[Federal Register Volume 84, Number 90 (Thursday, May 9, 2019)]
[Proposed Rules]
[Pages 20472-20520]
[FR Doc No: 2019-09028]

Vol. 84

Thursday,

No. 90

May 9, 2019

Part II

Department of Transportation

-----------------------------------------------------------------------

Federal Railroad Administration

-----------------------------------------------------------------------

49 CFR Part 240

 Qualification and Certification of Locomotive Engineers; Miscellaneous
Revisions; Proposed Rule

Federal Register / Vol. 84 , No. 90 / Thursday, May 9, 2019 /
Proposed Rules

-----------------------------------------------------------------------

DEPARTMENT OF TRANSPORTATION

Federal Railroad Administration

49 CFR Part 240

[Docket No. FRA-2018-0053, Notice No. 1]
RIN 2130-AC40

Qualification and Certification of Locomotive Engineers;
Miscellaneous Revisions

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

ACTION: Notice of proposed rulemaking (NPRM).

-----------------------------------------------------------------------

SUMMARY: FRA is proposing to revise its regulation governing the
qualification and certification of locomotive engineers to make it
consistent with its regulation for the qualification and certification
of conductors. The proposed changes include: Amending the program
submission process; handling engineer and conductor petitions for
review with a single FRA review board (Operating Crew Review Board or
OCRB); and revising the filing requirements for petitions to the OCRB.
The proposed revisions would result in cost savings and benefits for
railroads and locomotive engineers by adopting the conductor
certification regulation's streamlined processes developed twenty years
after the engineer certification regulation. Consistent with Executive
Order 13771, the proposed rule would reduce the overall regulatory
burden and the paperwork and reporting burden under the Paperwork
Reduction Act of 1995 on railroads and locomotive engineers.

DATES: Written Comments: Written comments on the proposed rule must be
received by July 8, 2019. FRA will consider comments received after
that date to the extent practicable. FRA anticipates being able to
determine these matters without a public hearing. However, if prior to
June 10, 2019, FRA receives a request for a public hearing accompanied
by a showing that the party cannot adequately present his or her
position by written statement, a hearing will be scheduled and FRA will
publish a supplemental document in the Federal Register informing
interested parties of the date, time, and location of the hearing.

ADDRESSES: You may submit comments identified by the docket number FRA-
2018-0053 by any one of the following methods:
     Electronically through the Federal eRulemaking Portal,
http://www.regulations.gov. Follow the online instructions for
submitting comments;
     Mail: U.S. Department of Transportation, Docket
Operations, M-30, West Building Ground Floor, Room W12-140, 1200 New
Jersey Avenue SE, Washington, DC 20590;
     Hand Delivery: U.S. Department of Transportation, Docket
Operations, West Building Ground Floor, Room W12-140, 1200 New Jersey
Avenue SE, Washington, DC 20590, between 9 a.m. and 5 p.m., Monday
through Friday, except Federal holidays; or
     Fax: 1-202-493-2251.
    Instructions: All submissions must include the agency name, docket
name, and docket number or Regulatory Identification Number (RIN) for
this rulemaking (2130-AC40). Note that all comments received will be
posted without change to http://www.regulations.gov, including any
personal information provided. Please see the Privacy Act heading in
the SUPPLEMENTARY INFORMATION section of this document for Privacy Act
information related to any submitted comments or materials.
    Docket: For access to the docket to read background documents or
comments received, go to http://www.regulations.gov at any time or to
U.S. Department of Transportation, Docket Operations, M-30, West
Building Ground Floor, Room W12-140, 1200 New Jersey Avenue SE,
Washington, DC, between 9 a.m. and 5 p.m., Monday through Friday,
except Federal holidays.

FOR FURTHER INFORMATION CONTACT: Christian Holt, Railroad Safety
Specialist (OP)-Operating Crew Certification, U.S. Department of
Transportation, Federal Railroad Administration, Room W33-420, 1200 New
Jersey Avenue SE, Washington, DC 20590 (telephone:<PHONE_NUMBER>); or
Alan H. Nagler, Senior Attorney, U.S. Department of Transportation,
Federal Railroad Administration, Office of Chief Counsel, Room W31-309,
1200 New Jersey Avenue SE, Washington, DC 20590 (telephone: 202-493-
6038).

SUPPLEMENTARY INFORMATION:

Table of Contents for Supplementary Information

I. Executive Summary
II. Section-by-Section Analysis
III. Additional Issues
    A. Additional Amendments
    B. Implementation Date
IV. Regulatory Impact and Notices
    A. Executive Orders 12866 and 13771 and DOT Regulatory Policies
and Procedures
    B. Regulatory Flexibility Act and Executive Order 13272; Initial
Regulatory Flexibility Assessment
    C. Paperwork Reduction Act
    D. Federalism Implications
    E. International Trade Impact Assessment
    F. Environmental Impact
    G. Unfunded Mandates Reform Act of 1995
    H. Energy Impact
    I. Privacy Act

I. Executive Summary

    The Secretary of Transportation (Secretary) has broad statutory
authority to ``prescribe regulations and issue orders for every area of
railroad safety.'' 49 U.S.C. 20103. The Rail Safety Improvement Act of
1988, Public Law 100-342, Sec. 4, 102 Stat. 624, 625-27 (June 22, 1988)
(recodified at 49 U.S.C. 20135) (1988 RSIA), specifically required the
Secretary to ``prescribe regulations and issue orders to establish a
program requiring the licensing or certification . . . of any operator
of a locomotive.'' The Secretary delegated these authorities to the
Federal Railroad Administrator (Administrator). See 49 CFR 1.89(a).
Exercising these delegated authorities, in 1991, FRA issued a
certification final rule for locomotive engineers. 56 FR 28228
(codified at 49 CFR part 240).\1\ Since that first final rule, FRA has
amended the locomotive engineer certification requirements through six
rulemakings. In 2009, FRA published the most recent final rule amending
the locomotive engineer requirements. 74 FR 68173.
---------------------------------------------------------------------------

    \1\ Unless otherwise specified, all references to CFR sections
and parts refer to title 49 of the CFR.
---------------------------------------------------------------------------

    In 2008, over 17 years after FRA's promulgation of the engineer
certification rule, Congress required the Secretary to prescribe
regulations establishing a program requiring the certification of train
conductors. See Rail Safety Improvement Act of 2008, Sec. 402, Public
Law 110-432, 122 Stat. 4884 (Oct. 16, 2008) (codified at 49 U.S.C.
20163). The Secretary delegated this authority to the Federal Railroad
Administrator. 49 CFR 1.89(b). To implement this statutory provision,
FRA established a Railroad Safety Advisory Committee (RSAC) Conductor
Certification Working Group (RSAC Working Group or Working Group) \2\
to make recommendations regarding the certification of train
conductors.\3\ In

2011, FRA published a final conductor certification rule. 76 FR 69802
(Nov. 9, 2011) (codified at 49 CFR part 242).
---------------------------------------------------------------------------

    \2\ The RSAC provides a forum for collaborative rulemaking and
program development. RSAC includes representatives from all of the
agency's major stakeholder groups, including railroads, labor
organizations, suppliers and manufacturers, and other interested
parties. For more information regarding the RSAC process and the
conduct of the Working Group, see 76 FR 69802, 69802-69804 (Nov. 9,
2011).
    \3\ RSAC accepted the task (Task No. 08-07, titled ``Conductor
Certification'') on December 10, 2008. This issue was thoroughly
discussed and analyzed at the part 242 RSAC Working Group meetings
and in the part 242 rulemaking documents. See 75 FR 69166, 69168
(Nov. 10, 2010).
---------------------------------------------------------------------------

    FRA's locomotive engineer certification regulation (Part 240)
provided a starting point for discussions on what requirements could be
appropriate for conductor certification and the final conductor
certification regulation (Part 242) is largely organized and comparable
to the locomotive engineer certification regulation. The NPRM FRA
published in 2010 in the conductor certification rulemaking noted that
the Working Group's accepted task statement included the discretion to
``consider any revisions to 49 CFR part 240 appropriate to conform and
update the certification programs for locomotive engineers and
conductors.'' 75 FR 69166, 69167 (2010). During the Working Group's
meetings, some members provided feedback to FRA on whether
corresponding amendments to the locomotive engineer rule were
preferable. However, this feedback was not part of a consensus
recommendation and, after considering the Working Group's discussions
and the limited scope of this proposed rule, FRA decided not to seek
RSAC recommendations on the contents of this proposed rule.
    FRA believes that issues that go beyond conforming FRA's locomotive
engineer regulation with FRA's conductor certification regulation and
updating and clarifying the existing requirements for locomotive
engineer certification are best saved for a separate, future
rulemaking. Accordingly, FRA is proposing to revise its regulation
governing the minimum requirements for the qualification and
certification of locomotive engineers to make certain provisions
consistent with its regulation for the qualification and certification
of conductors and to update and clarify, as appropriate, the existing
requirements of the locomotive engineer certification regulation.
    President Trump issued Executive Order 13771 (E.O. 13771),
``Reducing Regulation and Controlling Regulatory Costs,'' on January
30, 2017. E.O. 13771 seeks to ``manage the costs associated with the
governmental imposition of private expenditures required to comply with
Federal regulations'' and directs each executive department or agency
to identify for elimination two existing regulations for every new
regulation issued. E.O. 13771 also requires any new incremental cost
associated with a new regulation, to the extent permitted by law, be at
least offset by the elimination of existing costs associated with at
least two prior regulations. Similarly, Executive Order 13610,
``Identifying and Reducing Regulatory Burdens,'' issued May 12, 2012,
seeks ``to modernize our regulatory system and to reduce unjustified
regulatory burdens and costs'' and directs each executive agency to
conduct retrospective reviews of its regulatory requirements to
identify potentially beneficial modifications to regulations. 77 FR
28469. Executive agencies are to ``give priority, consistent with the
law, to those initiatives that will produce significant quantifiable
monetary savings or significant quantifiable reductions in paperwork
burdens while protecting public health, welfare, safety and our
environment.'' See id. at 28470.
    In compliance with these E.O.s, FRA expects this rulemaking will
reduce the railroad industry's overall regulatory, paperwork, and cost
burden without affecting safety on the nation's railroad system and, at
the same time, benefit individual locomotive engineers. FRA also
expects the proposals in this NPRM, if implemented, to generate savings
in governmental administrative costs by reducing FRA's Part 240
program's reliance on paper documents and conforming its review
processes under Part 240 as much as possible to those under Part 242.
FRA believes consistency in the processes, procedures and criteria
between Part 240 and Part 242 will not only lead to an overall
reduction in the regulatory, paperwork and cost burden on the railroad
industry, but also benefit individual locomotive engineers by making
the processes, procedures and requirements of the two certification
systems consistent to the extent possible. Over a 20-year period, FRA
estimates $11.6 million in total cost savings would accrue--a present,
discounted value of $6.1 million (7% discount).

II. Section-by-Section Analysis

Section 240.1 Purpose and Scope

    FRA proposes to amend paragraph (c) of this section to conform it
to paragraph (c) of Sec.  242.1. However, the intent of the paragraph
remains the same--i.e., even though a person may have a job
classification title other than ``locomotive engineer,'' the locomotive
engineer certification requirements of this rule apply to that person
if he or she meets the definition of locomotive engineer.

Section 240.3 Application and Responsibility for Compliance

    FRA proposes to amend Sec.  240.3 to clarify FRA's jurisdiction and
conform to Sec.  242.3. Section 242.3 provides that Part 242 applies to
all railroads except: (1) ``plant railroads''; (2) tourist, scenic,
historic or excursion operations that are not part of the general
railroad system of transportation; and (3) rapid transit operations in
an urban area that are not connected to the general railroad system of
transportation. As proposed, Sec.  240.3 provides that Part 240 applies
to all railroads with the same three exceptions.
    The first exception applies to ``plant railroads.'' Plant railroads
operate only on track inside installations (see proposed definition in
Sec.  240.7). Plant railroads' operations do not go beyond the plants'
boundaries and do not involve the switching of rail cars for entities
other than themselves.
    The second exception applies to ``tourist, scenic, historic, or
excursion operations that are not part of the general railroad system
of transportation'' (as defined in Sec.  240.7). In Sec.  240.7, FRA
proposes to define these operations as ``a tourist, scenic, historic,
or excursion operation conducted only on track used exclusively for
that purpose (i.e., there is no freight, intercity passenger, or
commuter passenger railroad operation on the track).'' This definition
is the same as the definition of the term in Part 242. Moreover,
excluding these types of railroads from Part 240 is consistent with
FRA's jurisdictional policy that already excludes these operations from
all but a limited number of Federal railroad safety requirements.
    The third exception covers rapid transit operations in an urban
area that are not connected to the general system. FRA notes that some
rapid transit operations, given their connections to the general
system, are within FRA's jurisdiction and FRA specifically intends Part
240 to apply to those operations, as it always has. FRA does not intend
for this proposed rule to have any effect on FRA's jurisdiction. A more
detailed analysis of the applicability of Part 240 is in the preamble
discussions of 49 CFR 240.3 in 64 FR 60966, 60974 (Nov. 8, 1999), 63 FR
50626, 50636-50637 (Sept. 22, 1998), and 56 FR 28228, 28240 (June 19,
1991).

