# Qualification and Certification of Locomotive Engineers; Miscellaneous Revisions > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/fr%3A2020-27209 ## Record - **Collection:** Federal Register - **Document type:** Rule - **Published:** December 15, 2020 - **Citation:** 85 FR 81290 ## Text DEPARTMENT OF TRANSPORTATION Federal Railroad Administration 49 CFR Parts 219, 240 and 242 [Docket No. FRA-2018-0053, Notice No. 2] RIN 2130-AC40 Qualification and Certification of Locomotive Engineers; Miscellaneous Revisions AGENCY: Federal Railroad Administration (FRA), Department of Transportation (DOT). ACTION: Final rule; technical amendment. SUMMARY: FRA is revising 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 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. To ensure consistency throughout its regulations, FRA is also making conforming amendments to its regulations governing the control of alcohol and drug use, and the qualification and certification of conductors. The changes would reduce regulatory burdens on the railroad industry while maintaining the existing level of safety. DATES: This regulation is effective January 14, 2021. ADDRESSES: For access to the docket to read background documents or comments received, go to http://www.regulations.gov at any time. FOR FURTHER INFORMATION CONTACT: Christian Holt, Staff Director-Operating Practices Division, U.S. Department of Transportation, Federal Railroad Administration, 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, 1200 New Jersey Avenue SE, Washington, DC 20590 (telephone: 202-493-6038). SUPPLEMENTARY INFORMATION: Table of Contents for Supplementary Information I. Executive Summary II. Discussion of General Comments and Conclusions A. Remote Control Operators and Operations B. Defining Main Track C. Newly Hired Employee D. Preventing Public Disclosure of Confidential Information E. General Docketing and Service Concerns F. Issues Beyond the Scope of This Rulemaking G. Minor Revisions Identified H. Rejecting the Addition of Implementation Dates III. Section-by-Section Analysis 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; Regulatory Flexibility Certification C. Paperwork Reduction Act D. Federalism Implications E. International Trade Impact Assessment F. Environmental Impact G. Executive Order 12898 (Environmental Justice) H. Unfunded Mandates Reform Act of 1995 I. Energy Impact I. Executive Summary On May 9, 2019, FRA issued a notice of proposed rulemaking (NPRM) to amend title 49 Code of Federal Regulations (CFR) part 240, Qualification and Certification of Locomotive Engineers (part 240). 1 In response to that NPRM, FRA received three written comments. 1 84 FR 20472 (May 9, 2019). This final rule responds to those comments and amends part 240 by: Making part 240 more consistent with the language in 49 CFR part 242, Qualification and Certification of Conductors (part 242); creating two provisions under which railroads may issue temporary locomotive engineer certifications; merging FRA's locomotive engineer and conductor review boards; adopting aspects of part 242 for locomotive engineer certification; providing labor representatives with the ability to provide input on a railroad's part 240 program; and allowing for and encouraging the use of electronic document submission of a railroad's part 240 program. This final rule also makes technical amendments to part 242 to: (1) Make the requirement for calibration of audiometers used during hearing tests for conductors the same as the requirement in part 240 for locomotive engineers; and (2) conform the definition of “main track” in part 242 to the definition of “main track” in part 240. Additionally, this final rule makes conforming amendments to title 49 CFR part 219, Control of Alcohol and Drug Use (part 219) to update two cross-references to part 240. Updating these references is necessary to ensure consistency between part 219 and part 240, as amended. The final rule will create new costs. First, each locomotive engineer certification manager will need to review the amendments made to part 240 to ensure compliance is maintained. Second, amendments to part 240 will require each railroad to provide a copy of its part 240 plan to the president of each labor organization whenever the railroad files a submission, resubmission, or makes a material modification to its plan. Third, a railroad will need to maintain service records for certified locomotive engineers who are not performing service that requires locomotive engineer certification. For the 20-year period of analysis, the cost of the final rule will be $233,779 (undiscounted), $171,764 (PV 7%), and $200,775 (PV 3%). The final rule will also create cost savings. First, adding clarity in part 240 and conforming language in part 240 to part 242 will reduce stakeholder burden related to review and compliance with part 240. Second, it will reduce the burden on a railroad when providing another railroad with information about a former employee's prior service records. Third, it will update the program submission process to allow for electronic document submission, which will reduce stakeholder paperwork and submission costs related to part 240 program submissions and locomotive engineer certification petitions. Fourth, it will remove the requirement for railroads to obtain a waiver from the annual testing requirements for certified locomotive engineers who are not performing service that requires certification. For the 20-year period of analysis, the cost savings of the final rule will be $12.3 million (undiscounted), $6.9 million (PV 7%), and $9.4 million (PV 3%). As shown in Table ES.1, the regulatory evaluation quantifies the economic impact of the final rule in terms of cost savings and new costs accruing to stakeholders. For the 20-year period of analysis, the final rule will result in a net cost savings of $12.0 million (undiscounted), $6.8 million (PV 7%), and $9.2 million (PV 3%). This final rule is an Executive Order (E.O.) 13771 deregulatory action. Details on the estimated costs of this final rule can be found in the rule's economic analysis. Table ES.1—Final Rule: New Costs, Cost Savings, and Net Cost Savings; 20-Year Period Cost of proposed rule Undiscounted Present value 7% Annualized 7% Present value 3% Annualized 3% New Costs: Review amendments $118,383 $110,638 $10,443 $114,935 $7,725 Provide copy of part 240 plan to labor organization 2,263 1,199 113 1,683 5,657 Maintain service records 113,133 59,927 5,657 84,157 5,657 Total new costs 233,779 171,764 16,213 200,775 19,039 Cost Savings Conforming part 240 to part 242 11,838,340 6,709,732 633,351 9,070,417 609,675 Former employee paperwork 113,133 59,927 5,657 84,157 5,657 Petition submission process 109,620 58,066 5,481 81,543 5,481 Plan submission process 6,800 3,602 340 5,058 340 Government cost savings 92,448 48,970 4,622 60,933 4,096 Removing waiver requirement 113,133 59,927 5,657 84,157 5,657 Total cost savings 12,273,475 6,940,223 655,108 9,386,266 630,904 Net Cost Savings 12,039,696 6,768,459 638,895 9,185,491 611,866 The final rule will create benefits. First, the final rule will amend the part 240 program submission process to require railroads to solicit labor input, providing for fully informed decisions by railroads. Second, it affords railroads additional time and flexibility to comply with some regulatory requirements. Third, it creates certain provisions that allow for temporary locomotive engineer certificates. Fourth, electronic filing will make information more accessible to interested stakeholders and the public. Because FRA lacks sufficient information related to these four benefits, this analysis could not accurately quantify these benefits. Therefore, the rule's economic analysis qualitatively explains benefits. The final rule will also reduce Governmental administrative costs, including mailing, filing, and storing costs related to amendments to part 240, by allowing the Government and stakeholders to transmit and store documents electronically. II. Discussion of General Comments and Conclusions FRA received three written comments in response to the NPRM. The Association of American Railroads and the American Short Line and Regional Railroad Association submitted one set of joint comments (collectively referred to as “Railroad Commenters”). A second set of joint comments was submitted by a group of seven labor organizations (collectively referred to as “Labor Commenters”). 2 The American Association of Nurse Practitioners submitted the third comment. 2 The labor organizations that submitted the Labor Comments are: The American Train Dispatchers Association; the Brotherhood of Locomotive Engineers and Trainmen; the Brotherhood of Maintenance of Way Employes Division; the Brotherhood of Railroad Signalmen; the Brotherhood Railway Carmen Division; the International Association of Sheet Metal, Air, Rail and Transportation Workers—Transportation Division; and the National Conference of Firemen & Oilers District, Local 32BJ/SEIU. Some of the specific comments are discussed in the Section-by-Section Analysis or in the Regulatory Impact and Notices portion of this final rule directly with the provisions and statements to which they specifically relate. Other comments apply more generally to the final rule as a whole, and FRA is discussing them here. Please note that the order in which the comments are discussed in this document, whether by issue or by commenter, is not intended to reflect the significance of the comment raised or the standing of the commenter. A. Remote Control Operators and Operations In the NPRM, FRA proposed several changes to part 240 to clarify the locomotive engineer certification requirements for remote control operators, including defining “remote control operator (RCO),” “operator control unit (OCU),” and “remote control locomotive (RCL).” FRA received two comments that opposed FRA's changes related to certification of RCOs. Labor Commenters asserted that FRA should not address RCO issues in this rulemaking because the proposed changes would not be conforming changes to part 242 and would thus be beyond the scope of this rulemaking. Labor Commenters also recommended FRA address remote control safety and operational issues to a much greater degree than proposed. Railroad Commenters asserted that the RCO proposed changes are unnecessary, create confusion, and potentially create new administrative burdens. FRA's Response FRA was persuaded by the comments that the proposed changes regarding RCOs were not strictly conforming changes and that the proposed changes had the potential to create unforeseen problems. Considering that the regulated community understands how to certify RCOs under the current regulatory requirements, and the intent of the proposed changes was to “catch up [with] industry practice” in implementing the existing regulations, 3 FRA is not adopting the proposed clarifying requirements regarding remote control operations in this final rule. 3 84 FR 20479. B. Defining Main Track In the NPRM, FRA proposed to revise part 240's definition of “main track” to be the same as the definition in part 242 by revising the existing definition to include a reference to positive train control (PTC) as a method of operation that would make a track a “main track.” Railroad Commenters noted that they opposed making this conforming change because PTC is not a method of operation. FRA's Response In considering these comments, FRA recognizes that it did not explain the inclusion of PTC as a method of operation in the part 242 rulemaking notices. Upon further review, FRA agrees with the comment that PTC is not a method of operation but rather is a technology that helps enforce compliance with a railroad's method(s) governing train operations. For this reason, the final rule does not make any changes to the definition of main track in part 240. C. Newly Hired Employee In the NPRM, FRA proposed to delete the definition for the term “newly hired employee” because the term is not used in part 240. Labor Commenters noted that although the term “newly hired employee” is not used in part 240, the terms “newly hired engineer” and “newly hired conductor” are used in parts 240 and 242, respectively. Labor Commenters explain that these existing terms “establish the benchmark by which a railroad may rely upon qualification determinations made by a prior railroad employer of a candidate for certification.” Accordingly, Labor Commenters suggest that instead of deleting the existing definition of “newly hired employee,” FRA change the term to “newly hired” and integrate it into reporting and accident analysis requirements in a future rulemaking. FRA's Response FRA reviewed the regulatory history to determine the origins of the definition of “newly hired employee” and whether deleting the term as proposed would be the correct approach. FRA notes that the term is not used or defined in part 242. FRA found that its original 1989 proposal for part 240 contained a section titled “Content and duration of student training programs.” 4 As proposed in the 1989 NPRM, § 240.63 contained a requirement for training applicable only to “newly hired employees.” 5 However, in the final rule implementing the 1989 NPRM, FRA explained that a premise of FRA's original proposal was that every engineer would be trained, tested, and evaluated using the same criteria so that the regulatory requirements would resemble a motor vehicle licensing scheme employed by State governments for issuance of commercial truck driver licenses. 6 The final rule implementing this initial proposal, however, took a more individualized, railroad-centric approach that allowed each railroad to formulate a program for setting qualification standards and submitting that program to FRA for approval. As such, the final rule did not adopt proposed § 240.63 or any similar requirement. FRA, however, erroneously adopted the unnecessary definition of “newly hired employee” into the 1991 final rule implementing the original 1989 proposal. Thus, the definition is a legacy term left over from the original 1989 NPRM and is not applicable to part 240 as it currently exists. 4 54 FR 50890 (Dec. 11, 1989) ( see proposed 49 CFR 240.63). 5 54 FR at 50930. 