[Federal Register Volume 77, Number 26 (Wednesday, February 8, 2012)]
[Rules and Regulations]
[Pages 6482-6492]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2012-2915]
[[Page 6482]]
=======================================================================
-----------------------------------------------------------------------
DEPARTMENT OF TRANSPORTATION
Federal Railroad Administration
49 CFR Part 242
[Docket No. FRA-2009-0035, Notice No. 3; 2130-AC36]
Conductor Certification
AGENCY: Federal Railroad Administration (FRA), Department of
Transportation (DOT).
ACTION: Final rule; response to petitions for reconsideration.
-----------------------------------------------------------------------
SUMMARY: This document responds to two petitions for reconsideration of
FRA's final rule, published on November 9, 2011, which prescribed
regulations for certification of conductors as required by the Rail
Safety Improvement Act of 2008. In response to the petitions, this
document amends and clarifies certain sections of the final rule.
DATES: Effective Date: The rule is effective February 8, 2012.
FOR FURTHER INFORMATION CONTACT: Joseph D. Riley, Railroad Safety
Specialist (OP)-Operating Crew Certification, U.S. Department of
Transportation, Federal Railroad Administration, Mail Stop-25, Room
W38-323, 1200 New Jersey Avenue SE., Washington, DC 20590 (telephone:
(202) 493-6318); or John Seguin, Trial Attorney, U.S. Department of
Transportation, Federal Railroad Administration, Office of Chief
Counsel, RCC-10, Mail Stop 10, West Building 3rd Floor, Room W31-217,
1200 New Jersey Avenue SE., Washington, DC 20590 (telephone: (202) 493-
6045).
SUPPLEMENTARY INFORMATION:
I. Background
Pursuant to Sec. 402 of the Rail Safety Improvement Act of 2008,
Public Law 110-432, 122 Stat. 4884, (Oct. 16, 2008) (codified at 49
U.S.C. 20163) (hereinafter ``RSIA'') Congress required the Secretary of
Transportation (Secretary) to prescribe regulations to establish a
program requiring the certification of train conductors. The Secretary
delegated this authority to the Federal Railroad Administrator. 49 CFR
1.49(oo).
On December 10, 2008, FRA's Railroad Safety Advisory Committee
(RSAC) accepted a task statement (No. 08-07) and agreed to establish
the RSAC Conductor Certification Working Group (Working Group) whose
overall purpose was to recommend to the full committee regulations
responsive to the RSIA's mandate concerning the certification of
railroad conductors.
The Working Group reached consensus on all of its recommended
regulatory provisions. On March 18, 2010, the Working Group presented
its recommendations to the full RSAC for concurrence. All of the
members of the full RSAC in attendance at the March meeting accepted
the regulatory recommendations submitted by the Working Group. Thus,
the Working Group's recommendations became the full RSAC's
recommendations to FRA.
Based on the recommendations of the RSAC, FRA published a Notice of
Proposed Rulemaking (NPRM) in the Federal Register on November 10,
2010. See 75 FR 69166. In the NPRM, FRA solicited public comment on the
proposed rule and notified the public of its option to request a public
hearing on the NPRM. In addition, FRA also invited comment on a number
of specific issues related to the proposed requirements for the purpose
of developing the final rule. In response to the NPRM, FRA received
written comments as well as advice from the Working Group in preparing
a final rule which was published on November 9, 2011. See 76 FR 69802.
Following publication of the final rule, parties filed petitions
seeking FRA's reconsideration of the rule's requirements--the
Brotherhood of Locomotive Engineers and Trainmen (BLET) and the United
Transportation Union (UTU) submitted a joint petition (BLET/UTU
Petition) and the Association of American Railroads, the American
Public Transportation Association, and the American Short Line and
Regional Railroad Association submitted a joint petition (AAR
Petition). These petitions principally relate to the following subject
areas: the implementation dates; 49 CFR part 217 and 218 testing;
conductor assistants on main track; and the appeals process. In
addition to the issues raised in the petitions, clarification of the
final rule is needed with respect to the applicability of the rule to
those persons who perform what have traditionally been known as hostler
assignments.
This document responds to all the issues raised in the petitions
for reconsideration and amends and clarifies certain sections of the
final rule. The amendments contained in this document generally clarify
the requirements contained in the final rule or allow for greater
flexibility in complying with the rule, and are within the scope of the
issues and options discussed, considered, or raised in the NPRM.
II. Issues Raised by Petitions for Reconsideration
A. Implementation Dates
The AAR Petition requests that the implementation dates in the
final rule be extended because: (1) They are inconsistent with the
anticipated timeline provided in the NPRM; (2) they are inconsistent
with the timing of railroad training; and (3) they do not permit enough
time for training, testing and evaluating conductors. In the NPRM, FRA
stated that it was proposing an effective date of January 1, 2012 for
the final rule ``based on FRA's anticipation that the final rule will
be published in early 2011.'' Since the final rule was published in
late 2011 (about 6 months after the anticipated publication date), the
Petition argues that the implementation dates should be adjusted
accordingly.
According to the Petition, railroads typically formulate their
training programs in the fall and their trainers have to be prepared at
the beginning of the year. The implementation dates in the final rule
do not permit sufficient time to implement their training programs or
to make pertinent changes to their IT systems used to comply with the
regulations. According to the Petition, it takes an average of 6 months
to train a conductor. However, the period between the likeliest program
approval date (i.e., April 29) and the date that Class I's must test
and evaluate conductors (i.e., June 1) leaves only one month to test
and evaluate conductors. Further, the Petition notes that FRA has
adjusted implementation dates of previous rulemakings to comport with
railroad training schedules (e.g., Part 218).
FRA acknowledges that the final rule was published later than
anticipated. Therefore, to provide a reasonable amount of time for the
railroads to implement their training programs, FRA is retaining the
current effective date of the final rule (i.e., January 1, 2012) but is
extending the implementation dates by 6 months. For the convenience of
interested parties, a table is provided below showing the changes to
the implementation dates:
------------------------------------------------------------------------
Final rule Amended
Event implementation implementation
dates dates
------------------------------------------------------------------------
Effective Date................. Jan. 1, 2012....... Jan. 1, 2012.
[[Page 6483]]
Designate and issue certs. to By March 1, 2012... By Sept. 1, 2012.
all authorized as of Jan. 1,
2012 [242.105(a)].
Grandfather and issue certs. After March 1, 2012 After Sept. 1,
for all authorized between 2012.
Jan. 1 and June 1, 2012 (Class
I & II) or Oct. 1, 2012 (Class
III) [242.105(b)].
Maintain a list of each After March 1, 2012 After Sept. 1,
designated conductor 2012.
[242.205(a)].
Class I & II submit program to By March 30, 2012.. By Sept. 30, 2012.
FRA [242.103(a)(1)].
Class I & II must have approved By June 1, 2012.... By Dec. 1, 2012.
program [242.101(a)].
Class III submit program to FRA By July 30, 2012... By Jan. 31, 2013.
[242.103(a)(2)].
Class III must have approved By Oct. 1, 2012.... By April 1, 2013.
program [242.101(a)].
Program approval [242.103(g)].. Program considered Program considered
approved and may approved and may
be implemented 30 be implemented 30
days after days after
required filing required filing
date. date.
Class I & II must subpart B After June 1, 2012. After Dec. 1,
test [242.105(d)]. 2012.
Class III must subpart B test After Oct. 1, 2012. After April 1,
[242.105(e)]. 2013.
