and skills tests when 
certifying or recertifying an engineer or relying on a certification 
granted by another railroad under 49 CFR 240.225(a). However, a 
railroad may impose more stringent requirements and thus, have 
additional operational tests and performance evaluations. This rule 
simply limits such additional test and evaluation failure consequences 
by prohibiting reclassification. Thus, the rule does not deny railroads 
the opportunity to correct deficiencies during the 3-year certification 
period. Indeed, nothing in this rule prohibits a railroad from 
evaluating engineers and providing any necessary remedial training 
between certification periods.
    (2) FRA's prohibition on reclassification would not prevent a 
person who failed to achieve a passing score under the testing and 
evaluation requirements of part 240 from ever operating a locomotive 
again. The railroad could simply place a restriction on the certificate 
of the person who failed (240.107(d)) thereby prohibiting the person 
from operating a locomotive except under the restrictions specified. 
Once the person achieves a passing score or shows improvement, the 
restriction may be lifted. Thus, the person who failed would not be 
reclassified as a student although the person's engineer activities 
could be limited as if the person were a student.
    (3) The issue raised by some commenters regarding a railroad having 
to provide training to a certified person whose certificate has been 
restricted may be handled by seeking a waiver of the part 240 
requirements. As provided in Sec.  240.9, a railroad may apply for a 
waiver in accordance with the provisions of part 211 of this chapter 
from training, continuing education, and other requirements for a 
person who will not be operating as a

[[Page 68175]]

locomotive servicing or train service engineer for that railroad. 
Further, this rule in no way prohibits a railroad from initiating 
disciplinary sanctions against its employees in the normal and 
customary manner, including those contained in its collective 
bargaining agreements. See Sec.  240.5.
    (4) FRA is not disallowing a DSLE from making a judgment. If the 
employee is medically fit but a check ride reveals skills deficiencies, 
restrictions may be placed on the certificate until the person can 
prove competency.
    As noted in the NPRM, FRA has considered other options, including 
permitting reclassification while providing affected engineers with the 
option of challenging the reclassification through a hearing. However, 
allowing reclassifications, even with a hearing, could result in the 
disparate treatment of engineers. If, for example, two train service 
engineers commit the same operating deficiency, a railroad may decide 
to reprimand one of the engineers but reclassify the certificate of the 
other engineer to a student engineer certificate. Assuming the 
reclassification is upheld during the hearing process, one engineer 
could return to work as a train service engineer while the other could 
only return to work as a student engineer. This rule attempts to 
eliminate the potential for disparate treatment that could result from 
the practice of reclassifying engineers' certificates.

B. Restrictions

    In its proposal to prohibit reclassification, FRA noted that the 
proposed provision would not prevent a railroad from placing 
restrictions on a certificate pursuant to 240.107(d). FRA further noted 
that restrictions are applied and reviewed in accordance with the 
internal railroad rules, procedures, and processes developed in 
coordination with its employees. See 73 FR 80349, 80352 (December 31, 
2008).
Reaction to the NPRM
    One commenter questioned how FRA could continue to bear 
responsibility for the manner in which railroads exercise discretion 
under part 240 when FRA claims it will leave the matter of restrictions 
to non-FRA decision-makers. According to the commenter, FRA is removing 
itself from oversight of restrictions imposed by railroads which will 
then become subject to the oversight of arbitrators who are not 
obligated to follow any precedence. Thus, FRA may become bound by 
arbitrators' decisions, resulting in more inconsistencies and 
unanticipated consequences.
FRA's Response
    Contrary to the commenter's assertion, it has been FRA's 
understanding that a restriction is not a denial of certification or a 
revocation under part 240 and thus, disputes regarding restrictions are 
covered by the Railway Labor Act and should be handled under the 
procedures provided for in that Act. Furthermore, a restricted train 
service or locomotive servicing engineer certificate is still a valid 
certificate that other railroads may rely on when determining whether 
the person is qualified pursuant to Sec.  240.225. Of course, any 
railroad that chooses to rely on a restricted certificate issued by 
another railroad should ensure that the person can demonstrate that 
they are qualified--and should certainly not ignore the restriction.

C. Revocations

    FRA proposed to amend 49 CFR 240.307 to clarify and ensure that 
each railroad understands that it may revoke an engineer's certificate 
only for that conduct specifically identified in Sec.  240.117(e) or 
Sec.  240.119(c). FRA was informed by at least one Class I railroad 
that it believes Sec.  240.307 could be read to allow revocation for 
deficiencies other than those specified in Sec.  240.117(e) or Sec.  
240.119(c). FRA proposed to make clear that such an interpretation is 
incorrect and contravenes the intent and purpose of part 240 when it 
was issued. See 73 FR 80349, 80353 (December 31, 2008).
Reaction to the NPRM
    Some commenters supported the proposal, but one commenter argued 
against it. The commenter who opposed the proposal suggested that 
limiting revocations to Sec.  240.117(e) and Sec.  240.119(c) 
violations does not make sense in light of Emergency Order No. 26 (EO 
26), which restricts the use of cell phones and other electronic 
devices in certain circumstances. The NPRM would prohibit railroads 
from revoking an engineer's certificate for violating EO 26 unless that 
violation was combined with a Sec.  240.117(e) or Sec.  240.119(c) 
violation. The commenter believes that a violation of EO 26, in and of 
itself, should be a revocable offense.
FRA's Response
    Whether a locomotive engineer should have his or her certificate 
revoked for violating EO 26 is beyond the scope of the NPRM. In the 
future, FRA plans to revisit EO 26 and could initiate a rulemaking that 
would make the requirements of EO 26 permanent. In any such rulemaking, 
FRA could consider adding violations of those requirements to the list 
of revocable offenses under part 240. In the meantime, a railroad may 
choose to discipline its employees for improper use of electronic 
devices, but may not revoke an engineer's certification based on a 
violation of EO 26.

D. Skills Tests

    FRA proposed to amend 49 CFR 240.127 to require each railroad to 
indicate the action it will take, beyond those required by Sec.  
240.211(c), in the event that a person fails a skills performance test. 
See 73 FR 80349, 80352-80353 (December 31, 2008).
Reaction to the NPRM
    In response to FRA's proposal to amend 49 CFR 240.127 and 240.129 
(see section E below), a commenter asserted that there is no reason to 
require railroads to specify the potential measures to be taken. 
According to the commenter, a railroad would need the flexibility to 
change the actions it would take in the event of failure, but the 
proposal would prohibit a railroad from adopting new approaches to 
failures unless the changes were reflected in the certification 
program. Further, the situation will be even worse if FRA requires each 
railroad to resubmit a revised program each time a change is made.
    Another commenter suggested that FRA's proposed language should be 
used along with the following: ``and if said action is subject in any 
regard to a collective bargaining agreement, the applicable provisions 
of the collective bargaining agreement shall be included as an appendix 
to the railroad's program.''
FRA's Response
    The rule balances the need to provide railroads with the 
flexibility to handle skills test and evaluation failures appropriately 
with the need to make the test and evaluation process transparent. FRA 
believes that transparency will help prevent railroads from developing 
processes for handling skills test failures that could result in 
unanticipated consequences.
    Although FRA considered other options, such as prescribing the 
specific actions a railroad must take, FRA believes it should be left 
up to each railroad to decide the appropriate actions to take in light 
of various factors, including collective bargaining agreements. Indeed, 
FRA previously proposed prescribing the number of tests and interval 
between retests and

