[Federal Register Volume 73, Number 169 (Friday, August 29, 2008)]
[Rules and Regulations]
[Pages 50883-50885]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E8-20032]


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DEPARTMENT OF TRANSPORTATION

Federal Railroad Administration

49 CFR Part 240


Qualification and Certification of Locomotive Engineers

AGENCY: Federal Railroad Administration (FRA), DOT.

ACTION: Interpretation.

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SUMMARY: FRA is issuing this notice of interpretation to inform 
interested parties of its application and enforcement of the 
requirements for each railroad responsible for controlling joint 
operations territory to maintain a list of person(s) certified as a 
qualified locomotive engineer for the purposes of the joint operations. 
FRA has discovered that a number of controlling railroads are not 
maintaining accurate lists primarily because foreign railroads are not 
providing the controlling railroads with accurate information and the 
controlling railroads are not demanding it. If an accurate list is not 
maintained, a controlling railroad has little chance of preventing an 
uncertified or unqualified person from operating a locomotive or train 
in the joint operations territory. This document is intended to inform 
interested parties of what information is required to be maintained on 
the required list and provides information as to how often the listings 
should be updated.

ADDRESSES: You may submit comments to Douglas Taylor, Staff Director, 
Operating Practices Division, or John Conklin, Program Manager 
Locomotive Engineer Certification, FRA Office of Safety Assurance and 
Compliance, by facsimile (202-493-6216) or e-mail 
(<a href="/cdn-cgi/l/email-protection#4b2f243e2c272a38653f2a322724390b2f243f652c243d"><span class="__cf_email__" data-cfemail="66020913010a07154812071f0a09142602091248010910">[email protected]</span></a>) or (<a href="/cdn-cgi/l/email-protection#e2888d8a8ccc818d8c898e8b8ca2868d96cc858d94"><span class="__cf_email__" data-cfemail="a9c3c6c1c787cac6c7c2c5c0c7e9cdc6dd87cec6df">[email protected]</span></a>). Comments may also 
be submitted to Alan Nagler, FRA Office of Chief Counsel, by facsimile 
(202-493-6068) or e-mail (<a href="/cdn-cgi/l/email-protection#7c1d101d1252121d1b10190e3c181308521b130a"><span class="__cf_email__" data-cfemail="c6a7aaa7a8e8a8a7a1aaa3b486a2a9b2e8a1a9b0">[email protected]</span></a>).

FOR FURTHER INFORMATION CONTACT: Douglas H. Taylor, Staff Director, 
Operating Practices Division, Office of Safety Assurance and 
Compliance, FRA, 1200 New Jersey Avenue, SE., RRS-11, Mail Stop 25, 
Washington, DC 20590 (telephone 202-493-6255); John Conklin, Program 
Manager Locomotive Engineer Certification, Office of Safety Assurance 
and Compliance, FRA, 1200 New Jersey Avenue, SE., RRS-11, Mail Stop 25, 
Washington, DC 20590 (telephone 202 493-6318); or Alan H. Nagler, 
Senior Trial Attorney, Office of Chief Counsel, FRA, 1200 New Jersey 
Avenue, SE., RCC-11, Mail Stop 10, Washington, DC 20590 (telephone 202-
493-6038).

SUPPLEMENTARY INFORMATION:

I. General Background

    In 1991, FRA published a final rule requiring each railroad to 
qualify and certify each person the railroad would allow to operate a 
locomotive or train over its system. See 56 FR 28228. The final rule 
also required a railroad to maintain written listings identifying each 
person designated by it as: (i) A supervisor of locomotive engineers, 
(ii) a certified locomotive engineer, and (iii) a certified and 
qualified locomotive engineer for the purposes of joint operations. See 
49 CFR 240.221(a) through (c). For each certified engineer, the listing 
is required to indicate the class of service the railroad determines 
the person is qualified to perform and the date of the railroad's 
certification decision. The rule specifies that the listing required by 
paragraphs (a), (b), and (c) shall be updated at least annually and 
that a railroad may obtain approval from FRA to maintain the listing 
electronically. See Sec.  240.221(d) and (f). The rule also specifies 
where these records are required to be kept so that FRA may inspect and 
copy them during regular business hours. The requirements found in 
Sec.  240.221 have not been amended since they became effective on 
September 17, 1991.
    Overall, the industry is in substantial compliance with the 
requirements for identification of qualified persons under Sec.  
240.221. FRA has not noticed significant non-compliance with 
maintaining the lists required for a railroad's own employees, i.e., 
its own supervisors of locomotive engineers or its own certified 
locomotive engineers. Again, for its own employees, most railroads 
periodically update the listing with all the required information ``so 
that it retains its usefulness'' which FRA described as the goal of the 
listing in the section-by-section analysis when the rule was published. 
See 56 FR at 28249.
    The purpose of this document is to address issues related to 
maintaining the listing of those locomotive engineers employed by other 
railroads (foreign locomotive engineers) that have been designated as 
certified and qualified for the purposes of joint operations pursuant 
to Sec.  240.221(c). Several railroads that have been found not 
properly maintaining a listing of foreign locomotive engineers 
certified and qualified for joint operations have taken some 
affirmative actions to come into compliance. However, the number of 
railroads in partial non-compliance is sufficiently wide-spread that 
FRA believes that clarification of the

