[Federal Register Volume 82, Number 84 (Wednesday, May 3, 2017)]
[Rules and Regulations]
[Pages 20549-20553]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2017-08944]


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DEPARTMENT OF TRANSPORTATION

Federal Railroad Administration

49 CFR Part 243

[Docket No. FRA-2009-0033, Notice No. 4]
RIN 2130-AC68


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

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

ACTION: Final rule; delay of implementation dates.

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SUMMARY: This document delays the implementation dates in the final 
rule published November 7, 2014, because model training program 
developers alerted FRA they will not be able to timely produce model 
programs that an estimated 1,459 railroads and contractors are expected 
to use to comply with the rule's program submission requirements.

DATES: This regulation is effective June 2, 2017. Petitions for 
reconsideration of this delay must be received on or before May 23, 
2017. Petitions for reconsideration will be posted in the docket for 
this proceeding. Comments on any submitted petition for reconsideration 
must be received on or before June 19, 2017.

ADDRESSES: Petitions for reconsideration or comments on such petitions: 
Any petitions and any comments on petitions related to Docket No. FRA-
2009-0033 may be submitted by any of the following methods:
     Online: Comments should be filed at the Federal 
eRulemaking Portal, http://www.regulations.gov. Follow the online 
instructions for submitting comments.
     Fax: 202-493-2251.
     Mail: Docket Management Facility, U.S. DOT, 1200 New 
Jersey Avenue SE., W12-140, Washington, DC 20590.
     Hand Delivery: Room W12-140 on the Ground level of the 
West Building, 1200 New Jersey Avenue SE., Washington, DC, between 9 
a.m. and 5 p.m. Monday through Friday, except federal holidays.
    Instructions: All submissions must include the agency name and 
docket number or Regulatory Identification Number (RIN) for this 
rulemaking. All petitions and comments received will be posted without 
change to http://www.regulations.gov; this includes any personal 
information. Please see the Privacy Act heading in the SUPPLEMENTARY 
INFORMATION section of this document for Privacy Act information 
related to any submitted petitions 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 
Room W12-140 on the Ground level of the West Building, 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: 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: FRA issued a final rule establishing minimum 
training standards for each category and subcategory of safety-related 
railroad employees and requiring railroad carriers, contractors, and 
subcontractors to submit training programs to FRA for FRA approval. The 
final rule was published November 7, 2014 (79 FR 66459) and was 
effective on January 6, 2015 (2014 Final Rule). The 2014 Final Rule was 
required by section 401(a) of the Rail Safety Improvement Act of 2008, 
Public Law 110-432, 122 Stat. 4883 (Oct. 16, 2008), codified at 49 
U.S.C. 20162, and the Secretary of

[[Page 20550]]