[[Page 68176]]

other consequences of test failure in the 1989 NPRM (54 FR 50890, 
50933-50935 (December 11, 1989)), but did not implement those proposals 
based, in part, on commenters' concerns that the proposals would 
disrupt contractual agreements (56 FR 28228, 28236-28237 (June 19, 
1991)). Further, FRA has found that the vast majority of railroads have 
adequate policies to deal with skills test failures or deficiencies and 
have handled them appropriately for many years.
    To avoid restricting the options available to the railroads and 
employee representatives to develop processes for handling skill test 
failures, FRA designed this proposal to be as flexible as possible. 
There are a variety of actions and approaches that a railroad can take 
in response to a skills test failure and FRA does not want to stifle a 
railroad's ability to adopt an approach that is best for its 
organization. Some of the actions railroads may want to consider 
include: develop and provide formal remedial training for engineers who 
fail skills tests or have deficiencies in their performance; 
automatically download event recorder data upon a test failure or 
deficient performance in order to preserve evidence of the failure/
deficiency; require two supervisors to ride along on a retest; and 
retest an engineer on an actual train if the engineer failed a test on 
a simulator. Each railroad should also consider implementing a formal 
procedure whereby an engineer is given the opportunity to explain, in 
writing, the factors that he or she believes caused their skills test 
failure or performance deficiencies. This explanation may allow a 
railroad to determine what areas of training to focus on or perhaps 
discover that the reason for the failure/deficiency was due to 
something other than a lack of skills.
    FRA believes there are numerous other approaches that could and 
should be considered and evaluated by railroads and their employees. 
FRA realizes that a railroad's list of actions it will take in response 
to a skills test failure or deficient performance could be expansive 
given the various circumstances that could contribute to a test failure 
or deficient performance. FRA disagrees with the suggestion to add a 
provision regarding collective bargaining agreements (CBAs). FRA does 
not enforce CBAs. In addition, railroad discipline policies are beyond 
the scope of the NPRM and Part 240. See 49 CFR 240.5.

E. Operational Monitoring

    FRA proposed to amend 49 CFR 240.129 to require railroads to 
indicate the action they will take in the event they find deficiencies 
with an engineer's performance during an operational monitoring 
observation or unannounced compliance test. See 73 FR 80349, 80353 
(December 31, 2008).
Reaction to the NPRM
    In addition to one commenter's assertion that there is no reason to 
require railroads to specify the potential measures to be taken (see 
section D above), other commenters suggested that 49 CFR 240.129 should 
explicitly state that regardless of whether an engineer's performance 
is monitored pursuant to Sec.  240.129(b) or is being tested pursuant 
to Sec.  240.129(e), the only circumstances in which an adverse 
certification outcome is possible is when the monitoring/testing 
discloses a violation of Sec.  240.117(e). According to those 
commenters, if a railroad finds some deficiency that is unrelated to 
Sec.  240.117(e) (e.g., non-compliance with throttle modulation or 
train handling procedures, or any other performance deficiencies), it 
lacks authority under part 240 to take any action whatsoever. Further, 
on a railroad where engineers are unionized, available disciplinary 
options are subject to whatever constraints are imposed by the 
applicable collective bargaining agreement.
    Commenters also suggested that 49 CFR 240.129 should include the 
following changes: (i) The use of simulators should be limited to 
training only, and using simulators for either testing or monitoring 
purposes should be explicitly prohibited; (ii) only a DSLE who is 
qualified on the physical characteristics of the territory over which a 
test is being conducted-- and on the equipment used in the test-- 
should be empowered to make a finding that could have adverse 
consequences under 49 CFR 240.127 and 49 CFR 240.129; and (iii) where 
movable banners, barricades or flags are used, the banner/board must, 
at a minimum, meet the standards for rear end marking devices as 
prescribed by 49 CFR part 221.
FRA's Response
    As discussed in section D above, the NPRM attempted to balance the 
need to provide railroads with flexibility to handle deficiencies 
appropriately with the need to make the process transparent. FRA 
believes that transparency will help prevent railroads from developing 
processes for handling deficiencies that again result in unanticipated 
consequences.
    While the remaining comments regarding Sec.  240.129 are beyond the 
scope of the NPRM and FRA declines to address them in detail, FRA would 
like to clarify the comments regarding the interaction between Sec.  
240.129 and Sec.  240.117(e). Although a railroad may not revoke a 
certificate for deficiencies not covered by Sec.  240.117(e), a 
railroad may place restrictions on the certificate pursuant to Sec.  
240.107(d). See preceding discussion in section II.B. above.

F. Scoring Systems

    In the NPRM, FRA sought comments as to whether it should require 
the railroads to explain the scoring system they use to determine 
whether a person passes or fails a skills test or operational 
monitoring ride.
Reaction to the NPRM
    Some commenters suggested that railroad scoring systems should be 
published in detail and subject to FRA approval. Another commenter 
advocated against requiring railroads to explain their scoring systems. 
According to that commenter, FRA lacks evidence of a problem with the 
railroads' assessment of engineer performance and there are no 
allegations that railroads are falling short in efforts to ascertain 
whether engineers are capable of performing safely. Further, the 
commenter suggested that there is no safety basis for interfering in 
railroads' decisions on how to construct their scoring systems nor is 
there an indication of the criteria FRA would use in deciding whether 
the scoring systems are adequate.
FRA's Response
    As discussed in the NPRM, FRA is aware of concerns raised by 
locomotive engineers that they have no way of knowing why and how they 
failed a skills test or monitoring ride. Further, FRA is aware that at 
least one railroad has, in the past, deducted points on a performance 
skills test for non-safety related items that should not have been 
counted towards the engineer's evaluation score. Thus, FRA continues to 
believe that requiring railroads to explain their scoring systems will 
have the benefit of ensuring that the scoring criteria are transparent 
and the pass/fail determinations are arrived at consistently throughout 
the railroad. FRA believes that transparency will help prevent 
railroads from developing part 240-required tests that include items 
that should not be scored (e.g., fuel conservation, meets schedule, 
etc.) and will assist FRA in determining how the tests are scored.

[[Page 68177]]

G. Material Modifications

    As part of its proposal to require the railroads to update their 
programs to indicate the action they will take in the event that a 
person fails a part 240.127 skills test or a railroad finds 
deficiencies with a locomotive engineer's performance during a part 
240.129 observation or test, FRA indicated that it would not consider 
the program updates to be material modifications pursuant to 49 CFR 
240.103(e). See 73 FR 80349, 80353 (December 31, 2008).
Reaction to the NPRM
    Some commenters suggested that the updates should be considered 
material modifications pursuant to 240.103(e) but did not articulate a 
legal basis for doing so. Another commenter suggested that deeming the 
updates to be material modifications would deny the railroads the 
flexibility they need to address test failures and performance 
deficiencies since the proposal would, according to the commenter, 
prohibit railroads from adopting new approaches to failures unless the 
changes were reflected in their certification programs.
FRA's Response
    Based on its review of the comments and 49 CFR part 240, FRA does 
not consider any of the program updates required by the amendments to 
49 CFR 240.127 and 240.129 to be material modifications pursuant to 49 
CFR 240.103(e). FRA expects that each railroad will not have to develop 
a new scoring system or process to handle test failures or deficiencies 
but will simply document the previously implemented system or process 
in its program.

H. Additional Issues (Elimination of Phase-In Dates, etc.)

    FRA proposed to: (i) Eliminate the implementation and phase-in 
dates listed throughout part 240 and any section or section heading 
that references those dates; delete Sec. Sec.  240.117(i) and (j); (ii) 
revise the language in part 240 containing references to various 
provisions in 49 CFR part 232 (see, e.g., Sec. Sec.  240.117(e)(3) and 
240.309(e)(3)) in order to make them consistent with the language in 
part 232; (iii) revise the term ``annually monitored'' in Sec.  
240.129(c)(2) to read ``monitored each calendar year''; (iv) amend 
Sec. Sec.  240.129(e) and 240.303(d) in order to make them consistent 
with guidance provided by FRA in Memorandum OP-04-13 (February 3, 
2004); (v) delete the reference to Sec. Sec.  240.203(a)(1)-(3) in the 
penalty schedule and revise Sec. Sec.  240.203(b) and (c) in the 
penalty schedule to reference paragraphs (a) and (b); (vi) amend the 
reference to subsection (d) in the current penalty schedule for Sec.  
240.205 to read (b); (vii) amend the reference to Sec.  240.15 in Sec.  
240.307(j) to read Sec.  240.215; (viii) amend the reference to 49 CFR 
218.5(f) in Sec.  240.7 (subsection (1) of the definition of 
``locomotive engineer'') to read 49 CFR 218.5; (ix) amend the reference 
to paragraph (c) in Sec.  240.203(a) to read paragraph (b); and (x) 
delete the last paragraph of Appendix D to part 240 which begins 
``Although the number of state agencies * * * .''
Reaction to the NPRM
    The only comments received by FRA on these proposals supported 
their implementation.
FRA's Response
    Since FRA did not receive any comments objecting to the proposed 
amendments and because FRA sees no reason to change its approach, they 
will be adopted in this final rule as proposed in the NPRM.

