
[Federal Register: December 31, 2008 (Volume 73, Number 251)]
[Proposed Rules]               
[Page 80349-80360]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr31de08-21]                         

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DEPARTMENT OF TRANSPORTATION

Federal Railroad Administration

49 CFR Part 240

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

 
Qualification and Certification of Locomotive Engineers; 
Miscellaneous Revisions

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

ACTION: Notice of proposed rulemaking (NPRM).

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SUMMARY: FRA proposes revisions to its regulation governing the 
qualification and certification of locomotive engineers by prohibiting 
a railroad from reclassifying a person's locomotive engineer 
certificate to that of a more restrictive class during the period in 
which the certificate is otherwise valid while permitting the railroad 
to place restrictions on the locomotive engineer if appropriate. FRA 
also proposes to clarify that revocation of an engineer's certificate 
may only occur for the reasons specified in the regulation. 
Additionally, FRA proposes provisions that would require each railroad 
to identify the actions it will take in the event that a person fails a 
skills performance test or the railroad finds deficiencies with an 
engineer's performance during an operational monitoring observation or 
unannounced compliance test. These proposals will address unanticipated 
consequences arising from reclassifications and clarify the grounds 
upon which a railroad may revoke a locomotive engineer's certification.

DATES: Written Comments: Written comments on the proposed rule must be 
received by March 2, 2009. Comments received after that date will be 
considered to the extent possible without incurring additional expense 
or delay. FRA anticipates being able to determine these matters without 
a public, oral hearing. However, if prior to January 30, 2009, FRA 
receives a specific request for a public, oral hearing accompanied by a 
showing that the party is unable to adequately present his or her 
position by written statement, a hearing will be scheduled and FRA will 
publish a supplemental notice in the Federal Register to inform 
interested parties of the date, time, and location of any such hearing.

ADDRESSES: You may submit comments identified by the docket number FRA-
2008-0091 by any one of the following methods:
     Fax: 1-202-493-2251;
     Mail: U.S. Department of Transportation, Docket 
Operations, M-30, West Building Ground Floor, Room W12-140, 1200 New 
Jersey Avenue, SE., Washington, DC 20590;
     Hand Delivery: U.S. Department of Transportation, Docket 
Operations, West Building Ground Floor, Room W12-140, 1200 New Jersey 
Avenue, SE., Washington, DC 20590, between 9 a.m. and 5 p.m., Monday 
through Friday, except Federal holidays; or
     Electronically through the Federal eRulemaking Portal, 
http://www.regulations.gov. Follow the online instructions for 
submitting comments.
    Instructions: All submissions must include the agency name, docket 
name and docket number or Regulatory Identification Number (RIN) for 
this rulemaking. Note that all comments received will be posted without 
change to http://www.regulations.gov, including any personal 
information provided. Please see the Privacy Act section of this 
document.
    Docket: For access to the docket to read background documents or 
comments received, go to http://www.regulations.gov at any time or to 
U.S. Department of Transportation, Docket Operations, M-30, West 
Building Ground Floor, Room W12-140, 1200 New Jersey Avenue, SE., 
Washington, DC, between 9 a.m. and 5 p.m., Monday through Friday, 
except Federal holidays.

FOR FURTHER INFORMATION CONTACT: John L. Conklin, Program Manager, 
Locomotive Engineer Certification, U.S. Department of Transportation, 
Federal Railroad Administration, Mail Stop 25, West Building 3rd Floor 
West, Room W38-208, 1200 New Jersey Avenue, SE., Washington, DC 20590 
(telephone: 202-493-6318); or John Seguin, Trial Attorney, U.S. 
Department of Transportation, Federal Railroad Administration, Office 
of Chief Counsel, RCC-10, Mail Stop 10, West Building 3rd Floor, Room 
W31-217, 1200 New Jersey Avenue, SE., Washington, DC 20590 (telephone: 
202-493-6045).

SUPPLEMENTARY INFORMATION:

1. Background

    Pursuant to the Rail Safety Improvement Act of 1988, Public Law No. 
100-342, Sec.  4, 102 Stat. 624, 625-27 (June 22, 1988) (recodified at 
49 U.S.C. 20135), Congress conferred on the Secretary of DOT the 
authority to establish a locomotive engineer qualification licensing or 
certification program. The Secretary of Transportation delegated this 
authority to the Federal Railroad Administrator. 49 CFR 1.49(m). In 
1991, FRA implemented this statutory provision by issuing a final rule. 
56 FR 28228, 28254 (June 19, 1991) (codified at 49 CFR part 240).
    FRA does not test or certify engineers itself. Rather, the 
regulation requires each railroad to adopt training and certification 
programs that meet minimum requirements. See, e.g., 49 CFR 240.1 and 
240.101. These requirements include, inter alia, a determination ``that 
the person has demonstrated . . . the skills to safely operate 
locomotives or locomotives and trains, including the proper application 
of the railroad's rules and practices for the safe operation of 
locomotives or trains, in the most demanding class or type of service 
that the person will be permitted to perform.'' 49 CFR 240.211(a). If a 
candidate passes the certification program, a railroad may issue a 
certificate to that person for any of the following classes of service: 
train service engineer, locomotive servicing engineer, or student 
engineer. 49 CFR 240.107(b). Train service engineers may operate 
locomotives singly or in multiples and may move them with or without 
cars coupled to them. Locomotive servicing engineers may operate 
locomotives singly or in multiples but may not move them with cars 
coupled to them. Student engineers may operate only under direct and 
immediate supervision of an instructor engineer. 49 CFR 240.107(c). A 
railroad may impose additional conditions or operational restrictions 
on the service an engineer may perform provided those conditions or 
restrictions are not inconsistent with part 240. 49 CFR 240.107(d).
    A certified engineer must undergo periodic retesting and shall have 
his or her certification revoked if he or she demonstrates a failure to 
comply with those railroad rules and practices deemed essential for the 
safe operation of trains specified in Sec.  240.117(e). Section 
240.117(e) provides that a certification may only be revoked for six 
specific types of operating rules and operating practices violations: 
(1) Failure to control a locomotive or train in accordance with a 
signal indication that requires a complete stop before passing it; (2) 
Failure to adhere to limitations concerning train speed when the speed 
exceeds the maximum authorized limit by at least 10 miles per hour or a 
violation of restricted speed

[[Page 80350]]

