Federal Register / Vol. 73, No. 169 / Friday, August 29, 2008 / Rules and Regulations 50883 

PA or HMGP under a specific 

Presidential declaration (major disaster 

or emergency for PA or major disaster 

for HMGP), and not in support of other 

programs such as community relations 

or Disaster Recovery Center staff, or staff 

supporting Individual Assistance 

programs. Unreimbursed costs do not 

include State cost shares required for 

sliding scale, Category Z, or indirect 

cost funding, nor do they include costs 

that were not reimbursed because they 

were inconsistent with applicable 

Federal rules and cost principles, such 

as OMB Circular No. A–87. 

Request 2 

FEMA requests that grantees and 

subgrantees submit available data on 

unreimbursed management costs 

incurred in the management and 

administration of Public Assistance (PA) 

and/or the Hazard Mitigation Grant 

Program (HMGP) under a specific 

Presidential declaration (major disaster 

or emergency for PA or major disaster 

for HMGP) since November 13, 2007. 

Specific costs and descriptions are 

needed and must be identified by FEMA 

declaration number. 

Viewing the Docket 

For access to the docket to submit 

comments, read the Notice of Proposed 

Rulemaking, Interim Rule, background 

documents and all comments received, 

go to the Federal eRulemaking Portal at 

http://www.regulations.gov. To the far 

right is a section titled ‘‘More Search 

Options.’’ Below that title, click on 

‘‘Advanced Docket Search.’’ On the next 

screen, in the box provided for Docket 

ID, type ‘‘FEMA–2006–0035’’. The next 

screen will provide a link to the docket. 

Once viewing the docket, all documents 

are provided in chronological order, 

beginning with the 2002 Notice of 

Proposed Rulemaking. Submitted 

comments may also be inspected at 

Office of Chief Counsel, Federal 

Emergency Management Agency, Room 

835, 500 C Street, SW., Washington, DC 

20472. 

Dated: August 22, 2008. 

R. David Paulison 

Administrator, Federal Emergency 

Management Agency. 

[FR Doc. E8–19983 Filed 8–28–08; 8:45 am] 

BILLING CODE 9110–49–P 

DEPARTMENT OF TRANSPORTATION 

Federal Railroad Administration 

49 CFR Part 240 

Qualification and Certification of 

Locomotive Engineers 

AGENCY: Federal Railroad 

Administration (FRA), DOT. 

ACTION: Interpretation. 

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 

(douglas.taylor@dot.gov) or 

(john.conklin@dot.gov). Comments may 

also be submitted to Alan Nagler, FRA 

Office of Chief Counsel, by facsimile 

(202–493–6068) or e-mail 

(alan.nagler@dot.gov). 

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 § 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 § 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 

§ 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 § 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 


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50884 Federal Register / Vol. 73, No. 169 / Friday, August 29, 2008 / Rules and Regulations 

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 § 240.221(c). 

See § 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 § 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 § 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 

§ 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 § 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 § 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 § 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 

§ 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.’’

§ 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-bysection analysis contained in the final 

rule explained that ‘‘FRA has 

specifically provided for the periodic 

updating of the list so that it retains its 


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Federal Register / Vol. 73, No. 169 / Friday, August 29, 2008 / Rules and Regulations 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 

§ 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 § 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 § 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 

DEPARTMENT OF TRANSPORTATION 

National Highway Traffic Safety 

Administration 

49 CFR Part 541 

[Docket No. NHTSA–2008–0049] 

RIN 2127–AK31 

Federal Motor Vehicle Theft Prevention 

Standard; Final Listing of 2009 Light 

Duty Truck Lines Subject to the 

Requirements of This Standard and 

Exempted Vehicle Lines for Model Year 

2009 

Correction 

In rule document E8–18890 beginning 

on page 47847 in the issue of Friday, 

August 15, 2008, make the following 

correction: 

Appendix A–I to Part 541 [Corrected] 

On page 47849, in Appendix A–I to 

Part 541, in the second column of the 

table, in the 44th line entry, ‘‘Genesis3’’

should read‘‘Genesis1’’. 

[FR Doc. Z8–18890 Filed 8–28–08; 8:45 am] 

BILLING CODE 1505–01–D 

DEPARTMENT OF COMMERCE 

National Oceanic and Atmospheric 

Administration 

50 CFR Part 635 

RIN 0648–XJ69 

Atlantic Highly Migratory Species; 

Atlantic Bluefin Tuna Fisheries 

AGENCY: National Marine Fisheries 

Service (NMFS), National Oceanic and 

Atmospheric Administration (NOAA), 

Commerce. 

ACTION: Temporary rule; inseason 

retention limit adjustment. 

SUMMARY: NMFS has determined that 

the Atlantic tunas General category 

daily Atlantic bluefin tuna (BFT) 

retention limit should be adjusted for 

the September, October-November, and 

December time periods of the 2008 

fishing year, based on consideration of 

the determination criteria regarding 

inseason adjustments. 

DATES: The effective dates for the 

adjusted BFT daily retention limits are 

September 1, 2008, through December 

31, 2008. 

FOR FURTHER INFORMATION CONTACT: 

Sarah McLaughlin or Brad McHale, 

978–281–9260. 

SUPPLEMENTARY INFORMATION: 

Regulations implemented under the 

authority of the Atlantic Tunas 

Convention Act (16 U.S.C. 971 et seq.) 

and the Magnuson-Stevens Fishery 

Conservation and Management Act 

(Magnuson-Stevens Act; 16 U.S.C. 1801 

et seq.) governing the harvest of BFT by 

persons and vessels subject to U.S. 

jurisdiction are found at 50 CFR part 

635. Section 635.27 subdivides the U.S. 

BFT quota recommended by the 

International Commission for the 

Conservation of Atlantic Tunas (ICCAT) 

among the various domestic fishing 

categories, per the allocations 

established in the Consolidated Highly 

Migratory Species Fishery Management 

Plan (Consolidated HMS FMP). The 

latest (2006) ICCAT recommendation for 

western Atlantic BFT included a U.S. 

quota of 1,190.12 mt, effective beginning 

in 2007, through 2008, and thereafter 

until changed (i.e., via a new ICCAT 


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