
[Federal Register Volume 77, Number 26 (Wednesday, February 8, 2012)]
[Rules and Regulations]
[Pages 6482-6492]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2012-2915]



[[Page 6482]]

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DEPARTMENT OF TRANSPORTATION

Federal Railroad Administration

49 CFR Part 242

[Docket No. FRA-2009-0035, Notice No. 3; 2130-AC36]


Conductor Certification

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

ACTION: Final rule; response to petitions for reconsideration.

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SUMMARY: This document responds to two petitions for reconsideration of 
FRA's final rule, published on November 9, 2011, which prescribed 
regulations for certification of conductors as required by the Rail 
Safety Improvement Act of 2008. In response to the petitions, this 
document amends and clarifies certain sections of the final rule.

DATES: Effective Date: The rule is effective February 8, 2012.

FOR FURTHER INFORMATION CONTACT: Joseph D. Riley, Railroad Safety 
Specialist (OP)-Operating Crew Certification, U.S. Department of 
Transportation, Federal Railroad Administration, Mail Stop-25, Room 
W38-323, 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: 

I. Background

    Pursuant to Sec.  402 of the Rail Safety Improvement Act of 2008, 
Public Law 110-432, 122 Stat. 4884, (Oct. 16, 2008) (codified at 49 
U.S.C. 20163) (hereinafter ``RSIA'') Congress required the Secretary of 
Transportation (Secretary) to prescribe regulations to establish a 
program requiring the certification of train conductors. The Secretary 
delegated this authority to the Federal Railroad Administrator. 49 CFR 
1.49(oo).
    On December 10, 2008, FRA's Railroad Safety Advisory Committee 
(RSAC) accepted a task statement (No. 08-07) and agreed to establish 
the RSAC Conductor Certification Working Group (Working Group) whose 
overall purpose was to recommend to the full committee regulations 
responsive to the RSIA's mandate concerning the certification of 
railroad conductors.
    The Working Group reached consensus on all of its recommended 
regulatory provisions. On March 18, 2010, the Working Group presented 
its recommendations to the full RSAC for concurrence. All of the 
members of the full RSAC in attendance at the March meeting accepted 
the regulatory recommendations submitted by the Working Group. Thus, 
the Working Group's recommendations became the full RSAC's 
recommendations to FRA.
    Based on the recommendations of the RSAC, FRA published a Notice of 
Proposed Rulemaking (NPRM) in the Federal Register on November 10, 
2010. See 75 FR 69166. In the NPRM, FRA solicited public comment on the 
proposed rule and notified the public of its option to request a public 
hearing on the NPRM. In addition, FRA also invited comment on a number 
of specific issues related to the proposed requirements for the purpose 
of developing the final rule. In response to the NPRM, FRA received 
written comments as well as advice from the Working Group in preparing 
a final rule which was published on November 9, 2011. See 76 FR 69802.
    Following publication of the final rule, parties filed petitions 
seeking FRA's reconsideration of the rule's requirements--the 
Brotherhood of Locomotive Engineers and Trainmen (BLET) and the United 
Transportation Union (UTU) submitted a joint petition (BLET/UTU 
Petition) and the Association of American Railroads, the American 
Public Transportation Association, and the American Short Line and 
Regional Railroad Association submitted a joint petition (AAR 
Petition). These petitions principally relate to the following subject 
areas: the implementation dates; 49 CFR part 217 and 218 testing; 
conductor assistants on main track; and the appeals process. In 
addition to the issues raised in the petitions, clarification of the 
final rule is needed with respect to the applicability of the rule to 
those persons who perform what have traditionally been known as hostler 
assignments.
    This document responds to all the issues raised in the petitions 
for reconsideration and amends and clarifies certain sections of the 
final rule. The amendments contained in this document generally clarify 
the requirements contained in the final rule or allow for greater 
flexibility in complying with the rule, and are within the scope of the 
issues and options discussed, considered, or raised in the NPRM.

II. Issues Raised by Petitions for Reconsideration

A. Implementation Dates

    The AAR Petition requests that the implementation dates in the 
final rule be extended because: (1) They are inconsistent with the 
anticipated timeline provided in the NPRM; (2) they are inconsistent 
with the timing of railroad training; and (3) they do not permit enough 
time for training, testing and evaluating conductors. In the NPRM, FRA 
stated that it was proposing an effective date of January 1, 2012 for 
the final rule ``based on FRA's anticipation that the final rule will 
be published in early 2011.'' Since the final rule was published in 
late 2011 (about 6 months after the anticipated publication date), the 
Petition argues that the implementation dates should be adjusted 
accordingly.
    According to the Petition, railroads typically formulate their 
training programs in the fall and their trainers have to be prepared at 
the beginning of the year. The implementation dates in the final rule 
do not permit sufficient time to implement their training programs or 
to make pertinent changes to their IT systems used to comply with the 
regulations. According to the Petition, it takes an average of 6 months 
to train a conductor. However, the period between the likeliest program 
approval date (i.e., April 29) and the date that Class I's must test 
and evaluate conductors (i.e., June 1) leaves only one month to test 
and evaluate conductors. Further, the Petition notes that FRA has 
adjusted implementation dates of previous rulemakings to comport with 
railroad training schedules (e.g., Part 218).
    FRA acknowledges that the final rule was published later than 
anticipated. Therefore, to provide a reasonable amount of time for the 
railroads to implement their training programs, FRA is retaining the 
current effective date of the final rule (i.e., January 1, 2012) but is 
extending the implementation dates by 6 months. For the convenience of 
interested parties, a table is provided below showing the changes to 
the implementation dates:

------------------------------------------------------------------------
                                      Final rule            Amended
             Event                  implementation      implementation
                                        dates                dates
------------------------------------------------------------------------
Effective Date.................  Jan. 1, 2012.......  Jan. 1, 2012.

[[Page 6483]]

 
Designate and issue certs. to    By March 1, 2012...  By Sept. 1, 2012.
 all authorized as of Jan. 1,
 2012 [242.105(a)].
Grandfather and issue certs.     After March 1, 2012  After Sept. 1,
 for all authorized between                            2012.
 Jan. 1 and June 1, 2012 (Class
 I & II) or Oct. 1, 2012 (Class
 III) [242.105(b)].
Maintain a list of each          After March 1, 2012  After Sept. 1,
 designated conductor                                  2012.
 [242.205(a)].
Class I & II submit program to   By March 30, 2012..  By Sept. 30, 2012.
 FRA [242.103(a)(1)].
Class I & II must have approved  By June 1, 2012....  By Dec. 1, 2012.
 program [242.101(a)].
Class III submit program to FRA  By July 30, 2012...  By Jan. 31, 2013.
 [242.103(a)(2)].
Class III must have approved     By Oct. 1, 2012....  By April 1, 2013.
 program [242.101(a)].
Program approval [242.103(g)]..  Program considered   Program considered
                                  approved and may     approved and may
                                  be implemented 30    be implemented 30
                                  days after           days after
                                  required filing      required filing
                                  date.                date.
Class I & II must subpart B      After June 1, 2012.  After Dec. 1,
 test [242.105(d)].                                    2012.
Class III must subpart B test    After Oct. 1, 2012.  After April 1,
 [242.105(e)].                                         2013.
Annual program review            Beginning in 2013..  Beginning in 2014.
 [242.215(a)].
------------------------------------------------------------------------