Section 240.5 Effect and Construction

    FRA proposes to amend this section to conform it to 49 CFR 242.5
and, in the process, update the section with respect to issues of
preemption and ``flowback.'' Proposed paragraphs (a), (b), and (d) are
the same as the language currently in paragraphs (c), (d), and (f),
respectively. FRA proposes to remove existing paragraphs (a) and (b),
which address the preemption of State law. A member of the RSAC Working
Group recommended FRA not remove existing

paragraph (a) to prevent any ambiguity that Federal preemption of State
and local laws remains firmly in place. However, FRA believes these
paragraphs are unnecessary because 49 U.S.C. 20106 and other Federal
railroad safety statutes sufficiently address the preemptive effect of
FRA's regulations. Maintaining a separate Federal regulatory provision
concerning the regulation's preemptive effect is duplicative and
unnecessary.\4\ FRA notes that Part 242 does not contain any language
comparable to the language in existing paragraphs (a) and (b) of this
section. Because FRA is proposing removal of the preemption provisions,
FRA proposes to remove the word ``preemptive'' from the title of this
section and make the title the same as Sec.  242.5.
---------------------------------------------------------------------------

    \4\ This issue was thoroughly discussed and analyzed at the Part
242 RSAC Working Group meetings and in the Part 242 rulemaking
documents. See 75 FR 69166, 69168 (Nov. 10, 2010).
---------------------------------------------------------------------------

    New proposed paragraph (c) of this section addresses the issue of
``flowback'' and mirrors paragraph (c) of Sec.  242.5. Industry uses
the term flowback to describe a situation where an employee leaves his
or her current position to return to a previously held position or
craft. An example of flowback occurs when a person who holds a
conductor position subsequently qualifies for a locomotive engineer
position, and at some later point in time the person seeks to revert
back to a conductor position. An individual's reasons for reverting
back to a previous position or craft may be a personal choice or the
result of circumstances beyond the individual's control (e.g.,
downsizing).
    Many collective bargaining agreements address the issue of flowback
and, generally, FRA does not intend to create or prohibit any
individual's right to flowback or take a position on whether flowback
is desirable. Paragraph (c) of this section, however, must be read in
conjunction with proposed Sec.  240.308, which limits flowback in
certain situations. Therefore, as described in the section-by-section
analysis for Sec.  240.308 below, a person who holds both a conductor
and locomotive engineer certificate, and who has had his or her
locomotive engineer certificate revoked for certain violations, could
not work as a conductor during the period of revocation. In addition, a
person who holds both a conductor and locomotive engineer certificate,
and who has had his or her conductor certification revoked for certain
violations, could not work as a locomotive engineer during the period
of revocation.

Section 240.7 Definitions

    FRA proposes to amend this section by: (1) Adding definitions for
``conductor,'' ``drug and alcohol counselor,'' ``ineligible or
ineligibility,'' ``on-the-job training (OJT),'' ``physical
characteristics,'' ``plant railroad,'' ``remote control operator,''
``Substance Abuse Professional,'' ``territorial qualifications,'' and
``tourist, scenic, historic, or excursion operations that are not part
of the general system of transportation''; (2) revising the definitions
of ``file, filed and filing,'' ``FRA Representative,'' ``instructor
engineer,'' ``main track,'' ``medical examiner,'' ``qualified,''
``railroad rolling stock,'' and ``substance abuse disorder''; (3)
removing the definitions for ``EAP Counselor'' and ``newly hired
employee''; and (4) replacing the defined term ``service'' with the
term ``serve or service.'' These proposed amendments will make the
definitions in Part 240 consistent with the definitions in Part 242.
Conductor
    This rule proposes to adopt the definition of ``conductor'' used in
Part 242. Part 242 defines the term ``conductor'' as ``the crewmember
in charge of a `train or yard crew' as defined in part 218 of this
chapter.'' Title 49 CFR part 218 (Part 218) defines ``train or yard
crew'' as one or more railroad employees assigned a controlling
locomotive, under the charge and control of one crew member; called to
perform service covered by Section 2 of the (former) Hours of Service
Act; involved with the train or yard movement of railroad rolling
equipment they are to work with as an operating crew; reporting and
working together as a unit that remains in close contact if more than
one employee; and subject to the railroad operating rules and program
of operational tests and inspections required in Sec. Sec.  217.9 and
217.11 of 49 CFR chapter II.
    FRA's proposal to adopt the same definition of ``conductor'' as
Part 242 (referring to a single ``crewmember'') means, under Part 240,
only one person can be in charge of a train or yard crew and that
person is the conductor. In some circumstances, a locomotive engineer,
including a remote control operator (RCO), must be certified as both a
locomotive engineer under Part 240 and as a conductor under Part 242.
See 49 CFR 242.213(d). See also proposed Sec.  240.308. All other train
or yard crew members (e.g., assistant conductors, brakemen, hostlers,
trainmen, switchmen, utility persons, flagmen, yard helpers, and others
who might have different job titles, but perform similar duties and are
not in charge of a train or yard crew) are not ``conductors'' for
purposes of this proposed rule.
Drug and Alcohol Counselor (DAC)
    FRA proposes to adopt the definition of ``drug and alcohol
counselor'' used in Part 242. Part 242 defines the term to mean a
person who meets the credentialing and qualification requirements of a
``Substance Abuse Professional'' (SAP) under part 40. Defining the term
this way will avoid interfering with terms used in parts 40 and 219.
See Section-by-Section Analysis for ``Substance Abuse Professional.''
EAP Counselor
    FRA proposes to remove the definition for EAP Counselor (EAP) and
replace that term throughout Part 240 with either a SAP or DAC. This
proposed change will not only make Part 240's handling of substance
abuse issues the same as Part 242, but also should improve employee
confidence in the substance abuse evaluation process. See Section-by-
Section Analysis for ``Substance abuse disorder'' and ``Substance Abuse
Professional.'' A member of the RSAC Working Group suggested railroads
should be permitted to use EAPs interchangeably with SAPs and DACs
because small railroads cannot afford full-time employees with DAC/SAP
credentials. The RSAC Working Group thoroughly discussed and analyzed
this issue and the issue is discussed in the Part 242 rulemaking (see
75 FR 69166, 69171 (Nov. 10, 2010); 76 FR 69802, 69816-69817 (Nov. 9,
2011)). Because replacing EAPs with SAPs and DACs in Part 242 received
unanimous consensus from the RSAC Working Group and the full RSAC
accepted the proposal in developing Part 242, FRA declines to propose
this RSAC Working Group member's alternative approach in Part 240.
File, Filed, and Filing
    FRA proposes to remove the ``on or after September 4, 2001''
language from the existing definition of ``file, filed, and filing''
because the date is obsolete. To conform the definition to the same
term in Part 242, FRA also proposes to add ``DOT'' to the term ``Docket
Clerk'' and a reference to ``FRA'' to acknowledge that, under this
proposed rule, documents will either be filed with the DOT Docket Clerk
or, in the case of proposed Sec.  240.103, with FRA.

    A member of the RSAC Working Group suggested FRA add the following
sentence to the definition of ``file, filed, filing'': ``In the
application of Section 240.103, a document is not considered properly
filed unless it is simultaneously served upon the president of each
labor organization that represents the railroad's employees subject to
this part.'' FRA is not proposing to adopt this suggestion because FRA
is proposing to revise Sec.  240.103 to require railroads to serve
copies of their locomotive engineer programs on the president of each
labor organization that represents each railroad's employees subject to
Part 240. Thus, adopting this suggestion would duplicate the proposed
requirement in Sec.  240.103.
FRA Representative
    FRA proposes to revise this definition to conform to the definition
of ``FRA Representative'' in Part 242 and update the title of the
Associate Administrator referenced in that definition.
Ineligible or Ineligibility
    FRA proposes to add the same definition of this term as the
definition of ``ineligible or ineligibility'' in Part 242 and to
describe some instances when a person may not serve as a locomotive
engineer. The proposed term ``ineligible or ineligibility'' means that
a person is legally disqualified from serving as a certified locomotive
engineer. The term is broadly defined to cover a number of
circumstances when a person may not serve as a certified locomotive
engineer. Revocation of certification under Sec.  240.307 and denial of
certification under Sec.  240.219 are two examples when a person would
be ineligible to serve as a certified locomotive engineer. A period of
ineligibility may end when a condition or conditions are met. For
example, a period of ineligibility may end when a person meets the
conditions to serve as a certified locomotive engineer following an
alcohol or drug violation under Sec.  240.119.
    FRA's original suggested text presented to the RSAC Working Group
defined ``ineligible or ineligibility'' to be when a person is legally
disqualified from serving as a ``locomotive engineer.'' A member of the
RSAC Working Group suggested FRA insert ``certified'' before
``locomotive engineer'' each place ``locomotive engineer'' appears in
the definition because there might be circumstances where a person
performs duties a railroad designates to be performed by an
``engineer,'' but the duties do not require a ``certified'' engineer
under Part 240. Because we propose to use the same definition of
``ineligible or ineligibility'' in Part 240 as Part 242, and Part 242
contains the term ``certified,'' FRA is adopting this suggestion in
this proposed rule.
    Other members of the RSAC Working Group suggested that the term
``suspension'' should be inserted into the definition as another
example of when a person would be ineligible to serve as a locomotive
engineer. Part 242 does not define ``ineligible or ineligibility'' to
include ``suspension'' and FRA declines to include it in this proposed
rule. Consistent with the definition of the term ``ineligible or
ineligibility'' in Part 242, the proposed definition of ``ineligible or
ineligibility'' in this rule means that a person is ``legally
disqualified from serving'' as a certified locomotive engineer for any
railroad. A suspension by one railroad, however, does not create a
legal disqualification by all other U.S. railroads that may have
certified the individual. The disqualification is legally binding when
a person's certification is denied or revoked.
Instructor Engineer
    FRA proposes to revise the definition of ``instructor engineer'' to
make it as similar as possible to the definition of ``qualified
instructor'' in Part 242. The existing Part 240 definition does not
include a role for ``designated employee representatives'' as the
corresponding provision in Part 242 does. Thus, consistent with Part
242's definition of ``qualified instructor'' FRA proposes to amend the
definition of ``instructor engineer'' in Part 240 to: (1) Establish a
role for employee representative participation; and (2) establish
methods for identifying instructors through railroad and employee
representative coordination, as well as by the railroad unilaterally.
The slight differences FRA proposes to leave between the definitions
are necessary to recognize that engineers operate trains and conductors
do not.
    In both Parts 240 and 242, the designation of a certified person as
an instructor recognizes that the person chosen can instruct other
similarly certified persons. Not every certified person is viewed as
automatically having ``the necessary operating experience to
effectively instruct in the field.'' An instructor is typically not a
railroad officer or supervisor, but instead a person with current,
relevant experience who can be counted on to impart knowledge and
demonstrate safety-related tasks through on-the-job (OJT) training.
Senior certified people are often chosen as instructors, although some
senior people may not be good at teaching others and some certified
people who are not considered senior may be excellent teachers.
    Under the proposed requirements, a designated railroad officer and
a designated employee representative may agree that a particular
certified engineer should be an instructor engineer because the person
is recognized as having the knowledge, skill, and ability ``to teach
others proper train handling procedures.'' Because it is unnecessary
for conductors to understand proper train handling procedures, Part 242
does not include such a requirement when a railroad and employee
representative select an instructor. However, FRA believes that when a
railroad and employee representative select an instructor engineer, the
paramount concern is whether the person can teach proper train handling
procedures and therefore FRA proposes to retain that language in the
Part 240 instructor definition.
    If the railroad and designated employee representative cannot agree
on the selection of a person as an instructor, Part 242 establishes
that the railroad can unilaterally select the person as long as the
person ``has a minimum of 12 months service working as a train service
employee.'' This Part 242 concept is carried over in the proposed Part
240 definition with the exception that the phrase ``as a train service
employee'' is replaced with ``in the class of service for which the
person is designated to instruct.'' The difference between the two
regulatory provisions recognizes the uniqueness of the locomotive
engineer position, as compared to other train service employee
positions. Only locomotive engineers operate locomotives or trains,
while other train service employees line switches for trains, help
locomotive engineers make shoving or pushing movements safely, and help
trouble shoot mechanical or brake failures. Thus, a conductor with 12
months of service working as a train service employee may have enough
experience to instruct conductor candidates. Meanwhile, because of the
different classes of locomotive engineer service, FRA proposes a
minimum service requirement in the class of service for which a person
is designated to instruct. Consequently, because a locomotive servicing
engineer is not permitted to move a locomotive or group of locomotives
with cars attached, a person who is a certified locomotive servicing
engineer for 12 months or more would potentially be qualified to
instruct candidates for locomotive servicing engineer certification,
but not

