[Federal Register Volume 77, Number 25 (Tuesday, February 7, 2012)]
[Proposed Rules]
[Pages 6412-6461]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2012-2148]



[[Page 6411]]

Vol. 77

Tuesday,

No. 25

February 7, 2012

Part IV





Department of Transportation





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Federal Railroad Administration





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49 CFR Parts 214, 232, and 243





Training, Qualification, and Oversight for Safety-Related Railroad 
Employees; Proposed Rule

  Federal Register / Vol. 77 , No. 25 / Tuesday, February 7, 2012 / 
Proposed Rules  

[[Page 6412]]


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DEPARTMENT OF TRANSPORTATION

Federal Railroad Administration

49 CFR Parts 214, 232, and 243

[Docket No. FRA-2009-0033, Notice No. 1]
RIN 2130-AC06


Training, Qualification, and Oversight for Safety-Related 
Railroad Employees

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

ACTION: Notice of proposed rulemaking (NPRM).

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SUMMARY: FRA proposes regulations establishing minimum training 
standards for each category and subcategory of safety-related railroad 
employee, as required by the Rail Safety Improvement Act of 2008. The 
proposed rule would require each railroad or contractor that employs 
one or more safety-related railroad employee to develop and submit a 
training program to FRA for approval and to designate the qualification 
of each such employee. As part of that program, most employers would 
need to conduct periodic oversight of their own employees to determine 
compliance with Federal railroad safety laws, regulations, and orders 
applicable to those employees. The proposal would also require most 
railroads to conduct annual written reviews of their training programs 
to close performance gaps. Furthermore, FRA proposes specific training 
and qualification requirements for operators of roadway maintenance 
machines that can hoist, lower, and horizontally move a suspended load. 
Finally, FRA proposes minor clarifying amendments to the existing 
training requirements for railroad and contractor employees that 
perform brake system inspections, tests, or maintenance.

DATES: Written Comments: Written comments on the proposed rule must be 
received by April 9, 2012. Comments received after that date will be 
considered to the extent possible without incurring additional expense 
or delay. FRA anticipates being able to determine these matters without 
a public hearing. However, if prior to March 8, 2012, FRA receives a 
specific request for a public hearing accompanied by a showing that the 
party is unable to adequately present his or her position by written 
statement, a hearing will be scheduled and FRA will publish a 
supplemental notice in the Federal Register to inform interested 
parties of the date, time, and location of any such hearing.

ADDRESSES: You may submit comments identified by the docket number FRA-
2009-0033 by any one of the following methods:
     Fax: 1-202-493-2251;
     Mail: U.S. Department of Transportation, Docket 
Operations, M-30, West Building Ground Floor, Room W12-140, 1200 New 
Jersey Avenue SE., Washington, DC 20590;
     Hand Delivery: U.S. Department of Transportation, Docket 
Operations, West Building Ground Floor, Room W12-140, 1200 New Jersey 
Avenue SE., Washington, DC 20590, between 9 a.m. and 5 p.m., Monday 
through Friday, except Federal holidays; or
     Electronically through the Federal eRulemaking Portal, 
http://www.regulations.gov. Follow the online instructions for 
submitting comments.
    Instructions: All submissions must include the agency name, docket 
name and docket number or Regulatory Identification Number (RIN) for 
this rulemaking (2130-AC06). Note that all comments received will be 
posted without change to http://www.regulations.gov, including any 
personal information provided. Please see the Privacy Act heading in 
the SUPPLEMENTARY INFORMATION section of this document for Privacy Act 
information related to any submitted comments or materials.
    Docket: For access to the docket to read background documents or 
comments received, go to http://www.regulations.gov at any time or to 
U.S. Department of Transportation, Docket Operations, M-30, West 
Building Ground Floor, Room W12-140, 1200 New Jersey Avenue SE., 
Washington, DC, between 9 a.m. and 5 p.m., Monday through Friday, 
except Federal holidays.

FOR FURTHER INFORMATION CONTACT: Michael Logue, Deputy Associate 
Administrator for Safety Compliance and Program Implementation, U.S. 
Department of Transportation, Federal Railroad Administration, Mail 
Stop 25, West Building 3rd Floor West, Room W38-340, 1200 New Jersey 
Avenue SE., Washington, DC 20590 (telephone: (202) 493-6301); Robert J. 
Castiglione, Staff Director--Technical Training, U.S. Department of 
Transportation, Federal Railroad Administration, 4100 International 
Plaza, Suite 450, Fort Worth, TX 76109-4820 (telephone: (817) 447-
2715); or Alan H. Nagler, Senior Trial Attorney, U.S. Department of 
Transportation, Federal Railroad Administration, Office of Chief 
Counsel, RCC-10, Mail Stop 10, West Building 3rd Floor, Room W31-309, 
1200 New Jersey Avenue SE., Washington, DC 20590 (telephone: (202) 493-
6038).

SUPPLEMENTARY INFORMATION: 

Table of Contents for Supplementary Information

I. Executive Summary
II. Statutory Background
III. RSAC Overview
IV. RSAC Training Standards and Plans Working Group
V. Employees Charged With Inspection of Track or Railroad Equipment
VI. Incentives for Early Filing of Program
VII. Section-by-Section Analysis
VIII. Regulatory Impact and Notices
    A. Executive Order 12866 and DOT Regulatory Policies and 
Procedures
    B. Regulatory Flexibility Act and Executive Order 13272; Initial 
Regulatory Flexibility Assessment
    C. Paperwork Reduction Act
    D. Federalism Implications
    E. International Trade Impact Assessment
    F. Environmental Impact
    G. Unfunded Mandates Reform Act of 1995
    H. Energy Impact
    I. Privacy Act

I. Executive Summary

    FRA is proposing that FRA's training experts review training 
programs that will be used to train safety-related railroad employees. 
All programs will have to be approved by FRA prior to their 
implementation. FRA's expectation is that the programs submitted for 
approval will reflect the insights of training models that are 
recognized and generally accepted by the academic and training 
communities for formal initial training, on-the-job training, and 
refresher training. Furthermore, FRA expects that these training 
programs will use ``hands-on'' or engaging training methods where 
practicable and appropriate. These programs will include: Initial, 
ongoing, and on-the-job training criteria; testing and skills 
evaluation measures designed to ensure continual compliance with 
Federal standards; and the identification of critical safety defects 
and plans for immediate remedial actions to correct them.
    The scientific literature on training in general and FRA's own 
experience with training in the railroad industry show a clear link 
between the quality of training programs--including whether training is 
engaging or ``hands-on''--and safety. Even though rail transportation 
in the United States is generally an extremely safe mode of 
transportation, and rail safety has been improving, well-designed 
training programs have the potential to further reduce risk in the 
railroad environment. FRA believes that better designed training can 
reduce the number of accidents caused by human factors.
    FRA has estimated the costs of this proposed rule, evaluated over a 
20-year

[[Page 6413]]

period and using discount rates of 3 and 7 percent. The total cost of 
the proposed rule is estimated to be about $81.6 million, discounted at 
a 3 percent rate, and about $64.1 million, discounted at a 7 percent 
rate. Table 1 below lists specific costs elements and each element's 
estimated cost over the first twenty years following promulgation of 
the proposed rule, as well as the total cost estimates.

   Table 1--Costs of the Proposed Rule, Evaluated Over 20-Year Period
------------------------------------------------------------------------
                                            Twenty-year     Twenty-year
              Cost element                   total (3%       total (7%
                                          discount rate)  discount rate)
------------------------------------------------------------------------
Creating and revising training programs       $1,999,728      $1,564,484
 and performing annual reviews, original
 program users..........................
Creating and revising training programs          179,116         129,245
 and performing annual reviews, model
 program users..........................
Creating and revising training programs,       4,751,465       3,428,505
 model program users with <400k annual
 labor hours............................
Customizing model programs..............         910,245         842,919
Designating employees by class or craft.         771,316         709,480
Additional time in initial training.....      16,539,877      12,235,174
Additional time in refresher training...      25,456,709      18,831,293
Periodic oversight tests and inspections      15,242,583      11,275,517
Additional qualification testing........      15,741,416      15,075,836
                                         -------------------------------
    Total...............................      81,592,455      64,092,452
------------------------------------------------------------------------

    Additionally, FRA has performed a breakeven analysis of the 
proposed rule, estimating the reduction in human factors-caused 
accidents that would be required in order for the benefits of the 
proposed rule to at least offset the costs. FRA believes the proposed 
rule would reduce human factors-caused accidents primarily through 
requiring that training programs include ``hand-on'' training 
components. Reductions in human factors-caused accidents will result in 
fatalities avoided, injuries avoided, and property damage avoided. 
Table 2 below shows the total present discounted annual costs of human 
factors accidents that would be incurred over the next 20 years without 
this proposed rule, where injuries and fatalities have been monetized 
according to DOT policies. Table 2 also shows the percent reduction in 
human factors-caused accidents that would be necessary for the 
monetized reduction in fatalities, injuries, and property damages 
caused by these accidents to justify implementation of the proposal. 
This calculation takes into account various recent and concurrent 
initiatives to address human factor-caused accidents, including 
implementation of positive train control systems, revisions to hours of 
service regulations, development of conductor certification standards, 
and implementation of programs to address fatigue and electronic device 
distraction among others.

--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                 Percent                                                                     Percent
  Total present discounted      Total present discounted      reduction for     Total present discounted      Total present discounted    reduction for
  cost of HF accidents  (3%     costs (3% discount rate)      breakeven (3%     cost of HF accidents  (7%     costs (7% discount rate)    breakeven (7%
       discount rate)                                        discount rate)          discount rate)                                       discount rate)
--------------------------------------------------------------------------------------------------------------------------------------------------------
           $1,246,926,928                   $81,592,455               7.3                $1,020,012,541                   $64,092,452              7.1
--------------------------------------------------------------------------------------------------------------------------------------------------------

    FRA estimates that this proposed rule will break even if it results 
in a twenty-year total reduction in human factors-caused accidents of 
7.3 percent using a 3 percent discount rate, and a reduction of 7.1 
percent using a 7 percent discount rate. Given the role and prevalence 
of human factor-caused accidents in the railroad industry and the 
relationship between quality training and safety, FRA believes it is 
not unreasonable to expect that improvements in training as proposed in 
this rule would yield safety benefits that will exceed the costs.

II. Statutory Background

    Pursuant to the Rail Safety Improvement Act of 2008 Sec.  401(a), 
Public Law 110-432, 122 Stat. 4883, (Oct. 16, 2008) (codified at 49 
U.S.C. 20162) (hereinafter ``RSIA'') Congress required the Secretary of 
Transportation (Secretary) to establish minimum training standards for 
safety-related railroad employees and the submission of training plans 
from railroad carriers, contractors, and subcontractors for the 
Secretary's approval. The Secretary delegated this authority to the 
Federal Railroad Administrator. 49 CFR 1.49(oo).
    Section 20162 of 49 U.S.C. (Section 401(a) of the RSIA) provides 
that:

    ``(a) In general.--The Secretary of Transportation shall * * * 
establish--
    (1) minimum training standards for each class and craft of 
safety-related railroad employee (as defined in section 20102) and 
equivalent railroad carrier contractor and subcontractor employees, 
which shall require railroad carriers, contractors, and 
subcontractors to qualify or otherwise document the proficiency of 
such employees in each such class and craft regarding their 
knowledge of, and ability to comply with, Federal railroad safety 
laws and regulations and railroad carrier rules and procedures 
promulgated to implement those Federal railroad safety laws and 
regulations;
    (2) a requirement that railroad carriers, contractors, and 
subcontractors develop and submit training and qualification plans 
to the Secretary for approval, including training programs and 
information deemed necessary by the Secretary to ensure that all 
safety-related railroad employees receive appropriate training in a 
timely manner; and
    (3) a minimum training curriculum, and ongoing training 
criteria, testing, and skills evaluation measures to ensure that 
safety-related railroad employees, and contractor and subcontractor 
employees, charged with the inspection of track or railroad 
equipment are qualified to assess railroad compliance with Federal 
standards to identify defective conditions and initiate immediate 
remedial action to correct critical safety defects that are known to 
contribute to derailments, accidents, incidents, or injuries, and, 
in implementing the requirements of this paragraph, take into 
consideration existing training programs of railroad carriers.
    (b) Approval.--The Secretary shall review and approve the plans 
required under subsection (a)(2) utilizing an approval process 
required for programs to certify the

[[Page 6414]]

qualification of locomotive engineers pursuant to part 240 of title 
49, Code of Federal Regulations.
    (c) Exemption.--The Secretary may exempt railroad carriers and 
railroad carrier contractors and subcontractors from submitting 
training plans for which the Secretary has issued training 
regulations before the date of enactment of the Rail Safety 
Improvement Act of 2008.''

    Section 20162(a)(1) contains a citation to the statutory definition 
of ``safety-related railroad employee.'' That definition, found in 
section 20102 of 49 U.S.C. provides that:

    (4) ``safety-related railroad employee'' means--
    (A) a railroad employee who is subject to chapter 211;
    (B) another operating railroad employee who is not subject to 
chapter 211;
    (C) an employee who maintains the right of way of a railroad;
    (D) an employee of a railroad carrier who is a hazmat employee 
as defined in section 5102(3) of this title;
    (E) an employee who inspects, repairs, or maintains locomotives, 
passenger cars, or freight cars; and
    (F) any other employee of a railroad carrier who directly 
affects railroad safety, as determined by the Secretary.

III. RSAC Overview

    In March 1996, FRA established the Railroad Safety Advisory 
Committee (RSAC), which provides a forum for collaborative rulemaking 
and program development. RSAC includes representatives from all of the 
agency's major stakeholder groups, including railroads, labor 
organizations, suppliers and manufacturers, and other interested 
parties. A list of RSAC members follows:

American Association of Private Railroad Car Owners (AARPCO);
American Association of State Highway & Transportation Officials 
(AASHTO);
American Chemistry Council;
American Petroleum Institute;
American Public Transportation Association (APTA);
American Short Line and Regional Railroad Association (ASLRRA);
American Train Dispatchers Association (ATDA);
Association of American Railroads (AAR);
Association of Railway Museums (ARM);
Association of State Rail Safety Managers (ASRSM);
Brotherhood of Locomotive Engineers and Trainmen (BLET);
Brotherhood of Maintenance of Way Employes Division (BMWED);
Brotherhood of Railroad Signalmen (BRS);
Chlorine Institute;
Federal Transit Administration (FTA); *
Fertilizer Institute;
High Speed Ground Transportation Association (HSGTA);
Institute of Makers of Explosives;
International Association of Machinists and Aerospace Workers;
International Brotherhood of Electrical Workers (IBEW);
Labor Council for Latin American Advancement (LCLAA);*
League of Railway Industry Women;*
National Association of Railroad Passengers (NARP);
National Association of Railway Business Women;*
National Conference of Firemen & Oilers;
National Railroad Construction and Maintenance Association (NRC);
National Railroad Passenger Corporation (Amtrak);
National Transportation Safety Board (NTSB);*
Railway Supply Institute (RSI);
Safe Travel America (STA);
Secretaria de Comunicaciones y Transporte;*
Sheet Metal Workers International Association (SMWIA);
Tourist Railway Association Inc.;
Transport Canada;*
Transport Workers Union of America (TWU);
Transportation Communications International Union/BRC (TCIU/BRC);
Transportation Security Administration (TSA); and
United Transportation Union (UTU).
*Indicates associate, non-voting membership.

    When appropriate, FRA assigns a task to RSAC, and after 
consideration and debate, RSAC may accept or reject the task. If 
accepted, RSAC establishes a working group that possesses the 
appropriate expertise and representation of interests to develop 
recommendations to FRA for action on the task. These recommendations 
are developed by consensus. The working group may establish one or more 
task forces or other subgroups to develop facts and options on a 
particular aspect of a given task. The task force, or other subgroup, 
reports to the working group. If a working group comes to consensus on 
recommendations for action, the package is presented to RSAC for a 
vote. If the proposal is accepted by a simple majority of RSAC, the 
proposal is formally recommended to FRA. FRA then determines what 
action to take on the recommendation. Because FRA staff play an active 
role at the working group level in discussing the issues and options 
and in drafting the language of the consensus proposal, and because the 
RSAC recommendation constitutes the consensus of some of the industry's 
leading experts on a given subject, FRA is often favorably inclined 
toward the RSAC recommendation. However, FRA is in no way bound to 
follow the recommendation and the agency exercises its independent 
judgment on whether the recommended rule achieves the agency's 
regulatory goals, is soundly supported, and is in accordance with 
applicable policy and legal requirements. Often, FRA varies in some 
respects from the RSAC recommendation in developing the actual 
regulatory proposal or final rule. Any such variations would be noted 
and explained in the rulemaking document issued by FRA. If the working 
group or RSAC is unable to reach consensus on recommendations for 
action, FRA resolves the issue(s) through traditional rulemaking 
proceedings or other action.

IV. RSAC Training Standards and Plans Working Group

    On February 11, 2010, the RSAC accepted a task (No. 10-01) entitled 
``Minimum Training Standards and Plans.'' The purpose of this task was 
defined as follows: ``To establish minimum training standards for each 
class and craft of safety-related railroad employee and their railroad 
contractor and subcontractor equivalents, as required by the Rail 
Safety Improvement Act of 2008 (Act).'' The task called for the RSAC 
Training Standards and Plans Working Group (Working Group) to perform 
the following:
     Assist FRA in developing regulations responsive to the 
legislative mandate.
     Determine a reasonable method for submission and FRA 
review of training plans.
     Establish reasonable oversight criteria to ensure training 
plans are effective.

The task also listed issues requiring specific report:

     What criteria should be used to determine which, if any, 
FRA-required training programs may be exempted from the new minimum 
standards?
     What training methodologies should be employed to ensure 
that current employees understand which tasks are covered by Federal 
laws, regulations, and orders, as well as the railroad rules and 
procedures which implement them?
     What criteria can be developed for the regulated community 
to determine whether there are safety-related tasks that require 
training for new employees?
     Should annual proficiency checks be established for all 
safety-related railroad employees, similar to those required for 
locomotive engineers and conductors? Should periodic training intervals 
be extended if such checks were used?
     Which employees should be covered by this regulation?
    The Working Group was formed from interested organizations that are 
members of the RSAC. In addition to FRA, the following organizations 
contributed members:

AAR, including members from BNSF Railway Company (BNSF), Canadian

[[Page 6415]]

National Railway (CN), Canadian Pacific Railway (CP), CSX 
Transportation, Inc. (CSX), Kansas City Southern Railway (KCS), 
National Railroad Passenger Corporation (Amtrak), Northeast Illinois 
Regional Commuter Railroad Corporation (METRA), Norfolk Southern 
Railway Company (NS), Rail America, Inc. and Union Pacific Railroad 
(UP);
APTA, including members from Bombardier Transportation, Greater 
Cleveland Regional Transit Authority (GCRTA), Long Island Rail Road 
(LIRR), Maryland Transit Administration (MTA), Metro-North Railroad 
(MNCW), Mid-Region Council of Governments/New Mexico Rail Runner 
Express (MRCOG), Northern Indiana Commuter Transportation District 
(NICTD), Port Authority Transit Corporation (PATCO), Southeastern 
Pennsylvania Transportation Authority (SEPTA), and Southern 
California Regional Rail Authority (Metrolink);
ASLRRA, including members from Anacostia Rail Holdings (ARH), 
Genesee & Wyoming Inc. (GNWR), Omnitrax Inc.(Omnitrax), Rio Grande 
Pacific Corporation (RGP), and WATCO Companies, Inc. (WATCO);
ASRSM, including members from California Public Utilities Commission 
(CPUC) and Public Utilities Commission of Ohio (PUCO);
ATDA;
BLET;
BMWED;
BRS;
IBEW;
NRC, including members from Balfour Beatty Rail Inc. (BBRI), Delta 
Railroad Construction Inc., Herzog Transit Services (Herzog), 
RailWorks Track Systems, and Track Guy Consultants;
RSI, including members from GE Transportation;
SMWIA;
Tourist Railway Association Inc.;
TWU; and
UTU.

    In addition to the Working Group members, visitors to the meetings 
included The Railway Education Bureau and The Transportation Learning 
Center.
    The Working Group convened 6 times on the following dates and 
locations:
     April 13-14, 2010 in Philadelphia, PA;
     June 2-3, 2010 in Savannah, GA;
     August 17-18, 2010 in Baltimore, MD;
     September 21-22, 2010 in Baltimore, MD;
     October 19-20, 2010 in Atlanta, GA; and
     November 15-16, and 23, 2010 in Washington, DC and via 
conference call.
    To aid the Working Group in its development of recommendations for 
minimum training standards and plans, FRA prepared draft regulatory 
text, which it distributed prior to the April meeting. Portions of the 
draft text were modeled after existing regulations. For example, the 
training requirements closely followed 49 CFR Sec.  232.203, which are 
the general training requirements for railroad and contractor personnel 
used to perform freight and passenger train brake inspections and 
tests. As statutorily mandated in 49 U.S.C. 20162(b), the program 
filing requirements followed the review and approval process required 
under the qualification and certification of locomotive engineers 
regulation (49 CFR part 240), but with suggested improvements from the 
conductor certification RSAC working group. Similarly, the oversight 
and recordkeeping requirements were modeled after the programs of 
operational tests and inspections found in 49 CFR 217.9 of the railroad 
operating rules regulation.
    During each meeting, Working Group members made recommendations 
regarding changes and additions to the draft text. Following each 
meeting, FRA considered all of the recommendations and revised the 
draft text accordingly. Minutes of each of these meetings are part of 
the docket in this proceeding and are available for public inspection.
    Having worked closely with the RSAC in developing its 
recommendations, FRA believes that the RSAC has effectively addressed 
concerns with regard to requiring minimum training standards and plans. 
FRA has greatly benefited from the open, informed exchange of 
information during the meetings. The Working Group reached consensus on 
all of its recommended regulatory provisions. On December 14, 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 
December meeting accepted the regulatory recommendations submitted by 
the Working Group. Thus, the Working Group's recommendations became the 
full RSAC's recommendations to FRA.

V. Employees Charged With Inspection of Track or Railroad Equipment

    The ``Statutory Background'' section of this preamble cited 49 
U.S.C. 20162(a)(3), which requires that the regulation establishing 
minimum training standards and plans ensure that those employees 
charged with the inspection of track or railroad equipment are 
qualified to assess railroad compliance with Federal standards to 
identify defective conditions and initiate immediate remedial action to 
correct critical safety defects that are known to contribute to 
derailments, accidents, incidents, or injuries.
    FRA is addressing this statutory mandate in this rulemaking by 
proposing that each employer of one or more safety-related railroad 
employee, whether the employer is a railroad, contractor, or 
subcontractor, be required to train and qualify each such employee on 
the Federal railroad safety laws, regulations, and orders that the 
employee is required to comply with, as well as any relevant railroad 
rules and procedures promulgated to implement those Federal railroad 
safety laws, regulations, and orders. See proposed Sec. Sec.  243.1(a) 
and 243.201. Employees charged with the inspection of track or railroad 
equipment are considered safety-related railroad employees that each 
employer must train and qualify. Proposed Sec.  243.5 defines safety-
related railroad employee to specifically include an individual who is 
engaged or compensated by an employer to ``(3) In the application of 
parts 213 and 214 of this chapter, inspect * * * track; (4) Inspect * * 
* locomotives, passenger cars or freight cars; (5) Inspect * * * other 
railroad on-track equipment when such equipment is in a service that 
constitutes a train movement under part 232 of this chapter; [and] (6) 
Determine that an on-track roadway maintenance machine or hi-rail 
vehicle may be used in accordance with part 214, subpart D of this 
chapter, without repair of a non-complying condition.''
    The proposal would also require that the training program developed 
by each employer be submitted to FRA for approval. Sec.  243.109. Thus, 
the proposal places the burden on each employer to address in its 
program how it will train those employees charged with the inspection 
of track or railroad equipment to identify defective conditions and 
initiate immediate remedial action to correct critical safety defects 
that are known to contribute to derailments, accidents, incidents, or 
injuries. Furthermore, FRA would reject a program that fails to 
adequately address training for those employees charged with the 
inspection of track or railroad equipment.
    The proposed formal training for employees responsible for 
inspecting track and railroad equipment is expected to cover all 
aspects of their duties related to complying with the Federal 
standards. FRA would expect that the training programs and courses for 
such employees would include techniques for identifying defective 
conditions and would address what sort of immediate remedial actions 
need to be initiated to correct critical safety defects that are known 
to contribute to derailments, accidents, incidents, or injuries. FRA 
would also expect that the

[[Page 6416]]

proposed required refresher training address these issues and 
satisfactorily address Congress's concern for ``ongoing training.'' 
Because this is a specific statutory requirement, FRA would expect that 
each employer would pay particular attention to address this issue in 
its training program.
    Although FRA believes this proposed rule adequately covers the 
specific statutory requirement related to employees charged with the 
inspection of track or railroad equipment found at 49 U.S.C. 
20162(a)(3), FRA seeks comments from interested parties as to whether 
the proposed regulatory text needs to be more explicit in the final 
rule. For instance, FRA is considering whether language that mirrors 
the statutory requirement related to employees charged with the 
inspection of track or railroad equipment should be added as paragraph 
(c)(6) to proposed Sec.  243.101 so that it would be one of the 
specific requirements necessary for each employer's training program. 
Separately, FRA is also considering whether the proposed regulatory 
language requiring periodic oversight and annual review should be 
expanded to directly address those employees inspecting track and 
railroad equipment. Currently, the oversight and review provisions are 
only applicable to determine if safety-related railroad employees are 
complying with Federal railroad safety laws, regulations, and orders 
particular to FRA-regulated personal and work group safety. FRA invites 
comments on these two specific items under consideration. We also 
invite comments regarding other options to consider in addressing the 
specific statutory requirement related to employees charged with the 
inspection of track or railroad equipment, or any other concern a 
commenter may have over whether the proposed regulation adequately 
covers each of the statutory requirements.

VI. Incentives for Early Filing of Program

    Throughout the RSAC process, FRA expressed its concern that the 
agency's program review process could be time consuming and resource 
intensive. As the proposed submission and approval process is 
statutorily mandated (see 49 U.S.C. 20162(a)(2)), FRA views the program 
filing requirements as necessary to ensure that all safety-related 
railroad employees receive appropriate training in a timely manner. 
However, FRA is willing to consider methods or approaches for meeting 
the statutory review and approval obligations that would lead to a 
quicker and more efficient review process.
    The proposed rule contains two provisions that are expected to 
reduce FRA's review process burden. In Sec.  243.105, FRA proposes an 
option for any organization, business, or association to develop one or 
more model training programs that can be used by multiple employers. 
Under this approach, once FRA has reviewed and approved a model 
training program, FRA would only need to look at the aspects of an 
employer's submission that differ from the model program. For example, 
if most short line railroads were to use the same, previously approved 
model program, FRA would likely conserve agency resources and would be 
able to approve most of those programs in a relatively short period of 
time. Likewise, in Sec.  243.111, FRA proposes an option for programs 
to be filed by training organizations and learning institutions. Under 
this approach, once FRA approves a training organization's or learning 
institution's training program, FRA would be able to more quickly 
approve any employer's training program that explained that the 
employer's training would be provided in accordance with a training 
organization's or learning institution's previously approved program.
    For these reasons, FRA encourages early filing of model programs 
and programs that could be referenced by multiple employers. FRA is 
also interested in receiving comments from interested parties on 
potential ideas for adding other incentives in the final rule to 
encourage the early filing of these types of programs. One option FRA 
is considering is pushing back the deadline for an employer submission 
by at least one year after the submission deadline for an existing 
training organization or learning institution under Sec.  243.111(b). 
This potential option would provide associations and other 
organizations that may be drafting or developing model programs with 
the incentive to get their optional submissions into and approved by 
FRA before employers wishing to use those model programs are rushed to 
file a required employer program.
    Another approach FRA is considering is to include an optional 
deadline for model programs and programs that could be referenced by 
multiple employers that would include a condition that FRA will issue 
its approval or disapproval of the program within 180 days, or other 
date certain, of the date of submission. This condition could also 
include a provision that if FRA fails to explicitly approve or 
disapprove the program within that time frame, the program will be 
deemed approved. FRA believes that an association or organization with 
multiple members will have an incentive to produce one or more model 
programs in order to provide a meaningful product to its members. 
Likewise, a training organization or learning institution that has 
developed a training program may garner more clients, and thus have an 
incentive to file early, if it knows that FRA will expedite its review 
of the program. Early filing would provide FRA with the benefit of a 
significant amount of time to dedicate to the review of model programs 
and programs that could be referenced by multiple employers. It could 
also give those entities producing such programs sufficient time to 
market those programs to potential clients or current members/users.
    FRA is also considering the approach it followed when requiring 
training and testing of employees that perform brake system 
inspections, tests, or maintenance under part 232. In that regulation, 
FRA provided employers with an extra year to complete refresher 
training as long as the initial training was completed by a specified 
date. FRA would similarly consider granting some form of leniency on 
refresher training, periodic oversight, or the annual review if an 
employer's program is submitted by an early submission deadline.
    Another option might be to extend the date for designating existing 
employees in accordance with Sec.  243.201(a) as long as the employer's 
program is submitted by an early submission deadline.
    FRA seeks comments on any or all of these proposals and is willing 
to consider other incentives or approaches that are intended to 
encourage early submission and improve the efficiency and effectiveness 
of the review process.

VII. Section-by-Section Analysis

Part 214--[Amended]

    On August 9, 2010, the U.S. Department of Labor, Occupational 
Safety and Health Administration (OSHA) published a final rule 
regarding ``Cranes and Derricks in Construction'' (Final Crane Rule). 
75 FR 47906. The Final Crane Rule sets forth requirements that are 
designed to improve safety for employees who work with or around cranes 
and derricks in the construction industry. In issuing this Final Crane 
Rule, one of OSHA's provisions established qualification and 
certification requirements for operators of ``power-operated equipment, 
when used in construction, that can hoist, lower and horizontally move 
a suspended load.'' See 29 CFR 1926.1400 and 1926.1427. The 
qualification and certification requirements for crane

[[Page 6417]]

operators are applicable to cranes used in the railroad industry, and 
would include operators of both on-track and off-track equipment.
    Historically, FRA and OSHA have coordinated with each other to 
ensure that each agency's rules are not in conflict, as there is some 
potential for overlap of each agency's jurisdiction. In 1978, FRA 
explained how both agencies have jurisdiction to promulgate rules 
concerned with assuring safe working conditions for railroad employees 
in a policy statement titled ``Railroad Occupational Safety and Health 
Standards'' (Policy Statement). 43 FR 10583. The Policy Statement 
recognized the ``potential [for] dual regulation'' and set out FRA's 
rationale for terminating a rulemaking addressing railroad occupational 
safety and health standards. Id. at 10584. In terminating that 
rulemaking, FRA recognized that ``it would not be in the best interests 
of the public and of railroad safety for [FRA] to become involved 
extensively in the promulgation and enforcement of a complex regulatory 
scheme covering in minute detail, as do the OSHA standards, working 
conditions which, although located within the railroad industry, are in 
fact similar to those of any industrial workplace.'' Id. at 10585. As 
part of this rule, FRA is proposing crane operator training and 
qualification requirements that are tailored to the unique aspects of 
crane operations in a railroad environment. FRA is not proposing 
similar requirements to those of the OSHA standards, as many of the 
concerns of working in a railroad environment are dissimilar to those 
of most industrial workplaces.
    Although the Policy Statement clarifies that FRA ``is vested with 
broad authority in all areas of railroad safety, including those of an 
occupational nature,'' the agency's policy is to limit itself to 
involvement in those areas where it could be most effective in 
providing a ``coherent overall railroad safety program.'' Id. at 10584. 
Because FRA's strengths are found in its developed expertise 
``assur[ing] safe employment and places of employment for railroad 
employees engaged in activities related to railroad operations,'' FRA 
has generally limited itself to regulating those issues that are of an 
occupational nature and that have a significant impact on railroad 
operations. Id. at 10585. The term ``railroad operations'' is not 
limited to revenue train operations or even on-track operations; 
instead, it also includes ``the conditions and procedures necessary to 
achieve the safe movement of equipment over the rails.'' Id. For 
example, roadway workers affect the safety of railroad operations when 
they are engaged in laying or repairing rail as they are required to 
observe certain procedures that impact the final condition of the track 
and to assure that geometric and other standards are met. Id. Likewise, 
roadway worker protection is also part of the safety of railroad 
operations as it is used to prevent an employee who is fouling a track 
from being struck by trains and any other on-track equipment, including 
cranes. Id.
    Although the railroad industry uses many different types of cranes, 
nearly all of the cranes utilized by railroads are used to support 
railroad operations and would fall within what FRA refers to as 
``roadway maintenance machines.'' FRA's ``Railroad Workplace Safety'' 
regulation, found at 49 CFR part 214, defines roadway maintenance 
machine as ``a device powered by any means of energy other than hand 
power which is being used on or near railroad track for maintenance, 
repair, construction or inspection of track, bridges, roadway, signal, 
communications, or electric traction systems. Roadway maintenance 
machines may have road or rail wheels or may be stationary.'' 49 CFR 
214.7. FRA already requires some training for crane operators that is 
related to roadway worker safety, although FRA does not currently 
require operator certification. See 49 CFR 214.341 and 214.355.
    The railroad industry's use of cranes is unique compared to general 
construction use, and therefore it may be very difficult or 
unnecessarily burdensome for the railroad industry to meet any of the 
four certification options provided for in OSHA's regulation. For 
example, OSHA's first option for crane operator certification would 
permit an operator to be certified by an accredited crane operator 
testing organization. 29 CFR 1926.1427(b). As many types of cranes used 
by railroads in roadway maintenance work are adapted specifically for 
railroad use, there may not be any accredited crane operator testing 
organization suitable for certification of operators on every type of 
machine. OSHA's second option is also premised on using written or 
practical tests developed or approved by either an accredited crane 
operator testing organization or an auditor who has been certified by 
an accredited crane operator testing organization, among other 
conditions. 29 CFR 1926.1427(c). Obviously, this second option poses 
some of the same obstacles as the first option for the railroad 
industry. OSHA's third option is only available to an operator who is 
an employee of the U.S. military and is thus not available to private 
companies. 29 CFR 1926.1427(d). Finally, OSHA's fourth option for crane 
operator certification is not especially useful to employees of 
railroads or contractors to railroads as it permits the licensing of 
such operators by a government entity. 29 CFR 1926.1427(e). A 
government entity, such as a State or local government, would only have 
the authority to license an operator for work within the entity's 
jurisdiction. As crane operators in the railroad industry that are 
engaged in roadway maintenance work may be dispatched to work on and 
off-track for hundreds of miles that cross through multiple states and 
jurisdictions, it would be logistically difficult to ensure that each 
crane operator is certified to operate in each jurisdiction along the 
railroad right-of-way. Consequently, OSHA's certification options are 
not viable options for the vast majority of the railroad industry's 
crane operators. The lack of logistically feasible options for many 
crane operators in the railroad industry to become certified under 
OSHA's Final Crane Rule could cause a shortage in the availability of 
such operators to conduct vital roadway maintenance work, which could 
have a significant detrimental effect on the safety of rail operations.
    As FRA is proposing the creation of a new part 243 in this notice 
to address training standards for all safety-related railroad 
employees, FRA is solidly situated to propose a viable training 
alternative to OSHA's certification options for certain crane operators 
in the railroad industry. In particular, FRA believes it is especially 
well-suited to address the training and qualification requirement for 
operators of roadway maintenance machines equipped with a crane. FRA is 
proposing various requirements in part 243 that would require each 
employer of a safety-related railroad employee, which would include 
employers of one or more operators of roadway maintenance machines that 
are equipped with a crane, to submit a training program that explains 
in detail how each type of employee will be trained and qualified. 
However, part 243 is only intended to cover training of Federal 
standards and those railroad rules and procedures promulgated to 
implement the Federal standards. Consequently, FRA is proposing the 
addition of Sec.  214.357 to those Federal standards which will include 
training and qualification requirements for operators of roadway 
maintenance machines equipped with a crane. The details of those 
proposed requirements are addressed below in the analysis for that 
particular section.

