Qualification and Certification of Locomotive Engineers; Miscellaneous Revisions

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).

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.

1

Unless otherwise specified, all references to CFR sections and parts refer to title 49 of the CFR.

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

2011, FRA published a final conductor certification rule. 76 FR 69802 (Nov. 9, 2011) (codified at 49 CFR part 242).

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).

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 § 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 § 240.3 to clarify FRA's jurisdiction and conform to § 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, § 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 § 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 § 240.7). In § 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

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 § 242.5.

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).

New proposed paragraph (c) of this section addresses the issue of “flowback” and mirrors paragraph (c) of § 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 § 240.308, which limits flowback in certain situations. Therefore, as described in the section-by-section analysis for § 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 §§ 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 § 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 § 240.103, with FRA.

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 § 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 § 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 § 240.307 and denial of certification under § 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 § 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

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 § 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 § 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 § 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 § 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 § 240.107 can be precisely explained using the same terms FRA uses in describing the equipment safety standards required for remote control

locomotives in § 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 § 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 § 215.5) or a “passenger car” (as defined in § 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 § 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 § 229.5. FRA is proposing to include this definition in Part 240 so the proposed RCO class of service in § 240.107 can be precisely explained using the same terms FRA uses in describing the equipment safety standards required for an RCL in § 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 § 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 § 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

the prohibitions in §§ 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 § 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 § 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

§ 240.231. The proposed definition would clarify what “territorial qualifications” means in proposed revisions to §§ 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 § 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 § 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 § 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 § 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 § 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 § 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

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 § 229.15(a)(14) limits this equipment to a maximum speed of 15 mph. An individual certified as a “train service engineer” under § 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 § 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 § 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 § 242.111(g)(2). Similarly, the proposed changes to paragraphs (c)(1) and (2) would make the paragraphs the same as § 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,

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.”

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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 § 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 § 242.111(l) by adding: “For purposes of this paragraph and § 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 § 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 § 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 §§ 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 § 242.111. Proposed paragraph (a) requires railroads to adopt and comply with an engineer certification program meeting the requirements of § 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 § 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 § 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 § 242.111 provides that if a railroad certifies or recertifies an individual as a conductor for 60 days under § 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 § 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 § 242.111(c) through (f) in § 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 § 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 § 242.111, which provides that if a railroad identifies a prior motor vehicle

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 § 240.115 provides). Further, the same as paragraph (o) of § 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 § 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 § 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 § 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 § 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 § 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 § 242.403.

Existing paragraph (a) requires railroads' Part 240 programs to include “criteria and procedures for implementing” § 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 § 240.117. FRA intends this proposed revision to clarify the responsibility of railroads and individuals to comply with § 240.117. FRA proposes parallel changes in several other sections in subpart B, including paragraphs (a) of §§ 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.,

§§ 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 § 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 § 240.117(c)(3) similar to the related Part 242 provision (§ 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 § 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 § 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 § 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 § 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

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 § 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 § 242.115, which FRA believes is better organized and easier to understand than existing § 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 § 240.119(b)(2) consistent with the corresponding provision in § 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 §§ 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 § 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 §§ 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 § 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 § 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 § 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 § 242.117(c), (d), and (e) because similar requirements exist in § 240.207(b), (c), and (d). The proposed testing procedures and standards for the hearing acuity requirements, which mirror those in § 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 § 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 § 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 § 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 § 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 § 242.119 (Training). FRA also proposes to amend this section to be similar to Part 242 (§ 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 § 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

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 (§ 243.103(b)). When that is the case, the railroad is only required to supplement the certification training program with the updated OJT portion as a material modification as required in §§ 240.103(e) and 242.103(i). 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 § 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 § 243.101. The deadlines for implementing the modifications are governed by Part 243. Note that FRA amended the implementation deadlines for compliance with § 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 § 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 § 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 § 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 § 240.123(c)(4)(vi) discussed above, FRA is also proposing to amend § 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 § 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 § 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 § 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 § 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

§ 242.123(f). For example, a certified engineer may be on furlough, in military service, off with an extended illness, or working in another

capacity for the railroad. Existing § 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 § 242.123 not performing conductor service.