candidates for train service engineer service certification if cars
would be attached to the movement.
    The final Part 242 provision FRA is proposing as a requirement for
Part 240 instructor engineers addresses the question of what a railroad
may do when employees do not have designated employee representation.
Under that scenario, a railroad may designate any certified locomotive
engineer as an instructor engineer if the person has demonstrated the
necessary qualifications under the railroad's written certification
program. This provision is the same as the Part 242 provision, except
that the Part 242 provision refers to conductors. This provision gives
the maximum flexibility to short line railroads and other railroads
where employees do not have designated representatives.
    A member of the RSAC Working Group recommended FRA remove the
requirement to have 12 months of experience from Part 242 and not
propose it for Part 240. The member asserted the reduced locomotive
engineer population in small railroads will make it impractical if not
impossible for all instructor engineers to have this level of
experience. FRA notes that as proposed, not all instructor engineers
will be required to have a minimum of 12 months of experience in the
class of service for which the person is designated to instruct. If a
railroad does not have designated employee representation, or if the
designated employee representative concurs with the instructor
selection, then the proposed 12 months of experience requirement is not
applicable. Accordingly, FRA declines to adopt the recommendation.
    Other RSAC Working Group members suggested that a Part 240 proposed
rule should define what constitutes a month, and that one tour of duty
in a calendar month should not count as a month. No such limitation is
included in Part 242. FRA believes it is in a railroad's best interests
to designate instructors who have experience and have demonstrated they
can effectively teach others. The proposed definition of ``instructor
engineer'' includes the requirement that a railroad's program must
contain the criteria the railroad will use to determine who may be an
instructor. As such, FRA declines to include a requirement in this
proposed rule defining what constitutes a month of experience because
there appears to be sufficient safeguards to prevent a railroad from
designating instructors with subpar qualifications.
    During the RSAC Working Group meetings, FRA suggested using the
term ``train service engineer'' in the definition of ``instructor
engineer'' (i.e., FRA's suggested text would have required a person to
have a minimum of 12 months of service working as a ``train service
engineer''). A member of the RSAC Working Group questioned this
suggestion by asking FRA to clarify whether the purpose of this
restriction would restrict RCOs and hostlers from participating as
instructor engineers in the training of other RCOs and hostlers.
    After careful consideration of this RSAC Working Group member's
response, FRA realized that the suggestion had an unintended
consequence. Part 240's current definition of ``instructor engineer''
does not restrict instructor engineers to only those people who are in
the train service engineer class and FRA does not intend to introduce
such a limitation in this proposed rule. Rather, FRA intends to permit
a train service engineer or, where appropriate, a locomotive servicing
engineer (as described in Sec.  240.107) or RCO to serve as an
``instructor engineer'' within the parameters of that person's class.
Accordingly, as noted above, FRA proposes that in situations where
concurrence is needed between the railroad and the designated employee
representative in selecting an instructor engineer, and concurrence is
not reached, the person selected must have a minimum of 12 months of
service working in ``the class of service for which the person is
designated to instruct.'' For example, a person who had not received
concurrence could not serve as an instructor engineer regarding the
handling of a locomotive coupled to cars unless that person had a
minimum of 12 months of service working as a train service engineer (as
described in Sec.  240.107).
    Given this background, consistent with Part 240's existing
definition of ``instructor engineer,'' as proposed, RCOs and hostlers
could be instructor engineers conducting training of other RCOs and
hostlers. To be clear, under both the existing requirements and this
proposed rule, any certificate can be restricted, and an instructor can
be limited to instructing based on the class of service and the
restriction. Presumably, an instructor engineer for RCOs or hostlers
may be designated and certified as a train service engineer or
locomotive servicing engineer but potentially limited to instructing
only in the certain types of work for which the person is qualified.
Thus, a person designated as an instructor engineer for RCOs may hold a
certification that identifies him or her as a train service engineer
restricted to RCO work. Other instructor engineers for RCOs may be
designated as train service engineers with no restrictions. Similarly,
instructor engineers for hostlers may be designated as train service
engineers or locomotive servicing engineers with no restrictions, or
train service engineers or locomotive servicing engineers restricted to
yard or yard-type work. Of course, consistent with existing Part 240,
under this proposed rule, a person may not serve as an ``instructor
engineer'' if the person fails to meet the requirements of an
``instructor engineer'' described in that definition in Sec.  240.7.
Main Track
    FRA proposes to revise the definition of ``main track'' to be the
same as the definition of ``main track'' in Part 242 by including a
reference to positive train control as a method of operation that would
make a track a ``main track.''
Medical Examiner
    FRA proposes to revise the definition of ``medical examiner'' to be
the same as the definition of ``medical examiner'' in Part 242 by
removing the portion of the existing definition stating that the
medical examiner owes ``a duty to the railroad.'' Instead, consistent
with Part 242, the proposed definition says ``the medical examiner owes
a duty to make an honest and fully informed evaluation of the condition
of an employee.''
Newly Hired Employee
    FRA proposes to delete the definition of ``newly hired employee''
because that term is not used in Part 240.
On-the-Job Training (OJT)
    The term ``on-the-job training'' means job training that occurs in
the workplace, i.e., the employee learns the job while doing the job.
In Sec.  243.5 of this chapter, OJT is described as a type of ``formal
training'' that has a structured and defined curriculum, and that
provides an opportunity for training participants to have questions
timely answered during the training or at a later date. In appendix B
to this part (Appendix B), FRA mentions OJT as one type of training
that a railroad may describe in its locomotive engineer certification
program.
Operator Control Unit (OCU)
    FRA proposes to add a definition of OCU to Part 240 that is the
same as that used in part 229 of this chapter. FRA proposes to add this
definition so the proposed RCO class of service in Sec.  240.107 can be
precisely explained using the same terms FRA uses in describing the
equipment safety standards required for remote control

locomotives in Sec.  229.15 of this chapter. The conductor
certification rule does not contain a definition of OCU because, for
purposes of that rule, an RCO is a certified locomotive engineer.
Physical Characteristics
    The term ``physical characteristics'' is used throughout existing
Part 240, but is not defined. Accordingly, FRA proposes to add the same
definition for the term used in Part 242. As proposed, ``physical
characteristics'' would mean the actual track profile of and physical
location for points within a specific yard or route that affect the
movement of a locomotive or train, and include both main track physical
characteristics and other than main track physical characteristics.
Plant Railroad
    FRA proposes adding a definition of ``plant railroad'' in this
proposed rule to be the same as the definition of ``plant railroad'' in
Part 242 and clarify the applicability of Part 240 as described in
Sec.  240.3. The definition is consistent with FRA's longstanding
policy of not exercising its jurisdiction over a plant railroad that
does not operate on the general system of railroad transportation and
does not move cars for other entities. See 49 CFR part 209, app. A.
Qualified
    FRA proposes to revise the definition of ``qualified'' to be the
same as the definition of ``qualified'' in Part 242 and to ensure the
completeness of a railroad's instruction and training program. The
current definition in Part 240 focuses on an individual's knowledge
whereas the proposed definition in this rule focuses not only on the
individual's knowledge but also on whether the individual could
reasonably be expected to be proficient at performing all assigned
tasks. The update to the definition of ``qualified'' is to ensure a
railroad's instruction and training program not only provides knowledge
of how to perform a task but also adequately prepares an individual to
be able to proficiently perform the task. For example, a qualified
locomotive engineer would need to be taught the railroad's rules and
procedures for performing different types of brake tests. An individual
who receives classroom training only would be expected to have the
requisite knowledge to perform the brake tests, and an individual who
is provided OJT or hands-on training would be expected to be able to
proficiently perform the tasks required that make up the brake test
requirements. Without both knowledge and hands-on practice, the person
could not be expected to be qualified to perform brake tests. Some
members of the RSAC Working Group suggested an alternative definition
of ``qualified'' emphasizing that the employer's requirements must be
``identified in the plan submitted in accordance with'' Part 240. FRA
understands the RSAC Working Group members who made this suggestion
were concerned that an employer might have qualification requirements
outside of a railroad's locomotive engineer certification plan
submitted to FRA. Part 242 does not address this issue and FRA declines
to propose such a provision in Part 240. FRA does, however, encourage
interested parties to comment on the proposed definition of
``qualified.''
Railroad Rolling Stock
    FRA proposes to revise the definition of ``railroad rolling stock''
to be the same as the definition of the term in Part 242 (i.e., on-
track equipment that is either a ``railroad freight car'' (as defined
in Sec.  215.5) or a ``passenger car'' (as defined in Sec.  238.5)).
This proposed definition is the same as the current definition of
``railroad rolling stock'' in Part 240 except for adding the word
``railroad'' in front of ``freight car'' to mirror the definition in
Sec.  215.5.
Remote Control Locomotive (RCL)
    FRA proposes to add a definition of RCL to Part 240 that is the
same as the definition in Sec.  229.5. FRA is proposing to include this
definition in Part 240 so the proposed RCO class of service in Sec.
240.107 can be precisely explained using the same terms FRA uses in
describing the equipment safety standards required for an RCL in Sec.
229.15. As proposed, with the use of a radio link, an individual does
not have to be physically within the confines of an RCL's cab to
operate the RCL. By definition, the term RCL does not refer to a
locomotive or group of locomotives remotely controlled from the lead
locomotive of a train, as in a distributed power arrangement.
Serve or Service
    FRA proposes to replace the definition of ``service'' with a
definition of ``serve or service.'' By replacing the definition, the
terminology and definition will be the same as in Part 242. Service is
a legal term and is given specific meaning in the Federal Rules of
Civil Procedure, which explains why FRA references it. One party serves
another party with a document, thereby performing a legal obligation to
notify the other party. The act of serving a party with a document is
the act of performing service. The words are used interchangeably in
the regulation, but FRA is making the change as it may help some
readers better understand that serve and service have the same meaning.
For example, in proposed Sec.  240.307(c)(11)(iii), FRA proposes that a
railroad issuing a decision must serve that decision on the employee
and the employee's representative, if any, as well as a requirement for
the railroad to retain proof of that service.
Substance Abuse Disorder
    FRA proposes to revise the definition of ``substance abuse
disorder'' to be the same as the definition of the term in Part 242.
Under this definition, a substance abuse disorder is ``active'' if the
person: (1) Is currently using alcohol or other drugs, except under
medical supervision consistent with Sec.  219.103; or (2) has failed to
successfully complete primary treatment or successfully participate in
aftercare as directed by a SAP or DAC. This definition varies from the
existing definition in Part 240 in two respects. First, Part 240's
existing definition refers to an ``EAP Counselor'' rather than a SAP or
DAC. SAPs and DACs may be better qualified to direct an individual's
treatment or aftercare because they have more stringent credential,
knowledge, training, and continuing education requirements relating to
substance abuse than EAPs. Second, existing Part 240 also uses the
phrase ``is currently using alcohol and other drugs'' to describe
active substance abuse disorders. As proposed, this definition would
revise that phrase to read ``is currently using alcohol or other
drugs'' to clarify that an individual with an active substance abuse
disorder could be using alcohol or other drugs. Additional discussion
of this definition is found in the preamble to the conductor
certification final rule. 76 FR at 69817.
Substance Abuse Professional (SAP)
    FRA proposes to add the same definition of the term ``substance
abuse professional'' as in Part 242. As proposed, ``substance abuse
professional'' is defined to mean ``a person who meets the
qualifications of a substance abuse professional, as provided in part
40 of this title.'' Part 40 defines a SAP as ``[a] person who evaluates
employees who have violated a DOT drug and alcohol regulation, and
makes recommendations concerning education, treatment, follow-up
testing and aftercare.'' See 49 CFR 40.3.
    By definition, a SAP may evaluate and treat only an employee who
has committed a violation of FRA's alcohol and drug regulation (Part
219), such as

the prohibitions in Sec. Sec.  219.101 and 219.102. An employee who may
have a substance or alcohol abuse problem but has not violated Part 219
is therefore not eligible for SAP referral. Accordingly, FRA proposes
to use the term SAP in Sec.  240.119(d), which addresses the follow-up
that must occur after a Part 219 violation. However, because off-duty
driving of a motor vehicle under the influence (DUI) is not a Part 219
violation, the follow-up required by Sec.  240.115 for a DUI conviction
may not be completed by a SAP. Therefore, for those sections of Part
240 that address drug and alcohol evaluation requirements not involving
a Federal violation, FRA is proposing to replace the term SAP with the
term DAC. As used in this proposed rule, a DAC will have to meet the
same qualifications as a SAP. FRA believes these changes will avoid
interfering with Parts 40 and 219 while requiring higher qualification
and credentialing requirements for persons evaluating substance abuse
disorders.
Territorial Qualifications
    FRA proposes to add to Part 240 the same definition for the term
``territorial qualifications'' as in Part 242. As proposed,
``territorial qualifications'' means ``possessing the necessary
knowledge concerning a railroad's operating rules and timetable special
instructions including familiarity with applicable main track and other
than main track physical characteristics of the territory over which
the locomotive or train movement will occur.''
    Although not currently defined in Part 240, the term is derived
from Part 240's requirement that, with certain exceptions, a locomotive
engineer may not operate a locomotive over a territory unless the
engineer is ``qualified on the physical characteristics of the
territory.'' See Sec.  240.231. The proposed definition would clarify
what ``territorial qualifications'' means in proposed revisions to
Sec. Sec.  240.125, 240.221, and 240.309.
Tourist, Scenic, Historic, or Excursion Operations That Are Not Part of
the General Railroad System of Transportation
    FRA proposes to add to Part 240 the same definition for the phrase
``tourist, scenic, historic, or excursion operations that are not part
of the general railroad system of transportation'' as in Part 242. As
proposed, the phrase means a tourist, scenic, historic, or excursion
operation conducted only on track used exclusively for that purpose
(i.e., there is no freight, intercity passenger, or commuter passenger
railroad operation on the track). If there is any freight, intercity
passenger, or commuter passenger railroad operation on the track, the
track would be considered part of the general system. See part 209,
app. A. See the Section-by-Section analysis of Sec.  240.1 for further
discussion of the applicability of Part 240 to these types of railroad
operations.