6 56 FR 28228, 28230 (June 19, 1991). FRA recognizes that, as Labor Commenters note, existing § 240.225(a) refers to a “newly hired engineer” and existing § 242.215 refers to a “newly hired conductor.” Those undefined terms, however, are not equivalent to the term “newly hired employee” ( e.g., a newly hired engineer must be a previously certified locomotive engineer, while a newly hired employee could be an individual who has no prior railroad experience or has less than one year of railroad transportation service). Accordingly, in this final rule, FRA is deleting the existing definition of “newly hired employee” from part 240 as proposed. D. Preventing Public Disclosure of Confidential Information In the NPRM, FRA proposed to have parties submit part 240 petitions for FRA review of railroads' certification decisions (§ 240.403) through DOT's public docket website at www.regulations.gov. Labor Commenters ask that FRA revise its proposal to include procedures for a party to request that certain information filed in these proceedings be protected from public disclosure ( e.g., personally identifiable information and medical records). Labor Commenters note that locomotive engineers typically file petitions under § 240.403 on their own behalf or petitions are filed by local union representatives, not an attorney. Labor Commenters cite to the Federal Rules of Civil Procedure as an example of how this information could be protected. FRA's Response Although FRA recognizes the Labor Commenters' concern about the importance of protecting personal information from public disclosure, FRA notes that the Agency's regulations already include procedures for any person submitting documents or information to FRA to request confidential treatment of that information. 7 Accordingly, FRA finds it is unnecessary to include any additional procedures in part 240. FRA notes that the existing filing procedures have been utilized in both parts 240 and 242 for years, and FRA is unaware of any concern raised that it failed to provide confidential treatment of information upon request in any such filing under part 240 or 242. The changes FRA proposed to § 240.403(b)(2) and that are being adopted in this final rule are limited to moving the Agency's docket management procedures from the old-fashioned, paper dockets kept at FRA's headquarters to modern, electronic dockets that are web-based. 7 49 CFR 209.11. FRA's changes to § 240.403 will not only align it with the corresponding procedures in part 242 (§ 242.505) but also with the administrative hearing filing procedures in both parts 240 and 242 (§§ 240.407 and 242.507). Those filing procedures have been in place for many years and FRA believes the procedures are sufficient to enable filers to request protection of personally identifiable information, including medical records, with minimal burden. In proceedings under § 240.403, FRA uses the Federal Government's on-line docket system at www.regulations.gov. That docket system maintains a privacy and security notice on its website that warns users that the material and personally identifiable information filed in a document may be publicly disclosed in a docket or on the internet. Under the existing procedures of § 240.403 and with FRA's amendments to that section, a party must decide for itself if there is personally identifiable information or other types of information that should be kept confidential, and it is that party's duty to request confidentiality. FRA notes that social security numbers or employee identification numbers are not generally necessary in any filings under § 240.403. Accordingly, FRA encourages parties to redact those numbers from any documents submitted to a docket. As noted, FRA's procedures for requesting confidential treatment of any document or portion of any document are in 49 CFR 209.11. Parties should follow the procedures specified in that regulation when requesting that FRA treat information or documents submitted as confidential information. In general, when requesting confidential treatment of information in a filing, a party should include in its filing a description of each item redacted or not disclosed and the rationale for each non-disclosure ( e.g., contains medical information). FRA will then contact the party to obtain any information indicated as redacted if FRA believes it is relevant to issuance of a decision. Questions regarding confidential treatment can be directed to FRA's Office of the Chief Counsel. E. General Docketing and Service Concerns Labor Commenters raised several general docketing and service concerns. For instance, the commenters indicate that some labor representatives and members have experienced problems associated with uploading large files or multiple files to Regulations.gov . Similarly, the commenters state that some labor representatives have experienced difficulty emailing large files to parties (including FRA) as an alternative form of service from mailing copies of the documents. The labor organizations also seek FRA's answer to the question of how their members and labor representatives are to determine that service/delivery of emails is completed. FRA's Response Just like petitions submitted in conductor certification cases, petitions to the OCRB for the review of a railroad's decision to deny, recertify, or revoke a locomotive engineer's certification may be hand delivered or mailed, and may additionally be submitted by fax or electronically, consistent with the standards and requirements established by the Federal Docket Management System and posted on the Regulations.gov website. The process for filing a petition to the OCRB requires filing in a docket that does not yet exist as the petition itself serves as a request to open a new non-rulemaking docket. To open a new non-rulemaking docket, a filer first electronically submits a document to a pre-existing docket called a “shell docket.” This is accomplished by going to Regulations.gov and entering FRA's shell docket number “FRA-2007-0003” in the search box. This will open a window for the shell docket and allow a filer to click on “Comment Now.” The filer will then enter the required information and upload one or more files. While entering something in the comment box is required, FRA recommends that filers only use the comments box to list the documents they are filing, as the documents they upload will contain their argument(s) and supporting documentation. After entering the information and uploading any documents, there is an opportunity to preview the information submitted and to receive a receipt. Whether submitting a petition by mail, electronically, or by other method, FRA recommends that the party retain a receipt or other proof of the petition's filing date. Further, once a docket is created for a petition, FRA recommends the filing party return to Regulations.gov and sign up for email alerts to keep updated on any changes or additions that occur in the docket folder. Typically, the filing party will know that FRA received the submission when FRA sends an acknowledgment letter notifying the party of the petition's assigned docket number. If the petition is deficient because it does not meet the minimum requirements or arrangements need to be made to handle confidential information, FRA will contact the filing party and provide further instructions before issuing an acknowledgment letter with the docket number. Labor Commenters expressed concern that some labor representatives and members have experienced problems uploading large files or multiple files to Regulations.gov . FRA is aware that Regulations.gov has imposed a size limit on uploaded files. Regulations.gov has a “help” tab, and the user can choose “FAQs” in the drop-down menu. One of the FAQs asks “how many files can I upload to the comment form” and the answer provided is “up to 20 files, but each file cannot exceed 10MB.” The answer also clarifies that valid file types include: .bmp, .docx, .gif, .jpeg, .jpg, .pdf, .png, .pptx, .rtf, .sgml, .tif, .tiff, .txt, .wpd, .xlsx, and .xml. Parties have several options for overcoming this size limitation. For example, in some cases it is possible for a filer to split the files and then upload them onto Regulations.gov . Another option would be to file as many documents as possible through uploading at FRA's shell docket on Regulations.gov , and leave a comment in the comment box describing the large files that cannot be uploaded and how the filing party intends to submit those files. For example, a comment could be entered stating that a large video file will be provided to FRA on a memory storage device sent through the mail, such as a USB memory stick. Comments can also request FRA contact the commenter to discuss other arrangements, such as emailing the file or providing FRA with a way to download the document from a cloud-based file hosting service such as Dropbox. Although FRA can currently receive CD-ROM and DVD-ROM disks, the readers for these disks are becoming antiquated and therefore more difficult for FRA to access reliably. Documents that are not in an acceptable format, including files on proprietary software that FRA does not license to use, will need conversion to an acceptable format or other arrangements will be required that will allow FRA to review the files. If a file cannot be placed in a docket or viewed by FRA, the file cannot be made part of the administrative record, and therefore cannot be considered by FRA in reviewing the petition. Similarly, Labor Commenters state that some labor representatives have experienced difficulty emailing large files to parties or FRA as an alternative form of service from mailing copies of the documents. Serving documents under FRA's administrative procedures should be no different than serving documents on parties in Federal court litigation. That is why the definition of the term “serve or service” in part 240 states that the term has the same meaning given in Rule 5 of the Federal Rules of Civil Procedure. Service of documents on another party is the responsibility of the party performing service. If files are too large to email, the party performing service must make arrangements to perform the service by mail or other mutually agreed upon method with the party to be served. A party performing service by email has a duty to choose an option for service where it receives a receipt automatically or it can ask the receiving party to reply that receipt was completed satisfactorily. Without proof of completeness, service cannot be proven, and is thus presumably incomplete. Any questions regarding files, filing, and service should be directed to FRA's Office of the Chief Counsel. F. Issues Beyond the Scope of This Rulemaking In the NPRM, FRA explained 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. 8 In response to the NPRM, FRA received several comments which FRA has determined go beyond the scope of this rulemaking and are best saved for such a separate, future rulemaking. 8 84 FR at 20473. The American Association of Nurse Practitioners (AANP) commented that the definition of medical examiners should include nurse practitioners. AANP commented that nurse practitioners are authorized to become certified medical examiners under the Federal Motor Carrier Safety Administration's (FMCSA) regulations and the National Transportation Safety Board (NTSB) includes nurse practitioners in the category of medical professionals who should be eligible for training and certification as transportation medical examiners for medical fitness for duty tests. FRA finds that the issue of whether nurse practitioners should be included in the definition of medical examiners is best saved for a separate, future rulemaking, as the issue is complex, and FRA expects additional commenters would have submitted comments if FRA had provided notice of this issue in the NPRM. In addition, FRA notes that if a nurse practitioner is a licensed or certified technician, the nurse practitioner is permitted to perform the vision and hearing acuity examinations required in parts 240 and 242. However, both parts 240 and 242 require a medical examiner, who is defined as a person licensed as a doctor of medicine or doctor of osteopathy, to conduct any medical evaluation to determine if the locomotive engineer or conductor candidate can operate safely in the event the candidate fails the vision or hearing acuity examination. Although AANP's comment indicates that nurse practitioners can be trained and certified to perform those type of medical evaluations, beyond the standard testing, AANP did not address the fact that FMCSA has medical examiner certification requirements in its regulations, while FRA does not. 9 Accordingly, this issue is not addressed in this final rule. 9 49 CFR 390.103 through 390.115. Railroad Commenters raised several issues that are beyond the scope of this rulemaking and, as such, FRA is not addressing them in this final rule. For instance, Railroad Commenters advocate that FRA should amend its approach regarding requirements for joint operations territory, even though FRA explained in the NPRM that it was not proposing any changes to the requirements in § 240.229 because doing so would not conform part 240 to part 242. Labor Commenters also raised several issues that are best saved for a separate, future rulemaking and thus FRA is not addressing them in this final rule. For instance, Labor Commenters advocated for amending § 240.129, so that instead of requiring that a certified engineer be given an operational monitoring observation and unannounced compliance test within 30 days of return to service following a period of not performing a service that requires engineer certification, the certified engineer be provided 30 working trips or tours of duty in engineer service following a return before such testing. Labor Commenters also suggested that FRA amend its denial and revocation procedures, §§ 240.219(c) and 240.307(c)(11), to require each railroad to provide more specificity in its decision as to the citation allegedly violated, and notify the person in writing of the right to request FRA review and the applicable time limits. Since these proposals go beyond the scope of this rulemaking, which FRA intended merely to conform part 240 to part 242 and clarify part 240's existing requirements, FRA declines to address them in this final rule. Labor Commenters also included a history and analysis of