Federal Register, Volume 77 Issue 25 (Tuesday, February 7, 2012)

[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)
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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.

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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)
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$1,246,926,928 $81,592,455 7.3 $1,020,012,541 $64,092,452 7.1
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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

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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.

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