[[Page 6418]]

    Foremost in FRA's decision to propose replacing OSHA's crane 
operator qualification and certification regulation found at 29 CFR 
1926.1427 with respect to operators of roadway maintenance machines 
equipped with a crane is the premise that FRA's regulation must provide 
at least an equivalent level of safety of that provided by OSHA's 
existing requirements. FRA has various personnel that have significant 
experience operating an assortment of cranes for the railroad industry. 
In addition, OSHA has offered to permit FRA personnel to attend joint 
training sessions with OSHA personnel. FRA intends to utilize its 
experienced personnel to review employer training programs. The review 
would focus on ensuring that each employer's program covers the 
subjects necessary to qualify each crane operator. Furthermore, FRA has 
the personnel available to make regular inspections at places of 
railroad or contractor employment to ensure that training records for 
employees are being properly maintained, thereby ensuring that the 
crane operators addressed in FRA's regulations are appropriately 
trained and qualified.
    Prior to November 8, 2010, the date OSHA's Final Crane Rule became 
effective, there were no Federal certification requirements for crane 
operators. FRA has reviewed its reportable injury data for calendar 
years 2001 through 2010. In reviewing the data, it is possible that 
some incidents may not have involved railroad operations; however, it 
would be difficult to make that determination without doing a resource 
intensive investigation of each incident. Certainly, the data shows a 
significant number of injuries each year and many of those accidents 
would fall into the category of railroad operations that could be 
addressed by this proposed rulemaking. Between 2001 and 2009, the 
number of reportable injuries involving cranes consistently totaled 
between 43 and 60 per year. In 2010, there was a significant drop in 
reportable injuries down to a total of 27. During the last decade, 
there were 7 fatalities attributed to accidents involving cranes; 
however, FRA emphasizes that it is not possible for FRA to determine 
how many of those accidents would fall into the category of railroad 
operations that could be addressed by this proposed rulemaking. FRA 
believes that the number of reportable injuries and fatalities could be 
reduced even further by implementing the proposed changes to parts 214 
and 243. The proposed changes would institute more structure and 
accountability to those employers' programs that are merely based on 
unstructured on-the-job training. FRA also believes that while OSHA's 
rule will work well for the general construction industry, FRA's 
proposal will have a greater impact on the railroad industry because it 
can be implemented by railroads on a system-wide basis.
    FRA identified a fatality that occurred in 2003 that potentially 
could have been avoided with better training as required under OSHA's 
Final Crane Rule or as proposed for part 243. On January 14, 2003, a 
bridge mechanic had his hand crushed when he and other maintenance-of-
way (MOW) workers were attempting to dismantle a crane's rear counter 
weight and boom. The crane operator working with that bridge mechanic 
could not recall the proper procedure for removing the crane's counter 
weight. Although the bridge mechanic had successful hand surgery, he 
died after being taken from the operating room. FRA produced a summary 
of this incident, which is available on FRA's Web site in a document 
summarizing fatalities that occurred in 2003. http://www.fra.dot.gov/rrs/pages/fp_1662.shtml; (summarizing FE-01-03). In the report, FRA 
identified three possible contributing factors: (1) The MOW crew failed 
to use proper procedures for the safe dismantling of the crane's rear 
counter weight and boom; (2) crane manuals, which were available to the 
crew, lacked instructions on the proper removal of the crane's counter 
weight; and (3) the crew received inadequate training in the 
maintenance and safe operation of the crane. Adequate training and 
appropriate training manuals are both subjects of this proposed rule 
and would directly address the possible contributing factors of this 
incident.
    In reviewing the available alternatives, FRA has been mindful of 
the recent Executive Order (EO) 13563, ``Improving Regulation and 
Regulatory Review,'' which requires ``[g]reater coordination across 
agencies'' to produce simplification and harmonization of rules so as 
to reduce burdens, redundancy, and conflict, whenever possible, while 
promoting predictability, certainty, and innovation. To that end, EO 
13563 demands better coordination among agencies to reduce regulatory 
requirements that are redundant, inconsistent, or overlapping. In 
accordance with this EO, FRA is coordinating with OSHA to maintain an 
equivalent level of safety in replacing OSHA's training and 
certification requirements for operators of roadway maintenance 
machines equipped with a crane who work in the railroad environment. 
OSHA has been supportive of FRA's actions.
Section 214.7 Definitions
    The proposed rule would add a definition for roadway maintenance 
machines equipped with a crane in order to address a term used in 
proposed Sec.  214.357. The definition of this term would mean any 
roadway maintenance machine equipped with a crane or boom that can 
hoist, lower, and horizontally move a suspended load.
Section 214.341 Roadway Maintenance Machines
    FRA is proposing to amend paragraph (b)(2) to address two issues. 
First, FRA proposes to delete the requirement that the operator of a 
roadway maintenance machine have ``complete'' knowledge of the safety 
instructions applicable to that machine. Based on informal feedback 
received from the regulated community, FRA has been informed that 
requiring that the knowledge be ``complete'' suggests that a roadway 
worker operator have instant recall of every instruction contained in 
the manual. This reading of the rule is not FRA's intention. FRA 
intends each operator to have sufficient knowledge of the safety 
instructions so that the operator would be able to safely operate the 
machine without reference to the manual under routine conditions, and 
know where in the manual to look for guidance when operation of the 
machine is not routine.
    The second proposed change to paragraph (b)(2) is intended to 
address what is meant by ``knowledge of the safety instructions 
applicable to that machine.'' FRA's intent is that this term means the 
manufacturer's instruction manual for that machine. However, it has 
come to FRA's attention that some portion(s) of a manufacturer's 
instruction manual may not be applicable to a particular machine if the 
machine has been adapted for a specific railroad use. In that case, FRA 
proposes that the employer have a duty to ensure that such instructions 
be amended or supplemented so that they shall address all aspects of 
the safe operation of the crane and be as comprehensive as the 
manufacturer's safety instructions they replace. The purpose of this 
requirement is to ensure that the safety instructions provided address 
all known safety concerns related to the operation of the machine. If 
some type of functionality is added to the machine through adaption, 
the safety instructions would need to address the known safety concerns 
and proper operation of that additional function. On the other hand,

[[Page 6419]]

if the adaption removes an operational functionality, the safety 
instructions would no longer need to address the function that was 
removed, although it could be possible that the removal of a device 
could create other safety hazards that may need to be addressed in the 
safety instructions in order to be considered comprehensive. In order 
to ensure that the safety instructions for a machine are comprehensive, 
some employers may choose to provide a completely new safety 
instruction manual for adapted equipment; however, other employers may 
choose to simply void certain pages or chapters of the manufacturer's 
manual, and provide a supplemental manual to address the safety 
instructions related to the adapted functions of the equipment.
Sec.  214.357 Training and Qualification for Operators of Roadway 
Maintenance Machines Equipped With a Crane
    As mentioned in the introductory discussion of this proposed part, 
FRA is proposing the addition of this section in order to ensure that 
each railroad or contractor (or subcontractor) to a railroad ensures 
that operators of roadway maintenance machines equipped with a crane 
are adequately trained to ensure their vehicles are safely operated. 
The training requirements are intended to address both safe movement of 
the vehicles and safe operation of the cranes. If this section is 
adopted in a final rule, FRA regulations would then apply to operators 
of roadway maintenance machines equipped with a crane, rather than 
OSHA's regulation related to crane operator qualification and 
certification found at 29 CFR 1926.1427.
    Paragraph (a) clarifies that this section proposes new training 
requirements in addition to the existing requirements already contained 
in this subpart. Paragraph (a) also proposes a requirement that each 
employer adopt and comply with a training and qualification program for 
operators of roadway maintenance machines equipped with a crane to 
ensure the safe operation of such machines. If proposed part 243 is 
finalized, the requirement in proposed paragraph (a) to ``adopt'' and 
``comply'' with a training and qualification program may seem 
redundant; however, these requirements are intended to remind each 
employer that it will need to both ``adopt'' such a program and 
``comply'' with its own program. Failure to adopt or comply with a 
program required by this section will be considered a failure to comply 
with this section.
    Paragraph (b) proposes that each employer's training and 
qualification program address initial and periodic qualification for 
each operator of a roadway maintenance machine equipped with a crane. 
Both initial training and periodic refresher training must, at a 
minimum, include certain procedures for addressing critical safety 
areas. Paragraph (b)(1) proposes that each employer develop procedures 
for determining that the operator has the skills to safely operate each 
machine the person is authorized to operate. FRA would expect that 
those procedures would include demonstrated proficiency as observed by 
a qualified instructor or supervisor. Paragraph (b)(2) proposes that 
each employer develop procedures for determining that the operator has 
the knowledge to safely operate each machine the person is authorized 
to operate. As explained in the analysis to the proposed amendments to 
Sec.  214.341(b)(2), an operator must have knowledge of the safety 
instructions applicable to that machine, regardless of whether the 
machine has been adapted for a particular railroad use. Implicit in 
this proposal is the requirement that the employer must supply the 
safety instructions for the crane. If the crane has been adapted for a 
specific use, the employer must ensure that the safety instructions are 
also adapted. FRA would expect the employer to employ or contract out 
for a qualified person to adapt the safety instructions, but in any 
case the employer is responsible for ensuring that the instructions 
address all aspects of the safe operation of the crane. When equipment 
has been adapted, the employer has a duty to provide revised safety 
instructions that comprehensively address each adapted feature as well 
as any feature supplied by the manufacturer that was not removed during 
the adaptation.
    Paragraph (c) proposes that each employer maintain records that 
form the basis of the training and qualification determinations of each 
operator of roadway maintenance machines equipped with a crane that it 
employs. If proposed part 243 is finalized, this requirement would 
repeat the requirement in Sec.  243.203 to maintain records. However, 
it is useful to repeat the requirement as a reminder to employers. In 
repeating this requirement, FRA does not intend the proposed 
requirement to cause an employer to duplicate records kept in 
accordance with proposed part 243. Similarly, paragraph (d) proposes 
that each employer is required to make all records available for 
inspection and copying/photocopying to representatives of FRA, upon 
request during normal business hours, as is also proposed in part 243.
    In paragraph (e), FRA proposes that training conducted by an 
employer in accordance with operator qualification and certification 
required by the Department of Labor (29 CFR 1926.1427) may be used to 
satisfy the training and qualification requirements of this section. 
The purpose of this paragraph is to allow an employer to choose to 
train and certify an employee in accordance with OSHA's Final Crane 
Rule and opt out of the other proposed requirements of this section for 
that employee. As explained in the introductory analysis to part 214, 
if the crane equipment is modified for railroad operations there may 
not be an accredited crane operator testing organization that could 
certify the operator in accordance with OSHA's Final Crane Rule. 29 CFR 
1926.1427(b). However, there are some roadway maintenance machines 
equipped with a crane that are considered standard construction 
equipment and thus it would be possible to certify operators of that 
equipment through such an accredited organization. For this reason, FRA 
does not want to preclude the option for a person to be trained by the 
accredited organization and meet OSHA's requirements in lieu of FRA's 
requirements. Similarly, FRA envisions that some railroads or employers 
may employ some operators on roadway maintenance machines equipped with 
a crane who could be used exclusively within State or local 
jurisdictions in which the operators are licensed. Under those 
circumstances, the operator would be in compliance with OSHA's fourth 
option for certifying crane operators as it permits the licensing of 
such operators by a government entity. 29 CFR 1926.1427(e). FRA has no 
objection to the use of crane operators who meet OSHA's requirements 
and does not intend, by the addition of this section, to impose any 
additional regulatory requirements on such operators. Although the 
purpose of this section is to provide an alternative method of training 
and qualification that is tailored to the unique circumstances faced by 
most operators of roadway maintenance machines equipped with a crane 
working for the railroad industry, the purpose of paragraph (e) is to 
permit an employer to opt out of the alternative FRA requirements as 
long as the operator has met OSHA's training and certification 
requirements.

[[Page 6420]]

Part 232--[Amended]

Section 232.203 Training Requirements
    FRA modeled some aspects of proposed part 243 after the training 
requirements found in this section. Meanwhile, when reviewing this 
section, FRA discovered that several minor corrections to the section 
are necessary.
    It is proposed that existing paragraph (b)(6)(iv) be revised to 
provide some context to the paragraph and to reiterate FRA's intent. 
The proposed revision would add a phrase to the end of the current 
provision. The proposed phrase explains that any combination of the 
training or testing contained in paragraphs (b)(6)(i) through 
(b)(6)(iii) of this section and paragraphs (b)(3) through (b)(5) of 
this section ``may be used to satisfy the training and testing 
requirements for an employee in accordance with this paragraph.'' 
Without the addition of the proposed quoted language, the requirement 
appears incomplete.
    FRA proposes clarifying amendments to paragraphs (e)(6) through 
(e)(8). The proposed revisions relocate a misplaced ``and'' at the end 
of paragraph (e)(6) to the end of paragraph (e)(7), and correct two 
incorrect citations to paragraph (e)(7) when the correct citations 
should be to paragraph (e)(6).

Part 243--[Proposed]

Subpart A--General
Section 243.1 Purpose and Scope
    As previously explained in the supplementary information, FRA is 
required by RSIA to address minimum training standards for safety-
related railroad employees. Paragraph (a) is consistent with the 
specific statutory language and captures Congress' intent to ensure 
that any person doing work covered by the Federal railroad safety laws, 
regulations, and orders, regardless of whether the person is employed 
by a railroad or a contractor, is properly trained and qualified. This 
proposed regulation meets the statutory requirement as it intends to 
cover each employee that does work required by a Federal mandate, 
regardless of the employer.
    Paragraph (a) provides the scope of the training required by this 
proposed regulation. FRA is only requiring training for an employee to 
the extent that the employee is required to comply with a Federal 
mandate. Furthermore, the training that would be required by this 
proposed part would be limited to any training necessary to ensure that 
the employee is qualified to comply with all Federal railroad safety 
laws, regulations, and orders that would be applicable to the work the 
employee would be expected to perform. Thus, it is proposed that an 
employer that chooses to train employees on issues other than those 
covered by Federal railroad safety laws, regulations, and orders would 
not need to submit such training to FRA for review and approval in 
accordance with this part.
    Given the limited scope of this proposed rule, not every person 
that works on a railroad's property should expect that this proposed 
rule will require that an employer provide that person with training. 
Some employees of a railroad or a contractor of a railroad may do work 
that has a safety nexus but is not required by any Federal railroad 
safety laws, regulations, or orders. For example, a person may be hired 
to clean passenger rail cars by a railroad's maintenance division for 
other than safety purposes. However, as there are no Federal 
requirements related to the cleaning of passenger rail cars, this 
proposed rule would not require an employer to ensure that this person 
is trained to clean passenger rail cars. On the other hand, if the 
person is expected to perform any of the inspections, tests, or 
maintenance required by 49 CFR part 238, it is proposed that the person 
would be required to be trained in accordance with all applicable 
Federal requirements. See e.g., Sec. Sec.  238.107 and 238.109.
    If the employer's rules mirror the Federal requirements, or are 
even more restrictive than the Federal requirements, the employer may 
train to the employer's own rules and would not be required to provide 
separate training on the Federal requirements. During the RSAC process, 
some employers raised the concern that it would be confusing for 
employees if FRA required that training be made directly on the Federal 
requirements as that would pose potential conflicts whenever an 
employer's rule was stricter than the Federal requirement. FRA agrees 
with this concern, and this NPRM does not require that employers 
provide separate training on both the Federal requirements and on 
employer's rules. As long as the employer's rules satisfy the minimum 
Federal requirements, an employer's training on its own rules will 
suffice.
    Although FRA does not want to confuse employees, FRA encourages 
employers to emphasize when compliance with the employer's rules is 
based on a Federal requirement so that employees can learn which duties 
are being imposed by the Federal government. When an employee is put on 
notice that an employer's rule is based on a Federal requirement, the 
notice that the Federal government deems the issue important enough to 
regulate may provide further incentive for the employee to comply with 
the rule at every opportunity. Additionally, in response to concerns 
raised by RSAC members during the Working Group meetings, FRA wants to 
be clear that the requirements in this proposed part would not require 
an employee to be able to cite the volume, chapter, and section of each 
Federal railroad safety law, regulation, or order that is relevant to 
the employee's qualification. FRA will not take enforcement action 
against individual safety-related railroad employees who cannot 
correctly quote Federal rules that govern the employee's safety-related 
work.
    Often, a railroad or contractor will train employees on the 
employer's own safety-related rules, without referencing any particular 
Federal requirement. There may also be instances where the Federal 
requirement is generally stated with the expectation that the employer 
will create procedures or plans that will implement the conceptual 
requirement of the Federal requirement. Proposed paragraph (a) makes 
clear that this part covers both types of training; i.e., training that 
either directly or indirectly is used to qualify safety-related 
railroad employees on the Federal railroad safety laws, regulations, 
and orders the person is required to comply with to do his or her job. 
As an introductory matter, FRA also wishes to make clear that not all 
training is task-based. Some Federal requirements include prohibitions 
and the relevant training must impart that information so that 
employees know how they can comply. For example, employees need to know 
when they may use cell phones and when they are prohibited from using 
them.
    Proposed paragraph (b) explains that this part contains the general 
minimum training and qualification requirements for each type of 
safety-related railroad employee. As these are minimum requirements, it 
is presumed that an employer may implement additional or more stringent 
requirements for its employees. Consistent with the statutory mandate, 
FRA makes clear that the proposed regulation is intended to cover 
employees performing safety-related tasks regardless of whether they 
are employed by a railroad or a contractor. Covering employees of both 
railroads and contractors is consistent with other FRA regulations and 
the general trend in the railroad industry. In many instances, 
employees doing safety-related tasks for a railroad may be employed by 
a company other than the

[[Page 6421]]

railroad upon which the person is working. On a large scale track 
maintenance project, it may be possible for the railroad's employees to 
be working side-by-side with workers employed by multiple contractors; 
in such situations, it is vital that all the workers doing safety-
related work are properly trained and qualified.
    Proposed paragraph (b) also stresses that each contractor will have 
a duty to comply with the training requirements of this proposed 
regulation, including any aspect of training that may be specific to 
the contracting railroad's rules and procedures. For example, the 
contractor may arrange universally necessary training for an employee 
who is a roadway maintenance machine operator so that the person 
understands how to safely operate the equipment and the Federal 
requirements associated with its operation on any railroad. In 
addition, the contractor will need to arrange with each railroad it 
works for so that any railroad specific training is properly arranged, 
completed, and recorded. For example, both the railroad and contractor 
are responsible for knowing how the operator will be trained on the 
specific railroad rules that govern the operation of on-track roadway 
maintenance machines, to and from a work site. Depending on a variety 
of factors, including the ability of the contractor to replicate the 
railroad's training, the contractor and railroad will need to decide 
which company will handle this training. For example, a railroad could 
train one or more of the contractor's supervisors who could then train 
those contractor employees who need the training. In other instances, 
the contractor may be too small or inexperienced to conduct such 
training and the railroad will offer to have its instructors train and 
qualify the contractor's employees. Such training details would likely 
be part of a work order or contract between these private parties.
    Proposed paragraph (c) states that the requirements in this part do 
not exempt any other requirement in this chapter. The purpose of this 
statement is to acknowledge that there are other training and 
qualification requirements in this chapter and that FRA is not 
intending to nullify any of those other requirements by implementing 
this proposed part. FRA has previously promulgated well-established 
regulations by subject matter and it would be confusing to the 
regulated community if FRA were to move all of the training and 
qualification requirements located in this chapter into this proposed 
regulation. Consequently, FRA is adding this statement to the purpose 
and scope section to notify any relevant person who is required to 
comply with training and qualification requirements contained elsewhere 
in this chapter that the person will need to continue to comply with 
those existing requirements.
    Similar to paragraph (c), proposed paragraph (d) acknowledges that 
there are other training and qualification requirements in this chapter 
and that this part augments those other training and qualification 
requirements, unless otherwise noted. FRA has training and 
qualification requirements scattered throughout the existing 
regulations. Many of these regulations do not contain a requirement 
that an employer submit a plan or program to FRA for review. Others may 
lack a requirement for a structured on-the-job training (OJT) 
component. This proposed regulation would leave the existing 
requirements intact, but would require that the existing training 
requirements be incorporated in a program required under this proposed 
part--as well as comply with any additional requirements imposed by 
this part. Similarly, FRA may add other training and qualification 
requirements elsewhere in this chapter after this proposed rule is made 
final; in those instances, the requirements in this proposed part would 
also augment regulations promulgated at a later date.
Section 243.3 Application and Responsibility for Compliance
    The extent of FRA's jurisdiction, and the agency's exercise of that 
jurisdiction, is well-established. See 49 CFR part 209, app. A. The 
proposed application and responsibility for compliance section is 
consistent with FRA's published policy for how it will enforce the 
Federal railroad safety laws. The proposed rule is intended to apply to 
all railroads (except those types of railroads that are specifically 
listed as exceptions), contractors of railroads, and training 
organizations or learning institutions that train safety-related 
railroad employees.
    In paragraph (a)(1), FRA has exempted plant railroads as defined in 
this proposed regulation. In other regulations, FRA did not define 
plant railroad because it was assumed that FRA's jurisdictional policy 
statement provided sufficient clarification. In 2010, FRA became aware 
of certain operations that called themselves plant railroads but that 
were exceeding the limitations required to maintain plant railroad 
status in accordance with FRA's policy statement. FRA would like to 
avoid any confusion as to what it means to be a plant railroad by 
defining it in the proposed rule, thereby saving interested persons the 
effort necessary to cross-reference FRA's jurisdictional policy 
statement. A further discussion of what is meant by the term ``plant 
railroad'' is offered in the section-by-section analysis for section 
243.5.
    In paragraph (a)(2), FRA proposes to exclude ``tourist, scenic, 
historic, and excursion operations that are not part of the general 
railroad system of transportation'' (as defined in Sec.  243.5) from 
compliance with this rule. In section 243.5, FRA defined these 
operations as ``a tourist, scenic, historic, or excursion operation 
conducted only on track used exclusively for that purpose (i.e., there 
is no freight, intercity passenger, or commuter passenger railroad 
operation on the track).'' Excluding these types of operations from 
this proposed rule is consistent with FRA's jurisdictional policy that 
already excludes these operations from all but a limited number of 
Federal safety laws, regulations, and orders.
    In paragraph (a)(2), FRA is excluding tourist, scenic, historic, or 
excursion operations that are not part of the general system. These 
would include such operations regardless of whether they are 
``insular'' or ``non-insular.'' FRA decided to exclude each of these 
generally small operations from the burden of producing training 
programs for relatively few employees on the limited number of Federal 
requirements that are applicable to these operations.
    Proposed paragraph (a)(3) captures FRA's long held view that its 
jurisdiction does not extend to self-contained urban rapid transit 
systems that are not connected to the general railroad system of 
transportation. See 49 CFR part 209, app. A.
    Proposed paragraph (b) contains a statement clarifying that each 
person who performs the duties of this part is responsible for 
compliance, even if that duty is expressed in terms of the duty of a 
railroad.
Section 243.5 Definitions
    This section defines a number of terms that have specific meaning 
in this proposed part. A few of these terms have definitions that are 
similar to, but may not exactly mirror, definitions used elsewhere in 
this chapter. Definitions may differ from other parts of this chapter 
because a particular word or phrase used in the definition in another 
chapter does not have context within this proposed part.
    The definitions of Administrator and Associate Administrator are 
standard definitions used in other parts of this

[[Page 6422]]

chapter. In this part, the term Associate Administrator means the 
Associate Administrator for Railroad Safety/Chief Safety Officer. When 
the RSAC Committee voted for certain recommendations, the 
recommendations did not address the role of the Associate Administrator 
for Railroad Safety/Chief Safety Officer. FRA decided to add this 
definition and change some of the proposed program review processes so 
that it is clear that these functions will be delegated to the 
Associate Administrator. The agency's expertise in reviewing training 
programs lies within its Office of Railroad Safety, and the decision-
making on these issues will routinely be decided by the Associate 
Administrator. If a person were to have a material dispute with a 
decision of the Associate Administrator, it would be expected that the 
person could bring that dispute to the Administrator's attention and 
request final agency action. FRA is considering whether the final 
regulation should refer to FRA or the Administrator, instead of the 
Associate Administrator. Although the issue of the Associate 
Administrator's role is an internal procedure or practice, FRA invites 
comments regarding this issue.
    FRA is proposing to define the term calendar year. FRA does not 
believe the term is confusing but has defined it as ``the period of 
time beginning on January 1 and ending on December 31 of each year.'' 
FRA is defining the term to distinguish it from terms used in other 
regulations that have been considered vague. For example, if FRA 
required that a person complete a particular type of training 
``annually,'' some people might interpret that to mean ``once each 
calendar year'' and others might interpret it to mean ``within one year 
of the last training.'' By using the more descriptive term and defining 
it, FRA intends to avoid ambiguity.
    FRA is proposing a definition of contractor in order to clarify the 
standard definition. A contractor is typically considered one who 
contracts to do work or provide supplies for another. In FRA's 
definition, the agency is specifically only concerned with ``a person 
under contract with a railroad.'' Furthermore, the definition states 
that it includes, but is not limited to, a prime contractor or a 
subcontractor. A prime contractor, sometimes referred to as a general 
contractor, is a person who contracts for the completion of an entire 
project, including purchasing all materials, hiring and paying 
subcontractors, and coordinating all work. A subcontractor is a person 
who is awarded a portion of an existing contract, typically by a prime 
contractor but potentially also by a subcontractor. Thus, regardless of 
how many times a contract is subcontracted, the term ``contractor,'' as 
used in this part, is intended to include the prime contractor and all 
subcontractors responsible for performance of the contract.
    FRA is defining designated instructor for essentially two purposes. 
First, when this term is used in the proposed rule, FRA expects that a 
person doing the work of an instructor would specifically be 
designated. That means the employer, training organization, or learning 
institution that employs the person must have a record reflecting that 
the person has been designated as an instructor for certain courses, 
subject matters, or tasks involving particular occupational categories 
or subcategories of employees. Second, FRA expects only qualified 
instructors will be designated, which explains why FRA is including in 
the definition that each designated person must have ``demonstrated, 
pursuant to the training program submitted by the employer, training 
organization, or learning institution, an adequate knowledge of the 
subject matter under instruction and, where applicable, has the 
necessary experience to effectively provide formal training.'' By 
proposing to require that employers designate instructors, FRA intends 
to ensure that only qualified individuals instruct safety-related 
railroad employees.
    FRA is defining the term employer to mean ``a railroad or a 
contractor that employs at least one safety-related railroad 
employee.'' In this proposed rule, each employer is responsible for 
filing a training program and deciding how it will train its own 
employees. FRA is expecting all safety-related railroad employees to be 
trained, regardless of whether employed by a railroad or a contractor 
of such a railroad. The term ``contractor'' is defined in this proposed 
rule and includes subcontractors.
    The proposed rule defines the term formal training mainly to 
distinguish it from informal, less structured training that may be 
offered by employers. Generally, a briefing during a ``safety blitz,'' 
in which an employer quickly tries to raise awareness of a safety issue 
following an accident or close call incident, would not be considered 
formal training. Formal training would typically be more structured 
than a safety blitz briefing and be planned on a periodic basis so that 
all eligible employees would continuously get opportunities to take the 
training. Formal training should contain a defined curriculum, as it is 
not the type of training that can be hastily prepared and improvised.
    Formal training may be delivered in several different ways. Many 
people first think of classroom training as synonymous with formal 
training, and certainly that is one acceptable way of delivering formal 
training. However, the proposed definition explains that ``[i]n the 
context of this part, formal training may include, but is not limited 
to, classroom, computer-based, on-the-job, simulator, or laboratory 
training.'' During the RSAC process, some labor organizations explained 
that their members expressed a preference for classroom training over 
computer-based training. One valid concern expressed was that computer-
based training is often performed without a qualified instructor 
present to answer questions. It can be frustrating to a training 
participant if the person finds a subject confusing and cannot get 
immediate clarification. Meanwhile, the RSAC members recognized an 
equally valid concern that there could be circumstances when a 
qualified instructor cannot immediately answer a substantive question 
during classroom training--so mandating classroom training is not 
necessarily the remedy for addressing this problem. RSAC recommended, 
and FRA has agreed to propose, that formal training include an 
opportunity for training participants ``to have questions timely 
answered during the training or at a later date.'' An employer, or 
other entity providing training, will need to establish procedures for 
providing participants the opportunity to have questions timely 
answered. For example, some course offerors may provide training 
participants with an email address to send questions and promise to 
respond within 5 business days. Certainly, there are a wide-variety of 
reasonable procedures that could be established by course offerors that 
could include registering a question by telephone, written form made 
available at the time of the training, or even instant-messaging (IM) 
during the training itself. However, in all such instances, procedures 
must be clear and provide the training participant an opportunity to 
have questions answered in a timely fashion.
    In the proposed definition of formal training, FRA did not adopt 
the RSAC's recommendation entirely as the NPRM proposes using the term 
``training participants'' rather than ``employees.'' However, FRA 
believes the change more closely matches the intent behind the RSAC's 
recommendation. The basis for making the change is that a learning

[[Page 6423]]

institution may offer a course to someone who is not currently employed 
by a railroad or contractor. By making this change from the RSAC's 
recommendation, the proposed rule ensures that anybody taking a course 
covered by this NPRM would have the opportunity to have questions 
timely answered during the training or at a later date. The term 
``training participants'' covers employees, trainees, learners and 
students.
    The proposed rule defines the term knowledge-based training as a 
type of formal training. Knowledge-based training is clearly 
distinguishable from ``task-based training'' because, by definition, it 
is not task-based. For purposes of this part, the knowledge component 
is limited to any knowledge ``intended to convey information required 
for a safety-related railroad employee to comply with Federal railroad 
safety laws, regulations, and orders, as well as any relevant railroad 
rules and procedures promulgated to implement those Federal railroad 
safety laws, regulations, and orders.'' Thus, knowledge-based training 
would include any formal training imparted to employees on complying 
with Federal hours of service laws. Another example would be training 
on Federal alcohol and drug prohibitions, or those railroad rules and 
procedures used to implement the Federal alcohol and drug prohibitions.
    FRA has defined the phrase on-the-job training (OJT) to mean ``job 
training that occurs in the workplace, i.e., the employee learns the 
job while doing the job.'' This is the common meaning of this phrase. 
For purposes of this proposed rule, OJT is specifically identified as a 
type of ``formal training.'' That means that, like other types of 
formal training, OJT must have a structured and defined curriculum that 
provides an opportunity for training participants to have questions 
timely answered during the training or at a later date. OJT is an 
essential component of most training curriculums and should add 
significant value for each employee participant. In FRA's experience, 
OJT is often the weakest aspect of current training programs because 
the OJT portion often is unstructured, without a defined curriculum, 
and its value is therefore difficult to assess. Because of these 
weaknesses, OJT requirements are proposed in Sec.  243.101(d), and OJT 
training components must be identified in each program under Sec.  
243.103(a)(3) and (b). Under Sec.  243.103(d), FRA considers OJT an 
essential program component of most task-based training and may require 
modifications to any programs that do not contain or have an inadequate 
OJT component. FRA also proposes a requirement in Sec.  243.201(f) that 
employees designated to provide OJT instruction to other employees must 
be qualified. Additionally, under Sec.  243.203(b)(7), it is proposed 
that adequate records of OJT be maintained.
    In this proposed part, person takes on the same meaning as it does 
in FRA's other safety rules. The definition makes clear that it is 
expansive and does not apply merely to individual persons. Instead, the 
term ``means an entity of any type covered under 1 U.S.C. 1'' and the 
definition goes into detail regarding the types of people and entities 
that are covered.
    FRA proposes a definition of plant railroad to aid in the 
understanding of the application of this part pursuant to Sec.  
243.3(a)(1). The definition coincides with FRA's longstanding 
explanation of how the agency will not exercise its jurisdiction over a 
plant railroad that does not operate on the general system and does not 
move cars for other entities. See 49 CFR 209, app. A.
    A proposed definition of qualified reflects RSAC's recommendation 
and FRA's expectations of what is expected of a qualified person under 
this part. The definition reflects that a person cannot be deemed 
qualified unless the ``person has successfully completed all 
instruction, training, and examination programs required by both the 
employer and this part.'' Obviously, if a person fails to complete any 
of those aspects of the requirements in the employer's program, the 
person could not be reasonably expected ``to proficiently perform his 
or her duties in compliance with all Federal railroad safety laws, 
regulations, and orders.''
    For purposes of this proposed part, FRA has defined safety-related 
duty to mean ``either a safety-related task or a knowledge-based 
prohibition that a person meeting the definition of a safety-related 
railroad employee is required to comply with, when such duty is covered 
by any Federal railroad safety law, regulation, or order.'' The 
proposed term is used when referring to legally mandated 
responsibilities. It refers to both task-based duties and prohibitions 
unrelated to specific tasks.
    The proposed definition of safety-related railroad employee is 
mainly derived from the statutory definition of the same term found in 
49 U.S.C. 20102, which was cross-referenced in the statute requiring 
this rulemaking. See 49 U.S.C. 20162(a)(1). The proposed definition 
makes clear in the introductory phrase that it applies to employees of 
both railroads and contractors by stating that the term ``means an 
individual who is engaged or compensated by an employer.'' However, for 
a person to be a safety-related railroad employee the person must be 
more than merely employed by a railroad or contractor; that is, the 
person must also meet at least one of the eight listed items. Item (1) 
includes an employee who performs work covered under the hours of 
service laws, which is also the first item in the statutory definition. 
Item (2) includes an employee who performs work as an operating 
railroad employee who is not subject to the hours of service laws, 
which is also the second item in the statutory definition. Item (2) 
most often refers to railroad officers who are not typically called to 
duty to perform work under the hours of service but during a tour of 
duty end up doing work covered by the hours of service laws.
    Item (3) is also derived from the statutory definition of safety-
related railroad employee, but has been refined to more closely 
describe the types of employees that the industry recognizes as 
responsible for ``maintain[ing] the right of way of a railroad.'' 49 
U.S.C. 20102(4)(C). The description in item (3) is intended to cover 
any person that would be included in the definitions of ``roadway 
worker'' and ``railroad bridge worker'' found in 49 CFR 214.7. Included 
within the definitions would be a person who is engaged or compensated 
by an employer to inspect, install, repair, or maintain track, roadbed, 
and signal and communication systems of a railroad. By referencing 
``[i]n application of parts 213 and 214 of this chapter,'' RSAC 
recommended, and FRA agreed, to clarify that the proposed rule is 
intended to cover those workers, whether employed by a railroad or 
contractor, who have responsibilities for compliance with Federal 
regulations applicable to railroad workplace safety and track safety 
standards. If a person does not have responsibilities for compliance 
with 49 CFR parts 213 and 214, the person would not be covered by item 
(3) within the definition of safety-related railroad employee.
    Item (4) includes an individual who is engaged or compensated by an 
employer to inspect, repair, or maintain locomotives, passenger cars or 
freight cars. The inclusion of this proposed item is intended to mirror 
the statutory item in the definition of safety-related railroad 
employee. It is essential that individuals doing such safety-sensitive 
work are trained to comply with those laws or rules mandated by the 
Federal government for keeping those locomotives and cars in safe 
order.
    Item (5) includes an individual who is engaged or compensated by an 
employer