B. Part 217 and 218 Testing

    The AAR Petition requests that FRA clarify that testing under 49 
CFR part 217 and 218 is not affected by the final rule. In the preamble 
to the final rule, FRA noted that a railroad could not test and 
evaluate a designated conductor or conductor candidate under subpart B 
of the final rule until the railroad had a certification program 
approved by FRA. According to the AAR Petition, that prohibition 
combined with Sec.  242.123(c), which requires that each conductor 
shall be given at least one unannounced compliance test annually in 
accordance with parts 217 and 218, presents a potential timing issue 
that may leave railroads with insufficient time to conduct part 217/218 
testing.
    FRA acknowledges that a railroad that follows the schedule provided 
in the final rule may not have sufficient time to conduct part 217/218 
testing pursuant to the final rule if it is not permitted to test prior 
to having an approved program in place. Moreover, parts 217 and 218 
provide testing procedures that railroads must follow irrespective of 
whether they have a conductor certification program in place. Thus, FRA 
is clarifying the final rule to indicate that part 217/218 testing is 
not covered by the final rule's statement regarding testing prior to 
the approval of a program.

C. Conductor Assistant

    The AAR Petition requests that Sec.  242.301(c) of the final rule 
be amended to remove the requirement for a non-crewmember to serve as a 
conductor's assistant on main track where the conductor lacks 
territorial qualification on the main track physical characteristics. 
The AAR Petition asserts that the final rule should be amended because: 
(1) The changes regarding the assistant were made at the final rule 
stage and were not what was agreed to at the RSAC; (2) the rule is 
inconsistent with the position that UTU had taken outside of the 
regulatory process (i.e., a 2010 agreement with CSX which purportedly 
permits an engineer, who is a member of the crew, to serve as an 
assistant for a conductor unfamiliar with the territory over which the 
train is operating); (3) FRA failed to conduct a cost-benefit analysis 
of its prohibition on the engineer serving as an assistant on main 
track which will cost the industry millions of dollars annually by 
requiring an extra person in the cab to serve as a conductor or by 
requiring the industry to take conductors on ``pilot trips''; (4) the 
rule could adversely affect passenger railroad finances and services 
because of delays, cancelations, train evacuations, and platform 
crowding if no employee is available who is not a member of the crew to 
serve as the conductor's assistant; and (5) FRA failed to demonstrate 
measurable safety benefits of the rule and no safety benefit exists. 
The AAR petition asserts that it is ``particularly egregious'' to 
prohibit the engineer from serving as the assistant to the conductor in 
circumstances where the conductor was previously qualified over the 
territory but whose qualification has lapsed.
    Although the final rule modified the requirements proposed in the 
NPRM regarding assistants on main track, FRA believes that safety 
concerns (i.e., the safe operation of a train in difficult operating 
environments on main track combined with the need to maintain the roles 
of each crewmember in those situations) necessitate the need to modify 
those requirements. A conductor, who has never been qualified on the 
physical characteristics of the territory, would not have the knowledge 
to be able to fulfill his or her role on the train and an assigned crew 
member serving as an assistant would be distracted from their other 
duties and may not be able to provide a check on the judgments of the 
other crew members. In addition, there are some unique situations on 
main track which highlight the need for an assistant that is familiar 
with the territory and can provide a check on the engineer with respect 
to safe operation of the train over the territory. For example, 
terminals that serve as multiple hubs where conductors can be sent in 
multiple directions over main track where they are required to 
negotiate multiple signal systems each governed by a different set of 
rules.
    The conductor plays a key role in rail operations by, inter alia, 
determining the train consist, ensuring compliance with hazardous 
materials placement and documentation requirements, calling or 
acknowledging signals, receiving mandatory directives, conducting 
frequent briefings with the locomotive engineer to ensure compliance 
with movement restrictions, intervening through use of the conductor's 
brake valve if the engineer is unresponsive or incapacitated, and using 
their knowledge of the operating environment to identify safety 
concerns and resolve them. See, e.g., General Code of Operating Rules 
section 1.47 and NORAC Operating Rules rule 94 and 941. Within this 
framework, a conductor must remain able to provide a check on the 
judgments made by another crew member.
    Each railroad is free, within the constraints of collective 
bargaining agreements as to staffing, and subject to oversight by FRA 
with respect to safety, to determine its operating rules and assignment 
of responsibilities to its personnel. Nevertheless, FRA remains 
concerned that railroad operating crews function as a team, discharging 
their responsibilities on the basis of adequate information and using 
their knowledge

[[Page 6484]]

of the operating environment to identify safety concerns and resolve 
them. Within this framework, each crew member must remain able to 
respectfully and helpfully question a judgment by another crew member. 
This general approach is known as ``crew resource management'' (CRM), a 
concept perfected in aviation and urgently pressed on the railroad 
industry by the National Transportation Safety Board and the FRA. See 
NTSB Recommendation R-99-13 (July 29, 1999). Major railroads have 
included CRM in their training programs.
    It is particularly important that a conductor have an assistant who 
is not distracted either by or from their other duties now that 
conductors may be decertified for actions they take or fail to take 
during the operation of a train. Indeed, this rulemaking is holding 
conductors to a higher level of accountability and requiring more 
severe consequences for failing to meet that level than they have ever 
faced before. Accordingly, principles of fairness and safety dictate 
that conductors be provided all the tools, knowledge, and oversight 
needed to meet this higher level of accountability. Providing the 
proper tools, knowledge, and oversight should, in turn, create an even 
safer operating environment particularly where an assigned crew member 
is serving as the assistant. A more knowledgeable conductor will likely 
allow an assistant to focus less on assisting the conductor and more on 
their other duties. Similarly, in instances where a conductor is less 
familiar with a territory, there is a greater necessity to provide that 
conductor with an assistant that is not distracted by other duties.
    Principles of fairness and safety also dictate that an engineer, 
who is directly responsible for operating the train and also subject to 
decertification, not be required to act as an assistant to a conductor, 
who possesses insufficient knowledge of the territory. Requiring an 
engineer to provide extensive assistance to a conductor could 
potentially result in that engineer being distracted from other safety 
critical duties. FRA's decision on this issue must be based on safety 
considerations and should not be impacted by what a railroad and 
representatives of its employees may have agreed to in the past, 
particularly when the level of accountability was not as high as it is 
now.
    Although the AAR Petition asserts that the final rule's prohibition 
on an assigned locomotive engineer serving as a conductor's assistant 
on main track where the conductor lacks territorial qualification on 
the main track physical characteristics will ``cost the industry 
millions of dollar[s] annually'' by requiring an extra person in the 
cab or by requiring railroads to take conductors on ``pilot trips,'' 
the Petition does not provide evidentiary support for its assertion or 
an explanation of how it calculated the additional cost it claims the 
rule will require. Without this information, FRA cannot compare or 
respond to the cost claim.\1\ However, contrary to the AAR Petition's 
assertion, FRA did, in fact, conduct an economic analysis of the final 
rule's prohibition on a locomotive engineer serving as a conductor's 
assistant on main track and included additional costs in its analysis 
of the final rule. In the final rule's Regulatory Impact Analysis, a 
copy of which was placed in the docket on http://www.regulations.gov, 
FRA explained that:
---------------------------------------------------------------------------

    \1\ The only specific cost claim made in the AAR Petition is 
that the Union Pacific Railroad (UP) estimates that it would cost an 
additional $8.5 million annually for the UP alone to conduct the 
additional pilot trips for conductors. However, the AAR Petition 
provides absolutely no information about how that number was 
derived. For example, there is no indication of how many pilot trips 
would be required, how many employees would be involved in the trips 
or the wage rate of those employees, or how much time the trips 
would take. The AAR Petition also fails to provide information as to 
whether UP's estimate would apply to every railroad or whether the 
estimate would differ for each class of railroad. Without such 
information, it is impossible for FRA to respond to the cost claims 
in the AAR Petition or to even compare its own economic analysis 
with the claims made in the AAR Petition.

