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



[[Page 20471]]

Vol. 84

Thursday,

No. 90

May 9, 2019

Part II





Department of Transportation





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Federal Railroad Administration





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49 CFR Part 240





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

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

[[Page 20472]]


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DEPARTMENT OF TRANSPORTATION

Federal Railroad Administration

49 CFR Part 240

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


Qualification and Certification of Locomotive Engineers; 
Miscellaneous Revisions

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

ACTION: Notice of proposed rulemaking (NPRM).

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

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

ADDRESSES: You may submit comments identified by the docket number FRA-
2018-0053 by any one of the following methods:
     Electronically through the Federal eRulemaking Portal, 
http://www.regulations.gov. Follow the online instructions for 
submitting comments;
     Mail: U.S. Department of Transportation, Docket 
Operations, M-30, West Building Ground Floor, Room W12-140, 1200 New 
Jersey Avenue SE, Washington, DC 20590;
     Hand Delivery: U.S. Department of Transportation, Docket 
Operations, West Building Ground Floor, Room W12-140, 1200 New Jersey 
Avenue SE, Washington, DC 20590, between 9 a.m. and 5 p.m., Monday 
through Friday, except Federal holidays; or
     Fax: 1-202-493-2251.
    Instructions: All submissions must include the agency name, docket 
name, and docket number or Regulatory Identification Number (RIN) for 
this rulemaking (2130-AC40). Note that all comments received will be 
posted without change to http://www.regulations.gov, including any 
personal information provided. Please see the Privacy Act heading in 
the SUPPLEMENTARY INFORMATION section of this document for Privacy Act 
information related to any submitted comments or materials.
    Docket: For access to the docket to read background documents or 
comments received, go to 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: Christian Holt, Railroad Safety 
Specialist (OP)-Operating Crew Certification, U.S. Department of 
Transportation, Federal Railroad Administration, Room W33-420, 1200 New 
Jersey Avenue SE, Washington, DC 20590 (telephone: 202-366-0978); or 
Alan H. Nagler, Senior Attorney, U.S. Department of Transportation, 
Federal Railroad Administration, Office of Chief Counsel, Room W31-309, 
1200 New Jersey Avenue SE, Washington, DC 20590 (telephone: 202-493-
6038).

SUPPLEMENTARY INFORMATION: 

Table of Contents for Supplementary Information

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

I. Executive Summary

    The Secretary of Transportation (Secretary) has broad statutory 
authority to ``prescribe regulations and issue orders for every area of 
railroad safety.'' 49 U.S.C. 20103. The Rail Safety Improvement Act of 
1988, Public Law 100-342, Sec. 4, 102 Stat. 624, 625-27 (June 22, 1988) 
(recodified at 49 U.S.C. 20135) (1988 RSIA), specifically required the 
Secretary to ``prescribe regulations and issue orders to establish a 
program requiring the licensing or certification . . . of any operator 
of a locomotive.'' The Secretary delegated these authorities to the 
Federal Railroad Administrator (Administrator). See 49 CFR 1.89(a). 
Exercising these delegated authorities, in 1991, FRA issued a 
certification final rule for locomotive engineers. 56 FR 28228 
(codified at 49 CFR part 240).\1\ Since that first final rule, FRA has 
amended the locomotive engineer certification requirements through six 
rulemakings. In 2009, FRA published the most recent final rule amending 
the locomotive engineer requirements. 74 FR 68173.
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    \1\ Unless otherwise specified, all references to CFR sections 
and parts refer to title 49 of the CFR.
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    In 2008, over 17 years after FRA's promulgation of the engineer 
certification rule, Congress required the Secretary to prescribe 
regulations establishing a program requiring the certification of train 
conductors. See Rail Safety Improvement Act of 2008, Sec. 402, Public 
Law 110-432, 122 Stat. 4884 (Oct. 16, 2008) (codified at 49 U.S.C. 
20163). The Secretary delegated this authority to the Federal Railroad 
Administrator. 49 CFR 1.89(b). To implement this statutory provision, 
FRA established a Railroad Safety Advisory Committee (RSAC) Conductor 
Certification Working Group (RSAC Working Group or Working Group) \2\ 
to make recommendations regarding the certification of train 
conductors.\3\ In

[[Page 20473]]