[[Page 6424]]

to inspect, repair, or maintain other railroad on-track equipment when 
such equipment is in a service that constitutes a train movement under 
part 232 of this chapter. RSAC recommended that FRA include such on-
track equipment because such equipment poses the same sorts of danger 
that locomotives and cars do. FRA agrees with the RSAC consensus that, 
although the statutory definition does not include employees who do 
such safety-sensitive work to the on-track equipment, the proposed 
training rule would be deficient without including such employees in 
training plans. The RSAC members do not believe that Congress 
intentionally left these workers out of the statutory definition so 
that they would be excluded from training even though they need to 
comply with certain Federal requirements.
    In the statutory definition of safety-related railroad employee, 
paragraph (F) is a ``catch-all'' phrase that allows the Secretary of 
Transportation to include ``any other employee of a railroad carrier 
who directly affects railroad safety.'' FRA has identified three items 
within the proposed regulatory definition that flow from this catch-all 
provision. Item (6) of the proposed definition includes an individual 
who is engaged or compensated by an employer to determine that an on-
track roadway maintenance machine or hi-rail vehicle may be used in 
accordance with part 214, subpart D of this chapter, without repair of 
a non-complying condition. The issue identified in item (6) is that 
sometimes a supervisor or other person who is not a roadway worker [and 
therefore, not otherwise included in the definition of ``safety-related 
railroad employee''] makes the decision that an on-track roadway 
maintenance machine or hi-rail vehicle is safe to use and may continue 
to be operated in accordance with the requirements for scheduling 
repairs of such vehicles. See 49 CFR Sec. Sec.  214.531 and 214.533. 
The person may learn about the condition of the equipment from a 
roadway worker making a good faith challenge that the equipment is 
unsafe to operate or otherwise does not comply with the safety 
requirements for that equipment. See 49 CFR 214.503. A person cannot 
make such a decision without having been trained and therefore having 
the knowledge necessary to know the roadway worker's rights, whether 
the equipment is in compliance or safe to use, and how quickly the 
equipment must be repaired.
    Item (7) also flows from the statutory catch-all provision. It 
covers railroad and contractor employees who directly instruct, mentor, 
inspect, or test, as a primary duty, any person while that other person 
is engaged in a safety-related task. The bottom line here is that even 
though an instructor, mentor, supervisor, or other manager may not be 
directly performing a safety-related task, that person performing an 
oversight role must be qualified to perform that oversight role. By 
including those who perform oversight in the definition of safety-
related railroad employee, the proposed rule is requiring that 
railroads and contractors include these types of individuals within the 
scope of the training programs required under this part.
    Regarding item (7), RSAC recommended that the definition make clear 
that it was only including those who ``directly instruct, mentor, 
inspect, or test, as a primary duty.'' For example, many supervisors 
are expected to perform operational monitoring or efficiency testing as 
part of their regular duties; those supervisors would clearly be 
covered by item (7). Conversely, other supervisors or managers may have 
the authority to instruct employees if unsafe or non-complying actions 
are observed, but instructing employees is not part of that person's 
``primary duty.'' For instance, suppose a System Road Foreman of 
Engines is visiting one of many of the railroad's yards and observes 
one or more employees failing to establish proper point protection in 
accordance with 49 CFR 218.99 and the corresponding railroad operating 
rules, and so instructs the employee(s) on the appropriate action. 
Although the System Road Foreman of Engines would normally be expected 
to know those rules and be able to instruct employees on them, 
instructing employees in this manner would not typically be considered 
one of the person's primary duties. Thus, although FRA would hope that 
each System Road Foreman of Engines would continuously keep current on 
all the applicable requirements, this proposed rule does not intend to 
cover those supervisors or managers who happen to instruct, mentor, 
inspect, or test on rare occasions, such as when they happen upon a 
situation that needs to be addressed, but the person's involvement is 
not a primary duty of the job.
    Item (8) also flows from the statutory catch-all provision. It 
covers railroad and contractor employees who directly supervise the 
performance of safety-related duties in connection with periodic 
oversight in accordance with proposed 243.205. It will likely be rare 
that a person is not covered by item (7) of the definition but is 
covered by item (8). However, FRA wants to ensure that if a person is 
performing an oversight function under this proposed part, that person 
is considered a safety-related railroad employee who must be included 
in the employer's training program required under this part.
    Furthermore, although the statutory definition of safety-related 
railroad employee covers a hazmat employee of a railroad carrier as 
defined in 49 U.S.C. 5102(3), RSAC recommended that the proposed rule 
not address the training of hazmat employees. FRA concurs. The training 
of hazmat employees is already extensively covered by DOT regulations 
promulgated by the Pipeline and Hazardous Materials Safety 
Administration (PHMSA). See e.g., 49 CFR part 172, subpart H. FRA is 
satisfied that the training requirements are sufficiently addressed by 
PHMSA and does not believe that Congress intended for FRA to 
overcomplicate the existing rules governing hazmat training.
    The rule proposes a definition for safety-related task because a 
significant portion of the training given to most safety-related 
railroad employees involves learning to perform tasks that are required 
by a Federal railroad safety law, regulation, or order. By defining 
this term, the proposed regulation does not have to explain each time 
that a safety-related task has a specific connotation tied to other 
Federal requirements. Meanwhile, if there is no Federal requirement 
that applies to a specific task, the task would not be considered a 
``safety-related task'' pursuant to this proposed rule even if the task 
arguably has a safety nexus.
    As previously described, task-based training is distinguishable 
from knowledge-based training. Task-based training means a type of 
formal training with a primary focus on teaching the skills necessary 
to perform specific tasks that require some degree of neuromuscular 
coordination. While OJT is nearly always task-based training, other 
types of formal training may also be task-based. For example, mechanics 
can work on several different types of locomotive engines in classroom 
or laboratory training. Similarly, signal and grade crossing workers 
can also learn their craft in the classroom with training that allows 
the training participants to work on models of signal systems, as well 
as actual signal and grade crossing warning systems and components. 
Other task-based training may occur for employees at training 
facilities that have mock yards in which to practice the tasks. 
Apprentice welders may be required to perform practice welds in a 
facility that allows a trainer to monitor the work of multiple training 
participants. Again, FRA has chosen to

[[Page 6425]]

define task-based training in order to distinguish it in the proposed 
rule from that training which teaches concepts unrelated to learning a 
specific task.
    The proposed rule offers a definition for the phrase tourist, 
scenic, historic, or excursion operations that are not part of the 
general railroad system of transportation in order to explain the plain 
meaning of that phrase in the proposed applicability section. See Sec.  
243.5. The phrase means a tourist, scenic, historic, or excursion 
operation conducted only on track used exclusively for that purpose 
(i.e., there is no freight, intercity passenger, or commuter passenger 
railroad operation on the track). If there was any freight, intercity 
passenger, or commuter passenger railroad operation on the track, the 
track would be considered part of the general system. See 49 CFR part 
209, app. A. In the analysis for the applicability section, there is an 
explanation for why FRA is proposing not to exercise its jurisdiction 
over these types of railroad operations.
Section 243.7 Waivers
    This section provides the proposed requirements for a person 
seeking a waiver of any requirement of this rule. After review, 
however, FRA believes this section may be unnecessary because 49 CFR 
part 211 sufficiently addresses the waiver process. FRA welcomes 
comments as to whether this proposed section should be removed.
Section 243.9 Penalties and Consequences for Non-compliance
    This section provides minimum and maximum civil penalty amounts 
determined in accordance with the Federal Civil Penalties Inflation 
Adjustment Act of 1990, Public Law 101-410 Stat. 890, 28 U.S.C. 2461 
note, as amended by the Debt Collection Improvement Act of 1996 Public 
Law 104-134, April 26, 1996, and the RSIA.
Section 243.11 Information Collection Requirements
    This section lists the sections of the proposed rule which contain 
information collection requirements.
Section 243.101 Employer Program Required
    Proposed paragraph (a) contains the general requirement for each 
``employer,'' as that term is defined in this part, which is conducting 
operations subject to this part as of one year and 120 days after the 
effective date of the final rule to submit, adopt, and comply with a 
training program for its safety-related railroad employees. An 
employer's program must be submitted and approved by FRA in accordance 
with the process set forth in proposed Sec. Sec.  243.107, 243.109, and 
243.113. However, an employer's duty is not complete upon submission of 
a program to FRA. The employer will also be required to adopt and 
comply with its program. By using the term ``adopt,'' FRA is expecting 
each employer to implement its training program. Furthermore, FRA 
approval of a program comes with the expectation that an employer will 
comply with its program. Potentially, FRA could take enforcement action 
if an employer failed to comply with its approved training program. As 
with any potential enforcement action, FRA will use its discretion 
regarding whether to issue a warning, a civil monetary penalty, or 
other enforcement action. See 49 CFR part 209, app. A.
    Paragraph (b) contains the proposed general requirement that an 
employer commencing operations subject to this part more than one year 
and 120 days after the effective date of the final rule shall submit 
its training program and request for approval at least 90 days prior to 
commencing operations. FRA anticipates using the proposed 90-day period 
to evaluate the completeness of the program and approve it prior to the 
employer commencing any operation that requires a safety-related 
railroad employee. After FRA approves the training program in 
accordance with the proposed submission, review, and approval process, 
the employer is required to adopt and comply with the training program 
for the same reasons as explained in the analysis for paragraph (a).
    Paragraph (c) proposes a list of over-arching organizational 
requirements for each employer's training program. For example, 
paragraph (c)(1) proposes a requirement that the employer classify its 
safety-related railroad employees in occupational categories or 
subcategories by craft, class, task, or other suitable terminology. 
This requirement is derived from the statutory requirement in 49 U.S.C. 
20162(a)(1) which states in part that ``[t]he Secretary of 
Transportation shall * * * establish minimum training standards for 
each class and craft of safety-related railroad employee.'' Although 
FRA agrees with Congress that most railroads could identify safety-
related railroad employees by craft or class, there could be problems 
if FRA were to define those categories because the same class or craft 
identifier could have different meanings based on different collective 
bargaining agreements or usage by the employer. For example, in the 
RSAC working group meetings, FRA learned that some railroads may have 
only one type of ``carmen'' and others may have 10 different types of 
carmen. By requiring that each railroad define its employees in 
occupational categories or subcategories, FRA is giving each railroad 
the maximum flexibility it needs to shape the structure of its training 
program by what it wants each type of employee to do. In that way, 
employers will not be required to train some employees on subjects or 
tasks that exceed what the employee will actually be required to do. 
Similarly, some railroads may wish to categorize employees by 
occupational categories that do not easily fall into an established 
craft or class. Thus, FRA proposes to also allow for an employer to 
classify its safety-related railroad employees in occupational 
categories or subcategories by task or any other terminology the 
employer deems suitable.
    During the RSAC process, the working group considered including a 
list of potential occupational categories or subcategories. After 
adding and amending that list, the RSAC decided that having the list in 
the regulatory text might be confusing. The list was never intended to 
include every conceivable category of employee, but instead was aimed 
at providing employers with a list of suggested categories that could 
be used or modified as necessary to describe each type of employee. 
Thus, in order to provide some ideas of the types of categories FRA is 
referring to in this paragraph, the following is a list of possible 
categories of employees that an employer may choose to use: brakeman; 
bridge tender; carman; conductor; communication worker; electrician; 
fireman; hostler; hump operator; laborer; locomotive servicing 
engineer; machinist; pipe fitter; roadmaster; roadway worker; sheet 
metal worker; signalman; switch tender; ticket taker; tower operator; 
track inspector; track worker; track welder; train dispatcher; train, 
yard, and engine (TY&E) employees; train service locomotive engineer; 
utility worker; yardmaster; any person who performs certain railroad 
inspection, maintenance, and construction activities while fouling a 
track; and any person who directly performs safety-related task 
supervision, instruction, or OJT coaching of railroad or contractor 
employees (i.e., including railroad officers and employee colleagues, 
potentially categorized by department or by the person's authority to 
supervise, instruct, or OJT coach specific occupational categories or 
subcategories of safety-related railroad employees).
    Proposed paragraph (c)(2) relates to paragraph (c)(1), as once the 
categories

[[Page 6426]]

of employees are identified, the categories will also need to be 
defined. In this case, the definition of each category is based on the 
Federal requirements that the category of employee will need to comply 
with. The proposed paragraph explains the amount of detail necessary to 
adequately describe each Federal requirement.
    Paragraph (c)(3) proposes that each employer create a table 
summarizing the information required by paragraphs (c)(1) and (c)(2) of 
this section, segregated by major railroad department (e.g., 
Operations, Maintenance of Way, Maintenance of Equipment, Signal and 
Communications). Although each employer should find such a summary 
document useful, such a compilation document will aid FRA in its review 
of the program and likely lead to speedier approvals. While FRA 
strongly suggests that tables be used, some RSAC members suggested that 
some employers might want to use other formats and the regulation 
should not be so particular about the format being used. FRA agrees 
with this feedback and proposes to accept other suitable formats.
    Paragraph (c)(4) proposes a requirement for each employer to 
submit, as part of its training program, a description of procedures 
used to design and develop key learning points for any task-based or 
knowledge-based training. The purpose of submitting this description is 
to allow FRA to understand how the employer identifies key learning 
points for any type of training. FRA personnel that will be reviewing 
these programs have received specialty training in how to be a trainer 
and how people learn. FRA is concerned that without this proposed 
requirement, FRA will not have enough insight into whether an employer 
is going through all the necessary thought processes to develop 
comprehensive learning points for any particular task or knowledge-
based training.
    Proposed paragraph (c)(5) addresses two different concerns. First, 
FRA is not proposing to dictate how training shall be structured, 
developed, and delivered; instead, the proposed rule requires that each 
employer make that determination. This proposed requirement correlates 
to Sec.  243.103(a)(2)(iv), which requires that each course outline 
include the method of course delivery. FRA expects that an employer 
will use an appropriate combination of classroom, simulator, computer-
based, correspondence, OJT, or other formal training. As explained in 
the analysis for the definition of ``formal training,'' classroom 
training is not the only effective method of course delivery. However, 
during the approval process, FRA may be particularly critical of task-
based training that fails to contain an OJT, laboratory, or other 
hands-on type component. Second, FRA proposes that the curriculum be 
designed to impart knowledge of, and ability to comply with, applicable 
Federal railroad safety laws, regulations, and orders, as well as any 
relevant railroad rules and procedures promulgated to implement those 
applicable Federal railroad safety laws, regulations, and orders. 
During the RSAC process, many employers argued that it would be 
confusing for employees to be trained to both Federal standards and the 
railroad's rules. The proposed rule is written so that employers may 
design training on the railroad's rules that implement the Federal 
standards without teaching to the Federal standards directly. However, 
there should be no doubt that the training should cover all the Federal 
standards applicable, or the equivalent or more stringent railroad 
rules and procedures that were promulgated to implement those Federal 
standards. This proposed rule does not require training beyond what is 
required by the relevant Federal standards.
    Paragraph (d) contains proposed OJT training requirements that are 
essential to ensuring that OJT successfully concludes in learning 
transfer. As FRA alluded to in the analysis for the definition of OJT, 
too much OJT is currently unstructured and does not lead to learning 
transfer. OJT should not vary so much that one person can have a good 
mentor who is able to give the employee all the hands-on instruction 
the employee will need while another mentor makes the person simply 
watch the mentor do the job without any feedback, instruction, or 
quality hands-on experience.
    Paragraph (d)(1) contains the three key proposed components of any 
OJT training that must be included in an employer's program. One, those 
individuals designing the training must give some thought as to the 
tasks and related steps the employee learning the job must be able to 
perform by the time the OJT is concluded and capture those thoughts in 
a brief statement. Two, the training program designers must provide a 
statement, or list, of the conditions necessary to ensure that learning 
can be successfully accomplished. For example, a person may need to be 
taught the theory behind the practice prior to attempting any tasks. 
Additionally, OJT needs to be planned so that the training participant 
is provided with all the equipment needed to successfully complete the 
task. One of the conditions in such a statement could be that the 
mentor/instructor must demonstrate the proper way to do the task, 
including all related steps, prior to requiring that the participant 
attempt to complete the task. Three, each OJT training portion of an 
employer's program must contain a statement of the standards by which 
proficiency will be measured through a combination of task/step 
accuracy, completeness, and repetition. This proposed provision would 
require an employer to determine, for example, how many times the 
mentor/instructor must observe the training participant successfully 
complete the task before learning transfer is considered complete. 
There may be issues of a participant successfully completing some, but 
not all of, the steps necessary on each attempt. There may also be 
issues of whether the participant was aided by the mentor/instructor 
and whether the help received indicates that the participant did not 
fully learn how to complete the task. It is proposed that each OJT 
portion of a training program address these issues so that proficiency 
can be objectively measured.
    Paragraph (d)(2) proposes a requirement that employers make any 
relevant information or reference materials available to the employees 
involved in OJT prior to beginning the initial safety-related tasks 
associated with OJT exercises. Such reference materials would include, 
but are not limited to, any relevant operating rules and safety rules. 
An employer's rules are subject to changes and updates, and each 
employee participating in OJT needs to be provided with the employer's 
currently applicable rules before attempting a task in OJT. Of course, 
it is unrealistic for employers to expect an employee to comply with 
one of the employer's rules if the employer has not provided the 
employee with a copy of the rule. FRA is not suggesting that all 
relevant rule books must be brought to the worksite where OJT will take 
place. However, it is proposed that an employee who is learning a new 
task must have the rule books made available for referencing with the 
expectation that the employee will be trained on the applicable rules 
and how to use the reference materials prior to beginning the OJT 
exercise.
    Paragraph (d)(3) proposes another key component of any OJT portion 
of a training program. FRA proposes that an employer must compile all 
of the tasks and related steps associated with OJT exercises for a 
particular category or subcategory of employee in one manual, 
checklist, or other similar document. Such a manual or checklist is 
useful for employees and instructors in reviewing

[[Page 6427]]

what an employee is expected to learn. Although not proposed, FRA or an 
employer may want to require that each employee prove a certain level 
of familiarity with these documents as a prerequisite to OJT. The 
manual or checklist also has the potential to be used after completing 
OJT, to review whether all the required tasks and related steps were 
properly completed. Regardless of the form of the document, this 
additional requirement for OJT should not be difficult to produce as 
any compliant training course would have already identified the tasks 
and related steps necessary for successful task completion.
    A checklist potentially could have more utility than a manual if an 
employer expects employees to carry the document into the field and 
reference it during OJT. In order to properly use a checklist, the 
learners and instructors must be able to understand the underlying 
conditions for the series of tasks given the abbreviated description of 
each item. For that reason, some employers may choose to produce a 
manual and a checklist, with the manual viewed as the long version of 
the checklist.
    The reference to ``other similar document'' is based on an RSAC 
recommendation and is intended to provide employer's with the 
discretion to satisfy this requirement with a document that may be 
something other than a manual or checklist. However, when FRA reviews 
that similar document, the issue to be addressed will be whether that 
similar document maintains the tasks and related steps associated with 
OJT exercises for a particular category or subcategory of employee. 
Additionally, employees, whether they are learners, mentors, or 
instructors, would benefit from having such a document made available 
to them so that everyone involved in a particular OJT program will have 
an understanding of what the expectations will be for that program.
    With regard to paragraph (d)(3), FRA is only proposing that one 
document be required. Because a manual and a checklist provide similar, 
but not identical purposes, RSAC recommended that FRA only require one 
or the other, or another similar document. By requiring only one 
document, the proposed requirement is less burdensome. However, FRA 
seeks comment on the distinctions between these types of documents and 
whether both a manual and a checklist should be required.
    FRA intends to make clear that with regard to the proposed 
requirements in paragraphs (d)(2) and (d)(3), the materials that are 
required to be made available could be made available electronically. 
For example, rather than providing printed copies of all the materials, 
some employers could choose to put some or all of the materials on a CD 
or DVD, which potentially would make the materials easier to transport 
and potentially less expensive to duplicate. Another option is that an 
employer could make all of the relevant materials accessible at one 
internet or company intranet location. Of course, if electronic 
materials are the only ones offered, employees and trainers of OJT 
would need access to computers at convenient and suitable locations. 
Thus, employers considering compliance with these proposed requirements 
through electronic medium should consider whether the electronically 
provided materials would be as accessible as printed materials.
    Paragraphs (e) and (f) contain corresponding proposed requirements 
for contractors and railroads to ensure that each party understands who 
is responsible for training. Paragraph (e) places the burden on each 
contractor that trains its own employees to notify each railroad in 
writing that its safety-related employees are trained according to an 
FRA-approved program. The contractor may provide the document in 
writing or electronically. The contractor may need to indicate that 
some of the contractor's employees are fully trained while some need 
additional training that must be provided by the railroad. FRA would 
consider a contractor's written misrepresentation of approved training 
as a serious violation of the proposed rule that would likely result in 
the agency taking enforcement action. Paragraph (f) requires that each 
railroad that relies on the training performed by a contractor must 
retain the contractor's document notifying the railroad that the 
contractor's training program was approved by FRA. It is important that 
a railroad retain the contractor's document in order to verify that the 
railroad did not need to provide training directly to the contractor's 
employees.
Section 243.103 Training Components Identified in Program
    Unlike Sec.  243.101, which focused on the general requirements for 
an employer's training program, this section details the proposed 
component requirements for each program. The main purpose for this 
proposed section is to ensure that an employer provides sufficient 
detail so that FRA would be able to understand how the program works 
when the agency reviews the program for approval. It is expected that a 
failure to include one or more component requirements would result in 
disapproval of the program. In Sec.  243.111 FRA also proposes that 
training organizations and learning institutions must include all 
information required for an employer's program in accordance with this 
part, and this mainly means the information required in this section. 
Thus, each program submitter should ensure that each component 
requirement proposed in this section is addressed.
    Paragraph (a) lists the five proposed training components. The 
first component is the requirement that the program contain a unique 
name and identifier for each formal course of study. The unique name 
and identifier would thus make up the course title. It is expected that 
these unique names and identifiers would be sufficiently descriptive so 
that the course title alone would provide a good idea of what subjects 
the course would cover. For example, the unique name could be 
``Introduction to Operating Rules for Operating Employees'' and the 
unique identifier could be ``OP RULES 101 BCE.'' In this example, 
``BCE'' refers to the occupational categories of employees that would 
be suitable to take this course; i.e., brakemen (``B''), conductor 
(``C''), and locomotive engineer (``E''). While it is not a proposed 
requirement that each course title identify the names of the 
occupational categories and subcategories of employees that would be 
required to take the course, it is one method for creating meaningful 
unique identifiers. FRA is aware that many employers with existing 
training programs will already have a unique name and identifier for 
each course and FRA is not suggesting that all of those course titles 
will need to be amended in order to comply with this rule.
    Paragraph (a)(2) contains the proposed requirement for a course 
outline. The rule delineates specific requirements for that course 
outline. Each specific requirement is not intended to place a heavy 
burden on the person developing the program as the proposed 
requirements would be expected to be developed as part of formal 
training. To reiterate a previous point made in this analysis, formal 
training, by definition, is structured training that differs from an 
informal briefing. By addressing the items required in this paragraph, 
the person developing the training would be answering the fundamental 
questions necessary to decide the purpose and scope of that training.
    Within paragraph (a)(2), FRA has listed two requirements that may 
need to be differentiated from one another.

[[Page 6428]]

Paragraph (a)(2)(ii), which proposes that the course outline include a 
brief description of the course, including the terminal learning 
objectives, is written with the expectation that FRA would receive 
information akin to a course catalog. Paragraph (a)(2)(vi), which 
proposes that the course outline include a syllabus of the course to 
include any applicable Federal laws, regulations, and orders covered in 
the training, is written with the expectation that FRA would receive 
information akin to a syllabus. The syllabus is normally specific to 
and written by the instructor; the course description in the course 
catalog is more generic and would describe the course regardless of the 
specific methods of teaching that the instructor might choose. 
Meanwhile, for both proposed requirements, FRA does not want the 
submission of actual lesson plans or any supplemental lesson plan 
materials such as rule books, handouts, or other job aids; if FRA needs 
those types of information in making a program approval determination 
or during an audit or investigation, FRA will make a specific request 
for those additional materials.

    Paragraph (a)(3) contains the proposed requirement that the 
employer's program include a document for each OJT program 
component. As previously discussed in this analysis, one of FRA's 
objectives in this rulemaking is to improve OJT. The OJT document 
for each program component would contain three subparts. The first 
subpart, in paragraph (a)(3)(i), proposes that the document contain 
certain types of background information that would provide a roadmap 
for understanding how the OJT program is intended to be 
administered. It is essential that this subpart of the document 
contain a description of the roles and responsibilities of each 
category of person involved in the administration and implementation 
of the OJT program. The roles and responsibilities subpart would 
explain the duties and expectations of each type of trainer, senior 
manager, first-level supervisor, mentor, trainee, or any other 
category of person involved in administering the OJT. It is proposed 
that the document contain implementation guidelines that address how 
the program will be coordinated. Program coordination must include a 
complete description of the minimum requirements necessary in 
connection with performance and repetition, and recording the 
successful completion of performance and repetition. Additionally, 
it is proposed that the document satisfactorily describe whether 
there will be a specific order of task learning for employees to 
progress through in order to advance through the OJT program for a 
particular occupational category or subcategory of employee (i.e., 
the progression of the OJT). Finally, it is proposed that the 
document satisfactorily describe the level of proficiency expected 
of a trainee before the trainee is considered successful in any 
given task (i.e., the application of the OJT).

    The second proposed subpart, paragraph (a)(3)(ii), requirement in 
the OJT document for each program component is a listing of the 
occupational categories and subcategories of employees for which the 
OJT program applies. One OJT program component may apply only to 
conductors and another only to carmen. Some OJT components may apply to 
a broader range of employees, such as all those employees designated to 
throw switches.
    The third proposed subpart, paragraph (a)(3)(iii), required in the 
OJT document for each program component requires details of the safety-
related tasks and subtasks, conditions, and standards covered by the 
program components. This last subpart will provide the scope of the 
particular OJT component, the conditions under which the OJT must be 
performed, and the standards for measuring whether an employee has 
successfully completed any particular OJT requirement.
    Paragraph (a)(4) proposes a requirement that the course outline for 
each course include the job title and telephone number of the 
employer's primary training point(s) of contact, listed separately by 
major department or employee occupational category if applicable. The 
purpose of this requirement is to provide general contact info so that 
FRA has a point of contact in case any questions or concerns arise. As 
long as the responsible person's job title and telephone number are 
provided, it is unnecessary to list the person's name as individuals 
often move in and out of particular job positions on a regular basis 
and this information can get stale quickly. FRA requests comment on 
whether an email address should be required, or listed as optional.
    Paragraph (a)(5) proposes additional requirements for employers 
that utilize training organizations or learning institutions to develop 
or deliver any portion of the training required by this part. FRA needs 
some basic information from the employer so that the agency may 
properly evaluate the program under the review and approval process. 
Thus, the program must indicate the scope of the training that will be 
contracted out, the name of the contracted organization that developed 
the training (and the name of the organization that will deliver the 
training, if different), and basic contact information for the 
contracted organization so FRA can follow-up with questions or 
concerns. FRA acknowledges that when RSAC discussed this issue, it was 
assumed that a training organization or learning institution would both 
develop and deliver the training. Upon further review, some training 
organizations or learning institutions may only develop training or 
deliver training, but not both. In those instances, FRA believes it 
will still need the information required by this paragraph.
    Paragraph (b) provides an option for an employer to avoid 
submitting one or more similar training programs or plans when the 
employer has a separate requirement, found elsewhere in this chapter, 
to submit that similar program or plan to FRA. In order to take 
advantage of this option, an employer must choose to cross-reference 
any program or plan that it wishes not to submit in the program 
required by this proposed part. Although some employers may choose to 
incorporate a training program previously submitted to FRA under a 
different rule, this provision permits the option to reduce redundancy. 
This proposed option is based on the statutory provision allowing the 
agency to ``exempt railroad carriers and railroad carrier contractors 
and subcontractors from submitting training plans for which [FRA] has 
issued training regulations before the date of enactment of the Rail 
Safety Improvement Act of 2008.'' 49 U.S.C. 20162(c). However, FRA 
notes that this proposed exemption does not go as far as the statutory 
authority allows. FRA is only exempting an employer from submitting a 
program or plan if the existing training regulation requires submission 
of that program or plan. For purposes of this proposed requirement, FRA 
considers ``submission'' to have the broader meaning of including those 
programs or plans that are required to be maintained on an employer's 
property for review and inspection by FRA representatives. FRA is 
reluctant to consider exempting employers from submitting training 
programs or plans required by existing training regulations that lack 
some kind of ``submission'' requirement as doing so could compromise 
the quality of submissions under this proposed rule. Additionally, some 
of those programs or plans that were previously submitted may be 
missing an OJT component. If so, this proposal specifies that ``[w]hen 
any such similar program or plan did not include the OJT components 
specified in paragraph (a)(3) of this section, the employer shall 
supplement its program in accordance with this part by providing that 
additional information.'' As mentioned earlier, OJT is one of the

[[Page 6429]]

weakest parts of most training programs, and FRA will focus its review 
of training programs to ensure that the OJT components are well-thought 
out and structured. Examples of other FRA training requirements that an 
employer may choose not to resubmit are those located in Sec. Sec.  
214.307, 217.9, 217.11, 218.95, 236.905, and 240.101.
    Paragraph (c), as proposed, would require that an employer include 
a description in the program if it arranges job-related practice and 
practice related feedback sessions. These types of practice and 
feedback sessions are not as structured or comprehensive as OJT, but 
these sessions could provide useful additional experience. Depending on 
the job, job-related practice and practice related feedback sessions 
may be safely conducted with or without qualified instructors or 
mentors to assist the training participant. An employer who utilizes 
such practice is required to address the practice in the training 
program required under this proposed part.
    Please note that FRA is concerned that some employers may currently 
believe that job-related practice and practice related feedback 
sessions are the same thing as OJT; for purposes of this proposed rule, 
they are not. This rule includes specific requirements for OJT that 
puts it in the formal training category, i.e., with a structured and 
defined curriculum. Job training that occurs in the workplace without 
meeting the specific proposed regulatory requirements for OJT may still 
be adequate for some training purposes. This type of informal job 
training is what FRA considers job-related practice and practice 
related feedback sessions. Although job-related practice and practice 
related feedback sessions may have some formality to them and would add 
value to the training participant's experience, these informal practice 
sessions should not be confused with OJT as defined and required under 
this proposed rule.
    Finally, paragraph (d) serves as a reminder to any employer 
submitting a program that FRA may require modifications to any 
programs, including those programs referenced in paragraph (b) of this 
section, if it determines essential program components, such as OJT, or 
arranged practice and feedback, are missing or inadequate. Generally, 
FRA will require hands-on training if the training participants are 
expected to learn how to perform a safety-related task. The hands-on 
portion of the training could occur in a classroom, on a simulator, in 
a laboratory, or as OJT. Arranged practice and feedback is often an 
integral part of classroom, laboratory, and simulator training. For 
some occupational categories or subcategories, lecture that 
incorporates practice and feedback sessions may provide enough training 
to consider the person trained. For occupational categories and 
subcategories where OJT is required any person submitting a program 
that does not contain an OJT component meeting the proposed 
requirements is likely to receive feedback from FRA that the program is 
inadequate in this regard.
Section 243.105 Optional Model Program Development
    During the RSAC process, FRA expressed that it wanted to encourage 
the development of model training programs that could be used by 
multiple employers. There are several reasons why model programs are 
desirable as an option. Smaller entities may struggle with the costs 
and burdens of developing a program independently; thus, a model 
program could reduce the costs, especially for smaller businesses. For 
instance, in the context of locomotive engineer training and 
certification programs required pursuant to 49 CFR part 240, FRA has 
worked with ASLRRA in developing model programs for use by short line 
and regional railroads. Furthermore, there are economies of scale that 
benefit FRA in helping organizations, associations, and other 
businesses to develop model programs that may be adopted by other 
entities. That is, the more businesses that adopt model programs, the 
fewer the number of programs FRA would need to closely scrutinize in 
the review process. FRA is willing to provide early and frequent 
feedback to any entity producing a model program. In that way, FRA can 
ensure that each model program will contain all of the necessary 
components to a successful program and can be implemented by multiple 
businesses with little fear of rejection during the program submission 
and approval process.
    Paragraph (a) proposes an option that would permit any 
organization, business, or association to submit one or more model 
programs to FRA for later use by multiple employers. In addition to 
short line and regional railroads, FRA encourages similar types of 
contractors to submit model programs possibly developed by a common 
association. In some instances, FRA could foresee that several 
employers may hire an organization, such as a training organization or 
learning institution, to develop a model program for those multiple 
employers to submit to FRA. FRA notes that the model program would be 
the program for any employer that chooses to submit it, and it is not a 
program submitted on behalf of the training organization, business, or 
learning institution that developed the program. Another possibility is 
that one railroad or contractor develops a program for its own use that 
it later allows other entities to copy. FRA expects that some 
organizations, businesses, and associations may take a proprietary 
interest in any model program it develops; however, FRA would hope that 
the costs imposed on small entities would be reasonable. Although FRA 
does not intend to draft and develop programs for employers to use, FRA 
intends to provide guidance to any person or entity in the development 
of model or individual employer programs.
    Paragraph (a)(1) proposes a requirement that each model program be 
submitted with a unique identifier associated with the program. If no 
unique identifier is submitted, FRA proposes that it will assign a 
unique identifier. FRA proposes this requirement so that it will be 
easier for FRA to track which railroads and contractors have adopted 
specific model programs. For example, a model program identifier may 
include the abbreviation or acronym of the organization, business, or 
association that developed it and a number or descriptive phrase that 
helps identify it. Examples of unique identifiers could be: ASLRRA-1, 
ASLRRA-Part 240, ASLRRA--Conductor, ASLRRA--Short line, ASLRRA--
Regional Railroad, NRC--Signal Maintenance, NRC--Locomotive Repair, or 
NRC--Track Maintenance.
    Paragraph (a)(2) proposes to require that each model program 
associated with the organization's unique identifier shall include all 
information required by Sec.  243.103. This requirement means that each 
model program must be able to stand on its own and contain all of the 
same training components as required for an employer's program.
    In paragraph (b), FRA proposes that each employer submit the unique 
identifier for the model program along with all other information that 
is specific to that employer or deviates from the model program. FRA 
would prefer that each model program standardize as many of the 
components as possible and that each employer that adopts a model 
program would try to limit the number of provisions it deviates from 
the model program to a minimum. FRA understands that some components of 
a model program could be left blank so that each employer may enter 
information that individualizes