I. Other Comments

    In addition to the comments discussed above, FRA received comments 
espousing interpretations of various provision of part 240 and 
commenting on part 240's appellate procedures. For example, one comment 
suggested that part 240 does not permit a railroad to rely upon past 
revocable offenses as a basis for denial of recertification. Another 
comment stated that the appellate procedures in subpart E of Part 240 
are unwieldy and too time consuming. Since these comments are beyond 
the scope of the NPRM, FRA need not address them in this rulemaking. 
However, FRA notes that it is developing recommendations for 
implementing the Rail Safety Improvement Act mandate for certification 
of train conductors and is participating in a Railroad Safety Advisory 
Committee Working Group concerning the certification of train 
conductors. Based on that rulemaking, FRA expects that Part 240 will be 
reviewed and possibly amended in light of the provisions in the 
conductor certification rule. The comments that are beyond the scope of 
this rulemaking might be more properly addressed during that process.

III. Section-by-Section Analysis

Section 240.107 Criteria for Designation of Classes of Service

    FRA is amending this section by adding a new paragraph (e) that 
prohibits a railroad from reclassifying the certification of any type 
of certified engineer to a more restrictive class of certificate or to 
a student engineer certificate during the period in which the 
certification is otherwise valid. Although reclassification has been 
referred to by different names by various parties (e.g., demotion, 
diminution in the quality of a license, etc.), the practice that FRA is 
prohibiting is the taking of any type of locomotive engineer 
certificate, during the period in which the certificate is valid, and 
replacing it with a more restrictive class of certificate or a student 
engineer certificate based on deficiencies found during operational 
evaluations and skills tests that do not require revocation of an 
engineer's certification under Sec. Sec.  240.117(e) or 240.119(c).
    Although FRA has previously interpreted the plain language of the 
regulation to permit reclassification, the unanticipated consequences 
of that practice necessitate its prohibition. As explained in the NPRM, 
the effect of the reclassification policy used by one Class I railroad 
has been to require some engineers to exchange their train service 
certificates for student engineer certificates without an opportunity 
for review of the reclassification decision. An engineer who is 
reclassified to a student could find it more difficult to be certified 
by another U.S. railroad than an engineer who has not been 
reclassified. Further, there is significant room for abuse in a system 
that allows reclassification based on the somewhat subjective scoring 
of a skills performance test. Thus, FRA is prohibiting railroads from 
requiring an engineer to exchange his or her train service or 
locomotive servicing certification for a more restrictive class of 
certificate or a student engineer certificate during the period in 
which the certification is otherwise valid.
    While this rule prohibits the practice of reclassification, it does 
not prevent the railroads from continuing to pursue other measures to 
ensure the safe operation of locomotives. For example, the rule does 
not prevent a railroad from placing restrictions on a certificate 
pursuant to Sec.  240.107(d). It should be noted, however, that while 
Sec.  240.107(d) permits a railroad to place restrictions on a 
certificate; restrictions are applied and reviewed in accordance with 
internal railroad rules, procedures and processes. Part 240 does not 
govern the issuance or review of restrictions; that is a matter handled 
under a railroad's internal discipline system or collective bargaining 
agreement.
    This rule also does not prevent a railroad from suspending or 
revoking a certificate pursuant to Sec.  240.307 for violation of one 
of the provisions contained in Sec.  240.117(e), or prohibiting

[[Page 68178]]

a person from operating a locomotive as a train service or locomotive 
servicing engineer pursuant to Sec.  240.211(c). Further, this rule 
does not prevent a railroad from offering an engineer the opportunity 
to work for the railroad in any other capacity provided that the 
railroad does not reclassify the engineer's certificate. For example, 
CBAs often contain a provision by which the parties agree to permit 
flowback from an engineer job to another railroad job if a locomotive 
engineer should somehow become ineligible to operate locomotives or 
trains. As FRA has previously clarified, part 240 is not intended to 
create or prohibit flowback. See Sec.  240.5(e) and 64 FR 60966, 60975 
(November 8, 1999).
    This rule does not convert part 240's locomotive engineer 
certification system into a licensing system. Although some parties 
have referred to the practice of reclassification as a ``diminution in 
the quality of a license,'' a certificate is not a license and this 
rule does not convert a locomotive engineer certificate issued in 
accordance with part 240 into a license. Indeed, in adopting a 
certification system (i.e., FRA sets eligibility criteria but leaves it 
to the railroads to evaluate candidates by those standards) rather than 
a traditional licensing system (i.e., a government agency sets 
eligibility criteria and evaluates candidates), FRA noted that part 240 
``afford railroads considerable discretion'' in the daily 
administration of their certification program but ``FRA bears 
responsibility for the manner in which the railroads exercise that 
discretion, since the performance of the railroads'' under part 240 
will determine whether their safety purposes are fulfilled. See 56 FR 
28228, 28229-28230 (June 19, 1991). This rule continues that 
relationship.

Section 240.127 Criteria for Examining Skill Performance

    This section is amended to require each railroad to indicate the 
types of actions it will take, beyond what is required by Sec.  
240.211(c), in the event that a person fails a skills performance test. 
In addition, this section is amended to require each railroad to 
describe the scoring system it will use during a skills performance 
test administered in accordance with the procedures required under 
Sec.  240.211, including a description of the skills to be tested and 
the weight or possible score that each skill will be given.
    Pursuant to Sec.  240.101 and Sec.  240.103, each railroad's 
written certification program, including its procedures for skill 
performance testing under Sec.  240.127 and monitoring operational 
performance under Sec.  240.129, is subject to FRA approval. That 
approval process, in connection with this rule, will permit FRA an 
opportunity to ensure that each railroad is handling skills test 
failures in accordance with the intent and spirit of the regulation. 
The rule will also compel each railroad to carefully consider the 
process by which it will handle skill test failures and demonstrate to 
FRA that it is dealing with its engineers in an objective manner. 
Moreover, requiring a railroad to explain its scoring system will 
likely have the benefit of ensuring that the scoring criteria are 
transparent and that pass/fail determinations are arrived at 
consistently throughout the railroad.
    Although a railroad will be required to update its certification 
program under this rule, FRA does not consider the updates to be 
material modifications pursuant to Sec.  240.103(e). Of course, FRA may 
find issues during a review or audit of the updated certification 
program and will address those issues with the railroad at that time.

Section 240.129 Criteria for Monitoring Operational Performance of 
Certified Engineers

    This section is amended to require railroads to indicate the types 
of actions they will take in the event they find deficiencies with an 
engineer's performance during an operational monitoring observation or 
unannounced compliance test. In addition, this section is amended to 
require each railroad to describe the scoring system it will use during 
an operational monitoring observation or unannounced compliance test 
administered in accordance with the procedures required under Sec.  
240.303.
    As explained in the NPRM, FRA believes it is up to each railroad to 
decide the appropriate action to take in light of various factors, 
including collective bargaining agreements. Further, FRA has found that 
the vast majority of railroads have adequate policies to deal with 
deficiencies with an engineer's performance and have handled them 
appropriately for many years. For a discussion of the benefits of this 
amendment and actions railroads may want to consider taking in the 
event they find deficiencies with an engineer's performance, see FRA's 
Response in Section II.D. of the preamble to this rule.
    Although a railroad will be required to update its certification 
program under this rule, FRA does not consider the updates to be 
material modifications pursuant to Sec.  240.103(e). Of course, FRA may 
find issues during a review or audit of the updated certification 
program and will address those issues with the railroad at that time.

