99-28930. Qualification and Certification of Locomotive Engineers

[Federal Register Volume 64, Number 215 (Monday, November 8, 1999)]
[Rules and Regulations]
[Pages 60966-60997]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-28930]



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Part III





Department of Transportation





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Federal Railroad Administration



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49 CFR Part 240



Qualification and Certification of Locomotive Engineers; Final Rule

Federal Register / Vol. 64, No. 215 / Monday, November 8, 1999 / 
Rules and Regulations

[[Page 60966]]



DEPARTMENT OF TRANSPORTATION

Federal Railroad Administration

49 CFR Part 240

[FRA Docket No. RSOR-9, Notice 12]
RIN 2130-AA74


Qualification and Certification of Locomotive Engineers

AGENCY: Federal Railroad Administration (FRA), DOT.

ACTION: Final rule.

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SUMMARY: FRA is making miscellaneous amendments to its requirements for 
the qualification and certification of locomotive engineers. These 
amendments are largely based on recommendations made by an advisory 
committee comprising rail industry and labor representatives; in 
reaching these consensus recommendations, the advisory committee 
examined data, discussed the successes and failures of the rule since 
its inception, and debated how to improve the regulations. In 
particular, this final rule will: Clarify the decertification process; 
clarify when certified locomotive engineers are required to operate 
service vehicles; and address the concern that some designated 
supervisors of locomotive engineers are insufficiently qualified to 
properly supervise, train, or test locomotive engineers.

DATES: (1) Effective Date: This regulation is effective January 7, 
2000.
    (2) Any petition for reconsideration of any portion of the rule 
must be submitted no later than 60 days after publication in the 
Federal Register.

ADDRESSES: Petitions for reconsideration of this rule should be 
submitted to Ms. Renee Bridgers, Docket Clerk, Office of Chief Counsel, 
FRA, 400 Seventh Street SW, Mail Stop 10, Washington, DC 20590.

FOR FURTHER INFORMATION CONTACT: John Conklin, Operating Practices 
Specialist, Office of Safety Assurance and Compliance, FRA, 400 Seventh 
Street SW, Mail Stop 25, Washington, DC 20590 (telephone: 202-493-
6318); Alan H. Nagler, Trial Attorney, Office of Chief Counsel, FRA, 
400 Seventh Street, SW, RCC-11, Mail Stop 10, Washington, DC 20590 
(telephone: [phone]); or Mark H. McKeon, Regional Administrator, 
55 Broadway, Cambridge, MA 02142 (telephone: [phone]).

SUPPLEMENTARY INFORMATION:

I. Statutory Background

    Section 4 of the Rail Safety Improvement Act of 1988 (``RSIA''), 
Pub. L. 100-342, 102 Stat. 624 (June 22, 1988), later amended and 
recodified by Pub. L. 103-272, 108 Stat. 874 (July 5, 1994), requires 
that FRA issue regulations to establish a program for certifying or 
licensing locomotive operators. This statutory requirement was adopted 
in the wake of an Amtrak/Conrail accident at Chase, Maryland that 
resulted in 16 deaths and was caused by errors made by the Conrail 
locomotive engineer. Congress thus determined the existence of a safety 
need for regulations concerning the qualifications of engineers. In 
addition to the general need for regulations, Congress required that 
certain subject areas be addressed within those regulations. Now 
codified at 49 U.S.C. Sec. 20135, the amended statute was reprinted in 
the preamble to the NPRM.

II. Regulatory Background

    One year and a half after the passage of the RSIA, FRA published an 
NPRM which proposed a certification program for locomotive operators. 
54 FR 50890 (Dec. 11, 1989). FRA noted in the preamble to the final 
rule that some of the comments received in response to this NPRM 
suggested ``significant misunderstanding of the proposal.'' 56 FR 
28228, 28229 (June 19, 1991). These misunderstandings and the 
appropriateness of the approach were addressed thoroughly in the final 
rule's preamble. 56 FR 28228, 28229-30 (June 19, 1991).
    The final rule establishing minimum qualification standards for 
locomotive engineers is a certification program, not a licensing 
program. In summary, the rule requires railroads to have a formal 
process for evaluating prospective operators of locomotives and 
determining that they are competent before permitting them to operate a 
locomotive or train. The rule requires that railroads: (1) Make a 
series of four determinations about a person's competency; (2) devise 
and adhere to an FRA-approved training program for locomotive 
engineers; and (3) employ standard methods for identifying qualified 
locomotive engineers and monitoring their performance. At the time of 
publication, FRA noted that the agency ``is adopting this regulation to 
minimize the potentially grave risks posed when unqualified people 
operate trains.'' 56 FR 28228 (June 19, 1991).
    In 1993, less than two years after the publication of the final 
rule, an interim final rule was promulgated ``in response to petitions 
for reconsideration and requests for clarification.'' 58 FR 18982 (Apr. 
9, 1993). Some of the issues addressed in this rule included: (1) The 
application of the rule to service vehicles which could potentially 
function as a locomotive or train; (2) the application of the rule to 
certain minimal, incidental and joint operations; (3) the application 
of the rule to events involving operational misconduct by a locomotive 
engineer; (4) the application of the rule to current railroad practices 
for storing data electronically; (5) the application of the rule to 
events involving testing and evaluation of a locomotive engineer's 
knowledge or skills; (6) the application of the procedural provisions 
of the rule to events involving denial, suspension and revocation of 
certification; and (7) technical changes to correct minor errors in the 
rule text. FRA did not provide additional notice and request for public 
comment prior to making the amendments contained in this interim final 
rule. ``FRA concluded that such notice and comment were impractical, 
unnecessary and contrary to the public interest since FRA is, for the 
most part, only making minor technical changes in response to requests 
for reconsideration of issues that were previously the subject of 
detailed notice and extensive comment in the development of the initial 
final rule in this proceeding.'' 58 FR 18982, 19002 (Apr. 9, 1993). In 
addition, FRA stated that delay in the effective implementation of this 
interim rule could result in the diversion of significant resources by 
all persons and entities affected by this rule. Meanwhile, this interim 
final rule guaranteed a full opportunity to comment on the amendments.
    In 1995, after approximately four years and four months had passed 
since the initial final rule, FRA issued a second interim final rule. 
This second interim final rule contained minor modifications that 
clarified existing procedural rules applicable to the administrative 
hearing process; a series of changes made to provide for omitted 
procedures; and changes to correct typographical errors and minor 
ambiguities that had been detected since the rule's issuance. 60 FR 
53133 (Oct. 12, 1995). Since the Administrative Procedure Act, 
specifically 5 U.S.C. 553(b)(3), provides that no notice and comment 
period is required when an agency modifies rules of procedure and 
practice, FRA issued this regulation without provision of such a period 
of comment prior to its adoption. 60 FR 53133, 53135 (Oct. 12, 1995). 
However, FRA did provide for a 30 day comment period subsequent to the 
publication of this interim final rule and stated that any comments 
received would be considered to the extent practicable.

[[Page 60967]]

III. The Railroad Safety Advisory Committee

    In 1994, FRA established its first formal regulatory negotiation 
committee to address roadway worker safety. This committee successfully 
reached consensus conclusions and recommended an NPRM to the 
Administrator, persuading FRA that a more consensual approach to 
rulemaking would likely yield more effective, and more widely accepted, 
rules. Additionally, President Clinton's March 1995 Presidential 
Memorandum titled ``Regulatory Reinvention Initiative'' directed 
agencies to expand their efforts to promote consensual rulemaking. In 
1996, therefore, FRA decided to move to a collaborative process by 
creating a Railroad Safety Advisory Committee (RSAC, or the Committee) 
pursuant to the Federal Advisory Committee Act (Public Law 92-463).
    RSAC was established to provide recommendations and advice to the 
Administrator on development of FRA's railroad safety regulatory 
program, including issuance of new regulations, review and revision of 
existing regulations, and identification of non-regulatory alternatives 
for improvement of railroad safety. RSAC is comprised of 48 
representatives from 27 member organizations, including railroads, 
labor groups, equipment manufacturers, state government groups, public 
associations, and two associate non-voting representatives from Canada 
and Mexico. The Administrator's representative (the Associate 
Administrator for Safety or that person's delegate) is the Chairperson 
of the Committee.

IV. The Qualification and Certification of Locomotive Engineers 
Working Group

    At a two day RSAC meeting that began on October 31, 1996, the 
Committee agreed to take on the task of proposing miscellaneous 
revisions to the regulations addressing Locomotive Engineer 
Certification (49 CFR Part 240). See 61 FR 54698 (Oct. 21, 1996). The 
Committee members delegated responsibility for creating a proposal to a 
working group consisting of the members' representatives. The 
Qualification and Certification of Locomotive Engineers Working Group 
(Working Group or Group) met for seven week-long meetings prior to 
submitting the Working Group's proposal to the Committee.
    On May 14, 1998, the Committee recommended that the FRA 
Administrator publish the Working Group's consensually reached effort 
as a proposed rule. During RSAC's meeting, the Committee suggested that 
the proposal contained some suggested amendments that may be further 
improved by being subject to more debate. In order to permit an 
informed debate, FRA committed itself to providing RSAC with an 
opportunity to assist FRA in considering comments received in response 
to the NPRM which all parties anticipated that FRA would issue. Relying 
heavily on RSAC's recommendations for change, on September 22, 1998, 
FRA published the NPRM which forms the basis for this final rule. 63 FR 
50626 (Sept. 22, 1998). As promised, FRA provided RSAC with an 
opportunity to assist FRA in examining the comments and convened a 
meeting of the existing Working Group for that purpose. During a 
meeting of the Working Group held on December 8-9, 1998, information 
and views were received on every issue raised in the comments. Detailed 
minutes for that meeting are contained in the docket. The Working Group 
provided consensus recommendations for agency response on some issues 
raised by the comments and those recommendations were sent to RSAC for 
further review. On January 28, 1999, RSAC adopted the Working Group's 
recommendations and requested that FRA adopt them.
    The recommendations provided by RSAC and a summary of the Working 
Group discussions are provided below in conjunction with the discussion 
of the individual issues presented by this rulemaking. Virtually all of 
the changes proposed by FRA are being adopted in this final rule; thus, 
the preamble and section-by-section analysis for the 1998 NPRM contain 
useful background information concerning the changes being made which 
is not being repeated here. FRA's analysis in this final rule focuses 
on the comments received in response to the 1998 NPRM and explains why 
FRA made certain changes to the rule.
    Considering the temporary nature of the two interim final rules and 
the thorough review of the regulation provided for in this rulemaking 
process, FRA readopts the two previously issued interim final rules, 
suitably modified, as this final rule. Thus, the amendments promulgated 
here would govern any conflicts with the previously published interim 
final rules upon the effective date of this final rule. FRA is grateful 
to the members of RSAC and the Working Group for their efforts, 
information and recommendations. The detailed information and 
recommendations made have proved useful in FRA's deliberations on the 
best ways to improve the rule and FRA has given great weight to RSAC's 
recommendations for this final rule.
    The section-by-section analysis discusses all of the amendments to 
this part.

V. Major Issues

Background

    FRA received eight written comments in response to the NPRM. 
Although an opportunity to present oral comments was offered, the 
request that was made for a public hearing was subsequently withdrawn. 
Thus, FRA is only responding to written comments. Some comments 
requested clarification, some suggested alternative language to improve 
upon a concept raised by the proposal, and others requested 
reconsideration of previously suggested proposals. Of these issues, FRA 
considers eight to be major topics and a discussion of each of these 
major topics follows.

A. Application of the Rule to Certain Service Vehicles

    One commenter (the United Transportation Union, or ``UTU'') 
maintains that the 1988 statute that required FRA to issue the engineer 
certification rule did not authorize FRA to permit operation of certain 
roadway maintenance vehicles by persons other than certified locomotive 
engineers. UTU's November 18, 1998 comments state: ``In short, 
certified engineers must be at the controls of any motorized equipment 
that operates as a locomotive.'' UTU concludes that ``the language 
relating to dual purpose vehicles must be removed.'' UTU notes that, 
although it was part of the working group that reached consensus on the 
proposed rule, the relevant statutory language ``was not reviewed in 
detail by the group.'' UTU goes on to say that all language in the 
proposed section 240.104 that allows exceptions to certification should 
be removed.
    The statutory provision that required FRA to issue its engineer 
certification rule was section 4 of the Rail Safety Improvement Act of 
1988 (``RSIA''), Pub. L. No. 100-342. As currently codified at 49 
U.S.C. 20135(a), that provision states, in relevant part: ``The 
Secretary of Transportation shall prescribe regulations and issue 
orders to establish a program requiring the licensing or certification, 
after one year after the program is established, of any operator of a 
locomotive.'' FRA believes that Congress intended the agency to have 
some discretion in determining which employees are operators of 
locomotives as well as which vehicles

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are being used as locomotives under which circumstances.
    Since the rule's issuance in 1991, there has been extensive debate 
over whether certain service vehicles should be considered locomotives 
for the purposes of this rule, and in 1993 FRA promised to provide an 
opportunity to fully examine this issue in a future proceeding. 58 FR 
18982, 18983 (Apr. 9, 1993). The nature of railroading requires that 
equipment used to construct, maintain, and repair track, signals, and 
roadway structures be able to move on rails, as there are many 
locations on railroads that are accessible only by rail. Moreover, the 
nature of the construction, maintenance, and repair work requires that 
this equipment be able to be moved independently from normal train 
movements, both to and from work sites and within extensive work sites. 
To serve this purpose, some of the maintenance equipment is capable of 
moving other maintenance equipment without the need for a traditional 
locomotive. FRA does not believe that Congress intended to require that 
operators of this maintenance equipment be certified as locomotive 
engineers, as this equipment is not generally considered to be a 
locomotive, and movement of this equipment was not in any way within 
the range of concerns that prompted the 1988 legislation on locomotive 
engineer certification.
    However, some of the vehicles used in maintenance service have 
sufficient power and appropriate coupling mechanisms to enable them to 
move railroad rolling stock. Manufacturers of service vehicles indicate 
that the industry is requesting equipment that can perform a specific 
maintenance task and haul an increasing number of cars. As these 
vehicles improve, some railroads may decide to take advantage of the 
vehicles' ability to haul cars--even to the exclusion of their 
maintenance function. Without a regulatory mechanism to address these 
dual purpose vehicles, FRA is concerned that some railroads might seek 
to use the dual purpose vehicle as a functioning locomotive to avoid 
the expense of having a certified locomotive engineer at the controls, 
which would pose an unacceptable safety risk.
    The amendments being adopted in this final rule will resolve the 
issue of when certain types of on-track equipment, which are not 
traditional locomotives but share some common characteristics with a 
traditional locomotive, are required to be operated by certified 
locomotive engineers. The final rule uses the term ``roadway 
maintenance equipment'' to refer generally to equipment used in 
maintenance of track, signals, and structures. The rule provides that 
one type of maintenance equipment (``specialized roadway maintenance 
equipment'') need not be operated by a certified locomotive engineer. 
The reason for excluding such vehicles is that they do not have the 
capability to move railroad rolling stock and thus cannot be used as a 
substitute for a traditional locomotive. Dual purpose vehicles 
describes service vehicles that may, at times, function as roadway 
maintenance vehicles and can be used as a substitute for a traditional 
locomotive as a result of their capability to move railroad rolling 
stock. The rule will require a certified locomotive engineer at the 
controls of a dual purpose vehicle unless certain specified criteria 
are met. See Sec. 240.104(b). In essence, those criteria mean that a 
certified engineer must operate the equipment when it is being used as 
a locomotive in service unrelated to roadway maintenance work and also 
when, even in the context of maintenance work, there is no employee 
available who is trained to operate the vehicle. In general, railroads 
will be able to allow the operation of dual purpose vehicles by people 
who are not certified locomotive engineers when the vehicle is being 
used in roadway maintenance service, including traveling to and from 
the work site; the operator has been trained on how to operate the 
equipment safely in accordance with FRA's rules on the protection of 
roadway workers (49 CFR part 214); and the equipment is moved under 
railroad operating rules designed for the protection of such equipment 
from train movements. Given the definitions in the rule, if specialized 
roadway maintenance equipment is somehow used for moving railroad 
rolling stock, it will be treated as a dual purpose vehicle for 
purposes of determining whether a certified locomotive engineer is 
necessary for its operation.
    When roadway maintenance equipment is used at a work site where 
roadway workers are present, FRA's rules on Roadway Worker Protection 
provide standards for protecting the workers from such equipment and 
trains and for protecting the equipment from train movements. See , 
e.g., 49 CFR Sec. 214.319 (explaining the requirements of working 
limits, generally). A review of relevant accident and injury history 
indicates that the greatest danger inherent in the movement of this 
equipment is that it may strike a roadway worker, and FRA's roadway 
worker protection rule is specifically designed to substantially reduce 
that risk. In RSAC's fact finding efforts, none of the RSAC's members 
or commenters provided information, nor did FRA have any information, 
showing that when dual purpose vehicles are being used for maintenance 
purposes they are involved in accidents or incidents that could be 
prevented by requiring that such vehicles be operated by certified 
locomotive engineers. Although operators of roadway maintenance 
equipment will generally not be required to be certified locomotive 
engineers, these operators must be trained and qualified on how to 
safely operate that equipment. See 49 CFR Sec. 214.355. Moreover, when 
roadway maintenance equipment travels to and from a work site, there 
are existing operating rules that protect such movements from train 
movements. See, e.g., Northeast Operating Rules Advisory Committee 
(NORAC) 800 series rules; General Code of Operating Rules (GCOR)--
Maintenance of Way Operating Rules section, 6.0 series rules; CSX's On 
Track Worker Manual, Rule 704 (effective Jan. 1, 1999); Illinois 
Central Railroad System's On Track Safety Rules, 500 series rules 
(effective Mar. 10, 1998); and Norfolk Southern Corporation's 
Operations Division, Bulletin No. 8 regarding Rule 808 (July 22, 1996). 
Thus, in addition to the fact that this equipment is not traditionally 
considered to be a locomotive of the type that Congress had in mind 
when requiring FRA to issue its certification rule, there are existing 
FRA and railroad rules that ensure that those who operate such 
equipment in maintenance service will operate these machines safely.
    One area of concern identified by the RSAC working group was the 
use and maintenance of air brakes on roadway maintenance equipment. 
Much of the concern arose from a fatal accident involving a burro crane 
hauling cars from a work site on November 5, 1996, which did not have 
brake pipe hoses connected between the locomotive crane and the three 
freight cars being hauled. The group drafted a recommendation intended 
to resolve that concern. Based on that recommendation, FRA proposed 
that one of the conditions for a non-certified locomotive engineer to 
operate a dual purpose vehicle that will be hauling cars would be that 
``not less than 85% of the total cars designed for air brakes shall 
have operative air brakes.'' RSAC's purpose and FRA's intent was to 
make sure that when a dual purpose vehicle is hauling cars to or from a 
work site the air brakes on the consist can stop the

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movement within the normal stopping distance for that equipment.
    FRA specifically solicited comments to learn how others perceived 
the ``85% rule'' found in proposed Sec. 240.104(b)(4). The comments 
indicated that this proposed provision was generating some confusion. 
One commenter wanted to know whether this paragraph excused the 
railroad from compliance with the power brake requirements of 49 CFR 
part 232, despite FRA's statement in the NPRM that it did not. The same 
commenter requested an explanation of the necessary inspection and 
testing of the consist's braking system to determine compliance with 
the 85% operable brake requirement; this question was echoed by other 
Working Group members who believed computing 85% or greater operative 
air brakes would likely cause some confusion for those trying to 
comply.
    Upon further reflection, FRA is deleting this proposed brake 
requirement from the rule. The issue of whether the railroad must use, 
maintain, and inspect power brakes on dual purpose vehicles is not 
related to the qualifications of the vehicle's operator and should be 
resolved in the same way whether or not the operator is a certified 
locomotive engineer. The proposed provision implied that, if the 
railroad used a locomotive engineer to operate dual purpose equipment, 
the brake rules would not apply to the movement. FRA's position is that 
the movement of railroad equipment to and from a work site is governed 
by the power brake rules of 49 CFR part 232. Even though the dual 
purpose vehicle hauling the equipment may not be a traditional 
locomotive, to the extent the vehicle and the equipment it is hauling 
are equipped with power brakes, they must comply with the relevant 
standards. It would not be appropriate to include this policy on the 
applicability of an equipment rule in the text of a rule on locomotive 
operator qualifications. However, railroads should understand that FRA 
will enforce the power brake rules in accordance with the policy stated 
in this preamble.
    One commenter also asked several interpretative questions. For 
instance, FRA was asked whether proposed Sec. 240.104 allows MOW 
equipment to be used to move loads of slag, for the purpose of dragging 
slag, or to move empty hoppers, for the purpose of cleaning up debris 
with a track cleaner, from the yard to the work site without the use of 
a certified locomotive engineer. FRA notes that ``slag'' is a term 
interchangeably used for ballast, and that spreading ballast and 
picking up debris along the track are both MOW duties. FRA would 
categorize a vehicle performing such duties as a dual purpose vehicle 
because it is being used to move railroad rolling stock. It is possible 
that a certified locomotive engineer will not be required if all of the 
conditions in paragraph (a)(2) have been satisfied.
    In conjunction with the last question discussed, the commenter also 
asks whether the rule lends itself to an inherent limit on the distance 
traveled, or the type of track traversed, before a railroad is required 
to utilize a certified engineer for this type of movement. FRA's answer 
to this question is that Sec. 240.104 does not place any such limits 
with regard to the distance or type of track over which a person who is 
not a certified engineer may operate dual purpose equipment. The 
limitations in that section are based on the type of service being 
performed (maintenance of way, or something else), the person's 
qualifications to operate the equipment in that service, and 
application of the railroad's rules for protection of such equipment in 
such service.
    One commenter recommended that Class III Switching and Terminal 
Carriers be excluded from the requirement that ``dual purpose 
vehicles'' must be operated by a certified locomotive engineer in those 
situations where the ``vehicle'' is being used to move disabled 
equipment for clearing and repair of track. FRA does not agree with the 
commenter that this exclusion is necessary or would promote safety. 
Wrecking operations to move damaged equipment are not maintenance 
movements, which are the only movements of dual purpose vehicles FRA 
intended to permit without the use of a certified engineer. Since the 
safety risks associated with these operations do not diminish with 
railroad size, it would not promote safety to exclude certification 
requirements on small railroads and yet require it on the bigger roads.
    Finally, FRA notes that one commenter may have been confused as to 
the proposed application of the rule due to some confusing language in 
the section-by-section analysis to describe the new definitions ``dual 
purpose vehicle'' and ``specialized roadway maintenance equipment,'' 
and the previous definition of ``locomotive.'' Thanks to the Working 
Group, the confusing language was brought to FRA's attention and 
alternative proposals were discussed. Although not an RSAC 
recommendation, a new proposed definition of ``locomotive'' has been 
provided to make clear that specialized maintenance equipment and dual 
purpose vehicles operating in accordance with Sec. 240.104(a)(2) are 
not locomotives. FRA has also added definitions of ``roadway 
maintenance equipment'' and ``railroad rolling stock'' in order to 
further clarify the revisions. Also, the section-by-section analysis of 
Sec. 240.7, below, provides improved analysis of the terms ``dual 
purpose vehicle'' and ``specialized roadway maintenance'' equipment. 
FRA expects that these modifications will lead to a better 
understanding of the rule for all those persons who need to comply with 
it.