Annual program review Beginning in 2013.. Beginning in 2014.
[242.215(a)].
------------------------------------------------------------------------
B. Part 217 and 218 Testing
The AAR Petition requests that FRA clarify that testing under 49
CFR part 217 and 218 is not affected by the final rule. In the preamble
to the final rule, FRA noted that a railroad could not test and
evaluate a designated conductor or conductor candidate under subpart B
of the final rule until the railroad had a certification program
approved by FRA. According to the AAR Petition, that prohibition
combined with Sec. 242.123(c), which requires that each conductor
shall be given at least one unannounced compliance test annually in
accordance with parts 217 and 218, presents a potential timing issue
that may leave railroads with insufficient time to conduct part 217/218
testing.
FRA acknowledges that a railroad that follows the schedule provided
in the final rule may not have sufficient time to conduct part 217/218
testing pursuant to the final rule if it is not permitted to test prior
to having an approved program in place. Moreover, parts 217 and 218
provide testing procedures that railroads must follow irrespective of
whether they have a conductor certification program in place. Thus, FRA
is clarifying the final rule to indicate that part 217/218 testing is
not covered by the final rule's statement regarding testing prior to
the approval of a program.
C. Conductor Assistant
The AAR Petition requests that Sec. 242.301(c) of the final rule
be amended to remove the requirement for a non-crewmember to serve as a
conductor's assistant on main track where the conductor lacks
territorial qualification on the main track physical characteristics.
The AAR Petition asserts that the final rule should be amended because:
(1) The changes regarding the assistant were made at the final rule
stage and were not what was agreed to at the RSAC; (2) the rule is
inconsistent with the position that UTU had taken outside of the
regulatory process (i.e., a 2010 agreement with CSX which purportedly
permits an engineer, who is a member of the crew, to serve as an
assistant for a conductor unfamiliar with the territory over which the
train is operating); (3) FRA failed to conduct a cost-benefit analysis
of its prohibition on the engineer serving as an assistant on main
track which will cost the industry millions of dollars annually by
requiring an extra person in the cab to serve as a conductor or by
requiring the industry to take conductors on ``pilot trips''; (4) the
rule could adversely affect passenger railroad finances and services
because of delays, cancelations, train evacuations, and platform
crowding if no employee is available who is not a member of the crew to
serve as the conductor's assistant; and (5) FRA failed to demonstrate
measurable safety benefits of the rule and no safety benefit exists.
The AAR petition asserts that it is ``particularly egregious'' to
prohibit the engineer from serving as the assistant to the conductor in
circumstances where the conductor was previously qualified over the
territory but whose qualification has lapsed.
Although the final rule modified the requirements proposed in the
NPRM regarding assistants on main track, FRA believes that safety
concerns (i.e., the safe operation of a train in difficult operating
environments on main track combined with the need to maintain the roles
of each crewmember in those situations) necessitate the need to modify
those requirements. A conductor, who has never been qualified on the
physical characteristics of the territory, would not have the knowledge
to be able to fulfill his or her role on the train and an assigned crew
member serving as an assistant would be distracted from their other
duties and may not be able to provide a check on the judgments of the
other crew members. In addition, there are some unique situations on
main track which highlight the need for an assistant that is familiar
with the territory and can provide a check on the engineer with respect
to safe operation of the train over the territory. For example,
terminals that serve as multiple hubs where conductors can be sent in
multiple directions over main track where they are required to
negotiate multiple signal systems each governed by a different set of
rules.
The conductor plays a key role in rail operations by, inter alia,
determining the train consist, ensuring compliance with hazardous
materials placement and documentation requirements, calling or
acknowledging signals, receiving mandatory directives, conducting
frequent briefings with the locomotive engineer to ensure compliance
with movement restrictions, intervening through use of the conductor's
brake valve if the engineer is unresponsive or incapacitated, and using
their knowledge of the operating environment to identify safety
concerns and resolve them. See, e.g., General Code of Operating Rules
section 1.47 and NORAC Operating Rules rule 94 and 941. Within this
framework, a conductor must remain able to provide a check on the
judgments made by another crew member.
Each railroad is free, within the constraints of collective
bargaining agreements as to staffing, and subject to oversight by FRA
with respect to safety, to determine its operating rules and assignment
of responsibilities to its personnel. Nevertheless, FRA remains
concerned that railroad operating crews function as a team, discharging
their responsibilities on the basis of adequate information and using
their knowledge
[[Page 6484]]
of the operating environment to identify safety concerns and resolve
them. Within this framework, each crew member must remain able to
respectfully and helpfully question a judgment by another crew member.
This general approach is known as ``crew resource management'' (CRM), a
concept perfected in aviation and urgently pressed on the railroad
industry by the National Transportation Safety Board and the FRA. See
NTSB Recommendation R-99-13 (July 29, 1999). Major railroads have
included CRM in their training programs.
It is particularly important that a conductor have an assistant who
is not distracted either by or from their other duties now that
conductors may be decertified for actions they take or fail to take
during the operation of a train. Indeed, this rulemaking is holding
conductors to a higher level of accountability and requiring more
severe consequences for failing to meet that level than they have ever
faced before. Accordingly, principles of fairness and safety dictate
that conductors be provided all the tools, knowledge, and oversight
needed to meet this higher level of accountability. Providing the
proper tools, knowledge, and oversight should, in turn, create an even
safer operating environment particularly where an assigned crew member
is serving as the assistant. A more knowledgeable conductor will likely
allow an assistant to focus less on assisting the conductor and more on
their other duties. Similarly, in instances where a conductor is less
familiar with a territory, there is a greater necessity to provide that
conductor with an assistant that is not distracted by other duties.
Principles of fairness and safety also dictate that an engineer,
who is directly responsible for operating the train and also subject to
decertification, not be required to act as an assistant to a conductor,
who possesses insufficient knowledge of the territory. Requiring an
engineer to provide extensive assistance to a conductor could
potentially result in that engineer being distracted from other safety
critical duties. FRA's decision on this issue must be based on safety
considerations and should not be impacted by what a railroad and
representatives of its employees may have agreed to in the past,
particularly when the level of accountability was not as high as it is
now.
Although the AAR Petition asserts that the final rule's prohibition
on an assigned locomotive engineer serving as a conductor's assistant
on main track where the conductor lacks territorial qualification on
the main track physical characteristics will ``cost the industry
millions of dollar[s] annually'' by requiring an extra person in the
cab or by requiring railroads to take conductors on ``pilot trips,''
the Petition does not provide evidentiary support for its assertion or
an explanation of how it calculated the additional cost it claims the
rule will require. Without this information, FRA cannot compare or
respond to the cost claim.\1\ However, contrary to the AAR Petition's
assertion, FRA did, in fact, conduct an economic analysis of the final
rule's prohibition on a locomotive engineer serving as a conductor's
assistant on main track and included additional costs in its analysis
of the final rule. In the final rule's Regulatory Impact Analysis, a
copy of which was placed in the docket on http://www.regulations.gov,
FRA explained that:
---------------------------------------------------------------------------
\1\ The only specific cost claim made in the AAR Petition is
that the Union Pacific Railroad (UP) estimates that it would cost an
additional $8.5 million annually for the UP alone to conduct the
additional pilot trips for conductors. However, the AAR Petition
provides absolutely no information about how that number was
derived. For example, there is no indication of how many pilot trips
would be required, how many employees would be involved in the trips
or the wage rate of those employees, or how much time the trips
would take. The AAR Petition also fails to provide information as to
whether UP's estimate would apply to every railroad or whether the
estimate would differ for each class of railroad. Without such
information, it is impossible for FRA to respond to the cost claims
in the AAR Petition or to even compare its own economic analysis
with the claims made in the AAR Petition.