Section 240.307 Revocation of Certification

    This section is amended to clarify and ensure that railroads 
understand that they may revoke an engineer's certificate only for that 
conduct specifically identified in Sec.  240.117(e) or Sec.  
240.119(c). FRA has been informed by at least one Class I railroad that 
it believes Sec.  240.307 could be read to allow revocation for 
deficiencies other than those specified in Sec.  240.117(e) or Sec.  
240.119(c). This rule makes clear that such an interpretation is 
incorrect and contravenes the intent and purpose of part 240 when it 
was issued.

IV. Regulatory Impact and Notices

1. Executive Order 12866 and DOT Regulatory Policies and Procedures

    This rule has been evaluated in accordance with existing policies 
and procedures, and determined to be non-significant under both 
Executive Order 12866 and DOT policies and procedures. See 44 FR 11034 
(February 26, 1979). FRA has prepared and placed in Docket No. FRA-
2008-0091 a Regulatory Evaluation addressing the economic impact of 
this rule. Document inspection and copying facilities are available at 
the DOT Central Docket Management Facility located in Room W12-140 on 
the Ground level of the West Building, 1200 New Jersey Avenue, SE., 
Washington, DC 20590. Docket material is also available for inspection 
electronically through the Federal eRulemaking Portal at http://www.regulations.gov. Photocopies may also be obtained by submitting a 
written request to the FRA Docket Clerk at the Office of Chief Counsel, 
RCC-10, Mail Stop 10, Federal Railroad Administration, 1200 New Jersey 
Avenue, SE., Washington, DC 20590; please refer to Docket No. FRA-2008-
0091.
    In this final rule, FRA is clarifying and/or amending certain 
sections of its existing regulation pertaining to the qualification and 
certification of locomotive engineers. Costs that may be incurred due 
to the rule are presented below. The revision or amendments to a 
railroad's certification program will not need to be submitted to FRA, 
but must be available to present to FRA upon request. The table below 
presents the estimated 20-year monetary costs associated with the final 
rule, at discount rates of 3 percent and 7 percent.

[[Page 68179]]



                           Total 20-Year Costs
------------------------------------------------------------------------
 
------------------------------------------------------------------------
Revisions (Update) to engineer certification programs...     $362,088.00
Description of program scoring systems..................      362,088.00
                                                         ---------------
    Total Burden........................................      724,176.00
Total 20-Year Costs (Discounted at 3%)..................      703,083.50
Total 20-Year Costs (Discounted at 7%)..................      676,800.00
------------------------------------------------------------------------

    This analysis determines that over a 20-year period the discounted 
costs will be approximately $703,084 when discounted at 3%, and 
$676,800 when discounted at 7%.
    The benefits that will accrue cannot be expressed in monetary 
terms; however, FRA is confident that such benefits will meet or exceed 
the costs associated with implementation of the final rule. The main 
benefit of this final rule is that railroads will no longer be able to 
use this regulation in a manner not contemplated by FRA. FRA also 
anticipates benefits flowing from a more precise and complete 
regulation. Benefits resulting from this final rule are process 
improvements that assist FRA in working with a railroad to resolve 
problems associated with the engineer certification program. The final 
rule works with railroad carriers' needs and operating environments to 
produce a regulatory scheme that is economically efficient while 
providing FRA oversight. Savings, that have not been quantified, would 
accrue from the consolidated provisions of the rule and the 
clarification of the railroads' certification programs.
2. Regulatory Flexibility Act and Executive Order 13272
    The Regulatory Flexibility Act of 1980 (5 U.S.C. 601 et seq.) and 
Executive Order 13272 (67 FR 53461, August 16, 2002) require agency 
review of proposed and final rules to assess their impact on small 
entities. Pursuant to the Regulatory Flexibility Act of 1980, 5 U.S.C. 
605(b), FRA has prepared and placed in the docket a Certification 
Statement that assesses the small entity impact of this rule, and 
certifies that this final rule is not expected to have a significant 
economic impact on a substantial number of small entities.
    Document inspection and copying facilities are available at the DOT 
Central Docket Management Facility located in Room W12-140 on the 
Ground level of the West Building, 1200 New Jersey Avenue, SE., 
Washington, DC 20590. Docket material is also available for inspection 
electronically through the Federal eRulemaking Portal at http://www.regulations.gov. Photocopies may also be obtained by submitting a 
written request to the FRA Docket Clerk at the Office of Chief Counsel, 
RCC-10, Mail Stop 10, Federal Railroad Administration, 1200 New Jersey 
Avenue, SE., Washington, DC 20590; please refer to Docket No. FRA-2008-
0091.
    The U.S. Small Business Administration (SBA) stipulates in its 
``Size Standards'' that the largest a railroad business firm that is 
``for-profit'' 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.'' ``Small 
entity'' is defined in the Act as a small business that is not 
independently owned and operated, and is not dominant in its field of 
operation. SBA's ``Size Standards'' may be altered by Federal agencies 
after consultation with SBA and in conjunction with public comment. 
Pursuant to that authority, FRA has published a final policy that 
formally establishes ``small entities'' as railroads which meet the 
line haulage revenue requirements of a Class III railroad. The revenue 
requirements are currently $20 million or less in annual operating 
revenue. The $20 million limit (which is adjusted by applying the 
railroad revenue deflator adjustment) is based on the Surface 
Transportation Board's threshold for a Class III railroad carrier. FRA 
uses the same revenue dollar limit to determine whether a railroad or 
shipper or contractor is a small entity.
    There are approximately 733 railroads that would be affected by 
this regulation. Of this number, approximately 687, or 94 percent, are 
small entities. Although this regulation affects a substantial number 
of small entities, FRA does not anticipate that this regulation would 
impose a significant economic impact on a substantial number of small 
entities.
    The factual basis for the certification that this final rule will 
not have a significant economic impact on a substantial number of small 
entities, is that the average net cost incurred by each of the small 
railroads due to this regulation will be approximately $752 (not 
discounted). Also, each of the affected small railroads will only incur 
these average costs during the first year of implementation of the 
regulation. This is far less than one percent of the annual average 
revenue for small (local) railroads (approximately $4.0 million\1\ in 
2007 (not discounted) per small railroad).Accordingly, FRA does not 
consider this impact to be significant. Nor does FRA anticipate that 
this regulation would result in long-term or short-term insolvency for 
any small railroad.
---------------------------------------------------------------------------

    \1\ ``Railroad Facts'', Association of American Railroads, 2008 
Edition, p.3. CALCULATION: [$2.1 billion/523 local (Class III) = 
$4.01 million (average revenue)]
---------------------------------------------------------------------------

    FRA invited comments from all interested parties on this 
Certification at the NPRM stage of the rulemaking. FRA particularly 
encouraged small entities that could potentially be impacted by the 
proposed amendments to participate in the public comment process by 
submitting comments on this assessment or this rulemaking to the 
official US DOT docket. Although comments were received pertaining to 
this rulemaking effort, no comments were received that specifically and 
directly addressed this Certification. With the absence of comments 
specifically addressing The Regulatory Flexibility Act of 1980 (5 
U.S.C. 601 et seq.) and Executive Order 13272, FRA will adhere to 
originally presented Certification that accompanied the NPRM. The 
Certification basis remains unchanged for the final rule.
3. Paperwork Reduction Act
    The information collection requirements in this final 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 
are duly designated, and the estimated time to fulfill each requirement 
is as follows:

----------------------------------------------------------------------------------------------------------------
                                     Respondent         Total annual      Average time per   Total annual burden
      CFR section/subject             universe            responses           response              hours
----------------------------------------------------------------------------------------------------------------
240.9--Waivers--Petitions for    733 railroads.....  3 petitions.......  1 hour............  3 hours.
 Waiver.
240.101/103--Certification       733 railroads.....  50 amend. prog....  1 hour............  50 hours.
 Program: Written Program for
 Certifying Qualifications of
 Locomotive Engineers--
 Amendments.