    In the final rule, FRA modified the requirements in paragraph 
(c), and added paragraph (e). The cost estimates for the other 
requirements above still exist and are appropriate. While the 
modifications to paragraph (c) will impose additional burdens, FRA 
believes the exceptions in paragraph (e) along with the on-the-job 
training requirements of this final rule will serve to minimize this 
burden. FRA believes that the situation in which an assistant is 
required is most likely to occur on Class I railroads and 
occasionally on Class II railroads. When this situation does occur 
FRA is assuming it would require an additional railroad employee for 
approximately eight hours. FRA estimates that this situation will 
occur an average of 10 times per week for the railroad industry. The 
annual cost for this is estimated to be $180,000. For a 20-year 
period, this is estimated to total $3.4 million, and the PV is $1.7 
---------------------------------------------------------------------------
million.

Final Rule Regulatory Impact Analysis (Oct. 19, 2011) at 30. Further, 
the analysis provided FRA's calculation of the cost: ``Calculation: (10 
occurrences/week) * (8 hours) * ($43.20 wage) * (52 weeks) = $179,712 
per year which is rounded up to $180,000.'' Id. at note 56. Absent 
verifiable evidence to the contrary, FRA continues to believe that this 
situation should be a relatively rare occurrence which can be largely 
avoided by the railroads simply by keeping their conductors trained and 
qualified.
    FRA recognizes the passenger railroads' concerns regarding the 
potential economic and service impact of prohibiting a crewmember from 
serving as an assistant in certain situations, but notes that passenger 
railroads have successfully dealt with a similar issue with locomotive 
engineers under part 240 for many years without excessive financial 
burdens or service delays being incurred.\2\ Moreover, FRA expects this 
situation to be a relatively rare occurrence for passenger 
railroads.\3\
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    \2\ With certain exceptions, Sec.  240.231 prohibits an assigned 
crew member from serving as an assistant to a locomotive engineer 
who lacks qualification on the physical characteristics of the 
territory over which they are to operate.
    \3\ Similar to the AAR Petition's claims regarding pilot trip 
costs, the Petition provides no information or evidentiary support 
as to what ``financial burden'' passenger railroads may face. 
Without such information, it is again impossible for FRA to respond 
to the financial claims in the AAR Petition.
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    While FRA declines to revise the requirement in the final rule 
requiring a non-crewmember to serve as a conductor's assistant on main 
track where the conductor has never been qualified on the main track 
physical characteristics of the territory over which he or she is to 
serve as a conductor, FRA believes that it can provide some flexibility 
to the railroads with respect to conductors whose qualifications have 
been expired for one year or less and who have regularly traversed the 
territory prior to the expiration of the qualifications. In that 
scenario, the safety concerns are reduced because it is likely that the 
assistant would need only to provide minimal assistance to the 
conductor due to the conductor's familiarity with the physical 
characteristics of the territory.
    For a conductor who was previously qualified on main track physical 
characteristics of the territory over which he or she is to serve as a 
conductor, but whose qualification has been expired for one year or 
less and who regularly traversed the territory prior to the expiration 
of the qualification, this response provides that the assistant may be 
any person, including an assigned crewmember, who meets the territorial 
qualification requirements for main track physical characteristics. For 
a conductor whose qualification has been expired for one year or less 
but who has not regularly traversed the territory prior to the 
expiration of the qualification, or a conductor whose territorial 
qualification on main track has been expired for more

[[Page 6485]]

than a year, this response provides that the assistant may be any 
person, including an assigned crewmember other than the locomotive 
engineer so long as serving as the assistant would not conflict with 
that crewmember's other safety sensitive duties, who meets the 
territorial qualification requirements for main track physical 
characteristics.
    In order to determine when a conductor's territorial qualification 
has expired and whether the conductor regularly traversed the territory 
prior to the expiration of the qualification, FRA is requiring that 
each railroad indicate in its program how long a conductor must be 
absent from a territory before the conductor's qualification on the 
physical characteristics of the territory expires and the number of 
times a person must pass over a territory per year to be considered to 
have ``regularly traversed'' a territory for purposes of Sec.  
242.301(c). FRA believes that those requirements will help ensure that 
conductors travel over a territory with sufficient regularity to 
maintain knowledge of the physical characteristics. Further discussion 
of those requirements is contained below in the analysis of the 
revisions to Appendix B of part 242.

D. Appeals Process

    The BLET/UTU Petition requests reconsideration of FRA's decision 
not to adopt the BLET/UTU's proposal for changing the appeals process 
provided in Sec. Sec.  242.501, 503, 505, 507, 509 and 511 of the final 
rule. The proposal would eliminate appeals to an Administrative Hearing 
Officer (AHO), except in cases where the Operating Crew Review Board 
(OCRB) or a party wants a specific issue developed further, require the 
OCRB to grant a decision if any procedural error by the railroad is 
shown, add an attorney as a member to the OCRB, eliminate the 
opportunity for parties to appeal FRA decisions to the Administrator, 
and make the OCRB decision final agency action. According to the BLET/
UTU Petition, the proposal will make the appeals process more balanced, 
efficient, and less costly.
    FRA declines to adopt BLET/UTU's proposed revisions to the appeals 
process. The proposed appeals process was thoroughly discussed during 
the Working Group meetings and most of BLET/UTU's suggestions were 
rejected at those meetings. As explained to the Working Group and 
indicated in the preamble to the final rule, due process requirements 
and issues concerning trials de novo necessitate that FRA retain the 
OCRB and AHO as distinct levels of review. Moreover, despite BLET/UTU's 
assertions to the contrary, FRA continues to believe that the BLET/UTU 
proposal would result in a significant increase in the number of cases/
issues handled by the AHO and the federal courts thereby causing cases 
to take much longer to resolve and involve increased costs for all 
parties involved.
    Although FRA is not adopting BLET/UTU's proposals, FRA is committed 
to handling engineer and conductor certification cases as quickly as 
possible and is taking steps to make the appeals process more 
efficient. Over the past two years, the average length of time for the 
AHO to render a decision in a locomotive engineer case under part 240 
has dropped by 6 months. One of the steps FRA has taken is to revise 
the requirements proposed in the NPRM to require petitions to be 
submitted to the Docket Clerk of DOT rather than FRA's Docket Clerk. 
With that change, the process for submitting petitions to the OCRB will 
parallel the process for requesting an administrative hearing under 
part 240 and Sec.  242.507. FRA believes this change will make the 
process more efficient as DOT Dockets is better equipped to process and 
store these types of filings.

