66460 Federal Register / Vol. 79, No. 216 / Friday, November 7, 2014 / Rules and Regulations 

DEPARTMENT OF TRANSPORTATION 

Federal Railroad Administration 

49 CFR Parts 214, 232, and 243 

[Docket No. FRA–2009–0033, Notice No. 3] 

RIN 2130–AC06 

Training, Qualification, and Oversight 

for Safety-Related Railroad Employees 

AGENCY: Federal Railroad 

Administration (FRA), Department of 

Transportation (DOT). 

ACTION: Final rule. 

SUMMARY: FRA is establishing minimum 

training standards for all safety-related 

railroad employees, as required by the 

Rail Safety Improvement Act of 2008 

(RSIA). The final rule requires 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 minimum training 

qualifications for each occupational 

category of employee. The rule also 

requires most employers to conduct 

periodic oversight of their own 

employees and annual written reviews 

of their training programs to close 

performance gaps. The rule also 

contains specific training and 

qualification requirements for operators 

of roadway maintenance machines that 

can hoist, lower, and horizontally move 

a suspended load. Finally, the rule 

clarifies the existing training 

requirements for railroad and contractor 

employees that perform brake system 

inspections, tests, or maintenance. 

DATES: This regulation is effective 

January 6, 2015. Petitions for 

reconsideration must be received on or 

before December 29, 2014. 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 February 10, 2015. 

ADDRESSES: Petitions for reconsideration 

or comments on such petitions: Any 

petitions and any comments to 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: 

Table of Contents for Supplementary 

Information 

I. Executive Summary 

II. RSIA Requirement 

III. RSAC Overview 

IV. RSAC Training Standards and Plans 

Working Group 

V. Discussion of Specific Comments and 

Conclusions 

A. Implementation Dates and Incentives for 

Early Filing of Programs 

B. Hazmat Employees Not Covered 

C. Preemptive Effect and Construction 

D. Request for Preemption Provision for 

Entities That Develop Model Programs 

E. Training Required of Manufacturer’s 

Employees and Other Contractors Who 

Inspect, Repair, and Maintain Equipment 

off Railroad Property 

F. Application and Responsibility of 

Compliance for Tourist, Scenic, Historic, 

and Excursion Railroads 

G. Application to Private Motorcar 

Operators 

H. Application to Bridge Inspectors and 

Small Engineering Firms 

I. Qualified Instructor 

J. Training for Designated Instructors and 

Supervisors Performing Oversight 

K. Refresher Training 

L. Waivers 

M. Employees Charged With Inspection of 

Track or Railroad Equipment 

N. Employees Charged With Inspection of 

Railroad Bridges 

O. Joint Ventures 

P. Requests for Confidential Treatment of 

Programs 

Q. Computer and Simulator-Based 

Instruction 

R. FRA’s Qualifications to Review Training 

Programs 

S. Compliance Guide 

VI. Section-by-Section Analysis 

VII. Regulatory Impact and Notices 

A. Executive Order 12866, Executive Order 

13563, and DOT Regulatory Policies and 

Procedures 

B. Regulatory Flexibility Act and Executive 

Order 13272; Final 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 

Purpose of the Regulatory Action and 

Legal Authority 

FRA is issuing regulations 

establishing minimum training 

standards for each category and 

subcategory of safety-related railroad 

employee and the submission of 

training plans from railroad carriers, 

contractors, and subcontractors for the 

Secretary of Transportation (Secretary) 

approval, as required by section 401(a) 

of the RSIA, Public Law 110–432, 122 

Stat. 4883, (Oct. 16, 2008), codified at 49 

U.S.C. 20162. The Secretary delegated 

this authority to the Federal Railroad 

Administrator. 49 CFR 1.89(b). The 

statutory provisions are summarized 

below. 

Section 20162(a)(1) mandates that the 

employers of each safety-related railroad 

employee be required ‘‘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.’’ Paragraph (a)(2) of the 

statute mandated a requirement for 

employers to ‘‘submit training and 

qualification plans . . . for approval.’’ 

In paragraph (a)(3), the statute requires 

that the Secretary ensure that the 

employer submitted programs 

specifically address the training of 

safety-related railroad employees 

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Federal Register / Vol. 79, No. 216 / Friday, November 7, 2014 / Rules and Regulations 66461 

1 In the background of this final rule, FRA uses 

the terms ‘‘hands-on training’’ and ‘‘hands-on 

training components.’’ These terms are not meant 

to signify a type of formal training, but a technique 

used during some types of formal training (most 

commonly, classroom and on-the-job). Hands-on 

training include one or more activities in which 

there is an opportunity for learners to touch the 

items to be used to perform the task, and to attempt, 

practice, or perform portions of the task being 

learned. On-the-job (OJT) training allows the learner 

to actually do the tasks required on a job, under the 

close scrutiny of a qualified person. See 

§ 243.201(c)(2). 

2Hands-on training is generally used by 

instructors/trainers to re-enforce new skills to the 

learner. Hands-on can be a simulated exercise in a 

laboratory, classroom, or it can be used in the actual 

work environment similar to OJT. Hands-on activity 

enables the trainer/instructor to objectively assess 

learning transfer based on successful completion of 

the task to be performed. 

charged with the inspection of track or 

railroad equipment so that these 

employees are qualified to assess 

railroad compliance with Federal 

standards, not only to identify and 

correct defective conditions, but to 

initiate immediate remedial action to 

correct critical safety defects that are 

known to contribute to derailments, 

accidents, incidents, or injuries. 

Furthermore, paragraphs (b) and (c) of 

the statute set out the method of the 

plan approval and permit the Secretary 

to exempt employers from submitting 

plans previously approved. 

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 safety 

risk in the railroad environment. FRA 

believes that better designed training 

can reduce the number of accidents and 

incidents. 

Summary of the Major Provisions of the 

Regulatory Action in Question 

FRA is requiring that each employer 

of one or more safety-related railroad 

employees (whether the employer is a 

railroad, contractor, or subcontractor) 

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 final rule 

also requires that the training program 

developed by each employer be 

submitted to FRA for approval. FRA is 

proposing a holistic approach including 

minimum training and qualification 

standards, maximum refresher training 

intervals, review and oversight of the 

training programs, and performance 

standards. The approach consists of 

three main components: 

1. A requirement that all employers 

produce and submit a training program 

for FRA approval. 

2. A requirement that all employers 

implement this training program in the 

initial and ongoing training for all 

safety-critical railroad employees. 

3. A requirement that certain 

employers monitor the outcomes of 

their training programs and revise the 

programs if and when evidence arises of 

the need for revision. 

FRA believes that well-designed 

training programs have the potential to 

reduce risk in the railroad environment, 

therefore reducing the frequency and 

severity of accidents. 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 (OJT), and 

refresher training. Furthermore, FRA 

expects that these training programs 

will use ‘‘hands-on’’ or engaging 

training methods where practicable and 

appropriate.1 These programs will 

include: Initial, ongoing, and OJT 

criteria; testing and skills evaluation 

measures designed to ensure continual 

compliance with applicable Federal 

standards; and the identification of 

critical safety defects and plans for 

immediate remedial actions to correct 

them. The rule also contains specific 

training and qualification requirements 

for operators of roadway maintenance 

machines that can hoist, lower, and 

horizontally move a suspended load. 

Finally, the rule clarifies the existing 

training requirements for railroad and 

contractor employees that perform brake 

system inspections, tests, or 

maintenance. 

Costs and Benefits 

In analyzing the final rule, FRA has 

applied updated ‘‘Guidance on the 

Economic Value of a Statistical Life in 

US Department of Transportation 

Analyses,’’ March 2013. This policy 

updates the Value of a Statistical Life 

(VSL) from $6.2 million to $9.1 million 

and revises guidance used to compute 

benefits based on injury and fatality 

avoidance in each year of the analysis 

based on forecasts from the 

Congressional Budget Office (CBO) of a 

1.07% annual growth rate in median 

real wages over the next 30 years (2013– 

2043). FRA also adjusted wage-based 

labor costs in each year of the analysis 

accordingly. Real wages represent the 

purchasing power of nominal wages. 

Non-wage inputs are not impacted. 

The primary cost and benefit drivers 

for this RIA are labor costs and avoided 

injuries and fatalities, both of which in 

turn depend on wage rates. 

Based on the new DOT guidance and 

CBO wage forecast, the total nondiscounted cost of the final rule over the 

20-year period analyzed is 

approximately $389.9 million. Present 

discounted costs evaluated over the first 

20 years of the final rule equal about 

$290.9 million at a 3% discount rate 

and about $207.1 million at a 7% 

discount rate. The annualized costs are 

$26.2 million at a 3% discount rate and 

$36.8 million at a 7% discount rate. 

Additionally, FRA has performed a 

break-even analysis of the final rule, 

estimating the reduction in railroadrelated accidents and incidents that will 

be required in order for the benefits of 

the final rule to offset the costs. FRA 

believes the final rule will reduce railrelated accidents and incidents, and 

associated fatalities, injuries, and 

property damage, through 

implementation of the hands-on and 

other enhanced training methods.2

Table 1 shows the total present 

discounted annual costs of accidents 

and incidents that would be incurred 

over the next 20 years, where injuries 

and fatalities have been monetized 

according to U.S. Department of 

Transportation (DOT) policies; and 

shows the percent reduction in 

accidents and incidents that would be 

necessary for the monetized reduction 

in fatalities, injuries, and property 

damages caused by these accidents to 

justify implementation of this final rule. 