B. Qualifications for Designated Supervisors of Locomotive Engineers

    The role of the Designated Supervisor of Locomotive Engineers 
(DSLE) is critical to the safety success of this rule and was discussed 
as a major issue in the NPRM. This role is twofold. One, the DSLE makes 
the final determination that a locomotive engineer is qualified to 
safely operate a train. Two, after a person is certified, a DSLE is 
responsible for qualifying engineers on the physical characteristics of 
any additional territories over which the engineer will need to 
operate. Both of these issues were addressed in the public comments 
received and RSAC has made some additional recommendations for 
modifying the rule based on the comments FRA received.
    FRA noted in the NPRM its concern over whether a specified amount 
of operational experience should be a prerequisite for qualifying 
DSLEs. The cause of this concern has been the finding that some 
railroads have been seeking to establish systems in their certification 
programs that do not assure that supervisors will be experienced 
individuals. Moreover, since implementation of the original rule, FRA 
has investigated several instances in which there is some evidence that 
railroads designated persons to be supervisors who have had only the 
most minimal amount of operational experience.
    The proposed modifications to Sec. 240.105(b)(4) reflect RSAC's 
recommendation and FRA's concern that not all supervisors have been 
found to be familiar with the physical characteristics of the 
territories in which they work. Given this universal concern, this 
final rule will require those persons who are DSLEs to be qualified on 
the physical characteristics of the portion of the railroad over which 
they are supervising. As specifically addressed in Sec. 240.105(a), 
railroads will be required to address how they intend to implement the 
qualification of their DSLEs on physical characteristics and

[[Page 60970]]

include those procedures in their certification programs. Thus, a 
railroad will not be in compliance with the requirements of 
Sec. 240.105 if it were to merely state in its program that it intends 
to comply with this section or restates the requirements of this 
section in its program. Instead, a railroad will be required to detail 
specific training requirements for DSLEs on physical characteristics.
    A benefit of this rule will be that a DSLE who changes territories, 
including a situation where the new territory presents more demanding 
train handling challenges than the previous assignment, will receive 
training on the physical characteristics of the new territory. This new 
requirement goes further than the current requirement in 
Sec. 240.127(b) that requires certified locomotive engineers to have 
``the skills to safely operate locomotives and/or trains, including the 
proper application of the railroad's rules and practices for the safe 
operation of locomotives or trains, in the most demanding class or type 
of service that the person will be permitted to perform;'' presumably, 
it will occasionally be necessary for DSLEs to require additional 
training in train handling skills to satisfy the Sec. 240.127(b) 
requirement. Since it is presumed that a DSLE in a territory would be 
permitted to perform train handling service in that territory, as well 
as be prepared to offer remedial advice for noted deficiencies in the 
skill level of other locomotive engineers, a DSLE must receive skills 
training that is commensurate with performing such duties in equally or 
more difficult terrain. As a result of the new requirement, DSLEs will 
now be required to have knowledge of the physical characteristics of 
the territory in which they supervise in addition to the continuing 
requirement of having the requisite skills commensurate with the 
difficulty of the terrain.
    In the preamble and section-by-section analysis of the NPRM for 
this final rule, FRA noted that RSAC recommended a modification to 
Sec. 240.127(c)(2) in order to permit a DSLE, whose skill level is 
commensurate with the difficulty of a territory, to be able to assess a 
person's performance skills over that territory even if the DSLE is not 
qualified on the physical characteristics of that territory. One RSAC 
member commented that FRA should revisit this issue, especially in the 
context of whether the proposed exception in Sec. 240.127(c)(2) 
promotes safety. In reviewing the comments and upon further 
consideration, RSAC recommended the exception be retained and also 
recommended extending the exception to a related section of the rule.
    The Working Group's discussion of their previously recommended 
exception for Sec. 240.127(c)(2) reinforced RSAC's consensus that the 
exception would be a safe practice that is cost effective and 
practical; FRA agrees with this assessment. Consequently, some of the 
Working Group's members promoted the practicality of the concept for 
this exception of the triennial performance monitoring pursuant to 
Sec. 240.127 and suggested transferring this benefit to the annual 
monitoring pursuant to Sec. 240.129. FRA had been working under the 
mistaken impression that the Working Group's members had purposely 
recommended that FRA treat these two monitoring examinations 
differently. FRA had believed that the level of sophistication was 
different for the two tests and so proposed changing only one of the 
testing provisions. In response to RSAC's new understanding, they 
recommended adding the exemption to Sec. 240.129 for the same reasons 
the exemption was created for Sec. 240.127; likewise, FRA has agreed to 
promulgate this recommendation based on the agency's assessment that 
this is a safe practice that is cost effective.
    FRA concurs with certain additional recommendations from RSAC that 
propose to clarify that the amendment to Sec. 240.105(b)(4), requiring 
DSLEs to be qualified on the physical characteristics of the portion of 
the railroad on which they are performing their DSLE duties, will not 
be made in vain. One of these recommendations is that a DSLE should not 
be allowed to make the determination of whether a person is qualified 
to be a locomotive engineer, at the completion of a training program 
pursuant to Sec. 240.213, unless that DSLE is qualified on the physical 
characteristics of the railroad or its pertinent segments over which 
the person will be permitted to perform; accordingly, FRA amended 
Sec. 240.213(b)(3). In addition, RSAC recommended that a qualified DSLE 
should be required whenever a locomotive engineer is to be qualified on 
a new territory. Although RSAC's recommendation to address this concern 
was to add a paragraph (c) to Sec. 240.213, FRA amended a different 
section which it believes will have the same effect. That is, an 
amendment to Sec. 240.123(b) is being made to explicitly require that 
when a railroad provides for the continuing education of a certified 
locomotive engineer, that railroad must ensure that each engineer 
maintains the necessary knowledge, skill and ability concerning 
familiarity with physical characteristics ``as determined by a 
qualified designated supervisor of locomotive engineers.'' Thus, this 
modification is not that engineers must be qualified on physical 
characteristics (since that is already a requirement) but that the 
person making this determination for the railroad must be a qualified 
DSLE.

C. Improving the Dispute Resolution Procedures

    As FRA stated in the NPRM, many procedural issues concerning the 
initial regulation were addressed by issuing a second Interim Final 
Rule. 60 FR 53133 (Oct. 12, 1995). FRA brought the procedural issues to 
RSAC's attention in order to determine whether additional procedures 
could be clarified or changed that would improve the dispute resolution 
process located in Subpart E of this part. In addressing this issue 
prior to the publication of the NPRM, the Working Group formed a Task 
Force consisting of some interested Group members who were asked to 
explore different options. After exploring the alternatives, the 
Working Group accepted the Task Force recommendations that the current 
system is the best choice, assuming that the petitions to the LERB and 
the requests for administrative proceedings are handled promptly.
    One commenter expressed opinions regarding four issues that would 
amount to substantial modifications to the certificate revocation 
procedures if accepted. During the Working Group meeting to review the 
comments, it was noted that the opinions raised by this commenter 
relate to matters that were previously discussed by the Working Group 
and that no recommendations for changes responsive to these suggestions 
emerged after these previous lengthy discussions. These previous 
discussions were based on (1) an FRA issues paper that outlined the 
pros and cons of alternative procedures, (2) two comments received in 
response to the 1995 Interim Final Rule, and (3) proposals made by 
Working Group members. A summary of the previous RSAC deliberations is 
located in the NPRM. After further consideration, RSAC recommended that 
the final rule retain the same language with respect to the issues 
raised by this commenter. These issues were identified as I. B. through 
E. in FRA's outline of the comments.
    This commenter contends that, if the standard of review for issues 
of fact at the FRA administrative hearing is preponderance of the 
evidence (Sec. 240.409(q)), then the railroad hearing (proposed 
Sec. 240.307(i)) and the Locomotive Engineer Review Board

[[Page 60971]]

(LERB) review should also use this standard instead of the substantial 
evidence standard of review. FRA disagrees with this suggestion for 
several legal reasons. One, the commenter is mistaken that the railroad 
hearing must employ the substantial evidence standard of review. The 
current rule does not contain a standard of proof for the railroad 
hearing, the proposed rule did not contain such a standard, and FRA has 
not added such a standard to the new rule. Although silent on the 
standard of proof, FRA specifically requires that the railroad 
determine, on the record of the hearing, whether the person no longer 
meets the qualification requirements of this part and state explicitly 
the basis for the conclusion reached. Sec. 240.307(b)(4). FRA wants to 
ensure that the railroad hearings are fair, and allow for consolidation 
with applicable collective bargaining agreements, without the rigidity 
of instituting a standard of proof. Two, it is necessary for the LERB 
to apply the substantial evidence standard of review because it is not 
a fact finding body that hears new evidence, but is instead relying on 
an existing record. Three, as the process moves along to the FRA 
Hearing Officer stage, the procedures are designed to permit a full 
evidentiary hearing. The preponderance standard is appropriate at that 
stage because the FRA Hearing Officer will be finding facts on a de 
novo basis. Thus, the commenter's suggestion is not acceptable because 
it seems to confuse the difference between a standard of proof with a 
standard for review.
    A second opinion raised by this commenter is that it should be 
mandatory that the written decision prepared by a railroad's presiding 
officer, pursuant to Sec. 240.307, include more detailed information 
than that the charge was proven. This opinion appears to be a 
commentary on the fact that some written decisions merely state that 
the locomotive engineer was found to have violated one of the 
operational misconduct events without summarizing the evidence upon 
which the decision was based. In deference to this commenter, FRA notes 
that judicial opinions usually contain such an analysis of the evidence 
and some revocation decisions are detailed in the manner preferred by 
this commenter. Meanwhile, FRA has decided not to require more detail 
in decisions because the record upon which the decision is based should 
speak for itself. Since railroad presiding officers are not required to 
be attorneys, additional costs could be associated with requiring more 
detailed decisions as drafting such decisions could be categorized as 
legal work. Those who do not believe that a railroad has met its burden 
of proof and desire an articulated summary of the evidence can petition 
FRA for a review of the record.
    A third opinion raised by this commenter is that the current 
dispute resolution procedures that allow for a railroad hearing 
(Sec. 240.307) and a petition to the Locomotive Engineer Review Board 
for a decision are in noncompliance with the RSIA and thus in order to 
afford due process FRA must conduct all on-the-property railroad 
hearings. FRA believes it is in compliance with the statute, and in 
fact provides far more opportunity for a hearing than the statute 
requires. There is substantial case law interpreting what is proper 
administrative due process and FRA believes it has followed the law 
properly. Although not required by statute, FRA provides the 
opportunity for a full evidentiary hearing in front of a presiding 
officer pursuant to Sec. 240.409 for any person who has been denied 
certification, denied recertification, or has had his or her 
certification revoked and has timely availed himself or herself of 
earlier administrative remedies. The section of the RSIA cited by the 
commenter as authority for his position requires an administrative 
hearing only if a person's certification is detrimentally effected 
because of information found in the person's motor vehicle driving 
record. See 49 U.S.C. 20135(d) (cross referencing subsection (b)(4) of 
the same section). The required hearing must comply with 49 U.S.C. 
20103(e), which calls for just an informal hearing. FRA's rule goes far 
beyond the statutory minimum: under the rule, a person is entitled to a 
hearing regardless of the basis for the denial or revocation, and the 
hearing FRA provides to those not satisfied by the informal process of 
the LERB is a formal, trial-type hearing. Moreover, FRA does not intend 
to voluntarily act as the hearing officer in every on the property 
certification hearing since FRA does not have the resources to absorb 
the substantial costs involved with such a modification of the dispute 
resolution process.
    A fourth opinion raised by this commenter was that a railroad's 
presiding officer is the only individual who can fairly issue a 
decision for the Sec. 240.307 hearing and that the proposal to allow 
any railroad official to issue the opinion other than the investigating 
officer is unfair. FRA solicited comments on this issue in the NPRM. 
When the original final rule was promulgated in 1991, FRA's thought was 
that railroad presiding officers would make the decisions and that 
these presiding officers were the people best situated to do so. FRA 
has since learned from experience and from RSAC members that having the 
railroad presiding officers make the decisions poses problems raised by 
historical concerns in the existing disciplinary review chain; i.e., 
railroads objected to limiting decision-makers to presiding officers 
because in some cases it would require additional burdens and costs not 
associated with holding a combined collective bargaining agreement 
hearing with the Part 240 revocation proceeding currently allowed for 
pursuant to Sec. 240.307(d). The main issue concerns whether it is fair 
for the decision-maker to be someone who has not had the opportunity to 
evaluate the credibility of witnesses in the case by receiving their 
testimony first hand. Although FRA recommends that railroads set up 
their hearing proceedings to allow for the presiding officer to make 
the revocation decision or for the decision-maker to consult with the 
presiding officer on issues of credibility, FRA believes a fair 
decision can be made on the record alone as long as the decision-maker 
is free of other conflicts of interest that could interfere with 
rendering a fair decision. FRA's overall concerns of fairness are 
satisfied because the rule's changes continue to clarify the importance 
of the separate duties between the investigating officer and the 
decision-maker. See Sec. 240.307(b)(2), (c)(2), (c)(10), and (e).
    Another commenter expressed an opinion that violations that have 
occurred prior to promulgation of the final rule should be treated 
under the new revocation periods. FRA has previously considered the 
fairness of this issue and both the proposed and final 
Sec. 240.117(g)(4) conforms with this commenter's opinion. That is, the 
rule will apply the new, shorter periods of ineligibility retroactively 
to most incidents that have occurred prior to the effective date of 
this rule. The rule will not retroactively apply the new, shorter 
revocation periods if the event involves a violation of 
Sec. 240.117(e)(6) or the most recent decertifiable event occurred 
within 60 months of a prior violation of Sec. 240.117(e)(6).
    Similarly, FRA has received inquiries regarding whether it is ever 
possible to run multiple revocation periods concurrently. This question 
can arise when multiple incidents of operational misconduct are found 
during a single tour of duty or within a short period of time prior to 
a railroad's receipt of reliable information forming the basis for a 
certificate suspension pursuant to

[[Page 60972]]

Sec. 240.307(b)(1). Although revocation periods were designed to run 
consecutively, not concurrently, two related issues deserve mention. 
First, this issue usually involves questions concerning the meaning of 
Sec. 240.117(f), which reads: ``If in any single incident the person's 
conduct contravened more than one operating rule or practice, that 
event shall be treated as a single violation for the purposes of this 
section.'' The question of whether multiple contraventions of a 
railroad's rules or practices should be treated as a single incident is 
a factual one which requires consideration of whether the 
contraventions were sufficiently separated by time, distance or 
circumstance that to treat them as multiple violations would be 
logical. Generally, violations that occur simultaneously are part of a 
single incident. The prudent railroad will address time, distance and 
circumstance in making its revocation decision and will document the 
reasoning of that decision in the relevant records kept in accordance 
with the Part 240 program. Second, railroads have some discretion to 
reduce the concurrently running periods of ineligibility given that 
certain conditions are met pursuant to Sec. 240.117(h). Understanding 
of these two additional issues can often soften the blow of facing 
concurrently running revocation periods if warranted.
    The only other comment concerning certificate revocation procedures 
was a minor issue that was addressed in the section-by-section analysis 
concerning Sec. 240.307(c)(10).

D. Revisiting the Standards for Hearing and Vision

    Since FRA did not modify the standards for hearing and visual 
acuity since publishing the final rule in 1991, FRA suggested in the 
NPRM that sufficient time has passed to evaluate the effectiveness of 
this rule and determine whether any modifications are necessary. FRA 
received virtually no comments in response to its proposal despite the 
fact that substantial modifications were proposed. Only one commenter 
offered views on this important issue and since both of those views 
involve minor suggested changes to the proposed rule they have been 
addressed in the section-by-section analysis regarding Sec. 240.121(e) 
and Appendix F.

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

    In the NPRM, FRA noted this topic as a major issue and discussed 
that since the Working Group reluctantly determined that elimination of 
the review of motor vehicle driving data was outside the Working 
Group's authority, the Working Group focused on identifying problems 
with the current system and whether the regulation could be modified to 
resolve any of those problems. For instance, some railroad Working 
Group members set goals of achieving (1) ``one stop shopping'' for both 
the National Driver Register (NDR) and State motor vehicle data, (2) 
simplified request procedures, and (3) accurate data. As noted in the 
NPRM's preamble, the RSAC members' recognized their limited authority 
and thus formal recommendations were not made. Instead, FRA has offered 
to assist interested parties in discussing and resolving these NDR 
matters with the National Highway Traffic Safety Administration.
    As noted in the preamble to the NPRM, the RSAC's members identified 
a few modifications that FRA agreed will ease regulatory burdens 
without any detrimental effect on safety. Regulatory burdens are eased 
by substantially lengthening the period of time required for 
individuals to provide railroad employers with prior safety conduct as 
motor vehicle operators pursuant to Sec. 240.111(a). Individual rights 
are strengthened by limiting when a railroad can require a person to 
submit motor vehicle operator data pursuant to Sec. 240.111(h). Please 
note that proposed paragraph (h) was eliminated due to its redundancy 
with paragraph (a); accordingly, proposed paragraph (i) has been moved 
to new paragraph (h).
    The only commenter on this topic raised an issue not directly 
addressed in the NPRM. The commenter's concern is being addressed in 
this final rule and it is discussed at length in the section-by-section 
analysis to Sec. 240.5.

F. Addressing Safety Assurance and Compliance

    One of the principles of the current rule is that locomotive 
engineers should comply with certain basic railroad rules and practices 
for the safe operation of trains or risk having their certification 
revoked. The rule provides for persons who hold certificates to be held 
accountable for their improper conduct. The reason for holding people 
accountable for operational misconduct serves one of the principal 
objectives of this regulation; that is, by revoking the certificates of 
locomotive engineers who fail to abide by safe rules and practices, the 
implementation of the rule is instrumental in reducing the potential 
for future train accidents.
    In FRA's Issues Paper, FRA recommended that RSAC consider the 
following five general issues: (1) The degree of discretion accorded 
railroads in responding to individual incidents; (2) the criteria for 
the types of operational misconduct events that can trigger revocation 
of a certificate; (3) the severity of the consequences for engaging in 
operational misconduct; (4) the significance to be attached to 
decertification for violations that occur during operational tests 
required pursuant to Sec. 240.303; and (5) the effectiveness of FRA's 
direct control over operational misconduct. Two commenters raised 
concerns with the proposed rule.
    One commenter questioned whether the rule should address how a 
railroad should treat an individual's defenses of defective equipment, 
improper notification of tonnage or lading, lack of training, or 
failure by the employer to provide proper equipment in making 
suspension and revocation decisions. The commenter was concerned that 
railroads might suspend and revoke an individual's certificate on the 
mistaken belief that they cannot take into account these defenses if a 
violation of operational misconduct has occurred.
    Although FRA articulated in the NPRM that the rule already provides 
railroads with the authority to consider these defenses, FRA noted that 
it supported RSAC's recommendation to clarify this concern. That is why 
the proposed Sec. 240.307(i) stated that a railroad shall not revoke a 
person's certificate when there is an intervening cause or the 
violation was of a minimal nature with no direct or potential effect on 
rail safety. This issue was also addressed in the NPRM's proposed 
Sec. 240.307(j) which creates safeguards for the application of 
paragraph (i).
    For purposes of this final rule, FRA has decided to retain the 
defense of an intervening cause; however, rather than prohibit the 
railroad from taking revocation action for all events determined to be 
of a minimal nature with no direct or potential effect on rail safety, 
FRA has decided to permit all railroads to use their discretion to 
determine whether revocation is desirable in such instances. The reason 
for this modification is that determining an intervening cause is 
significantly more objective than determining what types of violations 
are both (1) of a minimal nature and (2) have no direct or potential 
effect on rail safety. Given that the intervening cause defense 
addresses this comment fully, FRA does not recognize a need to make 
further modifications in response to this comment.
    One commenter suggested that there should be experimental ``amnesty

[[Page 60973]]

programs'' for self reporting of apparent violations by locomotive 
engineers who honorably come forward to admit an operational misconduct 
event. Although this comment was reviewed by the Working Group, the 
proponent of this comment withdrew it from RSAC's consideration before 
a recommendation could be made. FRA has considered this suggestion and 
notes that this concept is essentially experimental which would make 
the waiver route a better vehicle for addressing this matter than this 
rulemaking. Enforcement problems could be anticipated with such a 
program and thus FRA is wary about drafting regulations that allow all 
railroads to utilize amnesty programs. For those parties interested in 
applying for a waiver, it should be noted that waiver requests which 
have been jointly submitted by interested parties tend to get expedited 
resolution.
    One commenter suggested that the rule should require different 
revocation periods based on the severity of the violation. For example, 
the commenter offered that a locomotive engineer who gets by a stop 
signal by a few feet in the yard should be subject to a shorter 
revocation period than the engineer who blasts by a stop signal on main 
track. FRA believes that it would be immensely difficult to establish a 
fair system that assesses different revocation periods based on the 
severity of the violation. Meanwhile, the rule will provide a railroad 
with the discretion to choose not to revoke a person's certificate when 
the violation is of a minimal nature with no direct or potential effect 
on rail safety. See Sec. 240.307(i)(2). An explanation on the 
application of this new paragraph is provided in the section-by-section 
analysis.
    One commenter was concerned with whether the proposed rule 
adequately addressed that training may sometimes be more useful than 
revocation. Because FRA believes that training may be useful in some 
circumstances, FRA proposed modifying Sec. 240.117(h) to expand the use 
of training in exchange for a reduction in the revocation period. 
However, given the proposed rule's modifications to eliminate 
revocations for defensible and minimal violations, FRA believes that 
the remaining revocable offenses should be of such greater magnitude 
that training alone would be considered too light a consequence. FRA 
has retained Sec. 240.117(h) as proposed and thus has concluded that 
the rule adequately addresses the usefulness of substituting training 
for a reduction in some revocation periods.
    In reviewing the effectiveness of FRA's current control over 
operational misconduct, the rule prohibits certain operational conduct 
which is specified in Sec. 240.305. That section makes it unlawful to 
(1) operate a train at excessive speed, (2) fail to halt a train at a 
signal requiring a stop before passing it, and (3) operate a train on 
main track without authority. The effect of this section is that it 
enables FRA to initiate civil penalty or disqualification actions when 
such events occur and are deemed appropriate. Since changes to 
Sec. 240.117(e) have been made, some parallel modifications are 
necessary under Sec. 240.305. The NPRM proposed these parallel 
modifications and they have been adopted in this rule with one 
exception. That exception is a parallel modification to Secs. 240.117 
and 240.305.
    In response to the proposal, one commenter questioned whether the 
decertification of supervisors would discourage supervisors from riding 
trains and evaluating locomotive engineers during actual operations. 
This commenter also requested guidance if the final rule were to define 
and document a need for decertification of supervisors. FRA and the 
other RSAC members believe this commenter's concerns are misplaced 
since the modified approach does not serve to single out DSLEs but 
instead makes them accountable for their actions in the same manner as 
non-supervisory locomotive engineers. This commenter was also concerned 
that a DSLE does not have the same due process rights as other 
certified locomotive engineers. Although the NPRM only addressed DSLEs, 
FRA has encountered several situations in which a designated supervisor 
of locomotive engineers, a certified locomotive engineer pilot or an 
instructor engineer has neglected his or her responsibilities and 
permitted an engineer at the controls to violate a specified 
prohibition. Usually, FRA finds out about those situations that cause 
accidents or result in the decertification of the engineer at the 
controls.
    After further consideration of the comment, RSAC recommended that a 
change is necessary and that a designated supervisor of locomotive 
engineers, a certified locomotive engineer pilot or an instructor 
engineer's conduct does not have to be willful to be prohibited. In 
this way, all locomotive engineers, no matter what role they are 
performing that requires certification, will know that they will be 
held to the same high standard of care. This clarification will be 
found in Secs. 240.117(c)(1), (c)(2), and 240.305(a)(6). While FRA 
maintains that the rule currently contains this authority without 
making revisions, the rule changes will put certified locomotive 
engineer supervisors, pilots, and instructors on more blunt notice that 
their inappropriate supervisory acts or omissions will trigger 
revocation and FRA enforcement authority. The revisions also will put 
railroads on better notice that they need to consider the actions of 
their DSLEs, locomotive engineer pilots and instructor engineers when 
alleged violations of Part 240 occur. This issue is further discussed 
in the section-by-section analysis. Some RSAC members and FRA also 
thought it would be helpful to point out that supervisory employees who 
are subject to revocation proceedings and who do not have a collective 
bargaining agreement are still entitled to the hearing procedures found 
in Sec. 240.307(c) and Subpart E--Dispute Resolution Procedures.
    After reviewing the comments, RSAC recommended a modification that 
would clarify that a certified engineer who is called to work in the 
capacity of a train crew member other than that of a locomotive 
engineer, and who does not perform engineer duties, should not have his 
or her certification revoked for a violation that occurs during that 
tour of duty. Since this recommendation coincides with FRA's current 
interpretation of the rule, FRA will add new paragraph 
Sec. 240.117(c)(3). A more detailed discussion of this new paragraph 
can be found in the section-by-section analysis.