III. Clarifying Amendment

Hostler-Type Assignments

    Following the publication of the final rule, it was brought to 
FRA's attention that the final rule may be unclear regarding the 
applicability of the rule to those persons who perform what have 
traditionally been known as hostler assignments. Those assignments 
typically involve moving locomotives within the confines of a 
locomotive servicing area or car repair shop area.
    FRA did not intend for a person performing those types of 
assignments to be covered by the requirements of part 242. As FRA 
stated in the section-by-section analysis of the Final Rule, ``[a]ll 
other train or yard crew members (e.g., assistant conductors, brakemen, 
hostlers, trainmen, switchmen, utility persons, flagmen, yard helpers, 
and others who might have different job titles but perform similar 
duties and are not in charge of a train or yard crew) do not fall 
within the definition of `conductor' for purposes of this rule.'' 76 FR 
69815. To ensure that interested parties are clear on this issue, FRA 
states in the section-by-section analysis below that a person who moves 
a locomotive or a 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 moves a locomotive or group of locomotives for 
distances of less than 100 feet and this incidental movement of a 
locomotive or locomotives is for inspection or maintenance purposes is 
not subject to the requirements of part 242.

IV. Section-by-Section Analysis

    FRA is modifying certain provisions of 49 CFR part 242 in response 
to the petitions for reconsideration and issues raised following the 
publication of the final rule. This section of the preamble explains 
the changes made to the final rule. FRA respectfully refers interested 
parties to the agency's Section-by-Section Analysis of the final rule 
and the Notice of Proposed Rulemaking for a full discussion of those 
aspects of the rulemaking that remain unchanged. See 76 FR 69802 (Nov. 
9, 2011) and 75 FR 69166 (Nov. 10, 2010).

Subpart A--General

Section 242.7 Definitions

    While FRA is not modifying the definition of ``conductor'' in the 
final rule, FRA is clarifying its preamble discussion in the final 
rule's Section-by-Section Analysis regarding the applicability of part 
242 to railroad employees who perform what have traditionally been 
known as hostler assignments. FRA did not intend for a person 
performing those types of assignments to be covered by the requirements 
of part 242. Accordingly, interested parties should note that a person 
who moves a locomotive or a 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 moves a locomotive or group of locomotives for 
distances of less than 100 feet and this incidental movement of a 
locomotive or locomotives is for inspection or maintenance purposes is 
not subject to the requirements of part 242.

Subpart B--Program and Eligibility Requirements

Section 242.103 Approval of Design of Individual Railroad Programs by 
FRA

    FRA is amending paragraphs (a)(1) and (a)(2) of this section to 
delay the date by which the railroads will have to submit their 
certification programs to FRA. The final rule required a Class I 
railroad (including the National Railroad Passenger Corporation), Class 
II railroad, or railroad providing commuter service to submit a program 
to FRA no later than March 30, 2012 while a Class III railroad was 
required to submit a program by January 31, 2013. As indicated in the 
preamble that date is being pushed back 6 months.

[[Page 6486]]

Accordingly, Class I, II, Amtrak, and commuter railroads must now 
submit their programs by September 30, 2012 while Class III railroads 
must submit a program by January 31, 2013.
    Interested parties should note that, except for testing under parts 
217 and 218 required by section 242.123, railroads may not test and 
evaluate a designated conductor or conductor candidate under subpart B 
of this rule until they have a certification program approved by the 
FRA pursuant to section 242.103.

Section 242.105 Schedule for implementation

    This section contains the timetable for implementation of the rule. 
FRA is amending paragraphs (a), (b), (d), and (e) of this section to 
delay the date by which the railroads must designate conductors and 
issue certificates to those designated conductors and the date by which 
railroads must test and evaluate non-designated conductor candidates 
pursuant to subpart B of the rule. As indicated in the preamble, those 
dates are being pushed back 6 months. Accordingly, by September 1, 
2012, all railroads must designate and issue certificates to all 
persons authorized by the railroads to perform the duties of a 
conductor as of January 1, 2012. After September 1, 2012, Class I, II, 
Amtrak, and commuter railroads must designate and issue certificates to 
all persons authorized to perform as conductors between January 1, 
2012, and December 1, 2012. For the Class III railroads, after 
September 1, 2012, Class I, II, they must designate and issue 
certificates to all persons authorized to perform as conductors between 
January 1, 2012, and April 1, 2013.
    With respect to the dates by which railroads may not initially 
certify or recertify a person as a conductor unless that person has 
been tested and evaluated in accordance with subpart B of the rule, the 
date for the Class I, II, Amtrak, and commuter railroads is now ``after 
December 1, 2012'' while the date for the Class III railroads is now 
``after April 1, 2013.''
    Interested parties should note that, except for testing under parts 
217 and 218 required by section 242.123, railroads may not test and 
evaluate a designated conductor or conductor candidate under subpart B 
of this rule until they have a certification program approved by the 
FRA pursuant to section 242.103.
    Interested parties should also note that another section of this 
rule (i.e., 242.101) contains implementation dates which are derived 
from the dates provided this section. Thus, while the regulatory text 
for section 242.101 is not being amended, the changes to the dates in 
section 242.105 will impact the implementation requirements in section 
242.101.

Subpart C--Administration of the Certification Program

Section 242.205 Identification of Certified Persons and Recordkeeping

    FRA is amending paragraph (a) of this section to delay the date by 
which the railroads are required to maintain a list of its certified 
conductors. As indicated in the preamble, the date is being pushed back 
by 6 months. Accordingly, railroads are now required to maintain that 
list after September 1, 2012.

Section 242.215 Railroad Oversight Responsibilities.

    This section of the final rule required Class I (including the 
National Railroad Passenger Corporation and a railroad providing 
commuter service) and Class II railroads to conduct an annual review 
and analysis of their programs for responding to detected instances of 
poor safety conduct by certified conductors beginning in calendar year 
2013. To conform with the rest of the implementation dates in part 242 
that have been pushed back by 6 months, FRA is revising paragraph (a) 
of this section to read ``beginning in calendar year 2014.''

Subpart D--Territorial Qualification and Joint Operations

Section 242.301 Requirements for Territorial Qualification

    FRA is revising paragraph (c)(2) and adding paragraph (c)(3) to 
this section. Those paragraphs describe who may serve as an assistant 
to a conductor whose qualification on the physical characteristics of a 
main track territory has expired. For a conductor who was previously 
qualified on main track physical characteristics of the territory over 
which he or she is to serve as a conductor, but whose qualification has 
been expired for one year or less and who regularly traversed the 
territory prior to the expiration of the qualification, paragraph 
(c)(2) provides that the assistant may be any person, including an 
assigned crewmember, who meets the territorial qualification 
requirements for main track physical characteristics. For a conductor 
whose qualification has been expired for one year or less but who has 
not regularly traversed the territory prior to the expiration of the 
qualification, or a conductor whose territorial qualification on main 
track has been expired for more than a year, paragraph (c)(3) provides 
that the assistant may be any person, including an assigned crewmember 
other than the locomotive engineer so long as serving as the assistant 
would not conflict with that crewmember's other safety sensitive 
duties, who meets the territorial qualification requirements for main 
track physical characteristics.