Section 240.11 Penalties and Consequences for Noncompliance

    FRA proposes a minor amendment to paragraph (d) of this section.
FRA proposes to revise the words ``Federal Railroad Safety Act'' (FRSA)
in that paragraph to read ``Federal rail safety laws'' to more
accurately describe the source of FRA's authority since the
recodification of the laws comprising the former FRSA. See Public Law
103-272, 108 Stat. 745 (July 5, 1994). This revision would also make
the paragraph the same as Sec.  242.11(d).

Section 240.103 Approval of Design of Individual Railroad Programs by
FRA

    FRA proposes two amendments to this section, which will make the
filing and FRA approval process for individual railroads' Part 240
programs the same as for conductor certification programs under Sec.
242.103. Specifically, FRA proposes revising paragraphs (b) and (c) of
this section to require railroads to serve a copy of their program
submissions, resubmissions, and material modifications on the president
of each labor organization that represents the railroad's certified
locomotive engineers. It also would allow any designated representative
of certified locomotive engineers to submit comments to FRA on the
railroad's submission within 45 days of the railroad's filing with FRA.
Although FRA, not the commenters, will decide whether to approve a
railroad's submission, FRA expects comments will be useful in
determining whether the railroad's program conforms to the criteria in
this proposed rule. These proposed changes would be in newly added
paragraphs (b) and (c). Consequently, FRA proposes redesignating
existing paragraphs (b) through (e) as paragraphs (d) through (g), to
make the language of these paragraphs consistent with Sec.  242.103(e)-
(h). Also, FRA is proposing to redesignate existing paragraph (c)(2) as
paragraph (e)(2) and then revise that paragraph to be the same as Sec.
242.103(g)(2), indicating that a deficient program may remain in effect
for a specified period of time ``so long as the railroad has complied
with the requirements'' for resubmission found in another paragraph of
this section.
    In proposed paragraph (h) (which revises existing paragraph (e) and
is the same as paragraph (i) of Sec.  242.103), FRA would require a
railroad intending to materially modify its FRA-approved program to
submit to FRA a description of its intended material modification 60
days before implementing the modification (as opposed to the current
requirement to do so 30 days in advance). This proposed revision would
allow time for the labor organizations to comment on the proposed
modification(s) under proposed paragraph (c) of this section and for
FRA to consider any comments from the relevant labor organizations.
    In developing this NPRM, FRA considered proposing to require
railroads to file their complete Part 240 programs (including any
modifications made as a result of this rule) with FRA and serve those
complete programs on the president of each labor organization that
represents the railroad's certified locomotive engineers. Although the
proposed requirement to serve programs would be new to Part 240, FRA
considered that Part 240 was effective in 1991 and it would be expected
that each president of a relevant labor organization that wanted a copy
of a railroad's locomotive engineer certification program would have
obtained it by now. FRA thus views the proposed conforming amendment as
requiring a railroad to serve material modifications or wholly new
programs on the president of each labor organization that represents
the railroad's certified locomotive engineers but not a program that is
revised due to promulgation of this rule. FRA requests comment on the
potential adoption of such a requirement in a final rule.

Section 240.105 Criteria for Selection of Designated Supervisors of
Locomotive Engineers

    This existing section requires each railroad to designate certain
supervisors qualified to test and evaluate the knowledge and skills of
locomotive engineers. FRA proposes to add new paragraph (d) to address
that some designated supervisors of locomotive engineers (DSLEs) may
not be train service engineers. Those that are locomotive servicing
engineers or remote control operators may still be DSLEs, but the range
of their supervision would be limited by the railroad to the person's
actual qualifications. Although the existing rule does not prohibit a
railroad from creating a DSLE subset known as Designated Supervisor of
Remote Control Operators (DSRCOs), and many have done just that, the
addition of

proposed paragraph (d) recognizes that each railroad is authorized to
make such designations that apply additional conditions or operational
restrictions on the service that a DSLE may perform just as each
railroad may apply conditions and restrictions on any person's
certificate. Because Part 242 does not differentiate among different
classes of service for conductors, there is no comparable provision to
proposed paragraph (d) in Part 242. FRA intends proposed paragraph (d)
to help railroads effectively differentiate among the potential
different DSLE classes of service contemplated by Part 240.

Section 240.107 Types of Service

    FRA is proposing several changes to this section, including a
change to the heading of this section. The current section heading is
``Criteria for designation of classes of service,'' and the proposed
change would make it the same as the section heading in its Part 242
counterpart.
    In existing paragraph (a), each railroad is required to state in
its program which of the three classes of service named in paragraph
(b) it will cover (i.e., train service engineers, locomotive servicing
engineers, and student engineers). FRA proposes to add two additional
classes of service to paragraph (b) (i.e., remote control operators and
student remote control operators). Thus, FRA proposes to revise
paragraph (a) to remove the specific reference to ``three'' because
paragraph (b) would now list five classes of service. However, those
railroads that already name remote control operators as a class of
service in a Part 240 program or do not conduct remote control
operations would not need to make any change to their programs as a
result.
    Existing paragraph (c) requires railroads to apply certain
operational constraints to each class of service. The proposed changes
to paragraph (c) are intended to add operational constraints for the
two new classes of service. In paragraph (c)(3), FRA proposes to add
operational constraints to the proposed RCO class of service. This new
class of service recognizes that many railroads now employ and train
individuals who have never operated conventional locomotives, but are
instead restricted to operations using an RCL controlled solely by an
OCU. Currently, many railroads use RCLs for switching movements or low-
speed operations on main track as Sec.  229.15(a)(14) limits this
equipment to a maximum speed of 15 mph. An individual certified as a
``train service engineer'' under Sec.  240.107(c)(1) may operate any
type of locomotive, whether conventionally operated from the control
stand in the locomotive cab or remotely controlled, and with or without
cars or other locomotives coupled to the controlled locomotive. An
individual certified as a ``locomotive servicing engineer'' under Sec.
240.107(c)(2) may operate any type of locomotive, whether
conventionally operated from the control stand in the locomotive cab or
remotely controlled, with other locomotives coupled to the controlled
locomotive but not with cars coupled to the movement. An RCO is
distinguishable from these other classes of service because an RCO is
limited to operating only remotely controlled locomotives by using the
OCU. The industry currently recognizes that an RCO's service is limited
by the type of locomotive and controls used. The changes proposed in
paragraph (c)(3) catch up to this industry practice.
    Existing paragraph (c)(3), which address student engineers, would
be redesignated as paragraph (c)(4) with the addition of student RCOs.
As proposed, paragraph (c)(4) provides that any student, operating any
locomotive, whether conventionally operated from the control stand in
the locomotive or from an OCU, is operationally constrained because
each student may operate only under the direct and immediate
supervision of an instructor engineer. FRA recognizes that in order to
learn some RCO duties, an instructor engineer may be separated from the
student RCO by a significant physical distance; under those
circumstances, the instructor engineer would be required to have some
override feature or ability to stop the student's remotely controlled
locomotive or train movement. However, in each case, the instructor
must observe the student's actions to properly monitor the student's
activities. This supervision requirement could not be accomplished if,
while riding the point on an RCO move, the student RCO was on one side
of the car and the instructor was on the other side. If both the
student RCO and instructor were riding the same side of the car (on
each end) and the instructor has the ability to stop the move, this
would meet the intent of the regulation.
    The existing rule requires, at a minimum, a student certification
for any person operating a locomotive in any capacity, and the type of
student certification may further limit the person's authority to
operate equipment. For example, an individual who is a student
locomotive serving engineer would be prohibited from operating with a
locomotive coupled to cars--even if operating under the direct and
immediate supervision of a qualified instructor engineer. Similarly, as
proposed, a student RCO is operationally constrained from operating a
conventional, i.e., a non-remotely controlled locomotive, even if the
student RCO is under the direct and immediate supervision of an
instructor engineer.

Section 240.111 Individual's Duty To Furnish Data on Prior Safety
Conduct as Motor Vehicle Operator

    Existing Sec.  240.111 requires persons subject to Part 240 to make
information on his or her motor vehicle driving record available to any
railroad considering the individual for certification or
recertification under Part 240, unless the person reports to the
railroad that he or she has never obtained a motor vehicle driver's
license. Because obtaining a motor vehicle driver's license is not a
precondition for obtaining locomotive engineer certification, an
individual who reports that fact to a railroad is not required under
Part 240 to request the non-existent driving history.
    FRA proposes a change to paragraph (a)(2) that would add the words
``or foreign law'' to clarify that the reference to ``State or Federal
law'' is not limited to driver licenses issued within the United
States. An individual's duty under this section extends to providing
any necessary consent under foreign law to obtain information from
foreign countries that issued the person a motor vehicle driver's
license. This proposed change to paragraph (a)(2) would make the
requirement the same as the corresponding requirement in Sec.
242.111(g)(2). Similarly, the proposed changes to paragraphs (c)(1) and
(2) would make the paragraphs the same as Sec.  242.111(i)(1) and (2)
so that the same requirements would apply to both engineers and
conductors to request driver's license information, whether issued in
the United States or by a foreign country.
    One difference between the locomotive engineer and conductor
certification requirements that this proposed rule does not address is
that those seeking locomotive engineer certification must request motor
vehicle information from the National Driver Register (NDR), even
though the NDR statute and regulation (see 49 U.S.C. chapter 303 and 23
CFR 1327) prohibit railroads from requesting NDR information from
individuals seeking employment as certified conductors. In 1991, States
were not required to provide information to NDR and there only were a
limited number of State licensing agencies that had the capacity to
make a direct NDR inquiry. Today,

however, each State and the District of Columbia are required to send
information on all revocations, suspensions, and license denials within
31 days of receipt of the convictions from the courts to the NDR and
each of these driver licensing agencies has the capability to provide
NDR's data. 49 U.S.C. 30304. With that understanding, proposed changes
to paragraphs (d) and (e) remove an outdated reference to a list of
driver licensing agencies that used to reside in appendix D, and the
proposed substitution clarifies that each State and the District of
Columbia are able to perform a check of the NDR. As NDR explains,
``[t]he entire driver history record for a licensed driver is
maintained at the State level.'' \5\ Thus, under paragraph (d), there
is no need to request information directly from NDR if a State or the
District of Columbia issued the person a driver's license and a request
is sent directly to the motor vehicle license agency that issued the
license. Under paragraph (e), an individual issued a driver's license
by one of the driver licensing agencies of a State or the District of
Columbia shall request that the NDR information be added to the
request.
---------------------------------------------------------------------------

    \5\ https://www.nhtsa.gov/research-data/national-driver-register-ndr.
---------------------------------------------------------------------------

    Again, because Part 240 requires NDR record checks and Part 242
does not, changes are proposed for paragraph (f) that are similar, but
not identical to Sec.  242.111(j). These paragraphs address how a
railroad must potentially contact additional motor vehicle licensing
agencies when an individual's motor vehicle record reveals that
additional information concerning that person's driving history may
exist in the files of another agency not previously contacted. The
proposed changes to paragraph (f) would address what an individual must
do when a railroad is informed by an authority with driver's license
information that additional information about the individual may exist
in files of a foreign country.
    Existing paragraph (h) requires certified locomotive engineers or
engineer candidates to report certain motor vehicle incidents to his or
her 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 incidents. FRA proposes to amend
paragraph (h) so it is the same as the corresponding conductor
certification requirement in Sec.  242.111(l) by adding: ``For purposes
of this paragraph and Sec.  240.115(h), `state action' means action of
the jurisdiction that has issued the motor vehicle driver's license,
including a foreign country.'' Thus, the proposed change would clarify
that an individual who is a certified engineer has a duty to report
certain motor vehicle incidents to any railroads that have certified
the person within 48 hours of the completed ``state action'' by both
U.S. states that issue driver licenses and foreign countries.
    Several members of the RSAC Working Group suggested FRA remove the
requirement for an individual seeking certification or recertification
as a locomotive engineer to request that the railroad be provided
consent to request from the NDR a report of the person's motor vehicle
driving history. Because those checks of the NDR are statutorily
required for locomotive engineers, FRA cannot eliminate them. See 49
U.S.C. 20135(b)(6)(B).