In the final rule, FRA modified the requirements in paragraph
(c), and added paragraph (e). The cost estimates for the other
requirements above still exist and are appropriate. While the
modifications to paragraph (c) will impose additional burdens, FRA
believes the exceptions in paragraph (e) along with the on-the-job
training requirements of this final rule will serve to minimize this
burden. FRA believes that the situation in which an assistant is
required is most likely to occur on Class I railroads and
occasionally on Class II railroads. When this situation does occur
FRA is assuming it would require an additional railroad employee for
approximately eight hours. FRA estimates that this situation will
occur an average of 10 times per week for the railroad industry. The
annual cost for this is estimated to be $180,000. For a 20-year
period, this is estimated to total $3.4 million, and the PV is $1.7
---------------------------------------------------------------------------
million.
Final Rule Regulatory Impact Analysis (Oct. 19, 2011) at 30. Further,
the analysis provided FRA's calculation of the cost: ``Calculation: (10
occurrences/week) * (8 hours) * ($43.20 wage) * (52 weeks) = $179,712
per year which is rounded up to $180,000.'' Id. at note 56. Absent
verifiable evidence to the contrary, FRA continues to believe that this
situation should be a relatively rare occurrence which can be largely
avoided by the railroads simply by keeping their conductors trained and
qualified.
FRA recognizes the passenger railroads' concerns regarding the
potential economic and service impact of prohibiting a crewmember from
serving as an assistant in certain situations, but notes that passenger
railroads have successfully dealt with a similar issue with locomotive
engineers under part 240 for many years without excessive financial
burdens or service delays being incurred.\2\ Moreover, FRA expects this
situation to be a relatively rare occurrence for passenger
railroads.\3\
---------------------------------------------------------------------------
\2\ With certain exceptions, Sec. 240.231 prohibits an assigned
crew member from serving as an assistant to a locomotive engineer
who lacks qualification on the physical characteristics of the
territory over which they are to operate.
\3\ Similar to the AAR Petition's claims regarding pilot trip
costs, the Petition provides no information or evidentiary support
as to what ``financial burden'' passenger railroads may face.
Without such information, it is again impossible for FRA to respond
to the financial claims in the AAR Petition.
---------------------------------------------------------------------------
While FRA declines to revise the requirement in the final rule
requiring a non-crewmember to serve as a conductor's assistant on main
track where the conductor has never been qualified on the main track
physical characteristics of the territory over which he or she is to
serve as a conductor, FRA believes that it can provide some flexibility
to the railroads with respect to conductors whose qualifications have
been expired for one year or less and who have regularly traversed the
territory prior to the expiration of the qualifications. In that
scenario, the safety concerns are reduced because it is likely that the
assistant would need only to provide minimal assistance to the
conductor due to the conductor's familiarity with the physical
characteristics of the territory.
For a conductor who was previously qualified on main track physical
characteristics of the territory over which he or she is to serve as a
conductor, but whose qualification has been expired for one year or
less and who regularly traversed the territory prior to the expiration
of the qualification, this response provides that the assistant may be
any person, including an assigned crewmember, who meets the territorial
qualification requirements for main track physical characteristics. For
a conductor whose qualification has been expired for one year or less
but who has not regularly traversed the territory prior to the
expiration of the qualification, or a conductor whose territorial
qualification on main track has been expired for more
[[Page 6485]]
than a year, this response provides that the assistant may be any
person, including an assigned crewmember other than the locomotive
engineer so long as serving as the assistant would not conflict with
that crewmember's other safety sensitive duties, who meets the
territorial qualification requirements for main track physical
characteristics.
In order to determine when a conductor's territorial qualification
has expired and whether the conductor regularly traversed the territory
prior to the expiration of the qualification, FRA is requiring that
each railroad indicate in its program how long a conductor must be
absent from a territory before the conductor's qualification on the
physical characteristics of the territory expires and the number of
times a person must pass over a territory per year to be considered to
have ``regularly traversed'' a territory for purposes of Sec.
242.301(c). FRA believes that those requirements will help ensure that
conductors travel over a territory with sufficient regularity to
maintain knowledge of the physical characteristics. Further discussion
of those requirements is contained below in the analysis of the
revisions to Appendix B of part 242.
D. Appeals Process
The BLET/UTU Petition requests reconsideration of FRA's decision
not to adopt the BLET/UTU's proposal for changing the appeals process
provided in Sec. Sec. 242.501, 503, 505, 507, 509 and 511 of the final
rule. The proposal would eliminate appeals to an Administrative Hearing
Officer (AHO), except in cases where the Operating Crew Review Board
(OCRB) or a party wants a specific issue developed further, require the
OCRB to grant a decision if any procedural error by the railroad is
shown, add an attorney as a member to the OCRB, eliminate the
opportunity for parties to appeal FRA decisions to the Administrator,
and make the OCRB decision final agency action. According to the BLET/
UTU Petition, the proposal will make the appeals process more balanced,
efficient, and less costly.
FRA declines to adopt BLET/UTU's proposed revisions to the appeals
process. The proposed appeals process was thoroughly discussed during
the Working Group meetings and most of BLET/UTU's suggestions were
rejected at those meetings. As explained to the Working Group and
indicated in the preamble to the final rule, due process requirements
and issues concerning trials de novo necessitate that FRA retain the
OCRB and AHO as distinct levels of review. Moreover, despite BLET/UTU's
assertions to the contrary, FRA continues to believe that the BLET/UTU
proposal would result in a significant increase in the number of cases/
issues handled by the AHO and the federal courts thereby causing cases
to take much longer to resolve and involve increased costs for all
parties involved.
Although FRA is not adopting BLET/UTU's proposals, FRA is committed
to handling engineer and conductor certification cases as quickly as
possible and is taking steps to make the appeals process more
efficient. Over the past two years, the average length of time for the
AHO to render a decision in a locomotive engineer case under part 240
has dropped by 6 months. One of the steps FRA has taken is to revise
the requirements proposed in the NPRM to require petitions to be
submitted to the Docket Clerk of DOT rather than FRA's Docket Clerk.
With that change, the process for submitting petitions to the OCRB will
parallel the process for requesting an administrative hearing under
part 240 and Sec. 242.507. FRA believes this change will make the
process more efficient as DOT Dockets is better equipped to process and
store these types of filings.
III. Clarifying Amendment
Hostler-Type Assignments
Following the publication of the final rule, it was brought to
FRA's attention that the final rule may be unclear regarding the
applicability of the rule to those persons who perform what have
traditionally been known as hostler assignments. Those assignments
typically involve moving locomotives within the confines of a
locomotive servicing area or car repair shop area.
FRA did not intend for a person performing those types of
assignments to be covered by the requirements of part 242. As FRA
stated in the section-by-section analysis of the Final Rule, ``[a]ll
other train or yard crew members (e.g., assistant conductors, brakemen,
hostlers, trainmen, switchmen, utility persons, flagmen, yard helpers,
and others who might have different job titles but perform similar
duties and are not in charge of a train or yard crew) do not fall
within the definition of `conductor' for purposes of this rule.'' 76 FR
69815. To ensure that interested parties are clear on this issue, FRA
states in the section-by-section analysis below that a person who moves
a locomotive or a group of locomotives within the confines of a
locomotive repair or servicing area as provided for in 49 CFR 218.5 and
218.29(a)(1) or moves a locomotive or group of locomotives for
distances of less than 100 feet and this incidental movement of a
locomotive or locomotives is for inspection or maintenance purposes is
not subject to the requirements of part 242.