Appendices

    Section 2 of Appendix B is being amended to add a requirement that 
railroads must state in their programs the number of times a person 
must pass over a territory per year to be considered to have 
``regularly traversed'' a territory for purposes of Sec.  242.301(c). 
This requirement is similar to what railroads already do in their part 
240 programs and operating rules with respect to locomotive engineers 
who have not worked any trips over a territory for a period of time.
    FRA recognizes the uniqueness of railroad territories and the 
differences in their complexity and, therefore, FRA is providing the 
railroads with the discretion to determine how many times a conductor 
must pass over a territory to be considered to have ``regularly 
traversed'' a territory. Railroads have a higher level of familiarity 
with their territories than FRA, and thus, are in the best position to 
evaluate them to determine how many times a conductor must pass over a 
territory to safely use an assigned crewmember as an assistant. Indeed, 
many factors will affect the complexity of a territory. For example, 
signaling, grade and speed, the amount of territory covered, the number 
of lines that may be traversed, whether cars will be set off on branch 
lines and the differences between the branch lines, and joint 
operations over shared trackage are all factors that will need to 
considered in determining the number of passes that a conductor must 
have made over a territory before an assigned crewmember may be safely 
utilized as an assistant to the conductor. Given the number of factors 
involved, FRA expects that different frequencies of travel will be 
required for different lines.
    Although the railroads best understand the difficulties that their 
territory presents for a conductor, FRA will closely review each 
railroad's program to ensure that the determinations regarding number 
of passes are reasonable in light of FRA's understanding of the 
railroad's operations. To that end, FRA recommends that each program 
contain a brief description of the railroad's operations, including 
mileage, speed, signal systems, type of service provided,

[[Page 6487]]

and any other factor the railroad considers significant to their 
operation.

V. Regulatory Impact and Notices

A. Executive Order 12866 and DOT Regulatory Policies and Procedures

    This action 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. The original final rule was determined to be non-
significant. Furthermore, the amendments contained in this action are 
not considered significant because they generally clarify requirements 
currently contained in the final rule or allow for greater flexibility 
in complying with the rule.
    These amendments and clarifications provide more time and 
flexibility in the implementation of this final rule. In addition, the 
amendments to the conductor assistant requirements in Sec.  242.301 
should decrease the burdens related to providing assistants. Thus, 
these amendments will have a minimal net effect on FRA's original 
analysis of the costs and benefits associated with the final rule.

B. Regulatory Flexibility Act and Executive Order 13272

    To ensure potential impacts of rules on small entities are properly 
considered, FRA developed this action and the original final rule in 
accordance with Executive Order 13272 (``Proper Consideration of Small 
Entities in Agency Rulemaking'') and DOT's procedures and policies to 
promote compliance with the Regulatory Flexibility Act (5 U.S.C. 601 et 
seq.). Pursuant to the Regulatory Flexibility Act (5 U.S.C. 605(b)), 
FRA certifies that this action would not have a significant economic 
impact on a substantial number of small entities.
    The amendments contained in this action that modify the 
implementation dates will provide small entities more time to implement 
conductor certification programs. The amendments to the conductor 
assistant requirements should have no significant economic impact on 
small entities since most small railroads usually operate with small 
train crews or remote control operations with a single-person crew who 
will be dual certified and thus likely to be qualified as both an 
engineer and a conductor on the physical characteristics of the 
territory over which they will operate. In addition, most smaller 
railroads have small territories and most of these territories, and 
their physical characteristics, likely will not change. Accordingly, 
because the amendments contained in this action generally clarify 
requirements currently contained in the final rule or allow for greater 
flexibility in complying with the rule, FRA has concluded that there 
are no substantial economic impacts on small entities resulting from 
this action.

C. Paperwork Reduction Act

    The information collection requirements in this final 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. 
None of the information collection requirements and corresponding 
burden time estimates below have changed in response to the petitions 
for reconsideration.

----------------------------------------------------------------------------------------------------------------
                                                            Total annual       Average time per    Total annual
       CFR Section/subject         Respondent universe       responses             response        burden hours
----------------------------------------------------------------------------------------------------------------
242.9: Waivers--Petitions........  677 railroads......  10 petitions.......  3 hours............              30
242.101/103: Certification         677 railroads......  678 programs.......  160 hrs./581 hrs./           16,799
 Program: Written Program for                                                 15.5 hrs.
 Certifying Conductors.
Approval of Design of Programs...
    Certification Programs for     6 railroads........  6 new prog.........  15.5 hours.........              93
     New RRs.
    Conductor Certification        677 railroads......  200 copies.........  15 minutes.........              50
     Submission Copies to Rail
     Labor Organizations.
    Affirmative Statements that    677 railroads......  200 statements.....  15 minutes.........              50
     Copies of Submissions Sent
     to RLOs.
    Certified Comments on          677 railroads......  35 comments........  4 hours............             140
     Submissions.
    Certification Programs         677 railroads......  10 programs........  4 hours............              40
     Disapproved by FRA and then
     Revised.
    Revised Certification          677 railroads......  3 programs.........  2 hours............               6
     Programs Still Not
     Conforming and then
     Resubmitted.
    Certification Programs         677 railroads......  50 programs........  2 hours............             100
     Materially Modified After
     Initial FRA Approval.
    Materially Modified Programs   677 railroads......  3 programs.........  2 hours............               6
     Disapproved by FRA & Then
     Revised.
    Revised programs Disapproved   677 railroads......  1 program..........  2 hours............               2
     and Then Resubmitted.
242.1050: Implementation Schedule
    Designation of Certified       677 railroads......  48,600 designations  5 minutes..........           4,050
     Conductors (Class I
     Railroads).
    Issued Certificates (\1/3\
     each year).
    Designation of Certified       677 railroads......  16,200 certif......  1 hour.............          16,200
     Conductors.
    (Class II and III Railroads).  677 railroads......  5,400 design.......  5 minutes..........             450
    Issued Certificates (\1/3\     677 railroads......  1,800 certif.......  1 hour.............           1,800
     each year).
    Requests for Delayed           677 railroads......  5,000 request......  30 minutes.........           2,500
     Certification.
    Testing/Evaluation to Certify  677 railroads......  1,000 tests........  560 hours..........         560,000
     Persons.
    Testing/Evaluation to Certify  627 railroads......  100 tests..........  400 hours..........          40,000
     Conductors (Class III).
242.107: Types of Service          677 railroads......  25 conductor Tests/  8 hours............             200
 Reclassification to Diff. Type                          Evaluations.
 of Cert.
242.109: Opportunity by RRs for    677 Railroads......  200 records + 200    30 minutes + 10                 133
 Certification Candidates to                             comment.             minutes.
 Review and Comment on Prior
 Safety Record.
242.111: Prior Safety Conduct As
 Motor Vehicle Operator.