international legal issues that go beyond the scope of this rulemaking. G. Minor Revisions Identified With this final rule, FRA is making many minor revisions that were proposed in the NPRM to fix grammatical errors, typographical errors, reference errors, and superfluous language and citations. These revisions include the following sections: 240.11(d); 240.207(b); 240.209(b) and (c); 240.211(b); 240.215(e); 240.217(a) and (d); 240.225(b); 240.305(b)(2); 240.307(g) and (i); 240.309(b)(4) and (e)(1), (2), (8), and (9); and appendix D. FRA identified these amendments as proposed in the NPRM and received no comments in response. Accordingly, FRA is adopting the proposed revisions without further discussion in this final rule. H. Rejecting the Addition of Implementation Dates In the NPRM, FRA raised the issue of whether the final rule should include any implementation dates beyond the final rule's effective date. For example, FRA asked for comments considering whether the NPRM adequately addressed the time necessary for each railroad to incorporate into its part 240 program the changes required in this rulemaking. Labor Commenters suggested that FRA use a two-tiered implementation approach that would provide Class I, intercity passenger, and commuter railroads with six months from the date of publication to amend part 240 programs and provide all other railroads subject to part 240 one year. Railroad Commenters did not comment on this issue. After considering the comments and the revisions to part 240 being adopted in this final rule, FRA has concluded that the revisions will not, by themselves, require material modifications to a railroad's part 240 certification program. Thus, no railroad will be obligated to file its complete part 240 program with FRA after only making any necessary modifications resulting from this final rule. Further, as the Railroad Commenters did not request an implementation schedule, and the regulatory revisions will not result in material modifications to a railroad's program, it is unnecessary to create an implementation schedule. Similarly, in the NPRM, FRA proposed amending § 240.403 to shorten the time limit for filing a denial of certification petition with the OCRB from 180 days to 120 days, and asked whether FRA should delay implementation of that shortened time limit. FRA did not receive any comments in response to this question. Accordingly, FRA has concluded that delaying implementation of that shortened time period is not necessary. Consequently, if a railroad's denial decision is on or after the effective date of this final rule, any petition in response to that denial decision must be filed with FRA within 120 days. III. Section-by-Section Analysis This section responds to public comments and identifies any changes made from the provisions as proposed in the NPRM. Provisions that received no comment, and are otherwise being finalized as proposed, are not discussed again here. 10 10 See 84 FR at 20473-95. Part 219 While drafting the final rule, FRA identified two cross-references in part 219 that required updating to reflect the part 240 amendments. As discussed below, the final rule revises these cross-references in §§ 219.25 and 219.1003 to ensure they conform with part 240, as amended. Although the NPRM did not specifically propose these revisions, they are both non-substantive in nature and within the scope of the rulemaking because they merely conform part 219 with part 240 as amended by the final rule. Section 219.25 Previous Employer Drug and Alcohol Checks Paragraph (b) of this section contains a cross-reference to former § 240.119(c), which this final rule is redesignating as § 240.119(e). FRA is therefore revising paragraph (b) to update the cross-reference from § 240.119(c) to § 240.119(e). This section and the revised cross-reference refer to the requirement for a railroad that is considering initially certifying or recertifying a locomotive engineer to review the person's records from the previous 60 consecutive months and consider any Federal alcohol and drug violations. Section 219.1003 Referral Program Conditions Paragraph (j) of this section contains a cross-reference to former § 240.119(e), which this final rule is redesignating as § 240.119(g). FRA is therefore revising paragraph (j) to update the cross-reference from § 240.119(e) to § 240.119(g). This section and the revised cross-reference refer to the various referral programs allowed in part 219 and explains when confidentiality is waived. Part 240 Section 240.7 Definitions FRA is amending this section by: (1) Adding definitions for “conductor,” “drug and alcohol counselor,” “ineligible or ineligibility,” “on-the-job training (OJT),” “physical characteristics,” “plant railroad,” “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,” “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 amendments will make the definitions in part 240 consistent with the definitions in part 242 and, rather than republish the analysis provided for those definitions, FRA references the analysis as proposed in the NPRM. 11 11 See 84 FR at 20474-78. Instructor Engineer In the NPRM, FRA proposed to revise the definition of “instructor engineer” to make it as similar as possible to the definition of “qualified instructor” in part 242, by: (1) Establishing a role for employee representative participation; and (2) establishing methods for identifying instructors through railroad and employee representative coordination, as well as by the railroad unilaterally. Although FRA received comments on the proposed changes to this definition, FRA is adopting the revised definition as proposed. Thus, the analysis provided in the NPRM is applicable. The following is a summary of the comments received and FRA's responses. Railroad Commenters reiterated concerns raised by at least one Railroad Safety Advisory Committee (RSAC) Conductor Certification Working Group (RSAC Working Group or Working Group) 12 member that FRA addressed in the NPRM. 13 Railroad Commenters objected to the proposed requirement that, for each railroad that has designated employee representation, if the railroad seeks to designate a person as an instructor engineer when the designated employee representative declines to provide concurrence, the railroad would be required to select only a person who has a minimum of 12 months of service working in the class of service for which the person is designated to instruct. FRA disagrees with the Railroad Commenters that FRA did not provide a basis for justifying this proposed requirement. FRA's view is based on the understanding that 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 OJT training. 14 FRA views instructor engineers as mentors that would not be directly testing or making certification decisions. When the conductor certification rule was first proposed in 2010, FRA explained that the purpose of the additional requirements was to allow employees, through their representatives, to have input in the selection of instructors who might be viewed as inexperienced. FRA's position was that if the railroad selected a person to instruct, but the person had less than 12 months of service working in the class of service, it is fair to presume the person might lack the experience necessary to instruct. 15 The conductor rule does not absolutely prohibit the railroad from selecting a person that lacks the 12-month experience requirement, but instead requires the railroad to work with the employees' representative(s) in the instructor selection process, unless the employees lack such representation. Considering the mentor relationship, if a location lacks experienced engineers and the railroad's employees are represented, the designated employee representative would have an interest in selecting those engineers who would be in the best position to help fellow colleagues get the proper instruction needed to obtain or retain certification. 12 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 and labor organizations. For more information regarding the RSAC process and the conduct of the Working Group, see 76 FR 69802, 69802-69804 (Nov. 9, 2011). 13 84 FR 20472, 20476 (May 9, 2019). 14 84 FR at 20475. 15 75 FR at 69170 (Nov. 10, 2010). Also in response to AAR's and ASLRRA's comment, FRA believes it is helpful to recall that, in the conductor rule, the minimum of 12-months' service working as a train service employee may be at any time during that person's career. 16 Likewise, in the engineer context, FRA reads the 12-month experience requirement in the class of service for which the person will instruct to pertain also to the collective number of months over the person's career, and not just the previous 12 months. 16 76 FR at 69806 (Nov. 9, 2011). Medical Examiner FRA is revising the definition of “medical examiner” to be the same as the definition of “medical examiner” in part 242 by removing the portion of the definition stating that the medical examiner owes “a duty to the railroad.” Instead, consistent with part 242, FRA is amending the definition to state “the medical examiner owes a duty to make an honest and fully informed evaluation of the condition of an employee.” Newly Hired Employee As discussed in Section II.C, above, FRA is deleting the definition of “newly hired employee” because that term is not used (or necessary) in part 240. Qualified As proposed in the NPRM, FRA is revising the definition of “qualified” to be the same as the definition of “qualified” in part 242. Under the proposed definition, a qualified person is a person who has successfully completed all instruction, training, and examination programs required by the employer and the applicable parts of this chapter, and therefore may reasonably be expected to be proficient on all safety-related tasks the person is assigned to perform. The existing definition in part 240 focuses on an individual's knowledge, whereas the definition as proposed in the NPRM and adopted in this final rule focuses not only on the individual's knowledge through completion of training plan requirements 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 perform the task proficiently. 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 only classroom training 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 perform the tasks on the brake test proficiently. Without both instruction and hands-on practice, the person could not be expected to be qualified to perform brake tests. Labor Commenters questioned whether FRA's proposed definition of “qualified” would have a negative impact by lowering the standard for what it means to be qualified. Labor Commenters suggested that FRA's proposed definition is subject to multiple interpretations, including one that would mean the railroad is no longer required to provide instruction, training, and examination so that the candidate for qualification has a foundation from which qualification—actual knowledge and proficiency—can be demonstrated. Labor Commenters proposed an alternative definition for “qualified,” asking that FRA consider it to mean “a person who has demonstrated actual knowledge and proficiency of the subject on which the person is qualified by successfully completing all instruction, training and examination programs required by the railroad and the applicable parts of this chapter.” FRA concluded that Labor Commenters' alternative definition of “qualified” would stray from this rule's purpose of conforming part 240 with part 242, and FRA does not view the conforming definition as lowering the standard of the meaning of “qualification.” Although FRA's change to the definition focuses on proficiency in safety-related tasks over knowledge, the analysis in determining whether someone is qualified is the same. If the person passes all required training and examination, then the presumption is the person has the knowledge necessary to complete any necessary tasks proficiently. If a person is asked to perform a task that exceeds the training provided, the person could not be expected to have the required knowledge and the person would therefore not be qualified to perform that task safely. For these reasons, FRA is adopting the proposed definition without change from the NPRM. Section 240.103 Approval of Design of Individual Railroad Programs by FRA FRA is making three changes 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. First, FRA is revising paragraph (a) to clarify that the primary method for a railroad to submit its certification program is by email to FRAOPCERTPROG@dot.gov. Previously, FRA would wait until a railroad contacted FRA and asked to submit its program electronically. It is more efficient to publish this FRA email address and encourage electronic filing. FRA expects that there are few railroads that do not have sufficient internet access to submit a certification program by email, but is leaving the mailing option open for those smaller entities whose internet service may still be unreliable. The revisions were not proposed in the NPRM, but they address an issue of agency policy or procedure previously addressed in appendix B to part 240. FRA expects that by moving this information from an appendix to this section, railroads will find the information more easily and will spend less time figuring out the submission process. Second, FRA is revising paragraphs (b) and (c) of this section to require railroads to provide a copy of their program submissions, resubmissions, and material modifications to the president of each labor organization that represents the railroad's certified locomotive engineers. The revision will also 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 final rule. The final revisions to paragraphs (b) and (c) of this section are different from the proposed rule. For instance, in the NPRM, FRA used the term “serve or service,” which is defined in this part and refers to the legal issue of service of process during adjudication. Because the exchange of certification programs and comments to those certification programs are not adjudicatory matters, FRA is revising these requirements to reflect that each railroad and labor organization president must provide, not serve, its documents to each other, and affirm to FRA that it has done so, without the need to abide by strict legal rules for service of process. FRA is not specifying