G. Lengthening the Certification Period From 3 to 5 Years on Class III 
Railroads

    This issue was raised in the RSAC process prior to publication of 
the NPRM but no consensus was achieved for making a recommendation to 
FRA. In the NPRM, FRA did not propose a change although this issue was 
identified as one of the Working Group's topics. Only one RSAC member 
supported this modification prior to publication of the NPRM and that 
same RSAC organization is the only commenter to support its proposal 
post NPRM publication. This commenter requests that FRA reconsider 
whether a model program could be jointly developed by FRA and the 
industry to allay any safety concerns raised by lengthening the 
certification period for this subset of locomotive engineers.
    The commenter urges that such a change would be either safety 
neutral or a safety positive change since the history of Class III 
program administration under the current rule is very positive. This 
commenter argues that Class III railroads have been

[[Page 60974]]

supportive when FRA has wanted modifications to the model Class III 
Part 240 program. In addition, the commenter argues that all Class III 
railroads would benefit even though only some would be involved with 
the development of a new Class III program. The basis for this 
assertion is the commenter's reminder that it developed the model Class 
III Part 240 program and it has shared that effort industry-wide.
    This commenter stated that it is ready to adjust its model program 
to accommodate a longer certification cycle by increasing testing and 
training. In addition, the commenter and RSAC member noted at the last 
Working Group meeting that because of their members' commitment to 
safety, many of the Class III railroads are already exceeding the 
requirements of the rule and the model program they helped develop. 
Furthermore, this commenter believes that any concern over the longer 
interval for medical degradation is covered by the self-reporting 
aspects of the NPRM. The commenter noted that the NDR and medical 
checks were really all that would be changed by this approach and that 
there are significant costs that these railroads have difficulty 
passing on to the shippers while still remaining profitable.
    Despite the appeal of this proposal to reduce the burdens imposed 
by the rule on Class III railroads, FRA remains concerned about the 
negative safety impact that would flow from such a broad modification 
to the rule. The proposal seems over-inclusive since the safety 
concerns on some Class III railroads are much greater than others; for 
example, some Class III railroads conduct operations on the same lines 
over which Amtrak conducts high speed operations. Similarly, the 
proposal could be considered under-inclusive since some Class I and 
Class II railroads could argue that their operations pose no greater 
safety threat than many Class III railroads. Thus, FRA believes that 
the proposal is flawed since it could arbitrarily allow railroads of a 
certain size to gain a benefit rather than considering safety issues 
that define the type of operation.
    FRA fails to see that the costs associated with retaining the 3 
year interval were very significant when compared to the risks. For 
example, the proposal devalues the benefit of maintaining a uniform 
interval throughout the industry. Also, the proposal increases the 
likelihood of a safety loss if the medical examinations are required 
less frequently. In addition to the dubious equity of the proposal and 
its possible safety degradation, FRA is concerned about how this 5 year 
approach would be handled by a major railroad that might need to 
certify a small railroad's engineers for operations on the major 
railroad. For all these reasons, RSAC failed to achieve consensus 
recommendations and FRA has decided not to change the rule to allow 
Class III railroads to certify their locomotive engineers every 5 
years.

H. Preemption

    One commenter requested that FRA clarify whether and to what extent 
Part 240 applies to the qualifications for train conductors. The State 
of Wisconsin's Office of the Commissioner of Railroads made this 
request because its comment states that Wisconsin appellate courts have 
held that Part 240 preempts state laws that govern the qualifications 
of conductors. Since FRA had committed to bringing all comments before 
the Working Group, RSAC reviewed the comment but was unable to achieve 
a consensus recommendation.
    FRA believes that this request for legal guidance is based on the 
current rule and not the NPRM since the commenter cited a court case 
that occurred back in 1996. The question asked is narrow and pertains 
to a specific set of Wisconsin state regulations and the Wisconsin 
courts' decisions on particular facts. Thus, FRA is responding to this 
commenter directly rather than publishing a response here. A copy of 
FRA's response letter will be placed in the docket.

Section-by-Section Analysis

Subpart A--General

Section 240.1--Purpose and Scope
    FRA will make minor changes to paragraph (b) so that the regulatory 
language used by FRA in all of its rules will become more standardized. 
A few words have been substituted for others in the second sentence, 
but FRA will not substantively change the purpose and scope of this 
part by virtue of these changes. FRA did not receive any comments on 
the proposed changes and the final rule text is identical to the 
proposed version.
Section 240.3--Application and Responsibility for Compliance
    The amendments to this section are identical to the proposed 
version and employ what is essentially standardized regulatory language 
which FRA plans to use in all of its rules. FRA does not believe that 
these revisions substantively change the purpose and scope of this 
part. FRA explained the purpose of these amendments in the NPRM and FRA 
did not receive any comments in response to the NPRM version.
    Paragraphs (a) and (b) contain the same approach as the current 
rule but with some slight rewording. As under the current provision, 
the new provision would mean that railroads whose entire operations are 
conducted on track that is outside of the general system of 
transportation are not covered by this part. Most tourist railroads, 
for example, involve no general system operations and, accordingly, 
would not be subject to this part. Therefore, FRA continues to intend 
that this rule shall not be applicable to ``tourist, scenic or 
excursion operations that occur on tracks that are not part of the 
general railroad system.'' 54 FR 50890, 50893, 50915 (Dec. 11, 1989); 
see also 56 FR 28228, 28240 (June 19, 1991). The word ``installation'' 
is intended to convey a meaning of physical (and not just operational) 
separateness from the general system. A railroad that operates only 
within a distinct enclave that is connected to the general system only 
for purposes of receiving or offering its own shipments is within an 
installation. Examples of such installations are chemical and 
manufacturing plants, most tourist railroads, mining railroads, and 
military bases. However, a rail operation conducted over the general 
system in a block of time during which the general system railroad is 
not operating is not within an installation and, accordingly, not 
outside of the general system merely because of the operational 
separation.
    Paragraph (c) will be added so that the rule will more clearly 
identify that any person or contractor that performs a function covered 
by this part will be held responsible for compliance. This is not a 
substantive change since contractors and others are currently 
responsible for compliance with this part as specified in Sec. 240.11.
Section 240.5-- Preemptive Effect and Construction
    FRA will amend paragraph (a) so that the regulatory language used 
by FRA in all of its rules will become more standardized. This change 
explains the rule's preemptive effect. This amendment will reflect 
FRA's effort to address recent case law developed on the subject of 
preemption. One comment was received regarding the issue of preemption 
and that issue has been addressed in the preamble.
    FRA will amend paragraph (b) so that the regulatory language used 
by FRA in all of its rules will become more standardized. The only 
change is to

[[Page 60975]]

remove the word ``any.'' This minor edit would not be a substantive 
revision.
    FRA will amend paragraph (e) of this section by adding the words 
``or prohibit.'' The purpose of this modification is to clarify that 
the rule does not prevent ``flowback.'' The term flowback has been used 
in the industry to describe a situation where an employee who is no 
longer qualified or able to work in his or her current position, can 
return to a previously held position or craft. An example of flowback 
occurs when a person who holds the position of a conductor subsequently 
qualifies for the position of locomotive engineer, and at some later 
point in time the person finds it necessary or preferable to revert 
back to a conductor position. The reasons for reverting back to the 
previous craft may derive from personal choice or a less voluntary 
nature; e.g., downsizing, certificate ineligibility or revocation.
    Many collective bargaining agreements address the issue of 
flowback. FRA does not intend to create or prohibit the right to 
flowback, nor does FRA intend to state a position on whether flowback 
is desirable. In fact, the exact opposite is true. In consideration of 
an RSAC recommendation, FRA has agreed to this clarification of the 
original intent of paragraph (e) so that it is understood by the 
industry that employees who are offered the opportunity to flowback or 
have contractual flowback rights may do so; likewise, employees who are 
not offered the opportunity to flowback or do not have such contractual 
rights are not eligible or entitled to such employment as a consequence 
flowing from this federal regulation.
    FRA received a comment that the rule should be modified to prohibit 
railroads from taking any disciplinary actions during the period while 
awaiting state action. The comment as raised focused on discipline and 
not ineligibility to hold a certificate; FRA's authority to regulate a 
railroad's right to discipline its own employees has not been 
challenged by this rule. In fact, Sec. 240.5(d) states that FRA does 
not intend to preempt or otherwise alter the authority of a railroad to 
initiate disciplinary sanctions against its employees by issuance of 
these regulations.
    Based on discussions of this comment, RSAC recommended adding a new 
paragraph to this section. Although not proposed in the NPRM, FRA 
agrees upon reflection that by adding a new paragraph (f), the rule 
will clarify employee rights in a manner similar to the way in which it 
is clarifying railroad authority. The intent of the new language is to 
explicitly preserve any remedy already available to the person and not 
to create any new entitlements. FRA expects that employees will benefit 
from this new paragraph by referring to it should a railroad use this 
regulation as an inappropriate explanation for ignoring an employee's 
rights or remedies. A railroad must consider whether any procedural 
rights or remedies available to the employee would be inconsistent with 
this part.
Section 240.7--Definitions
    The final rule adds definitions for eight terms and revises the 
definitions of another three terms. One of five modifications in the 
rule that differs from what FRA proposed in the NPRM is a revision to 
the term locomotive. That definition is amended by deleting the phrase 
``other than hi-rail or specialized maintenance equipment'' and 
replacing it with ``other than specialized roadway maintenance 
equipment or a dual purpose vehicle operating in accordance with 
Sec. 240.104(a)(2) of this part.'' In making this modification, FRA is 
excluding from the definition of ``locomotive'' those vehicles that the 
agency has determined, based on RSAC's recommendation, can be safely 
operated without a certified locomotive engineer. This means that a 
dual purpose vehicle will require a certified locomotive engineer 
whenever the exception as described in Sec. 240.104(a)(2) cannot be 
met. FRA decided that the previously described modification would be 
better than one commenter's recommendation that the definition of 
locomotive be amended to include the phrase ``but including a dual 
purpose vehicle as defined above which is functioning as a 
locomotive;'' FRA believes this comment was intended to have the same 
effect in practice as FRA's modification, but is now redundant given 
the new definitions of ``locomotive,'' ``specialized roadway 
maintenance equipment,'' and ``dual purpose vehicle.''
    Likewise, commenters expressed confusion as to the applicability of 
the rule to certain service vehicles and the confusion appeared to be 
tied to the section-by-section analysis for the definitions of dual 
purpose vehicle and specialized roadway maintenance equipment. In order 
to prevent additional confusion, FRA has modified the two definitions 
in question and offers the following descriptions to substitute for the 
apparently confusing analysis in the proposed rule. FRA wishes to alert 
interested parties that these service vehicle definitions are also 
addressed in the preamble and provide further clarification.
    The definition for dual purpose vehicle describes a piece of on-
track equipment that may function as roadway maintenance equipment and 
is capable of moving railroad rolling stock which enables it to 
substitute for a traditional locomotive. When a dual purpose vehicle is 
operated in conjunction with roadway maintenance, pursuant to limited 
circumstances identified in Sec. 240.104(a)(2), a certified locomotive 
engineer is not required. Therefore, when using dual purpose vehicles, 
careful attention to whether the exception applies is necessary to 
determine whether a certified locomotive engineer is necessary.
    A definition for specialized roadway maintenance equipment is added 
to define a type of machine that is used exclusively for maintenance, 
repair, construction or inspection of track, bridges, roadway, signal, 
communications, or electric traction systems and is not capable of 
moving railroad rolling stock. Meanwhile, if roadway maintenance 
equipment is used for moving railroad rolling stock, it will be treated 
as a dual purpose vehicle, not specialized roadway maintenance 
equipment. Specialized roadway maintenance equipment does not have the 
capability to move railroad rolling stock and, therefore, the 
alteration of such a vehicle that enables it to move railroad rolling 
stock will require that the vehicle be treated as a dual purpose 
vehicle.
    The addition of a definition for roadway maintenance equipment is a 
fourth modification to the definitions section that differs from the 
proposed rule. It defines this on-track equipment as ``powered by any 
means of energy other than hand power which is used in conjunction with 
maintenance, repair, construction or inspection of track, bridges, 
roadway, signal, communications, or electric traction systems.'' The 
term roadway maintenance equipment has been incorporated into the 
definitions of dual purpose vehicle and specialized roadway maintenance 
equipment. FRA believes this definition is necessary to clarify that 
within the set of vehicles meeting the definition of roadway 
maintenance equipment there are two subsets: (1) Vehicles capable of 
moving railroad rolling stock, i.e., dual purpose vehicles, and (2) 
vehicles that do not have such capability, i.e., specialized roadway 
maintenance equipment.
    The addition of a definition for railroad rolling stock is a fifth 
modification to the definitions section that differs from the proposed 
rule. This

[[Page 60976]]

definition was added so that the phrase ``which can function as either 
a locomotive'' would no longer be necessary. The functioning as a 
locomotive phrase could be construed as ambiguous and subject to 
multiple interpretations. By substituting that phrase with having ``the 
capability to move railroad rolling stock'' in the definitions of dual 
purpose vehicle and specialized roadway maintenance equipment, FRA 
intends to be unambiguous. The definition for railroad rolling stock 
refers to precise definitions found elsewhere in this chapter.
    Of the remaining five added definitions and two revised 
definitions, all are added or modified as proposed. The term 
Administrator will be revised to standardize the FRA Administrator's 
authority in line with FRA's other regulations. The effect of this 
change will be to take away the Deputy Administrator's authority to act 
for the Administrator without being delegated such authority by the 
Administrator. The Deputy Administrator will also lose the authority to 
delegate, unless otherwise provided for by the Administrator. The 
current rule uses the word qualified without defining it and this rule 
expands the use of that term, so a definition is supplied.
    The agency has previously neglected to define FRA as the Federal 
Railroad Administration, although that abbreviation has been used in 
the rule. FRA also will define person rather than rely on a definition 
that currently appears in parenthetic remarks within Sec. 240.11.
    Although FRA has previously defined the term filing, as in filing a 
petition, or any other document, with the FRA Docket Clerk, the rule 
has not defined what constitutes service on other parties. The added 
definition references the Rules 5 and 6 of the Federal Rules of Civil 
Procedure (FRCP) as amended. The intent is to apply the FRCP rules in 
effect at the time a proceeding under this rule occurs, rather than to 
perpetuate those FRCP rules that are in effect when this regulation 
becomes final. By defining the term service, the expectation is that 
the rule will clarify the obligations of the parties and improve 
procedural efficiency.
Section 240.9--Waivers
    Minor amendments are being made to this section so that the 
regulatory language used by FRA in all of its rules will become more 
standardized. These amendments to paragraphs (a) and (c) are identical 
to what FRA proposed. The changes to paragraph (a) reflect FRA's 
current intent; that is, a person should not request a waiver of one of 
the rule's provisions unless the person is subject to a requirement of 
this rule and the waiver request is directed at the requirement which 
the person wishes he or she did not have to abide by. Paragraph (c) 
will standardize language with other FRA rules which clarify the 
Administrator's authority to grant waivers subject to any conditions 
the Administrator deems necessary.
Section 240.11--Consequences for Noncompliance
    FRA is rewording this section slightly. No comments addressing this 
section were received and the final rule is identical to the proposed 
version. One change will respond to the Federal Civil Penalties 
Inflation Adjustment Act of 1990, Public Law 101-410 Stat. 890, 28 
U.S.C. 2461 note, as amended by the Debt Collection Improvement Act of 
1996 Public Law 104-134, April 26, 1996 which requires agencies to 
adjust for inflation the maximum civil monetary penalties within the 
agencies jurisdiction. The resulting $11,000 and $22,000 maximum 
penalties are determined by applying the criteria set forth in sections 
4 and 5 of the statute to the maximum penalties otherwise provided for 
in the Federal railroad safety laws.
    Paragraphs (a), (b) and (c) will eliminate a parenthetic definition 
of person since FRA will define person in Sec. 240.7. The citation to a 
statute in paragraph (c) is also a revision.

Subpart B--Component Elements of the Certification Process

Section 240.103--Approval of Design of Individual Railroad Programs by 
FRA
    FRA will update this section to address railroads commencing 
operations in the future. There is a need to do so since the numbered 
paragraphs under paragraph (a) set forth a schedule of dates that have 
long since passed and any railroad that was conducting operations in 
1991 and 1992 should have already filed a written program pursuant to 
this section. No comments were received and the final rule is identical 
to the proposed version.
Section 240.104--Criteria for Determining Whether Movement of Roadway 
Maintenance Equipment or a Dual Purpose Vehicle Requires a Certified 
Locomotive Engineer
    FRA will add this new section to address the issue of what types of 
service vehicles should be operated by certified locomotive engineers. 
The title of the section has been revised from the NPRM to clarify that 
it applies only when roadway maintenance equipment or a dual purpose 
vehicle is to be operated and does not refer to operating traditional 
locomotives. Since this was an issue of great interest to many members 
of the industry represented in the RSAC process, FRA has addressed this 
issue in detail in the preamble and requests that those people 
interested in this topic reference the preamble text. The preamble and 
section-by-section analysis regarding the definitions of ``dual purpose 
vehicle,'' ``locomotive'' and ``specialized roadway maintenance 
equipment'' have been revised to clarify some language that commenters 
found confusing in the NPRM. In addition, the new section has been 
renumbered differently than the proposal.
    Some minor changes to paragraph (a)(2)(ii), which was proposed 
paragraph (b)(2), were made for clarification. For example, the 
proposed rule did not state that the ``rules'' under which the railroad 
would be moving a dual purpose vehicle would be ``railroad operating 
rules.'' FRA eliminated the reference to ``exclusive track occupancy'' 
because, upon further examination, this reference to a term used in 
part 214 of this chapter applies to the protection of roadway workers 
within work limits and not to the protection of service vehicle 
movements. The paragraph was also reorganized for improved clarity.
    In addition, proposed paragraph (b)(4), has been deleted. FRA 
concluded that this reference to power brake requirements was 
unnecessary, and has made clear in the preamble that it believes those 
rules apply to movements of maintenance equipment to and from the work 
site to the extent the equipment is equipped with power brakes.
Section 240.105--Criteria for Selection of Designated Supervisors of 
Locomotive Engineers
    The amendments to this section contained in this final rule are 
identical to those in the proposed version. This section contains one 
of the more important modifications to the rule and related issues are 
addressed in the preamble. No comments were received with regard to the 
proposal for changes to this section.
    The changes to paragraph (b)(4) will create two new requirements. 
One requirement is that those persons who are DSLEs must be qualified 
on the physical characteristics of the portion of the railroad on which 
they are supervising. A second requirement is that a railroad's program 
must address how it intends to implement the physical characteristics 
qualification of