[[Page 6430]]

the program to suit that employer's training regimen. In other 
instances, an employer may want to customize a portion of a model 
program. FRA would like to encourage an employer that submits a program 
based on a model program previously approved by FRA, not to submit the 
entire program to FRA; doing so would be duplicative and defeat part of 
the purpose of approving model programs.
Section 243.107 Training Program Submission, Introductory Information 
Required
    In proposed paragraphs (a) through (c), FRA requests specific 
information from each employer submitting a program. The information 
requested is intended to give FRA some introductory information that 
the agency will need to understand the employer's approach to training. 
The information required in these paragraphs is intended to help put 
the training components in the program in some context before a 
reviewer reads the finer details of each component. For example, FRA 
might want to more closely scrutinize a small railroad's training 
program if the program states that the employer primarily conducts the 
training of its own safety-related railroad employees using its own 
resources. The reason that information may raise a concern is that 
smaller railroads would not always have qualified instructors to 
implement all the different types of training required by the Federal 
laws, regulations, and orders.
    The RSAC members will recognize that this section follows their 
recommendation and that the rest of the RSAC's recommended Sec.  
243.107 has been placed in Sec.  243.109 in order to improve the 
organization and readability of these proposed requirements. Because 
the RSAC's recommended Sec.  243.107 was split into two sections, FRA 
renumbered the remaining RSAC recommended sections found in this 
proposed subpart.
Section 243.109 Training Program Submission, Review, and Approval 
Process
    As mentioned at the end of the analysis to the previous section, 
FRA accepted the intent of the RSAC recommendation that forms the basis 
for this section; however, FRA has not accepted the RSAC recommendation 
verbatim. There were several undefined terms that a more general 
audience than the RSAC membership that helped devise the recommendation 
might find ambiguous. For instance, in drafting this proposed rule, FRA 
found that it was confusing to understand the difference between what 
RSAC and FRA meant by a ``new program'' versus an ``initial program.'' 
Another example of an undefined term in the RSAC recommendation was 
``informational filing;'' there were discussions about what that term 
meant, but the RSAC did not define the term in its recommendation. 
Thus, FRA has given meaning to the term ``informational filing'' in the 
proposed regulatory text and set it apart from other types of revisions 
to an existing program.
    Additionally, FRA attempts to improve on the clarity of the RSAC 
recommendation by reorganizing the regulatory text. Anyone who has 
reviewed the RSAC recommendation will recognize that most of the 
language in this proposed section is derived directly from that 
recommendation, but that the order of the regulatory text differs. FRA 
seeks comment on whether the section is easier to understand and 
whether the section adequately addresses each possible scenario for 
employers filing initial or revised programs. In the analysis of each 
paragraph, FRA describes the relationship of the proposed paragraph to 
the RSAC recommendation to help anyone who has reviewed the RSAC 
recommendation understand how the proposed section was derived from 
that recommendation.
    Paragraph (a) proposes three processes for approving different 
types of initial programs. First, paragraph (a)(1) addresses the issue 
of how employers must address apprenticeship, or similar intern 
programs, that have begun prior to submission of the employer's initial 
program filed in accordance with this part. RSAC recommended that FRA 
address this situation so that those persons who had already started an 
apprenticeship-type training program would know that their training 
would not be mooted by this proposed regulation. During the RSAC 
deliberations, there were general concerns raised that some long term 
training might be initiated prior to a training program submission and 
that, when reviewed in the context of the rest of the employer's 
initial program, the long term training would not meet the employer's 
program requirements. In some instances, it may be possible to revise 
an apprenticeship or similar long term intern program that has already 
begun; in other instances, changing the apprenticeship program would be 
prohibitively expensive or logistically difficult. RSAC recommended and 
FRA accepts the premise that as long as the apprenticeship-type 
training program is described in the employer's initial program, that 
apprenticeship or similar intern program may continue unless FRA 
advises the employer of specific deficiencies. FRA also accepts the 
RSAC recommendation regarding what action should be taken when specific 
deficiencies are found; however, instead of a reference to another 
paragraph in this section, FRA proposes that the process be contained 
in this paragraph so that it is easier for readers to follow. Thus, the 
paragraph includes the provision that the employer must take action to 
resubmit the portion of its program that FRA found deficient within 90 
days of notification and that a failure to resubmit the program with 
the necessary revisions shall be considered a failure to implement a 
program under this part. Furthermore, FRA may extend this 90-day period 
based on a written request. The purpose of creating a deadline for 
action is to ensure that training programs are eventually corrected to 
address deficiencies found by FRA. There may be instances when an 
employer disagrees with an FRA finding of a deficiency and 90 days will 
typically provide sufficient time for the employer to set up a meeting 
with FRA to try and resolve any differences. If more than 90 days are 
needed, FRA could unilaterally extend the deadline or entertain a 
written request from the employer. Paragraph (a)(1) is modeled after 
Sec.  243.107(f) and (g) of the RSAC recommendation.
    Paragraph (a)(2) proposes to consider an employer's initial 
training program, as required by Sec.  243.101(a), approved immediately 
upon submission to the Associate Administrator. The Sec.  243.101(a) 
programs will be the first programs submitted by each employer in 
operation one year and 120 days after the effective date of this final 
rule. Hence, once this type of program is submitted, it is proposed 
that the employer may implement the initial program without waiting for 
approval. RSAC recommended, and FRA agrees, that there is a legitimate 
expectation that there will likely be few programs that will be 
completely unacceptable. Instead, the expectation is that some programs 
will be missing pieces of information or lacking in some required 
components. Those employers who FRA determines will need to improve a 
program to address a deficiency will do so through a proposed process 
of resubmission with the Associate Administrator. FRA rejected the 
option to require implementation only after FRA approval as many RSAC 
members explained that it would be economically and logistically 
difficult to comply with such a requirement. FRA also does not

[[Page 6431]]

want to hold up the implementation of an entire training program for 
problems that may only affect some occupational categories of safety-
related railroad employees, or may be a minor issue that can be 
addressed and corrected at a later date. Paragraph (a)(2) is modeled 
after Sec.  243.107(d) and (g) of the RSAC recommendation.
    Paragraph (a)(3) proposes to consider an employer's initial 
training program, as required by Sec.  243.101(b), differently than 
those initial programs filed under Sec.  243.101(a). The differences 
between these two types of initial programs are that Sec.  243.101(b) 
employers are those that commence operations one year and 120 days 
after the effective date of this final rule (instead of before that 
date) and Sec.  243.101(b) requires submission of the program at least 
90 days prior to commencing operations (while Sec.  243.101(a) applies 
to employers already in operation). Paragraph (a)(3), which is modeled 
after Sec.  243.107(e)(2) and (h) of the RSAC recommendation, proposes 
a precautionary approach with employers commencing operation 
significantly after the effective date of this rule to ensure each 
training program meets the regulatory requirements prior to 
implementation. As the employer will be required to file the program at 
least 90 days prior to commencing operations, FRA should have 
sufficient time to review the program before the employer would have a 
great need to implement its training program. Employers who need FRA to 
expedite review of a training program may contact FRA and alert the 
agency to the employer's reasons for requesting that FRA's review be 
completed by a certain date. Although FRA is under no proposed 
requirement to complete its review by any deadline, FRA has no 
intention of delaying the employer's anticipated date of commencing 
operations and will attempt to meet all reasonable requests for 
expedited review.
    Paragraph (b) introduces the proposed concept of an annual 
informational filing requirement. The concept is modeled after Sec.  
243.107(i) of the RSAC recommendation. FRA accepts this RSAC 
recommendation over the alternative option which would require programs 
to be constantly revised, resubmitted, and reviewed for approval on 
many routine matters. For instance, FRA expects that nearly every year 
there will be new safety-related Federal railroad laws, regulations, or 
orders issued, or new safety-related technologies, procedures, or 
equipment that are introduced into the workplace. Each of these 
circumstances would create new knowledge requirements or safety-related 
tasks that would need to be addressed by amending a previously approved 
program. FRA proposes that an employer that modifies its training 
program for these reasons shall submit an informational filing to the 
Associate Administrator not later than 30 days after the end of the 
calendar year in which the modification occurred, unless FRA advises 
otherwise either to individual employers, one or more group of 
employers, or the general public. Depending on the situation, FRA may 
decide that an information filing is unnecessary and may advise 
individual employers or groups of employers through an association of 
that decision when contacted by the employer or association. At other 
times, FRA may want to publish a statement on its Web site, or as a 
safety advisory or other guidance document in the Federal Register. 
Informational filings will be considered approved upon modifying the 
program and may be implemented immediately without explicit FRA 
approval. However, FRA expects to audit programs occasionally and 
proposed paragraph (b) puts employers on notice that FRA may disapprove 
an informational filing in the same manner as specified in paragraph 
(a)(2) of this section. Although this annual requirement would have 
costs of its own, it is expected that this option would save employer 
and agency resources over the alternative option.
    Furthermore, paragraph (b) proposes requirements for what 
information must be included in an informational filing. In addition to 
including any substantive changes, which may include pages to be 
substituted in the previously approved program, FRA proposes a 
requirement that the filing contain a summary description of sufficient 
detail that FRA can associate the changes with the employer's 
previously approved program. The summary description should be 
considered the equivalent of an executive summary or roadmap to the 
changes made to the program.
    Proposed paragraph (b)(4) is intended to address the circumstances 
where a previously approved model program is revised through an 
information filing. The RSAC agreed to FRA's recommendation that a 
process be required to revise a model program without causing each user 
of that model program to submit a similar filing. FRA is not looking to 
take enforcement action against developers of model programs; e.g., FRA 
does not intend to impose a liability on an organization, business, or 
association that has an approved model program on file with FRA but 
fails to inform each employer who requested the right to use the 
affected training program of the changes and the need for the employer 
to comply with those changes that apply to its operation. However, FRA 
would like the developers of model programs to describe how they 
informed their clients or constituents of the informational filing so 
that FRA can gauge whether the notification was adequate under the 
circumstances. Without adequate notification, compliance cannot be 
expected, and individual employers may not have sufficient opportunity 
to inform FRA of a different approach.
    FRA seeks comment on whether the regulation should address any 
issues arising from model program developers that are no longer 
actively updating their programs. For instance, an organization, 
business, or association that has an approved model program on file may 
voluntarily decide that it is too great a burden to continue updating 
the program, or may go out of business or disband. Each employer that 
has relied on the model program for its submission is ultimately 
responsible for its program and will need to ensure that any required 
updates are made. In some instances, the employers relying on the model 
program may band together and find an alternative way to continue 
updating the model program.
    Paragraph (c) proposes how an employer can revise a training 
program that has been previously approved. The proposed requirement 
would allow substantial additions or revisions to a previously approved 
program to be considered approved and implemented immediately upon 
submission. For example, a program is considered revised if the 
employer adds any occupational categories or subcategories of safety-
related railroad employees to the training program. Most other changes 
to an existing program would not be considered a substantial addition 
or revision but instead would likely require only an ``informational 
filing'' under proposed paragraph (b). FRA has adopted the RSAC's 
recommendation that there is no reason to hold up implementation of new 
portions or revisions to an approved program as FRA can require 
problems to be fixed after submission. The process for review following 
submission is the same process for initial programs filed under 
paragraph (a)(2) of this section. Paragraph (c) is modeled after Sec.  
243.107(e) and (e)(1) of the RSAC recommendation.
    In several paragraphs in this section, FRA proposes a process for 
review that allows immediate implementation upon submission but 
explains that FRA will inform the employer as to whether the program or 
program revisions conform

[[Page 6432]]

to this regulation. Once specific deficiencies are identified by FRA, 
it is proposed that the employer will be required to take action to 
correct the deficiencies within 90 days. As some training that has 
already been initiated may have deficiencies, FRA accepts the RSAC's 
recommendation not to nullify that training. Thus, the proposed process 
would permit the deficient portions of the non-conforming program to 
remain in effect until approval of the revised program, unless FRA 
provides notification otherwise. Presumably, FRA may take exception to 
large gaps or deficiencies in training and require the nullification of 
such seriously deficient training. However, in most instances, FRA 
would expect the deficiencies to be more minor in nature such that 
nullification of training would be too severe a reaction. Where the 
deficiencies are more minor in nature, FRA may ask that an employer 
simply plug any gaps in training identified rather than nullify the 
training already conducted.
    Another issue involving the review process that is proposed in 
several paragraphs in this section is that a failure of an employer to 
resubmit a program with the necessary revisions shall be considered a 
failure to implement a program under this part. FRA would consider this 
to be a serious issue of non-compliance if the employer is continuing 
to train safety-related railroad employees using the rejected 
portion(s) of the program. The process FRA is proposing allows for a 
90-day period for an employer to respond with a program resubmission if 
FRA receives a written request. FRA will liberally exercise discretion 
in granting reasonable requests for an extension. FRA would expect 
reasonable extension requests to include any basis for requesting the 
extension and a new deadline by which the employer expects to be able 
to resubmit. FRA is requiring that the extension be in writing so that 
the parties can establish when the request was made.
    Proposed paragraph (d) is modeled after Sec.  243.107(j) and (k) of 
the RSAC recommendation and flows from the intention to include 
representatives of railroad labor organizations involved in the program 
approval process. The proposed requirement is for railroads only, not 
contractors. By requiring that the president of each labor organization 
that represents the railroad's employees be simultaneously served with 
a copy of any submission, resubmission, or informational filing, the 
regulation is ensuring that employee representatives will have a timely 
opportunity to participate in FRA's review and approval process. To 
ensure that this requirement is met, FRA has proposed that the railroad 
include a statement affirming that service has been completed and the 
details of who was served. Commenters may wish to address whether this 
requirement is necessary or should be expanded to include contractors.
    Proposed paragraph (d)(2) requires that each railroad labor 
organization has up to 90 days to file a comment. The reason for the 90 
day deadline is that FRA would like to send approval notification to 
railroads in a timely fashion. Without a deadline for comments, the 
approval process would seem open ended. However, FRA realizes that, 
from time-to-time, a labor organization may find something 
objectionable in a previously approved program, and FRA encourages 
those types of comments as they are discovered. When a labor 
organization discovers an objectionable issue outside of the required 
90 day window, FRA would still accept the comment and review the issue 
to see whether a revision to the training program is warranted. 
Depending on when the comment is raised outside of the 90 day review 
cycle, FRA could consider whether to grant the employer some leeway in 
revising and implementing any necessary conforming change to the 
program. For example, if training is well under way for that year, it 
may be suitable to allow the employer to accommodate the late comment 
in its training for the next year, if any accommodations are required.
Section 243.111 Approval of Programs Filed by Training Organizations or 
Learning Institutions
    Although the statutory mandate in 49 U.S.C. 20162 does not mention 
how to treat training organizations or learning institutions that train 
safety-related railroad employees, FRA accepts the RSAC's 
recommendation in proposing requirements for FRA to review and approve 
programs from such organizations or institutions. As proposed, 
employers will always have the obligation to submit training programs 
to FRA for approval and will not be relieved of that obligation just 
because the employer uses a training organization or learning 
institution with an approved program. Some of those employers may 
choose to have one or more training organization or learning 
institution train one or more type of occupational category or 
subcategory of employee. Other employers may use such outside trainers 
only for particular training courses while providing other courses 
``in-house,'' i.e., training by designated instructors directly 
employed by the employer. Additionally, other employers may 
intermittently or regularly hire safety-related railroad employees who 
have been previously trained by training organizations or learning 
institutions and view such hiring as a cost-effective or efficient way 
to avoid the burden of providing initial training. Furthermore, some 
individuals may wish to pay their own way to get trained in a 
particular occupational category or subcategory of safety-related 
railroad employee--most likely with the hope that the training will 
boost the person's chances of gaining employment.
    FRA's purpose in proposing this section is to facilitate the option 
of using training organizations or learning institutions. An employer 
that intends to implement any training programs conducted by some other 
entity [such as a training organization or learning institution], or 
intends to qualify safety-related railroad employees previously trained 
by training organizations or learning institutions, has a proposed 
obligation to inform FRA of that fact in the employer's submission. If 
FRA has already approved the training organization or learning 
institution's program, an employer could reference the approved program 
in its submission, avoid lengthy duplication, and likely expect a quick 
review and approval by FRA.
    Individuals or employers that use training provided by training 
organizations or learning institutions need assurances that the 
training will meet or exceed FRA's requirements prior to incurring any 
training expense. Without such assurances, an individual or employer 
may determine that paying for such training is not worth the risk. 
Meanwhile, FRA would benefit from approving this type of training 
program as it will lead to greater efficiencies in FRA's review and 
approval process. Thus, proposed paragraph (a) requires that a training 
organization or learning institution that provides training services 
for safety-related railroad employees, including providing such 
training services to independent students who enroll with such training 
organization or learning institution and who will rely on the training 
services provided to qualify to become safety-related railroad 
employees, must submit its program for review and approval.
    Although paragraph (b) proposes a one year grace period for an 
existing training organization or learning institution, FRA deems it 
essential that each training organization and learning institution 
obtain FRA approval prior to the expiration of that grace period. FRA

[[Page 6433]]

hopes that extensions of this grace period will not be necessary, but 
it has proposed an explicit process for granting such an extension 
rather than merely relying on the waiver process proposed in Sec.  
243.7. It is proposed that entities that intend to request extensions 
do so in writing and include an explanation of any factors that the 
entity wants FRA to consider before deciding whether to approve the 
request.
    FRA has had significant interaction with some of the largest 
training organizations and learning institutions that currently train 
safety-related railroad employees. These large organizations are mainly 
training facilities found within an accredited college or run by a 
major railroad. In FRA's experience, the training provided at these 
types of large organizations is of a high caliber. Although FRA can 
foresee some minor deficiencies with the approval of individual 
components within the training programs that would be filed by some of 
these large organizations, FRA does not anticipate significant 
deficiencies because these programs are currently well-developed and 
comprehensive.
    In contrast, FRA has less experience and greater concern with 
smaller organizations or new businesses that may start-up in response 
to any demand for training services as a result of promulgation of this 
rule. Prior to approval, FRA may want to tour an organization's 
facilities and discuss the details of program implementation with the 
organization to ensure that compliance with the program can be 
reasonably accomplished. A smaller organization will have a greater 
chance of program approval if it accurately characterizes its ability 
to offer training services.
    Paragraph (c) proposes that a program submitted by a training 
organization or learning institution must include all information 
required for an employer's program in accordance with this part, unless 
the requirement could only apply to an employer's program. This 
sentence mainly refers to the requirements found in Sec. Sec.  243.101 
and 243.103. In addition, this paragraph contains a list of proposed 
requirements that only pertain to a training organization or learning 
institution's program. The list of proposed requirements is intended to 
ensure that FRA can: contact and audit the organization; review the 
names and resumes of any designated instructors; gauge the training 
organization's or learning institution's experience in the training 
field by contacting references of previous or current employer 
customers; and understand the methodologies the training organization 
or learning institution used during development of the training 
courses. Without this additional information, it would be difficult for 
FRA to evaluate whether the organization could effectively implement 
its training program.
    Paragraph (d) proposes that, except for the grace period allowed in 
paragraph (b), FRA will not consider training by a training 
organization or learning institution to satisfy the requirements of 
this part until FRA has approved the training organization's or 
learning institution's program. With the grace period provided, each of 
these organizations should have sufficient time to submit a training 
program and have it reviewed by FRA without disrupting its training 
business. Because these organizations may train employees for multiple 
employers, there could be a substantial negative impact on the industry 
if these organizations were allowed to train employees prior to FRA 
completing its review and approval process. That is, many employees 
could be trained ineffectively, or without covering all the Federal 
requirements, if FRA were to allow program implementation immediately 
upon submission; once such initial defective training occurred, it 
would take years to correct through refresher training and could 
potentially lead to unsafe actions. Furthermore, once each of these 
organizations have had a training program approved, employers that rely 
on any of these organizations' training will greatly benefit from being 
able to rely on the approved program in the employer's own program 
submission.
    In accordance with paragraph (b) and (d), a training organization 
or learning institution that offers one or more apprenticeship or 
similar intern programs to individuals not associated with an employer 
will need to assess the viability of those programs in progress as of 
the effective date of this rule. The paragraph (b) exception proposes 
to allow apprenticeship or similar intern programs to continue, prior 
to acceptance by FRA, for a period not to exceed one year. It is 
expected that any such apprenticeship or similar intern programs would 
be described in the training organization's or learning institution's 
program submission so that it could be explicitly approved and 
continued. If an apprenticeship or similar intern program that began 
prior to the effective date of the rule is scheduled to continue for a 
period to exceed one year after the effective date of the rule, the 
proposed rule would require the training organization or learning 
institution to address any deficiencies raised by the Associate 
Administrator prior to concluding completion of such an apprenticeship 
or similar intern program. FRA would appreciate comments on this 
proposal and whether other approaches may offer better alternatives. 
For example, FRA is willing to consider an option similar to the one 
offered in in Sec.  243.109(a). Paragraphs (e) and (f) propose 
requirements for each training organization or learning institution 
that has an existing training program approved by FRA but wants to 
modify, revise, or add to it. The procedures in paragraph (e) propose 
criteria for when an informational filing is required and provide 
procedures that mirror the procedures required for employers under 
similar circumstances as found in Sec.  243.109(b). Thus, the many 
listed reasons to update existing training courses and program 
information will only require an annual information filing and will not 
require that each training organization or learning institution file a 
modification to a program each time it makes one of these types of 
modifications to its program. The RSAC recommended that FRA allow each 
training organization or learning institution to use this type of 
informational filing concept, but the wording differs from the 
recommendation in order to conform to the applicable language required 
of each employer.
    Paragraph (f) is largely based on a recitation of paragraph (d) of 
this section. The concept behind paragraph (f) is that when a training 
organization or learning institution makes one or more substantial 
revisions to a program of the type that cannot be considered an 
informational filing, the revision should be treated in the same manner 
as an unapproved program. FRA believes that the RSAC recommendation 
unintentionally neglected to distinguish between informational filings 
and non-informational filing modifications. For example, if a training 
organization or learning institution with an approved plan decided to 
train a category of employee not previously covered in its program, 
that modification would be considered the equivalent of an employer 
submitting a ``new or revised'' program. FRA does not want to consider 
such substantial modifications to be deemed automatically approved upon 
filing as it does for informational filings. Without such additional 
scrutiny, a training organization or learning institution could file a 
program for initial FRA approval covering training for a single 
occupational category or subcategory of safety-related railroad 
employee and add an infinite number of training courses for any number 
of other

[[Page 6434]]

categories of employee without having to acquire specific FRA approval. 
FRA never intended to provide that much discretion to each training 
organization or learning institution because FRA is concerned that some 
of these organizations and institutions are unfamiliar to FRA and would 
demand greater scrutiny to ensure these businesses have the capability 
to achieve their stated goals.
    In paragraph (g), FRA adopts an RSAC recommendation to require each 
training organization and learning institution subject to this part to 
maintain records for each safety-related railroad employee that attends 
the training, in accordance with the recordkeeping requirements of this 
part. This requirement means that these organizations must keep the 
same information required in Sec.  243.203. The information should be 
shared directly with the employer, so that the employer can maintain 
its own records adequately. However, in the event of an FRA audit, FRA 
would be able to ensure that the employer's records matched with the 
training organization's or learning institution's records.
    Paragraph (h) proposes that each training organization and learning 
institution subject to this part must provide a student's training 
transcript or training record to any employer upon request by the 
student. This provision would mainly apply to situations in which a 
person directly pays an organization for training outside of a normal 
employer/employee work relationship. In that type of situation, it is 
imperative that the organization cooperate with the [former] student so 
that the person can prove to prospective employers that he or she was 
trained. In the case of safety-related railroad employees currently 
employed by employers with approved programs, the employer is required 
pursuant to proposed Sec.  243.203(d)(2) to make an employee's records 
available during normal business hours for inspection and copying/
photocopying to that employee, former employee, or such person's 
representative upon written authorization by such employee.
Section 243.113 Option to File Program Electronically
    This section proposes the option for any employer, training 
organization, or learning institution to which this part applies to 
file any program submissions electronically. FRA intends to create a 
secure document submission site and will need basic information from 
each company before setting up the user's account. The points of 
contact information in proposed paragraph (b) are necessary in order to 
provide secure access.
    Proposed paragraphs (c), (e), and (f) are intended to allow FRA to 
make the greatest use of an electronic database. It is anticipated that 
FRA may be able to approve or disapprove all or part of a program and 
generate automated notifications by email to an entity's points of 
contact. Thus, FRA wants each point of contact to understand that by 
providing any email addresses, the entity is consenting to receive 
approval and disapproval notices from FRA by email. Entities that allow 
notice from FRA by email would gain the benefit of receiving such 
notices quickly and efficiently.
    Proposed paragraph (d) is necessary to provide FRA's mailing 
address for those entities that need to submit something in writing to 
FRA. For those entities requesting electronic submission, the list of 
information specified in proposed paragraph (b) is required. Otherwise, 
those entities that choose to submit printed materials to FRA must 
deliver them directly to the specified address. Some entities may 
choose to deliver a CD, DVD, or other electronic storage format to FRA 
rather than requesting access to upload the documents directly to the 
secure electronic database; although this will be an acceptable method 
of submission, FRA would encourage each entity to utilize the 
electronic submission capabilities of the system. Of course, if FRA 
does not have the capability to read the type of electronic storage 
format sent, FRA can reject the submission.
    FRA requests comments on whether this section should address the 
submission of proprietary materials or other materials that an entity 
wishes to keep confidential. FRA expects that it could develop its 
secure document submission site so that confidential materials are 
identified and not shared with the general public. However, FRA seeks 
comments on whether that extra step is truly necessary. FRA does not 
expect the information in a program to be of such a confidential or 
proprietary nature. For instance, each railroad is expected to share 
the program submission, resubmission, or informational filing with the 
president of each labor organization that represents the railroad's 
employees subject to this part. See 243.109(d). It would be expected 
that information that needed to be kept private would need to be 
removed prior to sharing that programmatic material with the labor 
organization. FRA suggests that entities consider this concern when 
drafting any programmatic material to be submitted to FRA and that each 
entity takes its own steps not to share such private material with FRA. 
In that way, FRA may make such programmatic material available to the 
general public upon request.
    Finally, FRA is considering whether to mandate electronic 
submission and only permit filing in writing based on a waiver request. 
FRA is strongly leaning toward finalizing this option because the 
agency will be devoting significant resources to develop the electronic 
submission process. It will be more costly for the agency to develop 
the electronic submission process and have to upload written 
submissions into the electronic database itself. FRA expects that there 
are few, if any, employers who do not have Internet access and an email 
address, or who cannot otherwise meet the minimum requirements for 
electronic submission. FRA requests comments on whether mandatory 
electronic submission is objectionable to any person or employer.

Subpart C--Program Implementation and Oversight Requirements

    Once a program has been approved by FRA, it is proposed that each 
employer will have to comply with the requirements of this subpart. The 
subpart includes both implementation and oversight requirements. Some 
requirements apply only to railroads, and others to both railroads and 
contractors. Additionally, it is proposed that each training 
organization and learning institution will be required to maintain 
records as evidence of completed training.
Section 243.201 Employee Qualification Requirements
    This proposed section includes an exemption for existing employees 
to be designated for a particular occupational category or subcategory 
without further training, provides procedures for qualifying those 
employees that are not exempted by the employer for a particular 
occupational category or subcategory, and requires each employer to 
deliver refresher training. Prior to the RSAC Working Group reaching 
the recommendation on which this proposed section is based, the Working 
Group had extensive discussions about other options. For example, FRA 
initially proposed to the Working Group that existing employees should 
not be exempted, i.e., designated, without records proving the employee 
is trained or without checking that the employee is actually qualified 
to do the safety-related tasks. This option faced resistance from RSAC 
members representing both labor and management. Labor representatives

[[Page 6435]]

asked that FRA consider a straightforward exemption because the statute 
called for training regulations, not a certification rule that could be 
used by employers to disqualify those employees who are currently 
qualified. It was argued that, by requiring the passing of tests or 
observed compliance with certain safety-related tasks, FRA would be 
providing unscrupulous supervisors with a federally endorsed method of 
firing perfectly capable employees. The management representatives 
thought that, without a straightforward exemption, the designation 
requirements would be overly burdensome. The employers generally 
believed that they would not have training records for many employees 
that would be detailed enough to satisfy FRA's concerns, and they 
collectively believed that setting up knowledge and field tests to 
confirm each employee's qualification for each task would be an 
extensive undertaking.
    In proposing this section, FRA agrees with the criticism leveled at 
the options discussed in the RSAC meetings. FRA's intention is to 
ensure that all safety-related railroad employees receive proper 
initial training if previously unqualified, and that all previously 
qualified employees receive refresher training at regular intervals to 
ensure continued compliance. FRA encourages each employer to find ways 
to provide remedial training and retesting of any employee that fails 
to successfully pass any training or testing. Under this proposed part, 
a failure of any test or training does not bar the person from 
successfully completing the training or testing at a later date. Of 
course, FRA does not regulate employment issues and will leave those 
issues to be settled in accordance with any applicable collective 
bargaining agreement or employment and labor law.
    Paragraphs (a) and (b) propose requirements for each employer to 
declare the designation of each of its existing safety-related railroad 
employees by occupational category or subcategory, and only permit 
designated employees to perform safety-related service in that category 
or subcategory. The main difference between the two paragraphs is that 
(a) applies to each employer in operation as of one year and 120 days 
after the effective date of this rule and (b) applies to each employer 
commencing operations after that date. In the case of employers in 
operation pursuant to paragraph (a), the deadline for designation is 
two years after the effective date of this rule. In the case of 
employers commencing operations in accordance with paragraph (b), the 
deadline for designation of employees existing at the time of 
commencing operations is prior to the commencement of those operations. 
Paragraph (a), proposes that FRA may specifically grant an extension 
for employers in operation to comply with the designation requirements 
as long as that request is in writing.
    In order to close a potential loophole, a slight modification was 
made to paragraph (a) from the RSAC's recommendation. That is, the 
proposed rule adds language in paragraph (a) that makes this 
requirement applicable to each employer, in operation ``as of [DATE ONE 
YEAR AND 120 DAYS AFTER EFFECTIVE DATE OF THIS RULE].'' Without the 
addition of that language, if an employer began operations after the 
effective date of the rule but before 1 year and 120 days after the 
effective date of the rule, the employer would not have to comply with 
either paragraph (a) or (b). During the RSAC meetings, no member ever 
expressed the intention to create such a loophole and FRA would not 
have supported the recommendation if it had identified it during the 
RSAC process.
    Paragraph (c) proposes two conditions for qualifying a safety-
related railroad employee who, after the employer's designation in 
accordance with paragraphs (a) and (b), is newly hired or is to engage 
in a safety-related task not associated with the employee's previous 
training. The first condition can be summarized as successful 
completion of all training and examinations required to do the work. As 
each employer's program must identify the training components pursuant 
to 243.103, including course information and the kind of assessment, 
paragraph (c)(1) reinforces that compliance with the program is 
necessary for each safety-related railroad employee who is not 
previously trained. Similarly, paragraph (c)(2) reinforces that 
compliance with the OJT portion of the program is necessary for each 
safety-related railroad employee who is not previously trained, if the 
training curriculum for that occupational category or subcategory of 
employee includes OJT. This paragraph also proposes that not all tasks 
required by OJT need to be performed under the direct onsite 
observation of a qualified instructor. Instead, FRA proposes to accept 
the RSAC recommendation that OJT may generally be provided under the 
observation of a ``qualified person,'' who obviously could be an 
instructor but does not have to be an instructor. In such instances, 
the qualified person must be advised of the circumstances and be 
capable of intervening if an unsafe act or non-compliance with Federal 
railroad safety laws, regulations, or orders is observed. Without this 
flexibility, some employers might find it difficult to get employees a 
sufficient amount of OJT practice sessions as there may be a shortage 
of instructors available for all the direct observations necessary. 
However, it should be noted that the employee must demonstrate, to the 
satisfaction of a designated instructor, that OJT proficiency has been 
achieved before the employee is qualified. That demonstration cannot be 
performed by just any qualified person. Thus, this proposed requirement 
adds a significant safeguard to ensuring that OJT is completed to a 
measurably high level.
    Unlike paragraph (c) which addresses employees not previously 
trained, paragraph (d) proposes methods for employer's to avoid 
retraining an employee who has received relevant qualification or 
training for a particular occupational category or subcategory through 
participation in a FRA-approved training program submitted by an entity 
other than the employee's current employer. The RSAC recommended that 
the regulation address situations where the current record of training 
from some other entity is obtainable and when that record is 
unavailable. Read in its entirety, if the employee has performed the 
relevant safety-related duties in the previous 180 days and has a 
current record of training obtained from another entity, retraining 
will not be required. Similarly, if the employee has previously 
received initial or periodic training from another entity, it is 
proposed that the previous training will satisfy the requirements of 
this part as long as the previous training occurred within the previous 
180 days and the record of that training is obtained from that other 
entity. When records of previous training from another entity are 
unavailable or it has been more than 180 days since the employee was 
either last trained or performed the relevant safety-related duties, 
the current employer shall perform testing to ensure the employee has 
retained the knowledge necessary to remain a member of that 
occupational category or subcategory of safety-related railroad 
employee. Paragraph (d)(2) clarifies situations where an employee's 
records are unavailable and the employee is tested to determine that 
the employee has the knowledge necessary to be a member of a particular 
occupational category or subcategory of safety-related railroad 
employee under paragraph (d)(1)(ii) of this section. In such cases, 
there is no additional testing

