Qualifications for Locomotive Engineers

SUMMARY: In January 1997, FRA convened a working group comprised of

rail industry and labor representatives to recommend revisions to FRA's

requirements for the qualification and certification of locomotive

engineers (49 CFR Part 240). The working group examined data, discussed

the successes and failures of the current rule, and debated how to

improve the regulations over a ten month period. This notice of

proposed rulemaking (NPRM) contains miscellaneous proposed amendments

derived from those working group meetings. In particular, the FRA

proposes to: Improve the decertification process; clarify when

certified locomotive engineers are required to operate service

vehicles; and address the concern that some designated supervisors of

locomotive engineers are insufficiently qualified to properly

supervise, train, or test locomotive engineers.

DATES: Written comments concerning this rule must be received no later

than November 23, 1998. Comments received after that date will be

considered to the extent possible without incurring additional expense

or delay.

Requests for a public hearing must be made by October 22, 1998. Any

person interested in requesting a hearing should contact Ms. Renee

Bridgers, Docket Clerk, at (202) 493-6030 or submit a written request

to the address shown below.

ADDRESSES: Written comments (three copies) concerning this rule should

be submitted to Ms. Renee Bridgers, Docket Clerk, Office of Chief

Counsel, FRA, 400 Seventh Street S.W., Mail Stop 10, Washington, D.C.

20590. Persons desiring to be notified that their written comments have

been received by FRA should submit a stamped, self addressed, postcard

with their comments. The Docket Clerk will indicate on the postcard the

date on which the comments were received and will return the card to

the addressee. Written comments will be available for examination

during normal business hours both before and after the closing date for

comments in Room 7051 at 1120 Vermont Avenue, NW, Washington, D.C.

20005. All hand deliveries should be made to the Seventh Street

address.

In the very near future, FRA's docket system will be integrated

with the centralized DOT docket facility which will enable the public

to view all documents in a public docket through the Internet. At that

time, all comments received in this proceeding will be transferred to

the central docket facility and all subsequent documents relating to

this proceeding will be filed directly in, and be available for

inspection through, the centralized docket system. A notice of the

docket system change with complete filing and inspection information

will be published in the Federal Register at the appropriate time.

FOR FURTHER INFORMATION CONTACT: John Conklin, Operating Practices

Specialist, Office of Safety Assurance and Compliance, FRA, 400 Seventh

Street S.W., Mail Stop 25, Washington, D.C. 20590 (telephone: 202-493-

6318); Alan H. Nagler, Trial Attorney, Office of Chief Counsel, FRA,

400 Seventh Street, S.W., RCC-11, Mail Stop 10, Washington, D.C. 20590

(telephone: 202-493-6049); or Mark H. McKeon, Regional Administrator,

55 Broadway, Cambridge, MA 02142 (telephone: 617-494-2243).

SUPPLEMENTARY INFORMATION:

I. Statutory Background

Section 4 of the Rail Safety Improvement Act of 1988 (``RSIA''),

Pub. L. 100-342, 102 Stat. 624 (June 22, 1988), later amended and

recodified by Pub. L. 103-272, 108 Stat. 874 (July 5, 1994), requires

that FRA issue regulations to establish any necessary program for

certifying or licensing locomotive operators. This statutory

requirement was adopted in the wake of an Amtrak/Conrail accident at

Chase, Maryland which was caused by a failure in human performance.

Congress thus determined the existence of a safety need for regulations

concerning the qualifications of engineers.

In addition to the general need for regulations, Congress required

that certain subject areas be addressed within those regulations. Now

codified at 49 U.S.C. Sec. 20135, the amended statute currently

provides in pertinent part as follows:

(a) General.--The Secretary of Transportation shall prescribe

regulations and issue orders to establish a program requiring the

licensing or certification, after one year after the program is

established, of any operator of a locomotive.

(b) Program requirements.--The program established under subsection

(a) of this section--

(1) shall be carried out through review and approval of each

railroad carrier's operator qualification standards;

(2) shall provide minimum training requirements;

(3) shall require comprehensive knowledge of applicable railroad

carrier operating practices and rules;

(4) except as provided in subsection (c)(1) of this section, shall

require consideration, to the extent the information is available, of

the motor vehicle driving record of each individual seeking licensing

or certification, including--

(A) any denial, cancellation, revocation, or suspension of a motor

vehicle operator's license by a State for cause within the prior 5

years; and

(B) any conviction within the prior 5 years of an offense described

in section 30304(a)(3)(A) or (B) of this title;

(5) may require, based on the individual's driving record,

disqualification or the granting of a license or certification

conditioned on requirements the Secretary prescribes; and

(6) shall require an individual seeking a license or

certification--

(A) to request the chief driver licensing official of each State in

which the individual has held a motor vehicle operator's license within

the prior 5 years to provide information about the individual's driving

record to the individual's employer, prospective employer, or the

Secretary, as the Secretary requires; and

(B) to make the request provided for in section 30305(b)(4) of this

title for information to be sent to the individual's employer,

prospective employer, or the Secretary, as the Secretary requires.

(c) Waivers.--(1) The Secretary shall prescribe standards and

establish procedures for waiving subsection (b)(4) of this section for

an individual or class of individuals who the Secretary decides are not

currently unfit to operate a locomotive. However, the Secretary may

waive subsection (b)(4) for an individual or class of individuals with

a conviction, cancellation, revocation, or suspension described in

paragraph (2)(A) or (B) of this subsection only if the individual or

class, after the conviction, cancellation, revocation, or suspension,

successfully completes a rehabilitation program established by a

railroad carrier or approved by the Secretary.

(2) If an individual, after the conviction, cancellation,

revocation, or suspension, successfully completes a

[[Page 50627]]

rehabilitation program established by a railroad carrier or approved by

the Secretary, the individual may not be denied a license or

certification under subsection (b)(4) of this section because of--

(A) a conviction for operating a motor vehicle when under the

influence of, or impaired by, alcohol or a controlled substance; or

(B) the cancellation, revocation, or suspension of the individual's

motor vehicle operator's license for operating a motor vehicle when

under the influence of, or impaired by, alcohol or a controlled

substance.

(d) Opportunity for hearing.--An individual denied a license or

certification or whose license or certification is conditioned on

requirements prescribed under subsection (b)(4) of this section shall

be entitled to a hearing under section 20103(e) of this title to decide

whether the license has been properly denied or conditioned.

(e) Opportunity to examine and comment on information.--The

Secretary, employer, or prospective employer, as appropriate, shall

make information obtained under subsection (b)(6) of this section

available to the individual. The individual shall be given an

opportunity to comment in writing about the information. Any comment

shall be included in any record or file maintained by the Secretary,

employer, or prospective employer that contains information to which

the comment is related.

II. Regulatory Background

One year and a half after the passage of the RSIA, FRA published an

NPRM which proposed a certification program for locomotive operators.

54 FR 50890 (Dec. 11, 1989). FRA noted that in the preamble to the

final rule that some of the comments received in response to this NPRM

suggested ``significant misunderstanding of the proposal.'' 56 FR

28228, 28229 (June 19, 1991). These misunderstandings and the

appropriateness of the approach were addressed thoroughly in the final

rule's preamble. 56 FR 28228, 28229-30 (June 19, 1991).

The final rule establishing minimum qualification standards for

locomotive engineers is a certification program, not a licensing

program. In summary, the rule requires railroads to have a formal

process for evaluating prospective operators of locomotives and

determining that they are competent before permitting them to operate a

locomotive or train. The procedures require that railroads: (1) Make a

series of four determinations about a person's competency; (2) devise

and adhere to an FRA-approved training program for locomotive

engineers; and (3) employ standard methods for identifying qualified

locomotive engineers and monitoring their performance. At the time of

publication, FRA noted that the agency ``is adopting this regulation to

minimize the potentially grave risks posed when unqualified people

operate trains.'' 56 FR 28228 (June 19, 1991).

In 1993, less than two years after the publication of the final

rule, an interim final rule was promulgated ``in response to petitions

for reconsideration and requests for clarification.'' 58 FR 18982 (Apr.

9, 1993). Some of the issues addressed in this rule included: (1) The

application of the rule to service vehicles which could potentially

function as a locomotive or train; (2) the application of the rule to

certain minimal, incidental and joint operations; (3) the application

of the rule to events involving operational misconduct by a locomotive

engineer; (4) the application of the rule to current railroad practices

for storing data electronically; (5) the application of the rule to

events involving testing and evaluation of a locomotive engineer's

knowledge or skills; (6) the application of the procedural provisions

of the rule to events involving denial, suspension and revocation of

certification; and (7) technical changes to correct minor errors in the

rule text. FRA did not provide additional notice and request for public

comment prior to making the amendments contained in this interim final

rule. ``FRA concluded that such notice and comment were impractical,

unnecessary and contrary to the public interest since FRA is, for the

most part, only making minor technical changes in response to requests

for reconsideration of issues that were previously the subject of

detailed notice and extensive comment in the development of the initial

final rule in this proceeding.'' 58 FR 18982, 19002 (Apr. 9, 1993). In

addition, FRA stated that delay in the effective implementation of this

interim rule could result in the diversion of significant resources by

all persons and entities effected by this rule. Meanwhile, this interim

final rule guaranteed a full opportunity to comment on the amendments.

In 1995, after approximately four years and four months had passed

since the initial final rule, FRA issued a second interim final rule.

This second interim final rule contained minor modifications that

clarified existing procedural rules applicable to the administrative

hearing process; a series of changes made to provide for omitted

procedures; and changes to correct typographical errors and minor

ambiguities that had been detected since the rule's issuance. 60 FR

53133 (Oct. 12, 1995). Since the Administrative Procedure Act,

specifically 5 U.S.C. Sec. 553(b)(3), provides that no notice and

comment period is required when an agency modifies rules of internal

procedure and practice, FRA issued this regulation without provision of

such a period of comment prior to its adoption. 60 FR 53133, 53135

(Oct. 12, 1995). However, FRA did provide for a 30 day comment period

subsequent to the publication of this interim final rule and stated

that any comments received would be considered to the extent

practicable.

III. The Railroad Safety Advisory Committee

In 1994, FRA established its first formal regulatory negotiation

committee to address roadway worker safety. This committee successfully

reached consensus conclusions and recommended an NPRM to the

Administrator, persuading FRA that a more consensual approach to

rulemaking would likely yield more effective, and more widely accepted,

rules. Additionally, President Clinton's March 1995 Presidential

Memorandum titled ``Regulatory Reinvention Initiative'' directed

agencies to expand their efforts to promote consensual rulemaking. FRA

therefore decided to move to a collaborative process by creating a

Railroad Safety Advisory Committee (RSAC or the Committee) pursuant to

the Federal Advisory Committee Act (Pub. L. 92-463).

RSAC was established to provide recommendations and advice to the

Administrator on development of FRA's railroad safety regulatory

program, including issuance of new regulations, review and revision of

existing regulations, and identification of non-regulatory alternatives

for improvement of railroad safety. RSAC is comprised of 48

representatives from 27 member organizations, including railroads,

labor groups, equipment manufacturers, state government groups, public

associations, and two associate non-voting representatives from Canada

and Mexico. The Administrator's representative (the Associate

Administrator for Safety or that person's delegate) is the Chairperson

of the Committee. The revisions proposed in this NPRM originated from

the deliberations of RSAC.

At an RSAC meeting that began on October 31, 1996 and ended on

November 1, the Committee agreed to take on the task of proposing

miscellaneous revisions to the

[[Page 50628]]

regulations addressing Locomotive Engineer Certification (49 CFR Part

240). See 61 FR 54698 (Oct. 21, 1996). The Committee members delegated

responsibility for creating a proposal to a working group consisting of

the members' representatives. The Qualification and Certification of

Locomotive Engineers Working Group (Working Group or Group) met for

seven week-long meetings prior to submitting the Working Group's

proposal to the Committee.

Considering the temporary nature of the two interim final rules and

the thorough review of the regulation provided for in this rulemaking

process, the two previously issued interim final rules shall be made

final when the following proposed rule is published as a final rule. Of

course, the amendments proposed here would govern any conflicts with

the previously published interim final rules when published as a final

rule.

On May 14, the Committee recommended that the FRA Administrator

publish the Working Group's consensually reached effort as a proposed

rule. Simultaneously, the Committee recognized that the proposal

contains some suggested amendments that may be further improved by

being subject to more debate. In order to address these concerns and in

keeping with the established RSAC process, ``[f]ollowing issuance of a

proposed rule, FRA requests the RSAC to assist FRA in considering

comments received; [w]ith respect to either a proposed or final rule,

FRA may schedule one or more meetings of the RSAC during which

information and views are received from other interested parties.''

FRA's ``The RSAC Process'' (Mar. 27, 1996). In conformity with RSAC's

practice, FRA would expect that this task of resolving any remaining

details would be performed by the Working Group on behalf of the RSAC

regardless of whether these details are raised by RSAC members

themselves or in comments from ``other interested parties.''

IV. The Qualification and Certification of Locomotive Engineers

Working Group

The Working Group is comprised of representatives from the

following organizations:

American Public Transit Association (APTA)

American Short Line and Regional Railroad Association (ASLRRA)

Association of American Railroads (AAR)

Brotherhood of Locomotive Engineers (BLE)

Brotherhood of Maintenance of Way Employes (BMWE)

Brotherhood of Railroad Signalmen (BRS)

Burlington Northern Santa Fe (BNSF)

Canadian Pacific Rail System (CP)

Consolidated Rail Corporation (Conrail)

CSX Transportation, Inc. (CSX)

FRA

Florida East Coast Railway Company

Gateway Western Railway

Herzog Transit Service

Illinois Central Railroad

International Brotherhood of Electrical Workers (IBEW)

Long Island Rail Road (LIRR)

Metro-North Commuter Railroad Company

National Railroad Passenger Corporation (Amtrak)

Norfolk Southern Corporation (NS)

Plasser American Corporation

Railway Progress Institute (RPI)

Transportation Communications International Union (TCU)

Union Pacific Railroad (UP)

United Transportation Union (UTU).

In addition to these Working Group members, the National

Transportation Safety Board was represented at some of the meetings.

In its Task Statement (Task No. 96-6) to the Working Group, RSAC

charged the Group to report back on the following issues: ``All matters

related to the revision of the regulations, including data required for

regulatory analysis, with the exception of Control of Alcohol and Drug

Use issues (See issues paper for October 31-November 1, 1996 meeting in

the docket).'' FRA intends to address the alcohol and drug related

issues in a future proposed rule.

The Working Group's goal was to produce a preamble and proposed

rule text recommending revisions to 49 CFR part 240, that are warranted

by appropriate data and analysis. The Working Group's recommendations

would then be sent to RSAC for review. FRA would in turn utilize the

consensus recommendations of RSAC as the basis for proposed and final

agency action whenever possible, consistent with applicable law and

Presidential guidance. The Working Group could also recommend specific

safety policies and procedures that the Working Group considered

relevant but inappropriate for regulatory action.

To accomplish this goal, the Working Group held seven meetings, all

of which were open to the public. Summary minutes were taken, and have

been placed in a docket available for inspection in Washington, D.C.

FRA worked in concert with the Working Group to develop this NPRM.

At a meeting held on May 14, 1998, RSAC voted to recommend that the

Administrator issue this document as a proposed Federal regulation and

continue the rulemaking procedures necessary to adopt its principles in

a final rule. At the conclusion of the comment period on this proposal,

FRA will work with the Working Group in developing a final rule.

The section-by-section analysis discusses all of the proposed

amendments to this part.