[[Page 60977]]

its DSLEs. As it did in the NPRM, FRA recommends that DSLEs acquire 
some operational experience over the territories they supervise because 
it is arguably the best method for learning how to operate over a 
territory.
    The addition of paragraph (c) is an effort to clarify how small 
railroads, particularly those just commencing operations who find 
themselves without a qualified and certified DSLE, can designate and 
train such individuals without reliance on outside sources. 56 FR 
28228, 28241-42 (June 19, 1991)(stating that a DSLE could be a 
contractor rather than an employee of the railroad). The need to create 
a DSLE can occur under a variety of scenarios including when: (1) new 
railroads have never certified a locomotive engineer or a DSLE; (2) 
railroads may have had one or a few DSLEs at one time but no longer 
employ any qualified individuals; and (3) a railroad wishes to utilize 
contractor engineers. For those railroads that do not have DSLEs, the 
addition of paragraph (c) will enable them to consider an additional 
option for creation of their first DSLE. This section is designed to 
address the problems that arise from a railroad being unable to certify 
any person as a locomotive engineer, let alone a DSLE, since the 
railroad lacks even one DSLE who could conduct the required training 
and testing of Sec. 240.203(a)(4)(for initial certification or 
recertification) or Sec. 240.225(a)(5)(for certifying based on the 
reliance of the qualification determinations made by other railroads). 
Meanwhile, even if paragraph (c) is utilized, a railroad must comply 
with the other provisions of either Secs. 240.203 or 240.225. Because 
this paragraph has not changed since the proposed rule and no comments 
were received with regard to this section, the lengthy explanation 
provided in the section-by-section analysis in the proposed rule has 
not been repeated here.
Section 240.111--Individual's Duty To Furnish Data on Prior Safety 
Conduct as Motor Vehicle Operator
    The amendments to this section contained in this final rule are 
identical to those in the proposed version except that proposed 
paragraph (h) was eliminated due to its redundancy with paragraph (a); 
accordingly, proposed paragraph (i) has been moved to new paragraph 
(h). No comments concerning the proposed modifications of this section 
were received and, thus, the NPRM should be consulted for a more 
detailed explanation of the impact of these amendments. The lengthening 
of the time limit interval in paragraphs (a) from 180 days to 366 days 
should prove helpful both to small railroads and large ones. RSAC's 
Working Group members could demonstrate clear examples of the 
administrative difficulties being encountered in attempting to meet the 
shorter period and thus FRA believes there is a sufficient basis for a 
regulatory change.
    No comments were received concerning proposed paragraph (i) which 
is now new paragraph (h). This paragraph will require certified 
locomotive engineers to notify the employing railroad of motor vehicle 
incidents described in Sec. 240.115(b)(1) and (2) within 48 hours of 
the conviction or completed state action to cancel, revoke, suspend, or 
deny a motor vehicle driver's license. In addition, this new paragraph 
will create an obligation for certified locomotive engineers to report 
to their employing railroad any type of temporary or permanent denial 
to hold a motor vehicle driver's license when the person has been found 
by a state to have either refused an alcohol or drug test, or to be 
under the influence or impaired when operating a motor vehicle. This 
paragraph will also require that, for purposes of locomotive engineer 
certification, a railroad cannot require a person to submit motor 
vehicle operator data earlier than specified in the paragraph. The 
reasoning behind this rule involves several intertwined objectives 
which are more fully explained in the NPRM.
Section 240.113--Individual's Duty To Furnish Data on Prior Safety 
Conduct as an Employee of a Different Railroad
    The amendments to this section contained in this final rule are 
identical to those contained in the proposed version. As proposed, 
paragraph (a) is being modified by increasing the number of days an 
individual has to furnish data on prior safety conduct as an employee 
of a different railroad. The period is being changed from 180 days to 
366 days so that the administrative difficulties of compliance would be 
lessened. FRA does not believe that railroad safety will be diminished 
by lengthening the period of time that a person has to request and 
furnish this data. No comments were received regarding this proposed 
section.
Section 240.117--Criteria for Consideration of Operating Rules 
Compliance Data
    FRA proposed substantial amendments to this cornerstone of the 
regulation and provided a detailed analysis of the changes in the NPRM. 
Several comments were received in response to the proposed rule. In 
response to the comments, one proposed paragraph is being modified in 
this final rule and another paragraph has been added entirely. The 
issues upon which comments were received are addressed below and have 
also been addressed in the preamble under ``Addressing Safety Assurance 
and Compliance.''
    First, paragraph (c)(2) is being added so that it makes clear the 
duties of both certified locomotive engineer pilots and instructor 
engineers, not just designated supervisors of locomotive engineers as 
was proposed. The explanation of paragraph (c)(2) concerning designated 
supervisors of locomotive engineers is still accurate and analogies can 
be made in the rule's application to when certified locomotive engineer 
pilots and instructor engineers are to be accountable to the extent 
that railroads must revoke certification. However, one commenter was 
concerned that FRA's NPRM appeared to be singling out DSLEs for special 
treatment. Although that comment is not accurate, RSAC recommended that 
FRA clarify the intent of the provision in the final rule. FRA agrees 
with RSAC's recommendation that clarification is warranted since some 
designated supervisors of locomotive engineers, as well as locomotive 
engineer pilots and instructor engineers may not understand that they 
are responsible for their conduct, and thus subject to decertification, 
when they are performing a function that requires them to be qualified 
and certified locomotive engineers.
    Paragraph (c)(3) is being added to clarify the duty of a person who 
is a certified locomotive engineer but is called by a railroad to 
perform the duty of a train crew member other than that of locomotive 
engineer. For example, a person who is called to be the crew's 
conductor and who does not perform any of the duties of locomotive 
engineer during that tour of duty cannot have his or her certification 
revoked for a violation of Sec. 240.117(e)(1) through (5). As the new 
paragraph will make clear, this exemption only applies when a person is 
performing non-locomotive engineer duty. Thus, the exemption will not 
apply if such a person is performing the duties of a locomotive 
engineer and causes the violation to occur. Meanwhile, note that the 
exemption does not apply for violations of Sec. 240.117(e)(6) so that 
engineers working in other capacities who violate certain alcohol and 
drug rules will have certification revoked for the appropriate period 
pursuant to Secs. 240.117 and 240.119. FRA believes this paragraph

[[Page 60978]]

explains the status quo and that it would be helpful to have rule text 
since that should help resolve such disputes for railroads over whether 
a revocation action is necessary. Consequently, FRA expects that a 
benefit of this new paragraph will be a reduction in the number of 
railroad hearings and petitions to FRA for review pursuant to 
Sec. 240.307 and Subpart E--Dispute Resolution Procedures.
    Paragraph (d) has been modified slightly from the proposal to 
clarify that the shortened time frame for considering operating rule 
compliance only applies to conduct described in ``paragraphs (e)(1) 
through (e)(5)'' of this section and not paragraph (e)(6). This 
modification is necessary to clarify that when alcohol and drug 
violations are at issue, the window in which prior operating rule 
misconduct will be evaluated will be dictated by Sec. 240.119 and not 
limited to the 36 month period prescribed in this paragraph. The rule 
will continue to require that certification reviews consider alcohol 
and drug misconduct that occurred within a period of 60 consecutive 
months prior to the review pursuant to Sec. 240.119(c).
    FRA noted in the proposed rule that paragraph (e)(3) would likely 
need amending prior to becoming a final rule since two other regulatory 
proceedings might result in new rules which could supersede this 
reference. Although only one of these two regulatory proceedings has 
resulted in the issuance of a final rule, i.e., Passenger Equipment 
Safety Standards published at 64 FR 25540 (May 12, 1999), FRA has 
modified this rule to account for the Passenger Equipment final rule 
and whatever changes, if any, are ever made to part 232. See 63 FR 
48294 (Sept. 9, 1998) (proposing changes to part 232). These 
modifications will continue to hold certified locomotive engineers 
responsible for complying with procedures for the safe use of train or 
engine brakes, regardless of whether the train is a freight train or a 
passenger train, when these same engineers are responsible for 
inspecting or testing the brake system, or ensuring that the required 
tests and inspections have been performed.
    The rest of the changes to this section did not receive any 
comments and, thus, the detailed explanation of their impact in the 
NPRM has not been repeated here.
Section 240.121--Criteria for Vision and Hearing Acuity Data
    FRA will amend this section mainly to prevent potential accidents 
due to a locomotive engineer's medical condition that could compromise 
or adversely affect safe operations. The amendments to paragraphs (b) 
and (c)(3) are identical to the proposal. Meanwhile, amendments to 
paragraph (e) address one of the two comments received on the issue of 
acuity; the other issue is being addressed in Appendix F.
    A comment requested clarification for when a railroad must provide 
additional testing pursuant to paragraph (e). RSAC's recommendation to 
address the commenter's concern has led to a revision. Paragraph (e) 
differs from the proposed version due to the addition of a sentence 
that states that ``[i]n accordance with the guidance prescribed in 
Appendix F, a person is entitled to one retest without making any 
showing and to another retest if the person provides evidence 
substantiating that circumstances have changed since the last test to 
the extent that the person could now arguably operate a locomotive or 
train safely.'' This recommended revision benefits both implementing 
railroads and candidates for certification or recertification without 
having any adverse effect on safety and thus has received FRA's 
endorsement.
    For ease of reference, the following statement is reprinted from 
Appendix F and should provide sufficient guidance for implementing this 
new sentence. ``The intent of Sec. 240.121(e) is not to provide an 
examinee with the right to make an infinite number of requests for 
further evaluation, but to provide an examinee with at least one 
opportunity to prove that a hearing or vision test failure does not 
mean the examinee cannot safely operate a locomotive or train. 
Appropriate further medical evaluation could include providing another 
approved scientific screening test or a field test. All railroads 
should retain the discretion to limit the number of retests that an 
examinee can request but any cap placed on the number of retests should 
not limit retesting when changed circumstances would make such 
retesting appropriate. Changed circumstances would most likely occur if 
the examinee's medical condition has improved in some way or if 
technology has advanced to the extent that it arguably could compensate 
for a hearing or vision deficiency.''
    FRA has made two modifications to paragraph (f) that should improve 
the clarity and enforcement of the rule. One of these modifications 
substitutes the proposed phrase ``it is the obligation of each 
certified locomotive engineer to'' with the final language that ``each 
certified locomotive engineer shall;'' although the required 
notification is not altered by changing this language, the proposed 
language is less desirable since some engineers might consider an 
``obligation'' to be optional or voluntary when it is intended to be 
mandatory. The final language clarifies that this notification is 
mandatory.
    A second modification to paragraph (f) addresses the issue of how 
soon after learning of the deterioration of his or her best correctable 
vision or hearing must the certified locomotive engineer notify the 
railroad of the deterioration. The proposed rule failed to address this 
issue which could lead to delayed notification and enforcement 
difficulties. FRA is concerned with safe train operations, not whether 
a person can notify a railroad within a set time frame. Thus, FRA will 
require this notification ``prior to any subsequent operation of a 
locomotive or train which would require a certified locomotive 
engineer.'' Certified locomotive engineers should note that willful 
noncompliance with this new requirement may result in the assessment of 
a civil penalty or other appropriate enforcement action.
Section 240.123--Criteria for Initial and Continuing Education
    The revision of paragraph (b) and the addition of paragraphs (d), 
(d)(1), and (d)(2) of this section are identical to the proposed 
revisions; these amendments will help resolve numerous inquiries FRA 
has received regarding how engineers can become familiar with the 
physical characteristics of a territory on new railroads being created, 
or on portions of a railroad being reopened after years of non-use. 
These paragraphs seek to clarify the status quo. The benefits of this 
approach include a better use of agency resources by not having to 
address this issue repeatedly on a case-by-case basis, a system that is 
fairer to all parties because it treats all railroads uniformly, and a 
process that is neither overly burdensome nor a compromise of safety. 
No comments were received in response to this issue.
Section 240.127--Criteria for Examining Skill Performance
    This section contains one of the changes discussed in the preamble 
under the major issues section titled ``Qualifications for Designated 
Supervisors of Locomotive Engineers'' and is in response to a comment 
filed by an RSAC member. The sole modification to this section 
contained in this notice is identical to the modification contemplated 
in the proposed rule. This modification addresses a conflict between 
criteria that must be met to qualify as a DSLE and the concept endorsed 
by RSAC that

[[Page 60979]]

a DSLE can determine an engineer's train handling abilities without 
being familiar with the territory over which the engineer is operating. 
The commenter argued that DSLEs should be qualified on the physical 
characteristics of territory over which they are administering a skill 
performance test because that would increase safety. After further 
consideration, this RSAC member and commenter agreed with the previous 
consensus recommendation that this exception would not have a 
detrimental effect on safety. As suggested by RSAC, FRA believes this 
modification would conserve railroad resources by not creating an 
additional demand for training supervisors and without creating a 
detrimental effect on safety.
Section 240.129--Criteria for Monitoring Operational Performance of 
Certified Engineers
    FRA did not propose a specific change to this section in the NPRM 
but is modifying the rule in order to resolve a conflict between the 
criteria that must be met to qualify a DSLE and the concept endorsed by 
RSAC that a DSLE can determine an engineer's train handling abilities 
without being familiar with the territory over which the engineer is 
operating. The same comment that was discussed in the section-by-
section analysis regarding Sec. 240.127 applies to this section and 
FRA's position is similarly situated. The commenter argued that DSLEs 
should be qualified on the physical characteristics of territory over 
which they are monitoring operational performance because that would 
increase safety. After further consideration, this RSAC member and 
commenter agreed with the previous consensus recommendation that this 
exception would not have a detrimental effect on safety. As suggested 
by RSAC, FRA believes this modification would conserve railroad 
resources by not creating an additional demand for training supervisors 
and without creating a detrimental effect on safety.

Subpart C--Implementation of the Certification Process

Section 240.213--Procedures for Making the Determination on Completion 
of Training Program
    FRA did not propose a specific change to this section in the NPRM 
but is modifying the rule to ensure that a fully qualified DSLE, i.e., 
a person who meets all of the requirements of Sec. 240.105, will be 
making the determination that a person completing a locomotive engineer 
training program has the requisite physical characteristics 
familiarity. As addressed in the preamble under the major issues 
section titled ``Qualifications for Designated Supervisors of 
Locomotive Engineers,'' FRA received one comment that advocated 
requiring that a supervisor of locomotive engineers be qualified on the 
physical characteristics of the territory over which the supervisor 
conducts the skill performance test. Although this is a different issue 
than the one raised in the comment, Working Group discussions on this 
issue led to RSAC's recommendation that FRA add a new paragraph (c) to 
Sec. 240.213. RSAC's recommendation requested that FRA address that a 
DSLE be qualified on the physical characteristics of a territory over 
which a locomotive engineer is being qualified on at the completion of 
a training program pursuant to Sec. 240.213. In addition, RSAC 
recommended that Sec. 240.213 be amended to reflect that a qualified 
DSLE should be required whenever a locomotive engineer is to be 
qualified for the first time on a territory.
    FRA believes that modification of paragraph (b)(3) makes greater 
sense than RSAC's recommendation of adding a new paragraph because 
paragraph (b) already requires written documentation that certain 
determinations will be met. The current language of Sec. 240.213 also 
takes into account the first time a locomotive engineer is qualified on 
a territory and therefore addressing it again would be redundant. 
Paragraph (b)(3) was modified by requiring that when a railroad 
provides for the continuing education of a certified locomotive 
engineer, that railroad must ensure that each engineer maintains the 
necessary knowledge, skill and ability concerning familiarity with 
physical characteristics ``as determined by a qualified designated 
supervisor of locomotive engineers.'' Thus, the modification is not 
that engineers must be qualified on physical characteristics (since 
that is already a requirement) but that the person making this 
determination for the railroad must be a qualified DSLE. FRA believes 
that this change promotes safety.
Section 240.217--Time Limitations for Making Determinations
    All of the modifications being made to this section involve changes 
to time limits and are identical to the proposed modifications. The 
RSAC members requested these changes, and FRA will make the 
modifications, because administrative difficulties will be eased by not 
having to meet the shorter and inconsistent periods. FRA does not 
believe that these time extensions will make the data so old that they 
will no longer be indicative of the person's ability to safely operate 
a locomotive or train. When the rule was originally published, time 
limits were established which seemed reasonable and prudent. The rule 
contained numerous time limits of varying length, which has led to 
confusion by those governed by the rule. Since publication of the rule, 
experience by the regulated community has shown the potential for 
simplification and consistency without sacrificing safety. No comments 
were received regarding this section and thus FRA believes there are 
benefits of extending these time limitations without any risk to 
safety.
Section 240.223--Criteria for the Certificate
    The amendment that will be made by this final rule to paragraph 
(a)(1) is identical to the proposal and will require that each 
certificate identify either the railroad or ``parent company'' that is 
issuing it. No comments were received with regard to this section. This 
change will reduce the burden on small railroads. For these companies, 
complying with the current requirement of identifying each railroad has 
become a major logistical problem. It is arguable that a holding 
company managing multiple short line railroads is the equivalent of a 
major railroad operating over its many divisions; thus, it is fair to 
treat them similarly. However, the individuals must still qualify under 
the program of each short line railroad for which they are certified to 
operate and each of those railroads must maintain appropriate records 
as required by this part.
Section 240.225--Reliance on Qualification Determinations Made by Other 
Railroads
    No comments were received with regard to this section and the 
modifications of this section are identical to the proposed version; 
thus, the analysis provided for in the NPRM is merely summarized here. 
New paragraph (a) addresses the perception that the larger railroads 
often administer a more rigorous training program than the smaller 
railroads due to the nature of their operations; that is, small 
railroads typically have more straightforward operations which are 
geographically compact and not as topographically diverse as the larger 
railroads. The modification requires a railroad's certification program 
to address how the railroad will administer the training of previously 
uncertified engineers with extensive operating experience or previously

[[Page 60980]]

certified engineers who have had their certification expire. In both 
these instances, FRA is providing a railroad with the opportunity to 
shorten the on-the-job training that might be required if a person is 
treated as having no operational experience. If a railroad's 
certification program fails to specify how to train a previously 
certified engineer hired from another railroad, then the railroad shall 
require the newly hired engineer to take the hiring railroad's entire 
training program. By articulating both the problem and mandating a safe 
solution, it is FRA's position that this modification will save 
resources.
Section 240.229--Requirements for Joint Operations Territory
    No comments were received with regard to this section and the 
modifications of this section are identical to the proposed version; 
thus, the analysis provided for in the NPRM is merely summarized here. 
By amending paragraph (c), FRA has adopted RSAC's recommendation to 
realign the burden for determining which party is responsible for 
allowing an unqualified person to operate in joint operations. These 
changes are based on the experiences of the Working Group's members who 
expressed the universal opinion that an inordinate amount of the 
liability currently rests with the controlling railroad. The 
realignment would lead to a sharing of the burden among a controlling 
railroad, a guest railroad and a guest railroad's locomotive engineer. 
The parties' responsibilities are found respectively in paragraphs 
(c)(1) through (3). FRA's thought is that the changes will be fair to 
the parties involved since each party will be responsible for making 
determinations based on information that should be within that party's 
control.
Section 240.231--Requirements for Locomotive Engineers Unfamiliar With 
Physical Characteristics in Other Than Joint Operations
    No comments were received with regard to this section and the 
addition of these final rule provisions are identical to those of the 
proposed version; thus, the lengthy analysis provided in the NPRM is 
merely summarized here. Railroads have a history of using conductors 
and other craft employees as pilots and this usage of non-certified 
locomotive engineers as pilots conflicts with FRA's position on what 
the current rule allows. FRA recognizes that there is a great need for 
clarification concerning which employees may serve as pilots since 
there has been great misunderstanding and misapplication of the rule in 
this regard.
    FRA's changes to the rule reflect RSAC's recommendation that 
recognizes the complexity of the problem. The concept behind easing the 
engineer pilots only requirement relies on the Working Group members' 
experiences; that is, engineers who have been previously qualified on a 
territory would need less guidance and expertise to refamiliarize 
themselves with the physical characteristics of that territory as would 
those engineers who work under certain conditions that make a person's 
lack of familiarity a reduced safety concern. Simply requiring 
locomotive engineer pilots in all situations, or in no situations, is 
neither practical nor desirable. Hence, while supervisors of locomotive 
engineers may need to consult the rule more frequently in order to 
ensure compliance, the rule will ensure a higher degree of safety when 
an engineer operates in unfamiliar territory. Because the modification 
will ensure that physical characteristics are addressed in a more 
structured manner, this modification should promote safety better than 
the confusion caused by the original rule's lack of a statement.

Subpart D--Administration of the Certification Program

Section 240.305--Prohibited Conduct
    FRA received one comment that led RSAC and FRA to reevaluate this 
section. The commenter was concerned that FRA's NPRM appeared to be 
singling out DSLEs for special treatment that would serve as a 
disincentive for people to want to be DSLEs. FRA believes that the 
opposite is true; by clarifying a DSLEs responsibilities, the 
regulation will more clearly notify the public that DSLEs will be 
subject to revocation of their certification in the same way as every 
other type of locomotive engineer. In fact, RSAC's post-NPRM 
recommendation was to expand the clarification so that locomotive 
engineer pilots and instructor engineers would understand that they too 
are subject to decertification based on their conduct when performing a 
locomotive engineer function. Thus, for the same reasons that FRA will 
change Sec. 240.117(c)(2), paragraph (a)(6) will be modified from the 
proposal. This amendment certainly puts certified locomotive engineers 
who are also supervisors, pilots and instructors on notice that they 
cannot actively or passively acquiesce to misconduct events caused by 
certified engineers they are observing, piloting or instructing.
    Besides the above mentioned change, several paragraphs to 
Sec. 240.305(a) will be added and changed so that the prohibited 
conduct list is equivalent to the list of misconduct events in 
Sec. 240.117(e), which require the railroad to initiate revocation 
action. This section is needed so that FRA may initiate enforcement 
action. For example, FRA may want to initiate enforcement action in the 
event that a railroad fails to initiate revocation action or a person 
is not a certified locomotive engineer under this part.
    Furthermore, FRA has made conforming changes to paragraph (a)(3) as 
necessary considering the Passenger Equipment Safety Standards final 
rule that was published at 49 CFR Part 238. See 64 FR 25540 (May 
12,1999). Paragraph (a)(3) was also modified to account for whatever 
changes, if any, are ever made to part 232. See 63 FR 48294 (Sept. 9, 
1998) (proposing changes to part 232).
Section 240.307--Revocation of Certification
    FRA is amending several paragraphs in this section. In response to 
the NPRM, two commenters offered opinions that suggested alternative 
changes to what FRA proposed. Those changes have been addressed fully 
in the preamble to this rule in the section ``Improving the Dispute 
Resolution Procedures'' and will not be addressed here unless the 
comment prompted FRA to make a rule change.
    In adopting this final rule, FRA is making four modifications to 
this section which differ from the NPRM; otherwise, the analysis in the 
NPRM satisfactorily describes the basis for the amendments to this 
section. One of the four modifications from the NPRM involves the 
problem that throughout Sec. 240.307 the regulation refers to an 
individual whose function is the ``charging official.'' In helping to 
formulate the NPRM recommendations, several of the Working Group's 
members noted that the railroad industry does not generally use this 
term and that a better description of the individual the regulation is 
referring to would be ``investigating officer.'' FRA agreed with what 
later became RSAC's recommendation and intended to change the term 
``charging official'' to ``investigating officer'' throughout the 
document when referring to the railroad official who performs the 
prosecutorial role. Despite FRA's intent, the agency unintentionally 
failed to modify paragraph (c)(2) accordingly; that mistake is now 
being corrected.