[[Page 6488]]

 
    Eligibility Determinations...  677 Railroads......  1,100 dtrmin.......  10 minutes.........             183
    Initial Certification for 60   677 Railroads......  75 certific........  10 minutes.........              13
     Days.
    Recertification for 60 Days..  677 Railroads......  125 recertif.......  10 minutes.........              21
    Driver Info. Not Provided and  677 Railroads......  25 requests........  2 hours............              50
     Request for Waiver by
     Persons/RR.
    Request to Obtain Driver's     54,000 Conductors/   18,000 req.........  15 minutes.........           4,500
     License Information From       Persons.
     Licensing Agency.
    Requests for Additional        54,000 Conductors/   25 requests........  10 minutes.........               4
     Information From Licensing     Persons.
     Agency.
    Notification to RR by Persons  54,000 Conductors/   2 notification.....  10 minutes.........             .33
     of Never Having a License.     Persons.
    Report of Motor Vehicle        54,000 Conductors..  200 reports........  10 minutes.........              33
     Incidents.
    Evaluation of Driving Record.  54,000 Conductors..  18,000 eval........  15 minutes.........           4,500
    DAC Referral by RR After       677 Railroads......  180 referrals......  5 minutes..........              15
     Report of Driving Drug/
     Alcohol Incident.
    DAC Request and Supply by      677 Railroads......  5 requests/Records.  30 minutes.........               3
     Persons of Prior Counseling
     or Treatment.
    Conditional Certifications     677 Railroads......  50 certificat......  4 hours............             200
     Recommended by DAC.
242.113: Prior Safety Conduct As   54,000 conductors..  360 requests/360     15 minutes + 30                 270
 Employee of a Different Railroad.                       records.             minutes.
242.115: Substance Abuse           54,000 conductors..  18,000               2 minutes..........             600
 Disorders and Alcohol Drug Rules                        determination.
 Compliance:
    Meeting Section's Eligibility
     Reqmnt.
    Written Documents from DAC     677 railroads......  400 docs...........  30 minutes.........             200
     Person Not Affected by a
     Disorder.
    Self Referral by Conductors    54,000 conductors..  10 self referrals..  10 minutes.........               2
     for Substance Abuse
     Counseling.
    Certification Reviews for      677 railroads......  18,000 reviews.....  10 minutes.........           3,000
     Occurrence/Documentation of
     Prior Alcohol/Drug Conduct
     by Persons/Conductors.
    Written Determination That     677 railroads......  150 determin.......  60 minutes.........             150
     Most Recent Incident Has
     Occurred.
    Notification to Person That    677 railroads......  150 notific........  10 minutes.........              25
     Recertification Has Been
     Denied.
    Persons/Conductors Waiving     54,000 conductors..  100 waivers........  10 minutes.........              17
     Investigation.
242.117: Vision and Hearing
 Acuity.
    Determination Vision           677 railroads......  18,000 deter.......  20 minutes.........           6,000
     Standards Met.
    Determination Hearing Stds.    677 railroads......  18,000 deter.......  20 minutes.........           6,000
     Met.
    Additional Gap Hearing Tests.  677 railroads......  200 deter..........  20 minutes.........              67
    Medical Examiner Certificate   677 railroads......  18,000 certif......  2 hours............          36,000
     that Person Has Been
     Examined/Passed Test.
    Document Standards Met with    677 railroads......  50 document........  30 minutes.........              25
     Conditions.
    Document Standards Not Met...  677 railroads......  25 document........  30 minutes.........              13
    Notation Person Needs          677 railroads......  10,000 notes.......  10 minutes.........           1,667
     Corrective Device (Glasses/
     Hearing Aid).
    Request for Further Medical    677 railroads......  100 requests + 100   60 minutes + 2                  300
     Evaluation for New                                  Evals.               hours.
     Determination.
    Request for Second Retest and  677 railroads......  25 requests + 25     60 minutes + 2                   75
     Another Medical Evaluation.                         Evals.               hours.
    Copies of Part 242 Provided    677 railroads......  677 copies.........  60 minutes.........             677
     to RR Medical Examiners.
    Consultations by Medical       677 railroads......  100 consults + 100   2 hours + 10                    217
     Examiners with Railroad                             certif.              minutes.
     Officer and Issue of
     Conditional Certification.
    Notification by Certified      677 railroads......  10 notific.........  10 minutes.........               2
     Conductor of Deterioration
     of Vision/Hearing.
242.119: Training................
    Completion of Training         677 railroads......  678 Program........  36 hours/ 70 hrs/3            3,751
     Program.                                                                 hrs.
    Modification to Training       677 railroads......  678 Program........  12 hrs/20 hrs/ 30               934
     Program.                                                                 min.
    Completion of Training         54,000 Conductors..  18,000 Docs/ 18,000  1 hour/560 hours...      10,098,000
     Program by Conductors/                              Cond.
     Persons + Documents.
    Modification of Training       677 railroads......  30 programs........  4 hours............             120
     Program Due to New Laws/
     Regulations.
    Consultation with Supervisory  677 railroads......  1,000 consult......  15 minutes.........             250
     Employee During Written Test.
    Familiarization Training Upon  677 railroads......  10 trained           8 hours............              80
     Transfer of RR Ownership.                           Conductors.
    Continuing Education of        677 railroads......  18,000 cont.         8 hours............         144,000
     Conductors.                                         trained cond.
242.121: Knowledge Testing         677 railroads......  18,000 deter.......  30 minutes.........           9,000
 Determining Eligibility.
    Retests/Re Examinations......  677 railroads......  500 Retests........  8 hours............           4,000

[[Page 6489]]