the methods that a railroad or president of a labor organization must use to provide documents to the other party, as FRA expects each party to use those methods it uses in the normal course of business with each other. Also, FRA is adding an email address to make it easier for parties to submit programs or comments to programs. Further, although the NPRM proposed that each railroad affirm that it provided a copy of its program to the president of each labor organization that represents the railroad's employees subject to this part, the labor organization presidents would have been required to certify that they sent their comments to the railroad; thus, for consistency, FRA is requiring that both parties must affirm that they provided the other party with a copy of the documents they submit to FRA under this requirement. Finally, FRA is making technical amendments to § 242.103 so that the locomotive engineer and conductor certification rules use the same language. Third, in paragraph (h) (which revises former paragraph (e) and is the same as paragraph (i) of § 242.103), FRA is requiring a railroad intending to make material modifications to 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 prior requirement to do so 30 days in advance). This revision will allow time for the labor organizations to comment on the proposed modification(s) under paragraph (c) of this section and for FRA to consider any comments from the relevant labor organizations. In response to the proposed revisions to this section, Labor Commenters requested that FRA amend the final rule to clarify that a representative labor organization has the right to comment on the entirety of a railroad's program—even when a particular filing is a resubmission or a material modification—and that such comments will be considered by FRA. FRA is declining to amend the requirement to make this clarification as doing so would not conform the requirement to the parallel requirement in part 242. However, despite the lack of an explicit option to comment on the entirety of a railroad's program, FRA invites any person, including any labor organization, to inform FRA's Chief Safety Officer of any safety concern regarding a railroad's certification program at any time. Section 240.107 Types of Service The only change to this section is to the heading. The section heading is changed from “Criteria for designation of classes of service,” to the same section heading in its part 242 counterpart. FRA is not making several other changes that were proposed to this section because, as explained in the discussion of specific comments and conclusions, above, FRA is not adding additional types of service that identify remote control operators. See Section II.A. Section 240.111 Individual's Duty To Furnish Data on Prior Safety Conduct as Motor Vehicle Operator FRA is amending several requirements in § 240.111 to clarify that, for purposes of motor vehicle driving record checks and the reporting of certain motor vehicle incidents, the requirements apply equally to a person with a foreign-issued driver license as to a person with a U.S.-issued driver license. The final rule differs from the proposed version as the proposal contained an incorrect reference in § 240.111(h) to § 240.115(b)(1) and (2) when the reference should have read § 240.115(h)(1) and (2). No comments were received recommending specific changes to this section and the final rule is otherwise identical to the proposed rule; thus, the analysis provided in the NPRM is applicable. 17 17 See 84 FR at 20479-80. 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 is revising this section in its entirety to be consistent with paragraphs (a) through (f), and (n) and (o) of § 242.111. The final rule is identical to the proposed rule; thus, the analysis provided in the NPRM is applicable. 18 18 See 84 FR at 20480-81. Labor Commenters requested alternative language to proposed paragraphs (c) and (d) of this section. As proposed, paragraphs (c) and (d) would provide a 60-day grace period for obtaining motor vehicle operator records, if the records were timely requested. The labor organizations expressed concern that the proposed language could lead to an unintended consequence whereby a railroad could create a temporary locomotive engineer workforce, with each person temporarily certified for a 60-day period. Although theoretically possible, FRA does not share the labor organizations' concerns that the grace period provided for obtaining motor vehicle operator records will encourage any railroad to create a temporary engineer workforce. The proposed amendment, which FRA is adopting in this final rule, will apply to a person who has met all the other qualifications for certification but is solely missing the motor vehicle records check requirement. The proposed and final rule amendments to this section do not revise the determinations required as a prerequisite to certification or recertification in § 240.203, including the knowledge testing, performance skills testing, and vision and hearing acuity evaluation requirements. Thus, to take advantage of the flexibility FRA proposed and is making final in this rulemaking, each person that a railroad would want to certify temporarily must already have fulfilled all the qualification requirements, except that the railroad has not yet obtained the motor vehicle records to ensure the person did not incur any alcohol- or drug-related convictions that might indicate the person has an active substance abuse disorder. A railroad that invests the resources necessary to certify a person should want to complete the process by obtaining the motor vehicle operator records, which would allow the railroad to certify the person for up to three years, not temporarily certify the person for 60 days. Further, paragraph (e) prevents a railroad from perpetually certifying or recertifying the same person without obtaining the required motor vehicle driving records and conducting an evaluation of those records. Thus, to create a temporary certification workforce, a railroad would need to employ an available group of people who are qualified for certification except that they are each missing motor vehicle operator records. The theoretical situation is too remote to consider it a reason not to conform the two certification rules in this manner. Section 240.117 Criteria for Consideration of Operating Rules Compliance Data The requirements in this section provide 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 revising this section to improve clarity and conform the section to the corresponding provisions of the conductor certification rule in § 242.403. No comments were received recommending specific changes to this section and the final rule is identical to the proposed rule other than for an edit to paragraph (d) of this section to remove introductory text, including the phrase “[e]xcept as provided for in paragraph (i) of this section.” FRA is removing as unnecessary introductory text from corresponding § 242.403(d) in the conductor certification rule, and FRA removed paragraph (i) from this section through a rulemaking that was effective February 22, 2010. 19 For these reasons, the analysis provided in the NPRM is applicable. 20 19 74 FR 68173 (Dec. 23, 2009). 20 See 84 FR at 20481-82. Section 240.121 Criteria for Vision and Hearing Acuity Data This section contains the requirements for visual and hearing acuity railroads must incorporate into their locomotive engineer certification programs. FRA is amending paragraphs (a) and (d) 21 of this section to conform to § 242.117(a) and (i). These revisions will update part 240's testing procedures and standards for the hearing acuity requirements. No comments were received recommending specific changes to this section and the final rule is identical to the proposed rule except for the revision to paragraph (d)(3), explained below; thus, the analysis provided in the NPRM is applicable. 22 21 In the NPRM, FRA erroneously cited to paragraph (c) instead of (d) in the Section-by-Section Analysis, although the regulatory text of the proposed rule contained the correct paragraph cite. 84 FR at 20482, 20509. 22 See 84 FR at 20482. FRA is changing proposed paragraph (d)(3) to eliminate the reference to the American National Standards Institute (ANSI) 2004 standard for calibration of audiometric devices. Existing paragraph (d) of this section references the ANSI 1969 calibration standard for audiometric devices (ANSI S3.6-1969, “Specifications for Audiometers”). The companion provision in part 242, however, cites the 2004 version of ANSI's calibration standard. 23 Accordingly, in the NPRM, FRA proposed to update the ANSI standard referenced in paragraph (d) to the 2004 standard to conform to part 242. 23 See the discussion of 49 CFR 242.117(i)(3) in the Section-by-Section Analysis, below. However, ANSI revised the standard in 2018 and FRA expects ANSI will continue to revise the standard in the future. The audiometers covered by the ANSI standard are devices designed for use in determining the hearing threshold level of an individual in comparison with a selected hearing threshold level for reference. The ANSI standard provides specifications and tolerances for pure tone, speech, and masking signals and describes the minimum test capabilities of different types of audiometers. To make clear that audiometers are not subject to a single industry standard, versions of which may change with time, FRA is amending this paragraph to remove the specific citation to the 1969 version of ANSI S3.6 and not adopt the proposed specific citation to the 2004 ANSI standard. Instead, this paragraph now expressly provides for use of a formal industry standard, such as ANSI S3.6. This change will allow a licensed or certified audiologist, or a technician responsible to that licensed or certified audiologist, the flexibility to use an audiometer calibrated to a formal industry standard, whether the standard is an older version of ANSI S3.6, a newer version of the standard, or a similar industry standard issued by an organization other than ANSI. Separately, FRA is amending paragraph (b) to remove an unnecessary heading, “[f]itness requirement.” FRA discovered the technical error in preparing the final rule, and this correction makes the locomotive engineer rule consistent with an identical change to the conductor rule. Section 240.123 Training This section 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 is revising this section's heading to be the same as that for § 242.119 (Training). FRA also is amending this section's text to be similar to § 242.119's, 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. Railroad Commenters objected to the proposed language amending § 240.123(c), providing that initial training of an untrained person must comply with § 243.101 of this chapter. Railroad Commenters stated that such a revision would require a railroad to resubmit its part 243 program to FRA even though FRA did not identify any specific deficiencies with existing railroad training plans for locomotive engineers. FRA addressed this issue in the NPRM and the analysis in the proposed rule provides additional background not repeated in the discussion below. 24 24 84 FR at 20482-83. In summary, FRA is adding the cross-reference to part 243 to conform the rule to the parallel part 242 requirement and believes the cross-reference is helpful as a reminder of the requirement in part 243. Because there is an existing requirement, FRA is not creating a new burden. 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 are exempt from submitting them under part 243, unless a 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). FRA expects each railroad to evaluate the OJT components in its part 240 training program and supplement its certification program only if necessary. The deadlines for implementing the modifications are governed by part 243. Please note that FRA amended the implementation deadlines for compliance with § 243.101; consequently, railroads and other employers that employ locomotive engineers were required to modify locomotive engineer OJT programs beginning January 1, 2020, depending on the size of the railroad operation. 25 25 Contractors and Class II and III railroads that are not intercity or commuter passenger railroads with 400,000 total employee work hours annually or more are required to submit their Part 243 programs by May 1, 2021. 85 FR 10 (Jan. 2, 2020). No additional comments were received recommending specific changes to this section and the final rule is identical to the proposed rule; thus, the analysis provided in the NPRM is applicable. 26 26 See 84 FR at 20482-83. Section 240.307 Revocation of Certification This section provides the procedures a railroad must follow to revoke a certified locomotive engineer's certification. FRA is amending this section to clarify its intent and make it the same as § 242.407, which addresses the revocation of conductor certifications. As discussed in Section II.F, above, Labor Commenters recommended specific changes to paragraph (c)(11) of this section. As noted in Section II.F, FRA has determined that those suggestions are beyond the scope of this rulemaking. No other comments were received recommending specific changes to this section and the final rule is identical to the proposed rule; thus, the analysis provided in the NPRM is applicable. 27 27 See 84 FR at 20487-89. Section 240.308 Multiple Certifications Proposed paragraph (d) contained an unnecessary heading, “[p]assenger railroad operations,” based on its corresponding provision in the conductor certification rule, § 242.213(e). FRA discovered the technical error in preparing the final rule and is correcting § 242.213(e). Accordingly, FRA is not adopting the heading proposed in paragraph (d) of this section for consistency with the conductor rule, and is instead making clear in the rule text that this paragraph applies to passenger train operations. Subpart E—Dispute Resolution Procedures 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. In the NPRM, FRA proposed some changes to the appeals process contained in §§ 240.401 through 240.411. The comments received recommending specific changes to this subpart are addressed in section II.A, above, or in the Section-By-Section analysis, below. However, the final rule is identical to the proposed rule; thus, the analysis provided in the NPRM is applicable. 