V. Major Issues

Background

In order to facilitate any discussions concerning this rule, FRA

presented RSAC and the Working Group with a thirty-four page ``Issues

Paper.'' This document was the agency's attempt to provide background

information, unanswered questions, and the pros and cons of possible

``options for consideration'' for all of the issues FRA had identified

as areas for reconsideration. The tone of the ``Issues Paper'' was

objective and contemplated both dramatic and subtle changes to the

regulation.

By the end of the Working Group's first meeting, the Group had

created its own list of topics to be discussed at future meetings. At

that first meeting, twenty-three issues were identified and set out in

an agenda. By the end of the sixth meeting, the Working Group had added

five (5) more topics to the agenda. This agenda was challenging, even

more so since many of these topics contained multiple sub-issues. The

following is a list of the final twenty-eight topics:

1. Modification of the Decertification Provisions to Clarify

Railroad Discretion.

2. Modification of the Provisions of Sec. 240.117 to Refine the

Operational Misconduct Events that can cause Decertification, including

Decertification Rights for Defective Equipment.

3. Permit Alternate Responses to Operational Misconduct Events.

4. Should Operational Tests Result in Decertification.

5. Ways to Improve FRA's Direct Control Over Operational

Misconduct.

6. Servicing Track Operations.

7. Should Operational Experience be a Prerequisite for Designated

Supervisors of Locomotive Engineers.

8. Use of Contractors as Designated Supervisors of Locomotive

Engineers.

9. Accommodating New Railroads--New Territories.

10. Conductor Pilots versus Engineer Pilots.

11. Class 1 Railroads' Acceptance of Class 3 Railroads'

Certification.

[[Page 50629]]

12. Electronic Data Storage.

13. Improving the Dispute Resolution Procedures.

14. A Person's Right to Exercise Seniority in Another Craft.

15. Reimbursement for Monetary Losses Due to a Railroad's Improper

Action Under Part 240, Dispute Resolution Procedures.

16. Requested Ban for Consecutively Running of Part 240

Decertification and Disciplinary Punishments Periods.

17. Data Required to be on Certificates.

18. Reviewing the Hearing and Visual Acuity Standards.

19. Class of Service.

20. Enforcement of Regulations.

21. Review Timing Constraints as Well as Requirement for State and

NDR Checks Contained Within Regulation 49 CFR 240.111, 240.217 and

240.113.

22. Supplemental Certification of Tenant Railroad Engineers (49 CFR

240.225 and 240.229).

23. Application of the Rule to Certain Service Vehicles.

24. Modify or Eliminate NDR Checks.

25. Sec. 240.107 Proposal to Modify the Definition of Locomotive

Servicing Engineer to Permit Them to Move Sand Cars, Air Repeater Cars,

Locomotive Diesel Fuel Cars, etc.

26. Proposal to Lengthen the Certification Period from 3 Years to 5

Years.

27. Sec. 240.7 Proposal to Specifically Exempt Computer Controlled/

Remote Controlled Hump Locomotive Operations From part 240.

28. Alleged Conflict Between Sec. 240.221(c) and SA 96-05,

Regarding the Identification of Qualified Persons.

In the absence of any proposed changes, it can be assumed that the

Working Group consensus was to recommend no change concerning the

specific subject. The Working Group recommended and FRA is proposing to

make changes on six major topics. A discussion of each of these major

topics follows.

A. Application of the Rule to Certain Service Vehicles

Since the rule's inception, there has been profound concern over

whether certain service vehicles (or ``specialized roadway maintenance

equipment'' as referred to in this proposed rule) should be considered

locomotives for the purposes of this rule, and in 1993 FRA promised to

issue a notice of proposed rulemaking on this issue. 58 FR 18982, 18983

(Apr. 9, 1993). The definition of a locomotive found in Sec. 240.7 of

the final rule is sufficiently broad so that the rule would require

certified operators at the controls of vehicles that are deemed

locomotives for the purposes of FRA's locomotive safety standards. See

49 CFR part 229. However, in response to petitions filed by the AAR and

Sperry Rail Services Incorporated (Sperry), FRA deferred its decision

on whether to insist that certified engineers operate four types of

vehicles that fit within that previous definition of a locomotive but

which are commonly considered ``service vehicles.''

The basis for the deferment was thoroughly explained within the

preamble of the interim final rule. 58 FR 18982, 18983 (April 9, 1993).

Within that preamble, FRA identified four general types of service

vehicles that are different from the types of vehicles traditionally

considered locomotives. There is no question that the rule requires

qualified and certified locomotive engineers to operate the types of

vehicles traditionally considered locomotives. The proposed amendments

to the rule attempt to resolve the issue of when other vehicles that

may perform the same function as a traditional locomotive are required

to be operated exclusively by certified locomotive engineers.

During the Working Group's discussions, the question of FRA's legal

authority was raised. FRA's position is that the legislative history of

the Rail Safety Improvement Act of 1988 reflects that Congress did not

intend to limit the certification rule to persons who operate

traditional locomotives. Instead, the legislative history reflects that

(1) the statute does not define ``locomotive;'' (2) Congressional

committee reports and floor speeches do not explicitly define

``locomotive;'' and, (3) in a joint statement, managers on the part of

the House and the Senate agreed that the intent of the bill was to

``require the Secretary [of Transportation] . . . to issue rules,

regulations, standards, and orders concerning minimum qualifications

for the operators of trains.'' House Conference Report No. 100-637, at

21 (May 19, 1988) (emphasis added). As a result of these findings, FRA

does not believe that the statute or the legislative history precludes

the agency from regulating the operators of service vehicles that have

operational characteristics similar to those of a train.

Given FRA's authority, one follow-up question is whether there is a

need for certification of the operators of these vehicles as a general

matter. To a great extent, the Working Group's opinion is influenced by

the publication of the recently enacted Roadway Worker Protection rule.

61 Fed. Reg. 65959 (Dec. 16, 1996) (codified at 49 C.F.R. 214). The

Working Group members recognize that the Roadway Worker Protection rule

requires the training and qualification in on-track safety for

operators of specialized roadway maintenance equipment. Hence, it would

be duplicative, to some degree, to require that these operators of

specialized roadway maintenance equipment also be certified as

locomotive engineers.

Between 1989 and 1993, there were 188 injuries and five (5)

fatalities as a result of workers being struck by maintenance-of-way

(MOW) equipment. A review of accidents in which roadway workers were

struck indicates that roadway workers have been struck by MOW equipment

during the performance of track and structures construction and

maintenance performed jointly by ground employees and heavy on-track

machinery. FRA expects that implementation of the Roadway Worker

Protection rule will prevent at least half of such potential

casualties. The probability of occurrence associated with the remaining

casualties would not likely be affected by requiring exclusive

operation by certified locomotive engineers. Based upon the history of

roadway worker casualties, virtually all of these accidents occur at

low speeds where train handling is not an issue.

After considering training, the Working Group concentrated on

categorizing the vehicles into two classes of service: (1) specialized

roadway maintenance equipment, and (2) dual purpose vehicles. The

Working Group could not document an accident history or any other

reason to require certified operators of specialized roadway

maintenance equipment when these vehicles are used ``in conjunction

with roadway maintenance and related maintenance of way functions,

including traveling to and from the work site.'' Sec. 240.104(a). The

sole purpose of this type of vehicle is to perform its intended MOW

function.

On the other hand, dual purpose vehicles, by definition, can be

used to perform an MOW function and haul cars. Thus, the need to have

certified operators of these dual purpose vehicles is genuine where the

vehicle is operating more like a locomotive than a service vehicle. The

need is not a universal one and the Working Group did not see a need

for a dual purpose vehicle to be operated by a certified locomotive

engineer when the following conditions are met: (1) The vehicle is

operated in conjunction with roadway maintenance and related MOW

functions; (2) the vehicle's movement is being conducted ``under the

authority of rules designated by the railroad for

[[Page 50630]]

maintenance of way equipment [and] under the direct supervision of an

employee trained and qualified in accordance with Sec. 214.353 of this

chapter, which provides Exclusive Track Occupancy for the roadway

equipment with respect to trains;'' (3) the person operating the

vehicle has received adequate training pursuant to safety laws

regulating roadway workers; and (4) the vehicle has met a minimum

standard for operative air brakes.

None of the Working Group members submitted statistics showing that

when dual purpose vehicles are being used for maintenance purposes they

are causing accidents or incidents that could be prevented by requiring

that such vehicles be operated by certified locomotive engineers.

Meanwhile, the Working Group did identify one potential problem. One of

the proposed conditions for a non-certified locomotive engineer to

operate a dual purpose vehicle that will be hauling cars involves a

requirement that ``not less than 85% of the total cars designed for air

brakes shall have operative air brakes.'' Sec. 240.104(b)(4). The

Working Group's intent is to make sure that when a dual purpose vehicle

is hauling cars, to or from a work site, under the direction of

qualified supervision, and operated by a trained roadway worker, the

air brakes on the consist can stop the train within the normal stopping

distance for that equipment. This requirement addresses safety concerns

raised by a fatal accident involving a burro crane hauling cars from a

work site on November 5, 1996 which did not have brake pipe hoses

connected between the locomotive crane and the three freight cars being

hauled.

FRA wants to be clear that whenever a dual purpose vehicle is

hauling cars in a train movement, regardless of whether the train is

traveling to or from a work site, it must comply with the safety

regulations found in part 232 of this chapter. These proposed revisions

to part 240 are not intended to change this requirement, rather the

proposed rule is merely aimed at determining when a person who is not a

certified locomotive engineer is able to operate a train under certain

limited conditions. That is, it is within a railroad's discretion as to

whether a locomotive engineer or other person, pursuant to

Sec. 240.104(b)(4), should operate a dual purpose vehicle hauling cars;

however, regardless of whether the operator is a certified locomotive

engineer or not, a railroad is required to operate, inspect and equip

all trains in accordance with the requirements regarding power brakes

contained in part 232 of this chapter. Thus, while this proposed part

240 exception provides railroads with the discretion to use other than

certified locomotive engineers under certain limited circumstances, the

railroads would not be granted an exception from complying with part

232 of this chapter.

We would appreciate comments to learn how others perceive the ``85%

rule'' found in Sec. 240.104(b)(4). FRA wishes to hear whether

commenters believe this rule is necessary. We are also interested to

know whether it is under- or over-inclusive. One alternative may be to

change this paragraph to read ``any person who operates a dual purpose

vehicle which is: (iv) hauling cars and which dual purpose vehicle has

been operated, inspected and equipped in accordance with the

requirements regarding power brakes contained in part 232 of this

chapter.''

One of the components of the Working Group's consensus involves how

to address the treatment of emerging technologies within the regulatory

arena. That is, manufacturers of service vehicles indicate that the

industry is requesting equipment that can perform a specific MOW task

and haul an increasing number of cars. As these vehicles improve, some

railroads may decide to take advantage of the vehicles' ability to haul

cars--even to the exclusion of their MOW function. Without a regulatory

mechanism to address these dual purpose vehicles, FRA is concerned that

some railroads might seek to use the dual purpose vehicle as a

functioning locomotive to avoid the expense of having a certified

locomotive engineer at the controls. Some Working Group members,

including FRA, believe that such a use would circumvent the legislative

intent behind the statute requiring the rule and add an unacceptable

safety risk.

B. Qualifications for Designated Supervisors of Locomotive Engineers

The role of the Designated Supervisor of Locomotive Engineers

(DSLE) is critical to the safety success of this rule. This role is

twofold. One, the DSLE makes the final determination that a locomotive

engineer is qualified to safely operate a train. Two, after a person is

certified, a DSLE is responsible for qualifying engineers on the

physical characteristics of any additional territories the engineer

will need to operate over.

Some members of the Working Group, including FRA, are concerned

with whether the current qualifications for DSLEs are too lenient. For

instance, the rule does not make operational experience a prerequisite.

FRA has noted that some railroads have been seeking to establish

systems in their implementation programs that do not assure that

supervisors will be experienced individuals. Moreover, since

implementation of the original rule, FRA has investigated several

instances in which there is some evidence that railroads designated

persons to be supervisors who have only a minimum amount of operational

experience. Although FRA is able to obtain corrective action in those

instances where there is evidence that less than fully qualified

persons are being selected, the case-by-case approach to this issue is

not the most effective way to resolve the matter.

From this starting position, the Working Group considered whether

Sec. 240.105 should be amended to specify a minimum length of time that

a person must serve as a locomotive engineer before that person would

meet the criteria for becoming a designated supervisor of locomotive

engineers. For example, one possible solution is to amend Sec. 240.105

so that it includes a requirement that all designated supervisors of

locomotive engineers have a minimum of three (3) years of experience

operating locomotives. In conjunction with this proposal, the Working

Group's review considered whether a minimum number of hours actually

operating a train each year should be articulated. One advantage of

such an experience requirement might be that DSLE candidates would

benefit from real world experience. In fact, some labor and management

Working Group members supported a minimum amount of experience

requirement since they believe that this type of experience is critical

to the development of an engineer's knowledge and skill.

Conversely, other Working Group members point out that the rule

should give railroads greater discretion since there is no clear safety

rationale based on accident statistics for an experience requirement.

These Working Group members state that the current rule assures that

persons selected to be DSLEs will be competent since it requires that

candidates for supervisor must be certified engineers. It also requires

that candidates demonstrate that they have the knowledge, skill, and

ability to be effective supervisors of engineers; these criteria

include the capacity to effectively test, evaluate, and prescribe

appropriate remedial action for noted deficiencies. In the end, the

Working Group did not reach a consensus on whether FRA should propose

an experience requirement.

As the proposed modifications to Sec. 240.105(b)(4) reflect, the

Working Group's discussion disclosed that an

[[Page 50631]]

underlying concern was the varying degree to which supervisors are

familiar with the physical characteristics of the territories in which

they work. Given this universal concern, the Working Group readily

agreed to a compromise proposal which would require those persons who

are DSLEs to be qualified on the physical characteristics of the

portion of the railroad on which they are supervising. As specifically

addressed in the proposed rule, railroads are required to address how

they intend to implement the qualification of their DSLEs on physical

characteristics and include those procedures in their certification

programs.

This compromise addresses similar safety concerns to those raised

by the lack of operational experience. That is, allegations are raised

that some DSLEs could not properly supervise, train, or test the

locomotive engineers they supervise without having an engineer's level

of education regarding the territory over which they are performing

these supervisory duties. This might be especially true when a

supervisor is transferred from a relatively flat/level territory to one

which contains steep grades. [Steep grade territory would require a

greater degree of train handling ability.] The proposed rule would

satisfy the concern that, at a minimum, a DSLE who changes territories

to a territory presenting tougher train handling challenges would

receive an engineer's level of training on the physical characteristics

of the new territory. Furthermore, FRA notes that Sec. 240.127(b)

already requires that certified locomotive engineers must have ``the

skills to safely operate locomotives and/or trains, including the

proper application of the railroad's rules and practices for the safe

operation of locomotives or trains, in the most demanding class or type

of service that the person will be permitted to perform.'' Since it is

presumed that a DSLE in a territory would be permitted to perform train

handling service in that territory, as well as be prepared to offer

remedial advice for noted deficiencies in the skill level of other

locomotive engineers, a DSLE would need training that is commensurate

with the difficulty of that territory.

The Working Group's discussions recognized that the proposed

requirement for DSLEs to be qualified on the physical characteristics

of territory over which they supervise may conflict with other findings

made by the Group. Consequently, the Working Group discussed these

conflicts and agreed to a solution. A detailed discussion of this

concern and the proposed solution is found in the section-by-section

analysis relating to Sec. 240.127(c)(2).