 
242.123: Monitoring Operational
 Performance.
    Unannounced Compliance Tests   677 railroads......  18,000 tests +       10 minutes + 5                4,500
     and Records.                                        18,000 recd.         minutes.
    Return to Service That         677 railroads......  1,000 tests + 1,000  10 minutes + 5                  250
     Requires Unannounced                                records.             minutes.
     Compliance Test/Record.
242.125/127: Certificate           677 railroads......  100 determin.......  30 minutes.........              50
 Determination by Other Railroads/
 Other Country.
    Determination Made by RR
     Relying on Another RR's
     Certification.
    Determination by Another       677 railroads......  200 determin.......  30 minutes.........             100
     Country.
242.203: Retaining Information     677 railroads......  18,000 recds.......  15 minutes.........           4,500
 Supporting Determination--
 Records.
    Amended Electronic Records...  677 railroads......  20 records.........  60 minutes.........              20
242.205: List of Certified         677 railroads......  625 lists..........  60 minutes.........             625
 Conductors Working in Joint
 Territory.
242.209: Maintenance of            677 railroads......  2,000 request/       2 minutes..........              67
 Certificates.                                           displays.
    Request to Display
     Certificate.
    Notification That Request to   677 railroads......  1,000 notif........  10 minutes.........             167
     Serve Exceeds Certification.
242.211: Replacement of            677 railroads......  500 certific.......  5 minutes..........              42
 Certificates.
242.213: Multiple Certificates...  677 railroads......  5 notification.....  10 minutes.........               1
    Notification to Engineer That
     No Conductor Is On Train.
    Notification of Denial of      677 railroads......  10 notific.........  10 minutes.........               2
     Certification by Individuals
     Holding Multiple
     Certifications.
242.215: RR Oversight
 Responsibility.
    RR Review and Analysis of      677 railroads......  44 reviews/Analyses  40 hours...........           1,760
     Administration of
     Certification Program.
    Report of Findings by RR to    677 railroads......  36 reports.........  4 hours............       144 hours
     FRA.
242.301: Determinations--          320 railroads......  1,080 Deter........  15 minutes.........             270
 Territorial Qualification and
 Joint Operations.
    Notification by Persons Who    320 railroads......  500 Notific........  10 minutes.........              83
     Do Not Meet Territorial
     Qualification.
242.401: Notification to           677 railroads......  40 notific. + 40     60 minutes/ 60                   80
 Candidate of Information That                           responses.           minutes.
 Forms Basis for Denying
 Certification and Candidate
 Response.
    Written Notification of        677 railroads......  40 notific.........  60 minutes.........              40
     Denial of Certification.
242.403/405: Criteria for
 Revoking Certification; Periods
 of Ineligibility.
    Review of Compliance Conduct.  677 railroads......  950 reviews........  10 minutes.........             158
    Written Determination That     677 railroads......  950 determin.......  60 minutes.........       950 hours
     the Most Recent Incident Has
     Occurred.
242.407: Process for Revoking
 Certification.
    Revocation for Violations of   677 railroads......  950 Revoked          8 hours............           7,600
     Section 242.115(e).                                 Certificates.
    Immediate Suspension of        677 railroads......  950 suspend          1 hour.............             950
     Certificate.                                        Certificate.
    Determinations Based on RR     677 railroads......  950 determin.......  15 minutes.........             238
     Hearing Record.
    Hearing Record...............  677 railroads......  950 records........  30 minutes.........             475
    Written Decisions by RR        677 railroads......  950 decisions......  2 hours............           1,900
     Official.
    Service of Written Decision    677 railroads......  950 decisions + 950  10 minutes + 5                  238
     on Employee by RR + RR                              proofs.              minutes.
     Service Proof.
    Written Waiver of Right to     54,000 Conductors..  425 waivers........  10 minutes.........              71
     Hearing.
    Revocation of Certification    677 railroads......  15 revoked           10 minutes.........               3
     Based on Information That                           Certifications.
     Another Railroad Has Done So.
    Placing Relevant Information   677 railroads......  100 updated records  1 hour.............             100
     in Record Prior to
     Suspending Certification/
     Convening Hearing.
----------------------------------------------------------------------------------------------------------------

    All estimates include the time for reviewing instructions; 
searching existing data sources; gathering or maintaining the needed 
data; and reviewing the information. For information or a copy of the 
paperwork package submitted to OMB, contact Mr. Robert Brogan at (202) 
493-6292 or Ms. Kimberly Toone at (202) 493-6132 or via email at the 
following addresses: Robert.Brogan@dot.gov; Kimberly.Toone@dot.gov.
    FRA cannot impose a penalty on persons for violating information 
collection requirements which do not display a current OMB control 
number, if required. The assigned OMB approval number for the 
collection of information associated with this final rule is OMB No. 
2130-0596.

D. Federalism Implications

    Executive Order 13132, ``Federalism'' (64 FR 43255, Aug. 10, 1999), 
requires FRA to develop an accountable process to ensure ``meaningful 
and timely input by State and local officials in the development of 
regulatory policies that have federalism implications.'' ``Policies 
that have federalism implications'' are

[[Page 6490]]

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 action has been analyzed in accordance with the principles and 
criteria contained in Executive Order 13132. The action will not have a 
substantial effect on the States or their political subdivisions; it 
will not impose any compliance costs; and it will 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. Therefore, the 
consultation and funding requirements of Executive Order 13132 do not 
apply.
    However, this action could have preemptive effect by operation of 
law under certain provisions of the Federal railroad safety statutes, 
specifically the former Federal Railroad Safety Act of 1970, repealed 
and recodified at 49 U.S.C. 20106. Section 20106 provides that States 
may not adopt or continue in effect any law, regulation, or order 
related to railroad safety or security that covers the subject matter 
of a regulation prescribed or order issued by the Secretary of 
Transportation (with respect to railroad safety matters) or the 
Secretary of Homeland Security (with respect to railroad security 
matters), except when the State law, regulation, or order qualifies 
under the ``essentially local safety or security hazard'' exception to 
section 20106.
    In sum, FRA has analyzed this action in accordance with the 
principles and criteria contained in Executive Order 13132. As 
explained above, FRA has determined that this action has no federalism 
implications, other than the possible preemption of State laws under 
Federal railroad safety statutes, specifically 49 U.S.C. 20106. 
Accordingly, FRA has determined that preparation of a federalism 
summary impact statement for this action is not required.

E. International Trade Impact Assessment

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

F. Environmental Impact

    FRA has evaluated this action 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 action 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).
    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 action that might trigger the need for a more 
detailed environmental review. As a result, FRA finds that this action 
is not a major Federal action significantly affecting the quality of 
the human environment.

G. Unfunded Mandates Reform Act of 1995

    Pursuant to Section 201 of the Unfunded Mandates Reform Act of 1995 
(Pub. L. 104-4, 2 U.S.C. 1531), each Federal agency ``shall, unless 
otherwise prohibited by law, assess the effects of Federal regulatory 
actions on State, local, and tribal governments, and the private sector 
(other than to the extent that such regulations incorporate 
requirements specifically set forth in law).'' Section 202 of the Act 
(2 U.S.C. 1532) further requires that ``before promulgating any general 
notice of proposed rulemaking that is likely to result in the 
promulgation of any rule that includes any Federal mandate that may 
result in expenditure by State, local, and tribal governments, in the 
aggregate, or by the private sector, of $140,800,000 or more in any one 
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 action will not result in the 
expenditure, in the aggregate, of $140,800,000 or more in any one year, 
and thus preparation of such a statement is not required.

H. Energy Impact

    Executive Order 13211 requires Federal agencies to prepare a 
Statement of Energy Effects for any ``significant energy action.'' 66 
FR 28355 (May 22, 2001). 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 action in accordance with Executive 
Order 13211. FRA has determined that this action is not likely to have 
a significant adverse effect on the supply, distribution, or use of 
energy. Consequently, FRA has determined that this action is not a 
``significant energy action'' within the meaning of Executive Order 
13211.

I. Privacy Act

    Anyone is able to search the electronic form of all comments 
received into any of DOT's dockets 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 published in the Federal Register on 
April 11, 2000 (Volume 65, Number 70, Pages 19477-78), or you may visit 
http://www.regulations.gov/#!privacyNotice.

[[Page 6491]]

List of Subjects in 49 CFR Part 242

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

The Rule

    For the reasons discussed in the preamble, FRA amends part 242 of 
title 49 of the Code of Federal Regulations as follows:

PART 242--[AMENDED]

0
1. The authority citation for part 242 continues to read as follows:

    Authority: 49 U.S.C. 20103, 20107, 20135, 20138, 20162, 20163, 
21301, 21304, 21311; 28 U.S.C. 2461, note; and 49 CFR 1.49.

0
2. Section 242.103 is amended by revising paragraph (a) to read as 
follows:


Sec.  242.103  Approval of design of individual railroad programs by 
FRA.