28 28 See 84 FR at 20490-94. Section 240.401 Review Board Established This section 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 is amending this section to delegate initial responsibility for adjudicating denial of locomotive engineer certification or recertification and revocation disputes to FRA's OCRB. Accordingly, the Locomotive Engineer Review Board (LERB), which previously had this responsibility, will merge into the OCRB, which also has the responsibility for adjudicating denial of conductor certification or recertification and revocation disputes. Labor Commenters requested that FRA “provide confirmation that (1) the Review Board will be comprised of an odd number of senior FRA staff members with pertinent experience, and (2) the number of Review Board members will be provided by FRA order.” Labor Commenters made this request while acknowledging FRA's position, as stated in the NPRM, that 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 are authorized even if made without notice to the public. See 5 U.S.C. 553(b)(3)(A). Accordingly, FRA declines to adopt the Labor Commenters' specific suggestions in this final rule. The revisions to § 240.401 make the section the same as the corresponding section in part 242 (§ 242.501). The revisions do not, however, change FRA's right to use any number of FRA employees as OCRB members, in coordination with Agency resources and priorities. Section 240.403 Petition Requirements This section provides the requirements for obtaining FRA review of a railroad's decision to deny certification, deny recertification, or revoke an individual's locomotive engineer certification. FRA is revising this section to make it the same as the corresponding provision in part 242 (§ 242.503). The final rule will provide a single process for aggrieved parties to submit FRA locomotive engineer petitions under part 240 and conductor certification petitions under part 242. FRA is revising paragraph (b) so that a person filing a petition under part 240 will need to file the same information and documentation that is required under part 242. The final rule is different than the NPRM in that FRA did not propose revisions to paragraph (b)(5) or (6). Existing paragraph (b)(5) requires that a petitioner provide a copy of all written documents in the petitioner's possession that document the railroad's decision that is being challenged. FRA is revising paragraph (b)(5) to add that a petitioner is required to provide a copy of all written documents that are reasonably available to the petitioner that document the railroad's decision. Without a complete record, the OCRB may not be able to determine whether a railroad's decision was improper. FRA wants petitioners to request a complete copy of the documents the railroad used in making its decision and, by revising this requirement, FRA is requiring petitioners to request a copy of any documents from the investigative hearing or railroad's denial decision that were not provided to them voluntarily. However, FRA recognizes that a petitioner cannot provide the OCRB with documents that the railroad refuses to provide. In that case, when a petitioner requests documents from a railroad and is denied those documents, the petitioner should explain that situation in the petition and provide the Board with any corroborating documents to substantiate that claim. Paragraph (b)(6) is the same, existing requirement, but an “and” was added to the end because it is no longer the last item in the list of paragraph (b)'s petition requirements. FRA is revising paragraph (c) to require that a petition for review of a railroad's revocation or denial decision be filed with FRA within 120 days of the date the railroad serves the decision on the petitioner. This revision will make this provision of part 240 the same as the corresponding provision in part 242 ( see § 242.503(c)). The labor organizations' comment requests that FRA not reduce the time limit for petitioning FRA on a railroad's denial of certification or recertification from 180 days to 120 days. The labor organizations' comment contends that the longer period is appropriate because it is often difficult to obtain a complete record. FRA does not agree with this comment for several reasons. FRA believes that 120 days is itself a significant period for an aggrieved locomotive engineer or locomotive engineer candidate to consider whether to request FRA review and submit necessary supporting materials. Part 242 has always imposed this 120-day time limit and FRA has not previously heard that the time limit is too short. To the extent a party finds it difficult to obtain the decision record from the railroad, FRA offers that the party may file its petition with any documents it has and add a description in the petition of the missing documents. FRA expects each railroad to submit any missing evidence it relied on in making its denial decision, even if the railroad chooses not to submit an argument in response to the petition. By making FRA aware of missing documents, the OCRB can follow up as appropriate. Further, although the regulatory text plainly describes the different deadlines for petitioning FRA to review a railroad's decision to deny certification or recertification and to review a railroad's decision to revoke certification, some locomotive engineers and their representatives have claimed the different deadlines have confused them into filing a late petition, believing the deadline to be within 180 days of a railroad's revocation decision instead of the required 120 days. The final rule amendment will eliminate any such confusion. Section 240.405 Processing Certification Review Petitions FRA is revising 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). FRA received comments on this section, some of which are addressed in the discussion of specific comments and conclusions, above, in the section addressing issues beyond the scope of this rulemaking. 29 Two comments and one additional revision are addressed below. 29 See Section II.F. FRA received a comment from AAR and ASLRRA objecting to proposed § 240.405(d)(2) requiring service of a copy of a railroad's response to an OCRB petition on petitioner's representative, if any. The AAR and ASLRRA suggest that this revision would establish a new burden because the change would require railroads to track down and provide service to the person's representative at the railroad's on-the-property hearing even if that is not the same person who assisted the individual in filing an OCRB petition. FRA believes the commenters misunderstood the proposal. FRA never intended the proposal to be construed as requiring service on a representative that no longer appears to be representing the person. FRA's reference to service on petitioner's representative, if any, is a reference to any representative identified in the petition. FRA is aware that some petitioners file a petition without identifying a representative in the petition. When that happens, this final rule will only require the railroad to serve the petitioner with a copy of the railroad's response. FRA received a comment from labor organizations objecting to proposed § 240.405(l) because, unlike the rule for the LERB, the proposal did not include the requirement that every OCRB decision contain findings of fact on which the decision is based. In the NPRM, FRA explained that removal of the requirement is necessary because issuing findings of fact may not be appropriate for, or relevant to, some decisions. The revision also conforms to the OCRB's requirement in § 242.505(l). FRA notes that the labor organizations' comment recommends amending the regulation by providing flexibility to the OCRB to exclude findings of fact “where such findings are not appropriate or relevant,” which also seems to result in the same outcome. For these reasons, FRA is issuing the final rule as proposed. FRA is revising proposed § 240.405(i) to clarify the OCRB's standard of review for procedural issues. The final rule will require that when considering procedural issues, the Board will determine whether the petitioner suffered substantial harm that was caused by the failure to adhere to the dictated procedures for making the railroad's decision. The restated standard uses active voice and removes the passive voice language that similarly explained that the Board will determine whether substantial harm was caused the petitioner by the railroad's failure to adhere to the dictated procedures. Although the Board will apply the revised standard in the same way as before, the final rule is expected to help the parties better understand the standard. Section 240.411 Appeals FRA is amending paragraphs (a) and (f) so that the instructions for appealing to the Administrator are the same in both parts 240 and 242 (§ 242.511). In the NPRM, FRA proposed to revise this section so that an aggrieved party requesting an appeal to the Administrator would file a copy of the appeal with the Administrator in addition to filing a copy in the docket. 30 Although no comments were received regarding this section, FRA is revising the filing requirements so that an aggrieved party will only need to file one copy of an appeal with FRA, instead of the proposed two copies. With the elimination of paper dockets, it is much easier for FRA to know when a document is added to an existing docket. Parties that are filing an appeal, whether under paragraph (a) or (f), would already have a docket number and would be expected to know how to file a document, as they would have already filed at least once, and probably several times, in that same docket kept electronically at www.regulations.gov. Rather than revising this section to require a party to file with FRA in two different places, FRA is amending both parts 240 and 242 so that an aggrieved party needs to file its appeal only in the electronic, public docket. 30 84 FR at 20493-94. Appendix A In the NPRM, FRA stated that it would likely need to make corresponding changes in the final rule to appendix A to part 240 (appendix A), which then contained the schedule of civil penalties for violations of part 240. Meanwhile, as published on May 23, 2019, FRA removed and reserved appendix A, as FRA moved all its schedules of civil penalties from the CFR to FRA's website. 31 Thus, there is no need to amend appendix A and it will remain reserved. 31 84 FR 23730. Nonetheless, FRA will modify the schedule of civil penalties on its website at www.railroads.dot.gov as necessary to reflect the requirements of the final rule. Because such penalty schedules are statements of agency policy, notice and comment are not required before their issuance. 32 In addition, FRA invited but did not receive any comments on the civil penalties for violations of part 240. 32 5 U.S.C. 553(b)(3)(A). Appendix B As explained in the NPRM, appendix B to part 240 (appendix B) provides both the organizational requirements and a narrative description of the submission required under §§ 240.101 and 240.103. FRA is updating job titles and clarifying requirements in appendix B. In the NPRM, FRA proposed revising appendix B to provide railroads with the option to file their part 240 program submissions electronically by adopting language from part 242's appendix B. As a matter of agency policy or procedure, FRA decided that the certification program submission process could be further streamlined. FRA accomplished this streamlining by adding an email address for direct electronic submission of a railroad's engineer certification program. There is no secure website for uploading a railroad submission, so FRA eliminated the proposed language in the appendix requesting information to set up a secure account for such a submission. Email is the primary method of railroad submission, and the publication of FRA's email address for such submission should make the submission process easier for each railroad that must submit. Although FRA is not making similar conforming changes to part 242's appendix B, FRA revised § 242.103 to provide the same email address and submission information for conductor certification programs as for locomotive engineer certification programs in revised § 240.103. Therefore, under both rules, railroad submission of certification programs should primarily be completed by email, without regard to the size of the paper or the need to mail FRA contact information to arrange for electronic submission. Two comments recommending specific changes to appendix B are discussed below. FRA is revising appendix B based on one of the comments. Otherwise, the analysis provided in the NPRM is applicable. 33 33 See 84 FR at 20494. FRA received a comment from AAR and ASLRRA objecting to the proposed revision requiring a railroad to comply with requirements for training organizations or learning institutions in § 243.111 of this chapter if the railroad were to train another railroad's employees. The comment refers specifically to the proposed language for amending appendix B, “Section 5 of the Submission: Training, Testing, and Evaluating Persons Not Previously Certified.” 34 In appendix B, Section 5, FRA proposed that a railroad that plans to accept responsibility for the initial training of locomotive engineers may authorize another railroad or a non-railroad entity to perform the actual training effort if the other entity complies with the requirements for training organizations and learning institutions in § 243.111 of this chapter. The comment suggests that many small railroads work together when training their employees and may, for example, allow one railroad to conduct an operating rules class for the employees of multiple railroads. FRA is also aware that some railroads, especially Class I railroads, have robust training programs administered at specific training centers that could potentially accommodate appropriate training for employees of other railroads. The railroad associations indicate the revision would result in a new burden that could create inefficiencies and costs, and thereby adversely affect safety. After considering the comment, FRA has removed the reference equating a railroad that is not training its own employees with a training organization or learning institution. FRA believes that while these entities may share some common features, a railroad that has an approved training program is not a training organization or learning institution, and therefore does not have an obligation to comply with 49 CFR 243.111. FRA will nonetheless continue to monitor the practice of unaffiliated railroads providing training for any other railroad's employees, to help ensure the appropriateness of such training. 