Section 240.113 Individual's Duty To Furnish Data on Prior Safety
Conduct as an Employee of a Different Railroad

    Existing Sec.  240.113 requires persons subject to Part 240 to make
information on his or her prior railroad service record available to
any railroad considering the individual for certification or
recertification under Part 240. FRA proposes amending paragraph (a) of
this section to make it conform as closely as possible to paragraph (c)
of Sec.  242.113 and to clarify what service record information an
individual must request from a former railroad employer. Currently,
paragraph (a) requires the person ``to make information concerning his
or her prior railroad service record available to the railroad that is
considering'' his or her certification or recertification. This
proposed rule would require an individual to share only a subset of his
or her prior railroad service record (i.e., only information on an
individual's compliance or non-compliance with Sec. Sec.  240.111
(prior safety conduct as a motor vehicle operator), 240.117 (prior
operating rule or practice violations), and 240.119 (prior substance
abuse disorders and alcohol/drug rules compliance)).

Section 240.115 Criteria for Consideration of Prior Safety Conduct as a
Motor Vehicle Operator

    This section provides the requirements and procedures a railroad
must follow when evaluating an engineer's or engineer candidate's prior
conduct as a motor vehicle operator. FRA proposes revising this section
in its entirety to be consistent with paragraphs (a) through (f), and
(n) and (o) of Sec.  242.111. Proposed paragraph (a) requires railroads
to adopt and comply with an engineer certification program meeting the
requirements of Sec.  240.115. Proposed paragraph (b) requires
railroads to determine if an individual meets the eligibility
requirements of the section before initially certifying or recertifying
the person.
    Proposed paragraphs (c) through (f) incorporate the same temporary
certification provisions as in paragraphs (c) through (f) of Sec.
242.111. During RSAC Working Group meetings, members raised concerns
about certification candidates who had properly requested motor vehicle
operator information but could not be certified or recertified as
locomotive engineers because of a driver licensing agency's delay or
mix-up sending the required information to the railroad. To address
this concern as it relates to conductors, paragraphs (c) and (d) of
Sec.  242.111 require railroads to certify or recertify an individual
as a conductor for 60 days if the person: (1) Requested the required
information at least 60 days prior to the date of the decision to
certify or recertify; and (2) otherwise meets the eligibility
requirements provided in the rule. Paragraph (e) of Sec.  242.111
provides that if a railroad certifies or recertifies an individual as a
conductor for 60 days under Sec.  242.111, but cannot obtain and
evaluate the required information during those 60 days, the person is
ineligible to perform as a conductor until the information can be
evaluated. However, paragraph (f) of Sec.  242.111 provides that if an
individual simply cannot obtain the required information, that person
or the certifying or recertifying railroad can petition FRA for a
waiver of the requirement (see part 211). During the pendency of the
waiver request, a railroad must certify or recertify an individual as a
conductor if the person otherwise meets the eligibility requirements of
Part 242. Because the RSAC Working Group's concerns regarding motor
vehicle operator information for conductors are equally applicable to
locomotive engineers, FRA proposes to adopt the same temporary
certification provisions of Sec.  242.111(c) through (f) in Sec.
240.115(c) through (f).
    With the exception of citations to relevant sections of Part 240,
proposed paragraphs (g) and (h) of this section are the same as
paragraphs (m) and (n) of Sec.  242.111. These paragraphs prohibit
railroads from considering certain information about a certification
candidate's motor vehicle driving record and specify the types of motor
vehicle incidents that a railroad may consider when making a
certification decision.
    FRA proposes paragraph (i) of this section to be the same as
paragraph (o) of Sec.  242.111, which provides that if a railroad
identifies a prior motor vehicle

incident it must provide the data along with ``any information
concerning the person's railroad service record'' to its DAC (not an
``EAP Counselor'' as existing paragraph (c) of Sec.  240.115 provides).
Further, the same as paragraph (o) of Sec.  242.111, proposed paragraph
(i) would require the railroad's DAC to refer the certification
candidate for evaluation to determine if the person is currently
affected by an active substance abuse disorder. If the person is
currently affected by such a disorder, the person cannot be currently
certified. Alternately, even if the person is evaluated as not
currently affected by an active substance abuse disorder, the railroad
would be required, if recommended by a DAC, to condition certification
upon participation in needed aftercare and/or follow-up testing for
alcohol or drugs, or both. For the reasons explained in the above
section-by-section analysis for the definitions of ``drug and alcohol
counselor,'' ``EAP Counselor,'' ``Substance abuse disorder,'' and
``Substance Abuse Professional,'' \6\ FRA notes that any testing
performed as a result of a DAC's recommendation under paragraph (i) of
this proposed rule must be done under company authority, not Federal.
Such testing, however, would still be required to comply with Part 219,
subpart H, and Part 40. The same as paragraph (o)(5) of Sec.  242.111,
proposed paragraph (i)(5) would clarify that a failure to cooperate in
the DAC evaluation will result in the person being ineligible to
perform as a locomotive engineer until the person cooperates in the
evaluation.
---------------------------------------------------------------------------

    \6\ A member of the Working Group objected to using a SAP for
Sec.  240.115 purposes, asserting that some railroad employees may
have to travel great distances to be evaluated by a SAP. This issue
was thoroughly discussed at Working Group meetings during the
development of Part 242. For the reasons discussed at the Working
Group meetings and in the preamble discussion of Part 242 (see 76 FR
69802, 69806-69807 (Nov. 9, 2011)), FRA disagrees with the objection
to using a SAP for purposes of Sec.  240.115.
---------------------------------------------------------------------------

    FRA notes it does not intend for DOT's requirement for direct
observation of urine collection to apply to follow-up testing required
as a result of motor vehicle alcohol or drug incidents. A motor vehicle
alcohol or drug incident requiring follow-up testing is not a Part 219
violation. As such, a motor vehicle alcohol or drug incident does not
meet the criteria justifying direct observation as provided by Sec.
40.67. A DAC, however, may recommend direct observation of urine
collection as necessary for follow-up testing under company authority.
See 76 FR 69802, 69806-69807 (Nov. 9, 2011).

Section 240.117 Criteria for Consideration of Operating Rules
Compliance Data

    Existing Sec.  240.117 provides the criteria and procedures a
railroad must follow to evaluate an engineer's or engineer candidate's
compliance with specific types of operating rules and practices. FRA is
proposing a number of revisions to clarify the meaning of this section
and to conform the section to the corresponding provisions of the
conductor certification rule in Sec.  242.403.
    Existing paragraph (a) requires railroads' Part 240 programs to
include ``criteria and procedures for implementing'' Sec.  240.117. FRA
is proposing to revise paragraph (a) to explicitly state that each
railroad, railroad officer, supervisor, or employee who violates any
requirement of a railroad's FRA-approved certification program shall be
considered to have violated the requirements of Sec.  240.117. FRA
intends this proposed revision to clarify the responsibility of
railroads and individuals to comply with Sec.  240.117. FRA proposes
parallel changes in several other sections in subpart B, including
paragraphs (a) of Sec. Sec.  240.119, 240.121, 240.123, 240.125,
240.127, and 240.129. These proposed changes would make the
implementing language in these sections of Part 240 the same as that in
the corresponding sections of Part 242 (i.e., Sec. Sec.  242.111
through 242.125).
    Existing paragraph (c)(1) requires the mandatory revocation of a
locomotive engineer's certificate when he or she 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.'' To
clarify this requirement and make it the same as Sec.  242.403(c)(1),
but not substantively change it, FRA proposes to revise paragraph
(c)(1) in part by removing the phrase ``with railroad rules and
practices for the safe operation of trains.'' Even though that phrase
is conditioned by the reference to paragraph (e), some railroads
incorrectly read the phrase as expanding the number or type of
operating rules or practices violations that require revocation. The
more concise proposed revision specifies that the unlawful actions
requiring mandatory revocation of a locomotive engineer's certification
are limited to those involving a certified locomotive engineer who has
demonstrated a failure to comply with railroad rules and practices
described in paragraph (e) of the section.
    Existing paragraph (c)(3) prohibits the revocation of a locomotive
engineer's certification if he or she is called to perform the duty of
a train crew member other than a locomotive engineer and is performing
that non-locomotive engineer duty. As proposed, FRA would add the words
``or conductor'' to paragraph (c)(3) to prohibit revocation of an
individual's locomotive engineer certification when that person is
called to perform the duty of a train crew member, other than that of
locomotive engineer or conductor, and the person is performing such
duties. This proposed revision would make Sec.  240.117(c)(3) similar
to the related Part 242 provision (Sec.  242.403(c)(3)).
    Proposed paragraph (e)(5) would add an ``or'' after the semicolon
and proposed paragraph (e)(6) would correct the existing typographical
error of a semicolon at the end of the paragraph instead of a period.
    Existing paragraph (f) provides: (1) If a single incident
contravenes more than one operating rule or practice listed in
paragraph (e) of the section, that incident is to be treated as a
single violation; (2) an engineer may have his or her certification
revoked for violations occurring during properly conducted operational
compliance tests; and (3) an engineer may not have his or her
certification revoked for operational tests not conducted in compliance
with Part 240, the railroad's operating rules, or a railroad's program
under Sec.  217.9. FRA proposes adding new paragraph (f)(4), which
would prohibit a railroad from denying or revoking an employee's
certification based upon additional conditions or operational
restrictions imposed pursuant to Sec.  240.107(d). Thus, a railroad
could not revoke a locomotive engineer's certificate for an alleged
violation of a railroad rule or practice that is more stringent than
the condition or restrictions required by Part 240. This proposal
conforms to Sec.  242.403(f)(4).
    Existing paragraphs (g)(3)(i) and (ii) currently state the
mandatory revocation periods in terms of ``months.'' FRA proposes to
change ``month'' to 30 days and ``six months'' to 180 days to ensure
uniformity and eliminate any ambiguity.
    Finally, FRA proposes adding a new paragraph (h) after existing
paragraph (g) in this section, providing that all periods of revocation
may consist of training. While existing Part 240 does not contain a
similar provision, it is certainly not prohibited under the current
regulation and FRA is including this proposed revision to make FRA's
intent clear and to conform to Sec.  242.405(b). By inserting proposed
paragraph (h) after existing paragraph (g), existing paragraph (h)
(addressing an individual's future eligibility to hold a locomotive
engineer certificate after a

denial of certification or revocation event) would be redesignated as
proposed paragraph (i).

Section 240.119 Criteria for Consideration of Data on Substance Abuse
Disorders and Alcohol/Drug Rules Compliance

    Existing Sec.  240.119 addresses active substance abuse disorders
and prior alcohol/drug rules compliance of engineers or engineer
candidates. FRA is proposing to revise this section to make it the same
as corresponding Sec.  242.115, which FRA believes is better organized
and easier to understand than existing Sec.  240.119. The only
differences between the proposed Part 240 version of this section and
the Part 242 version are the references to locomotive engineer instead
of conductor, and citations to the engineer rule instead of the
conductor rule. Existing paragraph (b)(2) requires a ``certified
engineer who is determined to have an active substance abuse disorder''
to be ``suspended from certification.'' Because the word ``suspended''
is not defined in existing Part 240, FRA proposes to replace the phrase
``suspended from certification'' with the phrase ``ineligible to hold
certification.'' This revision would make existing Sec.  240.119(b)(2)
consistent with the corresponding provision in Sec.  242.115(d)(2), and
the revised paragraph would be renumbered as paragraph (d)(2).
    FRA is also proposing to remove the word ``failure'' from the
phrase ``refusal or failure'' in existing paragraph (c)(2) and renumber
the paragraph as proposed paragraph (e)(2) of this section. Existing
paragraph (c)(2) requires a railroad, when determining whether an
individual may be or remain certified as a locomotive engineer, to
consider any previous violations of Sec. Sec.  219.101 or 219.102 and
any ``refusal or failure to provide a breath or body fluid sample for
testing'' under Part 219. Removing the word ``failure'' will make this
paragraph the same as paragraph (e)(2) of Sec.  242.115 and ensure
consistency with subpart I of Part 40, which provides the medical
conditions under which an individual's failure to provide a sufficient
sample is not deemed a refusal.
    In addition, FRA proposes to amend this section by replacing ``EAP
Counselor'' with ``Substance Abuse Professional (SAP) or drug and
alcohol counselor (DAC)'' for the reasons explained above in the
section-by-section analysis for the definitions of ``drug and alcohol
counselor,'' ``EAP Counselor,'' ``substance abuse disorder,'' and
``Substance Abuse Professional.''
    Finally, existing paragraph (d) of this section, now proposed
paragraph (f), prescribes the conditions under which employees may be
certified or recertified after a determination that their certification
should be denied, suspended, or revoked due to a violation of
Sec. Sec.  219.101 or 219.102. Existing paragraph (d)(1)(iii) provides
that an individual is not eligible for certification or recertification
unless and until the person presents a urine sample that tests negative
for alcohol and controlled substances assayed. FRA is proposing to
revise this paragraph to make it the same as Sec.  242.115(f)(1)(iii)
and specify that an individual must have ``an alcohol test with an
alcohol concentration of less than .02.'' Specifying the alcohol
concentration limit more accurately reflects the provisions of Part
219.
    FRA notes Part 240, like Part 242, does not require compensation of
the employee for the time spent in testing, evaluation, counseling, or
other treatment under paragraph (d) (now proposed paragraph (f)) of
this section, which, under certain circumstances, is a condition
precedent to retention of a locomotive engineer certificate. Instead,
any applicable collective bargaining agreement or other terms and
conditions of employment under the Railway Labor Act would dictate what
compensation, if any, an employee is due.