[[Page 68180]]

 
--Certification Programs for     20 railroads......  20 new prog.......  40 hours..........  800 hours.
 New Railroads.
--New Railroads Final Review     20 railroads......  20 reviews........  1 hour............  20 hours.
 and Submission of
 Certification Program.
--Material Modifications to      733 railroads.....  30 mod. prog......  45 minutes........  23 hours.
 Approved Prog..
240.105--Selection Criteria For  733 railroads.....  50 exams..........  1 hour............  50 hours.
 Designated Supervisors of
 Locomotive Engineers (DSLEs)--
 Examinations of DSLEs.
--Written Report by Railroad     10 railroads......  10 reports........  1 hour............  10 hours.
 Chief Operating Officer of
 Testing of DSLE.
240.109--Candidate's Review and  17,667 candidates.  25 responses......  1 hour............  25 hours.
 Written Comments on Prior
 Safety Conduct Data.
240.111--Request for State       17,667 candidates.  17,667 requests...  15 minutes........  4,417 hours.
 Driving Data and National
 Driver Register Data--Driver's
 License Data Requests.
--National Driver Register       733 railroads.....  177 notific. + 177  15 minutes........  89 hours.
 Data: Notification by Railroad                       requests.
 to Employees of Matches and
 Employee Requests to State
 Agency for Relevant Data.
--Written Responses from         733 railroads.....  20 comments.......  15 minutes........  5 hours.
 Candidate on Driver's License
 Data.
--Notice to Railroad of Absence  53,000 candidates.  4 letters.........  15 minutes........  1 hour.
 of License.
--Individual Duty to Furnish     733 railroads.....  200 calls.........  10 minutes........  33 hours.
 Data on Prior Conduct as Motor
 Vehicle Operator--Ph. Calls.
240.113--Individual Duty to      17,667 candidates.  353 requests + 353  15 min.; 30 min...  265 hours.
 Furnish Data on Prior Safety                         resp..
 Conduct as an Employee of A
 Different Railroad--Requests
 to Former Employing Railroad
 of Service Record and Railroad
 Responses.
240.119--Employee Self-Referral  53,000 locomotive   50 self-referrals.  5 minutes.........  4 hours.
 to EAP Counselor for Substance   engineers.
 Abuse Disorder.
240.121--Criteria--Hearing/      20 new railroads..  20 copies.........  15 min............  5 hours.
 Vision Acuity: Subsequent
 Years--Copies of Part 240
 Appendix F to RR Medical
 Examiner.
--Medical Examiner Consultation  733 railroads.....  20 reports........  1 hour............  20 hours.
 with DSLE to Issue Conditional
 Certification Report.
--Notification--Hearing/Vision   733 railroads.....  10 notific........  15 minutes........  3 hours.
 Change by Certified Engineer
 to Railroad.
New Requirements:
    240.127/129 Criteria for     733 railroads.....  46 amended          48 hours + 8 hour.  7,704 hours.
     Examining Skill                                  programs + 687
     Performance/Operational                          amended prog..
     Perf.--Revision of RR
     Certification Programs
     Engineer's Failures/
     Deficiencies and Scoring
     System.
240.201/221/223/301--List of     733 railroads.....  733 updates.......  60 minutes........  733 hours.
 DSLEs.
--List of Design. Qual.          733 railroads.....  733 updates.......  60 minutes........  733 hours.
 Locomotive Engineers.
240.201/217/223/301--Locomotive  53,000 candidates.  17,667 cert.......  5 minutes.........  1,472 hours.
 Engineers Certificate.
240.205--Data to EAP Counselor   733 railroads.....  177 records.......  5 minutes.........  15 hours.
 and Furnishing of Records by
 Employee.
240.207--Medical Certificate on  53,000 candidates.  17,667 cert.......  70 minutes........  20,612 hours.
 Hearing/Vision Acuity--Tests
 and Certificate Issuance.
--Written Determination by       733 railroads.....  10 determin.......  2 hours...........  20 hours.
 Medical Examiner Waiving
 Necessity of Wearing Hearing/
 Vision Corrective Device.
240.219--Denial of               17,667 candidates.  30 letters + 30     1 hour............  60 hours
 Certification--Notification to                       responses.
 Employee of Adverse
 Information and Employee
 Response.
--Notification of Adverse        733 railroads.....  30 notific........  1 hour............  30 hours.
 Decision.
240.229--Requirements for Joint  321 railroads.....  184 calls.........  5 minutes.........  15 hours.
 Operations Territory--
 Notification by Engineer of
 Non-Qualification to Operate
 Train on Track Segment.
240.309--Railroad Oversight      15 railroads......  6 annotations.....  15 minutes........  2 hours.
 Responsibilities--Instances of
 Identified Poor Safety Conduct.
TESTING REQUIREMENTS:
    240.209/213--Written Test..  53,000 candidates.  17,667 tests......  2 hours...........  35,334 hours.
    240.211/213--Performance     53,000 candidates.  17,667 tests......  2 hours...........  35,334 hours.
     Test.
    240.303--Annual Op. Monit.   53,000 candidates.  53,000 tests......  2 hours...........  106,000 hrs.
     Obs. Test.
    --Annual Operating Rules     53,000 candidates.  53,000 tests......  1 hour............  53,000 hours.
     Compliance Test.
RECORDKEEPING REQUIREMENTS:
    240.215--Recordkeeping--Cer  733 railroads.....  17,667 record.....  30 minutes........  8,834 hours.
     tification of Locomotive
     Engineers.

[[Page 68181]]

 
    240.305--Engineer's Non-     53,000 candidates.  100 notific.......  5 minutes.........  8 hours.
     Qualification Notice.
    --Engineer's Notice to RR--  1,060 candidates..  2 letters.........  30 minutes........  1 hour.
     Loss of Qualification.
240.307--Notice to Engineer of   733 railroads.....  900 notific.        1 hour............  900 hours.
 Disqualification.                                    letters.
240.309--Railroad Oversight      51 railroads......  51 reviews........  40 hours..........  2,040 hours.
 Responsibilities.
--Performance of Annual Reviews/ 51 railroads......  12 reports........  1 hour............  12 hours.
 Analysis.
--Railroad Report of Findings..
----------------------------------------------------------------------------------------------------------------