IV. Section-by-Section Analysis
FRA is modifying certain provisions of 49 CFR part 242 in response
to the petitions for reconsideration and issues raised following the
publication of the final rule. This section of the preamble explains
the changes made to the final rule. FRA respectfully refers interested
parties to the agency's Section-by-Section Analysis of the final rule
and the Notice of Proposed Rulemaking for a full discussion of those
aspects of the rulemaking that remain unchanged. See 76 FR 69802 (Nov.
9, 2011) and 75 FR 69166 (Nov. 10, 2010).
Subpart A--General
Section 242.7 Definitions
While FRA is not modifying the definition of ``conductor'' in the
final rule, FRA is clarifying its preamble discussion in the final
rule's Section-by-Section Analysis regarding the applicability of part
242 to railroad employees who perform what have traditionally been
known as hostler assignments. FRA did not intend for a person
performing those types of assignments to be covered by the requirements
of part 242. Accordingly, interested parties should note that a person
who moves a locomotive or a group of locomotives within the confines of
a locomotive repair or servicing area as provided for in 49 CFR 218.5
and 218.29(a)(1) or moves a locomotive or group of locomotives for
distances of less than 100 feet and this incidental movement of a
locomotive or locomotives is for inspection or maintenance purposes is
not subject to the requirements of part 242.
Subpart B--Program and Eligibility Requirements
Section 242.103 Approval of Design of Individual Railroad Programs by
FRA
FRA is amending paragraphs (a)(1) and (a)(2) of this section to
delay the date by which the railroads will have to submit their
certification programs to FRA. The final rule required a Class I
railroad (including the National Railroad Passenger Corporation), Class
II railroad, or railroad providing commuter service to submit a program
to FRA no later than March 30, 2012 while a Class III railroad was
required to submit a program by January 31, 2013. As indicated in the
preamble that date is being pushed back 6 months.
[[Page 6486]]
Accordingly, Class I, II, Amtrak, and commuter railroads must now
submit their programs by September 30, 2012 while Class III railroads
must submit a program by January 31, 2013.
Interested parties should note that, except for testing under parts
217 and 218 required by section 242.123, railroads may not test and
evaluate a designated conductor or conductor candidate under subpart B
of this rule until they have a certification program approved by the
FRA pursuant to section 242.103.
Section 242.105 Schedule for implementation
This section contains the timetable for implementation of the rule.
FRA is amending paragraphs (a), (b), (d), and (e) of this section to
delay the date by which the railroads must designate conductors and
issue certificates to those designated conductors and the date by which
railroads must test and evaluate non-designated conductor candidates
pursuant to subpart B of the rule. As indicated in the preamble, those
dates are being pushed back 6 months. Accordingly, by September 1,
2012, all railroads must designate and issue certificates to all
persons authorized by the railroads to perform the duties of a
conductor as of January 1, 2012. After September 1, 2012, Class I, II,
Amtrak, and commuter railroads must designate and issue certificates to
all persons authorized to perform as conductors between January 1,
2012, and December 1, 2012. For the Class III railroads, after
September 1, 2012, Class I, II, they must designate and issue
certificates to all persons authorized to perform as conductors between
January 1, 2012, and April 1, 2013.
With respect to the dates by which railroads may not initially
certify or recertify a person as a conductor unless that person has
been tested and evaluated in accordance with subpart B of the rule, the
date for the Class I, II, Amtrak, and commuter railroads is now ``after
December 1, 2012'' while the date for the Class III railroads is now
``after April 1, 2013.''
Interested parties should note that, except for testing under parts
217 and 218 required by section 242.123, railroads may not test and
evaluate a designated conductor or conductor candidate under subpart B
of this rule until they have a certification program approved by the
FRA pursuant to section 242.103.
Interested parties should also note that another section of this
rule (i.e., 242.101) contains implementation dates which are derived
from the dates provided this section. Thus, while the regulatory text
for section 242.101 is not being amended, the changes to the dates in
section 242.105 will impact the implementation requirements in section
242.101.
Subpart C--Administration of the Certification Program
Section 242.205 Identification of Certified Persons and Recordkeeping
FRA is amending paragraph (a) of this section to delay the date by
which the railroads are required to maintain a list of its certified
conductors. As indicated in the preamble, the date is being pushed back
by 6 months. Accordingly, railroads are now required to maintain that
list after September 1, 2012.
Section 242.215 Railroad Oversight Responsibilities.
This section of the final rule required Class I (including the
National Railroad Passenger Corporation and a railroad providing
commuter service) and Class II railroads to conduct an annual review
and analysis of their programs for responding to detected instances of
poor safety conduct by certified conductors beginning in calendar year
2013. To conform with the rest of the implementation dates in part 242
that have been pushed back by 6 months, FRA is revising paragraph (a)
of this section to read ``beginning in calendar year 2014.''
Subpart D--Territorial Qualification and Joint Operations
Section 242.301 Requirements for Territorial Qualification
FRA is revising paragraph (c)(2) and adding paragraph (c)(3) to
this section. Those paragraphs describe who may serve as an assistant
to a conductor whose qualification on the physical characteristics of a
main track territory has expired. For a conductor who was previously
qualified on main track physical characteristics of the territory over
which he or she is to serve as a conductor, but whose qualification has
been expired for one year or less and who regularly traversed the
territory prior to the expiration of the qualification, paragraph
(c)(2) provides that the assistant may be any person, including an
assigned crewmember, who meets the territorial qualification
requirements for main track physical characteristics. For a conductor
whose qualification has been expired for one year or less but who has
not regularly traversed the territory prior to the expiration of the
qualification, or a conductor whose territorial qualification on main
track has been expired for more than a year, paragraph (c)(3) provides
that the assistant may be any person, including an assigned crewmember
other than the locomotive engineer so long as serving as the assistant
would not conflict with that crewmember's other safety sensitive
duties, who meets the territorial qualification requirements for main
track physical characteristics.
Appendices
Section 2 of Appendix B is being amended to add a requirement that
railroads must state in their programs the number of times a person
must pass over a territory per year to be considered to have
``regularly traversed'' a territory for purposes of Sec. 242.301(c).
This requirement is similar to what railroads already do in their part
240 programs and operating rules with respect to locomotive engineers
who have not worked any trips over a territory for a period of time.
FRA recognizes the uniqueness of railroad territories and the
differences in their complexity and, therefore, FRA is providing the
railroads with the discretion to determine how many times a conductor
must pass over a territory to be considered to have ``regularly
traversed'' a territory. Railroads have a higher level of familiarity
with their territories than FRA, and thus, are in the best position to
evaluate them to determine how many times a conductor must pass over a
territory to safely use an assigned crewmember as an assistant. Indeed,
many factors will affect the complexity of a territory. For example,
signaling, grade and speed, the amount of territory covered, the number
of lines that may be traversed, whether cars will be set off on branch
lines and the differences between the branch lines, and joint
operations over shared trackage are all factors that will need to
considered in determining the number of passes that a conductor must
have made over a territory before an assigned crewmember may be safely
utilized as an assistant to the conductor. Given the number of factors
involved, FRA expects that different frequencies of travel will be
required for different lines.