C. Improving the Dispute Resolution Procedures

FRA had addressed many procedural issues concerning the initial

regulation by issuing a second Interim Final Rule. 60 FR 53133 (Oct.

12, 1995). That Interim Final Rule provided improved procedures for the

conduct of hearings held in connection with certification of the

locomotive engineers pursuant to 49 CFR part 240. It clarified the

standards for initial revocation hearings and provides more detailed

procedural rules for the review of such decisions within FRA. The

intention of this interim measure was to increase the effectiveness and

clarity of the provisions involving hearings conducted in connection

with the locomotive engineer certification program. From FRA's view,

the 1995 interim changes have been successful in achieving their

intended goals.

Although FRA has already implemented this Interim Final Rule to

improve the clarity of the existing procedures, the agency recognizes

that there may be additional procedures that could be clarified or

changed that would improve the dispute resolution process located in

Subpart E. FRA received two (2) comments in response to this Interim

Final Rule, and both comments were distributed to the Working Group for

its consideration. One commenter, the AAR, is a member of the Working

Group. In summary, the AAR had two concerns. One, AAR stated that by

modifying the penalty schedule in Appendix A, FRA has made railroads

liable for civil penalties for engineer conduct; ``this would

significantly affect and alter the rights of the railroads.'' FRA

disagrees that the changes made to the penalty schedule make railroads

liable for engineer conduct; instead, FRA's position is that the

penalty schedule needed to accurately reflect the existing rule so that

it would be clear that railroads would be held responsible for their

own conduct when requiring an engineer to exceed certificate

limitations. Sec. 240.305(c). Two, the AAR also stated that ``FRA is

incorrect in concluding that permitting notice and comment * * *. is

`contrary to the public interest.' '' In hindsight, FRA stands by its

reasoning on the denial of notice and comment for the same reasons that

were originally provided. That is,

A number of these changes are critical to the effective

implementation of these rules and the delay that notice and comment

would cause would be contrary to the public interest in railroad

safety. The beginning of a new fiscal year on October 1, 1995,

provides some urgency because budgetary constraints will require the

use of internal hearing officers on all but emergency matters at the

conclusion of Fiscal Year 1995. Moreover, the orderly implementation

of part 240 requires prompt revision of its hearing procedures.

60 FR 53133, 53135-36 (Oct. 12, 1995).

The other commenter was a concerned citizen who identifies himself

as a consultant to the BLE and as someone who ``has participated in the

handling of over two dozen Petitions for Review to FRA's Locomotive

Engineer Review Board * * * [and] has served as a consultant or a

representative in four administrative hearing cases.'' This commenter

was concerned that by eliminating any reference suggesting that an

appellate review of the Locomotive Engineer Review Board's (LERB)

decision or a railroad's hearing was intended to occur at the

administrative proceeding stage, ``the amended rule [would] * * *

provide a disincentive for railroads to accord a locomotive engineer,

facing potential revocation, due process.'' Furthermore, this citizen

was concerned that ``the amended rule would essentially render the LERB

impotent as an arbiter in certification disputes.''

In response to these comments and the agency's attempt to revisit

the whole issue, FRA raised seven (7) options for consideration in the

``Issues Paper'' presented to the Committee and the Working Group. In

addressing this issue, the Working Group formed a Task Force consisting

of a some interested Group members to explore different options. After

exploring the alternatives, the Working Group accepted the Task Force

recommendations that the current system is the best choice, assuming

that the petitions to the LERB and the requests for administrative

proceedings are handled promptly.

D. Revisiting the Standards for Hearing and Vision

Since FRA has not modified the standards for hearing and visual

acuity since publishing the final rule in 1991, FRA suggests that

sufficient time has passed to evaluate the effectiveness of this rule

and determine whether any modifications are necessary. For instance,

several commenters to the 1989 proposed rule raised concerns that were

addressed in the preamble to the final rule. 56 FR 28228, 28235-36

(June 19, 1991). Based on these comments, FRA made changes to the

standards to allow railroads to use some discretion to permit

individualized assessments of acuity and allow greater freedom in

[[Page 50632]]

selecting ways to accomplish FRA's goals. Meanwhile, FRA rejected

comments that suggested different acuity standards would be better or

that no action on this subject was necessary because of existing

railroad practices.

When FRA suggested that the Committee and the Working Group review

these standards, the agency was aware of only a handful of people

dissatisfied with the rule. This dissatisfaction received the following

mention in FRA's ``Issues Paper'' presented to the RSAC:

Meanwhile, FRA is aware of at least two or three persons who

were dissatisfied with the way in which the rule was enforced to

their detriment. In addition, FRA is aware of at least one instance

in which an engineer was denied certification by one railroad due to

the inability to recognize and distinguish between the colors of

signals and yet was certified by another railroad.

Subsequent to the submission of this issue to the Working Group,

the National Transportation Safety Board (NTSB) issued a report

determining that a fatal train accident was caused by a train

engineer's inability to perceive a red block signal. The following is a

portion of the executive summary taken from the NTSB's Railroad

Accident Report--Near Head-On Collision and Derailment of Two New

Jersey Transit Commuter Trains near Secaucus, New Jersey, February 9,

1996 (NTSB/RAR-97/01):

On February 9, 1996, about 8:40 a.m., eastbound New Jersey

Transit (NJT) commuter train 1254 collided nearly head-on with

westbound NJT commuter train 1107 near Secaucus, New Jersey. About

400 passengers were on the two trains. The engineers on both trains

and one passenger riding on train 1254 were killed in the collision.

The National Transportation Safety Board determines that the

probable cause of NJT train 1254 proceeding through a stop

indication and striking another NJT commuter train was the failure

of the train 1254 engineer to perceive correctly a red signal aspect

because of his diabetic eye disease and resulting color vision

deficiency, which he failed to report to New Jersey Transit during

annual medical examinations. Contributing to the accident was the

contract physician's use of an eye examination not intended to

measure color discrimination.

As a result of its investigation, the NTSB made two (2)

recommendations to FRA. The first recommendation is numbered R-97-1 and

recommends that FRA:

[r]evise the current color vision testing requirements for

locomotive engineers to specify, based on expert guidance, the test

to be used, testing procedures, scoring criteria, and qualification

standards.

The second recommendation is numbered R-97-2 and recommends that

FRA:

[r]equire as a condition of certification that no person may act

as an engineer with a known medical deficiency, or increase of a

known medical deficiency, that would make that person unable to meet

medical certification requirements.

An NTSB representative met with the Working Group and presented these

recommendations and the NTSB's report upon which the recommendations

are based.

Upon receipt of the NTSB's recommendations, a task force consisting

of Working Group members representing a cross-section of the Group was

formed to address the NTSB's recommendations. The task force's efforts

were initially impeded because none of the task force members had the

medical expertise necessary to make an informed decision. In order to

address NTSB recommendation R-97-1 effectively, the task force relied

heavily on the resources of one Working Group member, the AAR. The task

force scheduled a meeting after securing medical opinions from those

currently administering the regulation and arranging for other medical

experts to attend that meeting. That task force meeting proved to be

productive, especially due to the participation of medical officers

from the major railroads, the Federal Aviation Administration (FAA),

and the NTSB. Although these medical officers could not vote on the

proposals, their counsel was greatly appreciated and carried great

weight. The information obtained during these contacts was used to

formulate changes both to Sec. 240.121 and formed the basis for the

proposed addition of Appendix F. The details of the task force

recommendations, which FRA adopted, can be found in the proposed

amendments to paragraphs (b), (c)(3), and (e) and which address NTSB

recommendation R-97-1.

In working through possible responses to the concern identified by

NTSB recommendation R-97-2, the Working Group considered two possible

alternative amendments that could work together with the change being

proposed in this notice; however, in the end, the Working Group decided

not to include these alternative amendments as part of the proposed

rule. One of the failed amendments was a self estoppel or disbarment

requirement that would obligate the engineer to avoid service as an

engineer if that person knew or had reason to know of any medical

condition that would make that person unable to operate a locomotive in

a safe manner. Similarly, a self reporting scheme was considered. The

reporting obligation would have been triggered whenever the engineer

develops a medical condition that could reasonably be expected to

adversely affect his or her ability to comply with this part or detects

a significant change in the severity of such a known medical condition.

The engineer would have been required to report the new medical

condition or the change in a known medical condition to the employing

railroad's medical examiner along with a duty to take appropriate tests

(such as those set forth in Appendix F) as the medical examiner may

have required.

After serious consideration, the Working Group considered these

proposed alternatives to be flawed and generally were too vague to be

fairly enforced. They do not give the individual engineer adequate

notice of the types of medical condition that would require reporting

and declining to operate a train. Reasonable people can and do differ

concerning whether a given condition of a given severity would make it

unsafe to operate a train. Since FRA has not been able to either (1)

demonstrate that accidents or fatalities are occurring because

engineers with particular serious medical conditions are operating

trains, or (2) define with any particularity the medical conditions

about which we are concerned, it would be unreasonable to require

locomotive engineers to make subjective medical judgments that may

disqualify them from earning a living.

Despite running into the above explained roadblock, the Working

Group agreed that the factual basis for NTSB's recommendations

contained reasons for concern. The Group then set out on a different

tack. The premise of this new approach was to find an objective way to

measure a deteriorating medical condition serious enough to require a

locomotive engineer take affirmative action and notify the railroad.

The duty to notify the railroad was narrowed to include only medical

conditions affecting vision and hearing since those were the only

medical criteria for certification. The Working Group's consensus on

this issue is found in proposed Sec. 240.121(f). As noted above,

additional background information on the specifics of these proposals

can be found in the section-by section analysis.

No parallel concerns have been raised concerning hearing acuity and

its testing procedures. However, the Working Group considered whether

changes were necessary to update the hearing requirements. Based on the

advice of the medical experts attending the task force

[[Page 50633]]

meeting, it was determined that no recommendations for change were

necessary.

FRA notes that it has taken the interim action of publishing a

Safety Advisory that is based on RSAC recommendations made on May 14.

See 63 FR 29297 (May 28, 1998). Safety Advisory 98-1 addresses the

vision standards of certified locomotive engineers in order to reduce

the risk of accidents arising from engineers having impaired vision. We

firmly believe that the RSAC recommendations reflect the current best

thinking of the regulated community and that broad sharing of such

information can be of assistance to medical examiners who are

responsible for administering the existing regulation.

E. Reviewing the Requirements for Consideration of Unsafe Conduct as a

Motor Vehicle Operator

Some Working Group members raised the issue of whether the proposed

rule should modify or eliminate the consideration of unsafe conduct as

a motor vehicle operator, as would be found in the National Driver

Register (NDR) and individual state motor vehicle department records.

Those requirements originate from the statute requiring the licensing

or certification of locomotive operators. See Statutory Background

section, supra. FRA went to great lengths to explain the procedures for

obtaining and evaluating motor vehicle driving record data in

Appendices C and D to Part 240.

Some Working Group members wanted to eliminate motor vehicle data

requests from the rule. The reasons for doing so are diverse. One issue

is whether the motor vehicle data are useful as a predictor of railroad

employment conduct. The experience of some Working Group members is

that the data are useful in such a small percentage of cases that the

costs far exceed the benefits. In addition, some Working Group members

believe the process is an unnecessary invasion of a person's privacy.

Meanwhile, the process of requesting the data can be frustratingly time

consuming and unreliable.

Although FRA is empathic to the concerns raised by some Working

Group members, the agency believes that eliminating the regulatory

provisions concerning the review of motor vehicle data would be

contrary to the plain meaning and intent of the statute. After further

review, the Working Group members agree that elimination of this data

review is not possible given the statutory requirements. Further, the

Working Group members recognized that the need to identify potential

substance abuse disorders was a primary motivator for the creation of

these regulations. Based on these determinations, some Working Group

members declared their intent to work towards requesting a statutory

change.

Since the Working Group resigned itself to the fact that

elimination of the review of motor vehicle driving data was outside the

Group's authority, the Group focused on identifying problems with the

current system and whether the regulation could be modified to resolve

any of those problems. Some Group members noted that it is difficult to

comply with the procedures for requesting motor vehicle checks. In

particular, they mentioned that these checks require: (1) A notarized

signed release from the person; (2) handling by mail only; and (3) a

separate request to the State in which the person has a valid motor

vehicle license. In some Working Group members' experiences, responses

from the States and the NDR could take anywhere from two (2) weeks to

several months. Occasionally, responses have been lost or claimed not

to have been received. These are serious concerns because any delay in

receiving information on potential substance abuse problems could

effect safety.

Some Working Group members expressed unhappiness regarding the type

and accuracy of the data received from the States and the NDR. It was

noted that data received from the NDR on an individual person only

advises of a probable match for that engineer in a particular State

which may have information on traffic violations. The data do not

contain specific information on what type of traffic violation(s) are

contained on the state record. The person or the railroad must make a

separate request to that State to receive specific information on any

violations. Mismatches often occur or after requesting additional State

records the information indicates other than alcohol or drug related

offenses.

The railroad Working Group members set goals of achieving (1) ``one

stop shopping'' for both NDR and State motor vehicle data, (2)

simplified request procedures, and (3) accurate data. The other Working

Group members agree that these are reasonable requests but that this

Group does not have the authority to resolve them. In order to achieve

these goals, individual companies, unions and associations plan to

contact the National Highway Traffic Safety Administration to discuss

what possible improvements can be accomplished and FRA has offered its

assistance on these matters.

In an attempt to ease the administrative burden posed by complying

with FRA's current regulations concerning motor vehicle data, the

Working Group suggested some amendments which FRA is proposing in this

notice. In Secs. 240.111(a) and (h), the proposal would provide 366

days, as opposed to the current 180 days, for the individual to furnish

data on prior safety conduct as a motor vehicle operator. This greater

time period should allow for lost or missing requests to be found or

resent. It will also provide greater leeway in straightening out

potential misinformation.

Further, a new Sec. 240.111(i) is proposed to make sure that

railroads receive timely information regarding offenses involving

prohibitions on the operation of a motor vehicle while under the

influence or impaired by alcohol or a controlled substance. This

proposal addresses the concern that by increasing the periods in which

individuals have a duty to furnish this information will not affect the

timeliness of the information received. The specifics of how this

proposal would work can be found in the section-by-section analysis.

F. Addressing Safety Assurance and Compliance

One of the principles of the current rule is that locomotive

engineers should comply with certain basic railroad rules and practices

for the safe operation of trains or risk having their certification

revoked. The rule provides for persons who hold certificates to be held

accountable for their improper conduct. The reason for holding people

accountable for operational misconduct serves one of the principal

objectives of this regulation; that is, by revoking the certificates of

locomotive engineers who fail to abide by safe rules and practices, the

implementation of the rule is instrumental in reducing the potential

for future train accidents.

FRA recommended that the Working Group consider the following five

general issues: (1) the degree of discretion accorded railroads in

responding to individual incidents; (2) the criteria for the types of

operational misconduct events that can trigger revocation of a

certificate; (3) the severity of the consequences for engaging in

operational misconduct; (4) the value of decertification for violations

that occur during operational tests required pursuant to Sec. 240.303;

and (5) the effectiveness of FRA's direct control over operational

misconduct.

1. Clarifying Railroad Discretion. Prior to the effective date of

the 1991 final

[[Page 50634]]

rule, railroads regularly applied varying amounts of discretion

concerning technical instances of noncompliance, i.e., conduct that

does not comply exactly with an operating rule but is unlikely to cause

any type of accident. The application of this discretion was often the

result of informal procedures with labor organizations representing

locomotive engineers. Since the effective date of this regulation, FRA

has received numerous inquiries as to whether or not such discretion is

permitted by the regulation for technical instances of noncompliance

with the decertifiable events specified in Sec. 240.117(e).