These calculations take into account 

various recent and concurrent initiatives 

to address accidents, including 

implementation of Positive Train 

Control (PTC) systems, issuance of 

passenger hours of service regulations, 

development of conductor certification 

standards, a rule to provide protection 

to roadway workers working next to 

adjacent track, and the implementation 

of programs to address fatigue and 

electronic device distraction, among 

others. 

Using the 2013 VSL guidance, FRA 

estimates that this final rule will break 

even if it results in a 20-year total 

reduction in relevant railroad accidents 

and incidents of 4.59% using a 3% 

discount rate, and 4.59% using a 7% 

discount rate. Another way to look at 

this break even reduction is to describe 

it in terms of how many accidents or 

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66462 Federal Register / Vol. 79, No. 216 / Friday, November 7, 2014 / Rules and Regulations 

3Accidents/incidents are reportable to FRA, and 

the requirements for when injuries reach the 

reportable threshold are found in 49 CFR part 225. 

For instance, nearly all accidents/incidents arising 

from the operation of a railroad that result in a 

death, injury, or occupational illness are reportable. 

4 In 2010, railroads reported to FRA 1,874 train 

accidents and 6,644 incidents. 

incidents need to be avoided for the 

final rule to be worth the costs 

associated with it. In viewing the 

reduction in this manner, the breakeven point corresponds to 

approximately 118 accidents and 

incidents per year on average over the 

20-year period. Of course, no accident 

or incident is ‘‘average’’ and there are 

far fewer major accidents, fatalities, and 

severe injuries reported to FRA than 

there are other accidents/incidents 

meeting the reporting requirements. Of 

the 118 accidents and incident 

reductions necessary to break even 

annually, FRA considered that those 

would likely include at least one severe 

injury and many incidents that result in 

relatively minor, yet still reportable 

injuries.3 Another way this rule would 

break even is by preventing one fatality 

and 86 injuries per year. Between 2001 

and 2010, the number of accidents and 

incidents 4 decreased throughout the 

railroad industry due to various safety 

initiatives. During this same time 

period, there has been a significant 

growth in passenger and freight traffic. 

This new regulation on training 

standards should further contribute 

toward the decreasing trend of railroad 

accidents throughout the country in a 

more challenging, and higher traffic 

environment. 

The following table summarizes 

estimates using the revised DOT 

guidance and CBO real wage rate 

forecasts. 

TABLE 1—SUMMARY OF BREAKEVEN ANALYSIS

[2013 VSL guidance] 

Present value of 

potential annual benefits 

(3% discount rate) 

Total present 

discounted costs 

(3% discount rate) 

Percent 

reduction for 

breakeven 

(3% discount rate) 

Present value 

of potential 

annual benefits 

(7% discount rate) 

Total present 

discounted costs 

(7% discount rate) 

Percent 

reduction for 

breakeven 

(7% discount rate) 

$6,333,998,623 $290,932,418 4.59 $4,507,378,459 $207,068,184 4.59 

II. RSIA Requirement 

Section 20162 of 49 U.S.C. requires 

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 1.89(b). 

FRA quoted the relevant provisions of 

Section 20162 in the proposed rule, 77 

FR 6412, 6413–6414 (Feb. 7, 2012), and 

those provisions are summarized here. 

In paragraph (a)(1), the statute contained 

a mandate that the employers of each 

safety-related railroad employee be 

required ‘‘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.’’ Paragraph (a)(2) of the 

statute mandated a requirement for 

employers to ‘‘submit training and 

qualification plans . . . for approval.’’ 

In paragraph (a)(3), the statute requires 

that the Secretary ensure that the 

employer submitted programs 

specifically address the training of 

safety-related railroad employees 

charged with the inspection of track or 

railroad equipment so that these 

employees are qualified to assess 

railroad compliance with Federal 

standards, not only to identify and 

correct defective conditions, but to 

initiate immediate remedial action to 

correct critical safety defects that are 

known to contribute to derailments, 

accidents, incidents, or injuries. 

Furthermore, paragraphs (b) and (c) of 

the statute set out the method of the 

plan approval and permit the Secretary 

to exempt employers from submitting 

plans previously approved. 

Please also note that there is a 

statutory definition of ‘‘safety-related 

railroad employee.’’ 49 U.S.C. 20102. 

That definition was quoted in the 

NPRM. 77 FR 6414. The preamble and 

section-by-section analysis of both the 

NPRM and this final rule explain how 

FRA has interpreted that statutory 

definition. 

Although the legislative history does 

not offer an explanation regarding why 

the statute requires that the rule should 

address contractors and subcontractors, 

FRA surmises that Congress recognizes 

that the railroad workforce consists of 

safety-related railroad employees, some 

of which are employed by railroads and 

others by contractors. These employees 

are side-by-side, often doing the same 

work, or doing work that was previously 

thought to be exclusively reserved for 

employees of a railroad. Contractors and 

subcontractors can be found on 

railroads of all sizes and kinds, from 

shortlines to major freight railroads, as 

well as passenger railroads. Given the 

statutory construction, Congress 

apparently recognized the need for FRA 

oversight of each contractor’s training 

program and did not make an exception 

for small employers specifically. FRA 

has no evidence to suggest the risk 

posed by each safety-related employee 

differs by contractor size. This is 

especially so given the risks associated 

with working for a major railroad that 

operates trains in close proximity to one 

another, for long distances, at high 

speeds, and with heavy tonnage and 

train length. The same is true for the 

increased risks associated with 

employees of a contractor or 

subcontractor working for a commuter 

railroad where the protection of 

passengers and the general public at 

grade crossings is paramount. 

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. In the NPRM, FRA provided a 

list of RSAC members. 77 FR 6414. The 

membership list did not change between 

the NPRM and the end of the comment 

period. 

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 

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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 

would explain in the rulemaking 

documents that RSAC did not make a 

consensus recommendation on a 

particular issue. Of course, whether 

FRA receives an RSAC recommendation 

or not, FRA is free to use information 

collected from RSAC participants as a 

basis for any of its decisions during the 

rulemaking action. 

IV. RSAC Training Standards and 

Plans Working Group 

As discussed in the NPRM, this 

proposal was based primarily on the 

consensus recommendations of RSAC. 

77 FR 6415. The NPRM was published 

for comment on February 7, 2012 and 

provided background on the task 

statement, the organizations and 

businesses that participated as the 

Working Group, and the number of 

meetings held. The docket contains 

minutes from those meetings. 

In order to further benefit from the 

input of the RSAC, FRA held a meeting 

with the Working Group on May 8, 2012 

in Washington, DC. The purpose of the 

meeting was to allow the Working 

Group’s members to provide further 

written or oral comment on the public 

comments on the NPRM. Although FRA 

was interested in areas of agreement, 

FRA did not take the further step of 

bringing any issues to the full RSAC for 

a formal recommendation as the issues 

in disagreement did not appear to 

substantially impact the prior 

consensus-based recommendations. 

Minutes from this meeting are part of 

the docket in this proceeding and are 

available for public inspection. 

V. Discussion of Specific Comments and 

Conclusions 

FRA received written comments in 

response to the NPRM from a number of 

interested parties. As previously 

mentioned, FRA discussed these 

comments with the Working Group to 

allow RSAC commenters an opportunity 

to elaborate on any comments filed, 

including their own. FRA did not 

receive a request for a public hearing 

and none was provided. 

Most of the comments are discussed 

in the Section-by-Section Analysis or in 

the Regulatory Impact and Notices 

portion of this final rule directly with 

the provisions and statements to which 

they specifically relate. Other comments 

apply more generally to the final rule as 

a whole, and FRA is discussing them 

here. Please note that the order in which 

the comments are discussed in this 

document, whether by issue or by 

commenter, is not intended to reflect 

the significance of the comment raised 

or the standing of the commenter. 

A. Implementation Dates and Incentives 

for Early Filing of Programs 

In the NPRM, FRA identified a major 

issue under the heading ‘‘Incentives for 

Early Filing of Program.’’ FRA’s intent 

was to encourage interested parties to 

file comments regarding how to make 

the training program submission and 

review process quicker and more 

efficient. FRA raised several proposals 

and explained that the agency was 

willing to consider any incentives or 

approaches that are intended to 

encourage early submission and 

improve the efficiency and effectiveness 

of the review process. The paramount 

issue was whether the proposed 

implementation schedule provided 

model program developers with 

sufficient time to develop programs and 

receive FRA approval, keeping in mind 

that employers would not use those 

model programs unless the employers 

were provided with a reasonable 

amount of time to consider using those 

programs prior to the employer’s 

deadline for implementation. 

Reaction to the NPRM 

The following is a summary of the 

comments received on this issue. No 

commenter took the position that the 

NPRM provided an employer with 

sufficient time to consider model 

programs and develop a program. 