Although the railroads best understand the difficulties that their
territory presents for a conductor, FRA will closely review each
railroad's program to ensure that the determinations regarding number
of passes are reasonable in light of FRA's understanding of the
railroad's operations. To that end, FRA recommends that each program
contain a brief description of the railroad's operations, including
mileage, speed, signal systems, type of service provided,
[[Page 6487]]
and any other factor the railroad considers significant to their
operation.
V. Regulatory Impact and Notices
A. Executive Order 12866 and DOT Regulatory Policies and Procedures
This action has been evaluated in accordance with existing policies
and procedures and determined to be non-significant under both
Executive Order 12866 and DOT policies and procedures. See 44 FR 11034;
February 26, 1979. The original final rule was determined to be non-
significant. Furthermore, the amendments contained in this action are
not considered significant because they generally clarify requirements
currently contained in the final rule or allow for greater flexibility
in complying with the rule.
These amendments and clarifications provide more time and
flexibility in the implementation of this final rule. In addition, the
amendments to the conductor assistant requirements in Sec. 242.301
should decrease the burdens related to providing assistants. Thus,
these amendments will have a minimal net effect on FRA's original
analysis of the costs and benefits associated with the final rule.
B. Regulatory Flexibility Act and Executive Order 13272
To ensure potential impacts of rules on small entities are properly
considered, FRA developed this action and the original final rule in
accordance with Executive Order 13272 (``Proper Consideration of Small
Entities in Agency Rulemaking'') and DOT's procedures and policies to
promote compliance with the Regulatory Flexibility Act (5 U.S.C. 601 et
seq.). Pursuant to the Regulatory Flexibility Act (5 U.S.C. 605(b)),
FRA certifies that this action would not have a significant economic
impact on a substantial number of small entities.
The amendments contained in this action that modify the
implementation dates will provide small entities more time to implement
conductor certification programs. The amendments to the conductor
assistant requirements should have no significant economic impact on
small entities since most small railroads usually operate with small
train crews or remote control operations with a single-person crew who
will be dual certified and thus likely to be qualified as both an
engineer and a conductor on the physical characteristics of the
territory over which they will operate. In addition, most smaller
railroads have small territories and most of these territories, and
their physical characteristics, likely will not change. Accordingly,
because the amendments contained in this action generally clarify
requirements currently contained in the final rule or allow for greater
flexibility in complying with the rule, FRA has concluded that there
are no substantial economic impacts on small entities resulting from
this action.
C. Paperwork Reduction Act
The information collection requirements in this final rule have
been submitted for approval to the Office of Management and Budget
(OMB) under the Paperwork Reduction Act of 1995, 44 U.S.C. 3501 et seq.
None of the information collection requirements and corresponding
burden time estimates below have changed in response to the petitions
for reconsideration.
----------------------------------------------------------------------------------------------------------------
Total annual Average time per Total annual
CFR Section/subject Respondent universe responses response burden hours
----------------------------------------------------------------------------------------------------------------
242.9: Waivers--Petitions........ 677 railroads...... 10 petitions....... 3 hours............ 30
242.101/103: Certification 677 railroads...... 678 programs....... 160 hrs./581 hrs./ 16,799
Program: Written Program for 15.5 hrs.
Certifying Conductors.
Approval of Design of Programs...
Certification Programs for 6 railroads........ 6 new prog......... 15.5 hours......... 93
New RRs.
Conductor Certification 677 railroads...... 200 copies......... 15 minutes......... 50
Submission Copies to Rail
Labor Organizations.
Affirmative Statements that 677 railroads...... 200 statements..... 15 minutes......... 50
Copies of Submissions Sent
to RLOs.
Certified Comments on 677 railroads...... 35 comments........ 4 hours............ 140
Submissions.
Certification Programs 677 railroads...... 10 programs........ 4 hours............ 40
Disapproved by FRA and then
Revised.
Revised Certification 677 railroads...... 3 programs......... 2 hours............ 6
Programs Still Not
Conforming and then
Resubmitted.
Certification Programs 677 railroads...... 50 programs........ 2 hours............ 100
Materially Modified After
Initial FRA Approval.
Materially Modified Programs 677 railroads...... 3 programs......... 2 hours............ 6
Disapproved by FRA & Then
Revised.
Revised programs Disapproved 677 railroads...... 1 program.......... 2 hours............ 2
and Then Resubmitted.
242.1050: Implementation Schedule
Designation of Certified 677 railroads...... 48,600 designations 5 minutes.......... 4,050
Conductors (Class I
Railroads).
Issued Certificates (\1/3\
each year).
Designation of Certified 677 railroads...... 16,200 certif...... 1 hour............. 16,200
Conductors.
(Class II and III Railroads). 677 railroads...... 5,400 design....... 5 minutes.......... 450
Issued Certificates (\1/3\ 677 railroads...... 1,800 certif....... 1 hour............. 1,800
each year).
Requests for Delayed 677 railroads...... 5,000 request...... 30 minutes......... 2,500
Certification.
Testing/Evaluation to Certify 677 railroads...... 1,000 tests........ 560 hours.......... 560,000
Persons.
Testing/Evaluation to Certify 627 railroads...... 100 tests.......... 400 hours.......... 40,000
Conductors (Class III).
242.107: Types of Service 677 railroads...... 25 conductor Tests/ 8 hours............ 200
Reclassification to Diff. Type Evaluations.
of Cert.
242.109: Opportunity by RRs for 677 Railroads...... 200 records + 200 30 minutes + 10 133
Certification Candidates to comment. minutes.
Review and Comment on Prior
Safety Record.
242.111: Prior Safety Conduct As
Motor Vehicle Operator.
[[Page 6488]]
Eligibility Determinations... 677 Railroads...... 1,100 dtrmin....... 10 minutes......... 183
Initial Certification for 60 677 Railroads...... 75 certific........ 10 minutes......... 13
Days.
Recertification for 60 Days.. 677 Railroads...... 125 recertif....... 10 minutes......... 21
Driver Info. Not Provided and 677 Railroads...... 25 requests........ 2 hours............ 50
Request for Waiver by
Persons/RR.
Request to Obtain Driver's 54,000 Conductors/ 18,000 req......... 15 minutes......... 4,500
License Information From Persons.
Licensing Agency.
Requests for Additional 54,000 Conductors/ 25 requests........ 10 minutes......... 4
Information From Licensing Persons.
Agency.
Notification to RR by Persons 54,000 Conductors/ 2 notification..... 10 minutes......... .33
of Never Having a License. Persons.
Report of Motor Vehicle 54,000 Conductors.. 200 reports........ 10 minutes......... 33
Incidents.
Evaluation of Driving Record. 54,000 Conductors.. 18,000 eval........ 15 minutes......... 4,500
DAC Referral by RR After 677 Railroads...... 180 referrals...... 5 minutes.......... 15
Report of Driving Drug/
Alcohol Incident.
DAC Request and Supply by 677 Railroads...... 5 requests/Records. 30 minutes......... 3
Persons of Prior Counseling
or Treatment.
Conditional Certifications 677 Railroads...... 50 certificat...... 4 hours............ 200
Recommended by DAC.
242.113: Prior Safety Conduct As 54,000 conductors.. 360 requests/360 15 minutes + 30 270
Employee of a Different Railroad. records. minutes.