    (a) Each railroad shall submit its written certification program 
and request for approval in accordance with the procedures contained in 
appendix B of this part according to the following schedule:
    (1) A Class I railroad (including the National Railroad Passenger 
Corporation), Class II railroad, or railroad providing commuter service 
shall submit a program no later than September 30, 2012; and
    (2) A Class III railroad (including a switching and terminal or 
other railroad not otherwise classified) shall submit a program no 
later than January 31, 2013.
* * * * *

0
3. Section 242.105 is amended by revising paragraphs (a), (b), (d), and 
(e) to read as follows:


Sec.  242.105  Schedule for implementation.

    (a) By September 1, 2012, each railroad shall:
    (1) In writing, designate as certified conductors all persons 
authorized by the railroad to perform the duties of a conductor as of 
January 1, 2012; and
    (2) Issue a certificate that complies with Sec.  242.207 to each 
person that it designates.
    (b) After September 1, 2012, each railroad shall:
    (1) In writing, designate as a certified conductor any person who 
has been authorized by the railroad to perform the duties of a 
conductor between January 1, 2012 and the pertinent date in paragraph 
(d) or (e) of this section; and
    (2) Issue a certificate that complies with Sec.  242.207 to each 
person that it designates.
* * * * *
    (d) After December 1, 2012, no Class I railroad (including the 
National Railroad Passenger Corporation), Class II railroad, or 
railroad providing commuter service shall initially certify or 
recertify a person as a conductor unless that person has been tested 
and evaluated in accordance with procedures that comply with subpart B 
of this part and issued a certificate that complies with Sec.  242.207.
    (e) After April 1, 2013, no Class III railroad (including a 
switching and terminal or other railroad not otherwise classified) 
shall initially certify or recertify a person as a conductor unless 
that person has been tested and evaluated in accordance with procedures 
that comply with subpart B of this part and issued a certificate that 
complies with Sec.  242.207.
* * * * *

0
4. Section 242.205 is amended by revising paragraph (a) to read as 
follows:


Sec.  242.205  Identification of certified persons and record keeping.

    (a) After September 1, 2012, a railroad shall maintain a list 
identifying each person designated as a certified conductor. That list 
shall indicate the types of service the railroad determines each person 
is authorized to perform and date of the railroad's certification 
decision.
* * * * *

0
5. Section 242.215 is amended by revising paragraph (a) to read as 
follows:


Sec.  242.215  Railroad oversight responsibilities.

    (a) No later than March 31 of each year (beginning in calendar year 
2014), each Class I railroad (including the National Railroad Passenger 
Corporation and a railroad providing commuter service) and each 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 conductors during the 
prior calendar year.
* * * * *

0
6. Section 242.301 is amended by revising paragraph (c) to read as 
follows:


Sec.  242.301  Requirements for territorial qualification.

* * * * *
    (c) Except as provided in paragraph (e) of this section, if a 
conductor lacks territorial qualification on main track physical 
characteristics required by paragraph (a) of this section, he or she 
shall be assisted by a person who meets the territorial qualification 
requirements for main track physical characteristics.
    (1) For a conductor who has never been qualified on main track 
physical characteristics of the territory over which he or she is to 
serve as a conductor, the assistant shall be a person who is certified 
as a conductor, meets the territorial qualification requirements for 
main track physical characteristics, and is not an assigned crew 
member.
    (2) For a conductor who was previously qualified on main track 
physical characteristics of the territory over which he or she is to 
serve as a conductor, but whose qualification has been expired for one 
year or less and who regularly traversed the territory prior to the 
expiration of the qualification, the assistant may be any person, 
including an assigned crewmember, who meets the territorial 
qualification requirements for main track physical characteristics.
    (3) For a conductor who was previously qualified on main track 
physical characteristics of the territory over which he or she is to 
serve as a conductor, and whose qualification has been expired for one 
year or less but who has not regularly traversed the territory prior to 
the expiration of the qualification, or a conductor whose territorial 
qualification on main track has been expired for more than a year, the 
assistant may be any person, including an assigned crewmember other 
than the locomotive engineer so long as serving as the assistant would 
not conflict with that crewmember's other safety sensitive duties, who 
meets the territorial qualification requirements for main track 
physical characteristics.
* * * * *

0
7. Appendix B to part 242 is amended by revising Section 2 to read as 
follows:

Appendix B to Part 242--Procedures for Submission and Approval of 
Conductor Certification Programs

* * * * *

Section 2 of the Submission: Training Persons Previously Certified

    The second section of the request must contain information 
concerning the railroad's program for training previously certified 
conductors. As provided for in Sec.  242.119(l) each railroad must 
have a program for the ongoing education of its conductors to assure 
that they maintain the necessary knowledge concerning operating 
rules and practices, familiarity with physical characteristics, and 
relevant Federal safety rules.
    Section 242.119(l) provides a railroad latitude to select the 
specific subject matter to be covered, duration of the training, 
method of presenting the information, and the frequency with which 
the training will be provided. The railroad must describe in this 
section how it will use that latitude to assure

[[Page 6492]]

that its conductors remain knowledgeable concerning the safe 
discharge of their responsibilities so as to comply with the 
performance standard set forth in Sec.  242.119(l). This section 
must contain sufficient detail to permit effective evaluation of the 
railroad's training program in terms of the subject matter covered, 
the frequency and duration of the training sessions, the training 
environment employed (for example, use of classroom, use of computer 
based training, use of film or slide presentations, and use of on-
job-training) and which aspects of the program are voluntary or 
mandatory.
    Time and circumstances have the capacity to diminish both 
abstract knowledge and the proper application of that knowledge to 
discrete events. Time and circumstances also have the capacity to 
alter the value of previously obtained knowledge and the application 
of that knowledge. In formulating how it will use the discretion 
being afforded, each railroad must design its program to address 
both loss of retention of knowledge and changed circumstances, and 
this section of the submission to FRA must address these matters.
    For example, conductors need to have their fundamental knowledge 
of operating rules and procedures refreshed periodically. Each 
railroad needs to advise FRA how that need is satisfied in terms of 
the interval between attendance at such training, the nature of the 
training being provided, and methods for conducting the training. A 
matter of particular concern to FRA is how each railroad acts to 
ensure that conductors remain knowledgeable about the territory over 
which a conductor is authorized to perform but from which the 
conductor has been absent. The railroad must have a plan for the 
familiarization training that addresses the question of how long a 
person can be absent before needing more education and, once that 
threshold is reached, how the person will acquire the needed 
education. Similarly, the program must address how the railroad 
responds to changes such as the introduction of new technology, new 
operating rule books, or significant changes in operations including 
alteration in the territory conductors are authorized to work over.
    In addition to stating how long a conductor must be absent from 
a territory before their qualification on the physical 
characteristics of the territory expires, railroads must also state 
in their programs the number of times a person must pass over a 
territory per year to be considered to have ``regularly traversed'' 
a territory for purposes of Sec.  242.301(c). Since territories 
differ in their complexity, railroads will be given discretion to 
determine how many times a conductor must pass over a territory to 
be considered to have ``regularly traversed'' a territory.
* * * * *

    Issued in Washington, DC, on February 2, 2012.
Joseph C. Szabo,
Administrator.
[FR Doc. 2012-2915 Filed 2-7-12; 8:45 am]
BILLING CODE 4910-06-P