Section 240.307(b)(1) provides that it is mandatory for a railroad

to suspend a person's certificate when the railroad is in receipt of

reliable information indicating that the person is no longer qualified.

FRA's purpose in promulgating the rule with this mandatory language was

to eliminate railroad discretion, thereby creating uniform enforcement

throughout the industry. By eliminating railroad discretion for non-

compliance of certain serious operating rules, FRA was trying to avoid

uneven enforcement due to favoritism, whether it be from railroad

supervisors or labor organizations. In addition, the elimination of

discretion prevents railroads and labor organizations from loosely

complying with safety laws in return for some economic benefit. Thus,

FRA's goal was for all locomotive engineers to be subject to the same

decertification events regardless of which railroad employed them.

In addition, FRA's intent was that the decertifiable events

specified in Sec. 240.117(e) articulate serious instances of non-

compliance, i.e., misconduct of the type that has caused or is likely

to cause accidents. If technical instances of non-compliance are

occurring which fit the definitions of the decertifiable events

specified in Sec. 240.117(e) then the problem may be that these events

are defined too broadly. If that is so, the solution may be to further

refine these decertifiable events rather than give railroads some kind

of limited enforcement discretion.

FRA hypothesizes that if there is perceived uneven enforcement

among the railroads due to uneven use of discretion, it may be due to

the fact that some railroads have not thoroughly considered the

regulatory language in Sec. 240.307. For example, some railroads may

consider revocation due to the occurrence of an operational misconduct

event, but decide against holding a Sec. 240.307 hearing because the

engineer's actions are deemed defensible. The railroad might want to

note the incident and the railroad's reasons for not taking further

enforcement action in the engineer's file so as to provide a record in

defense of a civil money penalty by the agency for failure to withdraw

a person from service. See Sec. 240.307(a). Other railroads may

consistently hold revocation hearings and believe that they must revoke

the engineer's certificate if there is a violation of Sec. 240.117(e)

regardless of the mitigating factors or defenses. Hence, a question

arises as to whether there is suitable railroad discretion already

built into the rule which is either under or over-utilized by different

railroads.

Based on their consideration of the above information in FRA's

``Issues Paper,'' the Working Group discussed the pros and cons of each

option. In doing so, they reached several conclusions about this

subject. One conclusion is that uniform enforcement of the rule is an

important goal; hence, unbridled railroad discretion would not be in

accord with the intent of the rule. A second conclusion is that, under

limited and specified circumstances, railroads must consider certain

mitigating factors as complete defenses to an alleged violation. The

Working Group decided that one of FRA's interpretations should be made

an explicit part of the rule since it was clear that some railroads did

not understand FRA's position on the subject. That is, certification

should not be revoked if an intervening cause prevents or materially

impairs a person's ability to comply with the regulation.

Sec. 240.307(i)(1). A third conclusion that the Working Group

recommends is that those violations of Secs. 240.117(e)(1) through

(e)(5) that are of a minimal nature and had no direct effect on rail

safety should not give cause to revoke a person's certificate. The

defenses raised in the second and third conclusions are discussed in

further detail within the section-by-section analysis.

In order to ensure the proper application of railroad decisions to

forgo revocation based on a defense, the proposal would require a

railroad to maintain a record of such decisions. Sec. 240.307(j). FRA

could use such records for safety assurance and compliance purposes.

The main purposes for reviewing such records are to ensure (1) that

decisions are made based on the intent of the rule and (2) that the

rule is fairly applied. The fairness requirement involves FRA checking

that railroads uniformly apply the rule so that persons similarly

situated are similarly treated.

In order to achieve consensus, the Working Group needed to address

how to allay the railroad representatives' fears that FRA could impose

civil penalties, or take other enforcement action, if FRA judges a

railroad to have misapplied these proposed defenses. Some Working Group

members representing railroads stated that these proposed concepts are

complex and would be applied mainly by non-lawyers. Meanwhile, FRA

expressed the need for some enforcement control, otherwise the rule

might be so ambiguous as to lead to the unwanted unbridled discretion.

The Working Group struck a balance by suggesting that FRA should not

take enforcement action for situations in which the railroad makes a

good faith determination after a reasonable inquiry. FRA proposes to

incorporate that approach in Sec. 240.307(k).

2. Fine tuning the types of operational misconduct events that can

trigger revocation. FRA has already modified the operational misconduct

events listed in Sec. 240.117(e) once since the final rule was

promulgated. That modification is contained in the first interim final

rule published on April 9, 1993. FRA's changes were necessary to

prevent persons from having their certification revoked for certain

types of incidents considered too minor to warrant decertification.

Despite these modifications, FRA is aware that some members of the

industry are unhappy with the types of events that trigger revocation.

In most instances, the complaints are the result of beliefs that the

Sec. 240.117(e) cardinal safety rules are either ambiguous or too

broad. The Working Group's review of these cardinal safety rules

suggests that changes are necessary.

In summary, the Working Group consensus largely advocates adopting

previously published interpretations made by FRA in a safety advisory

distributed to leaders in the industry known as FRA Safety Advisory--

96-02. The Group's consensus is reflected in the proposed modifications

to Sec. 240.117(e)(1), (2), (4) and (5).

The one proposed change that is not derived from a previously

articulated FRA interpretation involves a modification to the cardinal

rule delineating speeding violations. The changes to Sec. 240.117(e)(2)

propose the elimination of the phrase ``or by more than one half of the

authorized speed, whichever is less,'' and would add a sentence to

include violations of restricted speed under certain conditions. Hence,

the result is that revocation would no longer be warranted for low

speed violations that

[[Page 50635]]

occur when a person is not required to operate at restricted speed. For

example, a person would no longer risk certificate revocation if the

train the person is operating is traveling at 16 to 19 miles per hour

(mph) when the maximum authorized speed is 10 mph, and the person is

not required to be able to stop the train within one-half the person's

range of vision.

The Working Group's decision in making the proposal to eliminate

low speed violations from the list of operational misconduct events is

based on their own experiences applying the rule. For instance, the

Group discussed the difficulties in precision handling at low speeds,

especially if the locomotive or train encounters any measurable grade.

Another basis for proposing the elimination of this type of speeding

violation concerns the admitted inaccuracies of the speed indicators.

This issue is also one of fairness to the individual. That is, it does

not seem fair to hold a person accountable for operating at 16 mph,

when the maximum authorized speed is ten (10) mph, and the regulations

only require speed indicators operating at speeds between 10 to 30 mph

to be accurate within plus or minus 3 mph. (See Sec. 229.117). Also, a

locomotive used as a controlling locomotive at speeds below 20 mph is

not required to be equipped with a speed indicator.

In addition, the data do not support a need to continue revoking

certificates for low speed violations that occur where restricted speed

is not an issue. Between 1991 and 1996, 29 accidents, resulting in

three (3) injuries, occurred due to excessive speed between 16 and 19

mph. Sixteen of these accidents involved a violation of restricted

speed and would remain decertifiable events under the proposal.

Thirteen of these accidents were due to excessive speed, but would no

longer be decertifiable events under the proposal. It is important to

note that none of the latter group of accidents resulted in any

injuries. Many of these accidents were due to harmonic rock which

usually occurs between 15 and 20 mph. In general, accidents which occur

at such low speeds do not result in casualties. Railroads would retain

their right to take disciplinary action in such situations pursuant to

Sec. 240.5(d). Furthermore, it would be unfair to apply to these

engineers the harsh Federal penalty that is designed for a more serious

offense, such as exceeding the maximum authorized speed by more than 10

mph.

3. Adjusting the severity of the consequences for engaging in

operational misconduct. Individuals who engage in operational

misconduct of the type proscribed in this rule are acting in ways that

routinely cause a significant number of train accidents. Denying

certificates to those who engage in such conduct both reduces the risk

that such individuals will repeatedly engage in such operational

misconduct and serves to inspire others to carefully adhere to these

critical safety rules. Both factors are intended to help prevent

possible future accidents attributable in whole or in part to lack of

routine vigilance concerning adherence to critical safety rules by

locomotive engineers.

Although FRA's position is that the current system of revocation

for operational misconduct is effective, FRA wants to consider whether

other methods would be equally or more effective. The consequences for

operational misconduct are found in Secs. 240.117(g) and (h). Some

labor Working Group members requested that the Group explore how

additional training of some sort, in addition to or as a substitute for

a revocation period, may be considered a suitable alternative. FRA

expressed the concern that non-punitive alternatives could result in

some engineers taking a more cavalier attitude towards compliance with

the regulation. One Working Group member commented that the status quo

should be maintained since most locomotive engineers now know and

accept the consequences of violations.

Initially, some Working Group members proposed that for a single

incident of operational misconduct, a person should receive training

only, i.e., no revocation period would be imposed. Some railroad

Working Group members objected to this proposal for two basic reasons.

One, mandating training would impose a financial burden on a railroad.

Second, in at least some situations, additional training would be

unnecessary. For example, if a person was recently trained or willfully

violated a rule, it might be fruitless to train them again.

Furthermore, training alone for a willful offender would not serve to

deter future conduct.

The Working Group did not deeply explore radical changes to the

current rule. The discussions indicated that the current consequences

flowing from operational misconduct were reasonable, but could be

improved with some adjustment. FRA raised whether the whole system

should be overhauled, e.g., with the implementation of a point system

as most states use to implement their individual motor vehicle driver's

licensing programs. However, the Working Group consensus is that such

drastic changes could be difficult to implement and are not necessary

to achieve the intent of the rule. Although the details of how the

Working Group's proposal would be implemented are explained in the

section-by-section analysis, some general comments concerning how the

Group reached consensus may be helpful for those who did not

participate in this process.

For instance, the Working Group's proposal includes amending

Sec. 240.117(h) so that a person who has completed such evaluation and

training could benefit by having the period of revocation reduced by as

much as half, as long as the period of revocation initially imposed is

one year or less. Although the current rule provides for the same type

of railroad discretion for a period of one year, FRA raised to the

Working Group the issue of whether it is fair to leave this unfettered

discretion with a railroad. That is, the issue raised was whether a

person should have the right to request the conditions which would

permit the reduction in a period of revocation. The basis for raising

this issue was FRA's belief that it is arguable that without such a

right, railroads would have the discretion to offer one person a

reduction in a revocation period but deny a person similarly situated

the same benefit.

After considering this question, the Working Group believes FRA

still has a legitimate basis for providing railroads with the

discretion to decide when to offer additional training and evaluation

in exchange for a reduced revocation period. One reason to provide such

discretion is that it is illogical to require railroads to provide

evaluation and training when that training is not always beneficial. As

discussed earlier, since training is not necessary in every case, a

railroad should retain discretion on whether evaluation and training

are necessary. To do otherwise would waste railroad and employee

resources at their expense. In addition, by declining to reduce a

revocation period, a railroad would retain the discretion to enforce a

more severe penalty for willful acts or omissions.

The consensus of the Working Group is that the revocation periods

were excessive and disproportionate with the nature of the offenses

which trigger them. These revised revocation periods were thought by

the Group to more accurately reflect the reality of daily railroad

operations. They are measured, progressively more stringent, and

provide an increased opportunity for mitigation by training. The basic

philosophical underpinning is that they are intended to be more

remedial than punitive. The goal of this regulation, consistent with

the goal of FRA's entire

[[Page 50636]]

safety program, is not to emphasize the punishment of employees, but to

promote safety by minimizing the likelihood that employees will commit

acts or omissions which could have unsafe consequences. FRA will make

an annual analysis of which train accidents are identifiable as being

caused by the acts or omissions of locomotive engineers. If a nexus can

reasonably be established between the modification of the revocation

periods and the incipient indicators of an increase in such accidents,

FRA will take whatever action is necessary to promote safety.

4. Revisiting whether revocation should be a consequence for

violations that occur during operational tests. Under the current rule,

a person who violates one of the decertifying events listed in

Sec. 240.117(e) during a properly conducted operational monitoring test

pursuant to Secs. 240.303 or 217.9, is subject to having their

certification revoked. FRA has received inquiries as to whether the

rule could be changed so that a person shall not have certification

revoked for any violation detected during an operational monitoring

test. The Working Group considered both the advantages and

disadvantages of the current rule and found some middle ground which

serves as the basis for the proposal being made in this NPRM.

First, the Working Group addressed the reasons for not counting

operational misconduct that occurs during testing. For instance, one

opinion was that these tests should be learning experiences for the

persons tested. If a mistake is made, additional training is the

answer. In that way, certified people could learn from their mistakes

in a testing environment where an accident/incident is unlikely.

In response, some members stated that persons who act unsafely by

violating one of the Sec. 240.117(e) provisions will receive

preferential treatment just because their non-complying activity

occurred during an operational monitoring test, rather than under

otherwise normal operations. Alternatively, some members believed that

an operational monitoring test should be an evaluation of a locomotive

engineer's skills and not a learning experience. Therefore, these

Working Group members believe that violations detected under such

circumstances should result in revocations.

As the discussion of this issue progressed, a related concern was

articulated. Some Working Group members expressed concern that

operational monitoring tests are used by some supervisors to entrap

engineers in tests that are unfair. For example, proponents of this

position have alleged that some supervisors have hidden a fusee under a

bucket and only revealed the fusee to the engineer at a point where it

was impossible for the engineer to stop the train. In other instances,

the manner in which the test was conducted made it appear that the true

purpose was not to monitor compliance but to make it inappropriately

difficult for an engineer to pass. Hence, some labor Working Group

members believe that some railroad supervisors have and will continue

to use unfair testing conditions to revoke the certificates of people

they do not like.

Since FRA already considers an improperly conducted operational

test, such as the alleged ``bucket test,'' to be an improper reason for

decertification, FRA does not give great deference to the unfair test

argument. The Working Group recognized that while FRA's interpretation

is helpful, the proposal arose from alleged improper application of the

rule. Hence, a modification was suggested to clarify this

interpretation. FRA has adopted the consensus view that it publish

FRA's interpretation as new Sec. 240.117(f)(3).

On the larger issue, some Working Group members believed that the

operational tests are conducted under real world conditions and may

often represent the only method of checking whether a certified

locomotive engineer makes an effort to comply with railroad operating

rules. If a test is properly conducted, a violation found pursuant to a

test occurs under the same conditions as other operations. Revocations

for operational misconduct that occur prior to the occurrence of

accidents constitute desirable prevention and fulfills the intent of

the rule. Without including operational tests, revocable events would

mainly be found only when an accident occurs. As a result of

disagreement as to the veracity of these comments, it was not possible

to reach a Working Group consensus on this issue. FRA has decided that

there is a sufficient basis to continue allowing revocation

consequences to apply when violations of operational testing occurs.

5. Reviewing the effectiveness of FRA's direct control over

operational misconduct. The current rule prohibits certain operational

conduct which is specified in Sec. 240.305. That section makes it

unlawful to (1) operate a train at excessive speed, (2) fail to halt a

train at a signal requiring a stop before passing it, and (3) operate a

train on main track without authority. This section enables FRA to

initiate civil penalty or disqualification actions when such events

occur and direct FRA remedial action is appropriate. Since changes to

Sec. 240.117(e) are proposed, some parallel modifications may be

necessary under Sec. 240.305.