[[Page 50884]]

regulatory requirements is necessary to ensure even greater industry-
wide compliance.
    Unless a foreign locomotive engineer solely operates in the joint 
operation with a certified pilot or the regulatory requirements for 
``minimal joint operations'' exist, the foreign locomotive engineer is 
required to be certified and qualified for purposes of the joint 
operations and is required to be on the listing required by Sec.  
240.221(c). See Sec.  240.229(a), (e) and (f). Even though the foreign 
locomotive engineer is not employed by the controlling railroad, the 
controlling railroad is required to determine that the person is 
certified and qualified for purposes of the joint operations. See Sec.  
240.229(a). The controlling railroad must choose between certifying and 
qualifying the person directly, or indirectly relying on the 
certification issued by another railroad under certain specific 
conditions. See Sec.  240.229(b) and (c). FRA has previously provided 
guidance regarding steps a controlling railroad can take to ensure that 
any foreign locomotive engineers operating over its lines are properly 
trained for those joint operations if the controlling railroad would 
like to rely on the certification issued by another railroad. The 
guidance intimates that blind acceptance of a foreign railroad's list 
of qualified engineers does not satisfy the intent of the regulation 
that permits a controlling railroad to indirectly certify and qualify a 
foreign railroads locomotive engineers. See Technical Bulletin OP-2000-
01, redesignated as Technical Bulletin OP-04-21 (February 3, 2004) 
available on FRA's Web site at http://www.fra.dot.gov) After a person 
is certified and qualified for purposes of the joint operations, the 
controlling railroad must choose between issuing its own certificate to 
the foreign locomotive engineer or noting its ``supplemental 
certificate decision'' on the employing railroad's ``original 
certificate.'' See Sec.  240.229(a) and (d).

II. Controlling Railroad's Responsibility To Maintain an Accurate 
Listing

A. What are the options for a controlling railroad?

    A controlling railroad that directly certifies and qualifies 
foreign locomotive engineers is likely to be in compliance with 
maintaining the required listing because it controls the information 
that is needed to maintain the list under Sec.  240.221(c). Controlling 
railroads that choose to directly certify and qualify foreign 
locomotive engineers are typically short line or regional railroads 
with either a small number of foreign locomotive engineers or with 
limited joint operations. Railroads that choose to directly certify and 
qualify are able to maintain greater control over who is allowed to 
operate over the railroad's system.
    In contrast, a controlling railroad that indirectly certifies and 
qualifies foreign locomotive engineers is reliant on the foreign 
railroad to provide accurate and complete information. It is standard 
practice on the major railroads to indirectly certify and qualify 
foreign locomotive engineers. Controlling railroads that choose to 
indirectly certify and qualify are willing to relinquish some control 
over who is allowed to operate over the railroad's system. Despite 
being reliant on another railroad for information about foreign 
locomotive engineers, a controlling railroad is obligated to maintain 
the required listing. Thus, the controlling railroad must ensure and 
demand that accurate and complete information is provided from foreign 
railroads that engage in joint operations.

B. Why is an interpretation necessary?

    FRA has not previously issued any specific written guidance on how 
to comply with the requirements related to maintaining accurate lists 
of qualified and certified locomotive engineers contained in Sec.  
240.221. FRA acknowledges that its personnel may have incorrectly 
instructed some controlling railroads that compliance was achieved when 
it accepted a complete list of each engineer certified by a foreign 
railroad even though the list failed to indicate which engineers were 
certified and qualified to operate in the joint operations territory. 
In order to ensure a consistent, nation-wide policy, we are publishing 
this notice of interpretation to clarify the agency's position.

C. What is FRA's interpretation?

    FRA's interprets Sec.  240.221(c) as requiring the controlling 
railroad to maintain a list that specifically identifies each foreign 
railroad locomotive engineer that is deemed certified and qualified to 
operate over the joint operation. Thus, it is unacceptable for a 
foreign railroad to simply provide a list of all its certified 
engineers without distinguishing which engineers are certified and 
qualified in the joint operations. Section 240.221(c) does not require 
that the listing kept by a controlling railroad of a joint operation 
identify each locomotive engineer that a foreign railroad has certified 
on the foreign railroad's system. The regulation only requires that a 
person be added to the controlling railroad's listing if the person is 
a foreign locomotive engineer who is certified and qualified for the 
purposes of joint operations. Although railroads may choose to exchange 
more information that identifies different types of qualified persons 
than what is required by the regulation, a list that is over-inclusive 
is simply not an accurate list. If a foreign railroad decides to 
provide a controlling railroad with a complete listing of all its 
certified locomotive engineers, the foreign railroad and the 
controlling railroad must specifically distinguish those locomotive 
engineers who are certified and qualified to operate in the joint 
operations territory from those who are not so certified and qualified.