See

§ 242.123(b) and (f). Moreover, proposed § 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 § 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 §§ 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 § 240.205(a) consistent with existing § 240.203. Under existing § 240.203, a railroad may certify an individual as a student engineer after determining the person meets the hearing and vision acuity standards of § 240.121, but the railroad does not need to determine if a student engineer meets the eligibility requirements of §§ 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 § 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 § 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

§ 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

conform to Part 242 (

see

§ 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 § 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 § 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 § 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 § 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 § 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 § 240.7, which is consistent with the term as defined in § 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 § 240.403. As paragraph (c) to § 242.401 does, the proposed changes to § 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 § 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

locomotive engineer certification based on his or her failure to comply with § 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 § 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 § 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 § 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 § 242.205(d) and similar language is found in § 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 §§ 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 § 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 § 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 § 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 § 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 § 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 (§ 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 § 240.225 consistent with the structure of § 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 § 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

§§ 240.221(c) and (d), and 240.229(c)(1)(i)) and Part 242 (

see

§ 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.

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. § 242.301(a).

A RSAC Working Group member suggested FRA revise paragraph (f) of § 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 § 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, § 242.211. Specifically, FRA proposes dividing this section into two paragraphs. Proposed paragraph (a) would be the same as paragraph (a) of § 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 § 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 § 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 § 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 § 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 § 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 § 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 § 242.407.

8

8

The only difference between proposed paragraph (a) of § 240.307 and existing paragraph (a) of § 242.407 are the regulatory citations referenced for violations of (1) operating rules and practices and (2) alcohol or drug use. Paragraph (a) of § 240.307 refers to the relevant provisions of Part 240 (§ 240.117(e) and § 240.119(c)); paragraph (a) of § 242.407 refers to the relevant provisions of Part 242 (§ 242.403(e) and § 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 § 240.117(e) or § 240.119(c) of this chapter.” This proposed change would make paragraph (b)(1) of this section the same as paragraph (b)(1) of § 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 § 240.307 the same as paragraph (b)(4) of 242.407.

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 § 240.307 the same as paragraphs (c)(2) and (b)(5) of §§ 242.407 and FRA intends these amendments to avoid conflicting with the defined the term “qualified” (discussed in the section-by-section analysis for § 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 § 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 § 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 § 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 § 240.117 or § 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 §§ 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 § 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

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 § 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 § 242.407.

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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 § 240.117(e)(1) through (5) if the violation was of a “minimal nature and had no direct or potential effect on rail safety.”

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The only difference between proposed paragraph (i) of § 240.307 and paragraph (i) of § 242.407 are the regulatory citations referenced. Paragraph (i) of § 240.307 refers to violations of § 240.117(e)(1) through (5); paragraph (i) of § 242.407 refers to § 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 § 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 § 242.213 but would not adopt § 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 §§ 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 § 240.308(a) and (b). These paragraphs mirror the requirements in paragraphs (b) and (c) of § 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 § 240.308(c) and (d). These paragraphs mirror the requirements in paragraphs (d) and (e) of § 242.213.

Paragraphs (e) through (m) of proposed § 240.308 correspond to paragraphs (f) and (h) through (o), respectively, of existing § 242.213. A detailed analysis of these provisions is found in the section-by-section analysis of § 242.213 in the conductor certification final rule. 76 FR 69825.

Section 240.309 Railroad Oversight Responsibilities

Existing § 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 § 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 § 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 § 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 § 242.215 or this section). As proposed and consistent with § 242.215(f), a railroad's determination of whether to report the instance of poor safety conduct under Part 240 or Part 242 must

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 § 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 § 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 §§ 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 § 240.407 and § 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 § 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 § 240.401 the same as paragraph (a) of § 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

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 § 240.401 would make the section the same as the corresponding section in Part 242, § 242.501.

Section 240.403 Petition Requirements

Existing § 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 (§ 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 (§ 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 (§ 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

§ 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 § 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, § 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 § 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 § 242.505(a).

As discussed above in the section-by-section analysis of proposed § 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

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, § 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

§ 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 § 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 § 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

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 § 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 § 242.505(l). Although existing § 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 § 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

§ 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 t

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