Transportation delegated the authority to conduct this rulemaking and 
implement the rule to the Federal Railroad Administrator. 49 CFR 
1.89(b).
    In the preamble to the 2014 Final Rule, FRA noted the importance of 
establishing implementation dates and providing incentives for the 
early filing of model programs to improve the efficiency and 
effectiveness of the review process. FRA recognized it was paramount to 
give model program developers sufficient time to develop programs and 
receive FRA approval. FRA also recognized that employers would not use 
those model programs unless the employers were given a reasonable time 
to consider using those programs before the employers' deadline for 
implementation. Consequently, the 2014 Final Rule provided model 
program developers with an incentive to file all model programs by May 
1, 2017--eight months before the first employers would have to submit 
model programs and two years before smaller employers (i.e., those 
employers with less than 400,000 total employee work hours annually) 
would have to submit their model programs. See Sec. Sec.  
243.105(a)(3), and 243.101(a)(1) and (2). The incentive to submit early 
was a guarantee from FRA that the model program would be considered 
approved so it could be implemented within 180 days after the date of 
submission unless FRA identified that all or part of the program did 
not conform to the rule requirements.
    After publishing the 2014 Final Rule, FRA took significant steps to 
educate the regulated community on its requirements. On May 1, 2015, 
FRA notified the regulated community it issued an Interim Final 
Compliance Guide published in the rulemaking docket. The guide 
illustrates ways to comply with the rule, provides the requirements in 
a different format to make it quicker and easier to understand, and 
answers questions FRA believes are likely to be frequently asked. Any 
sized employer can use this guide as a quick way to determine if FRA 
will likely find the employer's training program complies with the 2014 
Final Rule. The guide was ``Interim Final'' because it was effective 
upon publication and signaled FRA would consider amending the guidance 
based on comments received. FRA considered all comments received by the 
June 30, 2015 deadline and considered many late-filed comments, as 
practicable, before issuing the Final Compliance Guide published in the 
rulemaking docket May 25, 2016.
    FRA personnel also conducted significant outreach to the regulated 
community; making presentations at association conferences; 
participating in association-sponsored webinars; and having numerous 
meetings, conference calls, and other exchanges of information in which 
FRA answered questions as they arose. FRA included many of the 
questions and answers with broad industry scope in the Final Compliance 
Guide.
    On March 20, 2017, FRA added information to its Web site to more 
broadly disseminate information about the 2014 Final Rule's 
requirements. See https://www.fra.dot.gov/Page/P1023. The information 
on FRA's Web site provides quick links to FRA's Final Compliance Guide, 
Frequently Asked Questions (FAQs), the portal for submitting training 
programs, and an electronic Shareholder Training Matrix (Matrix). The 
Matrix allows individuals to search general job categories and titles 
to determine whether training is required for a particular rule and 
what kind of training is required (i.e., formal or on-the-job training, 
or a briefing only). Anyone can use the Matrix to determine what 
regulatory provisions must be included in a training program.
    During FRA's outreach on the 2014 Final Rule, FRA heard concerns 
from the American Short Line and Regional Railroad Association (ASLRRA) 
and National Railroad Construction and Maintenance Association, Inc. 
(NRC), two of the associations identified in the Regulatory Impact 
Analysis (RIA) as likely model program developers. These two 
associations represent most of the 1,459 employers FRA projected would 
adopt model training programs rather than develop their own.\1\ ASLRRA 
requested FRA's help in developing its model programs for its members, 
and FRA provided training documents FRA uses to train the agency's 
personnel on federal rail safety requirements. In December 2016, FRA 
completed sharing the last of those documents with ASLRRA. Because the 
training materials FRA made available to ASLRRA may be useful for 
others in the regulated community, FRA will also make them available on 
FRA's Web site. ASLRRA has submitted several model training programs to 
FRA and has made significant strides towards completing some programs. 
However, ASLRRA still has a significant number of training programs 
left to develop and submit.
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    \1\ The RIA for the 2014 Final Rule provided the estimated costs 
and benefits, and explained FRA based this analysis on the premise 
that ``most small railroads and contractors will use consortiums or 
model training programs developed by industry associations . . . 
thereby minimizing costs.'' RIA at 15. In the RIA, FRA estimated 
that 1,459 railroads and contractors would use model programs.
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    Similarly, NRC informed FRA it found certain aspects of the rule 
confusing to implement and difficult for contractors to apply in 
practice. Despite FRA's efforts since 2015 to explain the regulatory 
requirements to NRC and its members through multiple webinars, 
conference calls, and other outreach, NRC informed FRA it needs more 
time to develop and submit model training programs the 2014 Final Rule 
requires.
    The fact that both ASLRRA and NRC have notified FRA they cannot 
submit most or all of their model training programs by the May 1, 2017 
deadline significantly impacts the costs associated with the rule and 
complicates the approval process. The 1,459 employers would bear 
significantly higher costs developing personalized training programs, 
rather than adopting model programs that are generic enough to apply to 
any size railroad or contractor. Further, FRA's resources would be 
stretched thin reviewing up to 1,459 individual employer programs, 
rather than a relatively small number of model programs. In addition, 
if FRA gives the associations additional time to produce model 
programs, FRA expects the quality of those model programs will be much 
better than those separately prepared by a large number of individual 
small or medium employers.
    The additional time to implement the rule should also help model 
training program developers and other regulated entities comply with 
the final rule. Nevertheless, any individual employer, model training 
program developer, or other regulated person that finds these revised 
implementation deadlines difficult to comply with may file a waiver 
requesting additional time as permitted by 49 CFR part 211, subpart C 
for FRA approval. FRA would appreciate receiving any such request for 
additional time to comply with the implementation dates no earlier than 
four months before the relevant implementation deadline.
    Of course, nothing in this rule affects the ability of any 
regulated entity from complying with the requirements in advance of any 
deadline.
    In consideration of the foregoing, FRA delays each of the 
implementation dates in the 2014 Final Rule by one year.