Section 240.121 Criteria for Vision and Hearing Acuity Data

    Existing Sec.  240.121 contains the requirements for visual and
hearing acuity railroads must incorporate into their locomotive
engineer certification programs. FRA proposes to amend paragraphs (a)
and (c) of this section to conform to Sec.  242.117(a) and (i). These
proposed revisions update Part 240's testing procedures and standards
for the hearing acuity requirements. FRA is not proposing language
consistent with Sec.  242.117(c), (d), and (e) because similar
requirements exist in Sec.  240.207(b), (c), and (d). The proposed
testing procedures and standards for the hearing acuity requirements,
which mirror those in Sec.  242.117(i), are derived from the procedures
and standards in 49 CFR part 227 governing occupational noise exposure
and are more stringent than those in existing Sec.  240.121. The
criteria an individual must meet to pass the hearing test, however,
remains the same (i.e., an individual cannot have an average hearing
loss in the better ear greater than 40 decibels with or without use of
a hearing aid, at 500 Hz, 1,000 Hz, and 2,000 Hz).
    The proposed testing procedures and standards for the hearing test
or audiogram are the same three choices provided to conductors in Sec.
242.117(i). The hearing test or audiogram must (1) meet the
requirements of the Occupational Safety and Health Administration's
requirements in 29 CFR 1910.95(h); (2) comply with Sec.  227.111; or
(3) be conducted using an audiometer meeting the specifications of ANSI
S3.6-2004, ``Specifications for Audiometers,'' provided the audiometer
is maintained and used as that standard requires.

Section 240.123 Training

    Existing Sec.  240.123 requires railroads to provide their
certified locomotive engineers initial and continuing education to
ensure each engineer maintains the necessary knowledge, skill, and
ability to carry out the duties of a locomotive engineer. FRA proposes
to revise this section's heading to be the same as Sec.  242.119
(Training). FRA also proposes to amend this section to be similar to
Part 242 (Sec.  242.119), and to relate the training and education
requirements of Part 240 to the requirements of 49 CFR part 243 (Part
243) for the training, qualification, and oversight of safety-related
railroad employees.
    Although Part 243 was a statutorily mandated rule, it was neither
proposed nor effective when Part 242 became effective. However, the
Part 243 proposed rule was based on an RSAC recommendation made before
Part 242 was published,\7\ and so the industry was aware of the likely
requirements to be proposed and FRA understood RSAC's intent as a
desire for conductor training standards to meet any future, FRA
training standard requirements in Sec.  243.101. Part 243 requires each
employer of safety-related railroad employees to submit training
programs for FRA's review and approval. FRA's Part 243 review is
intended to ensure that each employer will deliver formal training on
all required Federal railroad safety requirements to each occupational
category or subcategory of employee doing safety-related work and that
OJT is formalized, with a structured curriculum that provides
measurable results.
---------------------------------------------------------------------------

    \7\ On November 9, 2011, FRA published the conductor
certification final rule which was effective on January 1, 2012. 76
FR 69802. On February 7, 2012, FRA published the Part 243 proposed
rule which noted that the Working Group's recommendations were
accepted by the full RSAC on December 14, 2010. 77 FR 6412, 6415.
---------------------------------------------------------------------------

    In FRA's estimation, locomotive engineer and conductor training
programs have been, and continue to be, sufficiently robust to meet the
Part 243 standards. These certification training

programs are already required to be submitted to FRA for review and
approval under Parts 240 and 242, and thus railroads were exempted from
submitting them under Part 243, unless the railroad's plan did not
provide sufficient detail regarding the OJT components (Sec.
243.103(b)). When that is the case, the railroad is only required to
supplement the certification training program with the updated OJT
portion as a material modification as required in Sec. Sec.  240.103(e)
and 242.103(i). In keeping with the Part 243 requirements, FRA proposes
to amend paragraph (c) of this section to require a railroad training a
previously untrained person to be a locomotive engineer to provide
initial training that, at a minimum, complies with the requirements of
Sec.  243.101. The proposed language is intended to ensure that
locomotive engineer OJT programs are properly modified, if necessary to
conform to the requirements in Sec.  243.101. The deadlines for
implementing the modifications are governed by Part 243. Note that FRA
amended the implementation deadlines for compliance with Sec.  243.101,
and so railroads and other employers that employ locomotive engineers
are not required to modify locomotive engineer OJT programs until
January 1, 2020, at the earliest (a May 1, 2021 deadline is established
for an employer conducting railroad operations employing fewer than
400,000 total employee work hours annually). 82 FR 20549 (May 3, 2017)
(extending all implementation dates in Part 243 by one year) and 82 FR
18455 (April 27, 2018) (extending all implementation dates in Part 243
by an additional year, thereby delaying each of the implementation
dates in the 2014 Part 243 final rule by a total of two years).
    Existing paragraph (c)(4) lists the subject matters a railroad's
initial locomotive engineer training must cover. Proposed paragraph
(c)(4)(ii) would add ``railroad operating procedures'' to the list of
subject matter areas to be covered during initial training. Existing
paragraph (c)(4)(ii) only references ``railroad operating rules.''
    Proposed paragraph (c)(4)(vi) would clarify that a railroad's
initial locomotive engineer training must cover ``[c]ompliance with
Federal railroad safety laws, regulations, and orders.'' The existing
paragraph only mentions compliance with Federal regulations, so the
proposed language is more precise in expressing the Federal
requirements that must be covered. The proposed language is also the
same as that found throughout Sec.  242.119.
    Existing paragraph (c)(5) specifies that the performance skill
component of initial engineer training must meet certain conditions.
FRA proposes to add the phrase shall ``meet the following conditions''
to the introductory text of this paragraph to clarify that each of the
listed conditions must be met.
    Finally, FRA proposes to add new paragraphs (e) and (f) to this
section. These paragraphs would require railroads to designate in their
locomotive engineer programs the time period in which a locomotive
engineer must be absent from a territory or yard before requalification
on physical characteristics is required and the procedures used to
qualify or requalify an individual on the physical characteristics.
These proposed new paragraphs would be the same as paragraphs (j) and
(k) of Sec.  242.119, and are important components for ensuring
locomotive engineers are familiar with the physical characteristics of
the territory over which they will operate.

Section 240.125 Knowledge Testing

    This section requires railroads to provide initial and periodic
training and testing of locomotive engineers to determine that each
such person has sufficient knowledge of the railroad's rules and
practices for the safe operation of trains. FRA proposes to revise
paragraph (a) of this section to be the same as paragraph (a) of Sec.
242.121, which sets forth the requirement that railroads must adopt and
comply with a program meeting the requirements of the section.
    Similar to the proposed revision to Sec.  240.123(c)(4)(vi)
discussed above, FRA is also proposing to amend Sec.  240.125(c)(4)(v)
to clarify that the criteria for testing a locomotive engineer's
knowledge must cover not only compliance with ``Federal safety laws,''
but also ``[c]ompliance with Federal railroad safety laws, regulations,
and orders.''
    FRA also proposes to add new paragraphs (e), (f), and (g), which
would be the same as paragraphs (e), (f), and (g) of Sec.  242.121.
Proposed new paragraph (e) would require a railroad to provide the
person(s) being tested with an opportunity to consult with a
supervisory employee who possesses territorial qualifications for the
territory to explain a test question. Proposed new paragraph (f) would
require the railroad to keep documentation indicating whether the
person passed or failed the knowledge test. Proposed new paragraph (g)
would require each railroad to ensure that an individual who fails a
knowledge test is not permitted or required to function as a locomotive
engineer until that person achieves a passing score during a
reexamination of the person's knowledge. FRA included these
requirements in Part 242 to address RSAC Working Group members'
concerns. Proposed paragraph (e) addresses RSAC Working Group members'
concerns that individuals being tested should be able to obtain
clarification of test questions by someone with knowledge of the
relevant territory. Proposed paragraph (f) ensures test documentation
indicates whether the person taking the test passed or failed the test.
Proposed paragraph (g) prohibits a railroad from permitting or
requiring an individual to function as a locomotive engineer until that
person achieves a passing score on his or her knowledge test. This
paragraph addresses the concern that an individual who fails a
knowledge test would therefore lack adequate knowledge of the
railroad's rules and practices for the safe operation of trains, even
if the person is currently certified to do so. Because these same
concerns addressed by requirements in the conductor rule are applicable
to locomotive engineers, FRA is proposing to incorporate the same
requirements into Part 240 as applied to locomotive engineers.

Section 240.127 Criteria for Examining Skill Performance

    Existing Sec.  240.127 requires a railroad to have procedures for
examining the performance skills of an individual being evaluated for
qualification as a locomotive engineer. As discussed in the above
section-by-section analysis of Sec.  240.117, FRA proposes to amend
paragraph (a) of this section simply to clarify the responsibilities of
railroads, railroad officers, supervisors, and employees regarding the
requirements of this section.

Section 240.129 Criteria for Monitoring Operational Performance of
Certified Engineers

    Existing Sec.  240.129 requires railroads to have procedures for
monitoring the operational performance of locomotive engineers and
contains the requirements for railroads to conduct both an operational
monitoring observation and an unannounced compliance test each calendar
year. FRA proposes to amend this section to provide the same
flexibility as in Part 242 to conduct monitoring outside of the
calendar year requirement when a certified person is not performing
service requiring certification. See Sec.  242.123(f). For example, a
certified engineer may be on furlough, in military service, off with an
extended illness, or working in another

capacity for the railroad. Existing Sec.  240.129 requires railroads to
seek a waiver from FRA for engineers they are unable to test each
calendar year. The proposed amendments would remove this requirement
and railroads would not be required to conduct unannounced compliance
tests or operational monitoring observations on engineers who are not
performing service requiring certification. Instead, when such a
certified locomotive engineer returns to engineer service, this
proposed rule would require that the engineer be given both tests
within 30 days of his or her return. This proposed change would make
the treatment of certified engineers who are not performing service
requiring certification consistent with the treatment of conductors
under Sec.  242.123 not performing conductor service. See Sec.
242.123(b) and (f). Moreover, proposed Sec.  240.129(b)(2) would
require a railroad intending to avoid conducting an operational
monitoring observation or an unannounced compliance test on a certified
engineer not performing service requiring certification to retain a
written record documenting certain dates regarding a locomotive
engineer's service to prove that the locomotive engineer met the
exception in proposed paragraph (h). This is the same recordkeeping
requirement as in Sec.  242.123(b)(2).
    Several other revisions are proposed to add clarity to the existing
requirements. Existing paragraph (c) says ``the procedures shall,''
which does not make clear that the procedures in paragraph (c) apply to
the operational monitoring observation, not the unannounced compliance
test. Proposed paragraph (c)(2) clarifies that the procedure applies to
an ``operational monitoring observation,'' not the more generic term
``operational performance monitoring'' which could apply to both the
operational monitoring observation and the unannounced compliance test.
Proposed paragraph (d) also clarifies that the procedure applies to an
``operational monitoring observation,'' as the existing language does
not clearly specify whether it applies to an operational monitoring
observation or an unannounced compliance test. Proposed paragraph (e)
clarifies that the requirements listed apply to the unannounced
compliance test program and not the ``operational monitoring
observation,'' as the existing language does not clearly specify the
type of test.