that causes a reportable accident or incident under 49 CFR part 225; 
(3) Failure to adhere to certain federally required procedures for the 
safe use of train or engine brakes; (4) Occupying a main track or a 
segment of main track without proper authority or permission; (5) 
Failure to comply with prohibitions against tampering with locomotive 
mounted safety devices or knowingly operating a train with an 
unauthorized disabled safety device; or (6) Incidents of noncompliance 
with the regulations regarding the use or possession of alcohol and 
drugs. 49 CFR 240.117(e); see also 49 CFR 219.101 and 240.119(c).
    Due to the potentially severe consequences to the individual 
resulting from the denial of certification, the denial of 
recertification, or the revocation of a certificate (e.g., making it 
more difficult to be certified by another U.S. railroad under Sec.  
240.225 or being temporarily banned from operating a locomotive or 
train for any railroad operating in the U.S.), FRA regulations require 
each railroad to make a deliberative decision and provide for 
considerable FRA oversight. For example, if a railroad determines that 
a locomotive engineer may have violated an operating rule specified in 
Sec.  240.117(e), the railroad is required to suspend the engineer's 
certificate pending a revocation determination. 49 CFR 240.307(b)(1). 
Prior to or upon suspending an engineer's certificate, a railroad shall 
provide notice of the reason for the suspension and an opportunity for 
a hearing before a presiding officer other than the investigating 
officer. 49 CFR 240.307(b)(2). Although a person may waive the 
opportunity for a hearing, the waiver must be in writing and meet 
certain safeguards to ensure the waiver is made voluntarily and with 
knowledge and understanding of the person's rights. 49 CFR 240.307(f).
    If adversely affected by a railroad's decision regarding 
revocation, an engineer may petition FRA's Locomotive Engineer Review 
Board (LERB) to review the decision. 49 CFR 240.401. Following the 
LERB's decision, the adversely affected party (either the engineer or 
the railroad) has the right to request an administrative proceeding 
provided for by FRA. 49 CFR 240.407. The FRA administrative proceeding 
is a de novo hearing to find the relevant facts and determine the 
correct application of federal regulations and railroad rules and 
practices to those facts. Any party aggrieved by the presiding 
officer's decision may file an appeal with the Administrator. 49 CFR 
240.411. In the case of a prospective engineer who is denied 
certification or a certified engineer who is denied recertification 
when the currently held certificate lapses, the railroad must notify 
the person ``of information known to the railroad that forms the basis 
for denying the person certification [or recertification] and provide 
the person a reasonable opportunity to explain or rebut that adverse 
information in writing prior to denying certification.'' 49 CFR 
240.219(a). The person may then seek review of an adverse certification 
decision through a similar dispute resolution process that FRA affords 
to an engineer who has had his or her certificate revoked. 49 CFR 
240.401-240.411.
    With respect to deficiencies in an engineer's performance that do 
not rise to the level of revocation, each railroad retains a measure of 
discretion to fashion, within the context of collective bargaining 
agreements, appropriate responses, including disciplinary sanctions, to 
those types of deficiencies. See, e.g., 49 CFR 240.5(d). However, in 
exercising that discretion, at least one Class I railroad has handled 
engineer performance deficiencies in a manner not contemplated by FRA 
when it implemented the engineer certification regulation and not used 
by the industry generally. The practices of this railroad included 
reclassifying the certificates of some of its train service engineers 
to student engineer certificates when it discovered deficiencies in the 
engineers' performance not specifically identified in Sec.  240.117(e). 
The railroad did not provide a hearing regarding the reclassification 
decision. The reason for the reclassifications appears to be related to 
a deficiency in performance skills, but not a failure to pass a skills 
performance test required for recertification. In some instances, 
subsequent skills performance tests were provided and the newly 
reclassified student engineers that failed those tests were denied 
certification and their employment was terminated by the railroad.
    The consequences of that Class I railroad's policy--inter alia, 
engineers being required to exchange their train service certificates 
for student engineer certificates based on deficiencies not specified 
in Sec.  240.117(e) without receiving a hearing pursuant to Sec.  
240.307 and the potential for disparate treatment of similarly situated 
engineers--were simply not anticipated by FRA when it originally issued 
the regulations contained in part 240. However, because the regulation 
is silent with respect to reclassifications, FRA has interpreted the 
plain language of the existing regulation to permit reclassifications 
despite these unanticipated consequences. Consequently, FRA believes 
that modification of the existing regulation is necessary to address 
this issue.
    In an effort to eliminate the unanticipated consequences created by 
unilateral reclassification of an engineer's certificate and to clarify 
the regulations regarding revocations, FRA proposes to make three 
specific changes to part 240. First, FRA proposes to prohibit the 
practice of reclassifying any type of engineer's certification to a 
more restrictive class of certificate or to a student engineer 
certificate during the period in which the certification is otherwise 
valid. Second, FRA proposes to clarify part 240 to ensure that all 
parties understand that revocation of an engineer's certificate may 
only occur for the reasons specified in the regulation. Third, FRA 
proposes to require each railroad to identify the potential actions it 
may take in the event that a person fails a skills performance test or 
that the railroad finds deficiencies with an engineer's performance 
during an operational monitoring observation or unannounced compliance 
test or otherwise becomes aware of such deficiencies. These proposals 
are not only consistent with the overall original intent of part 240, 
but are also consistent with current industry practice concerning 
reclassification and revocation.

2. Additional Issues

    In addition to the proposed changes discussed above, FRA is 
considering making some minor revisions to update part 240 and make it 
consistent with other FRA regulations and guidance. Those proposed 
revisions are detailed below. FRA seeks comments from interested 
parties on these proposed modifications.

A. Deletion of Implementation and Phase-In Dates

    FRA proposes to eliminate the implementation and phase-in dates 
listed throughout part 240 and any section or section heading that 
references those dates. The dates have long passed and are no longer 
relevant.

B. Deletion of Prior Incident Provisions

    FRA proposes to delete Sec. Sec.  240.117(i) and (j). The dates 
listed in those sections concerning prior incidents have long passed 
and those sections are no longer needed.

C. Consistency With Other Regulations

    FRA proposes to revise the language in part 240 containing 
references to various provisions in 49 CFR part 232

[[Page 80351]]

(see, e.g., Sec. Sec.  240.117(e)(3) and 240.309(e)(3)) in order to 
make them consistent with the language in part 232. When FRA previously 
made substantive modifications to part 240, the provisions of part 232 
were still being drafted. As a result, the terms used in some sections 
of part 240 to describe the provisions of part 232 (i.e., initial 
terminal, intermediate terminal, or transfer train and yard test) 
differ from the actual terms used in part 232 (i.e., Class I, Class IA, 
Class II, Class III, or transfer train brake test).
    FRA also proposes to revise the term ``annually monitored'' in 
Sec.  240.129(c)(2) to read ``monitored each calendar year.'' That 
revision would make the provision consistent with the language used in 
Sec.  240.303(b).

D. Consistency With FRA Guidance

    FRA proposes to amend Sec. Sec.  240.129(e) and 240.303(d) in order 
to make them consistent with guidance provided by FRA in Memorandum OP-
04-13 (February 3, 2004) which can be found on FRA's Web site at http:/
/www.fra.dot.gov/downloads/safety/advisories/op0413.pdf. Although 
Sec. Sec.  240.129(e) and 240.303(d) could be read to require railroads 
to give engineers three different tests per calendar year, Memorandum 
OP-04-13 makes clear that railroads are required to only give one test 
per calendar year under those sections. Accordingly, Sec. Sec.  
240.129(e) and 240.303(d) would be amended to make them consistent with 
Memorandum OP-04-13.

E. Civil Penalty Schedule

    FRA proposes to amend the penalty schedule for Sec.  240.203 listed 
in the Schedule of Civil Penalties in Appendix A to part 240. Although 
the text of Sec.  240.203 only lists two subsections ((a) and (b)), the 
current penalty schedule for Sec.  240.203 lists three subsections 
((a), (b), and (c)). FRA proposes to delete the reference to Sec. Sec.  
240.203(a)(1)-(3) in the penalty schedule and revise Sec. Sec.  240.203 
(b) and (c) in the penalty schedule to reference paragraphs (a) and 
(b). These proposed changes will make the regulatory text and the 
penalty schedule consistent.
    FRA also proposes to amend the penalty schedule for Sec.  240.205 
listed in the Schedule of Civil Penalties in Appendix A to part 240. 
Although the text of Sec.  240.205 only lists subsections (a) and (b), 
the current penalty schedule for Sec.  240.205 lists subsections (a) 
and (d). FRA proposes to amend the reference to subsection (d) in the 
current penalty schedule for Sec.  240.205 to read (b).

F. Inaccurate References

    FRA proposes to amend the reference to Sec.  240.15 in Sec.  
240.307(j) to read Sec.  240.215. Section 240.15 does not exist.
    FRA proposes to amend the reference to 49 CFR 218.5(f) in Sec.  
240.7 (subsection (1) of the definition of ``locomotive engineer'') to 
read 49 CFR 218.5. There is no subsection (f) in Sec.  218.5.
    FRA proposes to amend the reference to paragraph (c) in Sec.  
240.203(a) to read paragraph (b). There is no paragraph (c) in Sec.  
240.203.

G. Appendix D

    FRA proposes to delete the last paragraph of Appendix D to part 240 
which begins ``Although the number of state agencies * * *.'' The 
paragraph is no longer relevant because all states now participate in 
the National Driver Register program.