[[Page 20551]]

Section-by-Section Analysis

Subpart B--Program Components and Approval Process

Section 243.101 Employer Program Required
    The implementation dates in this section are delayed by one year so 
all employers will have an additional year to develop and submit 
training programs. Specifically, in paragraphs (a)(1) and (b), the 
January 1, 2018 implementation dates are changed to January 1, 2019.
    In paragraph (a)(2), the implementation date in the 2014 Final Rule 
was dependent on the date FRA issued the Interim Final Compliance Guide 
published May 1, 2015. Because that date has passed, and FRA can now 
calculate the specific implementation date in paragraph (a)(2), FRA 
calculated that implementation date and added an additional year. 
Consequently, the May 1, 2019 implementation date is changed to May 1, 
2020. It is also no longer necessary to reference the Interim Final 
Compliance Guide.
Section 243.105 Optional Model Program Development
    The implementation date in paragraph (a)(3) of this section is 
delayed by one year. Consequently, model program developers will have 
an additional year to submit model programs. Instead of a May 1, 2017 
implementation date, model program developers will have until May 1, 
2018, for their programs to be considered approved by FRA and can be 
implemented 180 days after the date of submission.
Section 243.111 Approval of Programs Filed by Training Organizations or 
Learning Institutions
    Each training organization or learning institution that has 
provided training services to employers this part covers will have an 
extra year to continue to offer such training services without FRA 
approval. The 2014 Final Rule specified that a training organization or 
learning institution that has provided training services to employers 
covered by this part before January 1, 2017, may continue to offer such 
training services without FRA approval until January 1, 2018. FRA 
amends paragraph (b) of this section so that both dates are delayed by 
one year. That requirement now reads that a training organization or 
learning institution that has provided training services to employers 
covered by this part before January 1, 2018, may continue to offer such 
training services without FRA approval until January 1, 2019.

Subpart C--Program Implementation and Oversight Requirements

Section 243.201 Employee Qualification Requirements
    The implementation dates in this section are delayed by one year so 
all employers have an additional year to designate each of their 
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. In 
paragraph (a)(1), the September 1, 2018 implementation date is changed 
to September 1, 2019.
    In paragraph (a)(2), the implementation date in the 2014 Final Rule 
was dependent on the date FRA issued the Interim Final Compliance Guide 
published May 1, 2015. Because that date has passed, and FRA can now 
calculate the specific implementation date in paragraph (a)(2), FRA 
calculated that implementation date and added an additional year. 
Consequently, the May 1, 2019 implementation date is changed to January 
1, 2021. It also is no longer necessary to reference the Interim Final 
Compliance Guide.
    In paragraph (b), the January 1, 2018 implementation date is 
changed to January 1, 2019.
    In paragraphs (e)(1) and (2), the implementation dates for 
refresher training are also delayed by one year. Thus, the January 1, 
2020 implementation date in paragraph (e)(1) is changed to January 1, 
2021, and completion of that refresher training for each employee must 
be completed by no later than December 31, 2023, instead of the 2014 
Final Rule requirement of December 31, 2022. In paragraph (e)(2), each 
employer with less than 400,000 total employee work hours annually must 
implement a refresher training program by May 1, 2022, rather than the 
2014 Final Rule requirement of May 1, 2021, and complete that refresher 
training for each employee by no later than December 31, 2024, instead 
of the 2014 Final Rule requirement of December 31, 2023.