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

II. Section-by-Section Analysis

Section 240.1 Purpose and Scope

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

Section 240.3 Application and Responsibility for Compliance

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

Section 240.5 Effect and Construction

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

[[Page 20474]]

paragraph (a) to prevent any ambiguity that Federal preemption of State 
and local laws remains firmly in place. However, FRA believes these 
paragraphs are unnecessary because 49 U.S.C. 20106 and other Federal 
railroad safety statutes sufficiently address the preemptive effect of 
FRA's regulations. Maintaining a separate Federal regulatory provision 
concerning the regulation's preemptive effect is duplicative and 
unnecessary.\4\ FRA notes that Part 242 does not contain any language 
comparable to the language in existing paragraphs (a) and (b) of this 
section. Because FRA is proposing removal of the preemption provisions, 
FRA proposes to remove the word ``preemptive'' from the title of this 
section and make the title the same as Sec.  242.5.
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    \4\ This issue was thoroughly discussed and analyzed at the Part 
242 RSAC Working Group meetings and in the Part 242 rulemaking 
documents. See 75 FR 69166, 69168 (Nov. 10, 2010).
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    New proposed paragraph (c) of this section addresses the issue of 
``flowback'' and mirrors paragraph (c) of Sec.  242.5. Industry uses 
the term flowback to describe a situation where an employee leaves his 
or her current position to return to a previously held position or 
craft. An example of flowback occurs when a person who holds a 
conductor position subsequently qualifies for a locomotive engineer 
position, and at some later point in time the person seeks to revert 
back to a conductor position. An individual's reasons for reverting 
back to a previous position or craft may be a personal choice or the 
result of circumstances beyond the individual's control (e.g., 
downsizing).
    Many collective bargaining agreements address the issue of flowback 
and, generally, FRA does not intend to create or prohibit any 
individual's right to flowback or take a position on whether flowback 
is desirable. Paragraph (c) of this section, however, must be read in 
conjunction with proposed Sec.  240.308, which limits flowback in 
certain situations. Therefore, as described in the section-by-section 
analysis for Sec.  240.308 below, a person who holds both a conductor 
and locomotive engineer certificate, and who has had his or her 
locomotive engineer certificate revoked for certain violations, could 
not work as a conductor during the period of revocation. In addition, a 
person who holds both a conductor and locomotive engineer certificate, 
and who has had his or her conductor certification revoked for certain 
violations, could not work as a locomotive engineer during the period 
of revocation.

Section 240.7 Definitions

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

[[Page 20475]]

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

[[Page 20476]]

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

[[Page 20477]]

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

[[Page 20478]]

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

Section 240.11 Penalties and Consequences for Noncompliance

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

Section 240.103 Approval of Design of Individual Railroad Programs by 
FRA

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

Section 240.105 Criteria for Selection of Designated Supervisors of 
Locomotive Engineers

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

[[Page 20479]]

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

Section 240.107 Types of Service

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

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

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

[[Page 20480]]

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

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

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

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

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

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

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

[[Page 20481]]

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

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

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

Section 240.117 Criteria for Consideration of Operating Rules 
Compliance Data

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

[[Page 20482]]

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

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

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

Section 240.121 Criteria for Vision and Hearing Acuity Data

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

Section 240.123 Training

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

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

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

[[Page 20483]]

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

Section 240.125 Knowledge Testing

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

Section 240.127 Criteria for Examining Skill Performance

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

Section 240.129 Criteria for Monitoring Operational Performance of 
Certified Engineers

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

[[Page 20484]]

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

Section 240.205 Procedures for Determining Eligibility Based on Prior 
Safety Conduct

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

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

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

Section 240.209 Procedures for Making the Determination on Knowledge

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

Section 240.211 Procedures for Making the Determination on Performance 
Skills

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

Section 240.215 Retaining Information Supporting Determinations

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

Section 240.217 Time Limitations for Making Determinations

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

[[Page 20485]]

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

Section 240.219 Denial of Certification

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

[[Page 20486]]

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

Section 240.221 Identification of Qualified Persons

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

Section 240.223 Criteria for the Certificate

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

Section 240.225 Reliance on Qualification Determinations Made by Other 
Railroads

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

Section 240.229 Requirements for Joint Operations Territory

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

[[Page 20487]]

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

Section 240.301 Replacement of Certificates

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

Section 240.303 Operational Monitoring Requirements

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

Section 240.305 Prohibited Conduct

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

Section 240.307 Revocation of Certification

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

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

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

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

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

[[Page 20488]]

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

[[Page 20489]]

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

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

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

Section 240.308 Multiple Certifications

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

Section 240.309 Railroad Oversight Responsibilities

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

[[Page 20490]]

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

Subpart E--Dispute Resolution Procedures

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

Section 240.401 Review Board Established

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

[[Page 20491]]

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

Section 240.403 Petition Requirements

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

Section 240.405 Processing Certification Review Petitions

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

[[Page 20492]]

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

[[Page 20493]]

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

Section 240.407 Request for a Hearing

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

Section 240.409 Hearings

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

Section 240.411 Appeals

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

[[Page 20494]]

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

Appendix A

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

Appendix B

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

Appendix C

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

Appendix D

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

Appendix G

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

III. Additional Issues

A. Additional Amendments

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

B. Implementation Date

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

[[Page 20495]]

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

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

IV. Regulatory Impact and Notices

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

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

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

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

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

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

[[Page 20496]]

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

[[Page 20497]]

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

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

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

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

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

[[Page 20498]]

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

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

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

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

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

[[Page 20499]]

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

C. Paperwork Reduction Act

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

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

[[Page 20500]]

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

[[Page 20501]]

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

[[Page 20502]]

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

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

[[Page 20503]]

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

D. Federalism Implications

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

E. International Trade Impact Assessment

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

F. Environmental Impact

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

G. Unfunded Mandates Reform Act of 1995

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

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

H. Energy Impact

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

[[Page 20504]]

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

I. Privacy Act

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

List of Subjects in 49 CFR Part 240

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

The Proposed Rule

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

PART 240--[AMENDED]

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

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

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


Sec.  240.1  Purpose and scope.