Nearly every comment focused on the 

proposed existing employer’s burden to 

meet the implementation deadline of 

one year and 120 days after the effective 

date of the rule. Only a few comments 

focused on the incentives for early filing 

of programs suggested by FRA in the 

NPRM. 

The National Railroad Construction 

and Maintenance Association (NRC) 

states that the NPRM does not afford 

adequate time for model programs to be 

developed. NRC requests that model 

program development be completed 

within three years of the effective date 

of the final rule and that each contractor 

then have two additional years to gain 

approval of and implement its program. 

Thus, NRC requests five years for 

contractors to implement training 

programs rather than the proposed 

requirement of one year and 120 days 

after the effective date of the rule. 

AAR agrees that the time frames in 

the NPRM are aggressive and provides 

several reasons why they should be 

extended. AAR explains that railroads 

will need to craft training programs and 

establish new processes for retention of 

training records and related 

information, including new or revised 

IT programs. FRA will need time to 

review and approve each program. After 

approval, railroads will need time to 

implement the programs during the 

regular training cycle in the first half of 

each calendar year. AAR suggests that 

the effective date for providing training 

under the rule be January 1 three years 

after publication of the final rule. AAR 

also reminds FRA to ensure that all of 

its compliance deadlines are consistent, 

including the date by which refresher 

training must begin. 

ASLRRA mentions that it urges the 

adoption of AAR’s recommendation to 

extend the filing date for each railroad’s 

training program to three years and 

contractor programs to five years. 

ASLRRA explains that it does not 

currently have the financial or 

personnel resources to create model 

programs. Even with FRA’s help, 

ASLRRA envisions that it will take at 

least two years to create and obtain 

approval of any model programs. 

Because ASLRRA considers three years 

to be a very aggressive schedule, it 

appears to suggest in its comment that 

it would be amenable if FRA were to 

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66464 Federal Register / Vol. 79, No. 216 / Friday, November 7, 2014 / Rules and Regulations 

provide short line railroads with even 

more time to submit a training program. 

APTA recommends that FRA extend 

implementation dates for passenger rail 

systems to six years. APTA believes 

passenger railroads could begin phasing 

in new training in three years, but 

would not complete training until year 

six. APTA states that phasing in the 

development and implementation of 

training is more realistic in 

consideration of the complexities of the 

public funding and public budget 

processes to which nearly all commuter 

railroads are subject. Likewise, the 

Metropolitan Transportation Authority 

(MTA), which includes LIRR and 

MNCW, recommends that the 

implementation schedule provide at 

least three years to implement a 

program. MTA raised the additional 

concern that it be provided with the 

flexibility to start a new training 

program at the beginning of the calendar 

year. 

REB states that it would be helpful for 

the employers’ implementation date to 

be pushed back at least one year after 

the implementation date for training 

organizations and learning institutions. 

REB believes this one year extension 

would provide an employer with 

sufficient time to consider whether it 

can use a specific solution from an 

outside training organization or learning 

institution. Without this extra time, REB 

maintains that an employer may be 

thrown into a situation where it has to 

develop its own material or seek a 

solution from other training vendors 

quickly. 

One commenter recommends pushing 

back the deadline for a small employer 

to at least one year after the submission 

deadline for model programs submitted 

by other entities. FRA notes that neither 

the proposed rule nor final rule contains 

a deadline for model program 

submission. Another commenter does 

not believe FRA would have the time to 

examine all the initial training courses 

and conduct continual yearly 

inspections. 

FRA’s Response 

Throughout the RSAC and rulemaking 

processes, FRA has continuously 

recognized the importance of providing 

employers, and every other type of 

entity that must file a training program, 

with sufficient time to consider all 

options and draft the required programs. 

FRA is acutely aware of the annual 

training cycle followed by the major 

railroads and the agency does not intend 

to disrupt that cycle by any requirement 

promulgated in this rule. Furthermore, 

in the NPRM, FRA raised the topic of 

incentives for early filing of programs 

due to the concern that the agency’s 

program review process could be time 

consuming and resource intensive. 

Thus, the comments echo many of the 

same concerns that FRA raised in the 

proposal, and confirm the need to 

provide more generous implementation 

deadlines than those proposed. 

The NPRM’s preamble discussion 

included several suggestions involving 

how to encourage the filing of programs 

that have the benefit of being used by 

multiple employers. For instance, in 

§ 243.105, FRA proposed an option for 

any organization, business, or 

association to develop one or more 

model training programs that could be 

used by multiple employers and that 

option has been retained in the final 

rule. Likewise, in § 243.111, FRA 

proposed an option for programs to be 

filed by training organizations and 

learning institutions, and that option 

has also been retained in the final rule. 

FRA expects that most class III railroads 

and contractors, and some class II 

railroads, would prefer to utilize one of 

these options. 

In the NPRM, one of FRA’s 

suggestions was to encourage model 

program developers to file early. The 

comments received suggested that those 

organizations most likely to develop 

model programs believe that 

development of such programs will be 

more difficult than originally 

contemplated. Consequently, the 

commenters do not believe model 

programs can be developed on a more 

compressed schedule. The comments 

suggest that the incentives to file early 

are unlikely to work and the employers 

that are most likely to benefit from 

model programs would be left 

scrambling to cobble together individual 

programs. If the commenters are right, a 

tight implementation schedule would 

defeat other provisions that appear to 

provide choices and flexibility in 

adopting a training program developed 

by an entity other than the employer. 

In order to solve this dilemma, FRA 

is turning to an option it suggested in 

the NPRM. In the proposed rule, FRA 

stated that the deadline for an employer 

submission, under § 243.101(a), could 

be pushed back so that the deadline 

would be at least one year after the 

submission deadline for an existing 

training organization or learning 

institution under § 243.111(b), instead 

of the proposed 120 days. REB 

commented that it agreed with this 

suggestion. Obviously, if employers are 

provided with more time to consider 

model programs, as well as programs of 

training organizations and learning 

institutions, the employers are more 

likely to find such programs suitable for 

use either off the shelf or with some 

tailoring to fit the employer’s individual 

needs. Thus, FRA has decided to extend 

the deadline to file a program until 

January 1, 2018, for an existing 

employer conducting operations subject 

to this part with 400,000 total employee 

work hours annually or more. FRA also 

plans to issue a compliance guide, that 

can be used by all employers, but 

written with a primary emphasis on 

assisting small entities. The compliance 

guide will also help model program 

developers in drafting programs to be 

adopted by small railroads and 

contractors. Thus, for an existing 

employer with less than 400,000 total 

employee work hours, FRA has decided 

to extend the deadline to file a program 

until January 1, 2019 or four years from 

the date of issuance of FRA’s Interim 

Final Compliance Guide, whichever is 

later. For an employer with less than 

400,000 total employee work hours 

annually that commences operations 

subject to this part after January 1, 2018, 

but prior to the date that similarly sized 

small employers will be required to 

submit a program, the regulation 

permits the employer to abide by the 

later deadline of January 1, 2019 or four 

years from the date of issuance of FRA’s 

Interim Final Compliance Guide, 

whichever is later, rather than adopting 

and complying with a training program 

upon commencing operations. These 

extended deadlines are found in 

§ 243.101(a)(1), (a)(2), and (b) of this 

final rule respectively. Please note that 

FRA considered an NRC comment 

described in the agency’s final policy 

statement concerning small entitities 

subject to the railroad safety laws, 68 FR 

24891 (May, 9, 2003), when considering 

how to define small entities under this 

rulemaking. In response to that interim 

policy statement, NRC requested that 

FRA define contractor small entities as 

those entities having less than a total of 

400,000 total employee work hours 

annually without any qualifier such as 

limiting small entities to those with $20 

million or less in annual operating 

revenues. In the policy statement, FRA 

explained that it would retain the ability 

to use different criteria to tailor the 

appliciablity of the rule to address a 

specific problem, e.g., a problem related 

to defining small contractors, and that 

limiting small entities by total employee 

work hours annually, as FRA has done 

here, is appropriate under this type of 

circumstance. 

An employer’s initial program is 

considered approved upon submission 

and therefore it may be implemented 

immediately upon submission, but 

certainly must be implemented no later 

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5 In the Regulatory Impact Analysis filed in the 

docket, FRA estimates that 1,459 employers with 

less than 400,000 total annual work hours annually 

may choose to adopt a model program rather than 

develop their own program. FRA estimates that an 

additional 11 employers with more than 400,000 

total annual work hours annually may choose to 

adopt a model program and would need to meet the 

earlier January 1, 2018 deadline for program 

submission found in § 243.101(a)(1). 

than the applicable deadline. These 

extensions, from the proposed 

implementation date of one year and 

120 days from the rule’s effective date, 

will provide each employer with at least 

three years (or at least four years, if a 

small entity employer) to develop its 

own program or adopt a program 

developed by other entities. The 

significantly longer implementation 

period is consistent with the requests 

made by AAR and MTA, as well as 

ASLRRA’s request for an extension for 

railroads. APTA and NRC requested a 

bit more time, but FRA does not believe 

that employers will need five or six 

years to develop training programs, 

especially when these employers will be 

able to adopt previously approved 

model programs or seek help from 

training organizations and learning 

institutions with approved programs. 