Public Proceedings

    The Administrative Procedure Act generally requires agencies to 
provide the public with notice of proposed rulemaking and an 
opportunity to comment prior to publication of a substantive rule. 
However, 5 U.S.C. 553(b)(3)(B) authorizes agencies to dispense with 
notice and comment ``when the agency for good cause finds that notice 
and public procedure thereon are impracticable, unnecessary, or 
contrary to the public interest.'' FRA finds that providing notice and 
an opportunity to comment would be impracticable and contrary to the 
public interest. The first of several implementation deadlines for the 
regulated community is forthcoming on May 1, 2017. Providing notice and 
an opportunity to comment would likely preclude FRA from delaying the 
implementation dates before this important deadline passes. Delaying 
the implementation dates is necessary to ensure model programs have a 
chance to succeed. If FRA does not delay the implementation dates, 
costs to the regulated community and FRA are expected to escalate, and 
the quality of training programs is expected to decrease, which would 
be contrary to the public interest.

Regulatory Impact and Notices

Executive Orders 12866 and 13563 and DOT Regulatory Policies and 
Procedures

    This rule has been evaluated in accordance with existing regulatory 
policies and procedures and is considered to be nonsignificant under 
both Executive Orders 12866 and 13563 and DOT policies and procedures. 
See 44 FR 11034, Feb. 26, 1979. This rule is beneficial for regulated 
entities by adding time to comply with the 2014 Final Rule and imposing 
no costs. Because any regulated entity may file according to the 2014 
Final Rule's schedule or the extended schedule in this final rule, 
there are no specific costs associated with this rule.

Regulatory Flexibility Act and Executive Order 13272; Final Regulatory 
Flexibility Assessment

    FRA determines and certifies that this final rule is not expected 
to have a significant impact on a substantial number of small entities. 
The requirements of this rule will apply to employers of safety-related 
railroad employees, whether the employers are railroads, contractors, 
or subcontractors. Although a substantial number of small entities are 
subject to this rule, the rule provides relief by extending all of the 
implementation dates in the 2014 Final Rule. Thus, the economic impact 
of this rule will not be significant because it will only provide 
additional time for all entities to comply.
    This final rule will have no direct impact on small units of 
government, businesses, or other organizations. State rail agencies are 
not required to participate in this program. State owned

[[Page 20552]]

railroads will receive a positive impact by having additional time to 
comply.

Paperwork Reduction Act

    There are no new collection of information requirements contained 
in this final rule and, in accordance with the Paperwork Reduction Act 
of 1995, 44 U.S.C. 3501 et seq., the record keeping and reporting 
requirements already contained in this rule have been approved by the 
Office of Management and Budget. The OMB approval number is OMB No. 
2130-0597. The information collection requirements of this rule became 
effective when they were approved by OMB.

Federalism Implications

    This rule will not have a substantial effect 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. Thus in accordance with Executive Order 13132, 
``Federalism'' (64 FR 43255, Aug. 10, 1999), preparation of a 
Federalism Assessment is not warranted.

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 final rule 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.

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 final 
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 final rule that might trigger the need for a more 
detailed environmental review. As a result, FRA finds that this final 
rule is not a major Federal action significantly affecting the quality 
of the human environment.

Unfunded Mandates Reform Act of 1995

    Pursuant to section 201 of the Unfunded Mandates Reform Act of 1995 
(Pub. L. 104-4, 2 U.S.C. 1531), each Federal agency ``shall, unless 
otherwise prohibited by law, assess the effects of Federal regulatory 
actions on State, local, and tribal governments, and the private sector 
(other than to the extent that such regulations incorporate 
requirements specifically set forth in law).'' Section 202 of the Act 
(2 U.S.C. 1532) further requires that ``before promulgating any general 
notice of proposed rulemaking that is likely to result in the 
promulgation of any rule that includes any Federal mandate that may 
result in expenditure by State, local, and tribal governments, in the 
aggregate, or by the private sector, of $100,000,000 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. 
This final rule will not result in such an expenditure, and thus 
preparation of such a statement is not required.