[[Page 60981]]

    In order to address two other modifications that differ from the 
proposal, it is helpful to reiterate the basis for one of the proposed 
modifications that remain in the final rule. Paragraph (c) requires 
that a railroad shall provide a hearing consistent with procedures 
specified in paragraph (c) unless a hearing is held pursuant to a 
collective bargaining agreement as specified in paragraph (d), a 
hearing is waived according to paragraph (f), or, prior to a hearing, 
the railroad makes certain determinations specified in paragraphs (i) 
and (j) which excuse the alleged misconduct. Paragraph (c)(10) requires 
that the presiding officer prepare a written decision, which on its 
face seems like a straightforward requirement. However, some 
petitioners have argued that procedural error has occurred when written 
decisions have been signed by a railroad official other than the 
presiding officer, e.g., a presiding officer's supervisor. The issue 
appears to be whether the presiding officer must also be the decision-
maker or whether the presiding officer can merely take the passive role 
of presiding over the proceedings only. There is also a separate issue 
of whether a railroad official who is someone other than the presiding 
officer may have a conflict of interest that should disqualify that 
railroad official from signing the written decision; i.e., there may be 
the appearance of impropriety if the non-presiding railroad official 
has ex-parte communications with the charging official (or 
investigating officer). FRA urges railroad officials to avoid the 
appearance of impropriety and to conduct their on-the-property hearings 
in an objectively fair manner.
    The agency's intentions were articulated in the preamble to the 
1993 interim final rule. FRA stated that ``FRA's design for Subpart D 
was structured to ensure that such decisions would come only after the 
certified locomotive engineer had been afforded an opportunity for an 
investigatory hearing at which the hearing officer would determine 
whether there was sufficient evidence to establish that the engineer's 
conduct warranted revocation of his or her certification.'' 58 FR 
18982, 18999 (Apr. 9, 1993). FRA also discussed in this 1993 preamble 
how the revocation process pursuant to this part should be integrated 
with the collective bargaining process. FRA stated that if the 
collective bargaining process is used ``the hearing officer will be 
limited to reaching findings based on the record of the hearing'' and 
not other factors as may be allowed by a bargaining agreement; the rule 
was written to ``guard against hearing officers who might be tempted to 
make decisions based on data not fully examined at the hearing.'' 58 FR 
18982, 19000 (Apr. 9, 1993). Hence, it appears that the agency did not 
even contemplate that someone other than the presiding officer might 
make the revocation decision.
    In contrast to the agency's initial position, several of the 
Working Group's members said that their organizations have set up this 
process to allow someone other than the presiding officer to make the 
revocation decision. This other person is always a railroad official 
who reviews the record made at the railroad hearing. Although this is 
not what the agency expected when it drafted the original final rule in 
1991, FRA and the LERB have found this practice acceptable as long as 
the relevant railroad official has not been the charging official (or 
investigating officer). The reasoning behind this acceptance is that 
fairness of the hearing and the decision is maintained by separating 
the person who plays the prosecutorial role from the person who acts as 
the decision-maker. Thus, RSAC recommends, and FRA agrees, to codify 
this position in paragraph (c)(10).
    Meanwhile, a second modification that differs from the NPRM is 
FRA's failure to amend the reference in paragraph (e) to the 
``presiding officer'' when it published the NPRM. FRA's intent was to 
amend paragraph (e) so that the rule will uniformly state that a 
railroad official, other than the investigating officer, shall make 
findings as to whether revocation is required. Thus, pursuant to the 
new rule, the railroad official, who is someone other than the 
investigating officer and who determines whether revocation is 
necessary, could be the presiding officer or another qualified railroad 
official.
    A third modification that FRA is making to this section that 
differs from the NPRM is found in paragraph (c)(10). FRA's original 
proposal stated that ``[a]t the close of the record, a railroad 
official, other than the investigating officer, shall prepare and sign 
a written decision in the proceeding.'' FRA received one comment that 
suggested that this paragraph should be revised to clarify that the 
written decision could be prepared at or after the close of the record; 
the commenter argued that unless amended, the paragraph ambiguously 
gave the impression that a written decision had to be provided upon the 
immediate closing of the hearing. In consideration of the comment, RSAC 
discussed that a formal deadline for written decisions in revocation 
proceedings not held pursuant to collective bargaining agreements was 
desirable so that these decisions could be expected to be completed 
within a reasonable period of time. RSAC recommends, and FRA agrees, 
that it would be fair to all parties if such a decision would be 
required ``no later than 10 days after the close of the record.'' The 
``no later than 10 days after the close of the record'' requirement 
should not place a great burden on any railroad nor should it be 
confusing to apply. The ``no later than'' language allows issuance of 
the decision on the tenth day after the close of the record or any time 
prior to the expiration of that tenth day.
    FRA did not receive comments with regard to the other proposed 
changes to this section, which are explained below. Paragraph (b)(2) is 
modified in two significant ways. First, based on RSAC's recommendation 
and FRA's understanding of fair process, initial notice of a revocation 
suspension may be either oral or written but confirmation of the 
suspension must be made in writing at a later date; this clarifies a 
railroad's obligations since FRA was silent in the rule as to whether 
notice could be made orally or must be in writing yet FRA's preamble 
stated that the notice must be in writing. Second, the amount of time 
the railroad will have to confirm the notice in writing will depend on 
a time limit imposed by an applicable collective bargaining agreement 
or, in the absence of such an agreement, a time limit of 96 hours will 
be imposed.
    Modifications to paragraphs (i) and (i)(1) from the proposal are 
merely cosmetic. Paragraph (i)(1) will make it explicitly known that a 
person's certificate shall not be revoked when there is sufficient 
evidence of an intervening cause that prevented or materially impaired 
the person's ability to comply. FRA has always maintained this position 
and the RSAC members agreed that it would be useful to incorporate it 
into the rule. FRA expects that railroads which have previously 
believed they were under a mandate to decertify a person for a 
violation regardless of the particular factual defenses the person may 
have had, will more carefully consider similar defenses in future 
cases. In 1993, FRA stated that ``[f]actual disputes could also involve 
whether certain equitable considerations warrant reversal of the 
railroad's decision on the grounds that, due to certain peculiar 
underlying facts, the railroad's decision would produce an unjust 
result not intended by FRA's rules.'' 58 FR 18982, 19001 (Apr. 9, 
1993). The example FRA used in 1993

[[Page 60982]]

applies to this proposal as well. That is, the LERB ``will consider 
assertions that a person failed to operate the train within the 
prescribed speed limits because of defective equipment.'' Similar to 
the defense of defective equipment, the actions of other people may 
sometimes be an intervening cause. For instance, a conductor or 
dispatcher may relay incorrect information to the engineer which is 
reasonably relied on in making a prohibited train movement.
    Meanwhile, locomotive engineers and railroad managers will need to 
note that not all equipment failures or errors caused by others should 
serve to absolve the person from certification action. The factual 
issues of each circumstance must be analyzed on a case-by-case basis. 
For example, a broken speedometer would certainly not be an intervening 
factor in a violation of Sec. 240.117(e)(3) (failure to do certain 
required brake tests).
    Paragraph (i)(2) has been modified from the proposal although no 
comments were received requesting the type of change made. The proposed 
rule prohibited all railroads from taking revocation action for events 
that are of a minimal nature and that do not have either a direct or 
potential effect on rail safety while the final rule merely permits 
railroads to make such a determination. Thus, the final rule will 
provide a railroad with the discretion necessary to decide not to 
revoke an engineer's certification for an operational misconduct event 
that violates Sec. 240.117(e)(1) through (e)(5) under certain limited 
circumstances. Without such a modification, the proposal would have 
created a defense in every case where many close judgment calls by 
railroads could be second guessed by the LERB. Rather than finalize the 
proposal, which FRA helped RSAC develop into a recommendation, FRA has 
decided to moderate it so that it is not a defense in every case and 
thus carry the potential to greatly increase the number of petitions to 
the LERB. In comparison, FRA does not believe that the modification of 
adding the defense of an intervening cause will greatly increase or 
decrease the number of petitions to the LERB since making such a 
determination is significantly more objective than determining what 
types of violations are both (1) of a minimal nature and (2) have no 
direct or potential effect on rail safety. The potential downside to 
proposed paragraph (i)(2) was not recognized until after the comment 
period closed and RSAC's final recommendations were made.
    Paragraph (i)(2) will not permit a railroad to use their discretion 
to dismiss violations indiscriminately. That is, FRA will only permit 
railroads to excuse operational misconduct when two criteria are met. 
First, the violation must be of a minimal nature; for example, on high 
speed track at the bottom of a steep grade, the front of the lead unit 
in a four unit consist hauling 100 cars enters a speed restriction at 
10 miles per hour over speed, but the third unit and the balance of the 
train enters the speed restriction at the proper speed, and maintains 
that speed for the remainder of the train. If more of the locomotive or 
train consist enters the speed restriction in violation, a railroad 
that is willing to consider mitigating circumstances will need to 
consider whether the violation was truly of a minimal nature. Other 
examples where violations may be of a minimal nature may include 
slowing down for speed restrictions that are located within difficult 
train-handling territory, flat switching-kicking cars, snow plow 
operations, and certain industrial switching operations requiring short 
bursts of speed to spot cars on steep inclines.
    In contrast, a violation could not be considered of a minimal 
nature if an engineer fundamentally violated the operating rules. For 
example, using the same consist and location in the previous example, 
if the entire train were operated through the speed restriction at 10 
miles per hour over the prescribed speed, then the event could not be 
considered of a minimal nature. In situations where the rule has been 
fundamentally violated, a railroad does not have the discretion to 
excuse this violation.
    Second, for paragraph (i)(2) to apply, it will also be required 
that sufficient evidence be presented to prove that the violation did 
not have either a direct or potential effect on rail safety. This 
defense will certainly not apply to a violation that actually caused a 
collision or injury because that would be a direct effect on rail 
safety. It will also not apply to a violation that, given the factual 
circumstances surrounding the violation, could have resulted in a 
collision or injury because that would be a potential effect on rail 
safety. For instance, an example used to illustrate the term ``minimal 
nature'' described a situation involving a train that had the first two 
locomotives enter a speed restriction too fast, yet the balance of the 
train was in compliance with the speed restriction; since the train in 
this example would not be endangering other trains because it had the 
authority to travel on that track at a particular speed, there would be 
no direct or potential effect on rail safety caused by this violation.
    In contrast, if a train fails to stop short of a banner, which is 
acting as a signal requiring a complete stop before passing it, during 
an efficiency test, that striking of a banner may have no direct effect 
on rail safety but it has a potential effect since a banner would be 
simulating a railroad car or another train. Meanwhile, there is a 
difference between passing a banner versus making an incidental 
touching of a banner. If a locomotive or train barely touches a banner 
so that the locomotive or train does not run over the banner, break the 
banner, or cause the banner to fall down, this incidental touching 
could be considered a minimal nature violation that does not have any 
direct or potential effect on rail safety. This is because such an 
incidental touching is not likely to cause damage to equipment or 
injuries to crew members even if the banner was another train. Although 
it is arguable that if the banner were a person the touching could be 
fatal, FRA is willing to allow railroads the discretion to consider 
this type of scenario in the context of excusing a violation pursuant 
to paragraph (i)(2); of course, if the banner was in fact a person in 
the manner described in the example, the railroad would not have the 
discretion to apply paragraph (i)(2).
    Similarly, if a train has received oral and written authority to 
occupy a segment of main track, the oral authority refers to the 
correct train number, and the oral authority refers to the wrong 
locomotive because someone transposed the numbers, the engineer's 
violation in not catching this error before entering the track without 
proper authority could be considered of a minimal nature with no direct 
or potential effect on rail safety. Since the railroad would be aware 
of the whereabouts of this train, the additional risk to safety of this 
paperwork mistake may practically be zero. Under the same scenario, 
where there are no other trains or equipment operating within the 
designated limits, there may be no potential effect on rail safety as 
well as no direct effect.
    FRA also notes that in paragraphs (i)(1) and (i)(2) of the new 
rule, a defense must be supported by sufficient evidence, not 
substantial evidence as was mistakenly proposed. As FRA discussed in 
the preamble topic ``Improving the Dispute Resolution Procedures,'' the 
rule does not contain a standard of proof for the railroad hearing and 
FRA did not intend to create any such standard. Although silent on the 
standard of proof, FRA specifically requires that the railroad 
determine, on the record of the hearing,

[[Page 60983]]

whether the person no longer meets the qualification requirements of 
this part and state explicitly the basis for the conclusion reached. 
Sec. 240.307(b)(4). FRA wants to ensure that the railroad hearings are 
fair, and allow for consolidation with applicable collective bargaining 
agreements, without the rigidity of instituting a standard of proof. 
Furthermore, substantial evidence is a standard of review that would 
not be appropriate given the fact finding role of such a hearing, as 
opposed to a reviewing role.
    Paragraph (j) will require that railroads keep records of those 
violations in which they must not or elect not to revoke the person's 
certificate pursuant to paragraph (i). The keeping of these records is 
substantially less burdensome than the current rule since the current 
rule requires this type of recordkeeping plus the opportunity for a 
hearing under Sec. 240.307. Paragraph (j)(1) will require that 
railroads keep records even when they decide not to suspend a person's 
certificate due to a determination pursuant to paragraph (i). Paragraph 
(j)(2) will require that railroads keep records even when they make 
their determination prior to the convening of the hearing held pursuant 
to Sec. 240.307.
    Paragraph (k) will address concerns that problems could arise if 
FRA disagrees with a railroad's decision not to suspend a locomotive 
engineer's certificate for an alleged misconduct event pursuant to 
Sec. 240.117(e). The idea behind new paragraph (i) is that as long as 
the railroads make good faith determinations after reasonable 
inquiries, they should have a defense to civil enforcement for making 
what the agency believes to be an incorrect determination. Since 
paragraph (i) will both require and permit railroads to make some 
difficult decisions based on factual circumstances on a case-by-case 
basis, FRA accepts RSAC's recommendation that it is fair not to 
penalize railroads for making what the agency in hindsight may decide 
to be the wrong decision. However, railroads are put on notice that if 
they do not conduct a reasonable inquiry or act in good faith, they are 
subject to civil penalty enforcement. In addition, even if a railroad 
does not take what FRA considers appropriate revocation action, FRA can 
still take enforcement action against a person responsible for the non-
compliance by assessing a civil penalty pursuant to Sec. 240.305 or 
issuing an order prohibiting an individual from performing safety-
sensitive functions in the rail industry for a specified period 
pursuant to 49 CFR part 209, subpart D.
Section 240.309--Railroad Oversight Responsibilities
    This recordkeeping section will be modified to better reflect the 
types of poor safety conduct identified in Sec. 240.117(e). It is 
identical to the proposal except for paragraph (e)(3). FRA has made 
conforming changes to paragraph (e)(3) as necessary considering the 
Passenger Equipment Safety Standards final rule that was published at 
49 CFR Part 238. See 64 FR 25540 (May 12,1999). Paragraph (e)(3) was 
also modified to account for whatever changes, if any, are ever made to 
part 232. See 63 FR 48294 (Sept. 9, 1998)(proposing changes to part 
232).
    Paragraphs (e)(6), (7) and (8) currently concern train handling 
issues (i.e., improper use of dynamic brakes, automatic brakes and a 
locomotive's independent brake) that are no longer considered 
operational misconduct events and therefore FRA should not need to ask 
railroads to report this information for study and evaluation. The new 
paragraphs (e)(6), (7) and (8) mirror those operational misconduct 
events that were mistakenly left off this list of conduct that needs to 
be reported for study and evaluation purposes.
    New paragraph (h) would correct a clerical error which had 
mistakenly created two paragraphs labeled as (e). No comments were 
received in response to this section in the NPRM.

Subpart E--Dispute Resolution Procedures

Section 240.403--Petition Requirements
    The change to paragraph (d) which shortens the amount of time an 
aggrieved person can take to file a petition with the LERB from 180 
days to 120 days is identical to the proposal. No comments were 
received in response to the proposed section. The main reason for this 
change is the broad concept that the entire certification review 
process should be as short as possible because timely decisions are 
more meaningful. Another reason for shortening this filing period is 
that the RSAC members, many of whom have had significant exposure to 
the LERB petition process, found this time period unnecessarily long in 
order to complete a petition. These industry leaders recognize that the 
evidence typically needed for the LERB's review is readily available at 
the time the railroad makes its revocation decision. Petitioners need 
to send the LERB this evidence and add an explanation as to why they 
believe the railroad's decision was improper. Since this period of time 
was so great, some RSAC members reported that it only encouraged 
aggrieved persons to procrastinate before deciding whether to file a 
petition.
    While FRA is acting to shorten the time available to file a 
petition, in consideration of recent circumstances experienced in 
administering the dispute resolution process, FRA is no longer 
comfortable with the Locomotive Engineer Review Board's lack of 
authority to accept late petitions for cause shown. Thus, FRA has 
modified paragraph (d) and added paragraphs (d)(1) and (2) to accept 
late filings under certain limited circumstances that are modeled 
after, to the extent possible, rule 6(b) of the Federal Rules of Civil 
Procedure regarding enlargement of time. Through the promulgation of 
paragraph (d)(1), FRA intends to give the Board wide discretion to 
grant a request for additional time that is made prior to the 
expiration of the period originally prescribed. As the Board may 
exercise its discretion under this rule only for ``cause shown,'' a 
party must demonstrate some justification for the Board to accept the 
late petition. Similarly, if the deadline in (d) is completely missed, 
the movant, under paragraph (d)(2), must allege the facts constituting 
``excusable neglect'' and the mere assertion of excusable neglect 
unsupported by facts is insufficient. Excusable neglect requires a 
demonstration of good faith on the part of the party seeking an 
extension of time and some reasonable basis for noncompliance within 
the time specified in the rules. Absent a showing along these lines, 
relief will be denied. In addition, paragraph (e) was added to explain 
that a decision of untimeliness may be appealed directly to the 
Administrator. Ordinarily, an appeal to the Administrator may occur 
only after a case has been heard by FRA's hearing officer.
Section 240.405--Processing Qualification Review Petitions
    The changes to this section are identical to the proposal with one 
exception and no comments were received in response to this proposed 
section. Paragraph (a) is modified to include a public pronouncement of 
FRA's goal to issue decisions within 180 days from the date FRA has 
received all the information from the parties. FRA's ability to achieve 
this goal is dependent on the number of petitions filed and agency 
resources available to handle those petitions in any given period. The 
modification to paragraph (c) lengthens the amount of time the railroad 
will be given to respond to a petition from 30 days to 60 days because 
FRA accepts RSAC's recommendation that a 30-day time period is unfairly 
short; FRA

[[Page 60984]]

expects that when possible, railroads will continue to file responses 
as soon as possible rather than wait until the sixtieth day to file. A 
further modification was made to paragraph (c) based on FRA's recent 
experiences administering the dispute resolution process; thus, FRA has 
decided to allow the Board to consider late filings to the extent it is 
practicable to do so. Also, paragraph (d)(3) is added so that railroads 
which submit information in response to a petition will be required to 
file such submission in triplicate; without this requirement, the 
burden placed on the Docket Clerk could cause undesirable delay in this 
process.
    It is important to note that FRA is not amending paragraph (f). The 
LERB is still only determining whether the railroad's decision was 
based on an incorrect determination. If a railroad conducted hearing is 
so unfair that it causes a petitioner substantial harm, the LERB may 
grant the petition; however, the LERB's review is not intended to 
correct all procedural wrongs committed by the railroad.
Section 240.411--Appeals
    Paragraph (e) is amended as proposed to give the Administrator the 
power to remand or vacate. No comments were received in response to 
this proposed section. The phrase ``except where the terms of the 
Administrator's decision (for example, remanding a case to the 
presiding officer) show that the parties' administrative remedies have 
not been exhausted'' is included as part of the regulation so that 
parties would understand that a remand, or other intermediate decision, 
would not constitute final agency action. The inclusion of this phrase 
is made in deference to those parties that are not represented by an 
attorney or who might otherwise be confused as to whether any action 
taken by the Administrator should be considered final agency action.
    Likewise, recent administration of the dispute resolution 
proceedings has convinced FRA to allow the Locomotive Engineer Review 
Board to accept late filings for cause shown under certain limited 
circumstances. See Sec. 240.403(d). Given the limited authority of the 
FRA hearing officer, it appears appropriate for an aggrieved party to a 
Board decision, which denies a petition as untimely, to have the right 
to appeal that Board decision directly to the Administrator. See 
Sec. 240.403(e). Paragraph (f) was added to adjust for that additional 
type of Administrator review.
Appendix A to Part 240--Schedule of Civil Penalties
    No comments were received in response to this appendix. FRA is 
changing footnote number 1 to this schedule of civil penalties so that 
it will reflect recent changes in the law. The Federal Civil Penalties 
Inflation Adjustment Act of 1990, Public Law 101-410 Stat. 890, 28 
U.S.C. 2461 note, as amended by the Debt Collection Improvement Act of 
1996 Public Law 104-134, April 26, 1996 required agencies to adjust for 
inflation the maximum civil monetary penalties within the agencies 
jurisdiction. The resulting $11,000 and $22,000 maximum penalties were 
determined by applying the criteria set forth in sections 4 and 5 of 
the statute to the maximum penalties otherwise provided for in the 
Federal railroad safety laws.
    As promised in the proposal's analysis, FRA has considered the 
modifications to the rule in deciding where revisions of the penalty 
schedule are necessary. Although penalty schedules are statements of 
policy and FRA was not obligated to provide an opportunity for public 
comment, FRA invited comments on this issue and received none.
Appendix F to Part 240--Medical Standards Guidelines
    The purpose of this appendix is to provide greater guidance on the 
procedures that should be employed in administering the vision and 
hearing requirements of Secs. 240.121 and 240.207 of this part. The 
main issue addressed in this appendix is the addition of acceptable 
test methods for determining whether a person has the ability to 
recognize and distinguish among the colors used as signals in the 
railroad industry. Two issues were raised by one commenter to the NPRM 
regarding the appropriateness of some of the guidance proposed.
    For consistency and clarification, the commenter asked whether 
Appendix F and Sec. 240.121(e) should be revised to reflect that 
further testing may be conducted upon request if the railroad has not 
provided for such further testing without such a request. Since this 
issue was discussed in great detail in the section-by-section analysis 
for Sec. 240.121(e), FRA requests that interested persons consult that 
earlier analysis.
    The second of these two issues involves the appropriateness of 
using chromatic lenses when testing a person's color vision. The 
commenter recommended the deletion of the sentence ``[c]hromatic lenses 
may be worn in accordance with any subsequent testing pursuant to 
Sec. 240.121(c) if permitted by the medical examiner and the 
railroad.'' RSAC and the commenter support banning the wearing of 
chromatic lenses during an initial test on the grounds that FRA has 
acquired a general body of knowledge that chromatic lenses are a safety 
issue. Meanwhile, the commenter requested that the rule be silent on 
the issue of whether chromatic lenses are acceptable for subsequent 
testing since such a statement from FRA might be considered an 
endorsement of chromatic lenses in other legal contexts. RSAC 
recommended that this sentence be deleted and that FRA remain silent on 
the acceptability of chromatic lenses in subsequent testing because it 
is likely that the judicial system will end up deciding such issues on 
a case-by-case basis regardless of FRA's pronouncements. After further 
consideration, FRA agrees with RSAC's recommendations.