Although there is no deadline for 

filing a model program under § 243.105, 

model programs will generally not be 

adopted by employers unless they are 

developed and made available well 

before an employer’s program is due. 

FRA addressed a portion of this problem 

by proposing to extend the deadline for 

an employer to file. However, the 

proposed rule also created uncertainty 

for developers of model programs 

regarding when the developers could 

expect to receive approval or 

disapproval of a submitted model 

program. To combat this uncertainty, 

FRA has adopted another of the 

agency’s suggestions from the NPRM. 

Thus, in this final rule FRA is adding 

paragraph (a)(3) to § 243.105 so that 

model program developers can be 

assured that each model training 

program submitted to FRA prior to May 

1, 2017, will be considered approved 

and may be implemented 180 days after 

the date of submission unless FRA 

advises the organization, business, or 

association that developed and 

submitted the program that all or part of 

the program does not conform. By 

adding this condition, model program 

developers can be assured that they may 

begin marketing their model programs 

180 days after filing such a program 

with FRA unless the agency explicitly 

disapproves any portion of the program. 

This implicit approval process also 

encourages FRA to more quickly review 

model programs and a byproduct may 

be that FRA is able to approve some 

model programs in less than 180 days. 

Please note that model programs could 

be filed after May 1, 2017, but FRA will 

be under no obligation to review and 

approve those programs in a set period 

of time, nor would most employers that 

are likely to use model programs be able 

to use such a program if it is not 

approved ahead of the deadline 

established in § 243.101(a)(2).5

AAR also recommends that FRA 

ensure that all of its compliance 

deadlines are consistent, including the 

date by which refresher training must 

begin. FRA presumes that AAR wants 

the implementation dates to be 

consistent with one another so that the 

timeline for action has a logical flow, 

and the agency agrees with this 

approach. Consequently, the final rule 

contains a number of corresponding 

implementation date adjustments. For 

example, each employer with 400,000 

total employee work hours annually or 

more under § 243.201(a)(1), will be 

required to designate 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 as 

of September 1, 2018, which therefore 

provides 8 months from the date that 

the employer’s program is due under 

§ 243.101(a)(1). A similar deadline 

change is being made by creating a 

separate requirement in § 243.201(a)(2), 

for small entity employers, so that it 

corresponds with the, deadline 

contained in § 243.101(a)(2). 

AAR also specifically raised the issue 

that the proposed period for initially 

implementing refresher training should 

be extended. Again, FRA agrees. The 

NPRM proposed that employers begin 

refresher training beginning on January 

1, two years after the effective date of 

the final rule. If FRA had left the 

proposal intact, refresher training would 

be required starting January 1, 2017. 

However, the final rule will not require 

employers to file programs until January 

1, 2018, at the earliest, so the proposed 

deadline clearly would not work. Given 

the extended deadlines for filing 

programs, corresponding changes were 

made in setting the final rule’s 

deadlines for beginning the 

implementation of a mandatory 

refresher training program. Thus, each 

employer with 400,000 total employee 

work hours annually or more must have 

a refresher training program in place on 

January 1, 2020 and, likewise, each 

employer with less than 400,000 total 

employee work hours annually must 

have a refresher training program in 

place on January 1, 2022 or six years 

from the date of issuance of FRA’s 

Interim Final Compliance Guide, 

whichever is later. These deadlines for 

‘‘beginning’’ to deliver refresher training 

are not deadlines for ‘‘completing’’ that 

refresher training for each existing 

employee. FRA has set deadlines for 

completing refresher training for each 

existing employee: December 31, 2022 

for each employer with 400,000 total 

employee work hours annually or more, 

and December 31, 2023 for each 

employer with less than 400,000 total 

employee work hours annually. 

Otherwise, when an employee is due for 

refresher training will depend on when 

that employee last had initial or 

refresher training covering the subject 

matter. 

During Working Group meetings and 

in the NPRM, FRA expressed the 

opinion that a grace period should be 

provided for starting refresher training 

as well as credit provided for any 

training provided in the last three years, 

even though that training might have 

been conducted prior to the adoption of 

the training program required by this 

part. FRA reviewed the refresher 

training deadline proposal and found 

that it was too constricting. The 

proposed refresher training concept 

would not have granted an employer a 

reasonable grace period when many 

employers will train one-third of their 

workforce each year. In order to provide 

some kind of grace period that would 

accommodate the typical refresher 

training cycle, the rule would need to 

stretch the refresher training deadline to 

more than three years after the deadline 

for adoption of a program. Thus, the 

final rule is extending the deadline for 

completing mandatory refresher training 

to December 31, 2022, for each 

employer with 400,000 total employee 

work hours annually or more, and to 

December 31, 2023, for each employer 

with less than 400,000 total employee 

work hours annually. This means that 

whether an employer is large, medium, 

or small, the employer will have two 

calendar years from its program 

submission deadline to begin 

implementing a refresher training 

program and an additional three 

calendar years to complete providing 

refresher training to all safety-related 

railroad employees who have not had a 

relevant training event per the 

employee’s designation in an 

occupational category or subcategory 

within the past three calendar years. 

FRA’s expectation is that the relaxation 

of the implementation schedule should 

make it easier for employers to comply 

with the rule. 

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FRA notes its disagreement with the 

commenter that contended that FRA 

would not have the time to examine all 

the initial training courses and conduct 

continual yearly inspections. The 

relaxation of the implementation dates 

should lead to greater use of model 

programs and the use of training 

organizations and learning institutions. 

FRA approval of those programs first 

should ease FRA’s program review 

burden. Meanwhile, FRA has already 

begun the process of considering how to 

allocate its resources to accomplish 

training program reviews and audits. 

Finally, FRA notes that it is not under 

any legal mandate to conduct yearly 

inspections or audits of every employer 

covered by this rule. 

B. Hazmat Employees Not Covered 

FRA received two comments 

requesting that the rule contain explicit 

language that hazardous materials 

training is not covered by this rule. AAR 

recommends that FRA clearly state in 

the purpose and scope section that 

hazardous materials training is not 

covered by these regulations because the 

NPRM was not clear enough on this 

point. A second commenter 

recommends that FRA specify in the 

regulation that hazmat employees, 

hazmat employers, and hazmat training 

organizations and learning institutions 

be explicitly excluded from the 

regulation. 

FRA’s Response 

FRA generally agrees with the 

commenters that it is better to include 

an explicit statement regarding the 

scope of the rule than to leave that issue 

to the preamble. However, FRA was not 

ambiguous in the NPRM regarding 

whether the proposed rule covered 

hazardous materials training. In the 

section-by-section analysis for proposed 

§ 243.5, definition of safety-related 

railroad employee, FRA stated that the 

NPRM did not address the training of 

hazmat employees even though 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). FRA proposed to 

decline regulating the training of hazmat 

employees in this rule as that training 

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. The hazmat 

training required by PHMSA for hazmat 

employees mandates general familiarity 

with hazmat requirements, especially 

when the employee’s duties may impact 

emergency responses, self-protection 

measures and accident prevention 

methods and procedures. See 49 CFR 

172.200(b). 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. 

Despite the agency’s clarity on this 

issue in the NPRM, FRA has decided to 

address the issue by adding a paragraph 

(e) to § 243.1 of this final rule that 

explicitly excludes hazmat training for 

hazmat employees and clarifies that 

such training can be found in 49 CFR 

part 172, subpart H. Paragraph (e) states 

that ‘‘[t]he requirements in this part do 

not address hazardous materials training 

of ‘hazmat employees’ as defined in 49 

CFR 171.8.’’ However, this exclusion 

does not mean that a hazmat employee 

would not be covered under any 

circumstances. The definition of hazmat 

employees in PHMSA’s regulation is so 

broad that it encompasses railroad 

signalmen, railroad maintenance-of-way 

employees, and even locomotive 

engineers if they operate a vehicle used 

to transport hazmats. FRA certainly 

intends to cover the training for these 

‘‘safety-related railroad employees’’ 

when they are doing safety-related tasks, 

even if these types of employees may 

also be defined by PHMSA as hazmat 

employees and require additional 

training under PHMSA’s regulations. 

See § 243.5 (defining ‘‘safety-related 

tasks’’). In other words, paragraph (e) is 

intended to be read so that a hazmat 

employee will need to be trained in 

accordance with this part to the extent 

that the employee is doing safety-related 

tasks that are not covered by hazmat 

training required elsewhere in 49 CFR 

Subtitle B. Subtitle B encompasses other 

regulations relating to transportation, 

including hazmat training regulated by 

PHMSA found at 49 CFR part 172, 

subpart H. The training required by 

PHMSA does not overlap with the 

training required by this final rule. 

FRA disagrees with the comment 

recommending that FRA specify in the 

regulation that hazmat employees, 

hazmat employers, and hazmat training 

organizations and learning institutions 

be explicitly excluded from the 

regulation. FRA declines to accept this 

comment because it is too broad and 

may have implications beyond what the 

commenter intended. That is, if the 

recommendation were adopted as 

suggested by the commenter, the 

rejected requirement could be viewed as 

excluding any railroad (or employer) 

employing a hazmat employee instead 

of excluding just the hazmat training for 

those hazmat employees. For that 

reason, FRA has rejected that 

recommendation. 