III. Section-by-Section Analysis

Section 240.107 Criteria for designation of classes of service

    FRA proposes to amend this section by adding a new paragraph (e) 
that would prohibit a railroad from reclassifying the certification of 
any type of certified engineer to a more restrictive class of 
certificate or to a student engineer certificate during the period in 
which the certification is otherwise valid. Although reclassification 
has been referred to by different names by various parties (e.g., 
demotion, diminution in the quality of a license, etc.), the practice 
that FRA is proposing to prohibit is the taking of any type of 
engineering certificate, during the period in which the certificate is 
valid, and replacing it with a more restrictive class of certificate or 
a student engineer certificate based on deficiencies found during 
operational and skills tests that do not require revocation of an 
engineer's certification under Sec. Sec.  240.117(e) or 240.119(c).
    Although FRA has previously interpreted the plain language of the 
regulation to permit reclassification, the unanticipated consequences 
of that practice necessitate its prohibition. As explained earlier in 
this preamble, the effect of the reclassification policy used by one 
Class I railroad has been to require some engineers to exchange their 
train service or locomotive servicing certificates for student engineer 
certificates without an opportunity for review of the reclassification 
decision. An engineer who is reclassified to a student could find it 
more difficult to be certified by another U.S. railroad than an 
engineer who has not been reclassified. Further, there is significant 
room for abuse in a system that allows reclassification based on the 
somewhat subjective scoring of a skills performance test. Thus, FRA 
proposes to prohibit railroads from requiring an engineer to exchange 
his or her train service or locomotive servicing certification for a 
more restrictive class of certificate or a student engineer certificate 
during the period in which the recertification is otherwise valid.
    FRA has considered other options, including permitting 
reclassification while providing affected engineers with the option of 
challenging the reclassification through a hearing. However, allowing 
reclassifications, even with a hearing, could result in the disparate 
treatment of engineers. If, for example, two train service engineers 
commit the same operating deficiency, a railroad may decide to 
reprimand one of the engineers but reclassify the certificate of the 
other engineer to a student engineer certificate. Assuming the 
reclassification is upheld during the hearing process, one engineer 
could return to work as a train service engineer while the other could 
only return to work as a student engineer. This proposal attempts to 
eliminate the potential for disparate treatment that could result from 
the practice of reclassifying engineers' certificates.
    The elimination of disparate treatment of locomotive engineers 
accords with the original design and intent of part 240. As FRA noted 
in the 1989 NPRM:

    [T]here is at least anecdotal evidence to support the 
proposition that similar events receive significantly disparate 
treatment. Such differences exist both within and between railroads. 
Those differences include decisions on whether a particular person 
will or will not be brought before the discipline system for a given 
course of conduct to a wide range of punishments imposed for the 
same types of failure to adhere to company rules under similar 
circumstances.

54 FR 50890, 50899-50900 (December 11, 1989). Accordingly, part 240 
requires railroads to take specific actions for clearly articulated 
types of non-compliance in an effort to prevent disparate treatment. 
For example, Sec. Sec.  240.117 and 240.119 establish specific 
revocation periods for instances of non-compliance with operating rules 
and practices, as well as drug and alcohol regulations. The proposals 
in this NPRM further FRA's objective to prevent the disparate treatment 
of engineers by prohibiting the reclassification of an engineer 
certificate and providing that revocation of an engineer's certificate 
may only occur for the reasons specified in the regulation.
    While the proposal would prohibit the practice of reclassification, 
it would

[[Page 80352]]

not prevent the railroads from continuing to pursue other measures to 
ensure the safe operation of locomotives. For example, this proposal 
would not prevent a railroad from placing restrictions on a certificate 
pursuant to Sec.  240.107(d). As FRA stated in the 1993 interim final 
rule:

    A second set of interpretive questions has been generated by the 
desire of some railroads to certify a person as a train service 
engineer but then impose significant limits or constraints on the 
operational authority of that person. This section [240.107] permits 
railroads to take such action and can be employed by them to address 
issues such as utilizing persons who have sufficient skills to 
perform in terminal or yard service but lack the knowledge or skill 
to operate trains beyond terminal areas. Railroads that elect to 
follow this approach will of course need to structure their 
implementation program submissions to reflect any differences in the 
training or testing of these engineers that would flow from their 
more limited operating responsibilities.

58 FR 18982, 18995 (April 9, 1993). It should be noted, however, that 
while Sec.  240.107(d) permits a railroad to place restrictions on a 
certificate, restrictions are applied and reviewed in accordance with 
internal railroad rules, procedures and processes developed in 
coordination with its employees. Part 240 does not govern the issuance 
or review of restrictions; that is a matter handled under a railroad's 
internal discipline system or collective bargaining agreement.
    This proposal would also not prevent a railroad from suspending/
revoking a certificate pursuant to Sec.  240.307 for violation of one 
of the provisions contained in Sec.  240.117(e), or prohibiting a 
person from operating a locomotive as a train service or locomotive 
servicing engineer pursuant to Sec.  240.211(c). Further, this proposal 
would not prevent a railroad from offering an engineer the opportunity 
to work for the railroad in any other capacity as long as the 
engineer's current certificate was not reclassified. For example, 
collective bargaining agreements often contain a provision by which the 
parties agree to permit flowback from an engineer job to a conductor 
job if a locomotive engineer should somehow become ineligible to 
operate locomotives or trains. As FRA has previously clarified, part 
240 is not intended to create or prohibit flowback. See Sec.  240.5(e) 
and 64 FR 60966, 60975 (November 8, 1999).
    This proposal would not convert part 240's locomotive engineer 
certification system into a licensing system. Although some parties 
have referred to the practice of reclassification as a ``diminution in 
the quality of a license,'' a certificate is not a license and the 
proposal would not convert a locomotive engineer certificate issued in 
accordance with part 240 into a license. Indeed, in adopting a 
certification system (i.e., FRA sets eligibility criteria but leaves it 
to the railroads to evaluate candidates by those standards) rather than 
a traditional licensing system (i.e., a government agency sets 
eligibility criteria and evaluates candidates), FRA noted that part 240 
``afford railroads considerable discretion'' in the daily 
administration of their certification program but ``FRA bears 
responsibility for the manner in which the railroads exercise that 
discretion, since the performance of the railroads'' under part 240 
will determine whether their safety purposes are fulfilled. 56 FR 
28228, 28229-28230 (June 19, 1991). This proposal continues that 
relationship. FRA seeks comments from interested parties on this 
proposal.
    Additionally, FRA seeks comments regarding the railroads' 
assessment of engineer performance during the period in which an 
engineer's certificate is otherwise valid. Are the current processes 
set up by the railroads to assess an engineer's performance during the 
period of certification appropriate? Are railroads accurately assessing 
the skills and knowledge of engineers? Do engineers have a chance to 
seek meaningful review of the railroads' assessments during the period 
in which an engineer's certificate is otherwise valid? FRA seeks 
comments from interested parties on these topics.