Regulatory Impact

E.O. 12866 and DOT Regulatory Policies and Procedures

    This final rule has been evaluated in accordance with existing 
policies and procedures and is considered to be non-significant under 
both Executive Order 12866 and DOT policies and procedures (44 FR 
11034; Feb. 26, 1979). Nevertheless, FRA has prepared and placed in the 
docket a regulatory evaluation of the final rule. This evaluation 
estimates the costs and other consequences of the rule as well as its 
anticipated economic and safety benefits. It may be inspected and 
photocopied during normal business hours by visiting the FRA Docket 
Clerk at the Office of Chief Counsel, FRA, Seventh Floor, 1120 Vermont 
Avenue, NW, in Washington, DC. Photocopies may also be obtained by 
submitting a written request by mail to the FRA Docket Clerk at the 
Office of Chief Counsel, Federal Railroad Administration, 1120 Vermont 
Avenue, NW, Mail Stop 10, Washington, DC 20590.
    FRA expects that overall the rule will save the rail industry 
approximately $920,000 Net Present Value (NPV) over the next twenty-
years. The NPV of the total estimated twenty-year costs associated with 
the rule is $1,049,964. The NPV of the total twenty-year monetary 
savings (non-safety benefits) expected to accrue to the industry from 
the rule is $1,970,999. For some rail operators, the total costs 
incurred may exceed the total costs saved. For others,

[[Page 60985]]

the cost savings will outweigh the costs incurred.
    Costs/savings, and benefits/safety impacts associated with 
particular requirements of the final rule were analyzed separately. FRA 
believes it is reasonable to expect that several injuries and 
fatalities will be avoided as a result of implementing some of the rule 
modifications. FRA also believes that the safety of rail operations 
will not be compromised as a result of implementing the cost savings 
modifications.
    The following table presents estimated twenty-year monetary impacts 
associated with the rule modifications.

------------------------------------------------------------------------
               Description                Costs incurred    Costs saved
------------------------------------------------------------------------
Supervisors of Loco. Engineers:
    Qualifications......................      $1,012,211  ..............
    First Designated Supervisor.........  ..............         $ 8,422
    Extending Culpability...............          17,798  ..............
Revocable Event Criteria (Speed)........  ..............         232,486
Ineligibility Schedule..................  ..............         574,746
Vision and Hearing Acuity:
    Right to Further Medical Examination          14,185  ..............
    Distribution of Rule to Medical                4,000  ..............
     Examiners..........................
New Railroads/New Territories...........  ..............          16,844
Pilots for Locomotive Engineers.........  ..............       1,047,282
Written Notice of Revocation............           1,769  ..............
Added Railroad Discretion...............  ..............          88,481
Single Certificate......................  ..............           2,737
                                         -------------------------------
    Total (rounded).....................       1,049,964       1,970,999
    Net Savings (rounded)...............  ..............         921,035
------------------------------------------------------------------------

    Note that the NPV of the total cost savings to individual 
locomotive engineers that commit second and third offenses within a 
three-year period is expected to total approximately $2.5 million over 
the next twenty years. However, because one engineer's lost employment 
opportunity would become another locomotive engineer's opportunity, 
this information is not included as a savings and is presented for 
information purposes only.

Regulatory Flexibility Act

    The Regulatory Flexibility Act of 1980 (5 U.S.C. 601 et seq.) 
requires an assessment of the impacts of rules on small entities. FRA 
has conducted a regulatory flexibility assessment of this final rule's 
impact on small entities, and the assessment has been placed in the 
public docket for this rulemaking. The regulatory flexibility 
assessment concludes that the final rule will have economic impact on 
small entities. However, FRA certifies that the final rule will not 
have a ``significant'' impact on a substantial number of small 
entities.
    ``Small entity,'' is defined in 5 U.S.C. 601 as a small business 
concern that is independently owned and operated, and is not dominant 
in its field of operation. The United States Small Business 
Administration (SBA) stipulates in its ``Size Standards'' that the 
largest a ``for-profit'' railroad 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'' (Table of Size Standards, U.S. Small Business 
Administration, January 31, 1996, 13 CFR Part 121). This final rule 
will affect small railroads as defined by the SBA. The statutory 
definition of ``small government jurisdictions'' is a governmental 
entity that serves a population center of 50,000 or less. The transit 
authorities subject to the requirements of this rule do not serve 
communities with population levels of 50,000 or less.
    Because FRA does not have information regarding the number of 
people employed by railroads, it cannot determine exactly how many 
small railroads, by SBA definition, are in operation in the United 
States. However, FRA maintains information regarding annual employee 
hours for railroads and has used the delineation of less than 400,000 
annual employee hours to represent small entities in other regulatory 
flexibility assessments. This grouping captures most small entities 
that would be defined by the SBA as small businesses. FRA has also used 
this grouping in the past to alleviate Federal reporting requirements.
    About 645 of the approximately 700 railroads in the United States 
are considered small businesses by FRA. The final rule applies to 
railroads that operate locomotives on standard gage track that is part 
of the general railroad system of transportation. Approximately 25 
tourist and museum railroads that are small businesses do not operate 
on the general railroad system. Therefore, this rule will affect 
approximately 620 small entities. Small railroads that will be affected 
by the final rule provide less than 10 percent of the industry's 
employment, own about 10 percent of the track, and operate less than 10 
percent of the ton-miles.
    The standards contained in the final rule were generally developed 
in consensus with the representatives from the American Shortline and 
Regional Railroad Association (ASLRRA). Two representatives from the 
ASLRRA are members of the Working Group established by the Federal 
Railroad Administrator's Rail Safety Advisory Committee (RSAC) to work 
on this rulemaking. These members represented the interests of small 
freight railroads and some excursion railroads operating in the United 
States during this rulemaking process. A representative of the Tourist 
Railway Association, Incorporated is a member of the RSAC which is 
responsible for approving the standards developed by the Working Group. 
Small rail operators had an opportunity to comment on the NPRM.
    The impacts of the final rule on small entities are not expected to 
be substantial. FRA has identified four specific requirements that will 
result in additional regulatory burden for small railroads. The 
extension of culpability to DSLEs, locomotive engineers' right to 
receive further medical evaluation following a vision and hearing 
acuity test, distribution of the final rule to medical officers, and 
written notification of suspension of certification will all affect 
small railroads. The level of costs associated with these standards 
should vary in proportion to the size of each railroad. Railroads with 
fewer locomotive

[[Page 60986]]

engineers should experience lower costs. These standards do not offer 
opportunities for larger railroads to experience economies of scale.
    Also note that railroads will be relieved of some of the regulatory 
burdens associated with current Federal regulations. Small railroads 
should benefit proportionally from the modifications to the 
ineligibility schedule and the speed violation criteria. These 
modifications will allow locomotive engineers committing acts that 
would result in revocation of certification under the current rule to 
remain or more quickly return to their chosen form of employment. Small 
railroads will also benefit from the flexibilities allowed for the 
selection of the first DSLE and the increased railroad discretion with 
regard to revocation of certification.
    Small railroads are actually expected to benefit relatively more 
than their larger counterparts from three particular requirements. The 
criteria for requiring pilots for locomotive engineers not qualified on 
the physical characteristics of a territory grant exemptions based on 
factors favorable to small railroads such as operating speed and type 
of terrain. The allowance for a single certificate for certified 
locomotive engineers qualified to operate on more than one railroad 
will have particular applicability to small railroads owned by holding 
companies. Finally, the joint operations requirement for the shared 
responsibility of determining which locomotive engineers are qualified 
to operate over the host railroad's territory will provide small 
railroads that give other railroads trackage rights over all or part of 
their territory with opportunities for cost savings.
    FRA expects that overall the economic benefits that will accrue to 
small railroads if the requirements of this rule are implemented will 
exceed the regulatory costs. FRA is also confident that the costs 
associated with particular requirements will be justified by the safety 
benefits achieved.
    The Working Group considered proposals made by the ASLRRA to 
provide small railroads with economic relief from some of the burdens 
imposed by the existing and new federal regulations addressing 
locomotive engineer qualifications and certification. Of particular 
interest to the ASLRRA was the certification interval. The ASLRRA 
sought to extend certification, National Driver Register (NDR) check, 
and hearing and vision acuity test intervals from 3 to 5 years.
    Initially, the ASLRRA proposed that recertification of locomotive 
engineers occur every 5 years, versus the current 3 year interval. The 
Working Group considered this proposal. However, the proposal would 
decrease the level of confidence that railroads have regarding the 
level of safety with which trains are operated. The recertification 
process provides railroads with the opportunity to ascertain that 
locomotive engineers can continue to operate trains in a safe manner. 
Unsafe locomotive engineer train operating practices are detected 
during the tests administered as part of the recertification process 
and can be corrected through appropriate training. Because the timing 
of training of locomotive engineers coincides with their 
recertification, lengthening the recertification interval could 
translate into delaying needed refresher training sessions. This would 
decrease the level of safety with which trains are operated. This 
extension would advance the economic interests of small entities but, 
would not advance the interests of rail safety.
    Taking into account the safety concerns of the Group, the ASLRRA 
proposed that recertification remain at a 3 year interval, but that the 
NDR check and the hearing and vision tests be performed at 5 year 
intervals (instead of the current 3 year interval) for Class III 
railroads that do not operate passenger trains, do not operate in 
territory where passengers trains are operated, do not operate in 
territory with a grade of two percent or greater over a distance of two 
continuous miles or, do not operate in signal territory, and, within 
the past year, have not transported any hazardous materials in hazard 
classes 1 (explosives), 2.3 (poisonous gases) or 7 (radioactive 
materials). The rationale for allowing longer intervals between hearing 
and vision acuity tests for locomotive engineers in smaller operations 
is that on-site management would be more likely to notice changes in a 
person's medical condition. By excluding territories with passenger 
rail traffic, steep grades, signals, and railroads that haul hazardous 
materials from the extension, the rule limits its impacts to situations 
with the lowest level of exposure to accidents and the lowest severity 
of accident.
    Extending the interval between NDR checks, however, raises safety 
concerns. This rule requires implementation of an honor system through 
which locomotive engineers self report to the railroads driving 
incidents involving reckless behavior on their part. The NDR check for 
motor vehicle drivers will confirm whether there were any incidents of 
reckless behavior while driving a highway vehicle. This information 
provides employers insight into whether a person can be trusted with 
the operation of a locomotive. The potential, and in certain cases even 
the incentive, exists for a locomotive engineer who operates a car 
under the influence of alcohol or drugs to not self-report and protect 
their certification and job. Increasing the interval between NDR checks 
would actually increase the amount of time an engineer could continue 
to operate trains without the railroad being aware of reckless motor 
vehicle driving incidents. This, in turn, would increase the risk of an 
accident occurring due to reckless behavior while operating a 
locomotive or train.
    In an attempt to expedite the regulatory process associated with 
this rulemaking the ASLRRA withdrew their proposal for extending 
intervals from this particular rulemaking activity prior to publication 
of the NPRM. Following publication of the NPRM, the ASLRRA urged FRA to 
reconsider a model program jointly developed by FRA and the industry. 
This model would accommodate a longer certification cycle for Class III 
railroads by increasing testing and training. The characteristics that 
determine the level of train operating difficulty and other safety 
concerns of the Class III railroads in the country vary greatly. This 
proposal seems over-inclusive since the safety concerns of some Class 
III railroads are much greater than others. The proposal also seems 
under-inclusive since some Class I and Class II railroads could argue 
that their operations pose no greater safety risk than many Class III 
railroads. The proposal could arbitrarily allow railroads with a 
certain level of operating revenues to gain a benefit without 
considering the safety implications determined by the type of 
operation.
    According to the ASLRRA, Class III railroads would save 
approximately $10 million over twenty years if the certification period 
was extended by 2 years. FRA believes that the safety risks associated 
with such an extension would be significant. The ASLRRA proposal 
increases the likelihood of a safety loss if the medical examinations 
are required less frequently. In addition to the dubious equity of the 
proposal and its possible safety degradation, FRA is concerned about 
how this 5-year approach would be handled by a major railroad that 
might need to certify a small railroad's engineers for operations on 
the major railroad. For all these reasons, the RSAC failed to achieve 
consensus recommendations and FRA has decided not to change the rule to 
allow Class III railroads to certify their locomotive engineers every 5 
years.
    The ASLRRA also commented that the administrative burden that was

[[Page 60987]]

imposed by the original rule and was perpetuated in the proposed 
revisions must be considered within the scope of the Small Business 
Regulatory Enforcement Fairness Act and the paperwork reduction act. 
FRA did consider this burden with resulting safety benefits and 
determined that the administrative burden is justified by the safer 
railroad operating environment.
    In response to the NPRM, a Class III railroad recommended that 
Class III Switching and Terminal Carriers be excluded from the 
requirement that ``dual purpose vehicles'' must be operated by a 
certified locomotive engineer in those situations where the ``vehicle'' 
is being used to move disabled equipment for clearing and repair of 
track. Since factors such as traffic density and closeness to switches 
and signals will affect the safety risk of an operation, FRA believes 
that a general exclusion would not promote safety.

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. 
The sections that contain the new information collection requirements 
and the estimated time to fulfill each requirement are as follows:

--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                                                                                Total
       CFR section/subject            Respondent  universe     Total annual  responses       Average time per         Total annual burden       annual
                                                                                                 response                    hours           burden cost
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                    NEW REQUIREMENTS
--------------------------------------------------------------------------------------------------------------------------------------------------------
240.105--Selection Criteria For    10 railroads.............  10 reports...............  1 hour..................  10 hours................         $380
 Design. Supervisors of
 Locomotive Engineers.
    --Qualification--DSLEs--phys.  675 railroads............  675 plans................  6 hours.................  4,050 hours.............      159,300
     characteristics.
    --DSLE phys. characteristics-- 8 railroads..............  4 rev. plans.............  3 hours.................  12 hours................          472
     plan rev.
240.111--Indiv. Duty to Furnish    675 railroads............  400 calls................  10 min..................  67 hours................        2,412
 Data on Prior Safety Conduct as
 M.V. Operator.
240.117--Criteria For              675 railroads............  3 viol./appeal...........  12 hours................  36 hours................        1,368
 Consideration of Operating Rules
 Compliance Data.
240.121--Criteria--Hearing/Vision  675 railroads............  675 copies...............  15 min..................  169 hours...............        5,239
 Acuity--First Year.
    --Criteria--Hearing/Vision--   10 new railroads.........  10 copies................  15 min..................  3 hours.................           93
     Subseq. Yrs.
    --Medical Examiner             675 railroads............  17 reports...............  1 hour..................  17 hours................          527
     Consultation w DSLE.
    --Notification--Hearing/       675 railroads............  10 notifications.........  15 minutes..............  3 hours.................          108
     Vision Change.
240.229--Reqmnts--Joint Oper.      321 railroads............  184 calls................  5 min...................  15 hours................          540
 Terr.
240.309--Railroad Oversight Resp.  43 railroads.............  10 annotation............  15 min..................  3 hours.................          114
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                  CURRENT REQUIREMENTS
--------------------------------------------------------------------------------------------------------------------------------------------------------
240.9--Waivers...................  675 railroads............  5 waivers................  1 hour..................  5 hours.................          165
    --Certification Program......  10 new railroads.........  10 programs..............  200 hrs/40 hrs..........  1,840 hours.............       57,040
240.11--Penalties For Non-         675 railroads............  2 falsification..........  10 min..................  20 min..................           12
 Compliance.
240.111--Request--State Driving    13,333 candidates........  13,333 requests..........  15 min..................  3,333 hours.............      119,988
 Lic. Data.
    --Railroad notification--NDR   675 railroads............  267 requests.............  30 min..................  134 hours...............        4,489
     match.
    --Written Response from        675 railroads............  267 comment..............  15 min..................  67 hours................        2,412
     Candidate.
    --Notice to Railroad--No       40,000 candidates........  4 letters................  15 min..................  1 hour..................           36
     License.
240.113--Notice to Railroad        13,333 candidates........  267 requests/267           15 min/30 min...........  200 hours...............        6,535
 Furnishing Data on Prior Safety                               responses.
 Conduct.
240.115--Candidate's Review +      13,333 candidates........  133 responses............  30 min..................  67 hours................        2,412
 Written Comments--Prior Safety
 Conduct Data.
240.123--Criteria For Init./Cont.  30 railroads.............  30 amend.................  1 hour..................  30 hours................        1,680
 Educ.
240.201/221/223/301--List of       675 railroads............  675 updates..............  15 minutes..............  169 hours...............        5,239
 DSLEs.
    --List of Design. Qual. Loc.   675 railroads............  675 updates..............  15 minutes..............  169 hours...............        5,239
     Engineers.
    --Locomotive Engineers         40,000 candidates........  13,333 cert..............  5 minutes...............  1,111 hours.............      $34,441
     Certificate.
    --List--Des. Persons to sign   675 railroads............  20 lists.................  15 minutes..............  5 hours.................          165
     L.E. Cert..
240.205--Data to EAP Counselor...  675 railroads............  267 records..............  5 minutes...............  22 hours................          792
240.207--Medical Certificate.....  40,000 candidates........  13,333 cert..............  70 minutes..............  15,555 hours............      482,205
240.209/213--Written Test........  40,000 candidates........  13,333 tests.............  2 hours.................  26,666 hours............      826,646
240.211/213--Performance Test....  40,000 candidates........  13,333 tests.............  2 hours.................  26,666 hours............    1,013,308
240.215--Recordkeeping--Cert.      675 railroads............  13,333 record............  10 minutes..............  2,222 hours.............       68,882
 Loc. Eng..
240.219--Denial of Certification.  13,333 candidates........  133 letters/133 responses  1 hr./1hr...............  266 hours...............        8,911
    --Written Basis For Denial...  675 railroads............  133 notific..............  1 hour..................  133 hours...............        4,123
240.227--Canadian Cert. Data.....  Canadian RRs.............  200 certific.............  15 minutes..............  50 hours................        1,550
240.303--Annual Op. Monit. Obs...  40,000 candidates........  40,000 tests.............  2 hours.................  80,000 hours............    3,040,000
    --Annual Operational           40,000 candidates........  40,000 tests.............  1 hour..................  40,000 hours............    1,520,000
     Observation.
240.305--Engineer's Non-Qual.      40,000 candidates........  400 notific..............  5 minutes...............  33 hours................        1,188
 Notific.

[[Page 60988]]

 
    --Engineer's Notice--Loss of   40,000 candidates........  40 letters...............  30 minutes..............  20 hours................          720
     Qualification.
240.307--Notice to Engineer--      675 railroads............  650 notific. letters.....  1 hour..................  650 hours...............       20,150
 Disqual..
240.309--Railroad Oversight Resp.  43 railroads.............  43 reviews...............  80 hours................  3,440 hours.............      192,640
240.401--Engineer's Appeal to FRA  40,000 Loco. Eng.........  100 petitions............  12 hours................  1,200 hours.............       43,200
240.405--Railroad's Response to    675 railroads............  100 responses............  6 hours.................  600 hours...............       22,800
 Appeal.
240.407--Request For a Hearing...  675 railroads/40,000       15 hearing requests......  30 minutes..............  8 hours.................          288
                                    Loco. Eng..
240.411--Appeals.................  675......................  2 appeal.................  2 hours.................  4 hours.................          144
--------------------------------------------------------------------------------------------------------------------------------------------------------

    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 Robert Brogan at 202-493-
6292.
    OMB is required to make a decision concerning the collection of 
information requirements contained in this final rule between 30 and 60 
days after receipt of this document.
    FRA cannot 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 this rule. The valid 
OMB control number for this information collection is 2130-0533.

Environmental Impact

    FRA has evaluated this regulation 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 regulation 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. 
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 
regulation is not a major Federal action significantly effecting the 
quality of the human environment.

Federalism Implications

    FRA believes it is in compliance with Executive Order 13132. This 
rule will not have a substantial effect 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. This regulation will not have federalism implications that 
impose substantial direct compliance costs on State and local 
governments. Meanwhile, State officials were consulted to a practicable 
extent through their participation in the RSAC, a federal advisory 
committee discussed earlier in the preamble.
    The State of Wisconsin's Office of the Commissioner of Railroads 
was the only State or local office to comment on the NPRM. The State of 
Wisconsin requested that FRA clarify whether and to what extent Part 
240 applies to the qualifications for train conductors. FRA addressed 
this comment in the preamble under the headline ``preemption.'' FRA 
brought the comment to the attention of the Working Group, but RSAC was 
unable to achieve a consensus recommendation. FRA is responding to the 
State of Wisconsin directly, rather than publishing a response here, 
because the request for legal guidance is not based on any modification 
suggested in the NPRM. A copy of FRA's response letter will be placed 
in the docket.

List of Subjects in 49 CFR Part 240

    Penalties, Railroad employees, Railroad safety, Reporting and 
recordkeeping requirements.

    Therefore, in consideration of the foregoing, FRA amends part 240, 
Title 49, Code of Federal Regulations as follows::

PART 240--[AMENDED]

    1. The authority citation for Part 240 is revised to read as 
follows:

    Authority: 49 U.S.C. 20103, 20107, 20135; 49 CFR 1.49.

    2. Section 240.1 is amended by revising paragraph (b) to read as 
follows:


Sec. 240.1  Purpose and scope.

* * * * *
    (b) This part prescribes minimum Federal safety standards for the 
eligibility, training, testing, certification and monitoring of all 
locomotive engineers to whom it applies. This part does not restrict a 
railroad from adopting and enforcing additional or more stringent 
requirements not inconsistent with this part.
* * * * *
    3. Section 240.3 is revised to read as follows:


Sec. 240.3  Application and responsibility for compliance.