242.115: Substance Abuse 54,000 conductors.. 18,000 2 minutes.......... 600
Disorders and Alcohol Drug Rules determination.
Compliance:
Meeting Section's Eligibility
Reqmnt.
Written Documents from DAC 677 railroads...... 400 docs........... 30 minutes......... 200
Person Not Affected by a
Disorder.
Self Referral by Conductors 54,000 conductors.. 10 self referrals.. 10 minutes......... 2
for Substance Abuse
Counseling.
Certification Reviews for 677 railroads...... 18,000 reviews..... 10 minutes......... 3,000
Occurrence/Documentation of
Prior Alcohol/Drug Conduct
by Persons/Conductors.
Written Determination That 677 railroads...... 150 determin....... 60 minutes......... 150
Most Recent Incident Has
Occurred.
Notification to Person That 677 railroads...... 150 notific........ 10 minutes......... 25
Recertification Has Been
Denied.
Persons/Conductors Waiving 54,000 conductors.. 100 waivers........ 10 minutes......... 17
Investigation.
242.117: Vision and Hearing
Acuity.
Determination Vision 677 railroads...... 18,000 deter....... 20 minutes......... 6,000
Standards Met.
Determination Hearing Stds. 677 railroads...... 18,000 deter....... 20 minutes......... 6,000
Met.
Additional Gap Hearing Tests. 677 railroads...... 200 deter.......... 20 minutes......... 67
Medical Examiner Certificate 677 railroads...... 18,000 certif...... 2 hours............ 36,000
that Person Has Been
Examined/Passed Test.
Document Standards Met with 677 railroads...... 50 document........ 30 minutes......... 25
Conditions.
Document Standards Not Met... 677 railroads...... 25 document........ 30 minutes......... 13
Notation Person Needs 677 railroads...... 10,000 notes....... 10 minutes......... 1,667
Corrective Device (Glasses/
Hearing Aid).
Request for Further Medical 677 railroads...... 100 requests + 100 60 minutes + 2 300
Evaluation for New Evals. hours.
Determination.
Request for Second Retest and 677 railroads...... 25 requests + 25 60 minutes + 2 75
Another Medical Evaluation. Evals. hours.
Copies of Part 242 Provided 677 railroads...... 677 copies......... 60 minutes......... 677
to RR Medical Examiners.
Consultations by Medical 677 railroads...... 100 consults + 100 2 hours + 10 217
Examiners with Railroad certif. minutes.
Officer and Issue of
Conditional Certification.
Notification by Certified 677 railroads...... 10 notific......... 10 minutes......... 2
Conductor of Deterioration
of Vision/Hearing.
242.119: Training................
Completion of Training 677 railroads...... 678 Program........ 36 hours/ 70 hrs/3 3,751
Program. hrs.
Modification to Training 677 railroads...... 678 Program........ 12 hrs/20 hrs/ 30 934
Program. min.
Completion of Training 54,000 Conductors.. 18,000 Docs/ 18,000 1 hour/560 hours... 10,098,000
Program by Conductors/ Cond.
Persons + Documents.
Modification of Training 677 railroads...... 30 programs........ 4 hours............ 120
Program Due to New Laws/
Regulations.
Consultation with Supervisory 677 railroads...... 1,000 consult...... 15 minutes......... 250
Employee During Written Test.
Familiarization Training Upon 677 railroads...... 10 trained 8 hours............ 80
Transfer of RR Ownership. Conductors.
Continuing Education of 677 railroads...... 18,000 cont. 8 hours............ 144,000
Conductors. trained cond.
242.121: Knowledge Testing 677 railroads...... 18,000 deter....... 30 minutes......... 9,000
Determining Eligibility.
Retests/Re Examinations...... 677 railroads...... 500 Retests........ 8 hours............ 4,000
[[Page 6489]]
242.123: Monitoring Operational
Performance.
Unannounced Compliance Tests 677 railroads...... 18,000 tests + 10 minutes + 5 4,500
and Records. 18,000 recd. minutes.
Return to Service That 677 railroads...... 1,000 tests + 1,000 10 minutes + 5 250
Requires Unannounced records. minutes.
Compliance Test/Record.
242.125/127: Certificate 677 railroads...... 100 determin....... 30 minutes......... 50
Determination by Other Railroads/
Other Country.
Determination Made by RR
Relying on Another RR's
Certification.
Determination by Another 677 railroads...... 200 determin....... 30 minutes......... 100
Country.
242.203: Retaining Information 677 railroads...... 18,000 recds....... 15 minutes......... 4,500
Supporting Determination--
Records.
Amended Electronic Records... 677 railroads...... 20 records......... 60 minutes......... 20
242.205: List of Certified 677 railroads...... 625 lists.......... 60 minutes......... 625
Conductors Working in Joint
Territory.
242.209: Maintenance of 677 railroads...... 2,000 request/ 2 minutes.......... 67
Certificates. displays.
Request to Display
Certificate.
Notification That Request to 677 railroads...... 1,000 notif........ 10 minutes......... 167
Serve Exceeds Certification.
242.211: Replacement of 677 railroads...... 500 certific....... 5 minutes.......... 42
Certificates.
242.213: Multiple Certificates... 677 railroads...... 5 notification..... 10 minutes......... 1
Notification to Engineer That
No Conductor Is On Train.
Notification of Denial of 677 railroads...... 10 notific......... 10 minutes......... 2
Certification by Individuals
Holding Multiple
Certifications.
242.215: RR Oversight
Responsibility.
RR Review and Analysis of 677 railroads...... 44 reviews/Analyses 40 hours........... 1,760
Administration of
Certification Program.
Report of Findings by RR to 677 railroads...... 36 reports......... 4 hours............ 144 hours
FRA.
242.301: Determinations-- 320 railroads...... 1,080 Deter........ 15 minutes......... 270
Territorial Qualification and
Joint Operations.
Notification by Persons Who 320 railroads...... 500 Notific........ 10 minutes......... 83
Do Not Meet Territorial
Qualification.
242.401: Notification to 677 railroads...... 40 notific. + 40 60 minutes/ 60 80
Candidate of Information That responses. minutes.
Forms Basis for Denying
Certification and Candidate
Response.
Written Notification of 677 railroads...... 40 notific......... 60 minutes......... 40
Denial of Certification.
242.403/405: Criteria for
Revoking Certification; Periods
of Ineligibility.
Review of Compliance Conduct. 677 railroads...... 950 reviews........ 10 minutes......... 158
Written Determination That 677 railroads...... 950 determin....... 60 minutes......... 950 hours
the Most Recent Incident Has
Occurred.
242.407: Process for Revoking
Certification.
Revocation for Violations of 677 railroads...... 950 Revoked 8 hours............ 7,600
Section 242.115(e). Certificates.
Immediate Suspension of 677 railroads...... 950 suspend 1 hour............. 950
Certificate. Certificate.
Determinations Based on RR 677 railroads...... 950 determin....... 15 minutes......... 238
Hearing Record.
Hearing Record............... 677 railroads...... 950 records........ 30 minutes......... 475
Written Decisions by RR 677 railroads...... 950 decisions...... 2 hours............ 1,900
Official.
Service of Written Decision 677 railroads...... 950 decisions + 950 10 minutes + 5 238
on Employee by RR + RR proofs. minutes.
Service Proof.
Written Waiver of Right to 54,000 Conductors.. 425 waivers........ 10 minutes......... 71
Hearing.