[[Page 6436]]

requirement if more than 180 days have passed since the employee either 
performed the safety-related duties or received initial or periodic 
training for an occupational category or subcategory.
    Paragraph (e) proposes that beginning on January 1, two years after 
the effective date of this rule (which would likely be January 1, 
2015), each employer will be required to deliver refresher training at 
an interval not to exceed 3 calendar years from the date of an 
employee's last training event, except where refresher training is 
specifically required more frequently in accordance with this chapter. 
FRA suggested to the RSAC that it could go through FRA's regulations 
and standardize the 3 calendar year refresher training requirement, but 
some RSAC members disagreed with this option. It was argued that there 
are some instances where the refresher training is so important that 
refresher training should be required more often than a 3 year cycle.
    Refresher training may not always be a repeat of initial training. 
Employees participating in refresher training are expected to have had 
both initial training and significant experience applying the knowledge 
and skills previously acquired. Refresher training may include 
background materials that cover all the essential safety requirements, 
but place greater emphasis on more advanced areas or subjects that more 
often lead to accidents, injuries, or non-compliance. The proposed rule 
requires that each employer ensure that, as part of each employee's 
refresher training, the employee is trained and qualified on the 
application of any Federal railroad safety laws, regulations, and 
orders the person is required to comply with, as well as any relevant 
railroad rules and procedures promulgated to implement those Federal 
railroad safety laws, regulations, and orders. This requirement 
emphasizes that, while the refresher training does not have to mirror 
the initial training, it still needs to be comprehensive.
    Paragraph (f) proposes a requirement that an employee designated to 
provide formal training to other employees must be qualified on the 
safety-related topics or tasks as specified in accordance with the 
employer's training program and the requirements of this part. The 
purpose of this section is to ensure that unqualified employees are not 
tasked by their employers to conduct formal training. The term ``formal 
training'' is defined in proposed Sec.  243.5 and includes OJT 
instruction; in order to eliminate redundancy, FRA did not include a 
reference to OJT instruction as was recommended by RSAC. In addition, 
FRA does not believe RSAC intended to preclude an employer from using a 
``designated instructor'' who, by definition, has ``an adequate 
knowledge of the subject matter under instruction and, where 
applicable, has the necessary experience to effectively provide formal 
training.'' Consequently, the proposed requirement contains an 
exception for designated instructors. FRA also kept the intent of the 
RSAC recommendation that, in order to be qualified, an employee must 
meet the requirements found in the employer's training program as well 
as any requirements of this part; thus, FRA addressed this issue by 
adding corresponding language and did not accept the more vague 
language in the RSAC recommendation that only referred to ``this 
section.''
    FRA seeks comments on paragraph (f) and whether it should continue 
to stand alone or should be combined with proposed paragraph (c)(2) of 
this section. That is, the proposed paragraph (f) requirement appears 
to relate directly to situations in which ``as part of the OJT process 
and prior to completing such training and passing the field evaluation, 
a person may perform such tasks under the direct onsite observation of 
any qualified person, provided the qualified person has been advised of 
the circumstances and is capable of intervening if an unsafe act or 
non-compliance with Federal railroad safety laws, regulations, or 
orders is observed.'' In other words, paragraph (f) provides the 
context of what is a ``qualified person'' under paragraph (c)(2) of 
this section.
Section 243.203 Records
    An essential requirement of any training program is the maintenance 
of adequate records to support that the training was completed. In 
paragraph (a) of this section, FRA sets forth the general requirements 
for each safety-related railroad employee's qualification status 
records and the accessibility of those records. First, in paragraph 
(a), FRA proposes that each employer maintain records to demonstrate 
the qualification status of each safety-related railroad employee that 
it employs. The proposed rule does not specify how many years back the 
records must go as the requirement is only to keep those records 
necessary to prove the employee is currently qualified. In fact, some 
electronic recordkeeping systems may only permit the most recent date 
entered to be kept. Thus, the requirement does not include keeping all 
training records for each employee in perpetuity.
    Paragraph (a)(1), proposes to require that each employer keep 
records for former safety-related railroad employees for a 6-year 
period after the employment relationship ends. Those records must be 
accessible at the employer's system headquarters. By requiring 
employers to keep former employee records, FRA will have adequate time 
to obtain records even when an audit and investigation takes places 
several years after the employment relationship has terminated. This 
recordkeeping requirement is also intended to aid former employees who 
want to access their records to prove to a prospective employer that 
they received prior training. This proposed record retention 
requirement may be especially helpful to any former employees that may 
leave the railroading industry for several years, but want to return to 
safety-related railroad work within the 6-year time frame.
    Paragraph (a)(2), proposes to require that the records of current 
employees be accessible at the ``employer's system headquarters.'' By 
using this term, FRA means the main headquarters for any employer, 
whether the employer is a railroad or a contractor. A railroad's system 
headquarters is defined elsewhere in this chapter as ``the location 
designated by the railroad as the general office for the railroad 
system.'' 49 CFR 217.4. Railroads may choose to keep those records at 
the division headquarters where the employee is currently working, but 
it is not proposed as a requirement. For contractors, the records must 
also be accessible at the employer's headquarters, but each contractor 
may also choose to keep such records accessible at field or branch 
offices that have jurisdiction over a portion of the company for easy 
accessibility. FRA is requiring that an international employer that has 
its main headquarters located in a foreign country must maintain the 
records for its employees at whatever location the employer identifies 
as its ``main headquarters'' in the U.S. FRA anticipates that most 
employers that are not small entities will want to maintain these 
records electronically so that the records are accessible everywhere 
with a company computer loaded with the appropriate software and an 
Internet connection. FRA notes that this proposed section contains 
specific requirements for electronic recordkeeping in paragraph (e).
    In paragraph (b), FRA proposes that certain core information be 
kept in the records for each current or former safety-related railroad 
employee. FRA requests comments regarding proposed paragraph (b)(5), 
which requires that the

[[Page 6437]]

records indicate whether the person passed or failed any tests 
associated with the training. Although this was an RSAC recommendation, 
FRA questions whether a person can be deemed to successfully complete a 
course as would be indicated in paragraph (b)(4) without passing the 
associated tests. If so, then the (b)(5) requirement may be 
unnecessary. There is also a question of how useful it is to keep 
information regarding test failures, especially after a person has 
eventually passed the associated test. FRA is also interested to 
receive comments on whether it would be burdensome to keep electronic 
records for test failures.
    Paragraph (b)(6) proposes that when the employer accepts training 
not provided by the employer, it must keep a copy of the transcript or 
appropriate record. The training accepted must be from a business, a 
training organization, or a learning institution with an FRA-approved 
program. It is not enough to keep a record showing that the training 
was done by some other entity; a copy of the transcript or other 
appropriate record must be retained by the employer to ensure that the 
employer has reviewed the transcript or record, and determined that the 
employee took the appropriate courses and successfully completed them. 
The RSAC version of this paragraph did not include the reference to 
businesses that are not a training organization or a learning 
institution. FRA added this reference to other businesses mainly so it 
was clear that the obligation is on the employer to obtain and maintain 
each employee's training records. In the RSAC recommendation under the 
section titled ``railroad maintained list of contractors utilized,'' 
RSAC had suggested that each railroad that trains some or all safety-
related employees of a contractor must maintain a listing that includes 
a listing of all contractor employees trained and the courses taken. 
After further consideration, FRA has decided not to adopt that 
recommendation in Sec.  243.209 and instead has placed the burden on 
the employer (e.g. the contractor in the previous sentence) to maintain 
the relevant records. FRA's reasoning is that the RSAC recommendation 
would have created a redundant recordkeeping requirement.
    Proposed paragraph (b)(7) contains the requirements for recording 
OJT for each employee. Just as each course requires a unique name and 
identifier, when each OJT program component is recorded, it must 
include either a unique name or a unique identifier so that it is clear 
exactly which OJT program component was successfully completed. 
Although the RSAC did not suggest it, FRA is adding the proposed 
requirement that the record include the date the OJT program component 
was successfully completed. Without the date requirement, questions 
could arise about whether OJT was held contemporaneously with other 
related course work. The RSAC agreed that a record should be kept 
identifying which trainers, instructors, or supervisors determined that 
the employee successfully completed all OJT training necessary to be 
considered qualified to perform the safety-related tasks identified 
with the occupational categories or subcategories for which the 
employee is designated in accordance with the program required by this 
part. During audits and investigations, FRA will want this information 
to verify that the person making the determination was qualified to do 
so.
    Paragraph (b)(8) proposes a separate requirement for the employer 
to record the date that the employee's status is determined to be 
qualified and the employee is designated to perform the safety-related 
duties identified with any particular occupational categories or 
subcategories, in accordance with the program required by this part. 
Sometimes, this date will be the same date that the formal training 
course is successfully completed. In other instances, it will be the 
same date as the date that OJT or testing is completed. Whatever date 
it happens to be, each employer will need to decide when the person is 
qualified to do the work and record that date.
    Paragraph (b)(9) proposes that if an employee's qualification 
status was transferred from another entity with an approved program, 
the employer must maintain a copy of the training record from that 
other entity. The RSAC proposed the same requirement, but mentioned 
each type of other entity such as ``another employer or FRA-approved 
training organization or learning institution.'' The term ``entity'' is 
intended to include all these other types of businesses without 
creating a list that could potentially be under-inclusive.
    Finally, paragraph (b)(10) proposes the catchall phrase that if any 
additional information is required by this part, the employer needs to 
keep that information in its records for each employee.
    Paragraph (c) proposes a 3 year record retention requirement for 
any records that are not individual employee records. The records 
referred to here would mainly be those kept in accordance with periodic 
oversight (Sec.  243.205) and the annual review (Sec.  243.207). The 
proposed 3 year window for retention would actually be a bit longer 
than 3 years because it would be measured as 3 calendar years after the 
end of the calendar year to which the event relates. Thus, if a test 
occurred on March 1, 2012, the record would need to be maintained 
through December 31, 2015.
    Paragraph (c) also proposes a requirement that any records that are 
not individual employee records must be accessible at the system 
headquarters and at each division headquarters where the test, 
inspection, annual review, or other event is conducted. Although the 
language ``system headquarters and at each division headquarters'' may 
seem to refer to railroads, the intent is for paragraph (c) to apply to 
each employer, regardless of whether the employer is a railroad or a 
contractor. As described previously in the analysis to paragraph (a)(2) 
of this section, FRA intends the term ``system headquarters'' to have 
the same meaning for railroads as in the definition of that term in 
Sec.  217.4, and for contractors the term is intended to mean an 
employer's main headquarters in the U.S. Regarding the term ``division 
headquarters,'' the term should have the same meaning for railroads as 
in the definition of that term in Sec.  217.4. In that regulation, 
``division headquarters means the location designated by the railroad 
where a high-level operating manager (e.g., a superintendent, division 
manager, or equivalent), who has jurisdiction over a portion of the 
railroad, has an office.'' For contractors, the term ``division 
headquarters'' is intended to have a similar meaning to that of a 
railroad, but FRA will provide more discretion to each contractor to 
identify its division headquarters. Generally speaking, if a contractor 
divides its U.S. operations into regional areas that are managed on a 
day-to-day basis by one or more high-level managers at a field or 
branch office (as opposed to the system or main headquarters), then the 
intent of the regulation is to require those regional offices to 
maintain accessible records in addition to the maintenance of those 
records at the system headquarters.
    FRA seeks comment on whether this language would cause confusion or 
should be modified to exempt railroads or contractors from maintaining 
such records at division headquarters. As previously discussed in the 
analysis to paragraph (a)(2), FRA anticipates that most employers that 
are not small entities will want to maintain these records 
electronically so that the records are accessible everywhere with a 
company computer loaded with the appropriate software and an internet 
connection. The electronic accessibility

[[Page 6438]]

of records would appear to alleviate the need to require that these 
records be kept at each division headquarters. Again, it is worth 
noting that this proposed section contains specific requirements for 
electronic recordkeeping in paragraph (e).
    Paragraph (d) contains the requirements for each employer, training 
organization, or learning institution to make available those records 
that it is required to maintain under this part. All such records must 
be made available to FRA. Also, an employee's records must be made 
available to the employee (whether or not the person is a current 
employee or former employee) or any person the employee chooses as long 
as the employee provides such authorization in writing. The records 
must be made accessible upon request during normal business hours. 
Thus, requests made near the close of business on Friday may reasonably 
not be retrieved until early the following week, unless the employer 
has normal business hours on weekends.
    As with any request for one or more records, the retrieval should 
be completed contemporaneously with the request, but with the 
understanding that a reasonable amount of time should be afforded the 
employer that maintains the record. When the employer maintains the 
records electronically, expectations for quick retrieval will be 
higher. Although not specified by this proposed rule, it is reasonable 
to expect that most records can be made available for inspection and 
copying/photocopying during the same day that the request is made. In 
some instances, for example, when the person is a former employee who 
has not worked at the employer for a few years, it would be 
understandable if the record were kept off-site in a warehouse and it 
might take a week or more to retrieve the original file. However, 
employers are encouraged to scan and electronically maintain records of 
former employees (in accordance with proposed paragraph (e) of this 
section) to avoid lengthy retrieval delays. Furthermore, the rule is 
silent on whether employers and employees may agree to ``copy'' 
electronic files by sending copies as attachments to an email or saving 
the electronic file to some other standardized storage disk or device, 
but FRA believes that it should be an acceptable copying practice.
    Paragraph (e) proposes requirements for each employer that chooses 
to retain the information prescribed in this section by maintaining an 
electronic recordkeeping system. These requirements were adopted by the 
RSAC without much debate as they are based on requirements promulgated 
in other FRA regulations. FRA notes that the conductor certification 
NPRM published slightly different requirements for electronic 
recordkeeping on November 10, 2010, and that FRA may want to amend the 
requirements in this final training rule to conform to the final 
conductor certification standards. 75 FR 69166. FRA invites comment on 
these procedures.
    Paragraph (f) proposes a transfer of records requirement with the 
goal of preserving training records that might otherwise be lost when 
an employer ceases to do business. When an employer ceases to do 
business and its assets will be transferred to a successor employer, 
there may be a question of whether the successor employer has any 
obligation to maintain the records for the employer company it has 
acquired. The answer is an emphatic yes. FRA has accepted the RSAC 
recommendation that the successor employer shall retain all records 
required to be maintained under this part for the remainder of the 
period prescribed in this part. As most successor employers would want 
to retain at least some portion of the acquired employer's safety-
related railroad employees, it is expected that successor employers 
would have an interest in maintaining these records even if there was 
no specific regulatory requirement.
Section 243.205 Periodic Oversight
    There are two central purposes to conducting periodic oversight 
under a training rulemaking. One central purpose is to take notice of 
individual employees who are in non-compliance and to take corrective 
action to ensure that those specific employees know how to do the work 
properly. In some instances, the employee might need coaching or 
retraining, especially if the person has not had much experience doing 
the work. In other instances, training may not be an issue and other 
remedial action may be appropriate. A second central purpose in 
conducting periodic oversight is to look at all of the oversight data 
as a whole to detect patterns of non-compliance. The annual review 
proposed in Sec.  243.207 is intended to spur such a global review of 
training and trigger adjustments that improve the effectiveness of 
training courses. Taken together, these oversight and review actions 
should lead to significant improvements in compliance and the overall 
quality of training programs. The recording of oversight, and the 
identification of problem areas, is intended to compel each employer to 
focus on how a training course can be improved to place greater 
emphasis on the causes of such non-compliance.
    During the RSAC process, FRA initially took the position that each 
employer should be required to conduct annual task proficiency 
oversight over each safety-related railroad employee. After significant 
deliberations, FRA agreed that such extensive oversight would be 
costly, burdensome, and potentially overreaching given the statutory 
mandate for this rulemaking. This proposed rule contains a compromise 
that, while adding costs and burdens, is intended to be narrowly 
focused on closely monitoring compliance with the Federal railroad 
safety laws, regulations, and orders particular to FRA-regulated 
personal and work group safety. These particular compliance issues are 
not currently required to be as closely monitored as train movements 
and other railroad operations. For that reason, FRA would like to close 
that gap and require each employer to conduct periodic oversight 
covering compliance with the Federal railroad safety laws, regulations, 
and orders particular to FRA-regulated personal and work group safety.
    Paragraph (a) proposes the general periodic oversight provision 
and, as explained in the previous paragraph, limits the required 
testing and inspection oversight to the Federal railroad safety laws, 
regulations, and orders particular to FRA-regulated personal and work 
group safety. When FRA discussed this recommended provision with the 
RSAC, FRA clarified that the Federal railroad safety laws, regulations, 
and orders particular to FRA-regulated personal and work group safety 
that FRA is referring to are currently limited to 49 CFR part 214 
(Railroad Workplace Safety), part 218 (Railroad Operating Practices), 
and part 220 (Railroad Communications). Periodic oversight means 
regularly conducting both tests and inspections. In this context, a 
test is conducted by a qualified supervisor who changes the work 
environment so that one or more employees would need to act to prevent 
non-compliance. An inspection involves a qualified supervisor observing 
one or more employees at a job site and determining whether the 
employees are in compliance. FRA clarifies the RSAC recommendation to 
ensure that this provision requires that each employer must ``adopt and 
comply with a program'' to conduct the periodic oversight tests and 
inspections. FRA does not want to give the impression that the 
regulation would only require conducting the periodic oversight without 
adopting a written strategy explained in the training program filed

[[Page 6439]]

with FRA. FRA proposes that the program of periodic oversight must 
commence on the day the employer files its program with FRA; however, 
if the employer has not yet commenced operations when the program is 
filed, the employer would begin its oversight program on the same day 
that it commences operations. Paragraph (a) also reiterates that the 
purpose of gathering the data is to determine whether systemic 
performance gaps exist, and to determine if modifications to the 
training component of the program are appropriate to close those gaps.
    Paragraph (b) proposes to exempt railroads from conducting periodic 
oversight under this part on certified locomotive engineers and 
conductors as those safety-related railroad employees are already 
covered (or will soon be covered) by similar requirements found 
elsewhere in this chapter. The intent of the exemption is not to 
eliminate locomotive engineers and conductors from tests and 
inspections of Federal railroad safety laws, regulations, and orders 
particular to FRA-regulated personal and work group safety; instead, 
the intent is not to require a duplication of efforts already being 
made by railroads under other Federal requirements. Meanwhile, the 
results of the assessments required by parts 240 and 242 are required 
to be considered in determining if changes in a railroad's training 
programs are necessary to close any proficiency gaps found during those 
assessments. For example, inspections and tests might reveal that many 
locomotive engineers and conductors could have used a railroad-supplied 
cell phone during an operation in which the railroad supplied radio was 
not working; meanwhile, the employees claimed that they did not use the 
railroad-supplied cell phone because they were confused about when it 
was sanctioned for use versus when it was prohibited. Considering that 
example, an employer should review its part 220, subpart C training on 
electronic devices and decide whether there are ways to improve 
conveying the legal uses of the cell phone. The review and action are 
required by this part even though the periodic oversight was done to 
comply with one or more other parts of this chapter.
    Although only proposed paragraph (c) contains the heading 
``[r]ailroad oversight,'' proposed paragraphs (c) through (f) need to 
be read together in order to fully understand the proposed 
responsibilities for each railroad as it performs oversight. Paragraph 
(c) begins by proposing a requirement that each railroad identify 
supervisory employees, by category or subcategory, responsible for 
conducting periodic oversight tests and inspections for the safety-
related railroad employees that the railroad authorizes to perform 
safety-related duties on its property. This requirement includes 
contractors that may be working on the railroad's property, but there 
are a number of caveats to that portion of the requirement that are 
addressed by the exceptions in paragraph (c) and the subsequent 
paragraphs in this proposed section. For example, paragraph (c)(1) 
qualifies the requirement in paragraph (c) by stating that a railroad 
is not required to provide oversight for a contractor's safety-related 
railroad employees if that contractor is required to conduct its own 
periodic oversight because it meets the criteria specified in paragraph 
(g) of this section. The wording of paragraph (c)(1) differs slightly 
from the RSAC recommendation but the intent is the same and commenters 
should find the clarity of the proposed exception an improvement. The 
RSAC recommended language suggested that a railroad would have to 
figure out whether the contractor was performing the oversight in 
addition to meeting the paragraph (g) requirements of this section; in 
the RSAC recommendation, an undue burden would be placed on a railroad 
to determine if a contractor was actually performing the oversight. 
Paragraph (c)(2) provides an exception to a railroad providing periodic 
oversight to a contractor's employees when the railroad does not employ 
supervisory employees who are qualified as safety-related railroad 
employees in those categories or subcategories. For example, this 
second exception would apply when a railroad contracts out for all its 
signal system installation and maintenance work and does not employ any 
supervisory employees who are qualified to install or maintain signal 
systems. Paragraph (c)(3) provides that a railroad does not have to 
conduct oversight for any supervisory employee identified by the 
railroad as responsible for conducting oversight in accordance with 
this section. This third exception is based on an RSAC recommendation 
and the concern that it is often logistically difficult to arrange 
periodic oversight of supervisors who are the ones generally tasked 
with conducting oversight for non-supervisory employees. FRA agrees 
that periodic oversight can be meaningful without requiring oversight 
of those supervisory employees identified by the railroad as 
responsible for conducting oversight.
    Proposed paragraph (d) further limits a railroad's requirement to 
conduct periodic oversight of a contractor's employees. In situations 
where a railroad is obligated to conduct oversight of a contractor's 
employees, it is proposed that a railroad would not be required to 
perform operational tests of safety-related railroad employees employed 
by a contractor. As explained in the analysis to paragraph (a) of this 
section, a test is conducted by a qualified supervisor that changes the 
work environment so that one or more employees would need to act to 
prevent non-compliance. FRA accepted the RSAC recommendation that 
conducting operational tests, sometimes known as efficiency tests, on 
contractor employees who may be working on projects of varying 
duration, would put an undue burden on railroads. That is, it could be 
difficult to find opportunities to set up operational tests when 
contractors are doing a wide-variety of projects that may not be 
suitable for creating a test and for which there may be insufficient 
time to set up a test given other supervisory responsibilities.
    Although paragraph (d) does not require a railroad to conduct 
operational tests, this proposed provision does not prohibit it either. 
Additionally, paragraph (d) would still leave a railroad with the 
responsibility to conduct inspections of a contractor's employees if no 
exceptions applied. FRA accepts this RSAC recommendation because the 
inspection requirement should not be overly burdensome on railroads and 
yet still provide opportunities for effective oversight.
    A railroad's obligations to conduct oversight are further qualified 
by proposed paragraph (e). In order to relieve a railroad's burden, FRA 
accepts the RSAC recommendations that provide each railroad great 
latitude to conduct oversight when it is convenient for the railroad. 
Thus, in paragraph (e)(1), FRA proposes that a railroad may choose to 
require supervisory employees to perform oversight test and inspection 
sessions when these sessions are scheduled specifically to determine if 
safety-related employees are in compliance with Federal railroad safety 
laws, regulations, and orders particular to FRA-regulated personal and 
work group safety. For example, some maintenance-of-way worksites may 
have a mix of railroad employees and employees from multiple 
contractors. It may often be difficult to distinguish a railroad 
employee from a contractor. As long as the supervisory employee is 
qualified to conduct the oversight, the supervisory employee would have 
the discretion to test or inspect any of the safety-related railroad 
employees at the

[[Page 6440]]

worksite--regardless of what company employed the person.
    In paragraph (e)(2), FRA proposes that a railroad may choose to 
require supervisory employees to perform oversight of safety-related 
railroad employees employed by a contractor when a qualified railroad 
supervisory employee's duties place him or her in the vicinity of one 
or more safety-related railroad employees employed by a contractor and 
performing the oversight would result in minimal disruption of this 
supervisory employee's other assigned duties. Unlike the paragraph 
(e)(1) situation where the supervisor is at the worksite with the 
intention to perform oversight, paragraph (e)(2) addresses the 
situation where the supervisor is at the worksite and either observes 
non-compliance in his or her normal duties or finds him or herself with 
the time and opportunity to conduct the oversight.
    Paragraph (f) proposes that when any railroad finds evidence of 
contractor employee non-compliance during the periodic oversight it 
shall provide that employee and that employee's employer with details 
of the non-compliance. This proposed requirement is based on an RSAC 
recommendation and it reinforces the central purposes of periodic 
oversight. Those central purposes were elaborated on in the 
introductory paragraph for the analysis to this proposed section. In 
summary, the two central purposes of periodic oversight are to (1) take 
corrective action to ensure that specific employees know how to do the 
work properly and (2) review the oversight data as a whole to detect 
weaknesses that can be addressed by improvements to the training 
program. This proposed requirement is not referring to non-compliance 
with any type of employer rule; instead, the concern addressed by 
proposed paragraph (f) is intended to only require a railroad to notify 
a contractor of non-compliance with Federal railroad safety laws, 
regulations, and orders particular to FRA-regulated personal and work 
group safety. Although some Working Group members thought it would be 
sufficient if FRA addressed this issue in the preamble or this 
analysis, FRA has decided to make an affirmative change to the RSAC 
recommended regulatory text so that there would be no possible chance 
of confusion.
    Paragraph (g) proposes that each contractor be required to conduct 
periodic oversight tests and inspections of its safety-related railroad 
employees provided that certain conditions are met. If any condition is 
not met, the contractor is exempt from being required to perform the 
oversight. For instance, in paragraph (g)(1) there is a small business 
exemption for any contractor that employs 15 or fewer safety-related 
railroad employees. FRA accepts the RSAC recommendation in paragraph 
(g)(2) that a contractor should typically be responsible for periodic 
oversight of its own employees if it trains its own employees directly. 
If a contractor uses a railroad, a training organization, or a learning 
institution to train a category or subcategory of employees, then the 
contractor probably does not have the ``in-house'' expertise needed to 
conduct periodic oversight. Finally, paragraph (g)(3), proposes that a 
contractor would not be required to perform periodic oversight if the 
contractor does not employ supervisory safety-related railroad 
employees capable of performing the oversight. In the application of 
this proposed requirement, a contractor will need to determine whether 
it is exempt based on each occupational category or subcategory of 
safety-related railroad employees that the contractor employs. For 
example, a contractor would be required to perform oversight of its 
operators of roadway maintenance machines equipped with a crane if the 
contractor employs 16 or more safety-related railroad employees, trains 
its operators of roadway maintenance machines equipped with a crane by 
using one or more designated instructors it employs, and employs one or 
more supervisors capable of performing the oversight of those operators 
of roadway maintenance machines equipped with a crane. If the same 
contractor also employs only one employee capable of inspecting and 
maintaining wayside signal systems, then the contractor would not be 
required to conduct periodic oversight of that signal employee because 
the employer cannot meet the conditions in proposed paragraphs (g)(2) 
and (g)(3).
    Paragraph (h) proposes a requirement that would allow a railroad 
and a contractor to agree that the contractor will provide the periodic 
oversight, notwithstanding the requirements of this section that impose 
the requirements on either the railroad or the contractor. During the 
RSAC deliberations, FRA heard discussions that contracts between 
railroads and contractors will often specify which party is responsible 
for complying with certain laws, regulations, or orders where either 
party could potentially be held responsible. FRA recognizes that there 
may be some instances where a contractor would not be required under 
paragraph (g) to conduct periodic oversight but that it is willing to 
accept the oversight responsibility in order to secure a contract with 
a railroad. When devising this proposed option, the RSAC considered 
that this situation would otherwise be handled by the railroad 
providing the oversight and that the railroad would be expected to have 
supervisory employees qualified to do the oversight. With that 
understanding, the RSAC proposed that in order to accept this oversight 
responsibility, the contractor would need to address in its program 
that the railroad has trained the contractor employees responsible for 
training and oversight. In other words, the contractor may accept 
responsibility for the oversight, but not until the railroad trains the 
contractor's supervisory employee and qualifies that person to do the 
oversight; thus, the railroad has some obligation to ensure that the 
contractor's supervisory employees are capable of conducting the 
oversight before abdicating what would otherwise be the railroad's 
responsibility.
    Paragraph (i) proposes the requirements for retaining oversight 
records. At a minimum, it proposes that each employer that conducts 
periodic oversight in accordance with this section must keep a record 
of the date, time, place, and result of each test or inspection. 
Without such basic records, it would be impossible to audit an 
oversight program and detect whether it has been implemented. The 
records shall specify each person administering tests or inspections 
and each person tested so that audits can confirm that the people 
administering the oversight are qualified to perform the oversight. The 
record shall also provide a method to note whether the employee 
complied with the monitored duties, and any interventions used to 
remediate non-compliance; in keeping such records, audits can confirm 
that employers are using oversight to achieve the central purposes of 
oversight correcting individual behavior and improving training. 
Finally, FRA does not want to require duplication of oversight 
programs; thus, where periodic operational oversight is required in 
accordance with Sec.  217.9 of this chapter, a railroad may specify 
this overlap in its program submitted in accordance with part and is 
not required to duplicate that oversight.
    Paragraph (j) contains the statement that the records required 
under this section are subject to the requirements of Sec.  243.203, 
which is the section containing the recordkeeping requirements of this 
part. The RSAC recommended this paragraph and FRA agrees that it should 
be a requirement. However, FRA would appreciate

[[Page 6441]]

comments on whether this paragraph is necessary given that the 
requirements of Sec.  243.203 would apply to any records of period 
oversight required under this part even if paragraph (j) was deleted. 
FRA is willing to consider retaining paragraph (j) if commenters 
suggest that it provides a useful reminder that records of periodic 
oversight must be retained and that without the paragraph some 
employers might not grasp that the recordkeeping requirements apply 
under these circumstances.
    FRA acknowledges that it made several word and phrase changes in 
this section as compared to the RSAC recommendation. FRA believes that 
the intent of the proposed requirements has not changed and the changes 
are intended to address word choices that, when the words or phrases 
were used in RSAC meetings, were thought to be interchangeable. For 
example, in paragraph (b), FRA changed the term ``task proficiency 
oversight'' to simply ``periodic oversight.'' During the early RSAC 
deliberations, FRA proposed that each employee be observed to determine 
that each employee was proficient in performing safety-related tasks; 
as that requirement dropped out, the language needs to be standardized. 
Similarly, in paragraphs (e) and (e)(1), FRA changes the term 
``oversight inspection'' to simply ``oversight.'' As FRA has drafted 
this notice, it realized that we meant the term oversight to mean both 
tests and inspections, so the term oversight inspection would be too 
limiting. Paragraph (f) of the RSAC recommended language explained that 
a requirement would be the ``minimum'' action required under certain 
particular circumstances. FRA deletes this qualifier as this rule is 
intended to contain ``general minimum training and qualification 
requirements'' (see Sec.  243.1(b)) and thus it is unnecessary to 
restate this qualifier elsewhere in this proposed part. Also, in 
paragraph (i), FRA changed the RSAC suggested term ``periodic oversight 
and inspections'' to ``periodic oversight.'' Again, if the term 
periodic oversight refers to both tests and inspections, there is no 
reason to add the qualifier of ``and inspections.''
    FRA seeks comment on a potential scope issue that would allow some 
situations where safety-related railroad employees would not be subject 
to any oversight. Those situations would likely occur when a short line 
railroad hires a contractor with 15 or fewer safety-related railroad 
employees. It is possible that the short line railroad would not have 
the supervisors with the expertise necessary to conduct the oversight 
and the contractor would be too small to be required to do it 
themselves per the proposed requirements. During the RSAC 
deliberations, FRA acknowledged that the recommendation included a 
narrow number of employers that would not be covered. FRA expressed 
concern that including every employer would place a debilitating burden 
on the smallest employers.
Section 243.207 Annual Review
    In the analysis to the previous section, the opening paragraph 
mentions that one of the central purposes in conducting periodic 
oversight is to look at all of the oversight data as a whole to detect 
patterns of non-compliance. Additionally, if other relevant data is 
analyzed on a regular basis, that data could also be used to detect 
non-compliance trends. The purpose of detecting these trends is so that 
employers can determine if knowledge or performance gaps exist in the 
current training and use that information to plot ways to fill in those 
gaps. For this reason, FRA is proposing in paragraph (a) of this 
section that each railroad with at least 400,000 total employee work 
hours per year must conduct an annual review in accordance with the 
requirements of this section. This proposed section only applies to 
railroads except that, in accordance with paragraphs (a) and (f), 
contractors must use any information provided by railroads to adjust 
training specific to the Federal railroad safety laws, regulations, and 
orders particular to FRA-regulated personal and work group safety.
    It is likely that in most instances, it would be determined that 
the current method of formal training covers the subject matter, but 
some aspect of the training could be improved. For example, it might be 
determined that the training does not place enough emphasis on 
compliance with one or more specific tasks. Greater emphasis could be 
placed on the task by increasing the amount of time covering how to 
perform the task and the problems that could be encountered when 
conducting the task. The course materials should be reviewed to see if 
they could be improved for clarity. In other instances, especially when 
the pattern of non-compliance is detected in a safety-related task, 
adding an OJT component or adding more repetitions within the OJT may 
increase an employee's proficiency and lead to more lasting compliance. 
In still other instances, adding opportunities for individualized 
instruction and feedback could cut down on non-compliance. It could 
also be determined that a particular instructor is ineffective, or some 
other aspect of the way the course is taught is not conducive to 
learning.
    There are certainly a number of ways to improve training and that 
is why it is important that each person a railroad designates to 
conduct the annual review should be familiar with the training program 
filed with FRA. FRA does not propose any knowledge requirements on the 
designated person requirement in paragraph (c) and invites comment on 
whether there should be any requirements. Instead, the proposal 
considers that the person designated to conduct the review will need to 
have extensive information about the training program and individual 
course material, as well as direct access to shape the methods of 
delivery. As previously explained, the annual review is intended to 
effect change in how training is delivered to improve performance and 
should not be viewed as the end itself. In other words, if the annual 
report identifies gaps, the report itself has little value unless it is 
used to change the training program in order to improve knowledge 
acquisition and safety performance.
    Although proposed paragraph (a) would eliminate the annual review 
requirement for those short line railroads with less than 400,000 total 
employee work hours per year, paragraph (b) contains the proposed 
requirement that each railroad that is required to conduct periodic 
oversight in accordance with Sec.  243.205 of this part shall also be 
required to conduct an annual review, as provided in this section, and 
shall retain, at its system headquarters, one copy of the written 
annual review. This proposed paragraph is based on an RSAC 
recommendation. The intention is that, except for the smallest 
railroads, any railroad that conducts periodic oversight must also 
conduct an annual review.
    The analysis necessary to do the annual review must be put in 
writing to prove that it was conducted. It would be expected that the 
document would speak for itself in that it would describe what data the 
review is based on and how the conclusions are reached. As with other 
written records required by this proposed part, it would be permissible 
for the annual review to be kept electronically pursuant to the 
recordkeeping requirements found in Sec.  243.203(e) of this proposed 
part. Please note that the written annual review and the records 
supporting the analysis in the annual review would need to be 
maintained for 3 calendar years after the end of the calendar year to 
which the annual review relates and made available to FRA pursuant to