III. Frequency of Listing Updates

A. Why is an interpretation necessary?

    The provision contained in Sec.  240.221(d) states that ``[t]he 
listing required by paragraphs (a), (b), and (c) shall be updated at 
least annually'' and several railroads have complained that it is not 
useful to keep a listing that only needs to be updated annually. These 
parties have argued that even if a listing is updated annually, it will 
likely become outdated quickly because the number of certified and 
qualified engineers is in a constant state of flux. FRA disagrees with 
this interpretation and believes the rule requires maintenance of the 
listing so it retains its usefulness.

B. What is FRA's interpretation?

    The plain language of the regulation does not state that the 
``listing only needs to be updated annually'' but, instead, 
specifically requires that it ``shall be updated at least annually.'' 
Sec.  240.221(d) (emphasis added). Thus, the plain language of the 
regulation contemplates updating the required listings more frequently 
than once a year and that, at a minimum, the listings must be updated 
annually. The only time the annual requirement is relevant is in those 
situations where a controlling railroad does not have any changes to 
make to its listing of qualified locomotive engineers over an entire 
year and then paragraph (d) would require that the listing be checked 
and updated at the end of the year. Moreover, FRA's intent when 
publishing the final rule was to require the listings to be updated 
whenever a change to the listing occurs so that the listing remains 
current. The section-by-section analysis contained in the final rule 
explained that ``FRA has specifically provided for the periodic 
updating of the list so that it retains its

[[Page 50885]]

usefulness.'' 56 FR at 28249. FRA intended that the listing be updated 
whenever it does not accurately identify the person(s) certified and 
qualified (i.e., when the listing's usefulness is diminished). Ideally, 
the listing should be updated each time a person is newly certified and 
qualified, and each time a person is no longer considered certified or 
qualified.
    With regard to updating the listing of foreign locomotive engineers 
in joint operation territories, it should be noted that FRA considers 
it more important to remove the name of any foreign engineer who is no 
longer considered certified or qualified for joint operations territory 
then to fail to add a person who has recently become certified and 
qualified. When a controlling railroad questions a foreign engineer's 
certification or qualifications and the engineer's name is not found on 
the list, the controlling railroad would be expected to immediately 
contact the foreign railroad in order to confirm the person's status 
before allowing the foreign engineer to proceed into the joint 
operations territory. Alternatively, if a controlling railroad were to 
question a foreign engineer's certification or qualifications and the 
engineer's name is found on the list, the controlling railroad would 
likely be expected to rely on the list and would be exercising due 
diligence in doing so. If the list is incorrect and the person's name 
should have been removed, the controlling railroad cannot be expected 
to prevent an unqualified person from operating in the joint operations 
territory.
    Several major railroads have voiced concern that because the 
listing is in such a constant state of flux, it would be extremely 
difficult to maintain an accurate listing at all times. In the joint 
operation context, a major railroad may face the challenge of 
coordinating a listing that includes separate lists submitted by more 
than 100 foreign railroads. Although FRA agrees that it will be 
challenging for some railroads that allow extensive joint operations to 
maintain an accurate written list, such railroads may find it easier to 
comply by maintaining the listing electronically. Maintaining the 
listing electronically has always been an option pursuant to Sec.  
240.221(f), but it has not been extensively utilized. There is no 
question that modern technology has greatly improved since the rule's 
issuance in 1991, and thus the ability and desire to electronically 
maintain the listing should be much greater. For example, it is 
possible to maintain a secure Web site where a controlling railroad can 
search a foreign railroad's uploaded list of locomotive engineers to 
check: (1) Whether the person is certified and qualified for the joint 
operations territory; (2) the person's class of service; and, (3) the 
date of the railroad's certification decision. Another option may be 
for a foreign railroad to tap into its railroad crew management 
tracking system to produce a more detailed written or electronic list 
of its engineers to controlling railroads than what is currently being 
made available. Other electronically maintained options may be 
available and FRA encourages railroads controlling joint operations to 
consider options that would improve the usefulness of the required 
listing. Any railroad that would like to maintain the listing 
electronically is required to obtain approval from FRA pursuant to the 
requirements in Sec.  240.221(f).
    While FRA recognizes that recent changes in status to any 
particular engineer might not be reflected in the listing immediately, 
FRA expects the listing to be updated with enough regularity so that it 
retains its usefulness.
    FRA believes that this notice provides sufficient information to 
guide parties that may have been confused by the requirements of Sec.  
240.221. However, FRA seeks comments on this notice from interested 
parties including any suggestions for providing more clarity, if 
necessary. Please refer to the Addresses section for additional 
information regarding the submission of comments.

    Issued in Washington DC on August 21, 2008.
Jo Strang,
Associate Administrator for Safety.
[FR Doc. E8-20032 Filed 8-28-08; 8:45 am]
BILLING CODE 4910-06-P


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