Section 240.127 Criteria for Examining Skill Performance

    FRA proposes to amend this section to require each railroad to 
indicate the action it will take, beyond those required by Sec.  
240.211(c), in the event that a person fails a skills performance test. 
Pursuant to Sec.  240.101 and Sec.  240.103, each railroad must submit 
its written certification program, including its procedures for skill 
performance testing under Sec.  240.127 and monitoring operational 
performance under Sec.  240.129, for FRA approval. That review process, 
in connection with this proposal, would permit FRA an opportunity to 
ensure that each railroad is handling skills test failures in 
accordance with the intent and spirit of the regulation. The proposal 
will also compel each railroad to carefully consider the process by 
which it will handle skill test failures and demonstrate to FRA that it 
is dealing with its engineers in an objective manner.
    Although FRA considered other options, such as prescribing the 
specific actions a railroad must take, FRA believes it should be left 
up to each railroad to decide the appropriate action to take in light 
of various factors, including collective bargaining agreements. Indeed, 
FRA previously proposed prescribing the number of tests and interval 
between retests and other consequences of test failure in the 1989 NPRM 
(54 FR 50890, 50933-50935 (December 11, 1989)), but did not implement 
those proposals based, in part, on commenters' concerns that the 
proposals would disrupt contractual agreements (56 FR 28228, 28236-
28237 (June 19, 1991)). Further, FRA has found that the vast majority 
of railroads have adequate policies to deal with skills test failures 
or deficiencies and have handled them appropriately for many years.
    To avoid restricting the options available to the railroads and 
employee representatives to develop processes for handling skill test 
failures, FRA designed this proposal to be as flexible as possible. 
There are a variety of actions and approaches that a railroad can take 
in response to a skills test failure and FRA does not want to stifle a 
railroad's ability to adopt an approach that is best for its 
organization. Some of the actions railroads may want to consider 
include: Provide remedial training for engineers who fail skills tests 
or have deficiencies in their performance; automatically download event 
recorder data upon a test failure or deficient performance in order to 
preserve evidence of the failure/deficiency; require two supervisors to 
ride along on a retest; and retest an engineer on an actual train if 
the engineer failed a test on a simulator. Each railroad should also 
consider implementing a formal procedure whereby an engineer is given 
the opportunity to explain, in writing, the factors that he or she 
believes caused their skills test failure or performance deficiencies. 
This explanation may allow a railroad to determine what areas of 
training to focus on or perhaps discover that the reason for the 
failure/deficiency was due to something other than a lack of skills. 
Indeed, it is disconcerting for FRA to be informed that a certified 
engineer, who may have been safely operating locomotives for years, no 
longer has the skills necessary to operate safely; thus FRA also 
suggests that each railroad consider whether a medical examination 
might reveal a reason for a diminishment in skills proficiency.
    FRA believes there are numerous other approaches that could and 
should be considered and evaluated by railroads and their employees. 
FRA realizes that a railroad's list of actions

[[Page 80353]]

it will take in response to a skills test failure or deficient 
performance could be expansive given the various circumstances that 
could contribute to a test failure or deficient performance.
    Although a railroad will be required to update its certification 
program under this proposal, FRA does not consider the update to be a 
material modification pursuant to Sec.  240.103(e). Of course, FRA may 
find issues during a review or audit of the updated certification 
program and will address those issues with the railroad at that time. 
FRA seeks comments from interested parties on this proposal.
    Additionally, FRA is aware of concerns raised by engineers that 
they have no way of knowing why and how they failed a skills test or 
monitoring ride. In particular, some engineers are concerned that they 
do not know how the scoring systems used by railroads to grade skills 
and operational monitoring rides function. FRA is seeking comments on 
whether FRA should require the railroads to explain the scoring system 
they use to determine whether a person passes or fails a skills test or 
operational monitoring ride. Requiring a railroad to explain its 
scoring system will likely have the benefit of ensuring that the 
scoring criteria are transparent and that pass/fail determinations are 
arrived at consistently throughout the railroad.

Section 240.129 Criteria for Monitoring Operational Performance of 
Certified Engineers

    FRA proposes to amend this section to require railroads to indicate 
the action they will take in the event they find deficiencies with an 
engineer's performance during an operational monitoring observation or 
unannounced compliance test. As explained in Sec.  240.127 above, FRA 
believes it is up to each railroad to decide the appropriate action to 
take in light of various factors, including collective bargaining 
agreements. Further, FRA has found that the vast majority of railroads 
have adequate policies to deal with deficiencies with an engineer's 
performance and have handled them appropriately for many years.
    For a discussion of the benefits of this proposal and actions 
railroads may want to consider taking in the event they find 
deficiencies with an engineer's performance, see section 240.127 above.
    Although a railroad will be required to update its certification 
program under this proposal, FRA does not consider the update to be a 
material modification pursuant to Sec.  240.103(e). FRA seeks comments 
from interested parties on this proposal.
    Additionally, for the reasons explained above, FRA is seeking 
comments on whether FRA should require the railroads to explain the 
scoring system they use to determine whether a person passes or fails a 
skills test or operational monitoring ride.

Section 240.307 Revocation of Certification

    FRA proposes to amend this section to clarify and ensure that 
railroads understand that they may revoke an engineer's certificate 
only for that conduct specifically identified in Sec.  240.117(e) or 
Sec.  240.119(c). FRA has been informed by at least one Class I 
railroad that it believes Sec.  240.307 could be read to allow 
revocation for deficiencies other than those specified in Sec.  
240.117(e) or Sec.  240.119(c). FRA proposes to make clear that such an 
interpretation is incorrect and contravenes the intent and purpose of 
part 240 when it was issued. As FRA stated in the 1993 interim final 
rule:

    Revocation of certification can occur when the locomotive 
engineer in question is found to have violated one of the five 
cardinal safety rules or the rules controlling alcohol and drug use.
* * * * *
    When considering revocation, FRA[] * * * contemplated that 
decisions to revoke certification would only be based on 
noncompliance with an operational safety directive or a violation of 
FRA's rules controlling alcohol and drug use by railroad workers.
* * * * *
    As noted above, FRA contemplated that decisions to revoke 
certification would be based on noncompliance with the operational 
safety directives contained in Sec.  240.117 and Sec.  240.119.

58 FR 18982, 18989, 18999-19000 (April 9, 1993). To eliminate any 
ambiguity, FRA is proposing to clarify the regulation to ensure that it 
is applied in accordance with FRA's intent. FRA seeks comments from 
interested parties on this proposal.

IV. Regulatory Impact and Notices

1. Executive Order 12866 and DOT Regulatory Policies and Procedures

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

------------------------------------------------------------------------
                      Total 20-year costs                          ($)
------------------------------------------------------------------------
Revisions to engineer certification programs..................   345,168
  Total Cost..................................................   345,168
  Total 20-Year Costs (Discounted at 3%)......................   335,115
  Total 20-Year Costs (Discounted at 7%)......................   322,587
------------------------------------------------------------------------

    This analysis determines that over a 20-year period the discounted 
costs would be approximately $322,587.
    The benefits that would accrue cannot be expressed in monetary 
terms; however, FRA is confident that such benefits would meet or 
exceed the costs associated with implementation of the proposed rule. 
The main benefit of this proposed rule is that railroads will no longer 
be able to use this regulation in a manner not contemplated by FRA. FRA 
also anticipates benefits flowing from a more precise and complete 
regulation. Benefits resulting from this proposed rule are process 
improvements that assist FRA in working with a railroad to resolve 
problems associated with the engineer certifications. The proposed rule 
works with railroad carriers' needs and operating environments to 
produce a regulatory scheme that is economically efficient while 
providing FRA oversight. Savings, that have not been quantified, would 
accrue from the consolidated provisions of the rule and the 
clarification of the railroads' certification programs.