[[Page 6442]]

Sec.  243.203(c) and (d) of this proposed part.
    FRA accepts the RSAC recommendation that a system-wide annual 
review should be sufficient, even for those railroads large enough to 
have divisions. Some railroads with divisions may choose to conduct 
division-wide annual reviews in addition to system-wide reviews. It is 
possible that a knowledge or performance gap could be identified in one 
division but not system-wide. Railroads large enough to have divisions 
may want to target modifications to training for safety-related 
railroad employees in certain divisions that face particular hazards or 
trend toward non-compliance, without unnecessarily incurring additional 
training expenses system-wide. However, requiring that each railroad 
address gaps on a division level would introduce a level of complexity 
that would likely go beyond what is necessary to implement an effective 
annual review. After all, each training program is based on training 
provided system-wide, not by division.
    Paragraph (c) proposes a requirement that each railroad designate 
one or more person to conduct the written annual review. Although the 
proposed rule does not specify who that person must be, FRA envisions 
that each railroad would choose one or more managers at the system-wide 
level with significant knowledge of the railroad's training and 
oversight programs. For some railroads, a high level manager 
representing each discipline (e.g., track, mechanical, signal, 
operations, etc.) might participate. However, FRA only proposes 
requiring that at least one person be designated because the agency 
wants to be able to address any questions related to the annual review 
with the person that the railroad designates as responsible for 
conducting the written review.
    Proposed paragraph (c) also contains a list of types of data that 
must be analyzed in accordance with the annual review. Given prior 
analysis discussion regarding the purpose of periodic oversight, it 
should come as no surprise that paragraph (c)(1) proposes that periodic 
oversight data required by Sec.  243.205 must be analyzed for purposes 
of the annual review.
    Paragraph (c)(2) proposes a requirement that reportable accident/
incident data, as defined in part 225 of this chapter, must also be 
analyzed for purposes of the annual review. The inclusion of accident/
incident data generated some discussion at the RSAC Working Group 
meetings. During those meetings, FRA suggested that railroads also 
consider ``accountable'' injuries, illnesses, and rail equipment 
accidents. Accountable incidents may be attributable to work exposure 
or events, but are not required to be reported to FRA; consequently, 
accountable incidents may generally be categorized as those incidents 
that pose a lesser safety hazard than those incidents resulting in 
reportable accidents. Railroads also argued that information 
attributable to the causes of reportable accidents are less likely to 
be controversial compared to the causes of accountable incidents. 
Although FRA would encourage each railroad to consider accountable 
incident data when conducting an annual review, FRA accepts the RSAC 
recommendation to limit the requirements for accident data analysis to 
reportable incidents. Overall, FRA's purpose in requiring analysis of 
these types of data is to improve training in ways that reduce the 
number of reportable accidents/incidents. Thus, by addressing the 
reportable incidents in the annual review, it is proposed that each 
railroad will focus on this goal.
    Paragraph (c)(3) proposes that each railroad consider FRA 
inspection report data in its annual review. Each year, FRA conducts 
thousands of audits and inspections of railroad safety compliance. Many 
of those inspections find instances of non-compliance, although not all 
of those non-complying instances result in FRA taking enforcement 
action as FRA may exercise enforcement discretion. See 49 CFR part 209, 
app. A. Whether or not FRA took enforcement action should be irrelevant 
to the analysis necessary for detecting knowledge or performance gaps 
for a railroad's annual review. The thrust of FRA's argument is that, 
as a safety agency, we often find safety problems--either reaffirming 
that the railroad has a compliance problem or uncovering a concern 
previously undetected by the railroad's compliance officers. FRA 
recognizes that each railroad will often take remedial action to 
immediately correct non-compliance, whether or not FRA requires that 
the remedial action be taken. See 49 CFR part 209, subpart E. In the 
context of this proposed rule, FRA wants to require that each railroad 
take the additional step of looking for trends of non-compliance and 
how training courses or programs can be adjusted to stop those trends 
from getting worse. FRA heard some complaints during the RSAC Working 
Group meetings that not every railroad currently has an electronic 
database or other method to track non-compliance detected by FRA 
inspections. For those railroads that may have difficulty detecting 
such trends with FRA inspection data, FRA suggests that those railroads 
contact FRA for help as FRA anticipates that it could readily provide 
meaningful inspection data for analysis.
    Paragraph (c)(4) proposes that the annual review include analysis 
of employee training feedback received though a course evaluation 
process, but only if such feedback is available. It is anticipated that 
most training courses and programs have built in mechanisms for 
obtaining employee feedback. For example, it is common for a survey to 
be handed out at the end of a training course and for participants to 
rank the quality of the course instructor, the training materials, and 
the training generally. There is also typically an opportunity for 
participants to comment about any aspect of the training by writing in 
a comment. The proposed rulemaking is not intended to require employee 
participant feedback where none existed previously; instead, the 
proposal is to use that information, when it is being gathered, and to 
use it productively to further identify gaps in knowledge or 
performance. FRA would expect that this information would be used for 
similar purposes now if it is already being gathered. By including the 
analysis of the employee feedback in the annual review, the feedback 
may be used to strengthen or weaken the argument for a modification to 
a training course or program.
    Paragraph (c)(5) proposes that the annual review include analysis 
of feedback received from labor representatives, but only if such 
feedback is available. Like the employee training feedback through a 
course evaluation, the feedback received from labor representatives may 
be subjective but of significant value. Labor representatives may be 
able to act as a conduit for comments for an employee that is concerned 
about raising the issue directly to the railroad. In addition, labor 
representatives may detect non-compliance trends or learning 
difficulties among a union's members through conversations or surveys. 
Furthermore, where a union represents employees on more than one 
railroad, the labor representatives may have knowledge about best 
practices on other railroads that may be transferrable to the training 
program of another railroad. For all these reasons, the RSAC Working 
Group recommended, and FRA accepted, this proposed requirement.
    Paragraph (d) proposes a requirement for the railroad's designated 
person to coordinate any necessary adjustments to the initial and 
refresher training programs based upon the results of the annual 
review. This proposed

[[Page 6443]]

requirement is a call for action when the results of the annual review 
strongly suggest changes are necessary in the interests of improving 
the program. FRA does not expect that every course or program will 
require an adjustment every year. It is expected that some trends or 
data may be inconclusive. In other instances, a trend or gap may be 
identified but an effective way to address the problem through a 
modification to the training program or a particular course is not 
found. Although FRA would prefer that each railroad take some 
affirmative action to address knowledge or performance gaps, FRA does 
not intend to take enforcement action against a railroad that 
acknowledges a trend but decides to defer modifications to training in 
order to take the time to properly assess the causes of the underlying 
non-compliance and determine the best options available to improve 
compliance.
    Paragraph (d) also contains the railroad's option to allow the 
annual review required under this section to be conducted in 
conjunction with any periodic review required under part 217 of this 
chapter. FRA is not looking for railroads to duplicate reviews already 
required under other Federal regulations. See 49 CFR 217.9(e) and (f). 
It is expected that the part 217 reviews could be incorporated into the 
proposed reviews required by this section. However, compliance with 
part 217 of this chapter does not automatically ensure complete 
compliance with this section as it mainly would be used only to comply 
with paragraph (c)(1) of this section.
    Proposed paragraph (e) contains a requirement for a railroad to 
notify any contractor it utilizes about the contractor amending its 
training program if the railroad's annual review of its own program 
reveals information that would also improve the contractor's program. 
The railroad must determine whether the safety-related railroad 
employees supplied by each contractor it utilizes are trained by the 
contractor or some other entity. If a contractor trains its own safety-
related railroad employees, the railroad will have a duty to provide 
the contractor with the information needed to make the same adjustments 
in the contractor's program that was made in the railroad's program.
    Likewise, paragraph (f) requires that contractors have a duty to 
use any information provided by railroads to adjust training specific 
to the Federal railroad safety laws, regulations, and orders particular 
to FRA-regulated personal and work group safety. If the information the 
contractor receives from a railroad is not so narrowly focused, the 
contractor may choose to ignore the information. FRA does not want 
contractors to receive information and not act. When RSAC made this 
recommendation, it did not consider that there could a situation where 
a contractor believes that making the modification requested by the 
railroad is contrary to safety or is otherwise not beneficial. FRA 
seeks comment regarding whether this proposed section should contain a 
provision explaining what a contractor should do if it disagrees with 
the railroad's information that a modification to the training program 
is necessary.
    Paragraph (g) proposes a deadline of September 1 of each calendar 
year for each railroad, to which this section applies, to complete its 
annual review for the previous calendar year. FRA initially suggested a 
March 1 deadline, but during the RSAC Working Group meetings some 
railroads suggested September 1 would work better based on their 
current training schedules. That is, the major railroads conduct all 
regularly scheduled training during the first half of each year. 
Consequently, it would be difficult to conduct annual reviews during 
the first half of each year as the people likely designated to help 
with the review would be busy implementing the training. Also, it would 
be difficult for each railroad to immediately implement any 
modifications to a training program that is already underway. By 
requiring the annual review to be completed no later than September 1, 
each railroad should have several months to implement any modifications 
in the training programs prior to January 1 of each calendar year.
Section 243.209 Railroad Maintained List of Contractors Utilized
    One issue that was repeatedly raised during the RSAC meetings was 
that employees of contractors routinely work alongside employees of 
railroads. From an enforcement viewpoint, it is essential that FRA be 
able to identify which employees work for railroads and which for 
contractors. When an employee works for a contractor, FRA can sometimes 
find it an additional burden to figure out basic contact information 
for the contractor employer. This proposed section is intended to 
require each railroad to maintain a list of the contractors it uses and 
some basic contact information about each of those contractors.
    Paragraph (a) proposes that each railroad utilizing contractors to 
supply the railroad with safety-related railroad employees shall 
maintain a list, at its system headquarters, with information regarding 
each contractor utilized. FRA provides for an exception to this 
requirement when two conditions are met. The first condition for the 
exception to apply is that the railroad must qualify each of the 
contractor's safety-related railroad employees that it uses, and the 
second condition requires that the railroad maintain the training 
records for each of the contractor's safety-related railroad employees 
utilized. FRA is willing to permit this exception because a railroad 
that is both qualifying and keeping training records for the 
contractor's employees is, in effect, responsible for the contractor's 
training under this part. Thus, if there is a training issue that 
arises, FRA may be able to address its concern directly with the 
railroad.
    Paragraph (b) proposes the three items that must be contained in a 
railroad's listing of contractors. It is proposed that the listing 
include (1) the full corporate or business name of the contractor, (2) 
the contractor's primary business and email address, and (3) the 
contractor's primary telephone number. With this basic information, FRA 
should be able to track down a contractor to follow-up during any audit 
or investigation.
    Paragraph (c) proposes that the information contained in the 
listing be continuously updated as additional contractors are utilized, 
and no contractor information shall be deleted from the list unless the 
contractor has not been utilized for 3 years from the end of the 
calendar year the contractor was last utilized. The proposed 
requirements are intended to keep information on the list for a 
reasonable length of time but allow removal when the information 
becomes stale. This information should likely not be necessary 3 years 
from the end of the calendar year the contractor was last utilized as 
most audits or investigations would take place inside that time frame.
    FRA acknowledges to its RSAC members that the wording of this 
section was changed from the RSAC recommendation; however, the intent 
of the changes was to improve clarity and not change the intent. For 
example, some language in the RSAC recommendation was worded in the 
negative; this proposed rule switches the wording so it reads in the 
positive and is easier to understand. Also, as FRA acknowledged earlier 
in this analysis, FRA deleted the RSAC's recommended paragraph (c) and 
edited Sec.  243.203(b)(6) to capture the same concept; the provision 
contained a good idea, but seemed out of place. The removed 
recommendation would have required that if a railroad elects to train 
some or all of a contractor's safety-

[[Page 6444]]

related railroad employees, the listing should also include the course 
name and unique identifier for each course so designated and a listing 
of all contractor employees trained. FRA deletes that recommended 
requirement because the burden for maintaining records should fall on 
the employer, not the railroad. FRA improved on the RSAC recommendation 
by proposing that the contractor will need to maintain training records 
of its employees whether those records are received from another 
business (which could be a railroad), a training organization, or a 
learning institution. Railroads that are in the business of training 
safety-related railroad employees from other railroads or contractors 
would need to maintain those records in order to retain such training 
business from other employers.
Appendix A
    In the final rule, Appendix A will contain a penalty schedule 
similar to that FRA has issued for all of its existing rules. Because 
such penalty schedules are statements of policy, notice and comment are 
not required prior to their issuance. See 5 U.S.C. 553(b)(3)(A). 
Nevertheless interested parties are welcome to submit their views on 
what penalties may be appropriate.

VIII. Regulatory Impact and Notices

A. Executive Order 12866, Executive Order 13563, and DOT Regulatory 
Policies and Procedures

    This proposed rule is a significant regulatory action within the 
meaning of Executive Order 12866, Executive Order 13563, and the U.S. 
Department of Transportation's regulatory policies and procedures (DOT 
Order 2100.5 dated May 22, 1980; 44 FR 11034, Feb. 26, 1979). FRA has 
prepared and placed in the docket a regulatory impact analysis (RIA) 
addressing the economic impact of this proposed rule.
    The RIA details estimates of the costs likely to occur over the 
first twenty years after its effective date and a breakeven analysis 
that details the reductions in human factor-caused accidents that would 
be necessary for the proposed rule to breakeven in the same timeframe. 
Informed by its analysis of the economic effects of this proposed rule, 
FRA concludes that this proposed rule would likely result in positive 
net benefits. FRA believes the proposed rule would achieve positive net 
benefits primarily through requiring that training programs include 
``hands-on'' training components, which scientific literature has shown 
to be much more effective at reducing human factor-caused accidents 
than traditional training.\1\ The costs that may be induced by this 
proposed rule over the twenty-year period considered include: the costs 
of revising training programs to include ``hands-on'' training where 
appropriate, as well as the costs of creating entirely new training 
programs for any employer that does not have one already; the costs of 
customizing model training programs for those employers that choose to 
adopt a model program rather than create a new program; the costs of 
annual data review and analysis required in order to constantly improve 
training programs; the costs of revising programs in later years; the 
costs of additional time new employees may have to spend in initial 
training; the costs of additional periodic oversight tests and 
inspections; the costs of additional qualification tests; and the costs 
of additional time all safety-related railroad employees may have to 
spend in refresher training. The summed total of the estimated costs 
over the first twenty years of this proposed rule equals about $81.6 
million, discounted at a 3 percent discount rate, and about $64.1 
million, discounted at a 7 percent discount rate (in 2010 dollars).
---------------------------------------------------------------------------

    \1\ For a review and citation information of this scientific 
literature, please see the Regulatory Impact Analysis that 
accompanies this NPRM and that has been placed in the docket.
---------------------------------------------------------------------------

    The table below summarizes the costs considered in the RIA, summed 
over the twenty-year period analyzed and discounted to present value 
using 3 percent and 7 percent discount rates.

------------------------------------------------------------------------
                                            Twenty-year     Twenty-year
              Cost element                   total (3%       total (7%
                                          discount rate)  discount rate)
------------------------------------------------------------------------
Creating and revising training programs       $1,999,728      $1,564,484
 and performing annual reviews, original
 program users..........................
Creating and revising training programs          179,116         129,245
 and performing annual reviews, model
 program users..........................
Creating and revising training programs,       4,751,465       3,428,505
 model program users with <400k annual
 labor hours............................
Customizing model programs..............         910,245         842,919
Designating employees by class or craft.         771,316         709,480
Additional time in initial training.....      16,539,877      12,235,174
Additional time in refresher training...      25,456,709      18,831,293
Periodic oversight tests and inspections      15,242,583      11,275,517
Additional qualification testing........      15,741,416      15,075,836
                                         -------------------------------
    Total...............................      81,592,455      64,092,452
------------------------------------------------------------------------

    FRA has performed a breakeven analysis for this proposed rule. FRA 
expects that improving training primarily by requiring the inclusion of 
``hands-on'' elements where appropriate will reduce the number of human 
factor-caused railroad accidents. Rather than assume any specific 
reduction will be achieved, FRA has calculated the percentage of human 
factors accidents that would need to be prevented by this proposed rule 
to at least offset the total costs of the proposed rule. Reductions in 
human factors accidents would result in fatalities avoided, injuries 
avoided, and property damage avoided, all of which can be monetized and 
quantified using FRA safety data.

------------------------------------------------------------------------
       List of benefits of reducing human factor-caused accidents
-------------------------------------------------------------------------
Fatalities avoided
Injuries avoided
Property damage avoided
------------------------------------------------------------------------

In addition, human factor-caused railroad accidents can result in train 
delay and environmental damages, emergency response, but FRA does not 
have data with which to estimate those costs. Human factors also play a 
role in limiting the consequences of accidents--in other words reducing 
the severity of their outcomes. Some FRA regulations are focused on 
this and thus this proposed rule has the potential to result in 
improvements in this area as well.
    Evaluated at either the three or seven percent discount rate, FRA 
estimates that this proposed rule will break even if it results in a 
twenty-year total

[[Page 6445]]

reduction in human factors accidents of 7.3 percent using a 3 percent 
discount rate, and a reduction of 7.1 percent using a 7 percent 
discount rate. The table below details the total present discounted 
annual costs of the proposed rule. The table also shows the total 
present discounted annual costs of human factors accidents that would 
be incurred over the next 20 years without this proposed rule, as well 
as the percent reduction in human factors accidents that would be 
necessary for the accident reduction benefits to justify implementation 
of the proposal. This calculation takes into account various recent and 
concurrent initiatives to address human factor-caused accidents 
including implementation of positive train control systems, revisions 
to hours of service regulations, development of proposed conductor 
certification standards and a proposed roadway worker protection rule, 
and implementation of programs to address fatigue and electronic device 
distraction among others.

--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                 Percent                                                                     Percent
  Total present discounted      Total present discounted      reduction for     Total present discounted      Total present discounted    reduction for
  cost of HF accidents (3%      costs (3% discount rate)      breakeven (3%     cost of HF accidents (7%      costs (7% discount rate)    breakeven (7%
       discount rate)                                        discount rate)          discount rate)                                       discount rate)
--------------------------------------------------------------------------------------------------------------------------------------------------------
           $1,246,926,928                   $81,592,455               7.3                $1,020,012,541                   $64,092,452              7.1
--------------------------------------------------------------------------------------------------------------------------------------------------------

    Given the role and prevalence of human factor-caused accidents in 
the railroad industry and the relationship between quality training and 
safety, FRA believes it is not unreasonable to expect that improvements 
in training as proposed in this rule would yield safety benefits that 
will exceed the costs. FRA requests comments, including any relevant 
data and information, on all aspects of the RIA.

B. Regulatory Flexibility Act and Executive Order 13272; Initial 
Regulatory Flexibility Assessment

    To ensure that the potential impact of this rulemaking on small 
entities is properly considered, FRA developed this rule in accordance 
with Executive Order 13272 (``Proper Consideration of Small Entities in 
Agency Rulemaking'') and DOT's policies and procedures to promote 
compliance with the Regulatory Flexibility Act (5 U.S.C. 601 et seq.). 
The Regulatory Flexibility Act requires an agency to review regulations 
to assess their impact on small entities. An agency must conduct an 
initial regulatory flexibility analysis unless it determines and 
certifies that a rule is not expected to have a significant economic 
impact on a substantial number of small entities. FRA has not 
determined whether this proposed rule would have a significant economic 
impact on a substantial number of small entities. Therefore, FRA is 
publishing this initial regulatory flexibility analysis to aid the 
public in commenting on the potential small business impacts of the 
proposals in this NPRM. We invite all interested parties to submit data 
and information regarding the potential economic impact that would 
result from adoption of the proposals in this NPRM. We will consider 
all comments received in the public comment process when making a 
determination in the Final Regulatory Flexibility Assessment.
    As discussed in earlier sections of this preamble, FRA is proposing 
regulations to establish minimum training standards for each category 
and subcategory of safety-related railroad employee. The proposed rule 
would require each railroad or contractor that employs one or more 
safety-related railroad employee to develop and submit a training 
program to FRA for approval and to designate the qualification of each 
such employee. As part of that program, most employers would need to 
conduct periodic oversight of their own employees to determine 
compliance with Federal railroad safety laws, regulations, and orders 
applicable to those employees. The proposal would also require most 
railroads to conduct annual written reviews of their training programs 
to close performance gaps. Furthermore, FRA proposes specific training 
and qualification requirements for operators of roadway maintenance 
machines that can hoist, lower, and horizontally move a suspended load. 
Finally, FRA proposes minor clarifying amendments to the existing 
training requirements for railroad and contractor employees that 
perform brake system inspections, tests, or maintenance.
Description of the Reasons That Action by the Agency Is Being 
Considered
    Pursuant to the Rail Safety Improvement Act of 2008 Sec.  401(a), 
Public Law 110-432, 122 Stat. 4883, (Oct. 16, 2008) (codified at 49 
U.S.C. 20162) Congress required the Secretary of Transportation to 
establish minimum training standards for safety-related railroad 
employees and the submission of training plans from railroad carriers, 
contractors, and subcontractors for the Secretary's approval.
Succinct Statement of the Objectives of, and Legal Basis for, the 
Proposed Rule
    FRA is addressing the RSIA's statutory mandate to establish minimum 
training standards for safety-related railroad employees and the 
submission of training plans in this rulemaking by proposing that each 
employer of one or more safety-related railroad employees, whether the 
employer is a railroad, contractor, or subcontractor, be required to 
train and qualify each such employee on the Federal railroad safety 
laws, regulations, and orders that the employee is required to comply 
with, as well as any relevant railroad rules and procedures promulgated 
to implement those Federal railroad safety laws, regulations, and 
orders. The proposal would also require that the training program 
developed by each employer be submitted to FRA for approval.
    The scientific literature on training in general and FRA's own 
experience with training in the railroad industry show a clear link 
between the quality of training programs--including whether training is 
engaging or ``hands-on''--and safety. Even though rail transportation 
in the United States is generally an extremely safe mode of 
transportation and rail safety has been improving, well-designed 
training programs have the potential to further reduce risk in the 
railroad environment.
    The main goal of this proposal is to improve railroad safety by 
ensuring that safety-related employees receive appropriate training 
that takes into consideration the type of activities they perform and 
analysis of relevant data.
Description of and, Where Feasible, an Estimate of the Number of Small 
Entities To Which the Proposed Rule Will Apply
    ``Small entity'' is defined in 5 U.S.C. 601 (Section 601). Section 
601(3) defines a ``small entity'' as having the same meaning as ``small 
business concern'' under Section 3 of the Small Business Act. This 
includes any small business concern that is independently owned and 
operated, and is not

[[Page 6446]]

dominant in its field of operation. Section 601(4), likewise includes 
within the definition of ``small entities'' not-for-profit enterprises 
that are independently owned and operated, and are not dominant in 
their fields of operation. Additionally, section 601(5) defines ``small 
entities'' as governments of cities, counties, towns, townships, 
villages, school districts, or special districts with populations less 
than 50,000. The U.S. Small Business Administration (SBA) stipulates in 
its ``Size Standards'' that the largest a railroad business firm that 
is ``for-profit'' may be, and still be classified as a ``small 
entity,'' is 1,500 employees for ``Line Haul Operating Railroads'' and 
500 employees for ``Switching and Terminal Establishments.''
    Federal agencies may adopt their own size standards for small 
entities in consultation with SBA and in conjunction with public 
comment. Pursuant to that authority, FRA has published a final policy 
that formally establishes ``small entities'' as railroads which meet 
the line haulage revenue requirements of a Class III railroad.\2\ The 
revenue requirements are currently $20 million or less in annual 
operating revenue. The $20 million limit (which is adjusted by applying 
the railroad revenue deflator adjustment) \3\ is based on the Surface 
Transportation Board's (STB) threshold for a Class III railroad 
carrier. FRA is using the STB's threshold in its definition of ``small 
entities'' for railroads affected by this rule. FRA has also adopted 
the STB threshold for Class III railroad carriers as the size standard 
for railroad contractors.\4\ FRA estimates that 720 railroads would be 
affected by this proposed rule. This number equals the number of 
railroads that reported to FRA in 2009, minus those railroads that are 
tourist, scenic, or historic railroads and are not part of the general 
system (these railroads are exempted from the proposed rule). Of those 
railroads, 46 are Class I, Class II, commuter, and intercity passenger 
railroads. The remaining 674 railroads are therefore assumed to be 
small railroads for purposes of this assessment. The proposed rule 
would affect all employers of safety-related railroad employees, which, 
in addition to railroads of all sizes, includes contractors and 
subcontractors who are engaged to perform safety-related duties on 
railroads. FRA assumes in its RIA that approximately 795 railroad 
contractors and subcontractors exist, based on conversations with 
industry experts. That figure of 795 includes 155 well-established 
track and signal maintenance contractors, 500 very small (1-4 employee) 
or relatively new track and signal maintenance contractors, and another 
140 contractors who do not perform track or signal maintenance. FRA has 
previously clarified its definition of small entity with respect to 
contractors, stating that FRA defines railroad contractors that meet 
the income level established for Class III railroads as small entities. 
For purposes of this analysis, FRA conservatively assumes that about 10 
of these contractors have annual revenues in excess of $20 million, 
leaving 785 contractors that are considered small entities that may be 
affected by this proposed rule. FRA requests comments on this 
assumption and any information regarding the number of small 
contractors impacted by this proposal.
---------------------------------------------------------------------------

    \2\ See 68 FR 24891 (May 9, 2003); 49 CFR part 209, app. C.
    \3\ For further information on the calculation of the specific 
dollar limit, please see 49 CFR part 1201.
    \4\ See 68 FR 24891 (May 9, 2003)
---------------------------------------------------------------------------

    Thus, the total estimate of the number of small entities that the 
proposed rule may affect equals 674 Class III railroads plus 
approximately 785 contractors, totaling approximately 1,459 entities.
Description of the Projected Reporting, Recordkeeping, and Other 
Compliance Requirements of the Proposed Rule, Including an Estimate of 
the Classes of Small Entities That Will Be Subject to the Requirement 
and the Type of Professional Skills Necessary for Preparation of the 
Report or Record
    The proposed rule would include several recordkeeping requirements 
that may pertain to small entities. Each employer would be required to 
maintain records that form the basis of the training and qualification 
determinations of each operator of roadway maintenance machines 
equipped with a crane that it employs. Each employer would be required 
to maintain records to demonstrate the qualification status of each 
safety-related railroad employee that it employs. Each employer that 
conducts periodic oversight in accordance with the proposed rule would 
be required to keep a record of the date, time, place, and result of 
each test or inspection. Each railroad utilizing contractors to supply 
the railroad with safety-related railroad employees would be required 
to maintain a list, at its system headquarters, with information 
regarding each contractor utilized unless: FRA believes that a 
professional or administrative employee would be capable of maintaining 
these records. FRA requests comment on whether other skills beyond 
those typical of a professional or administrative employee would be 
necessary for the above recordkeeping requirements.
    The proposed rule would require employers of safety-related 
railroad employees to submit a training program to FRA for approval. 
Each employer's training program will be required to include on-the-job 
training where appropriate and practicable. However, FRA has given 
employers the option to adopt a model program, and FRA assumes in this 
assessment that nearly all small entities will adopt model programs 
rather than hire training experts to develop a complete, unique 
program. However, for the sake of the RIA and this assessment, FRA 
assumes that any entity that adopts a model program would customize the 
model program, if necessary, and FRA also assumes that such 
customization should require about 8 hours on average.
    Following the initial submission of the training program, employers 
of safety-related railroad employees would be required to revise the 
training programs if necessary. The decision on whether to revise a 
training program would be required annually and would depend on changes 
in the workplace environment. When new laws, regulations, technologies, 
procedures, or equipment are introduced into the workplace, for 
example, it may be appropriate for training programs to be modified 
accordingly. FRA assumes in the RIA accompanying the NPRM that some 
annual revision of training programs will be required every year for 
all employers of safety-related railroad employees. Furthermore, these 
annual revisions would be required to reflect the results of annual 
reviews of safety data for all entities with 400,000 or more annual 
labor hours. For purposes of this analysis, FRA assumes that 4 Class 
III railroads and 3 small contractors will surpass this threshold. FRA 
requests comments on this assumption.
    Specifically, as in the RIA, FRA assumes that 2 Class III railroads 
would choose to develop their own programs, while the remaining 674 
Class III railroads adopt model programs, and FRA also believes that 
all 785 small contractors would adopt model programs. As the table 
below shows, all of the hours spent creating or revising training 
programs are assumed to be incurred by training experts or craft-
specific technical experts at a cost $56.84 per hour, which is the 
average wage rate in 2010 dollars of Professional and Administrative 
employees for Class I railroads as reported to the Surface 
Transportation Board, multiplied by 1.75 to cover overhead.

[[Page 6447]]



                    Costs of Compliance With Training Program Requirements for Small Entities
----------------------------------------------------------------------------------------------------------------
                                                                   Cost per hour                  Cost per small
         Small entity group                     Action                  ($)       Hours required    entity  ($)
----------------------------------------------------------------------------------------------------------------
Own-program adopters (2 Class III    Create or revise and submit           56.84             160        9,094.40
 railroads).                          initial program in first
                                      year.
Own-program adopters (2 Class III    Perform annual revisions in           56.84              40        2,273.60
 railroads).                          subsequent years, annual
                                      costs, not discounted.
Model program adopters with 400,000  Customize and submit                  56.84               8          454.72
 or more annual labor hours (4        relevant parts of model
 Class III railroads, 3               program in first year.
 contractors).
Model program adopters with 400,000  Perform annual review and             56.84              20        1,136.80
 or more annual labor hours (4        annual revisions in
 Class III railroads, 3               subsequent years, annual
 contractors).                        costs, not discounted.
Model program adopters with less     Customize and submit                  56.84               8          454.72
 than 400,000 annual labor hours      relevant parts of model
 (668 Class III railroads, 785        program in first year.
 contractors).
Model program adopters with less     Perform annual revisions in           56.84               4          227.36
 than 400,000 annual labor hours      subsequent years as
 (668 Class III railroads, 785        necessary, annual costs,
 contractors).                        not discounted.
----------------------------------------------------------------------------------------------------------------

    While the proposed rule does not explicitly require any increase in 
the amount of time that must be spent in initial or refresher training, 
such increases may arise for some small entities if those entities add 
substantial amounts of on-the-job training to training programs. In the 
RIA, FRA assumes that new hires would require one extra day of initial 
training as a result of the proposed rule, and that one additional hour 
of refresher training would be required on average for each employee. 
However, many small entities typically hire previously qualified 
safety-related railroad employees who, for example, have previously 
been trained by a Class I or Class II railroad. It is thus not clear to 
what extent the cost of additional initial training--to whatever extent 
that is induced by the proposed rule--would be borne by small entities. 
FRA requests comment on the prevalence of initial training of safety-
related railroad employees by small entities.
    Small entities would likely have to incur the cost of additional 
refresher training, to whatever extent that would be required. FRA 
assumed one extra hour would be required every three years for each 
employee, at a cost of $47.46 per hour. FRA requests comment on the 
amount of additional refresher training small entities would undertake 
as a result of this proposed rule, and on whether $47.46 per hour of 
additional refresher training seems appropriate for small entities.
Identification, to the Extent Practicable, of all Relevant Federal 
Rules That May Duplicate, Overlap, or Conflict With the Proposed Rule
    FRA has attempted to avoid any duplication, overlap, or conflict 
with other federal rules. The proposed rule, at Sec.  243.103(b), 
states, ``An employer that is required to submit one or more similar 
training programs or plans in accordance with requirements found 
elsewhere in this chapter may choose to cross-reference these other 
programs or plans in the program required by this part rather than 
resubmitting that similar program or plan. When any such similar 
program or plan did not include the OJT [on-the-job] training 
components specified in paragraph (a)(3) of this section, the employer 
shall supplement its program in accordance with this part by providing 
that additional information.'' The preamble lists, as examples of other 
training programs or plans that were previously required elsewhere in 
49 CFR, 214.307, 217.9, 217.11, 218.95, 236.905, and 240.101.
    Additionally, the proposed rule would avoid possible duplication or 
conflict with a recently finalized U.S. Department of Labor, 
Occupational Safety and Health Administration regulation. In 2010, the 
U.S. Department of Labor, Occupational Safety and Health Administration 
(OSHA) published a final rule regarding ``Cranes and Derricks in 
Construction'' (Final Crane Rule). The Final Crane Rule establishes 
requirements designed to improve safety for employees who work with or 
around cranes and derricks in the construction industry, including the 
establishment of qualification and certification requirements for 
certain operators of cranes.
    Because the railroad industry uses cranes differently than those 
used in general construction, it may be economically burdensome for 
railroads to meet any of the four certification options offered by OSHA 
in the Final Crane Rule. The lack of logistically feasible options for 
many crane operators in the railroad industry to become certified under 
OSHA's Final Crane Rule could cause a shortage in the availability of 
such operators to conduct vital roadway maintenance work, which could 
have a significant detrimental effect on the safety of rail operations. 
Additionally, to whatever degree operators chose to become certified in 
multiple states or jurisdictions, redundant costs would have been 
incurred.
    FRA is proposing various requirements in part 243 that would 
require each employer of a safety-related railroad employee, which 
would include employers of one or more operators of roadway maintenance 
machines that are equipped with a crane, to submit a training program 
that explains in detail how each type of employee would be trained and 
qualified. However, part 243 is only intended to cover training of 
Federal standards and those railroad rules and procedures promulgated 
to implement the Federal standards. Consequently, FRA is proposing the 
addition of Sec.  214.357 to those Federal standards which would 
include training and qualification requirements for operators of 
roadway maintenance machines equipped with a crane, which would replace 
OSHA regulations with respect to those operators training and 
qualification. FRA's proposed rule would eliminate the negative effects 
of multiple states or jurisdictions requiring licensing or 
qualification of crane operators, resulting in a lower cost burden on 
railroads and contractors than the OSHA regulation.