34 84 FR at 20518. FRA received a comment from the labor organizations requesting that FRA revise appendix B to underscore that a railroad's certification program should explain, in detail, how its OJT program ensures training on the manual dexterity, cognitive ability, and human-machine interface skills necessary to be considered qualified. Appendix B, “Section 3 of the Submission: Training Persons Previously Certified,” mentions OJT in a list of the type of formal training necessary for effective evaluation of a railroad's training program. FRA expects the program to include the subject matter covered, the frequency and duration of the training sessions, and the type of formal training employed, as well as specify which aspects of the program are voluntary or mandatory. Testing each certified person or candidate is required to determine whether the person is qualified to do the work, and passing such training is proof that the person's training is effective. FRA does not believe a person would be able to pass operational monitoring or skill performance testing without having all the skills the labor organizations mention in their comment as necessary. In addition, FRA believes that manual dexterity and cognitive ability may be difficult to measure, train, or test; thus, adding them as necessary requirements could be correspondingly difficult for railroads to implement. For these reasons, FRA is not revising appendix B in response to this comment. Part 242 Section 242.7 Definitions FRA is amending the definition of “main track” after discovering a technical error while addressing a comment on the text in an identical provision in part 240. FRA recognizes that it did not explain the inclusion of PTC as a method of operation in the part 242 rulemaking notices. Upon further review, FRA agrees with Railroad Commenters that PTC is not a method of operation but rather is a technology that helps enforce compliance with a railroad's method(s) governing train operations. For this reason, FRA is removing the reference to PTC, as defined in 49 CFR part 236, to correct the technical error. FRA is amending the definition of “Substance abuse disorder” so that the locomotive engineer and conductor certification rules use the same language. In the NPRM, FRA proposed that part 240 conform to the definition in part 242. After the NPRM's publication, FRA decided that the definition in part 242 is improved by moving the word “successfully” in both places it is found in the definition without changing its meaning. Section 242.103 Approval of Design of Individual Railroad Programs by FRA FRA is making technical amendments to § 242.103 so that the locomotive engineer and conductor certification rules use the same language. For example, FRA is revising paragraph (b) so that, like § 240.103(a), both rules reference that the primary method for a railroad to submit its certification programs is by email to FRAOPCERTPROG@dot.gov. FRA is also clarifying that mailing will remain an option, although FRA expects that option will be exercised only by those smaller railroads that do not have internet access suitable for emailing the program. The NPRM proposed certain requirements found in this section for adoption in § 240.103. However, as FRA described above in the analysis for § 240.103(b) and (c), some minor changes were made to improve the clarity of the proposed requirements to the locomotive engineer rule and FRA is making technical amendments to the conductor rule so the two certification rules contain the same requirements. For instance, FRA is revising paragraphs (c) and (d) of this section to require railroads to provide a copy of their program submissions, resubmissions, and material modifications to the president of each labor organization that represents the railroad's certified conductors, rather than serve a copy. FRA is finalizing this change to part 242 because the term “serve or service,” which is defined in this part, refers to the legal issue of service of process during adjudication and the exchange of certification programs and comments to those certification programs are not adjudicatory matters. Thus, FRA is revising these requirements to reflect that each railroad and labor organization president must provide, not serve, its documents to each other, and affirm to FRA that it has done so, without the need to abide by strict legal rules for service of process. FRA is not specifying the methods that a railroad or president of a labor organization must use to provide documents to the other party as FRA expects each party to use those methods it uses in the normal course of business with each other. Also, FRA is adding an email address to make it easier for parties to submit programs or comments to programs. Finally, although part 242 required that each railroad affirm that it provided a copy of its program to the president of each labor organization that represents the railroad's employees subject to this part, the labor organization presidents were required to certify that they sent their comment to the railroad; hence, for consistency, FRA is requiring that both parties affirm they provided the other party with a copy of the documents they submit to FRA under this requirement. Section 242.117 Vision and Hearing Acuity FRA is amending paragraph (g) to remove an unnecessary heading, “[f]itness requirement.” FRA discovered the technical error in preparing the final rule, and this correction makes the conductor rule consistent with an identical change to the locomotive engineer rule. FRA is amending paragraph (h)(3) to correct the reference from appendix E to appendix D to this part. FRA discovered the technical error in preparing the final rule, and this correction makes the reference to appendix D consistent with the other references to appendix D in this section. FRA is amending paragraph (i)(3) for consistency with corresponding changes to 49 CFR 240.121(d). Section 242.117(i)(3) referenced the 2004 version of the ANSI calibration standard for audiometric devices (ANSI S3.6-2004, “Specifications for Audiometers”) whereas 49 CFR 240.121(d) cited the 1969 version of that standard. See the discussion of 49 CFR 240.121(d) in the Section-by-Section Analysis, above. Further, ANSI revised this standard in 2018 and FRA expects ANSI will continue to revise the standard in the future. The audiometers covered by the ANSI standard are devices designed for use in determining the hearing threshold level of an individual in comparison with a selected hearing threshold level for reference. The ANSI standard provides specifications and tolerances for pure tone, speech, and masking signals and describes the minimum test capabilities of different types of audiometers. To make clear that audiometers are not subject to a single industry standard, versions of which may change with time, FRA is amending this paragraph to remove the specific citation to the 2004 version of ANSI S3.6 and instead provide for use of a formal industry standard, such as ANSI S3.6. This will allow a licensed or certified audiologist, or a technician responsible to that licensed or certified audiologist, the flexibility to use an audiometer calibrated to a formal industry standard, whether the standard is an older version of ANSI S3.6, a newer version of the standard, or a similar industry standard, whether or not issued by ANSI. Section 242.213 Multiple Certifications FRA is amending paragraph (e) to remove an unnecessary heading, “[p]assenger railroad operations,” and is instead making clear in the rule text that this paragraph applies to passenger train operations. FRA discovered the technical error in preparing the final rule, and this correction makes the conductor rule consistent with its corresponding provision in the locomotive engineer rule. Section 242.403 Criteria for Revoking Certification FRA is revising § 242.403(d) to remove unnecessary introductory text. FRA is making a corresponding technical revision to § 240.117(d) to remove the same text. No substantive change is intended. Section 242.503 Petition Requirements FRA is revising § 242.503(c)(2) so that the locomotive engineer and conductor certification rules use the same language. The change reverses the phrase “timely file” to “file timely” to match the language in § 240.403(c)(2) without changing its meaning. Section 242.505 Processing Certification Review Petitions FRA is revising § 242.505(i) to clarify the OCRB's standard of review for procedural issues and make the standard the same as in § 240.405(i). The final rule requires that, when considering procedural issues, the Board determines whether the petitioner suffered substantial harm that was caused by the failure to adhere to the dictated procedures for making the railroad's decision. The restated standard uses active voice and removes the passive voice language that similarly explained that the Board will determine whether substantial harm was caused the petitioner by the railroad's failure to adhere to the dictated procedures. Although the Board will apply the revised standard in the same way as before, the final rule is expected to help the parties better understand the standard. FRA is also making certain technical revisions to this section. Specifically, FRA is revising paragraphs (h) through (k) to remove unnecessary introductory text and is revising paragraph (k) to replace the word “regulation” with “part.” These technical revisions do not affect the meaning of this section. Section 242.511 Appeals FRA is amending paragraphs (a) and (f) so that the instructions for appealing to the Administrator are the same in both parts 240 and 242. FRA is revising the filing requirements to eliminate the requirement for an aggrieved party to file two copies of an appeal rather than one. With the elimination of paper dockets, it is much easier for FRA to know when a document is added to an existing docket. Parties that are filing an appeal, whether under paragraph (a) or (f), would already have a docket number and would be expected to know how to file a document, as they would have already filed at least once, and probably several times, in that same docket kept electronically at www.regulations.gov. Filing in the docket will be sufficient to notify FRA, and the final rule will eliminate the requirement to file a separate copy with the Administrator. Appendix E to Part 242—Application of Revocable Events FRA is amending appendix E to part 242 so that both part 240 and part 242 will contain the same table that explains, in spreadsheet-style form, when an individual certified as both an engineer and conductor will be permitted to work following a certification revocation. In the NPRM, FRA proposed adding the same table to part 240 that is found in appendix E to part 242, and designating it as new appendix G to part 240. However, in adding the table to part 240, FRA made slight changes to include some citations to the different periods of revocation that may be applied in part 240 when a locomotive engineer has a drug or alcohol violation, as only the conductor citations were in the part 242 version of the table. The table in appendix E to part 242 is expected to continue to be a useful reference, and this non-substantive revision will conform part 240 with part 242. FRA considered not revising appendix E to part 242 but was concerned that any differences between the two appendices might lead to confusion. The appendices are intended to be identical, insofar as practical, to promote proper understanding and application of both regulations. IV. Regulatory Impact and Notices A. Executive Orders 12866 and 13771 and DOT Regulatory Policies and Procedures This final rule is a non-significant regulatory action and has been evaluated in accordance with existing policies and procedures under E.O. 12866 and DOT's Administrative Rulemaking, Guidance, and Enforcement Procedures in 49 CFR part 5. The rule is non-significant under the policies and procedures of E.O. 12866 and under DOT's Rulemaking Procedures. This final rule is also an E.O. 13771 deregulatory action. The primary purpose of the final rule is to reduce the differences between FRA's two operating crew certification regulations and to make engineer certification more efficient. Some of the amendments address the part 240 certification review and program submission processes. Other changes reduce the burden on the regulated community by addressing compliance difficulties noted through experience enforcing part 240. Further, some changes codify longstanding agency interpretations of whether a railroad or individual meets and maintains compliance with part 240 requirements. FRA has prepared and placed in the docket (Docket No. FRA-2018-0053) a regulatory evaluation. The regulatory evaluation details estimated costs and costs savings that railroads subject to the final rule are likely to incur over a twenty-year period. The table below summarizes the costs, cost savings, and net cost savings estimated to come from issuing the final rule. For the 20-year period of analysis, the cost of the final rule will be $233,779 (undiscounted), $171,764 (PV 7%), and $200,775 (PV 3%). The total cost savings of the final rule over 20 years will be $12.3 million (undiscounted), $6.9 million (PV 7%), and $9.4 million (PV 3%). For the 20-year period of analysis, the final rule will result in a net cost savings of $12.0 million (undiscounted), $6.8 million (PV 7%), and $9.2 million (PV 3%). Table 1—Summary of the Final Rule's Total New Costs, Total Cost Savings, Net Cost Savings (Twenty-Year Period), PV 7 Percent and PV 3 Percent Cost of proposed rule Undiscounted Present value 7% Annualized 7% Present value 3% Annualized 3% New Costs: Review amendments $118,383 $110,638 $10,443 $114,935 $7,725 Provide a copy of part 240 plan to labor organization 2,263 1,199 113 1,683 5,657 Maintain service records 113,133 59,927 5,657 84,157 5,657 Total