In addition, administration of the existing rule has raised a

safety assurance and compliance issue that may require a change to the

current rule. In several incidents, FRA has encountered situations in

which designated supervisors of locomotive engineers have neglected

their supervisory responsibilities and permitted the engineer at the

controls to violate the specified prohibitions. Two of these situations

resulted in train accidents. FRA raised the issue of whether the rule

needs to explicitly provide that engineers serving in supervisory roles

who willfully participate in such prohibited activity are also covered

by this section.

Although the Working Group agrees that a change is necessary, the

Group recommended that the supervisors' conduct does not have to be

willful to be prohibited. In this way, all locomotive engineers,

supervisors and non-supervisors, would know that they will be held to

the same standard of care. This clarification is proposed in

Secs. 240.117(c)(1), (c)(2), and 240.305(a)(6). While FRA maintains

that the provision currently contains this authority, the proposed rule

changes would put certified locomotive engineer supervisors on notice

that their inappropriate supervisory acts or omissions will trigger

revocation and FRA enforcement authority.

Section-by-Section Analysis

Subpart A--General

Section 240.1--Purpose and Scope

FRA proposes to make minor amendments to paragraph (b) so that the

regulatory language used by FRA in all of its rules will become more

standardized. FRA does not intend that these proposed revisions would

substantively change the purpose and scope of this part.

Section 240.3--Application and Responsibility for Compliance.

FRA proposes to amend this section so that the regulatory language

used by FRA in all of its rules will become more standardized. FRA does

not believe that these revisions would substantively change the purpose

and scope of this part.

Paragraphs (a) and (b) contain the same approach as the current

rule but with some slight rewording. As under the current provision,

the new provision would mean that railroads whose entire operations are

conducted on track that is outside of the general system of

transportation are not covered by this

[[Page 50637]]

part. Most tourist railroads, for example, involve no general system

operations and, accordingly, would not be subject to this part.

Therefore, FRA continues to intend that this rule shall not be

applicable to ``tourist, scenic or excursion operations that occur on

tracks that are not part of the general railroad system.'' 54 FR.

50890, 50893, 50915 (Dec. 11, 1989); see also 56 FR 28228, 28240 (June

19, 1991). The word ``installation'' is intended to convey a meaning of

physical (and not just operational) separateness from the general

system. A railroad that operates only within a distinct enclave that is

connected to the general system only for purposes of receiving or

offering its own shipments is within an installation. Examples of such

installations are chemical and manufacturing plants, most tourist

railroads, mining railroads, and military bases. However, a rail

operation conducted over the general system in a block of time during

which the general system railroad is not operating is not within an

installation and, accordingly, not outside of the general system merely

because of the operational separation.

Paragraph (c) has been proposed so that the rule will more clearly

identify that any person or contractor that performs a function covered

by this part will be held responsible for compliance. This is not a

substantive change since contractors and others are currently

responsible for compliance with this part as specified in Sec. 240.11.

Section 240.5--Construction

FRA proposes to amend paragraph (a) so that the regulatory language

used by FRA in all of its rules will become more standardized. This

change explains the rule's preemptive effect. This proposed amendment

reflects FRA's effort to address recent case law developed on the

subject of preemption.

FRA proposes to amend paragraph (b) so that the regulatory language

used by FRA in all of its rules will become more standardized. The only

change is to remove the word ``any.'' This minor edit would not be a

substantive revision.

FRA proposes to amend paragraph (e) of this section by adding the

words ``or prohibit.'' The purpose of this modification was to clarify

that the rule does not prevent ``flowback.'' The term flowback has been

used in the industry to describe a situation where an employee who is

no longer qualified or able to work in his or her current position, can

return to a previously held position or craft. An example of flowback

occurs when a person who holds the position of a conductor subsequently

qualifies for the position of locomotive engineer, and at some later

point in time the person finds it necessary or preferable to revert

back to a conductor position. The reasons for reverting back to the

previous craft may be as a result of personal choice or of a less

voluntary nature; e.g., downsizing, certificate ineligibility or

revocation.

Many collective bargaining agreements address the issue of

flowback. FRA does not intend to create or prohibit the right to

flowback, nor does FRA intend to state a position on whether flowback

is desirable. In fact, the exact opposite is true. As a result of

discussions with the RSAC members, FRA has agreed to this clarification

of the original intent of paragraph (e) so that it is understood by the

industry that employees who are offered the opportunity to flowback or

have contractual flowback rights may do so; likewise, employees who are

not offered the opportunity to flowback or do not have such contractual

rights are not eligible or entitled to such employment as a consequence

flowing from this federal regulation.

Section 240.7--Definitions

The proposed rule would add seven terms and revise the definitions

of another two terms. The term Administrator would be revised to

standardize the FRA Administrator's authority in line with FRA's other

regulations. The effect of this change would be to take away the Deputy

Administrator's authority to act for the Administrator without being

delegated such authority by the Administrator. The Deputy Administrator

would also lose the authority to delegate, unless otherwise provided

for by the Administrator.

A definition for dual purpose vehicle would be added to describe a

type of vehicle that can sometimes substitute for a locomotive by

hauling cars but can also be used in a roadway maintenance function.

Exclusive track occupancy is proposed to be added since that term is

used to clarify an exception to when certified locomotive engineers

would not be required to operate service vehicles that have the ability

to haul cars. The current rule uses the word qualified without defining

it and the proposed rule expands the use of that term. The agency has

previously neglected to define FRA as the Federal Railroad

Administration, although that abbreviation has been used in the rule.

FRA also proposes to define person rather than rely on a definition

that currently appears in parenthetic remarks within Sec. 240.11.

FRA proposes to redefine the term railroad so that it becomes

standard language in all of FRA's regulations. These minor changes are

not intended to change the applicability of the rule as is presently

enforced.

Although FRA has previously defined the term filing, as in filing a

petition, or any other document, with the FRA Docket Clerk, the rule

has not defined what constitutes service on other parties. The proposed

definition references the Rules 5 and 6 of the Federal Rules of Civil

Procedure (FRCP) as amended. The intent is to incorporate the current

FRCP rules and not perpetuate those FRCP rules that are in effect when

this regulation becomes final. By defining the term service, the

expectation is that the proposed rule would clarify the obligations of

the parties and improve procedural efficiency.

A proposed definition for Specialized roadway maintenance equipment

would be added to define a type of machine that may need to be operated

by a certified locomotive engineer under certain circumstances. See

Sec. 240.104. Although similar, this equipment describes a subset of

that equipment referred to in part 214 as a ``roadway maintenance

machine;'' the main difference between these similar definitions is

that a ``roadway maintenance machine'' may be stationary while

specialized roadway maintenance equipment cannot be stationary.

Section 240.9--Waivers

FRA proposes to revise this section so that the language used in

all of FRA's rules become more standardized. The proposed changes to

paragraph (a) reflect FRA's current intent; that is, a person would not

request a waiver of one of the rule's provisions unless they were

subject to a requirement of this rule and the waiver request was

directed at the requirement for which the person wished he or she did

not have to abide by. Paragraph (c) would standardize language with

other FRA rules which clarify the Administrator's authority to grant

waivers subject to any conditions the Administrator deems necessary.

Section 240.11 Consequences for Noncompliance

FRA proposes to reword this section slightly. One change would

respond to the Federal Civil Penalties Inflation Adjustment Act of

1990, Pub. L. 101-410 Stat. 890, 28 U.S.C. 2461 note, as amended by the

Debt Collection Improvement Act of 1996 Pub. L. 104-134, April 26, 1996

which required agencies to adjust for inflation the

[[Page 50638]]

maximum civil monetary penalties within the agencies jurisdiction. The

resulting $11,000 and $22,000 maximum penalties being proposed were

determined by applying the criteria set forth in sections 4 and 5 of

the statute to the maximum penalties otherwise provided for in the

Federal railroad safety laws.

Proposed paragraphs (a), (b) and (c) would eliminate a parenthetic

definition of person since FRA proposes to define person in Sec. 240.7.

The citation to a statute has also been proposed as a revision.

Subpart B--Component Elements of the Certification Process

Section 240.103--Approval of Design of Individual Railroad Programs by

FRA

After the Working Group had concluded their meetings, FRA noted

that this section was in need of updating. The numbered paragraphs

under paragraph (a) set forth a schedule for implementing the original

final rule. Since these dates have long since passed and any railroad

that was conducting operations in 1991 and 1992 should have filed a

written program pursuant to this section, the proposed rule suggests

updating this section to address railroads commencing operations in the

future. This would not be a substantive amendment since the proposed

rule treats new railroads in the same way as the current rule. Thus,

FRA is proposing the elimination of unnecessary paragraphs in the rule

text.

Section 240.104--Criteria for Determining Whether a Railroad Operation

Requires a Certified Locomotive Engineer

FRA proposes to add this new section to address the issue of what

types of service vehicles should be operated by certified locomotive

engineers. Since this was an issue of great interest to many members of

the industry represented in the RSAC process, FRA has addressed this

issue in detail in the preamble. The proposal presented attempts to

reframe the issue by creating exemptions based on the type of

operations in which these non-traditional locomotives are involved

rather than simply focusing on the type of service vehicle.

Section 240.105--Criteria for Selection of Designated Supervisors of

Locomotive Engineers

The change to paragraph (b)(4) requires that those persons who are

DSLEs be qualified on the physical characteristics of the portion of

the railroad on which they are supervising and that a railroad's

program must address how the railroad intends to implement the

qualification of a DSLE on the physical characteristics. FRA recommends

that DSLEs acquire some operational experience over the territories

they supervise because it is arguably the best method for learning how

to operate over a territory.

The proposed addition of paragraph (c) is an effort to clear up

several issues, some of which may not be obvious. These issues involve:

(1) accommodating new railroads that have never certified a locomotive

engineer or a DSLE; (2) accommodating railroads that may have had one

or a few DSLEs at one time but no longer employ any qualified

individuals; and (3) addressing how contractor engineers may be used. A

regulatory amendment is necessary to address how railroads, who find

themselves without a qualified and certified DSLE, can designate and

train such individuals without reliance on outside sources. See 56 FR

28228, 28241-42 (June 19, 1991) (stating that a DSLE could be a

contractor rather than an employee of the railroad).

One of FRA's philosophies in applying this rule has been that it

certainly should not be an impediment to entrepreneurship. New or

start-up railroads that have never certified a locomotive engineer or a

DSLE have been unable to comply completely with this part without

relying on outside sources to supply a certified DSLE. The same can be

said of railroads that may have had one or a few DSLEs at one time but

no longer employ any qualified individuals. It was never FRA's intent

to force railroads to rely on outside sources in order to comply with

the regulation. These proposed changes would provide railroads with

better guidance than is currently found in the rule text.

For those railroads that do not have DSLEs, the addition of

paragraph (c) will enable them to consider several options in creation

of their first DSLE. (Once a railroad has its first DSLE, that first

DSLE must certify the others by following the general rule rather than

this exception). For example, the railroad could hire an engineer from

another railroad in compliance with Sec. 240.225 without having to

comply with new paragraph (a)(5). If the individual is receiving

initial certification or recertification, the railroad could comply

with new paragraph (c) as an alternative to compliance with

Sec. 240.203(a)(4). Furthermore, the railroad could choose to work with

a company that supplies experienced locomotive engineers that can be

readily trained, qualified, and certified on the host railroad's

territories.

FRA has received numerous inquiries regarding the use of outside

contractors for certification purposes and for the temporary use of

third party engineers during work stoppages. Section 5 of Appendix B in

the current Part 240 regulation makes provision for railroads to use

training companies (contractors). Actual certification must be done by

the railroad. Use of an outside contractor and how that contractor will

be used must be described in the railroad's plan submission.

For instance, a railroad may have temporary engineer employees

supplied by a contractor where the contractor has conducted the hearing

and visual acuity tests, the preemployment drug screens, the driver's

data checks, and operating rules tests. However, the railroad is

responsible for maintaining records of those tests since the railroad

is the entity actually responsible for providing proper certification.

Any contractor providing temporary engineer employees must overcome

the obstacle that the railroad is the entity that must issue the

certificate, not the contractor. Therefore, while it is possible for a

contractor to carry certificates for several or many different

railroads, the contractor is burdened with keeping each of those

certificates valid as required of any full-time engineer working for

any particular railroad. Furthermore, in order for any engineer to

remain certified, recertification must take place within three years on

each certificate the person wants to keep valid. See Sec. 240.201(c).

FRA hopes this discussion of contractors also clarifies how a short

line railroad could manage to have only one full-time locomotive

engineer (who is also a DSLE), yet still comply with all the testing

required for compliance with the regulation. That is, a contractor

could conduct all of the tests and checks for the short line railroad's

engineer. The contractor-supplied temporary engineer and the short line

railroad's engineer could also conduct the required annual check ride

for each other. Of course, a copy of all records must be maintained by

the railroad in accordance with Sec. 240.215.

FRA wants to clarify that by empowering the ``chief operating

officer of the railroad'' in paragraph (c) the Working Group's

intention is that the person ultimately responsible for railroad

operations makes this determination. It is not necessary for that

person to have the title of ``chief operating officer.'' This intention

is

[[Page 50639]]

expressed by the use of lower case letters in identifying this person.

Section 240.111--Individual's Duty To Furnish Data on Prior Safety

Conduct as Motor Vehicle Operator

Paragraphs (a) and (h) would be modified by changing the time

limits from 180 days to 366 days. The Working Group members requested

this change because they could demonstrate clear examples of the

administrative difficulties being encountered in attempting to meet the

current shorter period and the differences between the time periods.

The concern that railroad safety could be diminished by lengthening the

period of time that a person has to request and furnish data on his or

her prior safety conduct as a motor vehicle operator will be directly

addressed by the addition of paragraph (i). This new paragraph requires

certified locomotive engineers to notify the employing railroad of

motor vehicle incidents described in Sec. 240.115(b)(1) and (2) within

48 hours of the conviction or completed state action to cancel, revoke,

suspend, or deny a motor vehicle driver's license. This requirement

boils down to an obligation for certified locomotive engineers to

report to their employing railroad any type of temporary or permanent

denial to hold a motor vehicle driver's license when the person has

been found (by the state which issued the license) to have either

refused an alcohol or drug test, or to be under the influence or

impaired when operating a motor vehicle. With this new provision,

railroads will be provided with timely data on two of the most serious

safety misconduct issues certified locomotive engineers could have in

conjunction with their motor vehicle operator's license that may

readily transfer to the locomotive engineer context.

In accordance with the regulation and the timely motor vehicle

operator's license data, the railroads will need to continue

considering these data in a systematic way. This proposal would retain

the requirements in Sec. 240.115 that each railroad's program include

criteria and procedures for evaluating a person's motor vehicle driving

record. Paragraph (c) of Sec. 240.115 requires that if such a motor

vehicle incident is identified, the railroad must provide the data to

an EAP Counselor along with ``any information concerning the person's

railroad service record.'' Furthermore, the person must be referred for

evaluation to determine if the person has an active substance abuse

disorder. If the person has such a disorder, the person shall not be

currently certified. Meanwhile, even if the person is evaluated as not

currently affected by an active substance abuse disorder, the railroad

shall, on recommendation of the EAP Counselor, condition certification

upon participation in any needed aftercare or follow-up testing for

alcohol or drugs, or both.

Proposed paragraph (i) also states that, for purposes of locomotive

engineer certification, a railroad cannot require a person to submit

motor vehicle operator data earlier than specified in the paragraph.

The reasoning behind this rule involves several intertwined objectives.

For instance, some Working Group members did not want the employing

railroad to revoke, deny, or otherwise make a person ineligible for

certification until that person had received due process from the state

agency taking the action against the motor vehicle license. Otherwise,

action pursuant to this part might be deemed premature since the

American judicial system is based on the concept of a person being

innocent until proven guilty.