[[Page 80354]]

2. Regulatory Flexibility Act and Executive Order 13272

    The Regulatory Flexibility Act of 1980 (5 U.S.C. 601 et seq.) and 
Executive Order 13272 (67 FR 53461, August 16, 2002) require agency 
review of proposed and final rules to assess their impact on small 
entities. Pursuant to the Regulatory Flexibility Act of 1980, 5 U.S.C. 
605(b), FRA has prepared and placed in the docket a Certification 
Statement that assesses the small entity impact of this proposed rule, 
and certifies that this proposed rule is not expected to have a 
significant economic impact on a substantial number of small entities.
    Document inspection and copying facilities are available at the DOT 
Central Docket Management Facility located in Room W12-140 on the 
Ground level of the West Building, 1200 New Jersey Avenue SE., 
Washington, DC 20590. Docket material is also available for inspection 
electronically through the Federal eRulemaking Portal at http://
www.regulations.gov. Photocopies may also be obtained by submitting a 
written request to the FRA Docket Clerk at the Office of Chief Counsel, 
RCC-10, Mail Stop 10, Federal Railroad Administration, 1200 New Jersey 
Avenue, SE., Washington, DC 20590; please refer to Docket No. FRA-2008-
0091.
    The U.S. Small Business Administration (SBA) stipulates in its 
``Size Standards'' that the largest a railroad business firm that is 
``for-profit'' may be, and still be classified as a ``small entity,'' 
is 1,500 employees for ``Line-Haul Operating Railroads,'' and 500 
employees for ``Switching and Terminal Establishments.'' ``Small 
entity'' is defined in the Act as a small business that is not 
independently owned and operated, and is not dominant in its field of 
operation. SBA's ``Size Standards'' may be altered by Federal agencies 
after consultation with SBA and in conjunction with public comment. 
Pursuant to that authority, FRA has published a final policy that 
formally establishes ``small entities'' as railroads which meet the 
line haulage revenue requirements of a Class III railroad. The revenue 
requirements are currently $20 million or less in annual operating 
revenue. The $20 million limit (which is adjusted by applying the 
railroad revenue deflator adjustment) is based on the Surface 
Transportation Board's threshold for a Class III railroad carrier. FRA 
uses the same revenue dollar limit to determine whether a railroad or 
shipper or contractor is a small entity.
    There are approximately 718 railroads that would be affected by 
this regulation. Of this number, approximately 678, or 94 percent, are 
small entities. Consequently, this regulation affects a substantial 
number of small entities. However FRA does not anticipate that this 
regulation would impose a significant economic impact on a substantial 
number of small entities.
    The factual basis for the certification that this proposed rule, if 
promulgated, will not have a significant economic impact on a 
substantial number of small entities, is that the only net cost 
incurred by small railroads due to this proposed regulation would be 
$376 (not discounted), which small railroads would incur during the 
first year of implementation of the regulation. This is far less than 
one percent of the annual average revenue for all small railroads 
((approximately $47,000 in 2006 (not discounted)) per small railroad. 
Accordingly, FRA does not consider this impact to be significant. Nor 
does FRA anticipate that this regulation would result in long-term or 
short-term insolvency for any small railroad.
    FRA invites comments from all interested parties on this 
Certification. FRA particularly encourages small entities that could 
potentially be impacted by the proposed amendments to participate in 
the public comment process by submitting comments on this assessment or 
this rulemaking to the official U.S. Department of Transportation (DOT) 
docket. A draft of the proposed rule has not been submitted to the 
Small Business Administration (SBA) for formal review. However, FRA 
will consider any comments submitted by the SBA in developing the final 
rule.

3. Paperwork Reduction Act

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

----------------------------------------------------------------------------------------------------------------
                                                            Total annual       Average time per    Total annual
       CFR section/subject         Respondent universe       responses             response        burden hours
----------------------------------------------------------------------------------------------------------------
240.9--Waivers--Petitions for      718 railroads......  3 petitions........  1 hour.............               3
 Waiver.
240.101/103--Certification         718 railroads......  50 amend. prog.....  1 hour.............              50
 Program: Written Program for      20 railroads.......  20 new prog........  40 hours...........             800
 Certifying Qualifications of      20 railroads.......  20 reviews.........  1 hour.............              20
 Locomotive Engineers--Amendments. 718 railroads......  30 mod. prog.......  45 minutes.........              23
--Certification Programs for New
 Railroads.
--New Railroads Final Review and
 Submission of Certification
 Program.
--Material Modifications to
 Approved Prog.
240.105--Selection Criteria For    718 railroads......  50 examinations....  1 hour.............              50
 Designated Supervisors of         10 railroads.......  10 reports.........  1 hour.............              10
 Locomotive Engineers (DSLEs)--
 Examinations of DSLEs.
--Written Report by Railroad
 Chief Operating Officer of
 Testing of DSLE.
240.109--Candidate's Review and    17,667 candidates..  25 responses.......  1 hour.............              25
 Written Comments on Prior Safety
 Conduct Data.

[[Page 80355]]


240.111--Request for State         17,667 candidates..  17,667 requests....  15 minutes.........           4,417
 Driving Data and National Driver  718 railroads......  177 notifications +  15 minutes.........              89
 Register Data--Driver's License   718 railroads......   177 requests.       15 minutes.........               5
 Data Requests.                    53,000 candidates..  20 comments........  15 minutes.........               1
                                   718 railroads......  4 letters..........  10 minutes.........              33
                                                        200 calls..........
--National Driver Register Data:
 Notification by Railroad to
 Employees of Matches and
 Employee Requests to State
 Agency for Relevant Data.
--Written Responses from
 Candidate on Driver's License
 Data.
--Notice to Railroad of Absence
 of License.
--Individual Duty to Furnish Data
 on Prior Conduct as Motor
 Vehicle Operator--Ph. Calls.
240.113--Individual Duty to        17,667 candidates..  353 requests + 353   15 min.; 30 min....             265
 Furnish Data on Prior Safety                            responses.
 Conduct as an Employee of A
 Different Railroad--Requests to
 Former Employing Railroad of
 Service Record and Railroad
 Responses.
240.119--Employee Self-Referral    53,000 locomotive    50 self-referrals..  5 minutes..........               4
 to EAP Counselor for Substance     engineers.
 Abuse Disorder.
240.121--Criteria--Hearing/Vision  20 new railroads...  20 copies..........  15 min.............               5
 Acuity Subsequent Years--Copies   718 railroads......  20 reports.........  1 hours............              20
 of Part 240 Appendix F to RR      718 railroads......  10 notifications...  15 minutes.........               3
 Medical Examiner.
--Medical Examiners Consultation
 with DSLE to Issue Conditional
 Certification Report.
--Notification--Hearing/Vision
 Change by Certified Engineer to
 Railroad.
New..............................  718 railroads......  718 amended          5 hours............           3,590
                                                         programs.
New
240.201/221/223/301--List of       718 railroads......  718 railroads......  60 minutes.........             718
 DSLEs.                            718 railroads......  718 updates........  60 minutes.........             718
--List of Design. Qual.
 Locomotive Engineers.
240.201/217/223/301--Locomotive    53,000 candidates..  17,667 cert........  5 minutes..........           1,472
 Engineers Certificate.
240.205--Data to EAP Counselor     718 railroads......  177 records........  5 minutes..........              15
 and Furnishing of Records by
 Employee.
240.207--Medical Certificate on    53,000 candidates..  17,667 cert........  70 minutes.........          20,612
 Hearing/Vision Acuity--Tests and  718 railroads......  10 determination...  2 hours............              20
 Certificate Issuance.
--Written Determination by
 Medical Examiner Waiving
 Necessity of Wearing Hearing/
 Vision Corrective Device.
240.219--Denial of Certification-- 17,667 candidates..  30 letters + 30      1 hour.............              60
 Notification to Employee of       718 railroads......   responses.          1 hour.............              30
 Adverse Information and Employee                       30 notifications...
 Response.
--Notification of Adverse
 Decision.