Section 240.205 Procedures for Determining Eligibility Based on Prior
Safety Conduct

    Existing section 240.205 requires railroads, before initially
certifying or recertifying an individual as a locomotive engineer, to
determine that the person meets the eligibility requirements of
Sec. Sec.  240.115, 240.117 and 240.119 involving the individual's
prior conduct as a motor vehicle operator, prior revocations as a
locomotive engineer or railroad worker with duties under Part 240, and
prior FRA alcohol and drug violations that may be indicative of
substance abuse disorders. FRA proposes to amend paragraph (a) of this
section to clarify that a railroad need not, prior to certifying an
individual as a student engineer, determine the person meets the listed
eligibility requirements. FRA intends this revision as a clarification
to make Sec.  240.205(a) consistent with existing Sec.  240.203. Under
existing Sec.  240.203, a railroad may certify an individual as a
student engineer after determining the person meets the hearing and
vision acuity standards of Sec.  240.121, but the railroad does not
need to determine if a student engineer meets the eligibility
requirements of Sec. Sec.  240.115, 240.117, and 240.119. There is no
comparable provision in Part 242 because the conductor certification
regulation does not recognize student conductors as a class of service.
    For the reasons discussed above in the section-by-section analysis
for the definitions of ``drug and alcohol counselor,'' ``EAP
Counselor,'' ``substance abuse disorder,'' and ``Substance Abuse
Professional,'' FRA proposes to revise paragraph (b) of this section by
replacing ``EAP Counselor'' with DAC, the abbreviation for drug and
alcohol counselor.

Section 240.207 Procedures for Making the Determination on Vision and
Hearing Acuity

    FRA proposes to amend this section by adding a semicolon at the end
of paragraph (b)(2)(i). This proposed change does not change the
meaning of this section. This existing section is the same as Sec.
242.117(b) through (f).

Section 240.209 Procedures for Making the Determination on Knowledge

    FRA proposes to amend this section by adding three punctuation
marks and correcting the designation of paragraphs (b)(i) and (b)(ii)
to (b)(1) and (b)(2) respectively. At the end of paragraph (b), FRA
proposes to add a colon. At the end of paragraph (b)(i), FRA proposes
to add a semicolon. Finally, in paragraph (c), FRA proposes to add a
comma after the phrase ``[i]f a person fails to achieve a passing score
under the testing procedures required by this part.'' The proposed
changes do not change the meaning of this section and the requirements
of this existing section are consistent with the requirements of Sec.
242.121(f) and (g).

Section 240.211 Procedures for Making the Determination on Performance
Skills

    FRA proposes to amend this section by adding two punctuation marks
and correcting the numbered paragraphs in paragraph (b). At the end of
paragraph (b)'s introductory text, FRA proposes to add a colon. At the
end of paragraphs (b)(i), FRA proposes to add a semicolon. The proposed
changes do not change the meaning of this section.

Section 240.215 Retaining Information Supporting Determinations

    This section contains the recordkeeping requirements for railroads
that certify locomotive engineers. FRA proposes to amend paragraph (j)
of this section to update Part 240's electronic record retention
requirements and make those requirements the same as Part 242's. See
Sec.  242.203(g). While this section currently permits railroads to
retain records electronically, proposed paragraph (j) of this section
provides more specific requirements regarding the electronic storage
system used to retain the records. FRA recognizes the growing
prevalence of electronic records, and acknowledges the unique
challenges electronic transmission, storage, and retrieval of records
can present. FRA also recognizes the need to maintain the integrity and
security of records stored electronically. Thus, FRA believes the more
specific requirements for electronic storage systems adopted in Part
242 are appropriate. Further, to allow for future advances in
technology, the electronic record storage provisions in proposed
paragraph (j) are technology-neutral.
    FRA also proposes to remove a semicolon at the end of paragraph
(e)(2). The proposed change in punctuation does not change the meaning
of this paragraph.

Section 240.217 Time Limitations for Making Determinations

    This section contains various time constraints precluding railroads
from relying on stale information when evaluating a candidate for
certification or recertification. FRA proposes amending paragraphs
(a)(2) and (a)(4) to

conform to Part 242 (see Sec.  242.201). Existing paragraph (a)(2)
prohibits a railroad from making a certification decision based on a
visual and hearing acuity examination more than 366 days before its
certification decision. As under Sec.  242.201(a)(2), FRA proposes to
allow railroads to use visual and hearing acuity examination data from
up to 450 days before the certification decision. The 450-day period
corresponds to the requirement in Sec.  227.109 that railroads must
offer employees included in a hearing conservation program a hearing
test at least every 450 days.
    To accommodate railroads performing knowledge testing on a two-year
cycle, FRA also proposes adding a new paragraph (a)(4) to this section,
the same as Sec.  242.201(a)(4), which would allow those railroads to
rely on knowledge determinations and knowledge examinations
administered up to 24 months before the railroad's certification
decision.
    Given proposed new paragraph (a)(4), existing paragraph (a)(4)
allowing railroads to rely on performance skills and performance skill
testing up to 366 days before the railroad's certification decision
would be redesignated as paragraph (a)(5). Part 242 does not contain a
comparable provision.
    FRA proposes to delete the prefatory language in paragraph (d) that
refers to an exception during the initial implementation of the
program. Because that initial implementation occurred in 1991 when Part
240 first became effective, there is no longer a need to state the
exception.
    FRA is also proposing a grammatical correction to paragraph (a)(1)
to change ``were'' to ``was.''

Section 240.219 Denial of Certification

    This section provides the minimum procedures railroads must follow
before denying an individual's certification or recertification. FRA
proposes to amend this section to update the minimum procedures
railroads must follow before denying a candidate's certification or
recertification and make it the same as the process for denying a
conductor's certification or recertification under Sec.  242.401. FRA
believes the proposed amendments to paragraphs (a), (c), and (d) will
not only improve the transparency of the locomotive engineer
certification denial process and improve FRA's ability to adjudicate
petitions seeking review of a railroad's denial decision pursuant to
subpart E of Part 240 (Subpart E), but also ease the regulatory burden
on railroads by having one consistent process to follow for denying
both locomotive engineer and conductor certifications or
recertifications.
    Existing paragraph (a) of this section requires a railroad, before
denying an individual's certification or recertification, to notify the
individual of information known to the railroad that forms a basis for
denying his or her certification and to provide the individual with a
reasonable opportunity to explain or rebut the information in writing.
To make this existing provision the same as Sec.  242.401(a), FRA
proposes adding a second sentence to this paragraph requiring a
railroad to provide a locomotive engineer certification candidate with
any written documents or records ``related to his or her failure to
meet a requirement of Part 240 which supports a railroad's pending
denial decision.'' FRA intends this revision to prevent situations
where a railroad does not provide a locomotive engineer certification
candidate with enough information regarding a denial decision to draft
an appropriate rebuttal. FRA wants to avoid the delay and cost of a
locomotive engineer candidate having to petition FRA's OCRB to obtain
the documents he or she needs to rebut the denial decision. If
locomotive engineer certification candidates are provided better
information upfront, FRA expects they will file fewer petitions with
the OCRB. As under Part 242, FRA would not require railroads to provide
documentation on employment or personal issues because generally those
issues are outside the scope of Part 240. Instead, FRA would require
railroads to provide certification candidates with documents related to
a failure to meet a requirement of Part 240 that would support a
decision to deny the individual certification or recertification. For
example, FRA would expect railroads to provide certification candidates
locomotive download printouts, Form Bs, and/or transcripts of railroad
communications support a pending denial decision. As it does under
existing Part 240, under this proposed rule the OCRB would already have
the authority to order a railroad to produce these types of documents
and FRA would not expect these documents to be privileged. In a small
number of petitions to the Locomotive Engineer Review Board (LERB), FRA
noticed a railroad merely making the documents or records available for
viewing by the person within a railroad office. The changes to this
paragraph clarify FRA's current interpretation that a railroad is
required to provide the person with a complete copy of those documents
or records relied on, including color copies of photographs and videos
in a readable format.
    Existing paragraph (c) of this section requires each railroad
denying an individual certification or recertification to notify the
person of its decision in writing and explain, in writing, the basis
for its denial decision. This existing paragraph requires the
railroad's written explanation to be ``mailed or delivered'' to the
certification candidate within 10 days after the railroad's decision.
FRA proposes to revise this paragraph to require railroads to ``serve''
a written explanation of an adverse decision on a certification
candidate (see proposed definition of ``serve or service'' in Sec.
240.7, which is consistent with the term as defined in Sec.  242.7).
Using the defined term ``serve,'' rather than the current phrase
``mailed or delivered,'' will make Part 240 internally consistent and
will help FRA in determining whether a petition seeking review of a
denial decision is timely filed under Sec.  240.403. As paragraph (c)
to Sec.  242.401 does, the proposed changes to Sec.  240.219 would also
explicitly require a railroad's denial decision address any explanation
or rebuttal information a locomotive engineer candidate may have
provided in writing under paragraph (a) of this section. The current
rule strongly implies a railroad's denial decision should address any
such information a certification candidate provides, but often
railroads' decisions do not address this information. The failure of
railroads to explicitly address information certification candidates
provide to rebut potential adverse decisions has led to delays in FRA's
review of railroads' decisions, as FRA often needs to query the
railroad on why the explanation or rebuttal was unsatisfactory before
determining whether the railroad's decision was proper. By requiring a
railroad's decision to explicitly address a candidate's rebuttal, FRA
anticipates locomotive engineer candidates petitioning FRA will have a
better understanding of the railroad's reasoning for its denial
decision and FRA's OCRB will be able to complete its review of the
railroad's decision on a more-timely basis.
    Consistent with paragraph (d) of Sec.  242.401, which prohibits a
railroad from denying an individual's conductor certification for
failure to comply with certain operating rules or practices if
sufficient evidence exists that an intervening cause prevented or
materially impaired the conductor's ability to comply, FRA proposes to
add a new paragraph (d) to this section. Paragraph (d) would explicitly
prohibit a railroad from denying an individual's

locomotive engineer certification based on his or her failure to comply
with Sec.  240.117(e)(1) through (5) if sufficient evidence exists to
establish that an intervening cause prevented or materially impaired
the locomotive engineer's ability to comply with those provisions. FRA
derived proposed paragraph (d) from the intervening cause exception for
revocation in existing Sec.  240.307(i)(1). Although the regulation
already implies a railroad may not deny an individual certification for
an alleged operating rule violation occurring when the person's actions
are the result of an intervening cause, this proposed revision to
paragraph (d) will clarify this limitation.

Section 240.221 Identification of Qualified Persons

    Existing Sec.  240.221 requires railroads to maintain, and update
at least annually, a written record identifying each person designated
as a supervisor of locomotive engineers (DSLE) and as a certified
locomotive engineer.
    Currently, paragraph (d) requires railroads to update the listings
this section requires at least annually and paragraph (e) requires
railroads to keep the required lists at the divisional or regional
headquarters of each railroad. To simplify the regulation, FRA proposes
to combine the requirements of existing paragraphs (d) and (e) into one
paragraph, proposed paragraph (d). As proposed, paragraph (d) would be
the same as paragraph (c) of Sec.  242.205.
    FRA also proposes to add new language to paragraph (e) clarifying
that it is unlawful for a railroad to knowingly, or an individual to
willfully, make a false entry on or falsify the lists this section
requires. The same language is found in Sec.  242.205(d) and similar
language is found in Sec.  240.215(i) (referencing ``records'' as
opposed to ``lists'').
    While existing paragraph (f) of this section permits railroads to
retain records electronically, the proposed revision to paragraph (f)
provides more specific requirements for the electronic storage system
used to retain the records and does not require a railroad to obtain
FRA approval to maintain the records electronically. The electronic
storage requirements in proposed paragraph (f) track those in
Sec. Sec.  242.203(g) and 242.205(e).

Section 240.223 Criteria for the Certificate

    This section contains the requirements for the certificates
railroads must issue to each certified locomotive engineer. Among other
things, existing Sec.  240.223 requires locomotive engineer
certificates to contain the certified individual's birth date and the
date the railroad issued the certificate. To address privacy concerns
RSAC Working Group members expressed, conform the requirements of this
section to Sec.  242.207, and make it easier for railroads to issue a
single certificate to an individual certified as both a conductor and a
locomotive engineer, FRA proposes two changes to this section. First,
FRA proposes to revise paragraph (a)(3) to be the same as paragraph
(a)(3) of Sec.  242.207. As revised, paragraph (a)(3) would require the
certificate to contain only the year of the individual's birth (as
opposed to his or her full birth date). FRA also proposes to revise
paragraph (a)(5) to be the same as paragraph (a)(5) of Sec.  242.207.
As revised, paragraph (a)(5) would require certificates to include the
effective date of the certificate (as opposed to the issuance date
currently required). Some railroads currently include both the issuance
date and the effective date on certificates, which has caused confusion
when calculating certificates' expiration dates. Unless an expiration
date is provided on a certificate, the effective date, in conjunction
with the railroad's Part 240 program, is the date that FRA will use to
determine when the certificate expires. In other words, when reviewing
a certificate that contains only an effective date, FRA will assume
that the certificate is valid for 36 months from the effective date
unless the railroad's Part 240 program specifies a shorter expiration
period.