    All estimates include the time for reviewing instructions; 
searching existing data sources; gathering or maintaining the needed 
data; and reviewing the information. For information or a copy of the 
paperwork package submitted to OMB, contact Robert Brogan at 202-493-
6292 or Kimberly Toone at 202-493-6132.
    Organizations and individuals desiring to submit comments on the 
collection of information requirements should direct them to the Office 
of Management and Budget, Office of Information and Regulatory Affairs, 
Washington, DC 20503, Attention: FRA Desk Officer. Comments may also be 
sent via e-mail to the Office of Management and Budget at the following 
address: [email protected].
    OMB is required to make a decision concerning the collection of 
information requirements contained in this final rule between 30 and 60 
days after publication of this document in the Federal Register. 
Therefore, a comment to OMB is best assured of having its full effect 
if OMB receives it within 30 days of publication.
    FRA 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 this final rule. The 
OMB control number, when assigned, will be announced by separate notice 
in the Federal Register.
4. Federalism Implications
    Executive Order 13132, ``Federalism'' (64 FR 43255, Aug. 10, 1999), 
requires FRA to develop an accountable process to ensure ``meaningful 
and timely input by State and local officials in the development of 
regulatory policies that have federalism implications.'' ``Policies 
that have federalism implications'' are defined in the Executive Order 
to include regulations that have ``substantial direct effects on the 
States, on the relationship between the national government and the 
States, or on the distribution of power and responsibilities among the 
various levels of government.'' Under Executive Order 13132, the agency 
may not issue a regulation with federalism implications that imposes 
substantial direct compliance costs and that is not required by 
statute, unless the Federal government provides the funds necessary to 
pay the direct compliance costs incurred by State and local 
governments, the agency consults with State and local governments, or 
the agency consults with State and local government officials early in 
the process of developing the regulation. Where a regulation has 
federalism implications and preempts State law, the agency seeks to 
consult with State and local officials in the process of developing the 
regulation.
    This rule has been analyzed in accordance with the principles and 
criteria contained in Executive Order 13132. This rule will not have a 
substantial effect on the States or their political subdivisions; it 
will not impose any compliance costs; and it will not affect the 
relationships between the Federal government and the States or their 
political subdivisions, or the distribution of power and 
responsibilities among the various levels of government. Consequently, 
FRA concludes that this rule has no federalism implications.
5. International Trade Impact Assessment
    The Trade Agreement Act of 1979 prohibits Federal agencies from 
engaging in any standards or related activities that create unnecessary 
obstacles to the foreign commerce of the United States. Legitimate 
domestic objectives, such as safety, are not considered unnecessary 
obstacles. The statute also requires consideration of international 
standards and where appropriate, that they be the basis for U.S. 
standards.
    This rule is purely domestic in nature and is not expected to 
affect trade opportunities for U.S. firms doing business overseas or 
for foreign firms doing business in the United States.
6. Environmental Impact
    FRA has evaluated this rule in accordance with its ``Procedures for 
Considering Environmental Impacts'' (FRA's Procedures) (64 FR 28545, 
May 26, 1999) as required by the National Environmental Policy Act (42 
U.S.C. 4321 et seq.), other environmental statutes, Executive Orders, 
and related regulatory requirements. FRA has determined that this rule 
is not a major FRA action (requiring the preparation of an 
environmental impact statement or environmental assessment) because it 
is categorically excluded from detailed environmental review pursuant 
to section 4(c)(20) of FRA's Procedures. See 64 FR 28547 (May 26, 
1999). Section 4(c)(20) reads as follows:

    (c) Actions categorically excluded. Certain classes of FRA 
actions have been determined to be categorically excluded from the 
requirements of these Procedures as they do not individually or 
cumulatively have a significant effect on the human environment.
* * * * *
    The following classes of FRA actions are categorically excluded:
* * * * *
    (20) Promulgation of railroad safety rules and policy statements 
that do not result in significantly increased emissions or air or 
water pollutants or noise or increased traffic congestion in any 
mode of transportation.

    In accordance with section 4(c) and (e) of FRA's Procedures, the 
agency has further concluded that no extraordinary circumstances exist 
with respect to this regulation that might trigger the need for a more 
detailed environmental review. As a result, FRA finds that this rule is 
not a major Federal action significantly affecting the quality of the 
human environment.
7. Unfunded Mandates Reform Act of 1995
    Pursuant to Section 201 of the Unfunded Mandates Reform Act of 1995 
(Pub. L. 104-4, 2 U.S.C. 1531), each Federal agency ``shall, unless 
otherwise prohibited by law, assess the effects of Federal regulatory 
actions on State, local, and tribal governments, and the

[[Page 68182]]

private sector (other than to the extent that such regulations 
incorporate requirements specifically set forth in law).'' Section 202 
of the Act (2 U.S.C. 1532) further requires that ``before promulgating 
any general notice of proposed rulemaking that is likely to result in 
the promulgation of any rule that includes any Federal mandate that may 
result in expenditure by State, local, and tribal governments, in the 
aggregate, or by the private sector, of $141,300,000 or more in any one 
year, and before promulgating any final rule for which a general notice 
of proposed rulemaking was published, the agency shall prepare a 
written statement'' detailing the effect on State, local, and tribal 
governments and the private sector. This final rule will not result in 
the expenditure, in the aggregate, of $141,300,000 or more in any one 
year, and thus preparation of such a statement is not required.
8. Energy Impact
    Executive Order 13211 requires Federal agencies to prepare a 
Statement of Energy Effects for any ``significant energy action.'' 66 
FR 28355 (May 22, 2001). Under the Executive Order, a ``significant 
energy action'' is defined as any action by an agency (normally 
published in the Federal Register) that promulgates or is expected to 
lead to the promulgation of a final rule or regulation, including 
notices of inquiry, advance notices of proposed rulemaking, and notices 
of proposed rulemaking: (1)(i) That is a significant regulatory action 
under Executive Order 12866 or any successor order, and (ii) is likely 
to have a significant adverse effect on the supply, distribution, or 
use of energy; or (2) that is designated by the Administrator of the 
Office of Information and Regulatory Affairs as a significant energy 
action. FRA has evaluated this rule in accordance with Executive Order 
13211. FRA has determined that this rule is not likely to have a 
significant adverse effect on the supply, distribution, or use of 
energy. Consequently, FRA has determined that this rule is not a 
``significant energy action'' within the meaning of Executive Order 
13211.
9. Privacy Act
    Anyone is able to search the electronic form of all comments or 
petitions for reconsideration received into any agency docket by the 
name of the individual submitting the comment or petition for 
reconsideration (or signing the comment or petition for 
reconsideration, if submitted on behalf of an association, business, 
labor union, etc.). You may review DOT's complete Privacy Act Statement 
in the Federal Register published on April 11, 2000 (65 FR 19477-78) or 
you may visit http:[sol][sol]www.regulations.gov/search/footer/
privacyanduse.jsp.

List of Subjects in 49 CFR Part 240

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

The Rule

0
For the reasons discussed in the preamble, FRA amends Part 240 of 
chapter II, subtitle B of title 49 of the Code of Federal Regulations 
as follows:

PART 240--[AMENDED]

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

    Authority: 49 U.S.C. 20103, 20107, 20135, 21301, 21304, 21311; 
28 U.S.C. 2461, note; and 49 CFR 1.49.


0
2. Section 240.7 is amended by revising paragraph (1) of the definition 
of ``Locomotive engineer'' to read as follows:


Sec.  240.7  Definitions.

* * * * *
    Locomotive engineer * * *
    (1) A person who moves a locomotive or group of locomotives within 
the confines of a locomotive repair or servicing area as provided for 
in 49 CFR 218.5 and 218.29(a)(1); or
* * * * *

0
3. Section 240.101 is amended by revising paragraphs (a), (b) and (c) 
introductory text to read as follows:


Sec.  240.101  Certification program required.

    (a) Each railroad subject to this part shall have in effect a 
written program for certifying the qualifications of locomotive 
engineers.
    (b) Each railroad shall have such a program in effect prior to 
commencing operations.
    (c) Each railroad shall have a certification program approved in 
accordance with Sec.  240.103 that includes:
* * * * *

0
4. Section 240.107 is amended by adding a new paragraph (e) to read as 
follows:


Sec.  240.107  Criteria for designation of classes of service.

* * * * *
    (e) A railroad shall not reclassify the certification of any type 
of certified engineer to a more restrictive class of certificate or a 
student engineer certificate during the period in which the 
certification is otherwise valid.

0
5. Section 240.109 is amended by revising paragraph (e) to read as 
follows:


Sec.  240.109  General criteria for eligibility based on prior safety 
conduct.