By not requiring reporting until 48 hours after the completed state

action, the rule has the practical effect of insuring that a required

referral to an EAP Counselor under Sec. 240.115(c) does not occur

prematurely; however, it does not prevent an eligible person from

choosing to voluntarily self-refer pursuant to Sec. 240.119(b)(3). Nor

does it prevent the railroad from referring the person to an EAP

Counselor pursuant to Sec. 240.119 if there exists other information

that identifies the person as possibly having a substance abuse

disorder. Further, the restriction applies only to actions taken

against a person's certificate and has no effect on a person's right to

be employed by that railroad.

Section 240.113--Individual's Duty To Furnish Data on Prior Safety

Conduct as an Employee of a Different Railroad

Some Working Group members raised the fact that they have

experienced occasions where they had difficulty complying with this

section due to the time limit. Paragraph (a) would be modified by

increasing the number of days an individual has to furnish data on

prior safety conduct as an employee of a different railroad. The period

was changed from 180 days to 366 days. The Working Group members

requested this change because they recognized administrative

difficulties in meeting the shorter period and the differences between

time periods. FRA does not believe that railroad safety will be

diminished by lengthening the period of time that a person has to

request and furnish this data.

Section 240.117--Criteria for Consideration of Operating Rules

Compliance Data

FRA last amended this section in its 1993 Interim Final Rule. Since

that time, FRA has found that those rule changes had the desired

results. However, FRA and the other RSAC members agreed that

clarifications in the rule itself, and some minor changes would further

improve the rule. In addition, substantial modifications are being

proposed to the revocation periods to address some concerns that they

were too long and did not encourage needed training.

First, paragraph (c) would be redesignated (c)(1) so that a related

provision could be added as (c)(2). Paragraph (c)(2) clarifies what

conduct is expected from a supervisor of locomotive engineers. FRA

believes this is a clarification since supervisors are responsible for

their conduct in the same manner as other certified engineers.

Specifically, paragraph (c)(2) identifies a general situation in

which supervisors of locomotive engineers shall have their

certification revoked. The thresholds to be met include whether a

supervisor is monitoring a locomotive engineer and, while doing so,

whether that supervisor fails to take appropriate action to prevent a

violation of paragraph (e) of this section. For example, if a DSLE is

monitoring a locomotive engineer and, while doing so, the train

encounters a properly displayed Approach Signal, and the engineer is

not taking effective action to stop at the next signal, the DSLE must

take appropriate action. Another example would be a supervisor warning

an engineer that the train is speeding and the engineer is in danger of

causing a revocable event by operating the train at a speed exceeding

10 miles per hour over the maximum authorized speed.

Appropriate action does not mean that the supervisor must prevent

the violation from occurring at all costs; the duty may be met by

warning the engineer of a potential or foreseeable violation. Similar

to the way in which the rule treats student and instructor engineers,

the decision to revoke a supervisor's certification must be made on a

case-by-case basis depending on the facts of the particular situation.

A supervisor of locomotive engineers who is involved in duties

other than monitoring the locomotive engineer at the controls of the

lead locomotive at the time an alleged violation of paragraph (e)

occurs will not have his or her certification revoked. For example, if

a System Road Foreman of Engines,

[[Page 50640]]

who is also a DSLE, is riding a train to evaluate the performance of

new locomotives and is involved in one of the scenarios described

above, his or her certification would not be in jeopardy for failure to

take appropriate action. Of course, the railroad would be free to take

whatever disciplinary or administrative action it deemed appropriate.

In clarifying when a supervisor's conduct will be considered a

revocable event, the FRA believes that a supervisor who is conducting

an unannounced operating rules compliance test, which is also known as

an efficiency test, should not be held culpable for the operating

locomotive engineer's actions. All the Working Group members agreed

that it would defeat the purpose of these tests if supervisors were

required to take appropriate action in order to prevent the operational

misconduct events the supervisors are monitoring to find. Also, an

unannounced operating rules compliance test is performed in a

controlled environment so that the supervisor can test the engineer's

skills without fear of causing an accident/incident. In contrast, the

proposal would continue to hold supervisors (DSLEs) responsible during

both the operational monitoring observation under Sec. 240.129 and the

skills performance test under Sec. 240.127 since these observations and

tests are conducted under uncontrolled actual operating conditions. By

making this defense explicit, the intention is to provide an equivalent

level of protection or due process to both supervisors and locomotive

engineers.

The only change to paragraph (d) would involve shortening the

period of 60 months to 36 months in reviewing prior railroad operating

rule compliance. This change would bring the rule into line with the

other changes made to this section.

The proposed change to paragraph (e) is an attempt to resolve

confusion that might surface between the interplay of this section and

Sec. 240.1(b). According to Sec. 240.1(b), this part prescribes minimum

Federal safety requirements and does not restrict a railroad from

implementing additional or more stringent requirements for its

locomotive engineers that are not inconsistent with this part. It is

possible that a railroad could interpret that section to permit them to

revoke a person's certificate for misconduct events more stringent than

articulated by rule. FRA wants to be clear that we do not hold that

same interpretation and the Working Group wants FRA to clarify this

issue by amending the regulation. By adding the word ``only,'' the

proposed paragraph (e) reads that ``[a] railroad shall only consider

violations of its operating rules and practices that involve * * * ''

Thus, the proposed regulation would limit the revocable events to only

those listed in Sec. 240.117(e).

Paragraph (e)(1) would be modified to reflect FRA's current

interpretation that violations of hand or radio signal indications will

not be considered revocable events. Although the agency had attempted

to clarify its interpretation of this paragraph in the 1993 Interim

Final Rule, FRA's preamble contained conflicting statements. As a

result, this issue is ripe for clarification. The modification in the

rule will alert the entire industry to a single standard to be applied

universally and prevent the need for future misguided revocation

proceedings.

In addition, FRA notes that a switch will not be considered a

signal. Although some railroads define a switch as a signal, the

Working Group agreed with the FRA's interpretation that it would be

unfair to treat it as such for certification purposes. That is, a

switch is not readily considered a signal given that its intended

function is not to alert an engineer to stop. Instead, a switch's

intended function is to enable a train to change the track it is

operating over.

Paragraph (e)(2) defines what constitutes a speed violation

requiring revocation. One modification to this paragraph is the

elimination of the phrase ``or by more than one half of the authorized

speed, whichever is less.'' As a result of this phrase, violations of

restricted speed and low speed violations not reaching 10 miles per

hour over the maximum authorized speed could result in revocation. The

new paragraph (e)(2) would add a sentence to include violations of

restricted speed under certain conditions, however, the new provision

would eliminate low speed violations resulting in revocations. For

example, a person would no longer risk certificate revocation if the

train he or she operated is traveling at 16 mph when the maximum

authorized speed is 10 mph.

After the April 9, 1993, interim final rule was published, FRA

realized that the application of paragraph (e)(2) to decertification of

locomotive engineers for violations of restricted speed, or the

operational equivalent of restricted speed, was not the same as the

anticipated application. See 58 Fed. Reg. 18982. The problem with

restricted speed was similar in nature to other problems FRA had hoped

to fix with its 1993 interim final rule. That is,

the current rule does not distinguish serious offenses from negligible

offenses. Railroads, believing themselves to be under a regulatory

mandate to take action even for offenses that might not have been the

subject of disciplinary action, have in some cases decertified

employees where FRA had not anticipated such actions.

See 58 Fed. Reg. 18987. While FRA's 1993 regulatory language cleared up

one set of ambiguities, that rule did not effectively address the

subset of restricted speed violations.

Concerning the issue of restricted speed, the rule will formally

publish FRA's interpretation on this issue. Generally, restricted speed

rules provide a maximum speed and a conditional clause stating that a

locomotive engineer must be able to stop the train being operated

within one half the range of vision. Some railroads have argued that

the very fact that a collision occurred or that a misaligned switch was

run through at restricted speed, required the railroad to undertake the

revocation process. While these incidents indicate a need for further

railroad investigation, they will not always result in the need for

decertification.

Note: This proposal also seeks to clarify that running through a

switch will not be considered a violation of Sec. 240.117(e)(1);

i.e., a switch will not be considered a signal requiring a complete

stop before passing it; however, running through a switch at

restricted speed may be a revocable event when it is a reportable

accident/incident pursuant to part 225.

Since FRA disagreed with the assertion that revocation should be

mandatory each time a switch is run through or a collision occurs at

restricted speed, the agency disseminated its interpretation through

letters to industry associations and unions. As we noted when we

adopted the initial provisions of this section, FRA's intent was to

respond to the type of operational misconduct that was causing

accidents. Implicit in FRA's approach was a focus on decertification

for significant events instead of for every minor collision or movement

through a misaligned switch.

FRA's interpretation of this regulation is captured in the second

sentence of paragraph (e)(2) which states that ``[r]ailroads shall

consider only those violations of the conditional clause of restricted

speed rules, or the operational equivalents thereof, which cause

reportable accidents or incidents under 49 CFR Part 225 as instances of

failure to adhere to this section.'' Depending on the specific language

used in a railroad's code of operating rules, the operational

equivalent of restricted speed refers to other limitations on train

speed which

[[Page 50641]]

include the conditional clause similar to that previously described.

Examples of some of the speed rules which are the operational

equivalent of restricted speed include those that are called yard

speed, reduced speed, caution speed, controlled speed or other than

main track speed.

It is important to note that this interpretation, and expected

regulatory amendment, does not and would not alter the agency's belief

that the current rule is unambiguous concerning the maximum speed

portion of the restricted speed rule. That is, if the locomotive or

train is operated at a speed which exceeds the maximum authorized speed

by at least 10 miles per hour, there would be no need to analyze

whether a reportable accident/incident occurred since the conditional

clause of the restricted speed rule would not be the violated

provision.

Likewise, if a person violates any one of the other provisions of

Sec. 240.117(e) while operating at restricted speed, that person is

subject to certification implications for violating that other

provision. For example, a person operating a locomotive at restricted

speed could be found to have violated Sec. 240.117(e)(1) if he or she

operated a locomotive past a signal indication that requires a complete

stop before passing it. Any reference to damage thresholds would not be

applicable since this other provision of Sec. 240.117(e) was

simultaneously violated.

This interpretation will benefit the railroad industry by providing

a clear line of demarcation. The result should prevent the dilemma of a

railroad bringing certification action against an engineer due to a

railroad official's belief that federal law requires it to do so.

Meanwhile, it will benefit both engineers and railroads by eliminating

many truly minor accidents or incidents from impacting certification

status.

FRA notes that it has not proposed any specific changes to

paragraph (e)(3) which refers to certain brake test requirements in 49

CFR part 232. This paragraph will likely need amending prior to

becoming a final rule since two other regulatory proceedings may result

in new rules which may supersede this reference. FRA has currently

proposed Passenger Equipment Safety Standards to be published at 49 CFR

part 238. See 62 FR 49728 (Sept. 23, 1997(citing proposed

Secs. 238.313, 238.315, and 238.317). FRA also anticipates proposing

changes to 49 CFR part 232 itself. See 63 FR 48294 (Sept. 9, 1998). In

the final rule, FRA reserves the right to make conforming changes to

this paragraph as necessary.

Paragraph (e)(4) would be revised by adding the words ``or

permission.'' FRA considers this revision as merely a clarification of

the existing rule. In 1993, this paragraph was modified to prevent

minor incidents from becoming revocation issues. The rule was changed

so that entering ``main track,'' instead of entering a ``track

segment,'' without proper authority would be considered operational

misconduct. Main track is defined in Sec. 240.7 as ``a track upon which

the operation of trains is governed by one or more of the following

methods of operation: timetable; mandatory directive; signal

indication; or any form of absolute or manual block system.''

FRA has received inquiries into what is meant by the term

``mandatory directive'' as that word was used in the 1993 rule to

clarify the definition of main track. FRA's intent was for this term to

be defined in the same way that it has historically been defined in 49

CFR Part 220; that is, ``mandatory directive'' means ``authority for

the conduct of a railroad operation.'' It includes all situations where

a segment of main track is occupied without permission or authority in

accordance with a railroad's operating rules. However, it does not

include advisory information, such as that from a yardmaster relative

to which track to use in a yard. Hence, in order to clarify this point,

FRA has added the words ``or permission'' in paragraph (e)(4).

Paragraph (e)(5) would clarify FRA's existing interpretation

concerning what constitutes a tampering violation that requires

revocation action. The change would add the phrase ``or knowingly

operating or permitting to be operated a train with a tampered or

disabled safety device in the controlling locomotive.'' This

clarification is intended to answer the question of whether

``tampering'' is defined only as operating with a safety device that

was purposefully disabled by the person charged or whether tampering

also means knowingly operating a train when the controlling locomotive

of that train is equipped with a disabled safety device. Both FRA's

current interpretation and the proposed changes concur that tampering

can also mean knowingly operating a train when the controlling

locomotive of that train is equipped with a disabled safety device.

FRA reached its current interpretation and this amending

clarification by reviewing the RSIA and 49 CFR part 218, App. C. The

RSIA required DOT to promulgate rules as necessary to prohibit the

``willful tampering with, or disabling of'' safety devices. Section 21

of the RSIA states in part that ``[a]ny individual tampering with or

disabling safety or operational monitoring devices in violation of

rules, regulations, orders, or standards issued by [DOT], or who

knowingly operates or permits to be operated a train on which such

devices have been tampered with or disabled by another person, shall be

liable for such penalties as may be established by [DOT], which may

include fines under section 209, suspension from work, or suspension or

loss of a license or certification issued under subsection (I) [of 45

U.S.C. 202].'' Subsection (I) refers to the locomotive engineer

certification rule which was introduced by Congress at the same time.

Thus, it appears that Congress envisioned that a person who tampers

with, knowingly operates, or permits to be operated a train with a

disabled safety device could be liable for suspension or loss of

locomotive engineer certification.

Moreover, the proposed change comports with the agency's existing

regulations concerning tampering with safety devices. When devising

this proposal, the Working Group referred to 49 CFR 218.55, 218.57 and

part 218, App. C (``Statement of Agency Policy on Tampering''). After

considering FRA's existing interpretations, it was concluded that

extending this policy to locomotive engineers in the certification

process was necessary.

Paragraphs (f)(2) and (3) would clarify FRA's existing

interpretation that violations of the misconduct events listed in

paragraph (e) of this section that occur during properly conducted

operational compliance tests shall be considered for certification,

recertification, or revocation purposes. One reason for further

clarification is that some RSAC members complained that these

operational monitoring tests can be used by supervisors to entrap

engineers in tests that are unfair. For example, FRA has heard

allegations that some supervisors have been able to get engineers

decertified by hiding a fusee under a bucket and only revealing the

fusee to the engineer at a point where it is impossible for the

engineer to stop the train. Although FRA has not observed any such

tests, the agency currently considers an ``improperly'' conducted

operational test, i.e., a test not conducted according to a railroad's

own operating rules, such as the alleged ``bucket test,'' to be an

improper reason for decertification. Hence, the agency agreed with the

RSAC members that the rule needs amending to caution the regulated

community that improper testing cannot lead to revocation. Meanwhile,

the RSAC members agreed that an operational monitoring test pursuant to

Secs. 240.117 and 240.303 is

[[Page 50642]]

an evaluation of a locomotive engineer's skills and should, therefore,

have certification consequences flow if violations occur.

The only change to proposed paragraph (g)(3)(i) was to correct a

typographical error. The word ``in'' was added after the word

``described.''