Section 240.225 Reliance on Qualification Determinations Made by Other
Railroads

    Existing Sec.  240.225 contains the conditions under which a
railroad considering certification of an individual as a qualified
engineer may rely on determinations concerning that person's
qualifications made by another railroad. FRA is not proposing any
substantive change to this section. However, for clarity and
consistency with the corresponding provision in Part 242 (Sec.
242.125), FRA is proposing to redesignate as paragraph (b) the last
sentence of paragraph (a)'s introductory text, along with the list in
paragraphs (a)(1) through (5). This change would make the structure of
Sec.  240.225 consistent with the structure of Sec.  242.125. Paragraph
(a) would provide that in making certification decisions, a railroad
may rely on determinations made by another railroad, and paragraph (b)
would specify the determinations a railroad needs to make when relying
on another railroad's certification of an individual as a qualified
locomotive engineer.

Section 240.229 Requirements for Joint Operations Territory

    FRA is not proposing any changes to the requirements in this
section, but offers this analysis to address issues raised by some RSAC
Working Group members. Under existing Sec.  240.229, the railroad
responsible for controlling joint operations with another railroad is
also responsible for determining who is permitted to operate in the
joint operations territory and for certifying those locomotive
engineers to operate in the joint operations territory.
    Some RSAC Working Group members suggested that a railroad
controlling joint operations should not be responsible for making any
determinations concerning the certification and territorial
qualifications of another railroad's locomotive engineers. However,
because this is a requirement of both Part 240 (see Sec. Sec.
240.221(c) and (d), and 240.229(c)(1)(i)) and Part 242 (see Sec.
242.301(a)), this suggestion would involve more than just conforming
Part 240 to Part 242. Further, this is an issue that FRA extensively
addressed in an August 29, 2008 published interpretation. 73 FR 50883.
In that interpretation, FRA explained that some controlling railroads
directly certify and qualify another railroad's locomotive engineers,
whereas other controlling railroads indirectly certify and qualify.
Controlling shortline and regional railroads typically directly certify
and qualify; controlling major freight railroads generally indirectly
certify and qualify. 73 FR at 50884. FRA maintains that although the
employing railroad may generally bear the most direct responsibility to
ensure each of its locomotive engineers is certified and qualified to
operate in the joint operations territory, the controlling railroad
also bears significant responsibility. The controlling railroad that
indirectly certifies and qualifies may provide training to the other
railroad's DSLEs who then train their own locomotive engineers, and it
is possible that the training provided to the other railroad is
inadequate. Although FRA may be willing to revisit this issue in
another rulemaking, FRA believes that a controlling railroad must bear
some responsibility for hosting another railroad's locomotive engineers
and conductors in joint operations territory and for that reason FRA
declines to adopt the suggestion to eliminate that responsibility in
this proposed rulemaking.

    Paragraph (f) does provide an exception to this section's
requirements for ``minimal joint operations'' if four conditions are
met. The four conditions include: (1) Maximum authorized speed on the
track is 20 miles per hour; (2) the track is other than main track; (3)
operations are conducted under operating rules requiring every
locomotive and train to proceed at a speed permitting stopping within
one half the range of vision of the locomotive engineer; and (4) there
is no more than one mile of joint operations territory. This locomotive
engineer exception is more lenient than the equivalent conductor
provision, which is a strict prohibition on an unqualified conductor
working in joint operations territory. Sec.  242.301(a).
    A RSAC Working Group member suggested FRA revise paragraph (f) of
Sec.  240.229 to require compliance with only one of the listed
conditions, not all four. FRA declines to propose this suggestion
because it would permit locomotive engineers who are unfamiliar with
the physical characteristics of the joint operations territory to
operate far into that unfamiliar territory under conditions that could
be extremely challenging for the locomotive engineer. Thus, it is
probable that such a provision would lead to many unsafe situations in
joint operations.

Section 240.301 Replacement of Certificates

    Existing Sec.  240.301 requires railroads to have a system,
reasonably accessible to certified locomotive engineers, for the prompt
replacement of lost, stolen, or mutilated certificates. FRA proposes to
revise this section to be the same as the corresponding provision in
Part 242, Sec.  242.211. Specifically, FRA proposes dividing this
section into two paragraphs. Proposed paragraph (a) would be the same
as paragraph (a) of Sec.  242.211 and would make railroads responsible
for providing replacement certificates to engineers at no cost to the
locomotive engineer. Proposed paragraph (b) would be the same as
paragraph (b) of Sec.  242.211, which authorizes railroads to issue
temporary replacement certificates valid for no more than 30 days.

Section 240.303 Operational Monitoring Requirements

    Section 240.303 currently requires railroads subject to Part 240 to
have a program to monitor the conduct of their certified locomotive
engineers by performing both operational monitoring observations and by
conducting unannounced operating rules compliance tests. For
consistency with the proposed revisions to Sec.  240.129 (discussed
above in the section-by-section analysis for that section), FRA
proposes to amend paragraphs (b) and (c) of this section to exempt
railroads from the requirement to conduct unannounced compliance tests
on locomotive engineers who are not performing service requiring
certification.

Section 240.305 Prohibited Conduct

    This section sets forth the general prohibitions on actions of
certified locomotive engineers, requires individual engineers to keep
their certificates with them while on duty as engineers, and requires
engineers to display their certificates in certain situations.
Specifically, under existing paragraph (b) of this section, a certified
locomotive engineer must display her or her certificate upon the
request of an FRA or railroad representative. In the section-by-section
analysis for the conductor certification final rule, FRA clarified its
intent that State inspectors authorized under FRA's State Safety
Participation Regulations, 49 CFR part 212 (Part 212), could be
considered ``FRA representatives,'' but that by mentioning such State
inspectors separately it would ensure that there would be no dispute
regarding their authority. 76 FR at 69824-25. For that same reason, FRA
proposes to amend this paragraph to make it the same as paragraph (a)
of Sec.  242.209 and expressly add a new paragraph (b)(2)(ii) making
clear that, upon request, a locomotive engineer must display his or her
certificate to a State inspector authorized under Part 212. In doing
so, FRA proposes to add a colon to the end of paragraph (b)(2) and
renumber existing paragraphs (b)(2)(ii) and (iii).

Section 240.307 Revocation of Certification

    Existing Sec.  240.307 provides the procedures a railroad must
follow to revoke a certified locomotive engineer's certification. FRA
proposes to amend this section to clarify its intent and make it the
same as Sec.  242.407, which addresses the revocation of conductor
certifications. A more detailed discussion of these changes is found in
the section-by-section analysis of Sec.  242.407 in the conductor
certification final rule. 76 FR at 69829.
    Existing paragraph (a) requires a railroad to revoke an engineer's
certification if it ``acquires information'' about the engineer's
violations of certain operating rules and practices or prior alcohol or
drug violations ``which convinces the railroad the person no longer
meets the qualification requirements'' of Part 240. FRA proposes to
amend this paragraph to add the word ``reliable'' before
``information,'' and to remove the phrase ``which convinces the
railroad that the person no longer meets the qualification requirements
of this part.'' These proposed revisions would make paragraph (a) of
this section the same as paragraph (a) of Sec.  242.407.\8\
---------------------------------------------------------------------------

    \8\ The only difference between proposed paragraph (a) of Sec.
240.307 and existing paragraph (a) of Sec.  242.407 are the
regulatory citations referenced for violations of (1) operating
rules and practices and (2) alcohol or drug use. Paragraph (a) of
Sec.  240.307 refers to the relevant provisions of Part 240 (Sec.
240.117(e) and Sec.  240.119(c)); paragraph (a) of Sec.  242.407
refers to the relevant provisions of Part 242 (Sec.  242.403(e) and
Sec.  240.115(e)).
---------------------------------------------------------------------------

    Paragraph (b)(1) currently requires railroads to immediately
suspend an engineer's certificate upon receipt of ``reliable
information indicating the person's lack of qualification'' under Part
240. FRA believes this phrase is prone to misinterpretation and
proposes to replace the reference to an individual's ``lack of
qualification'' under Part 240 with more specific language ``regarding
violation(s) of Sec.  240.117(e) or Sec.  240.119(c) of this chapter.''
This proposed change would make paragraph (b)(1) of this section the
same as paragraph (b)(1) of Sec.  242.407(b), with the exception of the
regulatory provisions cited.\9\
---------------------------------------------------------------------------

    \9\ See footnote 8.
---------------------------------------------------------------------------

    To mirror the procedures in Part 242, FRA proposes to add a new
paragraph (b)(4) to this section specifying that no later than the
convening of a hearing, the railroad convening the hearing must provide
the person whose engineer certificate is at stake with a ``copy of the
written information and list of witnesses the railroad will present at
the hearing.'' Further, if the railroad does not provide the required
information until just before the hearing is convened, a recess at the
start of the hearing must be granted if requested to consider the
information. In addition, any relevant information required to be
provided under this section that leads to the suspension of an
engineer's certificate pursuant to paragraph (b)(1), is to be provided
through statements of an employee of the convening railroad, and the
railroad must make that employee available for examination during the
hearing. Finally, FRA proposes to clarify in the last sentence of new
paragraph (b)(4) that a witness's examination may be telephonic where
it is impractical to have the witness appear at the hearing. These
proposed provisions would make paragraph (b)(4) of Sec.  240.307 the
same as paragraph (b)(4) of 242.407.

    Some members of the RSAC Working Group suggested revising proposed
paragraph (b)(4) to require railroads to provide all (as opposed to
written) information relied upon to suspend an individual's certificate
and to add the word ``only'' in the last sentence of that paragraph to
read: ``Examination may be telephonic only where it is impractical to
provide the witness at the hearing.'' Because those changes do not
conform to Part 242, FRA declines to adopt them for this rulemaking.
However, FRA will consider addressing these issues in any future Part
240 and Part 242 rulemaking.
    As proposed, paragraph (b)(4) would be a new requirement and its
insertion in the existing list of six items in paragraph (b) means that
paragraphs (b)(4) through (6) would be renumbered as paragraphs (b)(5)
through (7). Paragraphs (b)(6) and (b)(7) would contain the same exact
requirements as existing paragraphs (b)(5) and (b)(6). The proposed
changes to existing paragraph (b)(4) (renumbered as proposed in
paragraph (b)(5)), are described below.
    Existing paragraph (b)(4) (which would become paragraph (b)(5) if
new proposed paragraph (b)(4) discussed above is adopted), requires a
railroad to ``[d]etermine, on the record of the hearing, whether the
person no longer meets the qualification requirements of this part.''
Similarly, existing paragraph (c)(2) requires the hearing to be
conducted by a ``presiding officer, who can be any qualified person
authorized by the railroad other than the investigating officer.'' FRA
proposes to replace the words ``qualification'' and ``qualified'' in
these paragraphs with the words ``certification'' and ``proficient,''
respectively. These proposed amendments would make the language of
paragraphs (c)(2) and (b)(5) of Sec.  240.307 the same as paragraphs
(c)(2) and (b)(5) of Sec. Sec.  242.407 and FRA intends these
amendments to avoid conflicting with the defined the term ``qualified''
(discussed in the section-by-section analysis for Sec.  240.7).
    Although FRA is not proposing to revise existing paragraphs (c)(1)
and (3) of this section, FRA is taking this opportunity to clarify
these existing paragraphs and how they affect an engineer's rights and
a presiding officer's authority in a certification hearing that is not
held in accordance with a collective bargaining agreement. Paragraph
(c)(1) requires a Part 240 hearing to be convened within 10 days of an
individual's certificate suspension unless the locomotive engineer
requests or consents to delaying the start of the hearing. Paragraph
(c)(3), on the other hand, provides the presiding officer with the
``powers necessary to regulate the conduct of the hearing for the
purpose of achieving a prompt and fair determination of all material
issues in controversy.'' Thus, while existing paragraph (c)(1) provides
a locomotive engineer with significant input into when a hearing is
held, the paragraph must be read in conjunction with paragraph (c)(3)
which provides the presiding officer with the powers necessary to
regulate the conduct of the hearing. Thus, a presiding officer is
permitted to deny excessive hearing request delays by a locomotive
engineer. Moreover, a presiding officer could find implied consent to
postpone a hearing where a locomotive engineer's witnesses are not
available within 10 days of the date the railroad suspends the
engineer's certificate. FRA notes, however, the OCRB may grant a
petition on review if it finds the hearing schedule caused a petitioner
substantial harm.
    Existing paragraph (c)(9) provides that a railroad proceeding under
Sec.  240.307(c) shall be closed at the conclusion of the hearing
unless the presiding officer allows additional time for the submission
of information. FRA is proposing typographical corrections to this
paragraph to make the paragraph substantively the same as paragraph
(c)(9) of Sec.  242.407 (i.e., adding the word ``the'' before
``conclusion'' in the first sentence and adding a comma after the
introductory phrase ``[i]n such instances'' in the second sentence).
    Existing paragraph (c)(11) requires a railroad's decision to
contain the findings of fact and basis for those findings concerning
all material issues presented on the record. The paragraph also
requires the decision to be served on the employee. FRA is proposing
revisions to paragraph (c)(11) to make it the same as paragraph (c)(11)
of Sec.  242.407, including expanding what information is required in
the railroad's written decision and who must be served with a copy of
that decision. Specifically, FRA proposes to amend paragraph (c)(11)(i)