[[Page 80356]]


240.229--Requirements for Joint    321 railroads......  184 calls..........  5 minutes..........              15
 Operations Territory--
 Notification by Engineer of Non-
 Qualification to Operate Train
 on Track Segment.
240.309--Railroad Oversight        15 railroads.......  6 annotations......  15 minutes.........               2
 Responsibilities--Instances of
 Identified Poor Safety Conduct.
TESTING REQUIREMENTS 240.209/213-- 53,000 candidates..  17,667 tests.......  2 hours............          35,334
 Written Test.
240.211/213--Performance Test....  53,000 candidates..  17,667 tests.......  2 hours............          35,334
240.303--Annual Op. Monit. Obs.    53,000 candidates..  53,000 tests.......  2 hours............         106,000
 Test--Annual Operating Rules      53,000 candidates..  53,000 tests.......  1 hour.............          53,000
 Compliance Test.
RECORDKEEPING REQUIREMENTS         718 railroads......  17,667 records.....  30 minutes.........           8,834
 240.215--Recordkeeping--Cert.
 Loc. Eng.
240.305--Engineer's Non-           53,000 candidates..  100 notific........  5 minutes..........               8
 Qualification Notice.             1,060 candidates...  2 letters..........  30 minutes.........               1
--Engineer's Notice to RR--Loss
 of Qualification.
240.307--Notice to Engineer of     718 railroads......  900 notific.         1 hour.............             900
 Disqualification.                                       letters.
240.309--Railroad Oversight        51 railroads.......  51 reviews.........  40 hours...........           2,040
 Responsibilities.                 51 railroads.......  12 reports.........  1 hour.............              12
--Performance of Annual Reviews/
 Analysis.
--Railroad Report of Findings....
----------------------------------------------------------------------------------------------------------------

    All estimates include the time for reviewing instructions; 
searching existing data sources; gathering or maintaining the needed 
data; and reviewing the information. Pursuant to 44 U.S.C. 
3506(c)(2)(B), FRA solicits comments concerning: Whether these 
information collection requirements are necessary for the proper 
performance of the functions of FRA, including whether the information 
has practical utility; the accuracy of FRA's estimates of the burden of 
the information collection requirements; the quality, utility, and 
clarity of the information to be collected; and whether the burden of 
collection of information on those who are to respond, including 
through the use of automated collection techniques or other forms of 
information technology, may be minimized. For information or a copy of 
the paperwork package submitted to OMB, contact Mr. Robert Brogan, FRA 
Information Clearance Officer, at 202-493-6292, or Ms. Nakia Jackson at 
202-493-6073.
    Organizations and individuals desiring to submit comments on the 
collection of information requirements should direct them to Mr. Robert 
Brogan or Ms. Nakia Jackson, Federal Railroad Administration, 1200 New 
Jersey Avenue, SE., 3rd Floor, Washington, DC 20590. Comments may also 
be submitted via e-mail to Mr. Brogan or Ms. Jackson at the following 
address: robert.brogan@dot.gov; nakia.jackson@dot.gov.
    OMB is required to make a decision concerning the collection of 
information requirements contained in this proposed rule between 30 and 
60 days after publication of this document in the Federal Register. 
Therefore, a comment to OMB is best assured of having its full effect 
if OMB receives it within 30 days of publication.
    The final rule will respond to any OMB or public comments on the 
information collection requirements contained in this proposal. FRA is 
not authorized to impose a penalty on persons for violating information 
collection requirements which do not display a current OMB control 
number, if required. FRA intends to obtain current OMB control numbers 
for any new information collection requirements resulting from this 
rulemaking action prior to the effective date of the final rule. The 
OMB control number, when assigned, will be announced by separate notice 
in the Federal Register.

4. Federalism Implications

    Executive Order 13132, ``Federalism'' (64 FR 43255, Aug. 10, 1999), 
requires FRA to develop an accountable process to ensure ``meaningful 
and timely input by State and local officials in the development of 
regulatory policies that have federalism implications.'' ``Policies 
that have federalism implications'' are defined in the Executive Order 
to include regulations that have ``substantial direct effects on the 
States, on the relationship between the national government and the 
States, or on the distribution of power and responsibilities among the 
various levels of government.'' Under Executive Order 13132, the agency 
may not issue a regulation with federalism implications that imposes 
substantial direct compliance costs and that is not required by 
statute, unless the Federal government provides the funds necessary to 
pay the direct compliance costs incurred by State and local 
governments, the agency consults with State and local governments, or 
the agency consults with State and local government officials early in 
the process of developing the regulation. Where a regulation has 
federalism implications and preempts State law, the agency seeks to 
consult with State and local officials in the process of developing the 
regulation.
    This NPRM has been analyzed in accordance with the principles and

[[Page 80357]]

criteria contained in Executive Order 13132. This proposed rule would 
not have a substantial effect on the States or their political 
subdivisions; it would not impose any compliance costs; and it would 
not affect the relationships between the Federal government and the 
States or their political subdivisions, or the distribution of power 
and responsibilities among the various levels of government. 
Consequently, FRA concludes that this NPRM has no federalism 
implications.

5. International Trade Impact Assessment

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

6. Environmental Impact.

    FRA has evaluated this proposed rule in accordance with its 
``Procedures for Considering Environmental Impacts'' (FRA's Procedures) 
(64 FR 28545, May 26, 1999) as required by the National Environmental 
Policy Act (42 U.S.C. 4321 et seq.), other environmental statutes, 
Executive Orders, and related regulatory requirements. FRA has 
determined that this proposed rule is not a major FRA action (requiring 
the preparation of an environmental impact statement or environmental 
assessment) because it is categorically excluded from detailed 
environmental review pursuant to section 4(c)(20) of FRA's Procedures. 
See 64 FR 28547 (May 26, 1999). Section 4(c)(20) reads as follows:

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

    In accordance with section 4(c) and (e) of FRA's Procedures, the 
agency has further concluded that no extraordinary circumstances exist 
with respect to this regulation that might trigger the need for a more 
detailed environmental review. As a result, FRA finds that this 
proposed rule is not a major Federal action significantly affecting the 
quality of the human environment.

7. Unfunded Mandates Reform Act of 1995

    Pursuant to section 201 of the Unfunded Mandates Reform Act of 1995 
(Pub. L. 104-4, 2 U.S.C. 1531), each Federal agency ``shall, unless 
otherwise prohibited by law, assess the effects of Federal regulatory 
actions on State, local, and tribal governments, and the private sector 
(other than to the extent that such regulations incorporate 
requirements specifically set forth in law).'' Section 202 of the Act 
(2 U.S.C. 1532) further requires that ``before promulgating any general 
notice of proposed rulemaking that is likely to result in the 
promulgation of any rule that includes any Federal mandate that may 
result in expenditure by State, local, and tribal governments, in the 
aggregate, or by the private sector, of $100,000,000 or more (adjusted 
annually for inflation) [currently $141,000,000] in any 1 year, and 
before promulgating any final rule for which a general notice of 
proposed rulemaking was published, the agency shall prepare a written 
statement'' detailing the effect on State, local, and tribal 
governments and the private sector. The proposed rule would not result 
in the expenditure, in the aggregate, of $141,000,000 or more in any 
one year, and thus preparation of such a statement is not required.

8. Energy Impact

    Executive Order 13211 requires Federal agencies to prepare a 
Statement of Energy Effects for any ``significant energy action.'' 66 
FR 28355 (May 22, 2001). Under the Executive Order, a ``significant 
energy action'' is defined as any action by an agency (normally 
published in the Federal Register) that promulgates or is expected to 
lead to the promulgation of a final rule or regulation, including 
notices of inquiry, advance notices of proposed rulemaking, and notices 
of proposed rulemaking: (1)(i) That is a significant regulatory action 
under Executive Order 12866 or any successor order, and (ii) is likely 
to have a significant adverse effect on the supply, distribution, or 
use of energy; or (2) that is designated by the Administrator of the 
Office of Information and Regulatory Affairs as a significant energy 
action. FRA has evaluated this NPRM in accordance with Executive Order 
13211. FRA has determined that this NPRM is not likely to have a 
significant adverse effect on the supply, distribution, or use of 
energy. Consequently, FRA has determined that this NPRM is not a 
``significant energy action'' within the meaning of Executive Order 
13211.

9. Privacy Act

    FRA wishes to inform all potential commenters that anyone is able 
to search the electronic form of all comments received into any agency 
docket by the name of the individual submitting the comment (or signing 
the comment, if submitted on behalf of an association, business, labor 
union, etc.). You may review DOT's complete Privacy Act Statement in 
the Federal Register published on April 11, 2000 (65 FR 19477-78) or 
you may visit http://www.regulations.gov/search/footer/
privacyanduse.jsp.