C. Preemptive Effect and Construction 

FRA received a jointly filed comment 

from BLET, BMWED, and BRS (‘‘joint 

labor comment’’), that agreed with 

FRA’s statement in the NPRM’s sectionby-section analysis to § 243.201 that 

‘‘[o]f 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.’’ 77 FR 6435. The joint labor 

comment would like FRA to go further 

by adding a paragraph (e) to § 243.1 that 

states that ‘‘[n]othing in this part 

diminishes any rights, privileges, or 

remedies a safety-related employee may 

have under any collective bargaining 

agreement or State or Federal law.’’ 

During the Working Group meeting to 

discuss the comments, BMWED pointed 

out that there is no appeals process in 

the NPRM and that FRA should 

preserve the employees’ rights that exist 

today, whether those rights are found in 

a collective bargaining agreement or 

anti-discrimination statutes. 

FRA’s Response 

FRA stands by the statement in the 

NPRM cited by the joint labor comment. 

However, based on the principles set 

forth in Executive Order 13132, and 

affirmed in the Presidential 

Memorandum regarding preemption 

issued on May 20, 2009, it is 

unnecessary to include a statement in 

the rule regarding whether any 

requirement in the rule is expected to 

diminish any rights, privileges, or 

remedies a safety-related railroad 

employee may have under any 

collective bargaining agreement, State 

law, or Federal law. 

D. Request for Preemption Provision for 

Entities That Develop Model Programs 

Two commenters, NRC and ASLRRA, 

were concerned that entities that 

develop model programs could be 

subject to State causes of action should 

an injured individual claim that harm 

resulted from inadequate employee 

training derived from a model program 

created in response to this training rule. 

The comments raise a concern that the 

threat of litigation is a real disincentive 

for organizations to create model 

programs and that, without a 

preemption provision, the model 

program option will not be utilized. 

FRA’s Response 

FRA does not have the legal authority 

to preempt the use of model training 

programs as a basis for liability or 

discovery in private litigation. Thus, 

FRA is not including such a preemption 

provision. The basis for this request may 

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be the result of similar discussions in 

the context of the risk reduction and 

system safety plan rulemakings. In that 

context, however, a statute provides 

FRA with the authority to conduct a 

study on the issue and, on the basis of 

the results of that study, FRA will be 

able to include some preemption 

language in those specific rules, if 

applicable. Meanwhile, as a general 

matter, FRA cannot decide by regulation 

whether documents, such as a model 

training plan, would be discoverable in 

litigation, and the agency’s statutory 

preemption provision at 49 U.S.C. 

20106(b)(1)(B) specifically provides that 

State law causes of action for death, 

injury, or property damage are not 

preempted if they are based on the 

failure of a party ‘‘to comply with its 

own plan, rule or standard that it 

created pursuant to a regulation or order 

issued by’’ the Secretary of 

Transportation. 

E. Training Required of Manufacturer’s 

Employees and Other Contractors Who 

Inspect, Repair, and Maintain 

Equipment off Railroad Property 

FRA received a comment from GE 

Railcar requesting clarification of the 

purpose and scope of the rule found in 

§ 243.1. GE Railcar’s position is that its 

leasing and repair activities fall outside 

the scope of the rule and this contractor 

would like FRA to confirm its 

understanding. GE Railcar’s business 

represents most of the diversity of the 

railcar business because it leases 

railroad cars, operates railcar repair 

shops, and has mobile repair 

capabilities to perform railcar repairs at 

a customer’s site on railcars that it 

leases. FRA notes that some contractors 

may also operate a railcar or locomotive 

repair shop for a railroad on a railroad’s 

property that is not a mobile repair 

situation. GE Railcar reads the proposed 

rule and guiding section-by-section 

analysis as limited to companies and 

their employees who have contracted 

with a railroad and are actually working 

on a railroad’s real property. 

FRA’s Response 

GE Railcar’s comment raises a scope 

question. A review of the NPRM found 

that the proposal adequately addressed 

the scope question as it pertains to track 

and signal system repair. However, the 

NPRM could have described how the 

rule pertains to mechanical repair work 

in greater detail. Thus, the following 

paragraphs explain the scope of the final 

rule in relation to GE Railcar’s question. 

In describing item (4) of the definition 

of safety-related railroad employee in 

the NPRM, FRA explained the scope of 

training for an individual who is 

engaged or compensated by an employer 

to inspect, repair, or maintain 

locomotives, passenger cars, or freight 

cars. The NPRM’s section-by-section 

analysis stated that the inclusion of 

proposed item (4) ‘‘is essential [so] 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.’’ 77 

FR 6412, 6423. 

In deciding the scope question for 

mechanical personnel supplied by 

contractors, the answer mainly rests on 

the contractual obligations the nonrailroad company owes to the railroad. 

For example, a company that simply 

manufactures or leases rolling 

equipment (i.e., locomotives and 

railroad cars), but does not inspect, 

repair, or maintain the purchased or 

leased rolling equipment, does not have 

any duty under this rule to file a 

training program because its employees 

are not performing any of the duties that 

would cause the employees to be 

classified as ‘‘safety-related railroad 

employees.’’ In other words, the 

manufacturer or lessor of the rolling 

equipment would not be under contract 

with the railroad to inspect, repair, or 

maintain locomotives, passenger cars, or 

freight cars. Under this example, the 

railroad that purchases or leases the 

rolling equipment would have the duty 

to inspect the rolling equipment and 

make sure it complies with all 

applicable Federal railroad safety laws, 

regulations, and orders before placing 

the rolling equipment in use. See e.g., 

49 CFR 229.21 (requiring locomotives to 

have a daily inspection), and part 231 

(requiring certain safety appliances 

meeting specific standards), and part 

232 (requiring the inspection and testing 

of brake systems). If an inspection 

revealed that repairs or maintenance 

were necessary, it would be the 

responsibility of the railroad to arrange 

for those repairs or that maintenance to 

be completed. Under these 

circumstances, a railroad would need to 

file a training program under this rule 

and train its employees to perform the 

inspections, repairs, and maintenance; 

or, the railroad could hire a different 

company to contract the work and 

accept the training responsibilities. 

If a manufacturer or lessor of rolling 

equipment is under contract to provide 

a railroad with inspection, repair, or 

maintenance services necessary to 

comply with the federal regulations, 

then the contractor is required to train 

the employees performing those services 

in accordance with a training program 

required under this rule. See 66 FR 

4104, 4165 (January 17, 2001) 

(explaining that FRA intends for the 

training and qualification requirements 

of 49 CFR 232.203 to apply not only to 

railroad personnel but also to contract 

personnel that are responsible for 

performing brake system inspections, 

maintenance, or tests required by part 

232). FRA does not believe there is any 

distinction made for contractor services 

performed off railroad property versus 

on railroad property. It also should not 

matter whether the repairs are made at 

a fixed location on the railroad’s 

property or from a mobile repair facility. 

F. Application and Responsibility of 

Compliance for Tourist, Scenic, 

Historic, and Excursion Railroads 

One commenter characterizes tourist, 

scenic, historic, and excursion railroads 

as largely run by people who are 

untrained and as railroad operations 

with many safety concerns. This 

commenter warns that the public will be 

put further at risk because the NPRM 

excludes these railroads from the 

training requirements. Thus, the 

commenter requests that FRA apply the 

final rule to tourist, scenic, historic, and 

excursion railroads. 

FRA’s Response 

As noted in the NPRM, the final rule 

would apply to tourist, scenic, historic, 

and excursion railroads that operate on 

the general system, which are the 

railroads that present the highest risk to 

members of the public. As discussed in 

the NPRM, FRA intends to apply its 

published policy statement regarding 

how the agency regulates tourist, scenic, 

historic, and excursion railroads, in 

determining necessary compliance with 

the provisions of this final rule. As 

stated in 49 CFR part 209, appendix A— 

The Extent and Exercise of FRA’s Safety 

Jurisdiction (the Policy Statement), FRA 

asserts broad jurisdiction over tourist 

operations, and explains that it works to 

ensure that the rules it issues are 

appropriate to the circumstances of the 

tourist railroad industry. For example, 

FRA does not exercise jurisdiction over 

insular tourist railroads that are off the 

general system, and it applies a limited 

number of its regulations to non-insular 

tourist railroads that are off the general 

system. Additionally, FRA has excluded 

all tourist railroads from certain of its 

regulations, i.e., 49 CFR parts 238 and 

239 (passenger equipment safety 

standards and passenger train 

emergency preparedness). FRA stated in 

the Policy Statement that ‘‘[i]n drafting 

safety rules, FRA has a specific 

obligation to consider financial, 

operational, or other factors that may be 

unique to tourist operations . . . [and 

therefore] we work to ensure that the 

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rules we issue are appropriate to their 

somewhat special circumstances.’’ 

However, the enforcement policy retains 

all of the general power and 

enforcement provisions of the rail safety 

statutes, including the authority to 

obtain subpoenas and civil penalties 

and to issue disqualification orders and 

emergency orders. 