new costs 233,779 171,764 16,213 200,775 19,039 Cost Savings: Conforming part 240 to part 242 11,838,340 6,709,732 633,351 9,070,417 609,675 Former employee paperwork 113,133 59,927 5,657 84,157 5,657 Petition submission process 109,620 58,066 5,481 81,543 5,481 Plan submission process 6,800 3,602 340 5,058 340 Government cost savings 92,448 48,970 4,622 60,933 4,096 Removing waiver requirement 113,133 59,927 5,657 84,157 5,657 Total cost savings 12,273,475 6,940,223 655,108 9,386,266 630,904 Net Cost Savings 12,039,696 6,768,459 638,895 9,185,491 611,866 The final rule will create benefits, though FRA did not monetize them. Some non-quantifiable benefits include: affording railroads additional time and flexibility to comply with some regulatory requirements, and creating certain provisions that allow for temporary locomotive engineer certificates. For example, the amendments to § 240.103 will afford railroads an additional 30 days, increasing from 30 days to 60 days, for a railroad to submit a description of its intended material modification to its part 240 plan. This additional time to respond to FRA amounts to an unquantified benefit to the railroad. In addition, the amendments to § 240.115 will allow for a temporary certification lasting 60 days for individuals who have properly requested motor vehicle operator information needed to certify or recertify as a locomotive engineer. Such temporary certifications amount to an unquantified benefit to workers and railroads. That is, under the amendments to § 240.115, workers may begin work as locomotive engineers sooner and railroads will have available a larger pool of workers who will be qualified to work as locomotive engineers. The regulatory evaluation compares the final rule's costs and benefits, and estimates the final rule will be cost beneficial because the rule is expected to provide net cost savings and benefits. B. Regulatory Flexibility Act and Executive Order 13272; Regulatory Flexibility Certification The final rule will impact 741 railroads of which 93 percent (690) are small entities. Therefore, FRA has determined that this final rule will have an impact on a substantial number of small entities. However, FRA has determined that the impact on entities affected by the final rule will not be significant as the final rule is deregulatory. Therefore, the impact on entities will be positive, taking the form of costs savings that are greater than any new costs imposed on the entities. For the railroad industry over a 20-year period, FRA estimates that issuing the final rule will result in new costs of $171,764 (PV 7%) and $200,775 (PV 3%). Based on information currently available, FRA estimates that $97,905 (PV 7%) and $114,442 (PV 3%) of the total costs associated with implementing the final rule will be borne by small entities. Therefore, less than 60 percent of the final rule's total cost will be borne by small businesses. In addition, FRA estimates that the final rule will result in cost savings over 20 years of $6.9 million (PV 7%), and $9.4 million (PV 3%). For the 20-year period of analysis, the final rule will result in a net cost savings of $12.0 million (undiscounted), $6.8 million (PV 7%), and $9.2 million (PV 3%). FRA expects that small entities will accrue 94 percent of the cost savings associated with implementing the final rule. Thus, pursuant to the Regulatory Flexibility Act, 5 U.S.C. 601(b), the FRA Administrator hereby certifies that this final rule will not have a significant economic impact on a substantial number of small entities. C. Paperwork Reduction Act The information collection requirements in this final rule are being submitted for approval to the Office of Management and Budget (OMB) under the Paperwork Reduction Act of 1995. 35 The sections that contain the new and current information collection requirements and the estimated time to fulfill each requirement are as follows: 35 44 U.S.C. 3501 et seq. 36 The revisions to the estimates under OMB control number 2130-0533 are due to adding conforming language in Part 240 to Part 242. Also, burden requirements under § 240.308 are covered under OMB control number 2130-0544 (§ 242.213). 37 Throughout the tables in this document, the dollar equivalent cost is derived from the Surface Transportation Board's Full Year Wage A&B data series using the appropriate employee group hourly wage rate that includes 75-percent overhead charges. CFR section 36 Respondent universe Total annual responses Average time per response Total annual burden hours Total annual dollar cost equivalent 37 240.9—Waivers 741 railroads 2 waiver petitions 1 hour 2 $152 240.101/103—Certification program: Written program for certifying qualifications of locomotive engineers—amendments 741 railroads 25 amendments 5 minutes 2 152 —Certification programs for new railroads 5 new railroads 5 programs 1 hour 5 380 —Final review and submission of certification programs for new railroads 5 new railroads 5 reviews 1 hour 5 380 (b)(1)—RR provision of copy of certification program submission or resubmission to president of each labor union representing employees simultaneously with filing with FRA (See footnote 36) 62 railroads 62 copies 5 minutes 5 380 (b)(2)—RR affirmative statement that it has served certification program copy to each labor union president (See footnote 36 ) 62 railroads 62 copies 5 minutes 5 380 (c)—RR employee comment on submission, resubmission or material modification of RR certification program (See footnote 36) 62 railroads 62 comments 8 hours 496 37,696 (h)—RR material modifications to program after initial FRA approval (formerly under (e)) 741 railroads 10 modified programs 10 minutes 2 152 240.105(b)—(c) Written reports/determinations of DSLE performance skills 741 railroads 10 reports 30 minutes 5 575 240.109/App. C—Prior safety conduct 17,667 candidates 25 responses 5 minutes 2 116 240.111/App C—Driver's license data requests from chief of driver licensing agency of any jurisdiction, including foreign countries 17,667 candidates 17,667 requests 10 minutes 2,945 223,820 —NDR match—notifications and requests for data 741 railroads 177 notices + 177 requests 5 mins + 5 mins 30 2,010 —Written response from candidate on driver's license data 741 railroads 20 cases/comments 10 minutes 3 174 240.111(g)—Notice to RR of absence of license 53,000 candidates 4 letters 5 minutes 0.3 19 240.111(h)—Duty to furnish data on prior safety conduct as motor vehicle operator 741 railroads 100 communications 5 minutes 8 464 240.113—Duty to furnish data on prior safety conduct as an employee of a different RR 17,667 candidates 353 requests + 353 responses 5 mins + 5 mins 59 4,130 240.115(d)—RR temporary certification or recertification of locomotive engineer for 60 days after having requested the motor vehicle information specified in paragraph (h) of this section (See footnote 36) 741 railroads 25 recertifications 5 minutes 2 152 (i)(2)—RR drug and alcohol counselor request of employee's record of prior counseling or treatment (See footnote 36) 17,667 candidates 200 requests + 200 records 5 minutes 33 1,914 (i)(3)—Conditional certification based on recommendation by DAC of employee aftercare and/or follow-up testing for alcohol/drugs (See footnote 36) 17,667 candidates 100 conditional certifications/DAC recommendations 1 hour 100 5,800 (i)(4)—RR employee evaluation by DAC as having an active substance abuse disorder (See footnote 36) 17,667 candidates 100 DAC evaluations 1 hour 100 5,800 240.117(i)(4)—RR employee completion of training/retraining prior to return to service—records (See footnote 36) 53,000 locomotive engineers 400 trained/retrained records 5 minutes 33 1,914 240.119(c)—Written records indicating dates that the engineer stopped performing or returned to certification service + compliance/observation test (See footnote 36) 741 railroads 400 records 5 minutes 33 1,914 240.119(d)—Self-referral to EAP re: Active substance abuse disorder 53,000 locomotive engineers 150 self-referrals 5 minutes 13 754 240.119(e)(3)(ii)—RR notification to person that recertification has been denied or revoked (See footnote 36) 741 railroads 200 notifications 30 minutes 100 5,800 240.119(e)(4)(iii)—Locomotive engineer waiver of investigation in case of one violation of § 219.101 (See footnote 36) 53,000 locomotive engineers 200 waivers 2 minutes 7 406 240.121—Criteria—vision/hearing acuity data—new railroads 5 railroads 5 copies 5 minutes 0.4 32 —Conditioned certification 741 railroads 5 reports 5 minutes 0.4 48 —Not meeting standards—Notice by employee 741 railroads 10 notifications 15 minutes 3 174 240.129(b)—RR documents on file regarding determination made regarding fitness, including DAC written document (See footnote 36) 53,000 locomotive engineers 1,000 records 5 hours 83 6,308 240.201/221—List of qualified DSLEs 741 railroads 741 updates 5 minutes 62 4,712 —List of qualified loco. engineers 741 railroads 741 updated lists 5 minutes 62 4,712 240.201/223/301—Loco. engineer certificates 53,000 candidates 17,667 certificates 5 minutes 1,472 111,872 240.207—Medical certificate showing hearing/vision standards are met: 53,000 candidates 17,667 certificates 30 minutes 8,834 1,015,910 —Written determinations waiving use of corrective device 741 railroads 30 determinations 5 minutes 3 345 240.219(a)—RR notification letter to employee of certification denial + employee written rebuttal (See footnote 36) 17,667 candidates 45 letters + 45 responses 30 minutes 45 3,420 —RR notice/written documents/records to candidate that support its pending denial decision (See footnote 36) 741 railroads 45 documents/records 2 minutes 2 152 240.229—Joint operations—notice—not qualified 321 railroads 184 employee calls 5 minutes 15 870 240.301(b)—Temporary replacement certificates valid for no more than 30 days (See footnote 36) 741 railroads 600 replacement certificates 30 minutes 300 22,800 (c)—Engineer's notice of non-qualification to RR 53,000 engineers or candidates 100 notifications 5 minutes 8 464 (d)—Relaying certification denial or revocation status to other certifying railroad 1,060 engineers 2 letters 15 minutes 1 hour 58 240.307(a-b)—Notice to engineer of disqualification 741 railroads 1,100 letters 1 hour 1,100 73,700 240.307(b)(4)—RR provision to employee of copy of written information and list of witnesses that it will present at hearing (See footnote 36) 741 railroads 690 copies/list 5 minutes 58 4,408 240.307(b)(5)—RR determination on hearing record whether person no longer meets certification requirements of part 240 (See footnote 36) 741 railroads 690 hearing determinations 1 hour 690 52,440 240.307(c)(11)(i)(ii)—RR written decision after close of hearing containing findings of fact & whether a revocable event occurred (See footnote 36) 741 railroads 690 written decisions 30 minutes 345 26,220 240.307(c)(11)(iii)—RR service of written decision on employee and employee's representative (See footnote 36) 741 railroads 690 copies 5 minutes 58 4,408 240.307(f)—Person's waiver of right to hearing under this section (See footnote 36) 741 railroads 750 written waivers 5 minutes 63 3,654 240.307(j)—RR update of record with relevant information (See footnote 36) 741 railroads 50 updated records 10 minutes 8 608 240.309—RR oversight resp.: Detected poor safety conduct—annotation 15 railroads 6 annotations 15 minutes 2 116 —Railroad annual review 51 railroads 51 reviews 3 153 11,628 Recordkeeping 240.205—Data to EAP counselor 741 railroads 177 records 5 minutes 15 1,725 240.209/213—Written tests 53,000 candidates 17,667 testing record retention 1 minute 294 22,344 240.211/213—Performance test 53,000 candidates 17,667 testing record retention 1 minute 294 22,344 240.215—Retaining info. supporting determination 741 railroads 17,667 records 5 minutes 1,472 111,872 240.303—Annual operational monitoring observation 53,000 candidates 53,000 testing record retention 1 minute 883 67,108 240.303—Annual operating rules compliance test 53,000 candidates 53,000 testing record retention 1 minute 883 67,108 240.307(b)(4)—RR hearings/hearing records (See footnote 36) 741 railroads 690 hearings/records 4 hours 2,760 209,760 Total 741 railroads 224,566 responses N/A 23,964 2,146,751 All estimates include the time for reviewing instructions; searching existing data sources; gathering or maintaining the needed data; and reviewing the information. For information or a copy of the paperwork package submitted to OMB, contact Ms. Hodan Wells, Information Collection Clearance Officer, Office of Railroad Safety, Federal Railroad Administration, at 202-493-0440. Organizations and individuals desiring to submit comments on the collection of information requirements should direct them to Ms. Hodan Wells via email at Hodan.Wells@dot.gov. OMB must make a decision concerning the collection of information requirements contained in this rule between 30 and 60 days after publication of this document in the Federal Register . Therefore, a comment to OMB is best assured of having its full effect if OMB receives it within 30 days of publication. FRA is not authorized to impose a penalty on persons for violating information collection requirements that do not display a current OMB control number, if required. The current OMB control number for part 240 is 2130-0533. D. Federalism Implications Executive Order 13132, “Federalism,” 38 requires FRA to develop an accountable process to ensure “meaningful and timely input by State and local officials in the development of regulatory policies that have federalism implications.” “Policies that have federalism implications” are defined in the Executive Order to include regulations having “substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government.” Under Executive Order 13132, the agency may not issue a regulation with federalism implications that imposes substantial direct compliance costs and that is not required by statute, unless the Federal Government provides the funds necessary to pay the direct compliance costs incurred by State and local governments or the agency consults with State and local government officials early in the process of developing the regulation. Where a regulation has federalism implications and preempts State law, the agency seeks to consult with State and local officials in the process of developing the regulation. 