    (a) Except as provided in paragraph (b) of this section, this part 
applies to all railroads.
    (b) This part does not apply to--
    (1) A railroad that operates only on track inside an installation 
that is not part of the general railroad system of transportation; or
    (2) Rapid transit operations in an urban area that are not 
connected to the general railroad system of transportation.
    (c) Although the duties imposed by this part are generally stated 
in terms of the duty of a railroad, each person, including a contractor 
for a railroad, who performs any function covered by this part must 
perform that function in accordance with this part.
    4. Section 240.5 is amended by revising the title and paragraphs 
(a), (b) and (e) and adding paragraph (f) to read as follows:


Sec. 240.5  Preemptive effect and construction.

    (a) Under 49 U.S.C. 20106, issuance of the regulations in this part 
preempts any State law, regulation, or order covering the same subject 
matter, except an additional or more stringent law, regulation, or 
order that is necessary to eliminate or reduce an essentially local

[[Page 60989]]

safety hazard; is not incompatible with a law, regulation, or order of 
the United States Government; and does not impose an unreasonable 
burden on interstate commerce.
    (b) FRA does not intend by issuance of these regulations to preempt 
provisions of State criminal law that impose sanctions for reckless 
conduct that leads to actual loss of life, injury, or damage to 
property, whether such provisions apply specifically to railroad 
employees or generally to the public at large.
* * * * *
    (e) Nothing in this part shall be construed to create or prohibit 
an eligibility or entitlement to employment in other service for the 
railroad as a result of denial, suspension, or revocation of 
certification under this part.
    (f) Nothing in this part shall be deemed to abridge any additional 
procedural rights or remedies not inconsistent with this part that are 
available to the employee under a collective bargaining agreement, the 
Railway Labor Act, or (with respect to employment at will) at common 
law with respect to removal from service or other adverse action taken 
as a consequence of this part.
    5. Section 240.7 is amended by revising the definition of 
Administrator, Locomotive and Railroad and by adding definitions of 
Dual purpose vehicle, FRA, Person, Qualified, Railroad rolling stock, 
Roadway maintenance equipment, Service, and Specialized roadway 
maintenance equipment in alphabetical order as follows:
* * * * *
    Administrator means the Administrator of the Federal Railroad 
Administration or the Administrator's delegate.
* * * * *
    Dual purpose vehicle means a piece of on-track equipment that is 
capable of moving railroad rolling stock and may also function as 
roadway maintenance equipment.
* * * * *
    FRA means the Federal Railroad Administration.
* * * * *
    Locomotive means a piece of on-track equipment (other than 
specialized roadway maintenance equipment or a dual purpose vehicle 
operating in accordance with Sec. 240.104(a)(2):
    (1) With one or more propelling motors designed for moving other 
equipment;
    (2) With one or more propelling motors designed to carry freight or 
passenger traffic or both; or
    (3) Without propelling motors but with one or more control stands.
* * * * *
    Person means an entity of any type covered under 1 U.S.C. 1, 
including but not limited to the following: a railroad; a manager, 
supervisor, official, or other employee or agent of a railroad; any 
owner, manufacturer, lessor, or lessee of railroad equipment, track, or 
facilities; any independent contractor providing goods or services to a 
railroad; and any employee of such owner, manufacturer, lessor, lessee, 
or independent contractor.
    Qualified means a person who has passed all appropriate training 
and testing programs required by the railroad and this part and who, 
therefore, has actual knowledge or may reasonably be expected to have 
knowledge of the subject on which the person is qualified.
    Railroad means any form of nonhighway ground transportation that 
runs on rails or electromagnetic guideways and any entity providing 
such transportation, including
    (1) Commuter or other short-haul railroad passenger service in a 
metropolitan or suburban area and commuter railroad service that was 
operated by the Consolidated Rail Corporation on January 1, 1979; and
    (2) High speed ground transportation systems that connect 
metropolitan areas, without regard to whether those systems use new 
technologies not associated with traditional railroads; but does not 
include rapid transit operations in an urban area that are not 
connected to the general railroad system of transportation.
* * * * *
    Railroad rolling stock is on-track equipment that is either a 
freight car (as defined in Sec. 215.5 of this chapter) or a passenger 
car (as defined in Sec. 238.5 of this chapter).
* * * * *
    Roadway maintenance equipment is on-track equipment powered by any 
means of energy other than hand power which is used in conjunction with 
maintenance, repair, construction or inspection of track, bridges, 
roadway, signal, communications, or electric traction systems.
* * * * *
    Service has the meaning given in Rule 5 of the Federal Rules of 
Civil Procedure as amended. Similarly, the computation of time 
provisions in Rule 6 of the Federal Rules of Civil Procedure as amended 
are also applicable in this part. See also the definition of ``filing 
in this section.''
* * * * *
    Specialized roadway maintenance equipment is roadway maintenance 
equipment that does not have the capability to move railroad rolling 
stock. Any alteration of such equipment that enables it to move 
railroad rolling stock will require that the equipment be treated as a 
dual purpose vehicle.
* * * * *
    6. Section 240.9 is amended by revising paragraphs (a) and (c) to 
read as follows:


Sec. 240.9  Waivers.

    (a) A person subject to a requirement of this part may petition the 
Administrator for a waiver of compliance with such requirement. The 
filing of such a petition does not affect that person's responsibility 
for compliance with that requirement while the petition is being 
considered.
* * * * *
    (c) If the Administrator finds that a waiver of compliance is in 
the public interest and is consistent with railroad safety, the 
Administrator may grant the waiver subject to any conditions the 
Administrator deems necessary.
    7. Section 240.11 is amended by revising the title and paragraphs 
(a), (b) and (c) to read as follows:


Sec. 240.11  Penalties and consequences for noncompliance.

    (a) A person who violates any requirement of this part or causes 
the violation of any such requirement is subject to a civil penalty of 
at least $500 and not more than $11,000 per violation, except that: 
Penalties may be assessed against individuals only for willful 
violations, and, where a grossly negligent violation or a pattern of 
repeated violations has created an imminent hazard of death or injury 
to persons, or has caused death or injury, a penalty not to exceed 
$22,000 per violation may be assessed. Each day a violation continues 
shall constitute a separate offense. See Appendix A to this part for a 
statement of agency civil penalty policy.
    (b) A person who violates any requirement of this part or causes 
the violation of any such requirement may be subject to 
disqualification from all safety-sensitive service in accordance with 
part 209 of this chapter.
    (c) A person who knowingly and willfully falsifies a record or 
report required by this part may be subject to criminal penalties under 
49 U.S.C. 21311.
* * * * *
    8. Section 240.103 is amended by revising paragraph (a) to read as 
follows:

[[Page 60990]]

Sec. 240.103  Approval of design of individual railroad programs by 
FRA.

    (a) Each railroad shall submit its written certification program 
and a description of how its program conforms to the specific 
requirements of this part in accordance with the procedures contained 
in appendix B to this part and shall submit this written certification 
program for approval at least 60 days before commencing operations.
* * * * *
    9. Section 240.104 is added to read as follows:


Sec. 240.104  Criteria for determining whether movement of roadway 
maintenance equipment or a dual purpose vehicle requires a certified 
locomotive engineer.

    (a) A railroad is not required to use a certified locomotive 
engineer to perform the following functions:
    (1) Operate specialized roadway maintenance equipment; or
    (2) Operate a dual purpose vehicle that is:
    (i) Being operated in conjunction with roadway maintenance and 
related maintenance of way functions, including traveling to and from 
the work site;
    (ii) Moving under authority of railroad operating rules designated 
for the movement of roadway maintenance equipment that ensure the 
protection of such equipment from train movements; and
    (iii) Being operated by an individual trained and qualified in 
accordance with Secs. 214.341, 214.343, and 214.355 of this chapter.
    (b) A railroad is required to use a certified locomotive engineer 
when operating a dual purpose vehicle other than in accordance with 
paragraph (a)(2) of this section.
    10. Section 240.105 is amended by revising paragraph (b)(4) and by 
adding paragraph (c) to read as follows:


Sec. 240.105  Criteria for selection of designated supervisors of 
locomotive engineers.

* * * * *
    (b) * * *
    (4) Is a certified engineer who is qualified on the physical 
characteristics of the portion of the railroad on which that person 
will perform the duties of a Designated Supervisor of Locomotive 
Engineers.
    (c) If a railroad does not have any Designated Supervisors of 
Locomotive Engineers, and wishes to hire one, the chief operating 
officer of the railroad shall make a determination in writing that the 
Designated Supervisor of Locomotive Engineers designate possesses the 
necessary performance skills in accordance with Sec. 240.127. This 
determination shall take into account any special operating 
characteristics which are unique to that railroad.
    11. Section 240.111 is amended by revising paragraphs (a) 
introductory text, (a)(1), and (h) to read as follows:


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

    (a) Except for initial certifications under paragraph (b), (h), or 
(i) of Sec. 240.201 or 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:
    (1) Take the actions required by paragraphs (b) through (f) or 
paragraph (g) of this section to make information concerning his or her 
driving record available to the railroad that is considering such 
certification or recertification; and
* * * * *
    (h) Each certified locomotive engineer or person seeking initial 
certification shall report motor vehicle incidents described in 
Sec. 240.115 (b)(1) and (2) to the employing railroad within 48 hours 
of being convicted for, or completed state action to cancel, revoke, 
suspend, or deny a motor vehicle drivers license for, such violations. 
For the purposes of engineer certification, no railroad shall require 
reporting earlier than 48 hours after the conviction, or completed 
state action to cancel, revoke, or deny a motor vehicle drivers 
license.
    12. 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 initial certifications under paragraphs (b), (h), or 
(i) of Sec. 240.201 or 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:
* * * * *
    13. Section 240.117 is revised to read as follows:


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

    (a) Each railroad's program shall include criteria and procedures 
for implementing this section.
    (b) A person who has demonstrated a failure to comply, as described 
in paragraph (e) of this section, with railroad rules and practices for 
the safe operation of trains shall not be currently certified as a 
locomotive engineer.
    (c)(1) A certified engineer who has demonstrated a failure to 
comply, as described in paragraph (e) of this section, with railroad 
rules and practices for the safe operation of trains shall have his or 
her certification revoked.
    (2) A Designated Supervisor of Locomotive Engineers, a certified 
locomotive engineer pilot or an instructor engineer who is monitoring, 
piloting or instructing a locomotive engineer and fails to take 
appropriate action to prevent a violation of paragraph (e) of this 
section, shall have his or her certification revoked. Appropriate 
action does not mean that a supervisor, pilot or instructor must 
prevent a violation from occurring at all costs; the duty may be met by 
warning an engineer of a potential or foreseeable violation. A 
Designated Supervisor of Locomotive Engineers will not be held culpable 
under this section when this monitoring event is conducted as part of 
the railroad's operational compliance tests as defined in Secs. 217.9 
and 240.303 of this chapter.
    (3) A person who is a certified locomotive engineer but is called 
by a railroad to perform the duty of a train crew member other than 
that of locomotive engineer, and is performing such other duty, shall 
not have his or her certification revoked based on actions taken or not 
taken while performing that duty.
    (d) Limitations on consideration of prior operating rule compliance 
data. Except as provided for in paragraph (i) of this section, in 
determining whether a person may be or remain certified as a locomotive 
engineer, a railroad shall consider as operating rule compliance data 
only conduct described in paragraphs (e)(1) through (e)(5) of this 
section that occurred within a period of 36 consecutive months prior to 
the determination. A review of an existing certification shall be 
initiated promptly upon the occurrence and documentation of any conduct 
described in this section.
    (e) A railroad shall only consider violations of its operating 
rules and practices that involve:
    (1) Failure to control a locomotive or train in accordance with a 
signal indication, excluding a hand or a radio signal indication or a 
switch, that requires a complete stop before passing it;
    (2) Failure to adhere to limitations concerning train speed when 
the speed at which the train was operated exceeds the maximum 
authorized limit by at

[[Page 60991]]

least 10 miles per hour. Where restricted speed is in effect, railroads 
shall consider only those violations of the conditional clause of 
restricted speed rules (i.e., the clause that requires stopping within 
one half of the locomotive engineer's range of vision), or the 
operational equivalent thereof, which cause reportable accidents or 
incidents under part 225 of this chapter, as instances of failure to 
adhere to this section;
    (3) Failure to adhere to procedures for the safe use of train or 
engine brakes when the procedures are required for compliance with the 
initial terminal, intermediate terminal, or transfer train and yard 
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;
    (4) Occupying 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 or permitting 
to be operated a train with an unauthorized disabled safety device in 
the controlling locomotive. (See 49 CFR part 218, subpart D and 
Appendix C to part 218);
    (6) Incidents of noncompliance with Sec. 219.101 of this chapter; 
however such incidents shall be considered as a violation only for the 
purposes of paragraphs (g)(2) and (3) of this section;
    (f)(1) If in any single incident the person's conduct contravened 
more than one operating rule or practice, that event shall be treated 
as a single violation for the purposes of this section.
    (2) A violation of one or more operating rules or practices 
described in paragraph (e)(1) through (e)(5) of this section that 
occurs during a properly conducted operational compliance test subject 
to the provisions of this chapter shall be counted in determining the 
periods of ineligibility described in paragraph (g) of this section.
    (3) An operational test that is not conducted in compliance with 
this part, a railroad's operating rules, or a railroad's program under 
Sec. 217.9 of this chapter, will not be considered a legitimate test of 
operational skill or knowledge, and will not be considered for 
certification, recertification or revocation purposes.
    (g) A period of ineligibility described in this paragraph shall:
    (1) Begin, for a person not currently certified, on the date of the 
railroad's written determination that the most recent incident has 
occurred; or
    (2) Begin, for a person currently certified, on the date of the 
railroad's notification to the person that recertification has been 
denied or certification has been revoked; and
    (3) Be determined according to the following standards:
    (i) In the case of a single incident involving violation of one or 
more of the operating rules or practices described in paragraphs (e)(1) 
through (e)(5) of this section, the person shall have his or her 
certificate revoked for a period of one month.
    (ii) In the case of two separate incidents involving a violation of 
one or more of the operating rules or practices described in paragraphs 
(e)(1) through (e)(5) of this section, that occurred within 24 months 
of each other, the person shall have his or her certificate revoked for 
a period of six months.
    (iii) In the case of three separate incidents involving violations 
of one or more of the operating rules or practices, described in 
paragraphs (e)(1) through (e)(6) of this section, that occurred within 
36 months of each other, the person shall have his or her certificate 
revoked for a period of one year.
    (iv) In the case of four separate incidents involving violations of 
one or more of the operating rules or practices, described in 
paragraphs (e)(1) through (e)(6) of this section, that occurred within 
36 months of each other, the person shall have his or her certificate 
revoked for a period of three years.
    (v) Where, based on the occurrence of violations described in 
paragraph (e)(6) of this section, different periods of ineligibility 
may result under the provisions of this section and Sec. 240.119, the 
longest period of revocation shall control.
    (4) Be reduced to the shorter periods of ineligibility imposed by 
paragraphs (g)(1) through (3) of this section as amended, and effective 
January 7, 2000 if the incident:
    (i) Occurred prior to January 7, 2000; and
    (ii) Involved violations described in paragraphs (e)(1) through 
(e)(5) of this section; and
    (iii) Did not occur within 60 months of a prior violation as 
described in paragraph (e)(6) of this section.
    (h) Future eligibility to hold certificate. A person whose 
certification has been denied or revoked shall be eligible for grant or 
reinstatement of the certificate prior to the expiration of the initial 
period of revocation only if:
    (1) The denial or revocation of certification in accordance with 
the provisions of paragraph (g)(3) of this section is for a period of 
one year or less;
    (2) Certification was denied or revoked for reasons other than 
noncompliance with Sec. 219.101 of this chapter;
    (3) The person has been evaluated by a Designated Supervisor of 
Locomotive Engineers and determined to have received adequate remedial 
training;
    (4) The person has successfully completed any mandatory program of 
training or retraining, if that was determined to be necessary by the 
railroad prior to return to service; and
    (5) At least one half the pertinent period of ineligibility 
specified in paragraph (g)(3) of this section has elapsed.
    (i) In no event shall incidents that meet the criteria of 
paragraphs (i)(1) through (4) of this section be considered as prior 
incidents for the purposes of paragraph (g)(3) of this section even 
though such incidents could have been or were validly determined to be 
violations at the time they occurred. Incidents that shall not be 
considered under paragraph (g)(3) of this section are those that:
    (1) Occurred prior to May 10, 1993;
    (2) Involved violations of one or more of the following operating 
rules or practices:
    (i) Failure to control a locomotive or train in accordance with a 
signal indication;
    (ii) Failure to adhere to limitations concerning train speed;
    (iii) Failure to adhere to procedures for the safe use of train or 
engine brakes; or
    (iv) Entering track segment without proper authority;
    (3) Were or could have been found to be violations under this 
section contained in the 49 CFR, parts 200 to 399, edition revised as 
of October 1, 1992; and
    (4) Would not be a violation of paragraph (e) of this section.
    (j) In no event shall incidents that meet the criteria of 
paragraphs (j)(1) through (2) of this section be considered as prior 
incidents for the purposes of paragraph (g)(3) of this section even 
though such incidents could have been or were validly determined to be 
violations at the time they occurred. Incidents that shall not be 
considered under paragraph (g)(3) of this section are those that:
    (1) Occurred prior to January 7, 2000;
    (2) Involved violations of one or more of the following operating 
rules or practices:
    (i) Failure to control a locomotive or train in accordance with a 
signal indication that requires a complete stop before passing it;
    (ii) Failure to adhere to limitations concerning train speed when 
the speed

[[Page 60992]]

at which the train was operated exceeds the maximum authorized limit by 
at least 10 miles per hour or by more than one half of the authorized 
speed, whichever is less;
    (3) Were or could have been found to be violations under this 
section contained in the 49 CFR, parts 200 to 399, edition revised as 
of October 1, 1999; and
    (4) Would not be a violation of paragraph (e) of this section.
    14. Section 240.121 is amended by revising paragraphs (b), (c)(3) 
and (e), and adding paragraph (f) to read as follows:


Sec. 240.121  Criteria for vision and hearing acuity data.

* * * * *
    (b) Fitness requirement. In order to be currently certified as a 
locomotive engineer, except as permitted by paragraph (e) of this 
section, a person's vision and hearing shall meet or exceed the 
standards prescribed in this section and appendix F to this part. It is 
recommended that each test conducted pursuant to this section should be 
performed according to any directions supplied by the manufacturer of 
such test and any American National Standards Institute (ANSI) 
standards that are applicable.
    (c) * * *
    (3) The ability to recognize and distinguish between the colors of 
railroad signals as demonstrated by successfully completing one of the 
tests in appendix F to this part.
* * * * *
    (e) A person not meeting the thresholds in paragraphs (c) and (d) 
of this section shall, upon request, be subject to further medical 
evaluation by a railroad's medical examiner to determine that person's 
ability to safely operate a locomotive. In accordance with the guidance 
prescribed in appendix F to this part, a person is entitled to one 
retest without making any showing and to another retest if the person 
provides evidence substantiating that circumstances have changed since 
the last test to the extent that the person could now arguably operate 
a locomotive or train safely. The railroad shall provide its medical 
examiner with a copy of this part, including all appendices. If, after 
consultation with one of the railroad's designated supervisors of 
locomotive engineers, the medical examiner concludes that, despite not 
meeting the threshold(s) in paragraphs (c) and (d) of this section, the 
person has the ability to safely operate a locomotive, the person may 
be certified as a locomotive engineer and such certification 
conditioned on any special restrictions the medical examiner determines 
in writing to be necessary.
    (f) As a condition of maintaining certification, each certified 
locomotive engineer shall notify his or her employing railroad's 
medical department or, if no such department exists, an appropriate 
railroad official if the person's best correctable vision or hearing 
has deteriorated to the extent that the person no longer meets one or 
more of the prescribed vision or hearing standards or requirements of 
this section. This notification is required prior to any subsequent 
operation of a locomotive or train which would require a certified 
locomotive engineer.
    15. Section 240.123 is amended by revising paragraph (b) and adding 
paragraph (d) to read as follows:


Sec. 240.123  Criteria for initial and continuing education.

* * * * *
    (b) A railroad shall provide for the continuing education of 
certified locomotive engineers to ensure that each engineer maintains 
the necessary knowledge, skill and ability concerning personal safety, 
operating rules and practices, mechanical condition of equipment, 
methods of safe train handling (including familiarity with physical 
characteristics as determined by a qualified Designated Supervisor of 
Locomotive Engineers), and relevant Federal safety rules.
* * * * *
    (d) Pursuant to paragraphs (b) and (c) of this section, a person 
may acquire familiarity with the physical characteristics of a 
territory through the following methods if the specific conditions 
included in the description of each method are met. The methods used by 
a railroad for familiarizing its engineers with new territory while 
starting up a new railroad, starting operations over newly acquired 
rail lines, or reopening of a long unused route, shall be described in 
the railroad's locomotive engineer qualification program required under 
this part and submitted according to the procedures described in 
Appendix B to this part.
    (1) If ownership of a railroad is being transferred from one 
company to another, the engineer(s) of the acquiring company may 
receive familiarization training from the selling company prior to the 
acquiring railroad commencing operation; or
    (2) Failing to obtain familiarization training from the previous 
owner, opening a new rail line, or reopening an unused route would 
require that the engineer(s) obtain familiarization through other 
methods. Acceptable methods of obtaining familiarization include using 
hyrail trips or initial lite locomotive trips in compliance with what 
is specified in the railroad's locomotive engineer qualification 
program required under this part and submitted according to the 
procedures described in Appendix B to this part.
    16. Section 240.127 is amended by revising paragraph (c)(2) to read 
as follows:


Sec. 240.127  Criteria for examining skill performance.

* * * * *
    (c) * * *
    (2) Conducted by a Designated Supervisor of Locomotive Engineers, 
who does not need to be qualified on the physical characteristics of 
the territory over which the test will be conducted;
* * * * *
    17. Section 240.129 is amended by revising paragraph (c)(2) 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 annually monitored 
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;
* * * * *
    18. Section 240.213 is amended by revising paragraph (b)(3) to read 
as follows:


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

* * * * *
    (b) * * *
    (3) A qualified Designated Supervisor of Locomotive Engineers has 
determined that the person is familiar with the physical 
characteristics of the railroad or its pertinent segments.
    19. Section 240.217 is amended by revising paragraphs (a)(1), 
(a)(2), (a)(3), (a)(4), and (c)(2) to read as follows:


Sec. 240.217  Time limitations for making determinations.