[[Page 6448]]

Description of any Significant Alternatives to the Proposed Rule That 
Accomplish the Stated Objectives of Applicable Statutes and That 
Minimize any Significant Economic Impact of the Proposed Rule on Small 
Entities, Including Alternatives Considered, Such as: (1) Establishment 
of Differing Compliance or Reporting Requirements or Timetables That 
Take Into Account the Resources Available to Small Entities; (2) 
Clarification, Consolidation, or Simplification of Compliance and 
Reporting Requirements Under the Rule for Such Small Entities; (3) Use 
of Performance Rather Than Design Standards; (4) any Exemption From 
Coverage of the Rule, or any Part Thereof, for Such Small Entities
    FRA is unaware of any significant alternatives that would meet the 
intent of RSIA08 and that would minimize the economic impact on small 
entities. FRA is exercising its discretion to provide the greatest 
flexibility for small entities available under RSIA08.
    The process by which this proposed rule was developed provided 
outreach to small entities. As noted earlier in the preamble, this 
notice was developed in consultation with industry representatives via 
the RSAC, which includes small railroad representatives. Throughout the 
development of this proposed rule, FRA met with the entire Working 
Group on several occasions and often focused discussions on issues 
specific to short line and regional railroads and contractors. The 
discussions yielded many insights and this proposed rule takes into 
account the concerns expressed by small railroads during the 
deliberations. Several alternatives were considered in the creation of 
this proposed rule in order to attempt to minimize its impact on small 
entities. FRA and the Working Group recognized very early on in the 
rulemaking process that small entities probably do not have training 
experts on staff. Requiring every small entity to create or revise a 
unique training program could create a disproportionate, and possibly 
unnecessary, burden on small entities because it might require the 
small entities to hire a training expert to perform the task, whereas 
larger railroads and contractors may already have training experts on 
staff. As an alternative to requiring every entity to create unique 
programs, FRA is proposing to formalize a process for entities 
(including and especially small entities) to adopt a ``model program.'' 
FRA envisions a model program to be a state-of-the-art training program 
reflecting best practices in training program development. Any 
organization, business, or association may create a model program and 
submit that model program to FRA for approval. Subsequently, any 
employer may then choose to use a model program approved by FRA, rather 
than create its own program. An employer adopting a model program need 
only inform FRA that the employer plans to use a model program, submit 
the unique identifier for the program, and include any information 
reflecting customization or deviation from the model program that the 
employer has undertaken. This alternative can significantly simplify 
and consolidate the reporting requirements of this proposed rule for 
small entities.
    The proposed rule's requirements with respect to periodic oversight 
also contain alternatives that were designed by FRA and the Working 
Group to limit the proposed rule's impact on small entities. Periodic 
oversight operational tests and inspections would be required by the 
proposed rule to determine if safety-related railroad employees comply 
with Federal railroad safety laws, regulations, and orders particular 
to FRA-regulated personal and work group safety. FRA and the Working 
Group considered requiring that periodic oversight tests and 
inspections be performed by all employers of safety-related railroad 
employees. However, FRA and the Working Group also recognized that 
small entities may not employ supervisory employees who are qualified 
as safety-related railroad employees in some or all categories of 
employees, and requiring these entities to perform periodic oversight 
would necessitate that those entities expand their workforce expressly 
for that purpose. Additionally, one purpose of periodic oversight with 
respect to this proposed rule is to determine if changes in training 
programs are necessary to close any proficiency gaps found during 
oversight assessments. As such, it would make sense if the entity that 
performs the training of safety-related employees also is the entity 
that performs the periodic oversight tests and inspections.
    As an alternative approach designed to ensure that periodic 
oversight is useful, and to minimize the burden that would arise if 
small entities had to expand their workforce just to comply, several 
provisions are included in the proposed rule that limit the extent to 
which small contractors will have to conduct periodic oversight. In 
general, railroads will be responsible for performing oversight for all 
railroad employees and some oversight for contractors performing 
safety-related duties on its property. Railroads would not be required 
to perform operational tests of contractor employees, but railroads 
would be required to perform periodic oversight inspections of 
contractor employees performing safety-related duties on railroad 
property. However, if a contractor employs more than 15 safety-related 
railroad employees, trains its own employees, and employs supervisory 
safety-related railroad employees capable of performing oversight, the 
contractor, rather than the railroad, would be required to perform 
periodic oversight on its own employees. Contractors who meet those 
criteria may not be small entities, and contractors would only perform 
periodic oversight if it relied on its own training in accordance with 
its training program and could therefore improve the program with the 
results of the oversight program. In any case, a railroad and 
contractor may voluntarily agree that the contractor will perform the 
periodic oversight.
    The requirements for periodic oversight also contain provisions 
designed to limit impact on small railroads. First, if a contractor 
conducts its own periodic oversight, then the railroad would not be 
required to also do so. Second, railroads would not be required to 
perform operational tests of contractor employees in any case, as 
mentioned above. Third, a railroad would not be required to perform 
oversight test or inspections for categories of a contractor's safety-
related railroad employees if the railroad does not employ supervisory 
employees who are qualified as safety-related railroad employees in 
those categories. This final exception is designed mostly with small 
entities in mind. Small railroads may maintain a very small workforce 
and hire contractors to perform most safety-related duties. Those small 
entities who do not have employees on staff who are capable of 
performing oversight of contractor employees would therefore not be 
required to expand their workforces by hiring a supervisory employee 
trained in the safety-related duties that the contractor employees 
perform in order to perform oversight of contractor employees.
    FRA and the Working Group also considered alternatives for small 
entities in the section of the proposed rule requiring annual reviews 
of safety data. Railroads would be required, under the proposed rule, 
to conduct an annual review of periodic oversight data, reportable 
accident/incident data, FRA inspection report data, employee training 
feedback, and feedback received from labor representatives if 
available. However, all railroads with

[[Page 6449]]

less than 400,000 total employee work hours per year would be exempted 
from this annual review requirement. FRA believes that all but six 
Class III freight railroads would fall below this threshold, but FRA 
requests comment regarding this belief.
    FRA requests comments on this finding of no significant alternative 
related to small entities. FRA also requests comments on whether this 
proposed regulation exercises the appropriate level of discretion and 
flexibility to comply with RSIA08 in the most cost effective and 
beneficial manner.
Requests for Comment To Assist Regulatory Flexibility Analysis
    FRA requests comments on all aspects of this initial regulatory 
flexibility assessment.

C. Paperwork Reduction Act

    The information collection requirements in this proposed rule have 
been submitted for approval to the Office of Management and Budget 
(OMB) under the Paperwork Reduction Act of 1995, 44 U.S.C. 3501 et seq. 
The sections that contain the current and proposed information 
collection requirements and the estimated time to fulfill each 
requirement are as follows:

----------------------------------------------------------------------------------------------------------------
   49 CFR Section or statutory                             Total annual    Average time per  Total annual burden
            provision              Respondent universe       responses         response             hours
----------------------------------------------------------------------------------------------------------------
214.357--Training and             535 railroads/         535 revised       4 hours.........  2,140 hours
 Qualification Program for         contractors.           programs.
 Operators of Roadway
 Maintenance Machines (RMM)
 Equipped with a Crane.
--Initial Training/Qualification  17,396 roadway         1,750 trained     24 hours........  42,000 hours
 of RMM Operators (Cranes).        workers.               workers.
--Initial Training/Qualification  17,396 roadway         15,646 trained    4 hours.........  62,584 hours
 of RMM Operators (Boom Trucks).   workers.               workers.
--Periodic Training/              17,396 roadway         17,396 trained    1 hour..........  17,396 hours
 Qualification of RMM Operators.   workers.               workers.
--Records of Training/            17,396 roadway         17,396 records..  15 minutes......  4,349 hours
 Qualification.                    workers.
----------------------------------------------------------------------------------------------------------------
243.7--Waivers--Petitions.......  1,541 railroads/       3 petitions.....  6 hours.........  18 hours
                                   contractors.
----------------------------------------------------------------------------------------------------------------
243.101--Training Programs......  1,541 railroads/       1,541 programs..  160 hours + 8     19,624 hours
                                   contractors.                             hours.
--Revisions to Training Programs  59 RRs/contractors...  59 programs.....  40 hours + 20     2,140 hours
                                                                            hours.
--New RRs/Contractors--Initial    37 RRs/contractors...  37 programs.....  8 hours.........  296 hours
 Training Programs.
--Contractor Validation Document  795 contractors......  155 documents...  15 minutes......  39 hours
 to RRs on Training Its Own
 Workers.
--RR Copy of Contractor           720 railroads........  155 copies......  15 minutes......  39 hours
 Validation Document.
----------------------------------------------------------------------------------------------------------------
243.103--Already Existing         1,541 railroads/       2 programs......  80 hours........  160 hours
 Training Programs Supplemented    contractors.
 with On the Job Training
 Component.
--Already Existing Training       1,541 railroads/       385 programs....  8 hours.........  3,080 hours
 Program FRA Required              contractors.
 Modification.
----------------------------------------------------------------------------------------------------------------
243.109--Initial Training         1,541 railroads/       385 programs....  8 hours.........  3,080 hours
 Programs Found Deficient by       contractors.
 FRA--Revisions.
--Request to Extend Resubmission  1,541 railroads/       19 requests.....  15 minutes......  5 hours
 Deadline.                         contractors.
--Initial Training Program Found  37 railroads/          9 programs......  8 hours.........  72 hours
 Deficient and Needing Revision    contractors.
 by FRA.
--Request to Extend Resubmission  37 railroads/          2 requests......  15 minutes......  1 hour
 Deadline.                         contractors.
--Previously Approved Programs    1,541 railroads/       150 info.         6 hours.........  900 hours
 Requiring an Informational        contractors.           filings.
 Filing When Modified.
--Previously Approved Training    1,541 railroads/       7 programs......  4 hours.........  28 hours
 Programs Found Deficient and      contractors.
 Modified Further.
--New Portions or Revisions to    1,541 railroads/       15 modified       4 hours.........  60 hours
 an Approved Training Program      contractors.           programs.
 Needing Revision.
--Request to Extend Resubmission  1,541 railroads/       3 requests......  15 minutes......  1 hour
 Deadline.                         contractors.
--Copies of Submissions,          720 railroads........  2,000 copies....  15 minutes......  500 hours
 Resubmissions, Informational
 Filings to Labor Presidents.
--Labor Representative Comment    5 RR labor             500 comments....  4 hours.........  2,000 hrs.
 on Submissions, Resubmissions,    organizations.
 Info. Filing.
----------------------------------------------------------------------------------------------------------------
243.111--Programs Filed by        12 training            72 programs.....  80 hours........  5,760 hours
 Training Organizations/Learning   organizations.
 Institutions.
--Written Request for Extension   12 training            3 requests......  15 minutes......  1 hour
 to Submit Program by Tr.          organizations.
 Organization.
--Info. Filing for Prev.          12 training            7 filings.......  6 hours.........  42 hours
 Modified Prog..                   organizations.
--Substantial Additions or        12 training            3 documents.....  4 hours.........  12 hours
 Revisions to Previously           organizations.
 Approved Training Program.
--Revised Program Found           12 training            1 further         4 hours.........  4 hours
 Deficient and Needing Further     organizations.         revised
 Revision.                                                document.
--Safety Related Employees        12 training            20,000 trained    8 hours + 5       161,667 hours
 Instructed by Training            organizations.         employees +       minutes.
 Organizations and Records.                               20,000 records.

[[Page 6450]]

 
--Request to Training             .....................  2,500 requests +  5 minutes + 5     416 hours
 Organization/Learning                                    2,500 records.    minutes.
 Institution by Student to
 Provide Transcript or Record.
----------------------------------------------------------------------------------------------------------------
243.113--Required Information to  1,541 railroads/       1,155 letters...  15 minutes......  289 hours
 File Submissions Electronically.  contractors.
----------------------------------------------------------------------------------------------------------------
243.201--Designation of Existing  1,541 railroads/       1,541 lists.....  15 minutes......  385 hours
 Safety-related Employees by Job   contractors.
 Category--Lists.
--Request to Extend Deadline for  1,541 railroads/       100 requests....  15 minutes......  25 hours
 Designation List.                 contractors.
--Designation Lists for           37 railroads.........  37 lists........  15 minutes......  9 hours
 Employers Commencing Operations
 After Specified Date.
--Training of Newly Hired         1,541 railroads/       2,250 trained     8 hours + 15      18,563 hours
 Employees or Those Assigned New   contractors.           employees +       minutes.
 Safety-related Duties and                                2,250 records.
 Records.
--Requests for Relevant           1,538 railroads/       250 requests +    5 minutes + 5     42 hours
 Qualification or Training         contractors.           250 records.      minutes.
 Record from an Entity Other
 Than Current Employer.
--Testing of Employees When       1,538 railroads/       1,667 tests +     8 hours + 30      14,170 hours
 Current Record of Training is     contractors.           1,667 records.    minutes.
 Unavailable.
--Testing of Employees Who Have   1,538 railroads/       2,667 tests +     16 hours + 30     44,006 hours
 Not Received Initial/Periodic     contractors.           2,667 records.    minutes.
 Training.
--Employee Refresher Training     1,538 railroads/       35,000 retrained  1 hour + 15       43,750 hours
 Every Three Years.                contractors.           employees +       minutes.
                                                          35,000 records.
--Qualified Employees Designated/ 1,538 railroads/       2,100 listings +  30 minutes + 24   51,625 hours
 Listed to Provide Formal          contractors.           2,100 qualified   hours + 5
 Training to Other Employees and                          + 2,100 records.  minutes.
 Records.
----------------------------------------------------------------------------------------------------------------
243.203--Electronic               1,538 railroads/       4,200             5 minutes.......  350 hours
 Recordkeeping--Representatives    contractors.           designations.
 Designated by Employers to
 Authenticate Retrieved
 Information.
--Transfer of Records to          1,538 railroads/       500 records.....  15 minutes......  125 hours
 Successor Employer.               contractors.
----------------------------------------------------------------------------------------------------------------
243.205--Modified Training        1,538 railroads/       10 modified       40 hours........  400 hours
 Resulting from Periodic           contractors.           programs.
 Oversight Tests and Inspections.
--Periodic Tests and Inspections  1,538 railroads/       210,000 tests/    10 minutes......  35,000 hours
                                   contractors.           inspections.
--Results of Part 240/242         1,538 railroads/       5 programs......  8 hours.........  40 hours
 Assessments Causing               contractors.
 Modification of Training
 Program.
--Identification of Supervisory   1,538 railroads/       250               5 minutes.......  21 hours
 Employees Who Conduct Periodic    contractors.           identifications.
 Oversight Tests by Category/
 Subcategory.
--Contractor Periodic Tests/      720 railroads........  65,000 tests/     10 minutes......  10,833 hours
 Inspections Conducted by RR                              inspections.
 Supervisory Employees.
--Notification by RR of           720 railroads........  2,500 notices +   5 minutes.......  416 hours
 Contractor Non-Compliance with                           2,500 notices.
 Federal Laws/Regulations/Orders
 to Employee and Employer.
--Contractor conduct of Periodic  795 contractors......  65,000 tests/     10 minutes......  10,833 hours
 Oversight Tests/Inspections of                           inspections.
 Its Safety-related Employees.
--Contractor Direct Training of   795 contractors......  32,000 trained    8 hours.........  256,000 hours
 Its Employees for Qualifying                             employees.
 Those Employees to Perform
 Safety-related Duties.
--Employer Records of Periodic    1,538 railroads/       32,000 records..  5 minutes.......  2,667 hours
 Oversight.                        contractors.
----------------------------------------------------------------------------------------------------------------
243.207--Annual Review of Safety  53 railroads.........  53 reviews......  2 hours.........  106 hours
 Data.
--RR Copy of Annual Review at     53 railroads.........  53 copies.......  1 hour..........  53 hours
 System Headquarters.
--RR Designation of Person(s) to  53 railroads.........  106 designation.  15 minutes......  27 hours
 Conduct Annual Review.
--Adjustments to Initial/         53 railroads.........  5 adjusted        1 hour..........  5 hours
 Refresher Training Based Upon                            programs.
 Results of Annual Review.
--RR Notification to Contractor   53 railroads.........  8 notifications.  15 minutes......  2 hours
 of Relevant Training Program
 Adjustments.
--Contractor Adjustment of Its    795 contractors......  8 programs......  16 hours........  128 hours
 Training Program Based on RR
 Information.
----------------------------------------------------------------------------------------------------------------
243.209 Railroad Maintained List  720 railroads........  795 lists.......  30 minutes......  398 hours
 of Contractors Utilized.
--Updated Lists of Contractors..  720 railroads........  79 lists........  15 minutes......  20 hours
----------------------------------------------------------------------------------------------------------------


[[Page 6451]]

    All estimates include the time for reviewing instructions; 
searching existing data sources; gathering or maintaining the needed 
data; and reviewing the information. Pursuant to 44 U.S.C. 
3506(c)(2)(B), FRA solicits comments concerning: whether these 
information collection requirements are necessary for the proper 
performance of the functions of FRA, including whether the information 
has practical utility; the accuracy of FRA's estimates of the burden of 
the information collection requirements; the quality, utility, and 
clarity of the information to be collected; and whether the burden of 
collection of information on those who are to respond, including 
through the use of automated collection techniques or other forms of 
information technology, may be minimized. For information or a copy of 
the paperwork package submitted to OMB, contact Mr. Robert Brogan, 
Information Clearance Officer, at (202) 493-6292, or Ms. Kimberly Toone 
at (202) 493-6132.
    Organizations and individuals desiring to submit comments on the 
collection of information requirements should direct them to Mr. Robert 
Brogan or Ms. Kimberly Toone, Federal Railroad Administration, 1200 New 
Jersey Avenue SE., 3rd Floor, Washington, DC 20590. Comments may also 
be submitted via email to Mr. Brogan or Ms. Toone at the following 
address: [email protected]; [email protected].
    OMB is required to make a decision concerning the collection of 
information requirements contained in this proposed rule between 30 and 
60 days after publication of this document in the Federal Register. 
Therefore, a comment to OMB is best assured of having its full effect 
if OMB receives it within 30 days of publication. The final rule will 
respond to any OMB or public comments on the information collection 
requirements contained in this proposal.
    FRA is not authorized to impose a penalty on persons for violating 
information collection requirements which do not display a current OMB 
control number, if required. FRA intends to obtain current OMB control 
numbers for any new information collection requirements resulting from 
this rulemaking action prior to the effective date of the final rule. 
The OMB control number, when assigned, will be announced by separate 
notice in the Federal Register.

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 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 NPRM has been analyzed in accordance with the principles and 
criteria contained in Executive Order 13132. This proposed rule would 
not have a substantial effect on the States or their political 
subdivisions; it would not impose any compliance costs; and it would 
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 proposed rule 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 proposed rule in accordance with the 
principles and criteria contained in Executive Order 13132. As 
explained above, FRA has determined that this proposed rule 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 proposed rule 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 proposed rulemaking 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 rule 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 
proposed rule 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 regulation that might trigger the need for a more 
detailed environmental review. As a result, FRA finds that this 
proposed rule 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,

[[Page 6452]]

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 (adjusted annually for 
inflation) in any 1 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 proposed rule 
will not result in the expenditure, in the aggregate, of $140,800,000 
or more (as adjusted annually for inflation) 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 NPRM in accordance with Executive Order 
13211. FRA has determined that this NPRM is not likely to have a 
significant adverse effect on the supply, distribution, or use of 
energy. Consequently, FRA has determined that this NPRM is not a 
``significant energy action'' within the meaning of Executive Order 
13211.

I. Privacy Act

    FRA wishes to inform all potential commenters that anyone is able 
to search the electronic form of all comments received into any agency 
docket 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 in 
the Federal Register published on April 11, 2000 (65 FR 19477-78) or 
you may visit http://www.regulations.gov/#!privacyNotice.

List of Subjects

49 CFR Part 214

    Bridges, Occupational safety and health, Penalties, Railroad 
safety, Reporting and recordkeeping requirements.

49 CFR Part 232

    Incorporation by reference, Railroad power brakes, Railroad safety, 
Two-way end-of-train devices.

49 CFR Part 243

    Administrative practice and procedure, Penalties, Railroad 
employees, Railroad safety, Reporting and recordkeeping requirements.

The Proposed Rule

    For the reasons discussed in the preamble, FRA proposes to amend 
chapter II, subtitle B of title 49 of the Code of Federal Regulations 
as follows:

PART 214--[AMENDED]

    1. Section 214.7 is amended by adding a definition in alphabetical 
order for roadway maintenance machines equipped with a crane to read as 
follows:
* * * * *
    Roadway maintenance machines equipped with a crane means any 
roadway maintenance machine equipped with a crane or boom that can 
hoist, lower, and horizontally move a suspended load.
* * * * *
    2. Section 214.341 is amended by revising paragraph (b)(2) to read 
as follows:
* * * * *
    (b) * * *
    (2) No roadway worker shall operate a roadway maintenance machine 
without having knowledge of the safety instructions applicable to that 
machine. For purposes of this paragraph, the safety instructions 
applicable to that machine means:
    (i) the manufacturer's instruction manual for that machine; or
    (ii) the safety instructions developed to replace the 
manufacturer's safety instructions when the machine has been adapted 
for a specific railroad use. Such instructions shall address all 
aspects of the safe operation of the crane and shall be as 
comprehensive as the manufacturer's safety instructions they replace.
* * * * *
    3. Section 214.357 is added to read as follows:


Sec.  214.357  Training and qualification for operators of roadway 
maintenance machines equipped with a crane.

    (a) In addition to the general training and qualification 
requirements for operators of roadway maintenance machines set forth in 
Sec. Sec.  214.341 and 214.355 of this subpart, each employer shall 
adopt and comply with a training and qualification program for 
operators of roadway maintenance machines equipped with a crane to 
ensure the safe operation of such machines.
    (b) Each employer's training and qualification program for 
operators of roadway maintenance machines equipped with a crane shall 
require initial and periodic qualification of each operator of a 
roadway maintenance machine equipped with a crane and shall include:
    (1) Procedures for determining that the operator has the skills to 
safely operate each machine the person is authorized to operate; and
    (2) Procedures for determining that the operator has the knowledge 
to safely operate each machine the person is authorized to operate. 
Such procedures shall determine that either:
    (i) The operator has knowledge of the safety instructions (i.e., 
the manufacturer's instruction manual) applicable to that machine; or
    (ii) The operator has knowledge of the safety instructions 
developed to replace the manufacturer's safety instructions when the 
machine has been adapted for a specific railroad use. Such instructions 
shall address all aspects of the safe operation of the crane and shall 
be as comprehensive as the manufacturer's safety instructions they 
replace.
    (c) Each employer shall maintain records that form the basis of the 
training and qualification determinations of each operator of roadway 
maintenance machines equipped with a crane that it employs.
    (d) Availability of records. Each employer required to maintain 
records under this part shall make all records available for inspection 
and copying/photocopying to representatives of FRA, upon request during 
normal business hours.
    (e) Training conducted by an employer in accordance with operator 
qualification and certification required by the Department of Labor (29 
CFR 1926.1427) may be used to satisfy the

[[Page 6453]]

training and qualification requirements of this section.

PART 232--[AMENDED]

    4. Section 232.203 is amended by revising paragraphs (b)(6)(iv), 
and (e)(6) through (e)(8) to read as follows:
* * * * *
    (b) * * *
    (6) * * *
    (iv) Any combination of the training or testing contained in 
paragraphs (b)(6)(i) through (b)(6)(iii) of this section and paragraphs 
(b)(3) through (b)(5) of this section may be used to satisfy the 
training and testing requirements for an employee in accordance with 
this paragraph.
* * * * *
    (e) * * *
    (6) The tasks required to be performed under this part which the 
employee is deemed qualified to perform;
    (7) Identification of the person(s) determining that the employee 
has successfully completed the training necessary to be considered 
qualified to perform the tasks identified in paragraph (e)(6) of this 
section; and
    (8) The date that the employee's status as qualified to perform the 
tasks identified in paragraph (e)(6) of this section expires due to the 
need for refresher training.
* * * * *

PART 243--TRAINING, QUALIFICATION, AND OVERSIGHT FOR SAFETY-RELATED 
RAILROAD EMPLOYEES

    5. Add a new part 243 to read as follows:
Subpart A--General
Sec.
243.1 Purpose and scope.
243.3 Application and responsibility for compliance.
243.5 Definitions.
243.7 Waivers.
243.9 Penalties and consequences for noncompliance.
243.11 Information collection requirements.
Subpart B--Program Components and Approval Process
243.101 Employer program required.
243.103 Training components identified in program.
243.105 Optional model program development.
243.107 Training program submission, introductory information 
required.
243.109 Training program submission, review, and approval process.
243.111 Approval of programs filed by training organizations or 
learning institutions.
243.113 Option to file program electronically.
Subpart C--Program Implementation and Oversight Requirements
243.201 Employee qualification requirements.
243.203 Records.
243.205 Periodic oversight.
243.207 Annual review.
243.209 Railroad maintained list of contractors utilized.
Appendix A to Part 243--Schedule of Civil Penalties

    Authority:  49 U.S.C. 20103, 20107, 20131-20155, 20162, 20301-
20306, 20701-20702, 21301-21304, 21311; 28 U.S.C. 2461, note; and 49 
CFR 1.49.

Subpart A--General


Sec.  243.1  Purpose and scope.

    (a) The purpose of this part is to ensure that any person employed 
by a railroad or a contractor of a railroad as a safety-related 
railroad employee is trained and qualified on any Federal railroad 
safety laws, regulations, and orders the person is required to comply 
with, as well as any relevant railroad rules and procedures promulgated 
to implement those Federal railroad safety laws, regulations, and 
orders.
    (b) This part contains the general minimum training and 
qualification requirements for each category and subcategory of safety-
related railroad employee, regardless of whether the employee is 
employed by a railroad or a contractor of a railroad. Contractors shall 
coordinate with railroads and comply with the contents of this part, 
including those aspects of training that are specific to the 
contracting railroad's rules and procedures.
    (c) The requirements in this part do not exempt any other 
requirement in this chapter.
    (d) Unless otherwise noted, this part augments other training and 
qualification requirements contained in this chapter.


Sec.  243.3  Application and responsibility for compliance.

    (a) This part applies to all railroads, contractors of railroads, 
and training organizations or learning institutions that train safety-
related railroad employees except:
    (1) Railroads or contractors of railroads that operate only on 
track inside an installation that is not part of the general railroad 
system of transportation (i.e., plant railroads, as defined in Sec.  
243.5);
    (2) Tourist, scenic, historic, or excursion operations that are not 
part of the general railroad system of transportation as defined in 
Sec.  243.5; or
    (3) Rapid transit operations in an urban area that are not 
connected to the general railroad system of transportation.
    (b) Although the duties imposed by this part are generally stated 
in terms of the duty of a railroad, each person, including a contractor 
for a railroad, who performs any duty covered by this part, shall 
perform that duty in accordance with this part.


Sec.  243.5  Definitions.

    As used in this part--
    Administrator means the Administrator of the Federal Railroad 
Administration or the Administrator's delegate.
    Associate Administrator means the Associate Administrator for 
Railroad Safety and Chief Safety Officer of the Federal Railroad 
Administration or that person's delegate as designated in writing.
    Calendar year means the period of time beginning on January 1 and 
ending on December 31 of each year.
    Contractor means a person under contract with a railroad, 
including, but not limited to, a prime contractor or a subcontractor.
    Designated instructor means a person designated as such by an 
employer, training organization, or learning institution, who has 
demonstrated, pursuant to the training program submitted by the 
employer, training organization, or learning institution, an adequate 
knowledge of the subject matter under instruction and, where 
applicable, has the necessary experience to effectively provide formal 
training.
    Employer means a railroad or a contractor of a railroad that 
employs at least one safety-related railroad employee.
    Formal training means training that has a structured and defined 
curriculum, and which provides an opportunity for training participants 
to have questions timely answered during the training or at a later 
date. In the context of this part, formal training may include, but is 
not limited to, classroom, computer-based, on-the-job, simulator, or 
laboratory training.
    Knowledge-based training is a type of formal training that is not 
task-based and is intended to convey information required for a safety-
related railroad employee to comply with Federal railroad safety laws, 
regulations, and orders, as well as any relevant railroad rules and 
procedures promulgated to implement those Federal railroad safety laws, 
regulations, and orders.
    On-the-job training (OJT) means job training that occurs in the 
workplace, i.e., the employee learns the job while doing the job.
    Person means an entity of any type covered under 1 U.S.C. 1, 
including, but not limited to, the following: A railroad;

[[Page 6454]]

a manager, supervisor, official, or other employee or agent of a 
railroad; any owner, manufacturer, lessor, or lessee of railroad 
equipment, track, or facilities; any independent contractor providing 
goods or services to a railroad; and any employee of such owner, 
manufacturer, lessor, lessee, or independent contractor.
    Plant railroad means a plant or installation that owns or leases a 
locomotive, uses that locomotive to switch cars throughout the plant or 
installation, and is moving goods solely for use in the facility's own 
industrial processes. The plant or installation could include track 
immediately adjacent to the plant or installation if the plant railroad 
leases the track from the general system railroad and the lease 
provides for (and actual practice entails) the exclusive use of that 
trackage by the plant railroad and the general system railroad for 
purposes of moving only cars shipped to or from the plant. A plant or 
installation that operates a locomotive to switch or move cars for 
other entities, even if solely within the confines of the plant or 
installation, rather than for its own purposes or industrial processes, 
will not be considered a plant railroad because the performance of such 
activity makes the operation part of the general railroad system of 
transportation.
    Qualified means that a person has successfully completed all 
instruction, training, and examination programs required by both the 
employer and this part, and that the person, therefore, may reasonably 
be expected to proficiently perform his or her duties in compliance 
with all Federal railroad safety laws, regulations, and orders.
    Safety-related duty means either a safety-related task or a 
knowledge-based prohibition that a person meeting the definition of a 
safety-related railroad employee is required to comply with, when such 
duty is covered by any Federal railroad safety law, regulation, or 
order.
    Safety-related railroad employee means an individual who is engaged 
or compensated by an employer to:
    (1) Perform work covered under the hours of service laws found at 
49 U.S.C. 21101, et seq.;
    (2) Perform work as an operating railroad employee who is not 
subject to the hours of service laws found at 49 U.S.C. 21101, et seq.;
    (3) In the application of parts 213 and 214 of this chapter, 
inspect, install, repair, or maintain track, roadbed, and signal and 
communication systems, including a roadway worker or railroad bridge 
worker as defined in Sec.  214.7 of this chapter;
    (4) Inspect, repair, or maintain locomotives, passenger cars or 
freight cars;
    (5) Inspect, repair, or maintain other railroad on-track equipment 
when such equipment is in a service that constitutes a train movement 
under part 232 of this chapter;
    (6) Determine that an on-track roadway maintenance machine or hi-
rail vehicle may be used in accordance with part 214, subpart D of this 
chapter, without repair of a non-complying condition;
    (7) Directly instruct, mentor, inspect, or test, as a primary duty, 
any person while that other person is engaged in a safety-related task; 
or
    (8) Directly supervise the performance of safety-related duties in 
connection with periodic oversight in accordance with Sec.  243.205.
    Safety-related task means a task that a person meeting the 
definition of a safety-related railroad employee performs, when such 
task is covered by any Federal railroad safety law, regulation, or 
order.
    Task-based training means a type of formal training with a primary 
focus on teaching the skills necessary to perform specific tasks that 
require some degree of neuromuscular coordination.
    Tourist, scenic, historic, or excursion operations that are not 
part of the general railroad system of transportation means a tourist, 
scenic, historic, or excursion operation conducted only on track used 
exclusively for that purpose (i.e., there is no freight, intercity 
passenger, or commuter passenger railroad operation on the track).


Sec.  243.7  Waivers.

    (a) A person subject to a requirement of this part may petition the 
Administrator for a waiver of compliance with such requirement. The 
filing of such a petition does not affect that person's responsibility 
for compliance with that requirement while the petition is being 
considered.
    (b) Each petition for a waiver under this section shall be filed in 
the manner and contain the information required by part 211 of this 
chapter.
    (c) If the Administrator finds that a waiver of compliance is in 
the public interest and is consistent with railroad safety, the 
Administrator may grant the waiver subject to any conditions the 
Administrator deems necessary.


Sec.  243.9  Penalties and consequences for noncompliance.

    (a) A person who violates any requirement of this part, or causes 
the violation of any such requirement, is subject to a civil penalty of 
at least $650 and not more than $25,000 per violation, except that: 
Penalties may be assessed against individuals only for willful 
violations, and, where a grossly negligent violation or a pattern of 
repeated violations has created an imminent hazard of death or injury 
to persons, or has caused death or injury, a penalty not to exceed 
$100,000 per violation may be assessed. Each day a violation continues 
shall constitute a separate offense. See Appendix A to this part for a 
statement of agency civil penalty policy.
    (b) A person who violates any requirement of this part or causes 
the violation of any such requirement may be subject to 
disqualification from all safety-sensitive service in accordance with 
part 209 of this chapter.
    (c) A person who knowingly and willfully falsifies a record or 
report required by this part may be subject to criminal penalties under 
49 U.S.C. 21311.


Sec.  243.11  Information collection requirements.

    (a) The information collection requirements of this part were 
reviewed by the Office of Management and Budget pursuant to the 
Paperwork Reduction Act of 1980 (44 U.S.C. 3501 et seq.) and are 
assigned OMB control number ----------.
    (b) The information collection requirements are found in the 
following sections: ----------

Subpart B--Program Components and Approval Process


Sec.  243.101  Employer program required.