FRA only has limited resources, so it 

focuses on regulating those areas that 

would generate the most safety benefit. 

In the NPRM, FRA stated that the 

decision to exclude certain types of 

tourist operations that are not part of the 

general system of transportation 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. FRA disagrees 

with the contention that tourist, scenic, 

historic, and excursion railroads that do 

not operate on the general system of 

transportation are categorically unsafe 

and FRA continues to believe that it 

should not impose these training 

requirements on these small operations. 

G. Application to Private Motorcar 

Operators 

One commenter raises an objection to 

private motorcars being operated on the 

general railroad system when the people 

operating these cars are untrained. A 

different commenter disagrees with the 

first commenter and states that, in his 

experience, motorcars have been safe 

and including them in this training rule 

would be over-reaching the intent of the 

RSIA. 

FRA’s Response 

The comment regarding the 

application of this rule to the training of 

motorcar operators is surprising to FRA 

because since August 1, 1963, railroads 

have been prohibited from permitting 

motorcars to pull or haul trailers, push 

trucks, hand cars, or similar cars or 

equipment on their track. 49 CFR 

231.22. A railroad motorcar is generally 

considered an antiquated piece of selfpropelled on-track equipment that has 

been relegated to use by hobbyists. 

Considering that this rule only applies 

to the training of any person employed 

by a railroad or contractor of a railroad 

as a safety-related railroad employee, it 

clearly does not apply to private 

motorcar owners and hobbyists who 

obtain permission from a railroad to 

operate on the railroad’s track for 

purposes of enjoying the hobby. FRA 

has no basis to support the commenter’s 

assertion that the operation of a private 

motorcar is so inherently unsafe that 

FRA should begin regulating the 

training of private operators who have 

taken up this hobby. 

H. Application to Bridge Inspectors and 

Small Engineering Firms 

One commenter requests that the rule 

exempt small engineering firms that 

perform bridge inspections. The 

comment states that the cost of 

compliance is too great for these small 

entities. Meanwhile, the commenter 

concedes that training of such 

individuals on roadway worker 

protection should still be required to 

ensure on-track safety. 

FRA’s Response 

FRA is sensitive to the costs imposed 

by this rule, especially costs imposed on 

small entities, and the agency has 

addressed the costs and benefits 

elsewhere in this rule. The statute 

mandating this rule specifically requires 

that FRA address contractor training 

without regard to the number of 

employees or total annual operating 

revenue. FRA is concerned that if it 

were to provide an exemption to small 

entity contractors, a great number of 

safety-related railroad employees would 

not be covered by this rule and 

potentially would not receive the same 

quality training required by this rule. 

This preamble includes information 

regarding the substantial industry 

feedback on the NPRM and the 

comments received to the NPRM. FRA 

has not previously heard from the 

industry that any particular group of 

small entities will not be able to comply 

with the rule due to the costs involved. 

The option to use a model program or 

use programs submitted by training 

organizations or learning institutions 

should greatly ease the burden on small 

entities. FRA also expects to clarify the 

requirements and ease the burden on 

small engineering firms that conduct 

bridge inspections by addressing the 

issue in its compliance guide. 

Consequently, FRA does not agree that 

there is sufficient justification to 

exclude an entire type of small entity 

contractor from the responsibility to 

comply with this final rule. 

I. Qualified Instructor 

One commenter recommends adding 

a definition of ‘‘qualified instructor’’ 

and that the definition state that the 

instructor must have ‘‘exclusive, 

independently verifiable, educational 

training experience.’’ The commenter’s 

concern is that, without specifically 

defining the parameters of a qualified 

instructor, regional and short line 

railroads will have an incentive to 

designate individuals as instructors who 

are truly unqualified. 

FRA’s Response 

In the NPRM, FRA defined the term 

‘‘designated instructor’’ but not 

‘‘qualified instructor.’’ However, the 

section-by-section analysis in the 

proposed rule describing the definition 

of designated instructor addressed the 

qualification issue. The analysis stated 

that ‘‘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.’ ’’ 77 FR 6422. 

As FRA has concluded that the 

proposed definition of a ‘‘designated 

instructor’’ includes the requirement 

that the instructor be qualified, and the 

term ‘‘qualified’’ is adequately defined, 

there is no reason to add a definition for 

‘‘qualified instructor.’’ 

FRA also does not share the 

commenter’s concern that regional and 

short line railroads will have an 

incentive to designate individuals as 

instructors who are truly unqualified. It 

is reasonable to expect a railroad to 

employ instructors who can impart 

adequate knowledge on employees. A 

railroad that knowingly or negligently 

designates an unqualified person as an 

instructor would create unnecessary risk 

that the instructor, or an employee 

improperly trained by the instructor, 

would cause harm when attempting to 

perform a safety-related task. In an 

industry where safety lapses can result 

in serious injuries and costly accidents, 

an employer that fails to take the proper 

precautions to ensure that only qualified 

persons are designated as instructors 

would be taking on too much liability. 

J. Training for Designated Instructors 

and Supervisors Performing Oversight 

AAR requests clarification regarding 

the training required for supervisors 

performing oversight. In AAR’s view, a 

supervisor performing oversight should 

not necessarily be required, in all 

instances, to successfully complete the 

same craft training that the employees 

would be required to complete in 

accordance with the program. Instead, 

AAR suggests that a supervisor 

performing oversight should be trained 

on how to perform the oversight task. 

Similarly, AAR asks FRA to address 

the training required for a designated 

instructor in the final rule. AAR states 

that a railroad might choose, as part of 

a training program for train crews, to 

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have a person address the subject of 

fatigue mitigation who is not a 

conductor or engineer. AAR interprets 

the proposed rule so that the designated 

instructor needs to have demonstrated 

adequate knowledge of the subject 

under instruction, but does not need to 

be qualified in the occupational 

category or subcategory of the 

employees being trained. 

FRA’s Response 

FRA agrees with AAR’s comment that 

not every designated instructor or 

supervisor performing oversight will 

need the identical training that the 

employer is providing to each 

occupational category or subcategory of 

safety-related railroad employee that is 

being trained by an instructor or subject 

to oversight by a supervisor. However, 

in instances where the training is not 

identical, the employer will need to 

discern how the instructor or supervisor 

can be deemed qualified. Typically in 

these instances, an employer will find 

an instructor qualified because the 

person holds a degree or certification 

from a training organization or learning 

institution, and an employer will find a 

supervisor qualified because the person 

has significant relevant work experience 

and can prove knowledge of the 

applicable rules. Certainly, FRA agrees 

with AAR that the important issue is 

that the instructor is qualified on the 

subject matter to which the instructor is 

instructing, not all the subject matters 

necessary to be qualified in the 

occupational category or subcategory of 

the employees being trained. 

The more difficult question, which 

AAR did not address in its comment, is 

what substitutes for the actual 

occupational category or subcategory 

training when the technical aspects of 

that training are involved. For example, 

can anyone who is not a carman instruct 

or supervise another carman on how to 

conduct certain equipment repairs or 

maintenance? FRA theorizes that an 

instructor in a classroom setting could 

be a college graduate with a degree in 

mechanical engineering, and thus 

would be qualified without having been 

through the employer’s training program 

for a carman. In other instances, a 

supervisor may only need to know the 

rules to conduct oversight, yet never 

have been qualified in the same 

occupational category or subcategory as 

the employee subject to oversight. For 

instance, a Manager of Operating 

Practices (MOP) observes that the 

roadway worker in charge of a work 

group does not conduct a proper job 

briefing, nor set up roadway worker 

protection correctly; in this situation, as 

long as the MOP understands and can 

apply the rule correctly, there should be 

no impediment to the MOP conducting 

the oversight. 

FRA also agrees with AAR that a 

supervisor performing oversight could 

not be deemed qualified without being 

trained on how to perform the oversight 

task. In conclusion, an instructor or 

supervisor may be qualified without 

successfully completing the same 

training that the employees would be 

required to complete in accordance with 

the program, but FRA will be 

scrutinizing such qualification 

requirements that substitute for that 

training to ensure that the railroad has 

provided an adequate basis for 

determining the individual is qualified. 

K. Refresher Training 

One commenter questioned whether 

the regulation should define refresher 

training and whether initial training 

courses can substitute for refresher 

training courses. 

FRA’s Response 

FRA included refresher training in the 

proposed rule in order to address 

Congress’s mandate that the training 

regulation include requirements for 

‘‘ongoing training.’’ The NPRM did not 

define the term ‘‘refresher training,’’ but 

the issues surrounding this particular 

type of training were described in the 

section-by-section analysis to paragraph 

(e) of § 243.201. In the NPRM, FRA 

made clear that refresher training could 

be exactly the same as initial training, 

but that it does not have to be exactly 

the same training. Refresher training is 

expected to be comprehensive, but the 

developer of the training should 

develop it with the understanding that 

the employees participating have 

experience in the subject matter of the 

training. Experienced employees may 

not need the step-by-step instruction 

covering every requirement that would 

be included in initial training. In other 

words, the refresher training may not 

need to cover truly basic tasks or issues 

that no practicing employee in that field 

would have a question about. 