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). FRA has evaluated this final rule in 
accordance with Executive Order 13211, and has determined that this 
regulatory action is not a ``significant energy action'' within the 
meaning of the Executive Order.

Privacy Act

    Anyone is able to search the electronic form of all comments 
received into any of DOT's dockets by the name of the individual 
submitting the comment (or signing the comment, if submitted on behalf 
of an association, business, labor union, etc.). You may review DOT's 
complete Privacy Act Statement published in the Federal Register on 
April 11, 2000 (Volume 65, Number 70, Pages 19477-78), or you may visit 
http://DocketsInfo.dot.gov.

List of Subjects in 49 CFR Part 243

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

The Final Rule

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

PART 243--[AMENDED]

0
1. The authority citation for part 243 continues to read as follows:

    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 1.89.

Subpart B--Program Components and Approval Process--[Amended]

0
2. Revise 243.101(a) and (b) to read as follows:


Sec.  243.101  Employer program required.

    (a)(1) Effective January 1, 2019, each employer conducting 
operations subject to this part with 400,000 total employee work hours 
annually or more shall submit, adopt, and comply with a training 
program for its safety-related railroad employees.
    (2) Effective May 1, 2020, each employer conducting operations 
subject to this part with less than 400,000 total employee work hours 
annually shall submit, adopt, and comply with a training program for 
its safety-related railroad employees.
    (b) Except for an employer subject to the requirement in paragraph 
(a)(2) of this section, an employer commencing operations subject to 
this part after January 1, 2019, shall submit a training program for 
its safety-related railroad employees before commencing operations. 
Upon commencing operations, the employer shall adopt and comply with 
the training program.
* * * * *

0
 3. Revise 243.105(a)(3) to read as follows:


Sec.  243.105  Optional model program development.

    (a) * * *
    (3) Each model training program submitted to FRA before May 1, 
2018, is considered approved and may be implemented 180 days after the 
date of submission unless the Associate Administrator advises the 
organization, business, or association that developed and submitted the 
program that all or part of the program does not conform.
* * * * *

[[Page 20553]]


0
 4. Revise 243.111(b) to read as follows:


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

* * * * *
    (b) A training organization or learning institution that has 
provided training services to employers covered by this part before 
January 1, 2018, may continue to offer such training services without 
FRA approval until January 1, 2019. 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 before approving or disapproving 
the extension.
* * * * *

Subpart C--Program Implementation and Oversight Requirements--
[Amended]

0
 5. Revise 243.201(a)(1) and (2), (b), and (e)(1) and (2) to read as 
follows:


Sec.  243.201  Employee qualification requirements.

    (a) * * *
    (1) By no later than September 1, 2019, each employer with 400,000 
total employee work hours annually or more in operation as of January 
1, 2019, 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.
    (2) By no later than January 1, 2021, each employer with less than 
400,000 total employee work hours annually in operation as of January 
1, 2020, 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) Except for an employer subject to the requirement in paragraph 
(a)(2) of this section, an employer commencing operations after January 
1, 2019 shall declare the designation of each of its existing safety-
related railroad employees by occupational category or subcategory 
before 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.
* * * * *
    (e) * * *
    (1) Beginning January 1, 2021, each employer with 400,000 total 
employee work hours annually or more 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. 
If the last training event occurs before FRA's approval of the 
employer's training program, the employer shall provide refresher 
training either within 3 calendar years from that prior training event 
or no later than December 31, 2023. 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.
    (2) Beginning May 1, 2022, each employer with less than 400,000 
total employee work hours annually 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. 
If the last training event occurs before FRA's approval of the 
employer's training program, the employer shall provide refresher 
training either within 3 calendar years from that prior training event 
or no later than December 31, 2024. 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.

Patrick T. Warren,
Acting Administrator.
[FR Doc. 2017-08944 Filed 5-2-17; 8:45 am]
 BILLING CODE 4910-06-P