Paragraphs (g)(3)(ii), (iii), and (iv) would be added for three

purposes. One, an additional period of revocation was added so that it

will take four, instead of the current three, separate incidents

involving violations of one or more of the operating rules or practices

pursuant to paragraph (e) before the longest period of revocation is

implemented. Two, the periods of revocation have been shortened; hence,

a second offense period is shortened from one year to six months and a

third offense period is reduced from five years to one year. The

occurrence of a fourth offense would trigger a three year revocation,

instead of the current five year maximum. These two changes are

desirable since the Working Group members agreed that the one year and

five year penalties were overly punitive for second and third offenses

respectively.

Third, the time interval in which multiple offenses would trigger

increasingly stiffer periods of revocation would be reduced. As a

result of these time interval reductions, if a period of 24 months,

reduced from 36 months, passes between a first and second offense, the

second offense revocation period will be treated in the same way as a

first offense. If a period of 36 months, reduced from five years,

passes between a second and third offense, or a third and fourth

offense, this later offense will also be treated in the same way as a

first offense.

Under both the proposed and current revocation period schedules,

the period of revocation is based on a floating window. Hence, under

the proposal, if a second offense occurs 25 months after the first

offense, the revocation period will be the same as a first offense;

however, if a third offense occurs within 36 months of the first

offense, the revocation period will be one year. The anomaly will be

that the person's certificate could be revoked twice for one month

under paragraph (g)(3)(i) but that the third incident could result in a

one year revocation under paragraph (g)(3)(iii) without the benefit of

the interim six month revocation period under paragraph (g)(3)(ii).

Although this may on its face appear to be peculiar, the Working Group

members agreed that it was fair given the totality of the

circumstances. FRA recommends that when computing a revocation period,

one should review whether there were any other revocation incidents

during the prior 24 and 36 months from the most recent incident;

creation of a timetable can be useful in making this determination.

The proposed rule would add paragraph (g)(4) to retroactively apply

the new, shorter periods of ineligibility to most incidents that have

occurred prior to the effective date of this rule. The Working Group

discussed the fairness of retroactively applying this rule rather than

leaving the more burdensome, longer periods of revocation in place for

those people who hold revoked certificates. In addition, the Working

Group discussed their intent that future ineligibility periods would be

determined by the ``floating window'' effective on the date of the next

incident. Since the date of the subsequent incident is the deciding

factor, it should be unnecessary to address this issue in the rule

text. Furthermore, although Sec. 240.5(e) already states that this part

shall not be construed to create any entitlement, the Working Group

noted that they did not intend to create a right to compensation for

any employee who may have benefited by a reduced period of

ineligibility as a result of the addition of paragraph (g)(4).

Paragraph (h) would be amended by adding the words ``or less''

after ``one year.'' The reason for this amendment is to capitalize on

the addition of a separate revocation period for a fourth offense and

to allow further mitigation of what has been perceived by the RSAC

members as penalties that are too harsh. That is, the railroads'

discretion to reduce a revocation period has been extended from only

second offenses to first, second, and third offenses. As before, all of

the requirements of (h) would need to be met prior to a reduction in a

revocation period. Also, a reference to paragraph (g)(2) has been

corrected to cite to (g)(3).

Paragraph (j) and its subparagraphs utilize the same technique as

previously used in paragraph (i) to make a fair transition after

amendments are made to the regulation. This additional paragraph would

resolve questions concerning the validity of railroad decisions made in

conformity with the provisions of this section prior to its proposed

revisions by this amendment. Railroad decisions made in conformity with

the initial wording of this section were valid at the time they were

rendered and it is not the Working Group's recommendation or FRA's

intent to retroactively invalidate those decisions.

Although the Working Group believes that the prior decisions should

not be rendered invalid by this amendment, as a matter of fairness to

those who violated the underlying railroad rule under the previous

wording of this provision, those incidents should not have further

prospective effect on the certification status of those locomotive

engineers. Under Secs. 240.117(d) and (g), prior incidents of

operational misconduct result in progressively longer periods of

ineligibility. Proposed Sec. 240.117(j) precludes railroads from

considering prior incidents that would no longer violate the rule. Not

all prior railroad decisions are affected. Only operational misconduct

incidents that would not be a violation under the proposed rule are

affected. Subsection 240.117(j) identifies those events. In drafting

proposed Sec. 240.117(j), the Working Group was attempting to be fair

to both railroads and employees. The railroads should not be penalized

for complying with the rule as it previously read. Moreover, any

economic consequences suffered by employees came as a result of the

railroad's operation of its disciplinary authority. If the exercise of

that authority was proper at the time, a change in the federal rule

does not alter that determination. However, because the RSAC has now

determined that, henceforth, certain types of incidents are too minor

to warrant decertification, further reliance on such lesser violations

would be unfair to the employee. Even though such violations were

appropriately handled at the time, giving them a cumulative effect in

the certification process no longer makes sense in terms of RSAC's new

perception of their importance to the Federal scheme.

Section 240.121--Criteria for Vision and Hearing Acuity Data

The main purpose behind the proposal to amend this section is to

prevent potential accidents due to a locomotive engineer's medical

condition that could compromise or adversely affect safe operations.

Although FRA originally desired that RSAC review the current medical

qualifications, this issue gained greater urgency following the

investigation of a collision in which a locomotive engineer's alleged

deteriorating vision was considered a factor. See Railroad Accident

Report--Near Head-On Collision and Derailment of Two New Jersey Transit

Commuter Trains near Secaucus, New Jersey, February 9, 1996 (NTSB/RAR-

97/01). Specific recommendations were made by the NTSB and those

recommendations were

[[Page 50643]]

directly addressed by RSAC in paragraphs (b), (c)(3), (e) and (f). See

NTSB Safety Recommendation R-97-1 and R-97-2, which were previously

discussed in the preamble section titled ``D. Revisiting the Standards

for Hearing and Vision.''

Paragraph (b) suggests two modifications in order to address the

factual concern identified in NTSB's investigation. One, a reference to

newly proposed Appendix F has been added so that the color vision

tests, and scoring criteria would be specified. Two, the testing

procedures and qualification standards are specified by recommending

that the tests be performed in accordance with the directions supplied

by the manufacturer of the chosen test or any American National

Standards Institute (ANSI) standards that are applicable. As requested

by the NTSB, this proposal was based on expert guidance from several

railroad medical officers, an FAA medical officer and an NTSB medical

officer. While the second modification is a recommendation and not a

requirement, FRA's position is that the proposal would provide

sufficient guidance to those administering the tests as to where they

should look in confirming that they are conducting the tests properly;

by including this recommendation, FRA would be calling attention to the

need for test administrators to follow proper medical testing

methodology and thereby avoid the problem of mistakenly providing the

wrong type of test.

It was suggested that paragraph (c)(3) be amended to address NTSB

recommendation R-97-1. For instance, a reference to proposed Appendix F

was necessary to integrate the specified color vision tests proposed.

The word ``railroad'' was added before ``signals'' to further elaborate

to the medical examiners conducting such tests that the key is being

able to distinguish railroad signals; without such a clarification, the

medical experts warned that medical examiners unfamiliar with the

railroad environment might focus their attention on colors that do not

appear as railroad signals. Another clarification to this paragraph is

the addition of the words ``successfully completing one of the tests.''

The task force discussed that although these tests should be readily

available, not every medical office will have more than one of these

tests. In addition, given the specified failure criteria, it would be

unnecessary to initiate multiple tests if one is successfully completed

since that would be redundant.

Paragraph (e) would be amended to include the words ``upon

request.'' The reason for adding these words is to create a right for a

person who has failed to meet the required vision or hearing acuity

standards. The effect will be that instead of a railroad having the

discretion to determine whether a person is otherwise qualified to

operate a locomotive, the person has a right to request such a medical

evaluation from the railroad's medical examiner. The objective in

making this change is to encourage uniform and consistent actions so

that persons with similar medical deficiencies will be treated

similarly.

Other significant changes to paragraph (e) are proposed based on

the task force finding that some railroad medical examiners either do

not work directly for the railroad or are unfamiliar with railroad

operations. The most significant proposal to address this concern would

require the medical examiner to consult a designated supervisor of

locomotive engineers (DSLE) prior to determining whether a person who

fails to meet any hearing or vision standard has the ability to safely

operate. Currently, there is no explicit consultation requirement

although good sense would suggest that a medical examiner should

consult someone with railroad expertise if they had any questions about

railroad operations. The task force clearly intended for the decision

to remain with the medical examiner, not the DSLE.

The following proposals also attempt to educate the medical

examiner who may be unfamiliar with FRA's rule or railroad operations.

By requiring that the railroads provide their medical examiners with a

copy of this part as amended, it should insure that those conducting

the tests will use approved tests and understand the standards to be

met. The words as amended are intended to require that the railroad

provide updated copies of the regulation when future proposed changes

become effective.

Paragraph (f) is intended to achieve similar goals to those

suggested by NTSB. It would create a reporting obligation for any

certified locomotive engineer based on objective, deteriorating changes

in a person's hearing or vision that is likely to effect safety. In

practice, it would be expected that the railroad would need to take

appropriate steps to evaluate a person who notifies the railroad's

medical department or an appropriate railroad official of this

condition. Certainly, it is reasonable for FRA to expect that a

railroad will retest such a person to determine the extent of the

deteriorating condition. Most likely, it would be necessary for a

medical examiner to follow the requirements of paragraph (e) of this

section, which would include a consultation with a DSLE.

In developing paragraph (f), the medical officers advising the task

force recommended using the phrase ``best correctable vision or

hearing.'' This recommendation recognizes that a person could have

suffered deterioration to any aspect of their hearing or vision, and

yet corrective lenses or a more powerful hearing aid could provide the

person with a level of vision or hearing that is equivalent, or better,

to what the person had prior to the deterioration. In addition, while

the individual should be concerned and may want to report any

deteriorating vision or hearing to the railroad, the requirement to

report would be limited to those instances in which the deteriorating

condition results in the person no longer meeting one or more of the

prescribed vision or hearing standards or requirements of this section

despite the use of corrective devices. FRA's position is that this

proposal is unambiguous as to the person's obligation and should be

enforceable if made final.

Section 240.123--Criteria for Initial and Continuing Education

Paragraphs (d), (d)(1), and (d)(2) would be added to help resolve

numerous inquiries FRA has received regarding how engineers can become

familiar with the physical characteristics of a territory on new

railroads being created, or on portions of a railroad being reopened

after years of non-use. The new paragraphs seek to clarify the rule and

reflect FRA's current interpretation. The Working Group recommended

that rather than have the agency repeatedly address these issues on a

case-by-case basis, it would be a better use of resources, and fairer

to all parties, if the guidance were published so that FRA would treat

all railroads uniformly, not be overly burdensome, and not compromise

safety.

Initially, the Working Group sought to address this issue in an

appendix to the rule. The idea was that this information is guidance

not requiring a rule change. Based on further evaluation, the Working

Group recognized that the purposes of the guidance would substantively

change the rule. Thus, a place for this proposed guidance has been

integrated into the rule text itself.

Section 240.127--Criteria for Examining Skill Performance

DSLEs are required to conduct skill performance tests pursuant to

Sec. 240.127. This formal test is required prior to

[[Page 50644]]

initial certification or recertification of the engineer. A consensus

was reached that a DSLE can determine an engineer's train handling

abilities without being familiar with the territory over which the

engineer is operating. Based on that consensus, the Working Group

decided that the proposed rule should not require DSLEs to be qualified

on the physical characteristics of the subject territory in order to

conduct this test.

Meanwhile, Sec. 240.127(c)(2) requires that the testing procedures

selected by the railroad shall be conducted by a DSLE. Without an

exception, a Catch-22 issue arises as to whether it is possible for a

railroad to designate a person as a DSLE when that person does not meet

the definition of a DSLE (because the person is not qualified on the

territory over which the person is supposed to conduct a skill

performance test). To relieve this conflict, the Working Group's

solution was to propose that Sec. 240.127(c)(2) be amended so that it

would read ``Conducted by a designated supervisor of locomotive

engineers, who does not need to be qualified on the physical

characteristics of the territory over which the test will be

conducted.'' This proposal accommodates the Working Group's findings

regarding the need for qualified DSLEs.

Subpart C--Implementation of the Certification Process

Section 240.217--Time Limitations for Making Determinations

All of the modifications being proposed for this section involve

changes to time limits. The RSAC members requested these changes

because they recognized administrative difficulties in meeting the

shorter and inconsistent periods. FRA does not believe that these time

extensions will make the data so old that they will no longer be

indicative of the person's ability to safely operate a locomotive or

train.

When the rule was originally published, time limits were

established which seemed reasonable and prudent. The rule contained

numerous time limits of varying length, which has lead to confusion by

those governed by the rule. Since publication of the rule, experience

by the regulated community has shown the potential for simplification

and consistency without sacrificing safety.

Section 240.223--Criteria for the Certificate

The proposed amendment to paragraph (a)(1) would require that each

certificate identify either the railroad or ``parent company'' that is

issuing it. This change would provide relief to companies, primarily

holding companies that control multiple short line railroads, from

having to issue multiple certificates. For these companies, complying

with the current requirement of identifying each railroad has become a

major logistical problem. ASLRRA, the original author of this proposal,

has stated that a holding company managing multiple short line

railroads is the equivalent of a major railroad operating over its many

divisions; thus, it is fair to treat them similarly. However, the

individuals must still qualify under the program of each short line

railroad for which they are certified to operate and each of those

railroads must maintain appropriate records as required by this part.

Section 240.225--Reliance on Qualification Determinations Made by Other

Railroads

The proposed modification of this section addresses several

concerns. First, new paragraph (a) addresses the perception that the

larger railroads often administer a more rigorous training program than

the smaller railroads due to the nature of their operations. While the

Working Group did not intend to minimize the quality of the training

programs of many smaller railroads or the expertise and professionalism

of their locomotive engineers, it did intend to address the fact that

small railroads often have more straightforward operations which are

geographically compact and not topographically diverse.

The proposal would require a railroad's certification program to

address how the railroad will administer the training of previously

uncertified engineers with extensive operating experience or previously

certified engineers who have had their certification expire. If a

railroad's certification program fails to specify how to train a

previously certified engineer hired from another railroad, then the

railroad shall require the newly hired engineer to take the hiring

railroad's entire training program. By articulating both the problem

and mandating the safe solution, the Working Group believes the

proposal will save resources.

This issue is of considerable moment due to the current economic

climate. Railroad ton-miles per year are at historically high levels.

Whereas a few years ago, the industry was offering severance packages

to train and engine crews, more recently the demand for skilled workers

in these crafts has led to significant hiring of new employees. Larger

railroads have found smaller railroads to be fertile fields for such

hiring efforts.

One example of such a problem might involve a train service

engineer from a Class III operation. That person would probably be

trained under the standard Class III certification program and,

therefore, would receive approximately 3 and \1/2\ weeks of training.

This is the minimum training acceptable for basic railroad yard type

operations (slow speed moves with limited numbers of cars). This

training would not be acceptable for Class I and II railroad operations

since these usually encompass higher speeds, heavier and longer trains,

and utilize more complex methods of operation.

Section 240.229--Requirements for Joint Operations Territory

The proposal to amend paragraph (c) reflects a Working Group desire

to realign the burden for determining which party is responsible for

allowing an unqualified person to operate in joint operations. These

changes are based on the experiences of the Working Group members who

believe that an inordinate amount of the liability currently rests with

the controlling railroad. The perceived unfairness rests on the fact

that it is not always feasible for the controlling railroad to make all

of the determinations required of current paragraph (c). The guest

railroad may provide the controlling railroad with a long list of

hundreds or thousands of locomotive engineers that it deems eligible

for joint operations; following up on a long, and ever changing list is

made much more difficult since a controlling railroad does not control

the personnel files of the engineers on this list.