List of Subjects in 49 CFR Part 240

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

The Proposed Rule

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

PART 240--[AMENDED]

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

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

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


Sec.  240.7  Definitions.

* * * * *
    Locomotive engineer * * *
    (1) A person who moves a locomotive or group of locomotives within 
the confines of a locomotive repair or servicing area as provided for 
in 49 CFR 218.5 and 218.29(a)(1); or
* * * * *
    3. Section 240.101 is amended by revising paragraphs (a), (b) and 
(c) introductory text to read as follows:


Sec.  240.101  Certification program required.

    (a) Each railroad subject to this part shall have in effect a 
written program

[[Page 80358]]

for certifying the qualifications of locomotive engineers.
    (b) Each railroad shall have such a program in effect prior to 
commencing operations.
    (c) Each railroad shall have a certification program approved in 
accordance with Sec.  240.103 that includes:
* * * * *
    4. Section 240.107 is amended by adding a new paragraph (e) to read 
as follows:


Sec.  240.107  Criteria for designation of classes of service.

* * * * *
    (e) A railroad shall not reclassify the certification of any type 
of certified engineer to a more restrictive class of certificate or a 
student engineer certificate during the period in which the 
certification is otherwise valid.
    5. Section 240.109 is amended by revising paragraph (e) as follows:


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

* * * * *
    (e) When evaluating a person's motor vehicle driving record or a 
person's railroad employment record, a railroad shall not consider 
information concerning motor vehicle driving incidents or prior 
railroad safety conduct that occurred at a time other than that 
specifically provided for in Sec.  240.115, Sec.  240.117 or Sec.  
240.119 of this subpart.
* * * * *
    6. Section 240.111 is amended by revising paragraph (a) 
introductory text to read as follows:


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

    (a) Except for persons covered by Sec.  240.109(h), each person 
seeking certification or recertification under this part shall, within 
366 days preceding the date of the railroad's decision on certification 
or recertification:
* * * * *
    7. Section 240.113 is amended by revising paragraph (a) 
introductory text to read as follows:


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

    (a) Except for persons covered by Sec.  240.109(h), each person 
seeking certification under this part shall, within 366 days preceding 
the date of the railroad's decision on certification or 
recertification:
* * * * *
    8. Section 240.117 is amended by revising paragraph (e)(3) and by 
removing paragraphs (g)(4), (i), and (j) to read as follows:


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

* * * * *
    (e) * * *
    (3) Failure to adhere to procedures for the safe use of train or 
engine brakes when the procedures are required for compliance with the 
Class I, Class IA, Class II, Class III, or transfer train brake test 
provisions of 49 CFR part 232 or when the procedures are required for 
compliance with the class 1, class 1A, class II, or running brake test 
provisions of 49 CFR part 238;
* * * * *
    9. Section 240.127 is amended by adding a new paragraph (e) to read 
as follows:


Sec.  240.127  Criteria for examining skill performance.

* * * * *
    (e) Each railroad's program shall indicate the action the railroad 
will take in the event that a person fails an initial examination or a 
reexamination of his or her performance skills in accordance with the 
procedures required under Sec.  240.211.
    10. Section 240.129 is amended by revising paragraphs (c)(2) and 
(e) and adding a new paragraph (f) to read as follows:


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

* * * * *
    (c) * * *
    (2) Be designed so that each engineer shall be monitored each 
calendar year by a Designated Supervisor of Locomotive Engineers, who 
does not need to be qualified on the physical characteristics of the 
territory over which the operational performance monitoring will be 
conducted;
* * * * *
    (e) The testing and examination procedures selected by the railroad 
for the conduct of a monitoring program shall be:
    (1) Designed so that each locomotive engineer shall be given at 
least one unannounced test each calendar year;
    (2) Designed to test:
    (i) Engineer compliance with provisions of the railroad's operating 
rules that require response to signals that display less than a 
``clear'' aspect, if the railroad operates with a signal system that 
must comply with part 236 of this chapter;
    (ii) Engineer compliance with provisions of the railroad's 
operating rules, timetable or other mandatory directives that require 
affirmative response by the locomotive engineer to less favorable 
conditions than that which existed prior to initiation of the test; or
    (iii) Engineer compliance with provisions of the railroad's 
operating rules, timetable or other mandatory directives violation of 
which by engineers were cited by the railroad as the cause of train 
accidents or train incidents in accident reports filed in compliance 
with part 225 of this chapter in the preceding calendar year;
    (3) Designed so that the administration of these tests is 
effectively distributed throughout whatever portion of a 24-hour day 
that the railroad conducts its operations; and
    (4) Designed so that individual tests are administered without 
prior notice to the engineer being tested.
    (f) Each railroad's program shall indicate the action the railroad 
will take in the event that it finds deficiencies with a locomotive 
engineer's performance during an operational monitoring observation or 
unannounced compliance test administered in accordance with the 
procedures required under Sec.  240.303.
    11. Section 240.201 is revised to read as follows:


Sec.  240.201  Implementation.

    (a) Each railroad shall designate in writing any person(s) it deems 
qualified as a designated supervisor of locomotive engineers. Each 
person so designated shall have demonstrated to the railroad through 
training, testing or prior experience that he or she has the knowledge, 
skills, and ability to be a designated supervisor of locomotive 
engineers.
    (b) Each railroad shall designate in writing all persons that it 
will deem to be qualified as certified locomotive engineers for the 
purpose of initial compliance with paragraph (d) of this section, 
except as provided for in paragraph (h) of this section.
    (1) Each person so designated shall have demonstrated to the 
railroad through training, testing or prior experience that he or she 
has the knowledge and skills to be a certified locomotive engineer.
    (2) Each railroad shall issue a certificate that complies with 
Sec.  240.223 to each person that it designates as qualified under the 
provisions of paragraph (b) of this section.
    (c) No railroad shall permit or require a person, designated as 
qualified for certification under the provisions of paragraph (b) of 
this section, to perform service as a certified locomotive or train 
service engineer for more than a 36-

[[Page 80359]]

month period unless that person has been determined to be qualified in 
accordance with procedures that comply with subpart C of this part.
    (d) No railroad shall permit or require any person to operate a 
locomotive in any class of locomotive or train service unless that 
person has been certified as a qualified locomotive engineer and issued 
a certificate that complies with Sec.  240.223.
    (e) No Class I railroad (including the National Railroad Passenger 
Corporation) or railroad providing commuter service shall designate any 
person it deems qualified as a designated supervisor of locomotive 
engineers or initially certify or recertify a person as a locomotive 
engineer in either locomotive or train service unless that person has 
been tested, evaluated, and determined to be qualified in accordance 
with procedures that comply with subpart C of this part.
    (f) No Class II railroad shall designate any person it deems 
qualified as a designated supervisor of locomotive engineers or 
initially certify or recertify a person as a locomotive engineer in any 
class of locomotive or train service unless that person has been 
tested, evaluated and determined to be qualified in accordance with 
procedures that comply with subpart C of this part.
    (g) No Class III railroad (including a switching and terminal or 
other railroad not otherwise classified) shall designate any person it 
deems qualified as a designated supervisor of locomotive engineers or 
initially certify or recertify a person as a locomotive engineer in any 
class of locomotive or train service unless that person has been 
tested, evaluated and determined to be qualified in accordance with 
procedures that comply with subpart C of this part.
    (h) Each person designated as a locomotive engineer shall be issued 
a certificate that complies with Sec.  240.223 prior to being required 
or permitted to operate a locomotive.
    12. Section 240.203 is amended by revising paragraph (a) 
introductory text to read as follows:


Sec.  240.203  Determinations required as a prerequisite to 
certification.