* * * * *
    (e) When evaluating a person's motor vehicle driving record or a 
person's railroad employment record, a railroad shall not consider 
information concerning motor vehicle driving incidents or prior 
railroad safety conduct that occurred at a time other than that 
specifically provided for in Sec.  240.115, Sec.  240.117 or Sec.  
240.119 of this subpart.
* * * * *

0
6. Section 240.111 is amended by revising paragraph (a) introductory 
text to read as follows:


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

    (a) Except for persons covered by Sec.  240.109(h), each person 
seeking certification or recertification under this part shall, within 
366 days preceding the date of the railroad's decision on certification 
or recertification:
* * * * *

0
7. 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 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:
* * * * *

0
8. Section 240.117 is amended by revising paragraph (e)(3) and by 
removing paragraphs (g)(4), (i), and (j) to read as follows:


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

* * * * *
    (e) * * *
    (3) Failure to adhere to procedures for the safe use of train or 
engine brakes when the procedures are required for compliance with the 
Class I, Class IA, Class II, Class III, or transfer train brake test 
provisions of 49 CFR part 232 or when the procedures are required for 
compliance with the Class I, Class IA, Class II, or running brake test 
provisions of 49 CFR part 238;
* * * * *

[[Page 68183]]


0
9. Section 240.127 is amended by adding new paragraphs (e) and (f) to 
read as follows:


Sec.  240.127  Criteria for examining skill performance.

* * * * *
    (e) Each railroad's program shall indicate the types of actions the 
railroad will take in the event that a person fails an initial 
examination or a reexamination of his or her performance skills in 
accordance with the procedures required under Sec.  240.211.
    (f) Each railroad's program shall describe the scoring system used 
by the railroad during a skills test administered in accordance with 
the procedures required under Sec.  240.211. The description shall 
include the skills to be tested and the weight or possible score that 
each skill will be given.

0
10. Section 240.129 is amended by revising paragraphs (c)(2) and (e) 
and adding new paragraphs (f) and (g) to read as follows:


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

* * * * *
    (c) * * *
    (2) Be designed so that each engineer shall be monitored each 
calendar year by a Designated Supervisor of Locomotive Engineers, who 
does not need to be qualified on the physical characteristics of the 
territory over which the operational performance monitoring will be 
conducted;
* * * * *
    (e) The testing and examination procedures selected by the railroad 
for the conduct of a monitoring program shall be:
    (1) Designed so that each locomotive engineer shall be given at 
least one unannounced test each calendar year;
    (2) Designed to test:
    (i) Engineer compliance with provisions of the railroad's operating 
rules that require response to signals that display less than a 
``clear'' aspect, if the railroad operates with a signal system that 
must comply with part 236 of this chapter;
    (ii) Engineer compliance with provisions of the railroad's 
operating rules, timetable or other mandatory directives that require 
affirmative response by the locomotive engineer to less favorable 
conditions than that which existed prior to initiation of the test; or
    (iii) Engineer compliance with provisions of the railroad's 
operating rules, timetable or other mandatory directives violation of 
which by engineers were cited by the railroad as the cause of train 
accidents or train incidents in accident reports filed in compliance 
with part 225 of this chapter in the preceding calendar year;
    (3) Designed so that the administration of these tests is 
effectively distributed throughout whatever portion of a 24-hour day 
that the railroad conducts its operations; and
    (4) Designed so that individual tests are administered without 
prior notice to the engineer being tested.
    (f) Each railroad's program shall indicate the types of actions the 
railroad will take in the event that it finds deficiencies with a 
locomotive engineer's performance during an operational monitoring 
observation or unannounced compliance test administered in accordance 
with the procedures required under Sec.  240.303.
    (g) Each railroad's program shall describe the scoring system used 
by the railroad during an operational monitoring observation or 
unannounced compliance test administered in accordance with the 
procedures required under Sec.  240.303.

0
11. Section 240.201 is revised to read as follows:


Sec.  240.201  Implementation.

    (a) Each railroad shall designate in writing any person(s) it deems 
qualified as a designated supervisor of locomotive engineers. Each 
person so designated shall have demonstrated to the railroad through 
training, testing or prior experience that he or she has the knowledge, 
skills, and ability to be a designated supervisor of locomotive 
engineers.
    (b) Each railroad shall designate in writing all persons that it 
will deem to be qualified as certified locomotive engineers for the 
purpose of initial compliance with paragraph (d) of this section, 
except as provided for in paragraph (h) of this section.
    (1) Each person so designated shall have demonstrated to the 
railroad through training, testing or prior experience that he or she 
has the knowledge and skills to be a certified locomotive engineer.
    (2) Each railroad shall issue a certificate that complies with 
Sec.  240.223 to each person that it designates as qualified under the 
provisions of paragraph (b) of this section.
    (c) No railroad shall permit or require a person, designated as 
qualified for certification under the provisions of paragraph (b) of 
this section, to perform service as a certified locomotive or train 
service engineer for more than a 36-month period unless that person has 
been determined to be qualified in accordance with procedures that 
comply with subpart C.
    (d) No railroad shall permit or require any person to operate a 
locomotive in any class of locomotive or train service unless that 
person has been certified as a qualified locomotive engineer and issued 
a certificate that complies with Sec.  240.223.
    (e) No Class I railroad (including the National Railroad Passenger 
Corporation) or railroad providing commuter service shall designate any 
person it deems qualified as a designated supervisor of locomotive 
engineers or initially certify or recertify a person as a locomotive 
engineer in either locomotive or train service unless that person has 
been tested, evaluated, and determined to be qualified in accordance 
with procedures that comply with subpart C.
    (f) No Class II railroad shall designate any person it deems 
qualified as a designated supervisor of locomotive engineers or 
initially certify or recertify a person as a locomotive engineer in any 
class of locomotive or train service unless that person has been 
tested, evaluated and determined to be qualified in accordance with 
procedures that comply with subpart C.
    (g) No Class III railroad (including a switching and terminal or 
other railroad not otherwise classified) shall designate any person it 
deems qualified as a designated supervisor of locomotive engineers or 
initially certify or recertify a person as a locomotive engineer in any 
class of locomotive or train service unless that person has been 
tested, evaluated and determined to be qualified in accordance with 
procedures that comply with subpart C.
    (h) Each person designated as a locomotive engineer shall be issued 
a certificate that complies with Sec.  240.223 prior to being required 
or permitted to operate a locomotive.

0
12. Section 240.203 is amended by revising paragraph (a) introductory 
text to read as follows:


Sec.  240.203  Determinations required as a prerequisite to 
certification.

    (a) Except as provided in paragraph (b), each railroad, prior to 
initially certifying or recertifying any person as an engineer for any 
class of service, shall, in accordance with its FRA-approved program 
determine in writing that:
* * * * *

0
13. Section 240.205 is amended by revising paragraph (a) to read as 
follows:

[[Page 68184]]

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

    (a) Each railroad, prior to initially certifying or recertifying 
any person as an engineer for any class of service, shall determine 
that the person meets the eligibility requirements of Sec.  240.115 
involving prior conduct as a motor vehicle operator, Sec.  240.117 
involving prior conduct as a railroad worker, and Sec.  240.119 
involving substance abuse disorders and alcohol/drug rules compliance.
* * * * *

0
14. Section 240.207 is amended by revising paragraph (a) to read as 
follows:


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

    (a) Each railroad, prior to initially certifying or recertifying 
any person as an engineer for any class of service, shall determine 
that the person meets the standards for visual acuity and hearing 
acuity prescribed in Sec.  240.121.
* * * * *

0
15. Section 240.209 is amended by revising paragraph (a) to read as 
follows:


Sec.  240.209  Procedures for making the determination on knowledge.

    (a) Each railroad, prior to initially certifying or recertifying 
any person as an engineer for any class of train or locomotive service, 
shall determine that the person has, in accordance with the 
requirements of Sec.  240.125 of this part, demonstrated sufficient 
knowledge of the railroad's rules and practices for the safe operation 
of trains.
* * * * *

0
16. Section 240.211 is amended by revising paragraph (a) to read as 
follows:


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

    (a) Each railroad, prior to initially certifying or recertifying 
any person as an engineer for any class of train or locomotive service, 
shall determine that the person has demonstrated, in accordance with 
the requirements of Sec.  240.127 of this part, the skills to safely 
operate locomotives or locomotives and 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.
* * * * *

0
17. Section 240.213 is amended by revising paragraph (a) to read as 
follows:


Sec.  240.213  Procedures for making the determination on completion of 
training program.