Revocation of Certification 677 railroads...... 15 revoked 10 minutes......... 3
Based on Information That Certifications.
Another Railroad Has Done So.
Placing Relevant Information 677 railroads...... 100 updated records 1 hour............. 100
in Record Prior to
Suspending Certification/
Convening Hearing.
----------------------------------------------------------------------------------------------------------------
All estimates include the time for reviewing instructions;
searching existing data sources; gathering or maintaining the needed
data; and reviewing the information. For information or a copy of the
paperwork package submitted to OMB, contact Mr. Robert Brogan at (202)
493-6292 or Ms. Kimberly Toone at (202) 493-6132 or via email at the
following addresses: [email protected]; [email protected].
FRA cannot impose a penalty on persons for violating information
collection requirements which do not display a current OMB control
number, if required. The assigned OMB approval number for the
collection of information associated with this final rule is OMB No.
2130-0596.
D. Federalism Implications
Executive Order 13132, ``Federalism'' (64 FR 43255, Aug. 10, 1999),
requires FRA to develop an accountable process to ensure ``meaningful
and timely input by State and local officials in the development of
regulatory policies that have federalism implications.'' ``Policies
that have federalism implications'' are
[[Page 6490]]
defined in the Executive Order to include regulations that have
``substantial direct effects on the States, on the relationship between
the national government and the States, or on the distribution of power
and responsibilities among the various levels of government.'' Under
Executive Order 13132, the agency may not issue a regulation with
federalism implications that imposes substantial direct compliance
costs and that is not required by statute, unless the Federal
government provides the funds necessary to pay the direct compliance
costs incurred by State and local governments, the agency consults with
State and local governments, or the agency consults with State and
local government officials early in the process of developing the
regulation. Where a regulation has federalism implications and preempts
State law, the agency seeks to consult with State and local officials
in the process of developing the regulation.
This action has been analyzed in accordance with the principles and
criteria contained in Executive Order 13132. The action will not have a
substantial effect on the States or their political subdivisions; it
will not impose any compliance costs; and it will not affect the
relationships between the Federal government and the States or their
political subdivisions, or the distribution of power and
responsibilities among the various levels of government. Therefore, the
consultation and funding requirements of Executive Order 13132 do not
apply.
However, this action could have preemptive effect by operation of
law under certain provisions of the Federal railroad safety statutes,
specifically the former Federal Railroad Safety Act of 1970, repealed
and recodified at 49 U.S.C. 20106. Section 20106 provides that States
may not adopt or continue in effect any law, regulation, or order
related to railroad safety or security that covers the subject matter
of a regulation prescribed or order issued by the Secretary of
Transportation (with respect to railroad safety matters) or the
Secretary of Homeland Security (with respect to railroad security
matters), except when the State law, regulation, or order qualifies
under the ``essentially local safety or security hazard'' exception to
section 20106.
In sum, FRA has analyzed this action in accordance with the
principles and criteria contained in Executive Order 13132. As
explained above, FRA has determined that this action has no federalism
implications, other than the possible preemption of State laws under
Federal railroad safety statutes, specifically 49 U.S.C. 20106.
Accordingly, FRA has determined that preparation of a federalism
summary impact statement for this action is not required.
E. International Trade Impact Assessment
The Trade Agreement Act of 1979 prohibits Federal agencies from
engaging in any standards or related activities that create unnecessary
obstacles to the foreign commerce of the United States. Legitimate
domestic objectives, such as safety, are not considered unnecessary
obstacles. The statute also requires consideration of international
standards and where appropriate, that they be the basis for U.S.
standards.
This action is purely domestic in nature and is not expected to
affect trade opportunities for U.S. firms doing business overseas or
for foreign firms doing business in the United States.
F. Environmental Impact
FRA has evaluated this action in accordance with its ``Procedures
for Considering Environmental Impacts'' (FRA's Procedures) (64 FR
28545, May 26, 1999) as required by the National Environmental Policy
Act (42 U.S.C. 4321 et seq.), other environmental statutes, Executive
Orders, and related regulatory requirements. FRA has determined that
this action is not a major FRA action (requiring the preparation of an
environmental impact statement or environmental assessment) because it
is categorically excluded from detailed environmental review pursuant
to section 4(c)(20) of FRA's Procedures. See 64 FR 28547 (May 26,
1999).
In accordance with section 4(c) and (e) of FRA's Procedures, the
agency has further concluded that no extraordinary circumstances exist
with respect to this action that might trigger the need for a more
detailed environmental review. As a result, FRA finds that this action
is not a major Federal action significantly affecting the quality of
the human environment.
G. Unfunded Mandates Reform Act of 1995
Pursuant to Section 201 of the Unfunded Mandates Reform Act of 1995
(Pub. L. 104-4, 2 U.S.C. 1531), each Federal agency ``shall, unless
otherwise prohibited by law, assess the effects of Federal regulatory
actions on State, local, and tribal governments, and the private sector
(other than to the extent that such regulations incorporate
requirements specifically set forth in law).'' Section 202 of the Act
(2 U.S.C. 1532) further requires that ``before promulgating any general
notice of proposed rulemaking that is likely to result in the
promulgation of any rule that includes any Federal mandate that may
result in expenditure by State, local, and tribal governments, in the
aggregate, or by the private sector, of $140,800,000 or more in any one
year, and before promulgating any final rule for which a general notice
of proposed rulemaking was published, the agency shall prepare a
written statement'' detailing the effect on State, local, and tribal
governments and the private sector. The action will not result in the
expenditure, in the aggregate, of $140,800,000 or more in any one year,
and thus preparation of such a statement is not required.
H. Energy Impact
Executive Order 13211 requires Federal agencies to prepare a
Statement of Energy Effects for any ``significant energy action.'' 66
FR 28355 (May 22, 2001). Under the Executive Order, a ``significant
energy action'' is defined as any action by an agency (normally
published in the Federal Register) that promulgates or is expected to
lead to the promulgation of a final rule or regulation, including
notices of inquiry, advance notices of proposed rulemaking, and notices
of proposed rulemaking: (1)(i) That is a significant regulatory action
under Executive Order 12866 or any successor order, and (ii) is likely
to have a significant adverse effect on the supply, distribution, or
use of energy; or (2) that is designated by the Administrator of the
Office of Information and Regulatory Affairs as a significant energy
action. FRA has evaluated this action in accordance with Executive
Order 13211. FRA has determined that this action is not likely to have
a significant adverse effect on the supply, distribution, or use of
energy. Consequently, FRA has determined that this action is not a
``significant energy action'' within the meaning of Executive Order
13211.
I. Privacy Act
Anyone is able to search the electronic form of all comments
received into any of DOT's dockets by the name of the individual
submitting the comment (or signing the comment, if submitted on behalf
of an association, business, labor union, etc.). You may review DOT's
complete Privacy Act Statement published in the Federal Register on
April 11, 2000 (Volume 65, Number 70, Pages 19477-78), or you may visit
http://www.regulations.gov/#!privacyNotice.
[[Page 6491]]
List of Subjects in 49 CFR Part 242
Administrative practice and procedure, Conductor, Penalties,
Railroad employees, Railroad operating procedures, Railroad safety,
Reporting and recordkeeping requirements.
The Rule
For the reasons discussed in the preamble, FRA amends part 242 of
title 49 of the Code of Federal Regulations as follows:
PART 242--[AMENDED]
0
1. The authority citation for part 242 continues to read as follows:
Authority: 49 U.S.C. 20103, 20107, 20135, 20138, 20162, 20163,
21301, 21304, 21311; 28 U.S.C. 2461, note; and 49 CFR 1.49.