    (a) Except as provided in paragraph (b) of this section, each 
railroad, prior to initially certifying or recertifying any person as 
an engineer for any class of service, shall, in accordance with its 
FRA-approved program determine in writing that:
* * * * *
    13. Section 240.205 is amended by revising paragraph (a) to read as 
follows:


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

    (a) Each railroad, prior to initially certifying or recertifying 
any person as an engineer for any class of service, shall determine 
that the person meets the eligibility requirements of Sec.  240.115 
involving prior conduct as a motor vehicle operator, Sec.  240.117 
involving prior conduct as a railroad worker, and Sec.  240.119 
involving substance abuse disorders and alcohol/drug rules compliance.
* * * * *
    14. Section 240.207 is amended by revising paragraph (a) to read as 
follows:


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

    (a) Each railroad, prior to initially certifying or recertifying 
any person as an engineer for any class of service, shall determine 
that the person meets the standards for visual acuity and hearing 
acuity prescribed in Sec.  240.121.
* * * * *
    15. Section 240.209 is amended by revising paragraph (a) to read as 
follows:


Sec.  240.209  Procedures for making the determination on knowledge.

    (a) Each railroad, prior to initially certifying or recertifying 
any person as an engineer for any class of train or locomotive service, 
shall determine that the person has, in accordance with the 
requirements of Sec.  240.125 of this part, demonstrated sufficient 
knowledge of the railroad's rules and practices for the safe operation 
of trains.
* * * * *
    16. Section 240.211 is amended by revising paragraph (a) to read as 
follows:


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

    (a) Each railroad, prior to initially certifying or recertifying 
any person as an engineer for any class of train or locomotive service, 
shall determine that the person has demonstrated, in accordance with 
the requirements of Sec.  240.127 of this part, the skills to safely 
operate locomotives or locomotives and trains, including the proper 
application of the railroad's rules and practices for the safe 
operation of locomotives or trains, in the most demanding class or type 
of service that the person will be permitted to perform.
* * * * *
    17. Section 240.213 is amended by revising paragraph (a) to read as 
follows:


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

    (a) Each railroad, prior to the initial issuance of a certificate 
to any person as a train or locomotive service engineer, shall 
determine that the person has, in accordance with the requirements of 
Sec.  240.123 of this part, the knowledge and skills to safely operate 
a locomotive or train in the most demanding class or type of service 
that the person will be permitted to perform.
* * * * *
    18. Section 240.215 is amended by revising paragraph (a) to read as 
follows:


Sec.  240.215  Retaining information supporting determinations.

    (a) A railroad that issues, denies, or revokes a certificate after 
making the determinations required under Sec.  240.203 shall maintain a 
record for each certified engineer or applicant for certification that 
contains the information the railroad relied on in making the 
determinations.
* * * * *
    19. Section 240.217 is amended by revising paragraph (a) 
introductory text to read as follows:


Sec.  240.217  Time limitations for making determinations.

    (a) A railroad shall not certify or recertify a person as a 
qualified locomotive engineer in any class of train or engine service, 
if the railroad is making:
* * * * *
    20. Section 240.221 is amended by revising paragraphs (a) and (b) 
to read as follows:


Sec.  240.221  Identification of qualified persons.

    (a) A railroad shall maintain a written record identifying each 
person designated by it as a supervisor of locomotive engineers.
    (b) A railroad shall maintain a written record identifying each 
person designated as a certified locomotive engineer. That listing of 
certified engineers shall indicate the class of service the railroad 
determines each person is qualified to perform and date of the 
railroad's certification decision.
* * * * *
    21. Section 240.225 is amended by revising paragraph (a) 
introductory text to read as follows:


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

    (a) A railroad that is considering certification of a person as a 
qualified engineer may rely on determinations made by another railroad 
concerning that person's qualifications. The railroad's certification 
program shall address how the railroad will administer the training of 
previously uncertified engineers with extensive

[[Page 80360]]

operating experience or previously certified engineers who have had 
their certification expire. If a railroad's certification program fails 
to specify how to train a previously certified engineer hired from 
another railroad, then the railroad shall require the newly hired 
engineer to take the hiring railroad's entire training program. A 
railroad relying on another's certification shall determine that:
* * * * *
    22. Section 240.303 is amended by revising paragraphs (a) and (d) 
to read as follows:


Sec.  240.303  Operational monitoring requirements.

    (a) Each railroad to which this part applies shall, prior to FRA 
approval of its program in accordance with Sec.  240.201, have a 
program to monitor the conduct of its certified locomotive engineers by 
performing both operational monitoring observations and by conducting 
unannounced operating rules compliance tests.
* * * * *
    (d) The unannounced test program shall:
    (1) Test engineer compliance with:
    (i) One or more provisions of the railroad's operating rules that 
require response to signals that display less than a ``clear'' aspect, 
if the railroad operates with a signal system that must comply with 
part 236 of this chapter;
    (ii) One or more provisions of the railroad's operating rules, 
timetable or other mandatory directives that require affirmative 
response by the locomotive engineer to less favorable conditions than 
that which existed prior to initiation of the test; or
    (iii) Provisions of the railroad's operating rules, timetable or 
other mandatory directives the violations of which engineers were cited 
by the railroad as the cause of train accidents or train incidents in 
accident reports filed in compliance with part 225 of this chapter for 
the preceding year;
    (2) Be conducted so that the administration of these tests is 
effectively distributed throughout whatever portion of a 24-hour day 
that the railroad conducts its operations;
    (3) Be conducted so that individual tests are administered without 
prior notice to the locomotive engineer being tested; and
    (4) Be conducted so that the results of the test are recorded on 
the certificate and entered on the record established under Sec.  
240.215 within 30 days of the day the test is administered.
    23. Section 240.305 is amended by removing the introductory text 
and revising paragraph (a)(3) to read as follows


Sec.  240.305  Prohibited conduct.

    (a) * * *
    (3) Operate a locomotive or train without adhering to procedures 
for the safe use of train or engine brakes when the procedures are 
required for compliance with the Class I, Class IA, Class II, Class 
III, or transfer train brake test provisions of 49 CFR part 232 or when 
the procedures are required for compliance with the class 1, class 1A, 
class II, or running brake test provisions of 49 CFR part 238;
* * * * *
    24. Section 240.307 is amended by revising paragraphs (a) and (j) 
introductory text to read as follows:


Sec.  240.307  Revocation of certification.

    (a) Except as provided for in Sec.  240.119(e), a railroad that 
certifies or recertifies a person as a qualified locomotive engineer 
and, during the period that certification is valid, acquires 
information regarding violations of Sec.  240.117(e) or Sec.  
240.119(c) of this chapter, which convinces the railroad that the 
person no longer meets the qualification requirements of this part, 
shall revoke the person's certificate as a qualified locomotive 
engineer.
* * * * *
    (j) The railroad shall place the relevant information in the 
records maintained in compliance with Sec.  240.309 for Class I 
(including the National Railroad Passenger Corporation) and Class II 
railroads, and Sec.  240.215 for Class III railroads if sufficient 
evidence meeting the criteria provided in paragraph (i) of this 
section, becomes available either:
* * * * *
    25. Section 240.309 is amended by revising paragraphs (a) and 
(e)(3) to read as follows:


Sec.  240.309  Railroad oversight responsibilities.

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

Appendix A to Part 240 [Amended]

    26. Appendix A to part 240--Schedule of Civil Penalties is amended 
by removing the entries for sections 240.203(a) through (a)(3); 
redesignating the entries for sections 240.203(b) through 240.203(b)(4) 
as 240.203(a) through (a)(4); redesignating the entries for sections 
240.203(c) through (c)(3) as 240.203(b) through (b)(3); and 
redesignating the entry for section 240.205(d) as 240.205(b) as 
follows:

Appendix D to Part 240 [Amended]

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

    Issued in Washington, DC, on December 23, 2008.
Clifford C. Eby,
Acting Administrator.
 [FR Doc. E8-31062 Filed 12-30-08; 8:45 am]

BILLING CODE 4910-06-P