Refresher training should most likely 

be focused on placing greater emphasis 

on advanced areas or subjects that often 

lead to accidents, injuries, or noncompliance. For example, experienced 

employees would benefit from refresher 

training that identifies those behaviors 

that often lead to accidents/incidents or 

close calls. Refresher training may also 

address systemic performance gaps, or 

possible substantive amendments to 

existing regulations. FRA expects that 

by conducting periodic oversight under 

§ 243.205 and the annual review in 

§ 243.207, employers will be gathering 

significant information that will help 

them design refresher training that is 

data driven to close knowledge or 

performance gaps. However, FRA 

certainly would not take exception to 

refresher training that is identical to an 

initial training course on the same 

subject. 

Although not raised by the comments, 

FRA considered whether employees 

should be allowed to test out of 

refresher training. The concept is that 

experienced employees would 

demonstrate their knowledge and 

perform a sufficient number of tasks so 

that the employer could determine that 

refresher training is unnecessary. FRA 

did not consider a test out option to be 

viable for several reasons. One, 

Congress’s mandate that the training 

regulation include requirements for 

‘‘ongoing training’’ did not contemplate 

a testing out option, and so FRA is 

concerned that such an option would 

conflict with the statutory mandate. 

Two, as explained in the previous 

paragraph, refresher training is expected 

to be data driven and applied 

systemically. If individuals could test 

out, the effectiveness of the final rule 

could be diminished. Three, even 

experienced employees may need 

refresher training to help them better 

understand rules or tasks that are not 

conducted often. Four, there may also 

be more than one way to do a task, and 

sharing that information during a 

mandatory refresher training class could 

make the employee more efficient or 

aware of additional options. Five, 

experienced employees, taking training 

with other experienced employees, may 

be more reluctant than employees new 

to an occupational category to ask 

questions clarifying how to properly 

conduct certain tasks considered 

routine. The data-driven refresher 

training provides critical information to 

all participating employees thereby 

reducing the need for individualized 

refresher training programs. 

FRA also did not receive comments 

challenging the minimum three-year 

cycle for refresher training, even though 

FRA raised the issue during the RSAC 

Working Group’s meetings and in the 

NPRM. 77 FR at 6436. The reason the 

three year refresher cycle probably was 

not challenged is that it has become a 

railroad industry standard, except 

where refresher training is required 

more frequently. FRA has some 

refresher training requirements in its 

railroad safety regulations that are more 

stringent than every three years, and in 

§§ 243.1(c) and 243.201(e) it is made 

clear that compliance with those more 

stringent refresher training cycles is still 

required. In promulgating this final rule, 

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FRA has accepted the RSAC’s 

recommendation that a three year 

refresher cycle is acceptable to the 

industry and is beneficial to employees. 

FRA has added a definition of 

refresher training to the final rule, based 

on the definition in 49 CFR 238.5, to 

further address the commenter’s 

concerns. That definition is explained 

in the section-by-section analysis to 

§ 243.5 

L. Waivers 

In the NPRM, FRA included a 

proposed section explaining how a 

person may petition the Administrator 

for a waiver of compliance with any 

requirement of this part. Meanwhile, 

FRA stated in the section-by-section 

analysis that ‘‘this section may be 

unnecessary because 49 CFR part 211 

sufficiently addresses the waiver 

process.’’ 77 FR 6425. FRA requested 

comments on whether the proposed 

waiver section should be removed and 

FRA received several comments, all in 

support of removing the waiver 

provision. The commenters frequently 

cited that the waiver provision should 

be removed as unnecessary and to 

reduce confusion. Furthermore, the 

Working Group reached agreement to 

delete the waiver section from this rule 

during its post-comment period 

meeting. 

FRA’s Response 

FRA agrees with the commenters and 

the Working Group. The procedures for 

petitioning for a waiver do not depend 

on the inclusion of a waiver provision 

in this part. Instead, the procedures are 

found in 49 CFR part 211. Thus, the 

proposed waiver section is redundant 

and can be removed without any impact 

to any person who may wish to petition 

the Administrator for a waiver. Thus, 

FRA is removing the proposed section 

related to waivers in this final rule. 

M. Employees Charged With Inspection 

of Track or Railroad Equipment 

In the preamble to the NPRM, FRA 

requested comments regarding whether 

the 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), or whether the 

regulatory text needs to be more explicit 

in the final rule. In that regard, FRA 

explained that it was 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 

§ 243.101 so that it would be one of the 

specific requirements necessary for each 

employer’s training program. The joint 

labor comment supports adding the 

statutory requirement in 49 U.S.C. 

20162(a)(3) to § 243.101, while the NRC 

opposes it. 

Separately, FRA also explained that it 

was 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. NRC 

opposes an expansion of periodic 

oversight and annual review to address 

these types of employees explicitly. 

FRA’s Response 

Upon further review of the statute and 

the comments, FRA has concluded that 

it is unnecessary to add a paragraph 

(c)(6) to § 243.101 to cover employees 

charged with the inspection of track or 

railroad equipment. This rule meets the 

statutory mandate found in 49 U.S.C. 

20162(a)(3) by requiring 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 §§ 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. The rule at § 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 ontrack equipment when such equipment 

is in a service that constitutes a train 

movement under part 232 of this 

chapter; [and] (6) Determine that an ontrack roadway maintenance machine or 

hi-rail vehicle may be used in 

accordance with part 214, subpart D of 

this chapter, without repair of a noncomplying condition.’’ 

The final rule also requires that the 

training program developed by each 

employer be submitted to FRA for 

approval. See § 243.109. In order to be 

approved, each employer must 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. FRA 

would reject a program that fails to 

adequately address training for those 

employees charged with the inspection 

of track or railroad equipment. 

The 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 statutorily 

mandated refresher training address 

these issues and any other areas that 

may warrant particular focus. 

Finally, after further consideration, 

FRA has decided not to expand periodic 

oversight and annual review to directly 

address those employees inspecting 

track and railroad equipment. Safetyrelated railroad employees inspecting 

track and railroad equipment will be 

subjected to oversight to the extent that 

their duties are necessary to comply 

with Federal railroad safety laws, 

regulations, and orders particular to 

FRA-regulated personal and work group 

safety. At this time, FRA does not 

recognize a need to expand periodic 

oversight or the annual review to 

address these types of employees 

explicitly. Of course, if FRA determines 

at a later date that such additional 

periodic oversight or annual review 

would be worthwhile, FRA could 

initiate a rulemaking to amend this part. 

N. Employees Charged With Inspection 

of Railroad Bridges 

The joint labor comment recommends 

that FRA add a paragraph, i.e., 

§ 243.101(c)(6), that would be applicable 

to those employees charged with the 

inspection of railroad bridges including 

specific training requirements for 

employees charged with the inspection 

of track, railroad equipment, and 

bridges in the final rule to address 

issues such as the type, frequency, and 

scope of training and refresher training. 

In addition, the joint labor comment 

requests that FRA amend item (3) in the 

definition of ‘‘safety-related railroad 

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employee’’ so that it references more 

CFR parts, specifically parts 234, 236, 

and 237. Furthermore, the joint labor 

comment raises a concern that the 

NPRM does not explicitly include 

safety-related functions performed in 

relation to the inspection of roadway 

maintenance machines and hi-rail 

vehicles under 49 CFR part 214, subpart 

D. 

FRA’s Response 

It is unnecessary for FRA to require 

specific training requirements for any 

category of safety-related railroad 

employee because each employer will 

be defining each category or subcategory 

of employee and thus, each employer 

will be best situated to determine what 

training those categories of employees 

should receive. In order to follow the 

joint labor organization’s 

recommendation, the rule would need 

to be extensively rewritten so that it 

would take away the flexibility 

provided to each employer to 

individually define its categories of 

employees. FRA is unwilling to follow 

this suggestion as it would substantially 

increase the costs of implementing the 

rule for each employer and would force 

upon the industry a one-size fits all 

solution that would create many 

implementation challenges for 

employers. 

It is also unnecessary to address 

issues such as the type, frequency, and 

scope of training and refresher training 

as the joint labor comment advocates 

because the final rule already addresses 

those issues. At a minimum, each newly 

hired safety-related railroad employee 

will be provided with initial training, 

and refresher training every three years. 

See 243.201(c). Experienced employees 

may be exempt from initial training, but 

will still be required to complete 

refresher training every three years. See 

243.201(e). 

FRA also rejects the comment that the 

final rule should reference more CFR 

parts in the definition of safety-related 

railroad employee. That definition is not 

intended to include a recitation of all 

the Federal laws, regulations, or orders 

that may apply to any particular safetyrelated railroad employee covered by 

this rule. Adding some cross-referencing 

parts, and not others, has no effect on 

whether those Federal regulations must 

be covered in training. The reason FRA 

added the phrase ‘‘in the application of 

parts 213 and 214 of this chapter’’ to 

item (3) of the definition was to refine 

the statutory definition of safety-related 

railroad employee which broadly 

includes 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). FRA 

and RSAC agreed that the statutory 

definition could be confusing if 

repeated in the regulation. Thus, FRA 

agreed with the RSAC recommendation 

to define those employees who maintain 

the right of way of a railroad in the 

regulatory definition. 