0
2. Section 242.103 is amended by revising paragraph (a) to read as
follows:
Sec. 242.103 Approval of design of individual railroad programs by
FRA.
(a) Each railroad shall submit its written certification program
and request for approval in accordance with the procedures contained in
appendix B of this part according to the following schedule:
(1) A Class I railroad (including the National Railroad Passenger
Corporation), Class II railroad, or railroad providing commuter service
shall submit a program no later than September 30, 2012; and
(2) A Class III railroad (including a switching and terminal or
other railroad not otherwise classified) shall submit a program no
later than January 31, 2013.
* * * * *
0
3. Section 242.105 is amended by revising paragraphs (a), (b), (d), and
(e) to read as follows:
Sec. 242.105 Schedule for implementation.
(a) By September 1, 2012, each railroad shall:
(1) In writing, designate as certified conductors all persons
authorized by the railroad to perform the duties of a conductor as of
January 1, 2012; and
(2) Issue a certificate that complies with Sec. 242.207 to each
person that it designates.
(b) After September 1, 2012, each railroad shall:
(1) In writing, designate as a certified conductor any person who
has been authorized by the railroad to perform the duties of a
conductor between January 1, 2012 and the pertinent date in paragraph
(d) or (e) of this section; and
(2) Issue a certificate that complies with Sec. 242.207 to each
person that it designates.
* * * * *
(d) After December 1, 2012, no Class I railroad (including the
National Railroad Passenger Corporation), Class II railroad, or
railroad providing commuter service shall initially certify or
recertify a person as a conductor unless that person has been tested
and evaluated in accordance with procedures that comply with subpart B
of this part and issued a certificate that complies with Sec. 242.207.
(e) After April 1, 2013, no Class III railroad (including a
switching and terminal or other railroad not otherwise classified)
shall initially certify or recertify a person as a conductor unless
that person has been tested and evaluated in accordance with procedures
that comply with subpart B of this part and issued a certificate that
complies with Sec. 242.207.
* * * * *
0
4. Section 242.205 is amended by revising paragraph (a) to read as
follows:
Sec. 242.205 Identification of certified persons and record keeping.
(a) After September 1, 2012, a railroad shall maintain a list
identifying each person designated as a certified conductor. That list
shall indicate the types of service the railroad determines each person
is authorized to perform and date of the railroad's certification
decision.
* * * * *
0
5. Section 242.215 is amended by revising paragraph (a) to read as
follows:
Sec. 242.215 Railroad oversight responsibilities.
(a) No later than March 31 of each year (beginning in calendar year
2014), each Class I railroad (including the National Railroad Passenger
Corporation and a railroad providing commuter service) and each Class
II railroad shall conduct a formal annual review and analysis
concerning the administration of its program for responding to detected
instances of poor safety conduct by certified conductors during the
prior calendar year.
* * * * *
0
6. Section 242.301 is amended by revising paragraph (c) to read as
follows:
Sec. 242.301 Requirements for territorial qualification.
* * * * *
(c) Except as provided in paragraph (e) of this section, if a
conductor lacks territorial qualification on main track physical
characteristics required by paragraph (a) of this section, he or she
shall be assisted by a person who meets the territorial qualification
requirements for main track physical characteristics.
(1) For a conductor who has never been qualified on main track
physical characteristics of the territory over which he or she is to
serve as a conductor, the assistant shall be a person who is certified
as a conductor, meets the territorial qualification requirements for
main track physical characteristics, and is not an assigned crew
member.
(2) For a conductor who was previously qualified on main track
physical characteristics of the territory over which he or she is to
serve as a conductor, but whose qualification has been expired for one
year or less and who regularly traversed the territory prior to the
expiration of the qualification, the assistant may be any person,
including an assigned crewmember, who meets the territorial
qualification requirements for main track physical characteristics.
(3) For a conductor who was previously qualified on main track
physical characteristics of the territory over which he or she is to
serve as a conductor, and whose qualification has been expired for one
year or less but who has not regularly traversed the territory prior to
the expiration of the qualification, or a conductor whose territorial
qualification on main track has been expired for more than a year, the
assistant may be any person, including an assigned crewmember other
than the locomotive engineer so long as serving as the assistant would
not conflict with that crewmember's other safety sensitive duties, who
meets the territorial qualification requirements for main track
physical characteristics.
* * * * *
0
7. Appendix B to part 242 is amended by revising Section 2 to read as
follows:
Appendix B to Part 242--Procedures for Submission and Approval of
Conductor Certification Programs
* * * * *
Section 2 of the Submission: Training Persons Previously Certified
The second section of the request must contain information
concerning the railroad's program for training previously certified
conductors. As provided for in Sec. 242.119(l) each railroad must
have a program for the ongoing education of its conductors to assure
that they maintain the necessary knowledge concerning operating
rules and practices, familiarity with physical characteristics, and
relevant Federal safety rules.
Section 242.119(l) provides a railroad latitude to select the
specific subject matter to be covered, duration of the training,
method of presenting the information, and the frequency with which
the training will be provided. The railroad must describe in this
section how it will use that latitude to assure
[[Page 6492]]
that its conductors remain knowledgeable concerning the safe
discharge of their responsibilities so as to comply with the
performance standard set forth in Sec. 242.119(l). This section
must contain sufficient detail to permit effective evaluation of the
railroad's training program in terms of the subject matter covered,
the frequency and duration of the training sessions, the training
environment employed (for example, use of classroom, use of computer
based training, use of film or slide presentations, and use of on-
job-training) and which aspects of the program are voluntary or
mandatory.
Time and circumstances have the capacity to diminish both
abstract knowledge and the proper application of that knowledge to
discrete events. Time and circumstances also have the capacity to
alter the value of previously obtained knowledge and the application
of that knowledge. In formulating how it will use the discretion
being afforded, each railroad must design its program to address
both loss of retention of knowledge and changed circumstances, and
this section of the submission to FRA must address these matters.
For example, conductors need to have their fundamental knowledge
of operating rules and procedures refreshed periodically. Each
railroad needs to advise FRA how that need is satisfied in terms of
the interval between attendance at such training, the nature of the
training being provided, and methods for conducting the training. A
matter of particular concern to FRA is how each railroad acts to
ensure that conductors remain knowledgeable about the territory over
which a conductor is authorized to perform but from which the
conductor has been absent. The railroad must have a plan for the
familiarization training that addresses the question of how long a
person can be absent before needing more education and, once that
threshold is reached, how the person will acquire the needed
education. Similarly, the program must address how the railroad
responds to changes such as the introduction of new technology, new
operating rule books, or significant changes in operations including
alteration in the territory conductors are authorized to work over.
In addition to stating how long a conductor must be absent from
a territory before their qualification on the physical
characteristics of the territory expires, railroads must also state
in their programs the number of times a person must pass over a
territory per year to be considered to have ``regularly traversed''
a territory for purposes of Sec. 242.301(c). Since territories
differ in their complexity, railroads will be given discretion to
determine how many times a conductor must pass over a territory to
be considered to have ``regularly traversed'' a territory.
* * * * *
Issued in Washington, DC, on February 2, 2012.
Joseph C. Szabo,
Administrator.
[FR Doc. 2012-2915 Filed 2-7-12; 8:45 am]
BILLING CODE 4910-06-P