    (a) * * *
    (1) A determination concerning eligibility and the eligibility data 
being relied on were furnished more than 366 days before the date of 
the railroad's certification decision;
    (2) A determination concerning visual and hearing acuity and the 
medical

[[Page 60993]]

examination being relied on was conducted more than 366 days before the 
date of the railroad's recertification decision;
    (3) A determination concerning demonstrated knowledge and the 
knowledge examination being relied on was conducted more than 366 days 
before the date of the railroad's certification decision; or
    (4) A determination concerning demonstrated performance skills and 
the performance skill testing being relied on was conducted more than 
366 days before the date of the railroad's certification decision;
* * * * *
    (c) * * *
    (2) Rely on a certification issued by another railroad that is more 
than 36 months old.
* * * * *
    20. Section 240.223 is amended by revising paragraph (a)(1) to read 
as follows:


Sec. 240.223  Criteria for the certificate.

    (a) * * *
    (1) Identify the railroad or parent company that is issuing it;
* * * * *
    21. Section 240.225 is revised to read as follows:


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

    (a) After December 31, 1991, 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 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:
    (1) The prior certification is still valid in accordance with the 
provisions of Secs. 240.201, 240.217, and 240.307;
    (2) The prior certification was for the same classification of 
locomotive or train service as the certification being issued under 
this section;
    (3) The person has received training on and visually observed the 
physical characteristics of the new territory in accordance with 
Sec. 240.123;
    (4) The person has demonstrated the necessary knowledge concerning 
the railroad's operating rules in accordance with Sec. 240.125;
    (5) The person has demonstrated the necessary performance skills 
concerning the railroad's operating rules in accordance with 
Sec. 240.127.
    (b) [Reserved].
    22. Section 240.229 is amended by revising paragraph (c) to read as 
follows:


Sec. 240.229  Requirements for joint operations territory.

* * * * *
    (c) A railroad that controls joint operations may rely on the 
certification issued by another railroad under the following 
conditions:
    (1) The controlling railroad shall determine:
    (i) That the person has been certified as a qualified engineer 
under the provisions of this part by the railroad which employs that 
individual;
    (ii) That the person certified as a locomotive engineer by the 
other railroad has demonstrated the necessary knowledge concerning the 
controlling railroad's operating rules, if the rules are different;
    (iii) That the person certified as a locomotive engineer by the 
other railroad has the necessary operating skills concerning the joint 
operations territory; and
    (iv) That the person certified as a locomotive engineer by the 
other railroad has the necessary familiarity with the physical 
characteristics for the joint operations territory; and,
    (2) The railroad which employs the individual shall determine that 
the person called to operate on the controlling railroad is a certified 
engineer who is qualified to operate on that track segment; and
    (3) Each locomotive engineer who is called to operate on another 
railroad shall:
    (i) Be qualified on the segment of track upon which he or she will 
operate in accordance with the requirements set forth by the 
controlling railroad; and,
    (ii) Immediately notify the railroad upon which he or she is 
employed if he or she is not qualified to perform that service.
* * * * *
    23. Section 240.231 is added to subpart C to read as follows:


Sec. 240.231  Requirements for locomotive engineers unfamiliar with 
physical characteristics in other than joint operations.

    (a) Except as provided in paragraph (b) of this section, no 
locomotive engineer shall operate a locomotive over a territory unless 
he or she is qualified on the physical characteristics of the territory 
pursuant to the railroad's certification program.
    (b) Except as provided in paragraph (c) of this section, if a 
locomotive engineer lacks qualification on the physical characteristics 
required by paragraph (a) of this section, he or she shall be assisted 
by a pilot qualified over the territory pursuant to the railroad's 
certification program.
    (1) For a locomotive engineer who has never been qualified on the 
physical characteristics of the territory over which he or she is to 
operate a locomotive or train, the pilot shall be a person qualified 
and certified as a locomotive engineer who is not an assigned crew 
member.
    (2) For a locomotive engineer who was previously qualified on the 
physical characteristics of the territory over which he or she is to 
operate a locomotive or train, but whose qualification has expired, the 
pilot may be any person, who is not an assigned crew member, qualified 
on the physical characteristics of the territory.
    (c) Pilots are not required if the movement is on a section of 
track with an average grade of less than 1% over 3 continuous miles, 
and
    (1) The track is other than a main track; or
    (2) The maximum distance the locomotive or train will be operated 
does not exceed one mile; or
    (3) The maximum authorized speed for any operation on the track 
does not exceed 20 miles per hour; or
    (4) Operations are conducted under operating rules that require 
every locomotive and train to proceed at a speed that permits stopping 
within one half the range of vision of the locomotive engineer.
    24. Section 240.305 is amended by revising paragraph (a) to read as 
follows:


Sec. 240.305  Prohibited conduct.

    (a) It shall be unlawful to:
    (1) Operate a locomotive or train past a signal indication, 
excluding a hand or a radio signal indication or a switch, that 
requires a complete stop before passing it; or
    (2) Operate a locomotive or train at a speed which exceeds the 
maximum authorized limit by at least 10 miles per hour. Where 
restricted speed is in effect, only those violations of the conditional 
clause of restricted speed rules (i.e., the clause that requires 
stopping within one half of the locomotive engineer's range of vision), 
or the operational equivalent thereof, which cause reportable accidents 
or incidents under part 225 of this chapter, shall be considered 
instances of failure to adhere to this section; or

[[Page 60994]]

    (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 initial terminal, intermediate 
terminal, or transfer train and yard 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;
    (4) Fail to comply with any mandatory directive concerning the 
movement of a locomotive or train by occupying main track or a segment 
of main track without proper authority or permission;
    (5) Fail to comply with prohibitions against tampering with 
locomotive mounted safety devices, or knowingly operate or permit to be 
operated a train with an unauthorized disabled safety device in the 
controlling locomotive. (See 49 CFR part 218, subpart D, and appendix C 
to part 218);
    (6) Be a Designated Supervisor of Locomotive Engineers, a certified 
locomotive engineer pilot or an instructor engineer who is monitoring, 
piloting or instructing a locomotive engineer and fails to take 
appropriate action to prevent a violation of paragraphs (a)(1) through 
(a)(5) of this section. Appropriate action does not mean that a 
supervisor, pilot or instructor must prevent a violation from occurring 
at all costs; the duty may be met by warning an engineer of a potential 
or foreseeable violation. A Designated Supervisor of Locomotive 
Engineers will not be held culpable under this section when this 
monitoring event is conducted as part of the railroad's operational 
compliance tests as defined in Secs. 217.9 and 240.303 of this chapter.
 * * * * *
    25. Section 240.307 is amended by revising paragraphs (b)(2), (c) 
introductory text, (c)(2), (c)(10), (e) and adding paragraphs (i), (j), 
and (k) to read as follows:


Sec. 240.307  Revocation of certification.

 * * * * *
    (b) * * *
    (2) Prior to or upon suspending the person's certificate, provide 
notice of the reason for the suspension, the pending revocation, and an 
opportunity for a hearing before a presiding officer other than the 
investigating officer. The notice may initially be given either orally 
or in writing. If given orally, it must be confirmed in writing and the 
written confirmation must be made promptly. Written confirmation which 
conforms to the notification provisions of an applicable collective 
bargaining agreement shall be deemed to satisfy the written 
confirmation requirements of this section. In the absence of an 
applicable collective bargaining agreement provision, the written 
confirmation must be made within 96 hours.
 * * * * *
    (c) Except as provided for in paragraphs (d), (f), (i) and (j) of 
this section, a hearing required by this section shall be conducted in 
accordance with the following procedures:
 * * * * *
    (2) The hearing shall be conducted by a presiding officer, who can 
be any qualified person authorized by the railroad other than the 
investigating officer.
* * * * *
    (10) No later than 10 days after the close of the record, a 
railroad official, other than the investigating officer, shall prepare 
and sign a written decision in the proceeding.
* * * * *
    (e) A hearing required under this section may be consolidated with 
any disciplinary or other hearing arising from the same facts, but in 
all instances a railroad official, other than the investigating 
officer, shall make separate findings as to the revocation required 
under this section.
* * * * *
    (i) A railroad:
    (1) Shall not determine that the person failed to meet the 
qualification requirements of this part and shall not revoke the 
person's certification as provided for in paragraph (a) of this section 
if sufficient evidence exists to establish that an intervening cause 
prevented or materially impaired the locomotive engineer's ability to 
comply with the railroad operating rule or practice which constitutes a 
violation under Sec. 240.117(e)(1) through (e)(5) of this part; or
    (2) May determine that the person meets the qualification 
requirements of this part and decide not to revoke the person's 
certification as provided for in paragraph (a) of this section if 
sufficient evidence exists to establish that the violation of 
Sec. 240.117(e)(1) through (e)(5) of this part was of a minimal nature 
and had no direct or potential effect on rail safety.
    (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. 240.15 for Class III railroads if sufficient 
evidence meeting the criteria provided in paragraph (i) of this 
section, becomes available either:
    (1) Prior to a railroad's action to suspend the certificate as 
provided for in paragraph (b)(1) of this section; or
    (2) Prior to the convening of the hearing provided for in this 
section;
    (k) Provided that the railroad makes a good faith determination 
after a reasonable inquiry that the course of conduct provided for in 
paragraph (i) of this section is appropriate, the railroad which does 
not suspend a locomotive engineer's certification, as provided for in 
paragraph (a) of this section, is not in violation of paragraph (a) of 
this section.
    26. Section 240.309 is amended by revising paragraphs (e) 
introductory text, (e)(3), (e)(5), (e)(7), and (e)(8), removing 
paragraph (e)(10) and redesignating the second set of paragraphs (e) 
introductory text, (e)(1), (e)(2) and (e)(3) as paragraph (h) 
introductory text, (h)(1), (h)(2) and (h)(3), and revising them to read 
as follows:


Sec. 240.309  Railroad oversight responsibilities.

* * * * *
    (e) For reporting purposes, information about the nature of 
detected poor safety conduct shall be capable of segregation for study 
and evaluation purposes into the following categories:
* * * * *
    (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 initial terminal, intermediate terminal, or 
transfer train and yard 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;
* * * * *
    (5) Incidents involving noncompliance with the railroad's operating 
rules resulting in operation of a locomotive or train past any signal, 
excluding a hand or a radio signal indication or a switch, that 
requires a complete stop before passing it;
    (6) Incidents involving noncompliance with the provisions of 
restricted speed, and the operational equivalent thereof, that must be 
reported under the provisions of part 225 of this chapter;
    (7) Incidents involving occupying main track or a segment of main 
track without proper authority or permission;
    (8) Incidents involving the failure to comply with prohibitions 
against tampering with locomotive mounted safety devices, or knowingly 
operating or permitting to be operated a train with

[[Page 60995]]

an unauthorized or disabled safety device in the controlling 
locomotive;
* * * * *
    (h) For reporting purposes each category of detected poor safety 
conduct identified in paragraph (d) of this section shall be capable of 
being annotated to reflect the following:
    (1) The total number of incidents in that category;
    (2) The number of incidents within that total which reflect 
incidents requiring an FRA accident/incident report; and
    (3) The number of incidents within that total which were detected 
as a result of a scheduled operational monitoring effort.
    27. Section 240.403 is amended by revising paragraph (d) and adding 
paragraph (e) to read as follows:


Sec. 240.403  Petition requirements.

 * * * * *
    (d) A petition seeking review of a railroad's decision to revoke 
certification in accordance with the procedures required by 
Sec. 240.307 filed with FRA more than 120 days after the date of the 
railroad's revocation decision will be denied as untimely except that 
the Locomotive Engineer Review Board for cause shown may extend the 
petition filing period at any time in its discretion:
    (1) Provided the request for extension is filed before the 
expiration of the period provided in this paragraph (d); or
    (2) Provided that the failure to timely file was the result of 
excusable neglect.
    (e) A party aggrieved by a Board decision to deny a petition as 
untimely may file an appeal with the Administrator in accordance with 
Sec. 240.411.
    28. Section 240.405 is amended by revising paragraphs (a) and (c), 
and adding paragraph (d)(3) to read as follows:


Sec. 240.405  Processing qualification review petitions.

    (a) Each petition shall be acknowledged in writing by FRA. The 
acknowledgment shall contain the docket number assigned to the petition 
and a statement of FRA's intention that the Board will render a 
decision on this petition within 180 days from the date that the 
railroad's response is received or from the date upon which the 
railroad's response period has lapsed pursuant to paragraph (c) of this 
section.
* * * * *
    (c) The railroad will be given a period of not to exceed 60 days to 
submit to FRA any information that the railroad considers pertinent to 
the petition. Late filings will only be considered to the extent 
practicable.
    (d) * * *
    (3) Submit the information in triplicate to the Docket Clerk, 
Federal Railroad Administration, 400 Seventh Street SW., Washington, DC 
20590;
 * * * * *
    29. Section 240.411 is amended by revising paragraph (e) and adding 
paragraph (f) to read as follows:


Sec. 240.411  Appeals.

* * * * *
    (e) The Administrator may remand, vacate, affirm, reverse, alter or 
modify the decision of the presiding officer and the Administrator's 
decision constitutes final agency action except where the terms of the 
Administrator's decision (for example, remanding a case to the 
presiding officer) show that the parties' administrative remedies have 
not been exhausted.
    (f) Where a party files an appeal from a Locomotive Engineer Review 
Board decision pursuant to Sec. 240.403(e), the Administrator may 
affirm or vacate the Board's decision, and may remand the petition to 
the Board for further proceedings. An Administrator's decision to 
affirm the Board's decision constitutes final agency action.
    30. Appendix A to part 240 is amended by adding penalty entries for 
Secs. 240.104 and 240.231 and by revising the penalty entries for 
Secs. 240.105, 240.111, 240.117, 240.121, 240.225, 240.229, 240.305, 
240.307, 240.309 and footnote number 1 to read as follows:

BILLING CODE 4910-06-P

Appendix A to Part 240--Schedule of Civil Penalties \1\

------------------------------------------------------------------------
                                                               Willful
                    Section                      Violation    violation
------------------------------------------------------------------------
 
*                  *                  *                  *
                  *                  *                  *
240.104--Allowing uncertified person to               5,000       10,000
 operate non-traditional locomotives..........
240.105--Failure to have or execute adequate          2,500        5,000
 procedure for selection of supervisors.......
 
*                  *                  *                  *
                  *                  *                  *
240.111--Furnishing Motor Vehicle Records:
    (a) Failure to action required to make            1,000        2,000
     information available....................
    (b) Failure to request:
        (1) local record......................        1,000        2,000
        (2) NDR record........................        1,000        2,000
    (f) Failure to request additional record..        1,000        2,000
    (g) Failure to notify of absence of                 750        1,500
     license..................................
    (h) Failure to submit request in timely             750        1,500
     manner...................................
    (i) Failure to report within 48 hours or          1,000        2,000
     railroad taking certification action for
     not reporting earlier than 48 hours......
 
*                  *                  *                  *
                  *                  *                  *
240.117--Consideration of Operational Rules
 Compliance Records:
    (a) Failure to have program and procedures        5,000       10,000
    (b-j) Failure to have adequate program or         2,500        5,000
     procedure................................
 
*                  *                  *                  *
                  *                  *                  *
240.121--Failure to have adequate procedure           2,500        5,000
 for determining acuity.......................
    (f) Failure of engineer to notify.........        2,500        5,000
240.123--Failure to have:
    (b) Adequate procedures for continuing            2,500        5,000
     education................................
    (c) adequate procedures for training new          2,500        5,000
     engineers................................
 

[[Page 60996]]

 
*                  *                  *                  *
                  *                  *                  *
240.225--Railroad Relying on Determination of
 Another:
    (a) Failure to address in program or              5,000        7,500
     failure to require newly hired engineer
     to take entire training program..........
        (1) Reliance on expired certification.        2,500        5,000
        (2) Reliance on wrong class of service        2,500        5,000
        (3) Failure to familiarize person with        2,000        4,000
         new operational territory............
        (4) Failure to determine knowledge....        2,000        4,000
        (5) Failure to determine performance          2,000        4,000
         skills...............................
 
*                  *                  *                  *
                  *                  *                  *
240.229--Requirements for Joint Operations
 Territory:
    (a) Allowing uncertified person to operate        2,000        4,000
    (b) Certifying without making                     2,500        5,000
     determinations or relying on another
     railroad.................................
    (c) Failure of............................
        (1) controlling railroad certifying           4,000        8,000
         without determining certification
         status, knowledge, skills, or
         familiarity with physical
         characteristics......................
        (2) employing railroad to determine           4,000        8,000
         person's certified and qualified
         status for controlling railroad......
        (3) person to notify employing                4,000        8,000
         railroad of lack of qualifications...
    (d) Failure to provide qualified person...        2,000        4,000
240.231--Persons Qualified on Physical
 Characteristics in Other Than Joint
 Operations:
    (a) Person unqualified, no exception              5,000       10,000
     applies or railroad does not adequately
     address in program.......................
    (b) Failure to have a pilot...............
        (1) for engineer who has never been           4,000        8,000
         qualified............................
        (2) for engineer previously qualified.        2,500        5,000
 
*                  *                  *                  *
                  *                  *                  *
240.305--Prohibited Conduct:
    (a) Unlawful:
        (1) passing of stop signal............        2,500        5,000
        (2) control of speed..................        2,500        5,000
        (3) brake tests.......................        2,500        5,000
        (4) occupancy of main track...........        2,500        5,000
        (5) tampering on operation with               2,500        5,000
         disabled safety device...............
        (6) supervisor, pilot, or instructor          2,500        5,000
         fails to take appropriate action.....
    (b) Failure of engineer to:
        (1) carry certificate.................        1,000        2,000
        (2) display certificate when requested        1,000        2,000
    (c) Failure of engineer to notify railroad        4,000        8,000
     of limitations or railroad requiring
     engineer to exceed limitations...........
        (d) Failure of engineer to notify             4,000        8,000
         railroad of denial or revocation.....
240.307--Revocation of Certification:
    (a) Failure to withdraw person from               2,500        5,000
     service..................................
    (b) Failure to notify, provide hearing            2,500        5,000
     opportunity, or untimely procedures......
    (c-h) Failure of railroad to comply with          1,000        2,000
     hearing or waiver procedures.............
    (j) Failure of railroad to make record....        2,500        5,000
    (k) Failure of railroad to conduct                5,000       10,000
     reasonable inquiry or make good faith
     determination............................
240.309--Oversight Responsibility Report:
    (a) Failure to report or to report on time        1,000        2,000
    (b-h) Incomplete or inaccurate report.....        2,000        4,000
 
*                  *                  *                  *
                  *                  *                  *
------------------------------------------------------------------------
\1\ A penalty may be assessed against an individual only for a willful
  violation. The Administrator reserves the right to assess a penalty of
  up to $22,000 for any violation where circumstances warrant. See 49
  CFR part 209, Appendix A.

BILLING CODE 4910-06-M

    31. Appendix F is added to read as follows:

Appendix F to Part 240--Medical Standards Guidelines

    (1) The purpose of this appendix is to provide greater guidance 
on the procedures that should be employed in administering the 
vision and hearing requirements of Secs. 240.121 and 240,207.
    (2) In determining whether a person has the visual acuity that 
meets or exceeds the requirements of this part, the following 
testing protocols are deemed acceptable testing methods for 
determining whether a person has the ability to recognize and 
distinguish among the colors used as signals in the railroad 
industry. The acceptable test methods are shown in the left hand 
column and the criteria that should be employed to determine whether 
a person has failed the particular testing protocol are shown in the 
right hand column.

------------------------------------------------------------------------
             Accepted tests                      Failure criteria
------------------------------------------------------------------------
                     PSEUDOISOCHROMATIC PLATE TESTS
------------------------------------------------------------------------
American Optical Company 1965..........  5 or more errors on plates 1-
                                          15.
AOC--Hardy-Rand-Ritter plates--second    Any error on plates 1-6 (plates
 edition.                                 1-4 are for demonstration--
                                          test plate 1 is actually plate
                                          5 in book)

[[Page 60997]]

 
Dvorine--Second edition................  3 or more errors on plates 1-15
Ishihara (14 plate)....................  2 or more errors on plates 1-
                                          11.
Ishihara (16 plate)....................  2 or more errors on plates 1-8.
Ishihara (24 plate)....................  3 or more errors on plates 1-
                                          15.
Ishihara (38 plate)....................  4 or more errors on plates 1-
                                          21.
Richmond Plates 1983...................  5 or more errors on plates 1-
                                          15.
------------------------------------------------------------------------
                       MULTIFUNCTION VISION TESTER
------------------------------------------------------------------------
Keystone Orthoscope....................  Any error.
OPTEC 2000.............................  Any error.
Titmus Vision Tester...................  Any error.
Titmus II Vision Tester................  Any error.
------------------------------------------------------------------------

    (3) In administering any of these protocols, the person 
conducting the examination should be aware that railroad signals do 
not always occur in the same sequence and that ``yellow signals'' do 
not always appear to be the same. It is not acceptable to use 
``yarn'' or other materials to conduct a simple test to determine 
whether the certification candidate has the requisite vision. No 
person shall be allowed to wear chromatic lenses during an initial 
test of the person's color vision; the initial test is one conducted 
in accordance with one of the accepted tests in the chart and 
Sec. 240.121(c)(3).
    (4) An examinee who fails to meet the criteria in the chart, may 
be further evaluated as determined by the railroad's medical 
examiner. Ophthalmologic referral, field testing, or other practical 
color testing may be utilized depending on the experience of the 
examinee. The railroad's medical examiner will review all pertinent 
information and, under some circumstances, may restrict an examinee 
who does not meet the criteria from operating the train at night, 
during adverse weather conditions or under other circumstances. The 
intent of Sec. 240.121(e) is not to provide an examinee with the 
right to make an infinite number of requests for further evaluation, 
but to provide an examinee with at least one opportunity to prove 
that a hearing or vision test failure does not mean the examinee 
cannot safely operate a locomotive or train. Appropriate further 
medical evaluation could include providing another approved 
scientific screening test or a field test. All railroads should 
retain the discretion to limit the number of retests that an 
examinee can request but any cap placed on the number of retests 
should not limit retesting when changed circumstances would make 
such retesting appropriate. Changed circumstances would most likely 
occur if the examinee's medical condition has improved in some way 
or if technology has advanced to the extent that it arguably could 
compensate for a hearing or vision deficiency.
    (5) Engineers who wear contact lenses should have good tolerance 
to the lenses and should be instructed to have a pair of corrective 
glasses available when on duty.

    Issued in Washington, DC, on September 30, 1999.
Jolene M. Molitoris,
Administrator.
[FR Doc. 99-28930 Filed 11-5-99; 8:45 am]
BILLING CODE 4910-06-P