The proposed realignment would lead to a sharing of the burden

among a controlling railroad, a guest railroad and a guest railroad's

locomotive engineer. The parties responsibilities are found

respectively in paragraphs (c)(1) through (3). Although a controlling

railroad still has the same obligations to make sure the person is

qualified, paragraph (c)(2) would require that a guest railroad make

these same determinations before calling a person to operate in joint

operations. Paragraph (3) reiterates the responsibility the rule places

on engineers to notify a railroad when the person is being asked to

exceed certificate limitations. While this proposed amendment might

seem duplicative to some people in light of Sec. 240.305(c), the

Working Group believed that some people might not readily recognize

their responsibility unless specifically referenced in this section.

[[Page 50645]]

Section 240.231--Requirements for Locomotive Engineers Unfamiliar With

Physical Characteristics in Other Than Joint Operations

The proposed addition of this section will improve safety and clear

up a complicated issue. Section 240.1 requires ``that only qualified

persons operate a locomotive or train.'' The term qualified has a

proposed definition in Sec. 240.7; that definition states that

qualified ``means a person who has passed all appropriate training and

testing programs required by the railroad and this part and who,

therefore, has actual knowledge or may reasonably be expected to have

knowledge of the subject on which the person is qualified.'' The rule

is currently silent as to the use of pilots except for joint operations

territory pursuant to Sec. 240.229(e); however, even in this exception,

a qualified person is described as ``either a designated supervisor of

locomotive engineers or a certified train service engineer determined

by the controlling railroad to have the * * * necessary operating

skills including familiarity with its physical characteristics

concerning the joint operations territory.'' Therefore, while the

regulation does not preclude a locomotive engineer from operating under

the direction of a qualified engineer pilot, FRA's official

interpretation is that other employees may not serve as pilots even if

they are qualified on the operating rules and physical characteristics

of the territory. This is a controversial interpretation since

railroads have a history of using conductors and other craft employees

as pilots.

The changes to the rule reflect a true consensus-built proposal

that recognizes the complexity of the problem. Simply requiring

locomotive engineer pilots in all situations, or in no situations, is

neither practical nor desirable. Hence, while supervisors of locomotive

engineers may need to consult the rule more frequently in order to

ensure compliance, the rule will accommodate more flexibility than the

current FRA position that only locomotive engineer pilots are

acceptable.

Paragraph (a) is a general statement of policy that explicitly

states the basic concept that, unless an exception applies, only

certified engineers who are also qualified on the territory upon which

they are to operate are truly qualified. Paragraph (b) allows a non-

qualified engineer to have a pilot while (b)(1) and (b)(2) identify

what type of person may serve as a pilot depending on different

conditions. In either case, paragraph (b) would specifically require

that a railroad's program must address how these individuals will

attain qualifications for pilot service.

Paragraph (b)(1) would require that when an engineer has never been

qualified as an engineer on a territory, the railroad must provide a

certified engineer pilot who is both qualified and not an assigned crew

member. The reasoning behind an engineer pilot in this instance lies on

the fact that engineers must have a more detailed knowledge of the

physical characteristics than persons of other crafts in order to

anticipate how to safely operate their trains. Meanwhile, the

requirement that this certified engineer pilot not be a crew member is

based on the idea that crew members would have their own duties that

would prevent them from providing the controlling engineer their

undivided attention. Certainly, this undivided attention is necessary

when the controlling engineer has no expectation of what physical

characteristics of the territory are like around the next curve or past

the next signal.

Paragraph (b)(2) would allow any qualified person to be a pilot if

the controlling engineer was previously qualified on the territory and

lost that qualification due to time limitations. Of course, a railroad

could choose to use a qualified engineer pilot, but this provision

allows the railroad more flexibility. The concept behind easing the

engineer pilots only requirement relies on the Working Group members'

experiences; that is, engineers who have been previously qualified on a

territory would need less guidance and expertise to refamiliarize

themselves with the physical characteristics of that territory.

Paragraph (c) would allow certified engineers who are unqualified

on the physical characteristics of a territory to operate trains under

specific circumstances. The four circumstances only apply to track

segments with an average grade of less than one percent (1%) over a

distance of three (3) miles. In other words, if a movement requires the

engineer to operate on a track with heavy grade, a pilot will be

required regardless of the four circumstances.

Paragraph (c)(1) would allow certified engineers to operate without

a pilot on tracks other than a main track, regardless of distance. FRA

suggests that where railroads anticipate the need to apply this

exclusion, switch targets indicate names or numbers so that engineers

who are unfamiliar with a rail yard can safely move their trains to the

designated location within the rail yard. Most train operations

conducted off main track require reduced speed limitations and thus

have fewer and less severe safety implications.

Paragraph (c)(2) would allow certified engineers to operate on a

main track without a pilot for a distance not exceeding one mile,

regardless of maximum authorized speed. As an example, this exception

would allow an unqualified engineer to operate movements from a yard on

the south side of a main track, using the main track for less than a

mile, to a yard on the north side of the main track.

Paragraph (c)(3) would allow certified engineers to operate on any

track without a pilot, regardless of distance, provided the established

or permanent maximum authorized speed limit for all operations does not

exceed 20 miles per hour.

Paragraph (c)(4) would allow certified engineers to operate on any

track without a pilot, regardless of distance where existing operating

rules require movements to proceed prepared to stop within one half the

engineer's range of vision. This does not allow railroads to make

special requirements of only their engineers who are not qualified;

that is, the conditional clause of the restricted speed type

restriction must apply to all operations on that track. Hence, it would

be a violation of the rule if a railroad ordered an engineer who is not

qualified to operate on a main track with restricted speed instructions

that did not also apply at all times to every other locomotive and

train operation on that track.

In considering whether to suspend or revoke a person's certificate

when the person is operating pursuant to one of the exceptions in

paragraph (c), the railroad should consider the following issues: (1)

whether the locomotive engineer notified a railroad official that he or

she was unqualified to operate over the territory; (2) whether the

locomotive engineer was ordered by a railroad official to operate over

the territory despite the official's knowing that the locomotive

engineer was unqualified; and, (3) if one of the exceptions in

paragraph (c) applied, whether there was a direct relationship between

the alleged operational misconduct event pursuant to Sec. 240.117(e)(1)

through (5) and the locomotive engineer's unfamiliarity with the

territory.

If an alleged violation is caused by the engineer's territorial

unfamiliarity, proposed Sec. 240.307(i) could be referenced as a

defense to the alleged misconduct. For example, if an engineer is

operating for a distance of less than one mile without a pilot and the

train passes a signal requiring a complete stop that was around a

curve, it is

[[Page 50646]]

arguable that the engineer passed the signal due to his or her

unfamiliarity and lack of a pilot; thus, revoking an engineer's

certificate under such circumstances would be improper.

On the other hand, if an alleged violation occurs that is unrelated

to the engineer's unfamiliarity with the territory, the engineer would

be held liable for his or her conduct. For example, if an engineer is

operating without a pilot in unfamiliar territory and the type of

operation requires that any operation on the track does not exceed 20

MPH pursuant to Sec. 240.231(c)(3), than an engineer should probably

have his or her certificate revoked for operating at 10 MPH or more

above the maximum authorized speed. It is unlikely under such

conditions that the physical characteristics somehow would have helped

cause the alleged violation since a pilot would be required if the

unfamiliar territory was over heavy grade. See Sec. 240.231(c).

Subpart D--Administration of the Certification Program

Section 240.305--Prohibited Conduct

Parallel to the discussion in the section-by-section analysis above

concerning Sec. 240.117(c)(2), the Working Group recommended adding

paragraph (a)(6) to strengthen FRA's authority to take enforcement

action against DSLEs under appropriate circumstances. That is, a DSLE,

who is already a certified locomotive engineer, must realize that if he

or she allows prohibited conduct to occur without taking ``appropriate

action,'' other than in a test monitoring capacity, FRA could take

enforcement action against the DSLE. ``Appropriate action'' is not

defined in the regulation and would depend on the facts and

circumstances of each case.

The regulatory language, and the reasoning behind that language,

mirrors the Sec. 240.117(c)(2) amendment. Given FRA's authority

pursuant to Sec. 240.11, it is arguable that the agency currently has

this authority. However, to reiterate, this amendment certainly would

put supervisors on notice that they cannot actively or passively

acquiesce to misconduct events caused by certified engineers they are

observing.

In addition, several paragraphs would be added to Sec. 240.305(a)

so that the prohibited conduct list is equivalent to the list of

misconduct events in Sec. 240.117(e) which require the railroad to

initiate revocation action. This section is needed so that FRA may

initiate enforcement action. For example, FRA may want to initiate

enforcement action in the event that a railroad fails to initiate

revocation action or a person is not a certified locomotive engineer

under this part. Furthermore, FRA will make conforming changes to

paragraph (a)(3) as necessary considering proposed Passenger Equipment

Safety Standards to be published at 49 CFR part 238. See 62 FR 49728

(Sept. 23, 1997. Also, FRA anticipates proposed changes to 49 CFR part

232 that may requiring conforming changes to paragraph (a)(3). See 63

FR 48294 (Sept. 9, 1998).

Section 240.307--Revocation of Certification

When the final rule was published in 1991, FRA intended that the

notice of suspension in paragraph (b) would be written notice. FRA

explicitly stated in the preamble to that first final rule on this

subject that ``[p]aragraph (b) requires that before suspending a

certificate, or contemporaneous with the suspension, the railroad shall

give the engineer written notice of the reason for the pending

revocation action and provide an opportunity for a hearing.'' 56 FR

28228, 28251 (June 19, 1991). Despite these intentions, the rule itself

failed to specify that notice must be made in writing. Consequently,

many persons effected by this rule have not received written notice of

proposed actions against them.

FRA proposed to the Working Group that the word ``written'' be

added to paragraph (b)(2) so that the agency's intentions would be

reflected in the rule. The Working Group surprised FRA by countering

that this was not the only problem with this paragraph and that without

clarification, written notice would pose problems for some operations.

A discussion ensued so the Working Group could identify the problems

and attempt to resolve them.

The main problem identified by the addition of the word ``written''

to paragraph (b)(2) was that a railroad may be in ``receipt of reliable

information indicating the person's lack of qualification under this

part,'' have the desire to immediately suspend the person's

certificate, but lack the means to immediately draft a competent

written notice. See Sec. 240.307(b)(1). As a compromise, the Working

Group proposed that the initial notice may be either verbal or written.

Confirmation of the suspension must be made in writing at a later date.

The amount of time the railroad has to confirm the notice in writing

depends on whether or not a collective bargaining agreement is

applicable. The Working Group believed that if no collective bargaining

agreement is applicable, 96 hours is sufficient time for a railroad to

provide this important information.

Another of the problems identified by the Working Group was that

throughout Sec. 240.307, the regulation refers to an individual whose

function is the ``charging official.'' Several Working Group members

noted that the railroad industry does not generally use this term and

that a better description of the individual the regulation is referring

to would be ``investigating officer.'' FRA voted for, and now proposes,

the change of this term, but wants to clarify that the agency's

position is that both terms refer to the railroad official who accepts

the prosecutorial role.

Paragraph (c) would be modified to reflect the consequences of

adding paragraph (i). Paragraph (i) provides specific standards of

review for railroad supervisors and hearing officers to consider when

deciding whether to suspend or revoke a person's certificate due to an

alleged violation of an operational misconduct event. Pursuant to

paragraph (i), either defense must be proven by substantial evidence.

One issue that has bothered both FRA and many persons affected by

this rule involves the presiding officer's actions pursuant to

paragraph (c)(10). Paragraph (c) specifies that unless a hearing is

held pursuant to a collective bargaining agreement as specified in

paragraph (d) or is waived according to paragraph (f), the railroad is

required to provide a hearing consistent with procedures specified in

paragraph (c). Paragraph (c)(10) requires that the presiding officer

prepare a written decision, which on its face seems like a

straightforward requirement. However, some petitioners have argued that

procedural error has occurred when written decisions have been signed

by a presiding officer's supervisor or a railroad official other than

the presiding officer. The issue appears to be whether the presiding

officer must also be the decision-maker or whether the presiding

officer can merely take the passive role of presiding over the

proceedings only. There is also a separate issue of whether a railroad

official who is someone other than the presiding officer may have a

conflict of interest that should disqualify that railroad official from

signing the written decision; i.e., there may be the appearance of

impropriety if the non-presiding railroad official has ex-parte

communications with the charging official (or investigating officer).

This kind of ethical issue could be raised in a petition to the LERB as

a procedural issue and could be alleged to cause a petitioner

substantial harm.

The agency's intentions were articulated in the preamble to the

1993

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interim final rule. FRA stated that ``FRA's design for Subpart D was

structured to ensure that such decisions would come only after the

certified locomotive engineer had been afforded an opportunity for an

investigatory hearing at which the hearing officer would determine

whether there was sufficient evidence to establish that the engineer's

conduct warranted revocation of his or her certification.'' 58 FR

18982, 18999 (Apr. 9, 1993). FRA also discussed in this 1993 preamble

how the revocation process pursuant to this part should be integrated

with the collective bargaining process. FRA stated that if the

collective bargaining process is used ``the hearing officer will be

limited to reaching findings based on the record of the hearing'' and

not other factors as may be allowed by a bargaining agreement; the rule

was written to ``guard against hearing officers who might be tempted to

make decisions based on data not fully examined at the hearing.'' 58 FR

18982, 19000 (Apr. 9, 1993). Hence, it appears that the agency did not

even contemplate that someone other than the presiding officer might

make the revocation decision.

In contrast to the agency's initial position, several Working Group

members said that their organizations have set up this process to allow

someone other than the presiding officer to make the revocation

decision. This other person is always a railroad official who reviews

the record made at the railroad hearing. Although this is not what the

agency expected when it drafted the original final rule in 1991, FRA

and the LERB have found this practice acceptable as long as the

relevant railroad official has not been the charging official (or

investigating officer, as proposed). The theory of this NPRM is that

fairness of the hearing and the decision is maintained by separating

the person who plays the prosecutorial role from the person who acts as

the decision-maker. Thus, the Working Group recommends and FRA proposes

to codify this position in paragraph (c)(10). FRA has reservations,

however, about such decisions being made by persons who have not had

the opportunity to evaluate the credibility of witnesses in the case by

receiving their testimony at first hand. FRA seeks comments on this

issue.

Paragraph (i)(1) would make it explicitly known that a person's

certificate shall not be revoked when there is substantial evidence of

an intervening cause that prevented or materially impaired the person's

ability to comply. FRA has always maintained this position and the RSAC

members agreed that it would be useful to incorporate it into the rule.

FRA expects that railroads which have previously believed they were

under a mandate to decertify a person for a violation regardless of the

particular factual defenses the person may have had, will more

carefully consider similar defenses in future cases. In 1993, FRA

stated that ``[f]actual disputes could also involve whether certain

equitable considerations warrant reversal of the railroad's decision on

the grounds that, due to certain peculiar underlying facts, the

railroad's decision would produce an unjust result not intended by

FRA's rules.'' 58 FR 18982, 19001 (Apr. 9, 1993). The example FRA used

in 1993 applies to this proposal as well. That is, the LERB ``will

consider assertions that a person failed to operate the train within

the prescribed speed limits because of defective equipment.''

Similarly, the actions of other people may sometim

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