    (a) Each railroad, prior to the initial issuance of a certificate 
to any person as a train or locomotive service engineer, shall 
determine that the person has, in accordance with the requirements of 
Sec.  240.123 of this part, the knowledge and skills to safely operate 
a locomotive or train in the most demanding class or type of service 
that the person will be permitted to perform.
* * * * *

0
18. Section 240.215 is amended by revising paragraph (a) to read as 
follows:


Sec.  240.215  Retaining information supporting determinations.

    (a) A railroad that issues, denies, or revokes a certificate after 
making the determinations required under Sec.  240.203 shall maintain a 
record for each certified engineer or applicant for certification that 
contains the information the railroad relied on in making the 
determinations.
* * * * *

0
19. Section 240.217 is amended by revising paragraph (a) introductory 
text to read as follows:


Sec.  240.217  Time limitations for making determinations.

    (a) A railroad shall not certify or recertify a person as a 
qualified locomotive engineer in any class of train or engine service, 
if the railroad is making:
* * * * *

0
20. Section 240.221 is amended by revising paragraphs (a) and (b) to 
read as follows:


Sec.  240.221  Identification of qualified persons.

    (a) A railroad shall maintain a written record identifying each 
person designated by it as a supervisor of locomotive engineers.
    (b) A railroad shall maintain a written record identifying each 
person designated as a certified locomotive engineer. That listing of 
certified engineers shall indicate the class of service the railroad 
determines each person is qualified to perform and date of the 
railroad's certification decision.
* * * * *

0
21. Section 240.225 is amended by revising paragraph (a) introductory 
text to read as follows:


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

    (a) A railroad that is considering certification of a person as a 
qualified engineer may rely on determinations made by another railroad 
concerning that person's qualifications. The railroad's certification 
program shall address how the railroad will administer the training of 
previously uncertified engineers with extensive operating experience or 
previously certified engineers who have had their certification expire. 
If a railroad's certification program fails to specify how 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:
* * * * *

0
22. Section 240.303 is amended by revising paragraphs (a) and (d) to 
read as follows:


Sec.  240.303  Operational monitoring requirements.

    (a) Each railroad to which this part applies shall, prior to FRA 
approval of its program in accordance with Sec.  240.201, have a 
program to monitor the conduct of its certified locomotive engineers by 
performing both operational monitoring observations and by conducting 
unannounced operating rules compliance tests.
* * * * *
    (d) The unannounced test program shall:
    (1) Test engineer compliance with:
    (i) One or more provisions of the railroad's operating rules that 
require response to signals that display less than a ``clear'' aspect, 
if the railroad operates with a signal system that must comply with 
part 236 of this chapter;
    (ii) One or more provisions of the railroad's operating rules, 
timetable or other mandatory directives that require affirmative 
response by the locomotive engineer to less favorable conditions than 
that which existed prior to initiation of the test; or
    (iii) Provisions of the railroad's operating rules, timetable or 
other mandatory directives the violations of which by engineers were 
cited by the railroad as the cause of train accidents or train 
incidents in accident reports filed in compliance with part 225 of this 
chapter for the preceding year;
    (2) Be conducted that so that the administration of these tests is 
effectively distributed throughout whatever portion of a 24-hour day 
that the railroad conducts its operations;
    (3) Be conducted so that individual tests are administered without 
prior notice to the locomotive engineer being tested; and
    (4) Be conducted so that the results of the test are recorded on 
the certificate and entered on the record established under Sec.  
240.215 within 30 days of the day the test is administered.

0
23. Section 240.305 is amended by removing the introductory text and

[[Page 68185]]

revising paragraph (a)(3) to read as follows:


Sec.  240.305  Prohibited conduct.

    (a) * * *
    (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 Class I, Class IA, Class II, Class 
III, or transfer train brake test provisions of 49 CFR part 232 or when 
the procedures are required for compliance with the class 1, class 1A, 
class II, or running brake test provisions of 49 CFR part 238;
* * * * *

0
24. Section 240.307 is amended by revising paragraphs (a) and (j) 
introductory text to read as follows:


Sec.  240.307  Revocation of certification.

    (a) Except as provided for in Sec.  240.119(e), a railroad that 
certifies or recertifies a person as a qualified locomotive engineer 
and, during the period that certification is valid, acquires 
information regarding violations of Sec.  240.117(e) or Sec.  
240.119(c) of this chapter, which convinces the railroad that the 
person no longer meets the qualification requirements of this part, 
shall revoke the person's certificate as a qualified locomotive 
engineer.
* * * * *
    (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 sufficient 
evidence meeting the criteria provided in paragraph (i) of this 
section, becomes available either:
* * * * *

0
25. Section 240.309 is amended by revising paragraphs (a) and (e)(3) to 
read as follows:


Sec.  240.309  Railroad oversight responsibilities.

    (a) No later than March 31 of each year, each Class I railroad 
(including the National Railroad Passenger Corporation and a railroad 
providing commuter service) and Class II railroad shall conduct a 
formal annual review and analysis concerning the administration of its 
program for responding to detected instances of poor safety conduct by 
certified locomotive engineers during the prior calendar year.
* * * * *
    (e) * * *
    (3) Incidents involving noncompliance with the procedures for the 
safe use of train or engine brakes when the procedures are required for 
compliance with the Class I, Class IA, Class II, Class III, or transfer 
train brake test provisions of 49 CFR part 232 or when the procedures 
are required for compliance with the Class 1, Class 1A, Class II, or 
running brake test provisions of 49 CFR part 238;
* * * * *

Appendix A to Part 240 [Amended]

    26. Appendix A to part 240-Schedule of Civil Penalties is 
amended by removing the entries for sections 240.203(a); 
redesignating the entries for sections 240.203(b) as 240.203(a); 
redesignating the entries for sections 240.203(c) as 240.203(b); and 
redesignating the entry for section 240.205(d) as 240.205(b).
    27. Appendix B is amended by revising the 5th paragraph of 
Section 4 of the Submission: Testing and Evaluating Persons 
Previously Certified and the last paragraph of Section 6 of the 
Submission: Monitoring Operational Performance by Certified 
Engineers to read as follows:

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

* * * * *

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

* * * * *
    Section 240.127 provides a railroad latitude in selecting the 
design of its own testing and evaluation procedures (including the 
duration of the evaluation process, how each required subject matter 
will be covered, weighing (if any) to be given to particular subject 
matter response, selection of passing scores, and the manner of 
presenting the test information). However, the railroad must 
describe the scoring system used by the railroad during a skills 
test administered in accordance with the procedures required under 
Sec.  240.211. The description shall include the skills to be tested 
and the weight or possible score that each skill will be given. The 
section should also provide information concerning the procedures 
which the railroad will follow that achieve the objectives described 
in FRA's recommended practices (see appendix E) for conducting skill 
performance testing. The section also gives a railroad the latitude 
to employ either a Type 1 or a Type 2 simulator (properly 
programmed) to conduct the test and evaluation procedure. A railroad 
must describe in this section how it will use that latitude to 
assure that its engineers will demonstrate their skills concerning 
the safe discharge of their train operation responsibilities so as 
to comply with the performance standard set forth in Sec.  240.127.
* * * * *

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

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

Appendix D to Part 240 [Amended]

    28. Appendix D is amended by removing the last paragraph.

    Issued in Washington, DC, on December 17, 2009.
Karen J. Rae,
Deputy Administrator.
[FR Doc. E9-30439 Filed 12-22-09; 8:45 am]
BILLING CODE 4910-06-P