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


Sec.  240.3  Application and responsibility for compliance.

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


Sec.  240.5  Effect and construction.

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


Sec.  240.7  Definitions.

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

[[Page 20505]]

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


Sec.  240.11  Penalties and consequences for noncompliance.

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

[[Page 20506]]

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


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

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


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

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


Sec.  240.107  Types of service.

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


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

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

[[Page 20507]]

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


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

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


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

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

[[Page 20508]]

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


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

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


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

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

[[Page 20509]]

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


Sec.  240.121  Criteria for vision and hearing acuity data.

    (a) Each railroad shall adopt and comply with a program which 
complies with the requirements of this section. When any person, 
including, but not limited to, each railroad, railroad officer, 
supervisor, and employee, violates any requirement of a program that 
complies with the requirements of this section, that person shall be 
considered to have violated the requirements of this section.
* * * * *
    (d) Except as provided in paragraph (e) of this section, each 
person shall have a hearing test or audiogram that shows the person's 
hearing acuity meets or exceeds the following thresholds: The person 
does not have an average hearing loss in the better ear greater than 40 
decibels with or without use of a hearing aid, at 500 Hz, 1,000 Hz, and 
2,000 Hz. The hearing test or audiogram shall meet the requirements of 
one of the following:
    (1) As required in 29 CFR 1910.95(h) (OSHA);
    (2) As required in Sec.  227.111 of this chapter; or
    (3) Conducted using an audiometer that meets the specifications of 
and are maintained and used in accordance with ANSI S3.6-2004 
``Specifications for Audiometers.''
* * * * *
0
16. Section 240.123 is amended by revising paragraphs (a), (c) 
introductory text, (c)(4)(ii) and (vi), and (c)(5) introductory text, 
and adding paragraphs (e) and (f) to read as follows:


Sec.  240.123   Training.

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

[[Page 20510]]

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


Sec.  240.125  Knowledge testing.

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


Sec.  240.127  Criteria for examining skill performance.

    (a) Each railroad shall adopt and comply with a program which 
complies with the requirements of this section. When any person, 
including, but not limited to, each railroad, railroad officer, 
supervisor, and employee, violates any requirement of a program that 
complies with the requirements of this section, that person shall be 
considered to have violated the requirements of this section.
* * * * *
0
19. Section 240.129 is amended by revising paragraphs (a), (b), (c) 
introductory text, (c)(2), (d) introductory text, (e) introductory 
text, and (e)(1) and adding paragraph (h) to read as follows:


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

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


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

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


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

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


Sec.  240.209   Procedures for making the determination on knowledge.

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

[[Page 20511]]

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


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

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


Sec.  240.215   Retaining information supporting determinations.

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


Sec.  240.217   Time limitations for making determinations.

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


Sec.  240.219   Denial of certification.

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

[[Page 20512]]

Sec.  240.221   Identification of qualified persons.

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


Sec.  240.223   Criteria for the certificate.

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


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

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

Subpart D--Administration of the Certification Program

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


Sec.  240.301   Replacement of certificates.

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


Sec.  240.303   Operational monitoring requirements.

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


Sec.  240.305   Prohibited conduct.

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

[[Page 20513]]

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


Sec.  240.307   Revocation of certification.

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


Sec.  240.308   Multiple certifications.

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

[[Page 20514]]

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


Sec.  240.309   Railroad oversight responsibilities.

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


Sec.  240.401  Review board established.

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

[[Page 20515]]

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


Sec.  240.403  Petition requirements.

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


Sec.  240.405  Processing certification review petitions.

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


Sec.  240.407  Request for a hearing.

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


Sec.  240.409  Hearings.

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

[[Page 20516]]

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


Sec.  240.411  Appeals.

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

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

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

Submission by a Railroad

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

Organization of the Submission

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

Section 1 of the Submission: General Information and Elections

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

[[Page 20517]]

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

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

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

Section 3 of the Submission: Training Persons Previously Certified

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

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

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

[[Page 20518]]

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

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

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

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

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

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

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

FRA Review

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

[[Page 20519]]

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

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

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

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

Access to State Motor Vehicle Driving Record Data

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

The National Driver Register

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

Access to NDR Data

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

Requesting NHTSA To Perform the NDR Check

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

Requesting a State Agency To Perform the NDR Check

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

[[Page 20520]]

Actions When a Probable NDR Match Occurs

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

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

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

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

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

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


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