38 64 FR 43255, Aug. 10, 1999. FRA has analyzed this final rule under the principles and criteria contained in Executive Order 13132. FRA has determined this final rule will not have a substantial direct effect on the States or their political subdivisions; on the relationship between the Federal Government and the States or their political subdivisions, or on the distribution of power and responsibilities among the various levels of government. In addition, FRA has determined this final rule does not impose substantial direct compliance costs on State and local governments. Therefore, the consultation and funding requirements of Executive Order 13132 do not apply. This final rule could have preemptive effect by the operation of law under a provision of the former Federal Railroad Safety Act of 1970, repealed and recodified at 49 U.S.C. 20106 (Section 20106). Section 20106 provides that States may not adopt or continue in effect any law, regulation, or order related to railroad safety or security that covers the subject matter of a regulation prescribed or order issued by the Secretary of Transportation (with respect to railroad safety matters) or the Secretary of Homeland Security (with respect to railroad security matters), except when the State law, regulation, or order qualifies under the “essentially local safety or security hazard” exception to section 20106. In sum, FRA has analyzed this final rule in accordance with the principles and criteria contained in Executive Order 13132. As explained above, FRA has determined that this final rule has no federalism implications, other than the possible preemption of State laws under Federal railroad safety statutes, specifically 49 U.S.C. 20106. Accordingly, FRA has determined that preparation of a federalism summary impact statement for this final rule is not required. E. International Trade Impact Assessment The Trade Agreements Act of 1979 prohibits Federal agencies from engaging in any standards or related activities that create unnecessary obstacles to the foreign commerce of the United States. Legitimate domestic objectives, such as safety, are not considered unnecessary obstacles. The statute also requires consideration of international standards and where appropriate, that they be the basis for U.S. standards. This final rule is purely domestic in nature and is not expected to affect trade opportunities for U.S. firms doing business overseas or for foreign firms doing business in the United States. F. Environmental Impact FRA has evaluated this final rule consistent with the National Environmental Policy Act 39 (NEPA), the Council of Environmental Quality's NEPA implementing regulations at 40 CFR parts 1500-1508, and FRA's NEPA implementing regulations at 23 CFR part 771 and determined that it is categorically excluded from environmental review and therefore does not require the preparation of an environmental assessment (EA) or environmental impact statement (EIS). Categorical exclusions (CEs) are actions identified in an agency's NEPA implementing regulations that do not normally have a significant impact on the environment and therefore do not require either an EA or EIS. 40 CFR 1508.4. Specifically, FRA has determined that this final rule is categorically excluded from detailed environmental review pursuant to 23 CFR 771.116(c)(15), “[p]romulgation of rules, the issuance of policy statements, the waiver or modification of existing regulatory requirements, or discretionary approvals that do not result in significantly increased emissions of air or water pollutants or noise.” 39 42 U.S.C. 4321 et seq. The purpose of this rulemaking is to make FRA's regulation governing the qualification and certification of locomotive engineers consistent with its regulation for the qualification and certification of conductors. This rule does not directly or indirectly impact any environmental resources and will not result in significantly increased emissions of air or water pollutants or noise. In analyzing the applicability of a CE, FRA must also consider whether unusual circumstances are present that would warrant a more detailed environmental review. 40 FRA has concluded that no such unusual circumstances exist with respect to this regulation and the final rule meets the requirements for categorical exclusion under 23 CFR 771.116(c)(15). 40 23 CFR 771.116(b). Pursuant to Section 106 of the National Historic Preservation Act and its implementing regulations, FRA has determined this undertaking has no potential to affect historic properties. 41 FRA has also determined that this rulemaking does not approve a project resulting in a use of a resource protected by Section 4(f). 42 41 See 16 U.S.C. 470. 42 See Department of Transportation Act of 1966, as amended (Pub. L. 89-670, 80 Stat. 931); 49 U.S.C. 303. G. Executive Order 12898 (Environmental Justice) Executive Order 12898, Federal Actions to Address Environmental Justice in Minority Populations and Low-Income Populations, and DOT Order 5610.2(a) 43 require DOT agencies to achieve environmental justice as part of their mission by identifying and addressing, as appropriate, disproportionately high and adverse human health or environmental effects, including interrelated social and economic effects, of their programs, policies, and activities on minority populations and low-income populations. The DOT Order instructs DOT agencies to address compliance with Executive Order 12898 and requirements within the DOT Order in rulemaking activities, as appropriate. FRA has evaluated this final rule under Executive Order 12898 and the DOT Order and has determined it will not cause disproportionately high and adverse human health and environmental effects on minority populations or low-income populations. 43 91 FR 27534 (May 10, 2012). H. Unfunded Mandates Reform Act of 1995 Under section 201 of the Unfunded Mandates Reform Act of 1995, 44 each Federal agency “shall, unless otherwise prohibited by law, assess the effects of Federal regulatory actions on State, local, and tribal governments, and the private sector (other than to the extent that such regulations incorporate requirements specifically set forth in law).” Section 202 of the Act (2 U.S.C. 1532) further requires that “before promulgating any general notice of proposed rulemaking that is likely to result in the promulgation of any rule that includes any Federal mandate that may result in expenditure by State, local, and tribal governments, in the aggregate, or by the private sector, of $100,000,000 or more (adjusted annually for inflation) in any 1 year, and before promulgating any final rule for which a general notice of proposed rulemaking was published, the agency shall prepare a written statement” detailing the effect on State, local, and tribal governments and the private sector. This final rule will not result in the expenditure, in the aggregate, of $100,000,000 or more (as adjusted annually for inflation) in in any one year, and thus preparation of such a statement is not required. 44 Public Law 104-4, 2 U.S.C. 1531. I. Energy Impact Executive Order 13211 requires Federal agencies to prepare a Statement of Energy Effects for any “significant energy action.” 45 FRA has evaluated this final rule under Executive Order 13211 and determined that this rule is not a “significant energy action” within the meaning of Executive Order 13211. 45 66 FR 28355 (May 22, 2001). Executive Order 13783 requires Federal agencies to review regulations to determine whether they potentially burden the development or use of domestically produced energy resources, with particular attention to oil, natural gas, coal, and nuclear energy resources. 46 FRA has evaluated this final rule under Executive Order 13783 and determined that this rule will not burden the development or use of domestically produced energy resources. 46 82 FR 16093 (Mar. 31, 2017). List of Subjects 49 CFR Part 219 Alcohol abuse, Drug abuse, Drug testing, Penalties, Railroad safety, Reporting and recordkeeping requirements, Safety, Transportation. 49 CFR Part 240 Administrative practice and procedure, Locomotive engineer, Penalties, Railroad employees, Railroad operating procedures, Railroad safety, Reporting and recordkeeping requirements. 49 CFR Part 242 Administrative practice and procedure, Conductor, Penalties, Railroad employees, Railroad operating procedures, Railroad safety, Reporting and recordkeeping requirements. The Final Rule For the reasons discussed in the preamble, FRA amends parts 219, 240, and 242 of chapter II, subtitle B of title 49 of the Code of Federal Regulations as follows: PART 219—CONTROL OF ALCOHOL AND DRUG USE 1. The authority citation for part 219 continues to read as follows: Authority: 49 U.S.C. 20103, 20107, 20140, 21301, 21304, 21311; 28 U.S.C. 2461, note; Sec. 412, Div. A, Pub. L. 110-432, 122 Stat. 4889 (49 U.S.C. 20140, note) and 49 CFR 1.89. 2. Section 219.25 is amended by revising paragraph (b) to read as follows: § 219.25 Previous employer drug and alcohol checks. (b) When determining whether a person may become or remain certified as a locomotive engineer or a conductor, a railroad must comply with the requirements in § 240.119(e) (for engineers) or § 242.115(e) (for conductors) of this chapter regarding the consideration of Federal alcohol and drug violations that occurred within a period of 60 consecutive months before the review of the person's records. 3. Section 219.1003 is amended by revising paragraph (j) to read as follows: § 219.1003 Referral program conditions. (j) Locomotive engineers and conductors. Consistent with §§ 240.119(g) and 242.115(g) of this chapter, for a certified locomotive engineer, certified conductor, or a candidate for engineer or conductor certification, the referral program must state that confidentiality is waived (to the extent the railroad receives from a DAC official notice of the active drug abuse disorder and suspends or revokes the certification, as appropriate) if the employee at any time refuses to cooperate in a recommended course of counseling or treatment. PART 240—QUALIFICATION AND CERTIFICATION OF LOCOMOTIVE ENGINEERS 4. The authority citation for part 240 is revised to read as follows: Authority: 44 U.S.C. 3501 et seq.; 49 U.S.C. 20103, 20107, 20135, 20138, 20162, 20163, 21301, 21304, 21311; 28 U.S.C. 2461, note; and 49 CFR 1.89. 5. Section 240.1 is amended by revising paragraph (c) to read as follows: § 240.1 Purpose and scope. (c) The locomotive engineer certification requirements prescribed in this part apply to any person who meets the definition of locomotive engineer contained in § 240.7, regardless of the fact that the person may have a job classification title other than that of locomotive engineer. 6. Section 240.3 is revised to read as follows: § 240.3 Application and responsibility for compliance. (a) This part applies to all railroads, except: (1) Railroads that operate only on track inside an installation that is not part of the general railroad system of transportation ( i.e., plant railroads, as defined in § 240.7); (2) Tourist, scenic, historic, or excursion operations that are not part of the general railroad system of transportation as defined in § 240.7; or (3) Rapid transit operations in an urban area that are not connected to the general railroad system of transportation. (b) Although the duties imposed by this part are generally stated in terms of the duty of a railroad, each person, including a contractor for a railroad, who performs any function covered by this part must perform that function in accordance with this part. 7. Section 240.5 is revised to read as follows: § 240.5 Effect and construction. (a) FRA does not intend, by use of the term locomotive engineer in this part, to alter the terms, conditions, or interpretation of existing collective bargaining agreements that employ other job classification titles when identifying a person authorized by a railroad to operate a locomotive. (b) FRA does not intend by issuance of these regulations to alter the authority of a railroad to initiate disciplinary sanctions against its employees, including managers and supervisors, in the normal and customary manner, including those contained in its collective bargaining agreements. (c) Except as provided in § 240.308, nothing in this part shall be construed to create or prohibit an eligibility or entitlement to employment in other service for the railroad as a result of denial, suspension, or revocation of certification under this part. (d) Nothing in this part shall be deemed to abridge any additional procedural rights or remedies not inconsistent with this part that are available to the employee under a collective bargaining agreement, the Railway Labor Act, or (with respect to employment at will) at common law with respect to removal from service or other adverse action taken as a consequence of this part. 8. Section 240.7 is amended by: a. Adding in alphabetical order definitions for “Conductor” and “Drug and alcohol counselor”; b. Removing the definition of “EAP counselor”; c. Revising the definitions of “File, filed and filing” and “FRA Representative”; d. Adding in alphabetical order a definition for “Ineligible or ineligibility”; e. Revising the definitions of “Instructor engineer” and “Medical examiner”; f. Removing the definition of “Newly hired employee”; g. Adding in alphabetical order definitions for “On-the-job training (OJT),” “Physical characteristics,” and “Plant railroad”; h. Revising the definitions of “Qualified” and “Railroad rolling stock”; i. Adding in alphabetical order a definition for “Serve or service”; j. Removing the definition of “Service”; k. Revising the definition of “Substance abuse disorder”; and l. Adding in alphabetical order definitions for “Substance Abuse Professional,” “Territorial qualifications,” and “Tourist, scenic, historic, or excursion operations that are not part of the general system of transportation.” The additions and revisions read as follows: § 240.7 Definitions. Conductor means the crewmember in charge of a “train or yard crew” as defined in part 218 of this chapter. Drug and alcohol counselor (DAC) means a person who meets the credentialing and qualification requirements of a “Substance Abuse Professional” (SAP), as provided in 49 CFR [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/fr%3A2020-27209. Public record. Not legal advice.