    (a) Effective [DATE ONE YEAR AND 120 DAYS AFTER EFFECTIVE DATE OF 
THIS RULE], each employer conducting operations subject to this part 
shall submit, adopt, and comply with a training program for its safety-
related railroad employees.
    (b) An employer commencing operations subject to this part after 
[DATE ONE YEAR AND 120 DAYS AFTER EFFECTIVE DATE OF THIS RULE] shall 
submit a training program for its safety-related railroad employees and 
request FRA approval at least 90 days prior to commencing operations. 
After FRA approves the training program in accordance with this part, 
the employer shall adopt and comply with the training program.
    (c) In the program required by this part, the employer shall:
    (1) Classify its safety-related railroad employees in occupational 
categories or subcategories by craft, class, task, or other suitable 
terminology;

[[Page 6455]]

    (2) Define the occupational categories or subcategories of safety-
related railroad employees. The definition of each category or 
subcategory shall include a list of the Federal railroad safety laws, 
regulations, and orders that the employee is required to comply with, 
based on the employee's assignments and duties, broken down at a 
minimum to the applicable part of the Code of Federal Regulations, 
section of the United States Code, or citation to an order. The listing 
of the Federal requirements shall contain the descriptive title of each 
law, regulation, or order;
    (3) Create tables or utilize other suitable formats which summarize 
the information required in paragraphs (c)(1) and (c)(2) of this 
section, segregated by major railroad departments (e.g., Operations, 
Maintenance of Way, Maintenance of Equipment, Signal and 
Communications). After listing the major departments, the tables or 
other formats should list the categories and subcategories of safety-
related railroad employees within those departments;
    (4) Develop procedures to design and develop key learning points 
for any task-based or knowledge-based training; and
    (5) Determine how training shall be structured, developed, and 
delivered, including an appropriate combination of classroom, 
simulator, computer-based, correspondence, OJT, or other formal 
training. The curriculum shall be designed to impart knowledge of, and 
ability to comply with applicable Federal railroad safety laws, 
regulations, and orders, as well as any relevant railroad rules and 
procedures promulgated to implement those applicable Federal railroad 
safety laws, regulations, and orders.
    (d) On-the-job (OJT) training requirements.
    (1) The OJT portion of the training program shall consist of the 
following three key components:
    (i) A brief statement describing the tasks and related steps the 
employee learning the job shall be able to perform;
    (ii) A statement of the conditions (prerequisites, tools, 
equipment, documentation, briefings, demonstrations, and practice) 
necessary for learning transfer; and
    (iii) A statement of the standards by which proficiency is measured 
through a combination of task/step accuracy, completeness, and 
repetition.
    (2) Prior to beginning the initial safety-related tasks associated 
with OJT exercises, employers shall make any relevant information or 
materials, such as operating rules, safety rules, or other rules 
available to employees involved for referencing.
    (3) The tasks and related steps associated with OJT exercises for a 
particular category or subcategory of employee shall be maintained 
together in one manual, checklist, or similar document. This reference 
shall be made available to all employees involved in those OJT 
exercises.
    (e) Contractor's responsibility to validate approved program to a 
railroad. A contractor that chooses to train its own safety-related 
railroad employees shall provide each railroad that utilizes it with a 
document indicating that the contractor's program of training was 
approved by FRA. A contractor is being utilized by a railroad when any 
of the contractor's employees conduct safety-related duties on behalf 
of the railroad and the railroad does not otherwise qualify those 
employees of the contractor that are allowed to perform those duties.
    (f) Railroad's responsibility to retain contractor's validation of 
program. A railroad that chooses to utilize contractor employees to 
perform safety-related duties and relies on contractor-provided 
training as the basis for those employees' qualification to perform 
those duties shall retain a document from the contractor indicating 
that the contractor's program was approved by FRA. A copy of the 
document required in paragraph (e) of this section satisfies this 
requirement.


Sec.  243.103  Training components identified in program.

    (a) Each employer's program shall include the following components:
    (1) A unique name and identifier for each formal course of study;
    (2) A course outline for each course that includes the following:
    (i) Any prerequisites to course attendance;
    (ii) A brief description of the course, including the terminal 
learning objectives;
    (iii) A brief description of the target audience, e.g., a list of 
the occupational categories and subcategories of employees the course 
will be delivered to;
    (iv) The method(s) of course delivery, which may include, but are 
not limited to, classroom, computer-based, simulator, laboratory, 
correspondence courses, or any combination thereof;
    (v) The anticipated course duration;
    (vi) A syllabus of the course to include any applicable U.S.C. 
chapters, 49 CFR parts, or FRA orders covered in the training; and
    (vii) The kind of assessment (written test, performance test, 
verbal test, OJT standard, etc.) performed to demonstrate employee 
competency.
    (3) A document for each OJT program component that includes the 
following:
    (i) The roles and responsibilities of each category of person 
involved in the administration and implementation, guidelines for 
program coordination, and the progression and application of the OJT;
    (ii) A listing of the occupational categories and subcategories of 
employees for which the OJT program applies; and
    (iii) Details of the safety-related tasks and subtasks, conditions, 
and standards covered by the program components.
    (4) The job title and telephone number of the employer's primary 
training point(s) of contact, listed separately by major department or 
employee occupational category, if applicable.
    (5) If any training organization or learning institution developed 
and will deliver all or any part of the training, the employer must 
include the following:
    (i) A narrative, text table, or other suitable format which 
describes those portions of the training that fit into this category;
    (ii) The business name of the organization that developed and will 
deliver the training; and
    (iii) The job title and telephone number of the training 
organization or learning institution's primary training point of 
contact.
    (b) An employer that is required to submit similar training 
programs or plans pursuant to other regulatory requirements contained 
elsewhere in this chapter may elect to cross-reference these other 
programs or plans in the program required by this part rather than 
resubmitting that similar program or plan. When any such similar 
program or plan did not include the OJT components specified in 
paragraph (a)(3) of this section, the employer shall supplement its 
program in accordance with this part by providing that additional 
information.
    (c) If an employer arranges job-related practice and practice 
related feedback sessions to supplement classroom, laboratory, 
simulator training, or OJT, the program shall include a description of 
the supplemental training.
    (d) FRA may require modifications to any programs, including those 
programs referenced in paragraph (b) of this section, if it determines 
essential program components, such as OJT, or arranged practice and 
feedback, are missing or inadequate.

[[Page 6456]]

Sec.  243.105  Optional model program development.

    (a) Any organization, business, or association may develop and 
submit one or more model training programs to FRA for review and 
approval so that the model program(s) may be used by multiple 
employers.
    (1) Any such model program should be submitted with a unique 
identifier associated with the program, or FRA will assign a unique 
identifier.
    (2) The program associated with the organization's unique 
identifier shall include all information required by Sec.  243.103.
    (b) An employer that chooses to use a model program approved by FRA 
is not required to submit the entire program to FRA. Instead, the 
employer must submit only the unique identifier, and all other 
information that is specific to that employer or deviates from the 
model program.


Sec.  243.107  Training program submission, introductory information 
required.

    (a) An employer who provides or is responsible for the training of 
safety-related railroad employees shall submit its training program to 
FRA for review and approval. Each employer shall state in its 
submission whether, at the time of filing, it:
    (1) Primarily conducts the training program of its own safety-
related railroad employees, utilizing its own resources;
    (2) Conducts any training for other than its own safety-related 
railroad employees;
    (3) Implements any training programs conducted by some other entity 
on its behalf but adopted by that employer;
    (4) Qualifies safety-related railroad employees previously 
qualified by other employers;
    (5) Qualifies safety-related railroad employees previously trained 
by training organizations or learning institutions; or
    (6) Any combination of paragraph (a)(1) through (a)(5) of this 
section.
    (b) An employer who utilizes any of the options specified in 
paragraphs (a)(2) through (a)(5) of this section shall provide the 
following information in its submission:
    (1) The categories of safety-related railroad employees who, at the 
time of filing, will receive training utilizing one or more of these 
options; and
    (2) Whether the training delivered, utilizing one or more of these 
options, composes all or part of the overall training program regimen 
for that category of employee at the time of filing.
    (c) An employer that elects to use training organizations or 
learning institutions to train some or all of its safety-related 
railroad employees, or to hire new safety-related railroad employees 
that have previously received training from any training organizations 
or learning institutions, shall include the full name of the training 
organization or learning institution in its submission.


Sec.  243.109  Training program submission, review, and approval 
process.

    (a) Initial programs. (1) Apprenticeship or similar intern 
programs, that began prior to submission of the employer's initial 
program filed in accordance with this part, shall be described in the 
employer's initial program. Any such apprenticeship or similar intern 
programs may continue, but if the Associate Administrator advises the 
employer of specific deficiencies, the employer shall resubmit that 
portion of its program, as revised to address specific deficiencies, 
within 90 days after the date of any notice of deficiencies from the 
Associate Administrator. A failure to resubmit the program with the 
necessary revisions shall be considered a failure to implement a 
program under this part. The Associate Administrator may extend this 
90-day period upon written request.
    (2) An employer's initial program, as required by Sec.  243.101(a), 
must be submitted to the Associate Administrator and is considered 
approved, and may be implemented immediately upon submission. Following 
submission, the Associate Administrator will review the program and 
inform the employer as to whether the initial program conforms to this 
part. If the Associate Administrator determines that all or part of the 
program does not conform, the Associate Administrator will inform the 
employer of the specific deficiencies. The deficient portions of the 
non-conforming program may remain in effect until approval of the 
revised program, unless FRA provides notification otherwise. An 
employer shall resubmit the portion of its program, as revised to 
address specific deficiencies, within 90 days after the date of any 
notice of deficiencies from the Associate Administrator. A failure to 
resubmit the program with the necessary revisions shall be considered a 
failure to implement a program under this part. The Associate 
Administrator may extend this 90-day period upon written request.
    (3) For an employer that is commencing operations in accordance 
with Sec.  243.101(b), the employer's initial program, must be 
submitted to the Associate Administrator and is considered approved 
upon notification from the Associate Administrator that the program has 
been approved. Following submission, the Associate Administrator will 
review the program and inform the employer as to whether the initial 
program conforms to this part. If the Associate Administrator 
determines that the program does not conform to this part, the employer 
shall resubmit the portion of its program, as revised to address 
specific deficiencies, within 90 days after the date of any notice of 
deficiencies from the Associate Administrator. At the Associate 
Administrator's discretion, the Associate Administrator may determine 
that the employer may implement any portion of its program prior to 
resubmission. A failure to resubmit the program with the necessary 
revisions shall be considered a failure to implement a program under 
this part. The Associate Administrator may extend this 90-day period 
upon written request.
    (b) Previously approved programs require an informational filing 
when modified. The employer must review its previously approved 
training program and modify it accordingly when new safety-related 
Federal railroad laws, regulations, or orders are issued, or new 
safety-related technologies, procedures, or equipment are introduced 
into the workplace and result in new knowledge requirements, safety-
related tasks, or modification of existing safety-related duties. An 
employer that modifies its training program for these described reasons 
shall submit an informational filing to the Associate Administrator not 
later than 30 days after the end of the calendar year in which the 
modification occurred, unless FRA advises otherwise to individual 
employers, one or more group of employers, or the general public. 
Programs modified in accordance with this paragraph, after the initial 
FRA approval, are considered approved upon being modified and may be 
implemented immediately. Any program deficiencies noted by the 
Associate Administrator shall be addressed in the same manner as 
paragraph (a)(2) of this section. The filing shall contain a summary 
description of sufficient detail that FRA can associate the changes 
with the employer's previously approved program, and shall include:
    (1) Descriptions of all new or refresher training courses developed 
since the previous FRA approval, using the same criteria required for 
an initial filing;

[[Page 6457]]

    (2) Explanations whenever OJT or arranged practice is added to, or 
discontinued from, a program;
    (3) Explanations as to how the methods of delivering training, or 
qualifying employees has changed; and
    (4) A statement from an organization, business, or association that 
has submitted a model program pursuant to this part, that the 
organization, business, or association has informed each employer who 
requested the right to use the effected training program of the changes 
and the need for the employer to comply with those changes that apply 
to the employer's operation.
    (c) New portions or revisions to an approved program. Substantial 
additions or revisions to a previously approved program, that are not 
described as informational filings in accordance with paragraph (b) of 
this section, shall be considered approved and may be implemented 
immediately upon submission. Following submission, the Associate 
Administrator will review the new portions or revisions to the 
previously approved program and inform the employer as to whether the 
modifications conform to this part. Any program deficiencies noted by 
the Associate Administrator shall be addressed in the same manner as 
paragraph (a)(2) of this section. The Associate Administrator will 
inform the employer as to whether a new portion or revision to an 
approved program conforms to this part. If the Associate Administrator 
has determined that the changes do not conform to this part, the 
employer shall resubmit the portion of its program, as revised to 
address specific deficiencies, within 90 days after the date of any 
notice of deficiencies from the Associate Administrator. Failure to 
resubmit the program with the necessary revisions shall be considered a 
failure to implement a program under this part. The Associate 
Administrator may extend this 90-day period upon written request.
    (d) Additional submission, resubmission, or informational filing 
requirement for railroads. (1) Each railroad shall:
    (i) Simultaneous with its filing with the FRA, serve a copy of any 
submission, resubmission, or informational filing required pursuant to 
this section, to the president of each labor organization that 
represents the railroad's employees subject to this part; and
    (ii) Include in its submission, resubmission, or informational 
filing required pursuant to this section a statement affirming that the 
railroad has served a copy to the president of each labor organization 
that represents the railroad's employees subject to this part, together 
with a list of the names and addresses of persons served.
    (2) Not later than 90 days from the date a railroad files its 
submission, resubmission, or informational filing required pursuant to 
this section, a representative designated by the president of each 
labor organization that represents railroad employees subject to this 
part, may file a comment on the submission, resubmission, or 
informational filing:
    (i) Each comment shall be submitted to the Associate Administrator 
for Railroad Safety/Chief Safety Officer, Federal Railroad 
Administration, 1200 New Jersey Avenue SE., Washington, DC 20590; and
    (ii) The commenter shall certify that a copy of the comment was 
served on the railroad.


Sec.  243.111  Approval of programs filed by training organizations or 
learning institutions.

    (a) A training organization or learning institution that provides 
training services for safety-related railroad employees, including 
providing such training services to independent students who enroll 
with such training organization or learning institution and who will 
rely on the training services provided to qualify to become safety-
related railroad employees, must submit its program to FRA for review 
and approval.
    (b) A training organization or learning institution that has 
provided training services to employers covered by this part prior to 
[EFFECTIVE DATE OF THIS RULE] may continue to offer such training 
services without FRA approval for a period not to exceed one year. The 
Associate Administrator may extend this period at any time based on a 
written request. Such written requests for an extension of time to 
submit a program should contain any factors the training organization 
or learning institution wants the Associate Administrator to consider 
prior to approving or disapproving the extension.
    (c) A program submitted by a training organization or learning 
institution must include all information required for an employer's 
program in accordance with this part, unless the requirement could only 
apply to an employer's program. The submitted program for a training 
organization or learning institution must also include the following 
information:
    (1) The full corporate or business name of the training 
organization or learning institution;
    (2) The training organization or learning institution's primary 
business and email address;
    (3) The training organization or learning institution's primary 
telephone number and point of contact;
    (4) A listing of the training organization or learning 
institution's designated instructors;
    (5) A resume for each designated instructor, showing how the 
instructor achieved the subject-matter and training expertise necessary 
to develop and deliver training to safety-related railroad employees, 
unless the designated instructors are currently employed by a railroad;
    (6) A list of references of employer customers the learning 
organization or training institution has provided services to in the 
past; and
    (7) A brief summary statement indicating how the training 
organization or learning institution determined the knowledge, skills, 
and abilities necessary to develop the training courses it provides to 
employers and independent students who enroll with such training 
organization or learning institution in order to become safety-related 
railroad employees. This brief summary should be of sufficient detail 
so that FRA can ascertain the methodologies the training organization 
or learning institution used during training development.
    (d) Except as specified in paragraph (b) of this section, prior 
approval by the Associate Administrator is required before FRA will 
accept such training as sufficient to meet the requirements of this 
part. The Associate Administrator will advise the training organization 
or learning institution in writing whether FRA has approved the 
program. If all or part of the program is not approved by FRA, the 
Associate Administrator will inform the training organization or 
learning institution of specific deficiencies. At the time that the 
Associate Administrator informs of any deficiencies, the Associate 
Administrator will clarify whether any particular training courses 
shall be considered approved.
    (e) Previously approved programs require an informational filing 
when modified. The training organization or learning institution shall 
review its previously approved training program and modify it 
accordingly when new safety-related Federal railroad laws, regulations, 
or orders are issued, or new safety-related technologies, procedures, 
or equipment are introduced into the workplace and result in new 
knowledge requirements, safety-related tasks, or in modifications of 
existing safety-related duties. A training organization or

[[Page 6458]]

learning institution that modifies its training program for these 
described reasons shall submit an informational filing to the Associate 
Administrator not later than 30 days after the end of the calendar year 
in which the modification occurred, unless FRA advises otherwise. 
Programs modified in accordance with this paragraph are considered 
approved upon modification and may be implemented immediately. Any 
program deficiencies noted by the Associate Administrator shall be 
addressed as specified in this section. The filing shall contain a 
summary description of sufficient detail so that FRA can associate the 
changes with the training organization's or learning institution's 
previously approved program, and shall include:
    (1) Descriptions of all new or refresher training courses developed 
after the previous FRA approval, using the same criteria required for 
an initial filing;
    (2) Explanations whenever OJT or arranged practice is added to, or 
discontinued from, a program; and
    (3) Explanations as to how the methods of delivering training, or 
qualifying employees has changed.
    (f) New portions or revisions to an approved program. Substantial 
additions or revisions to a previously approved program, that are not 
described as informational filings in accordance with paragraph (e) of 
this section, shall require prior approval by the Associate 
Administrator before FRA will accept such training as sufficient to 
meet the requirements of this part. The Associate Administrator will 
advise the training organization or learning institution in writing 
whether FRA has approved the new or revised program. If all or part of 
the program is not approved by FRA, the Associate Administrator will 
inform the training organization or learning institution of specific 
deficiencies. At the time that the Associate Administrator informs the 
training organization or learning institution of any deficiencies, the 
Associate Administrator will clarify whether any particular new or 
revised training courses shall be considered approved.
    (g) Training organizations and learning institutions subject to 
this part are required to maintain records for each safety-related 
railroad employee that attends the training, in accordance with the 
recordkeeping requirements of this part.
    (h) Training organizations and learning institutions subject to 
this part shall provide a student's training transcript or training 
record to any employer upon request by the student.


Sec.  243.113  Option to file program electronically.

    (a) Each employer, training organization, or learning institution 
to which this part applies is authorized to file by electronic means 
any program submissions required under this part in accordance with the 
requirements of this section.
    (b) Prior to any person submitting an employer, training 
organization, or learning institution's first program submission 
electronically, the person shall provide the Associate Administrator 
with the following information in writing:
    (1) The name of the employer, training organization, or learning 
institution;
    (2) The names of two individuals, including job titles, who will be 
the entity's points of contact and will be the only individuals allowed 
access to FRA's secure document submission site;
    (3) The mailing addresses for the entity's points of contact;
    (4) The entity's system or main headquarters address located in the 
United States;
    (5) The email addresses for the entity's points of contact; and
    (6) The daytime telephone numbers for the entity's points of 
contact.
    (c) An entity that electronically submits an initial program, 
informational filing, or new portions or revisions to an approved 
program required by this part shall be considered to have provided its 
consent to receive approval or disapproval notices from FRA by email.
    (d) A request for electronic submission or FRA review of written 
materials shall be addressed to the Associate Administrator for 
Railroad Safety/Chief Safety Officer, Federal Railroad Administration, 
1200 New Jersey Avenue SE., Washington, DC 20590.
    (e) FRA may electronically store any materials required by this 
part regardless of whether the entity that submits the materials does 
so by delivering the written materials to the Associate Administrator 
and opts not to submit the materials electronically.
    (f) An entity that opts not to submit the materials required by 
this part electronically, but provides one or more email addresses in 
its submission, shall be considered to have provided its consent to 
receive approval or disapproval notices from FRA by email or mail.

Subpart C--Program Implementation and Oversight Requirements


Sec.  243.201  Employee qualification requirements.

    (a) Designating existing employees. By no later than [DATE 2 YEARS 
AFTER EFFECTIVE DATE OF THIS RULE], each employer, in operation as of [ 
DATE ONE YEAR AND 120 DAYS AFTER EFFECTIVE DATE OF THIS RULE], shall 
declare the designation of each of its existing safety-related railroad 
employees by occupational category or subcategory, and only permit 
designated employees to perform safety-related service in that 
occupational category or subcategory. The Associate Administrator may 
extend this period based on a written request.
    (b) An employer commencing operations after [ DATE ONE YEAR AND 120 
DAYS AFTER EFFECTIVE DATE OF THIS RULE] shall declare the designation 
of each of its existing safety-related railroad employees by 
occupational category or subcategory prior to beginning operations, and 
only permit designated employees to perform safety-related service in 
that category or subcategory. Any person designated shall have met the 
requirements for newly hired employees or those assigned new safety-
related duties in accordance with paragraph (c) of this section.
    (c) Newly hired employees or those assigned new safety-related 
duties. The following requirements apply to qualifying a safety-related 
railroad employee who, subsequent to the employer's designation in 
accordance with paragraphs (a) and (b) of this section, is newly hired 
or is to engage in a safety-related task not associated with the 
employee's previous training.
    (1) Prior to an employee becoming a qualified member of an 
occupational category or subcategory, the employer shall require a 
safety-related railroad employee who is newly hired or is to engage in 
safety-related duties not associated with the employee's previous 
training to successfully complete the formal training curriculum for 
that category or subcategory of safety-related railroad employee. 
Successful completion of the formal training curriculum includes 
passing any required examinations covering the skills and knowledge the 
employee will need to possess in order to perform the safety-related 
duties necessary to be a member of the occupational category or 
subcategory.
    (2) If the training curriculum includes OJT, the employee shall 
demonstrate, to the satisfaction of a designated

[[Page 6459]]

instructor, OJT proficiency by successfully completing the safety-
related tasks necessary to become a qualified member of the 
occupational category or subcategory. However, as part of the OJT 
process and prior to completing such training and passing the field 
evaluation, a person may perform such tasks under the direct onsite 
observation of any qualified person, provided the qualified person has 
been advised of the circumstances and is capable of intervening if an 
unsafe act or non-compliance with Federal railroad safety laws, 
regulations, or orders is observed.
    (d) Employees previously qualified or trained, but not by the 
current employer. If an employee has received relevant qualification or 
training for a particular occupational category or subcategory through 
participation in a FRA-approved training program submitted by an entity 
other than the employee's current employer, that training shall satisfy 
the requirements of this part:
    (1) Provided that:
    (i) a current record of training is obtained from that other 
entity; or
    (ii) when a current record of training is unavailable from that 
other entity, an employer performs testing to ensure the employee has 
the knowledge necessary to be a member of that category or subcategory 
of safety-related railroad employee; and
    (2) When the employee, in the previous 180 days, has either not 
performed the safety-related duties or not received initial or periodic 
training for an occupational category or subcategory, the employer 
shall perform testing to ensure the employee has retained the knowledge 
necessary to remain a member of that occupational category or 
subcategory. In the situation where an employee's records are 
unavailable and the employee is subject to testing under paragraph 
(d)(1)(ii) of this section, no additional testing is required.
    (e) Refresher training requirements and options. Beginning [DATE on 
January 1, TWO YEARS AFTER EFFECTIVE DATE OF THIS RULE], each employer 
shall deliver refresher training at an interval not to exceed 3 
calendar years from the date of an employee's last training event, 
except where refresher training is specifically required more 
frequently in accordance with this chapter. Each employer shall ensure 
that, as part of each employee's refresher training, the employee is 
trained and qualified on the application of any Federal railroad safety 
laws, regulations, and orders the person is required to comply with, as 
well as any relevant railroad rules and procedures promulgated to 
implement those Federal railroad safety laws, regulations, and orders.
    (f) An employee designated to provide formal training to other 
employees, and who is not a designated instructor, shall be qualified 
on the safety-related topics or tasks in accordance with the employer's 
training program and the requirements of this part.


Sec.  243.203  Records.

    (a) General requirements for qualification status records; 
accessibility. Each employer shall maintain records to demonstrate the 
qualification status of each safety-related railroad employee that it 
employs.
    (1) The records for former safety-related railroad employees shall 
be accessible for 6 years at the employer's system headquarters after 
the employment relationship ends.
    (2) Current employee records shall be accessible at the employer's 
system headquarters.
    (b) The records shall include the following information concerning 
each such employee:
    (1) The name of the employee;
    (2) Occupational category or subcategory designations for which the 
employee is deemed qualified;
    (3) The dates that each formal training course was completed;
    (4) The title of each formal training course successfully 
completed;
    (5) An indication of whether the person passed or failed any 
associated tests;
    (6) If the safety-related railroad employee attended safety-related 
training offered by a business, a training organization, or a learning 
institution with an FRA-approved program, a copy of the transcript or 
appropriate record from that business, training organization, or 
learning institution;
    (7) The employee's OJT performance, which shall include the unique 
name or identifier of the OJT program component in accordance with 
Sec.  243.103, the date the OJT program component was successfully 
completed, and the identification of the person(s) determining that the 
employee successfully completed all OJT training necessary to be 
considered qualified to perform the safety-related tasks identified 
with the occupational categories or subcategories for which the 
employee is designated in accordance with the program required by this 
part;
    (8) The date that the employee's status is determined to be 
qualified and the employee is designated to perform the safety-related 
duties identified with any particular occupational categories or 
subcategories, in accordance with the program required by this part;
    (9) If an employee's qualification status was transferred from 
another entity with an approved program, a copy of the training record 
from that other entity; and
    (10) Any additional information required by this part.
    (c) Record accessibility for other than individual employee 
records. Except for records demonstrating the qualification status of 
each safety-related railroad employee as described in paragraph (b) of 
this section or otherwise specified in this part, each record required 
by this part shall be accessible at the system headquarters and at each 
division headquarters where the test, inspection, annual review, or 
other event is conducted for 3 calendar years after the end of the 
calendar year to which the event relates.
    (d) Availability of records. Each employer, training organization, 
or learning institution required to maintain records under this part 
shall:
    (1) Make all records available for inspection and copying/
photocopying to representatives of FRA, upon request during normal 
business hours; and
    (2) Make an employee's records available for inspection and 
copying/photocopying to that employee, former employee, or such 
person's representative upon written authorization by such employee 
during normal business hours.
    (e) Electronic recordkeeping. Each employer, training organization, 
or learning institution to which this part applies is authorized to 
retain by electronic recordkeeping the information prescribed in this 
section, provided that all of the following conditions are met:
    (1) The electronic system is designed so that the integrity of each 
record is maintained through appropriate levels of security such as 
recognition of an electronic signature, or other means, which uniquely 
identify the initiating person as the author of that record. No two 
persons shall have the same electronic identity;
    (2) The electronic system shall ensure that each record cannot be 
modified in any way, or replaced, once the record is transmitted and 
stored;
    (3) The employer, training organization, or learning institution 
adequately limits and controls accessibility to such information 
retained in its electronic database system and identifies those 
individuals who have such access;
    (4) The employer, training organization, or learning institution 
has a terminal at the system headquarters,

[[Page 6460]]

and each railroad that has operating divisions has a terminal at each 
division headquarters;
    (5) Each such terminal has a computer (i.e., monitor, central 
processing unit, and keyboard) and either a facsimile machine or a 
printer connected to the computer to retrieve and produce information 
in a usable format for immediate review by FRA representatives;
    (6) The employer, training organization, or learning institution 
has a designated representative who is authorized to authenticate 
retrieved information from the electronic system as true and accurate 
copies of the electronically kept records; and
    (f) Transfer of records. If an employer ceases to do business and 
its assets will be transferred to a successor employer, it shall 
transfer to the successor employer all records required to be 
maintained under this part, and the successor employer shall retain 
them for the remainder of the period prescribed in this part.


Sec.  243.205  Periodic oversight.

    (a) As part of the program required in accordance with this part, 
an employer shall adopt and comply with a program to conduct periodic 
oversight tests and inspections to determine if safety-related railroad 
employees comply with Federal railroad safety laws, regulations, and 
orders particular to FRA-regulated personal and work group safety. The 
program of periodic oversight shall commence on the day the employer 
files its program with FRA pursuant to Sec.  243.101(a) or on the day 
the employer commences operations pursuant to Sec.  243.101(b). The 
data gathered through the testing and inspection components of the 
program shall be used to determine whether systemic performance gaps 
exist, and to determine if modifications to the training component of 
the program are appropriate to close those gaps.
    (b) Periodic oversight specified in this section is not required 
for employees covered by parts 240 and 242 of this chapter, but a 
railroad shall use results of the assessments required by those parts 
to determine if changes in its training programs are necessary to close 
any proficiency gaps found during those assessments.
    (c) Railroad oversight. Each railroad shall identify supervisory 
employees, by category or subcategory, responsible for conducting 
periodic oversight tests and inspections for the safety-related 
railroad employees that it authorizes to perform safety-related duties 
on its property, except a railroad is not required to:
    (1) Provide oversight for a contractor's safety-related railroad 
employees if that contractor is required to conduct its own periodic 
oversight because it meets the criteria specified in paragraph (g) of 
this section;
    (2) Provide oversight for categories or subcategories of a 
contractor's safety-related railroad employees if the railroad does not 
employ supervisory employees who are qualified as safety-related 
railroad employees in those categories or subcategories; or
    (3) Provide oversight for any supervisory employee identified by 
the railroad as responsible for conducting oversight in accordance with 
this section.
    (d) A railroad is not required to perform operational tests of 
safety-related railroad employees employed by a contractor.
    (e) A railroad may choose to require supervisory employees to 
perform oversight of safety-related railroad employees employed by a 
contractor either:
    (1) When oversight test and inspection sessions are scheduled 
specifically to determine if safety-related employees are in compliance 
with Federal railroad safety laws, regulations, and orders particular 
to FRA-regulated personal and work group safety; or
    (2) When a qualified railroad supervisory employee's duties place 
this person in the vicinity of one or more safety-related railroad 
employees employed by a contractor and performing the oversight would 
result in minimal disruption of this person's other assigned duties.
    (f) Any railroad that finds evidence of contractor employee non-
compliance with Federal railroad safety laws, regulations, and orders 
particular to FRA-regulated personal and work group safety during the 
periodic oversight shall provide that employee and that employee's 
employer with details of the non-compliance.
    (g) Contractor oversight. Each contractor shall conduct periodic 
oversight tests and inspections of its safety-related railroad 
employees provided:
    (1) A contractor employs more than 15 safety-related railroad 
employees;
    (2) A contractor relies on training it directly provides to its own 
employees as the basis for qualifying those employees to perform 
safety-related duties on a railroad; and
    (3) A contractor employs supervisory safety-related railroad 
employees capable of performing oversight.
    (h) Notwithstanding the requirements of paragraphs (c) and (g) of 
this section, a railroad and a contractor may agree that the contractor 
will provide the oversight by specifying in the program that the 
railroad has trained the contractor employees responsible for training 
and oversight.
    (i) Each employer that conducts periodic oversight in accordance 
with this section must keep a record of the date, time, place, and 
result of each test or inspection. The records shall specify each 
person administering tests and inspections, and each person tested. The 
record shall also provide a method to record whether the employee 
complied with the monitored duties, and any interventions used to 
remediate non-compliance. Modifications of the program required by 
Sec.  217.9 of this chapter may be used in lieu of this oversight 
program, provided a railroad specifies it has done so in its program 
submitted in accordance with this part.
    (j) Records required under this section are subject to the 
requirements of Sec.  243.203.


Sec.  243.207  Annual review.

    (a) Review of safety data and adjustments to required training 
programs. The purpose of this review is to determine if knowledge or 
performance gaps exist in the application of Federal railroad safety 
laws, regulations, and orders. This section shall apply to each 
railroad once a program has been approved by FRA in accordance with 
this part. This section does not apply to a railroad with less than 
400,000 total employee work hours annually. In addition, this section 
does not apply to employers other than railroads except as specified in 
paragraph (f) of this section.
    (b) Each railroad that is required to conduct periodic oversight in 
accordance with Sec.  243.205 is also required to conduct an annual 
review, as provided in this section, and shall retain, at its system 
headquarters, one copy of the written annual review.
    (c) Each railroad shall designate a person(s) who shall conduct a 
written annual review. The annual review shall be designed to identify 
knowledge or performance gaps in occupational categories and determine 
whether adjustments to the training component of the program are the 
appropriate intervention to close those gaps or otherwise improve the 
effectiveness of the program. Such review shall include analysis of the 
following data:
    (1) Periodic oversight data required by Sec.  243.205;
    (2) Reportable accident/incident data as defined in part 225 of 
this chapter;
    (3) FRA inspection report data;

[[Page 6461]]

    (4) Employee training feedback received though a course evaluation 
process, if such feedback is available; and
    (5) Feedback received from labor representatives, if such feedback 
is available.
    (d) Based upon the results of the annual review, the designated 
person(s) shall coordinate any necessary adjustments to the initial and 
refresher training programs. At the railroad's option, the annual 
review required under this section may be conducted in conjunction with 
any periodic review required under part 217 of this chapter.
    (e) If a railroad utilizes a contractor that directly trains its 
own safety-related railroad employees, the railroad shall notify the 
contractor of the relevant training program adjustments made to the 
railroad's program in accordance with paragraph (d) of this section.
    (f) A contractor shall use any information provided by a railroad 
to adjust its training specific to the Federal railroad safety laws, 
regulations, and orders particular to FRA-regulated personal and work 
group safety.
    (g) Prior to September 1 of each calendar year, each railroad to 
which this section applies shall complete its annual review for the 
previous calendar year.


Sec.  243.209  Railroad maintained list of contractors utilized.

    (a) Each railroad utilizing contractors to supply the railroad with 
safety-related railroad employees shall maintain a list, at its system 
headquarters, with information regarding each contractor utilized 
unless:
    (1) the railroad qualifies each of the contractor's safety-related 
railroad employees utilized; and
    (2) the railroad maintains the training records for each of the 
contractor's safety-related railroad employees utilized.
    (b) The listing required by paragraph (a) of this section shall 
include:
    (1) The full corporate or business name of the contractor;
    (2) The contractor's primary business and email address; and
    (3) The contractor's primary telephone number.
    (c) The information required by this section shall be continuously 
updated as additional contractors are utilized, and no contractor 
information shall be deleted from the list unless the contractor has 
not been utilized for at least 3 years from the end of the calendar 
year the contractor was last utilized.

APPENDIX A TO PART 243--SCHEDULE OF CIVIL PENALTIES

    A penalty may be assessed against an individual only for a 
willful violation. The Administrator reserves the right to assess a 
penalty of up to $100,000 for any violation where circumstances 
warrant. See 49 CFR part 209, Appendix A.
    (Penalty Schedule to be included in Final Rule)

    Issued in Washington, DC, on January 25, 2012.
Joseph C. Szabo,
Administrator.

[FR Doc. 2012-2148 Filed 2-6-12; 8:45 am]
BILLING CODE 4910-06-P