The joint labor comment raises the 

concern that 49 CFR part 237, which 

covers ‘‘Bridge Safety Standards,’’ might 

not be covered under this rule. BMWED 

elaborated during the Working Group 

meeting to discuss the comments 

received in response to the NPRM that 

part 237 is a new regulation that was not 

contemplated by the RSIA. Hence, 

BMWED’s concern is that this new 

training regulation might not cover part 

237 without specifically citing it. 

However, as part 237 is an FRA 

regulation and there is no exemption in 

this rule that applies, the concern 

appears unfounded. In other words, as 

FRA clarified at the Working Group 

meeting, this final rule applies to 

training on any FRA regulations as of 

the effective date of this rule and into 

the future, not only those FRA 

regulations that are in effect as of the 

date of this rule, or as of the 

implementation date of the RSIA. 

Meanwhile, FRA is aware that a 

person reading this rule might be 

persuaded to interpret that an employer 

would be required to adopt and comply 

with a training program to satisfy 

certain training requirements of 49 CFR 

part 237 that could not realistically be 

supported by an employer’s training 

program because such training could 

only reasonably be afforded by a 

training organization or learning 

institution. For example, the rule does 

not require railroad bridge engineers to 

receive ‘‘in-house’’ training when an 

engineering degree is what is required 

by § 237.51(b). This rulemaking also 

does not change the bridge owner’s 

authority under 49 CFR part 237 to 

determine whether the railroad bridge 

engineers, inspectors, and supervisors 

are technically competent. Training on 

49 CFR part 237, subpart E—Bridge 

Inspection is required under this rule. A 

railroad bridge engineer, inspector, or 

supervisor would need to be trained on 

roadway worker protection 

requirements pursuant to this rule and 

49 CFR part 214. So, no amendment to 

the proposal is necessary as these 

individuals are covered by the final 

rule, and employers will need to submit 

plans explaining how training will be 

provided and what Federal laws, 

regulations, and orders will be covered 

during the training for each category of 

employee. 

FRA disagrees with the statement in 

the joint labor comment that raises a 

concern that the NPRM ‘‘does not 

explicitly include safety-related 

functions performed in relation to the 

inspection of roadway maintenance 

machines and hi-rail vehicles under 49 

CFR part 214, subpart D.’’ The 

definition of safety-related railroad 

employee at item (6) specifically 

includes an individual that determines 

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 noncomplying condition. Thus, a person 

who makes this inspection and 

determination that equipment is safe to 

use is required by this final rule to be 

trained to detect non-complying 

conditions. 

O. Joint Ventures 

One commenter notes that the NPRM 

did not address joint venture companies 

and raises concerns regarding how FRA 

would determine compliance for these 

joint ventures. NRC requests that FRA 

allow flexibility in how these joint 

venture companies meet the regulatory 

requirements: by the original participant 

companies, under the auspices of one 

lead participant company, or under the 

joint venture itself. NRC also suggests 

that proposed § 243.101(b) could pose 

difficulties for joint ventures, or any 

company that forms quickly and wishes 

to start business soon after forming. 

NRC recommended that start-ups and 

joint ventures should be allowed to use 

employees for up to one year to perform 

safety-related duties without 

designating those employees in 

accordance with a training program 

filed with FRA. 

NRC’s comment was discussed at the 

Working Group meeting held after the 

comment period closed. During that 

meeting, the Working Group reached 

agreement that the final rule should not 

require employers to designate 

employees under § 243.201 until 30 

days prior to the start of the program. 

FRA’s Response 

NRC’s comments regarding joint 

ventures raise some valid concerns. The 

NPRM did not address any issues 

related to joint ventures. Furthermore, 

FRA did not foresee that proposed 

§ 243.101(b) could pose difficulties for 

joint ventures or start-up companies. 

The changes FRA made to the proposal 

that are found in this final rule reflect 

FRA’s considerations of wanting to 

provide equal treatment to existing 

companies and new companies, while 

ensuring that new ventures and new 

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related railroad employees that are 

properly trained. 

NRC’s comment asks which entity 

involved in the joint venture is the party 

responsible for compliance with the 

rule, because the NPRM was silent on 

this issue. FRA has decided that the 

final rule should remain silent on the 

issue because it is unnecessary for the 

regulatory text to assign responsibility. 

Parties to a joint venture should 

understand that compliance is 

mandatory and the participants in the 

joint venture are obligated to ensure that 

compliance is achieved. No changes 

were made in this final rule to delineate 

which entities involved in a joint 

venture are responsible for training as 

FRA would determine that all the 

entities involved would be responsible 

for compliance, unless the joint venture 

agreement specifies the responsibilities 

of each party. This approach permits the 

maximum flexibility to each entity 

participating in the joint venture or 

created by the joint venture. 

A different, but related, question may 

be how does FRA intend to enforce the 

final rule against multiple companies 

that form a joint venture. From an 

enforcement perspective, FRA would 

likely first consider an employer 

responsible for training its employees 

that the employer contributes to the 

joint venture, unless the joint venture 

agreement states otherwise. Likewise, 

the employer responsible for training 

would be expected to maintain the 

records for that employee. Although 

NRC suggests that the parties to the joint 

venture could agree to assign the 

responsibility for training and 

compliance under this rule to the lead 

participant company or the shell 

company formed by the joint venture, 

FRA warns that it will not tolerate the 

forming of shell companies that accept 

responsibility for compliance with the 

final rule but do not actually perform 

any of the duties necessary for 

compliance. If FRA discovers training 

compliance failures under the final rule 

and that the parties to a joint venture 

agreement are unresponsive to their 

regulatory responsibilities, FRA will 

consider all available means of 

enforcement to achieve compliance. 

With regard to NRC’s concerns 

regarding § 243.101(b), FRA agrees that 

the proposed rule did not adequately 

address the difficulties of compliance 

that start-ups and joint ventures could 

face. The proposed requirement that the 

program be submitted at least 90 days 

prior to commencing operations has 

been removed. In addition, FRA has 

removed the proposed requirement that 

the employer wait for FRA to approve 

the program prior to adopting and 

complying with it. Instead, the final rule 

requires that the employer adopt and 

comply with its submitted training 

program no later than upon the 

commencement of operations, as long as 

commencement begins on or after 

January 1, 2018. 

This requirement relieves a start-up or 

joint venture from filing a program at 

least 90 days prior to commencing 

operations, but means that, upon 

commencing operations, the employer’s 

training must be complete for any 

safety-related railroad employees, 

designated by occupational category or 

subcategory, who are working. See 

§ 243.201(b). Prior to this final rule, 

railroads are already required to ensure 

proper training techniques prior to 

commencing their operations. 

Therefore, this rule should not create 

barriers to entry nor delays in starting 

new operations. More so, new railroads 

would have access to model training 

programs and best-in-class training 

practices. Therefore, they should be able 

to use their own human resources more 

efficiently for training purposes and 

possibly expedite entry into market. 

As FRA explains in the section-bysection analysis, FRA does not agree 

that start-ups and joint ventures should 

be allowed to use employees for up to 

one year to perform safety-related duties 

without designating those employees in 

accordance with a training program 

filed with FRA. There is no basis to 

support the position that start-ups and 

joint ventures deserve more flexibility 

than other employers. In addition, such 

a loophole could create a class of 

untrained employees that circumvents 

the purpose of the rule. 

Furthermore, FRA has rejected the 

Working Group’s recommendation that 

the rule should not require employers to 

designate employees under § 243.201 

until 30 days prior to the start of the 

program. FRA believes the Working 

Group members may not have realized 

that they were agreeing to a much more 

stringent restriction than FRA proposed 

in the NPRM. For an employer 

commencing operations after January 1, 

2017, under § 243.201(b), FRA has not 

specified an amount of time prior to 

beginning operations that the employer 

has to designate employees, only that 

the employer declare the designation of 

each of its existing safety-related 

railroad employees by occupational 

category or subcategory prior to 

beginning operations. That aspect of the 

final rule is carried over from the NPRM 

because requiring new employers to 

designate employees 30 or 90 days prior 

to commencing operations is unlikely to 

ensure the employees are qualified to do 

the safety-related work. Instead, existing 

aspects of FRA’s operations are better 

designed to check whether railroad 

safety would be detrimentally impacted. 

For instance, FRA routinely conducts 

inspections, audits, and other oversight 

of new railroads to identify safety 

concerns, and frequently makes contact 

with employers prior to the 

commencing of operations. If FRA 

discovered that employees were 

unqualified to perform safety-related 

duties, FRA would generally be in a 

position to take immediate action prior 

to operations commencing or within a 

short period after initial start-up. FRA 

could exercise its enforcement authority 

to bring about compliance. Thus, FRA’s 

oversight of new operations can address 

the safety concerns that employees are 

untrained or not properly designated 

without placing a restriction on the 

speed at which joint ventures or 

businesses of any size can enter the field 

of railroading. 

P. Requests for Confidential Treatment 

of Programs 

In the NPRM, FRA requested 

comments on whether the rule should 

address the submission of proprietary 

materials or other materials that an 

entity wishes to keep confidential. FRA 

raised the issue in the context of the 

electronic submission process found in 

§ 243.113. FRA suggested that it could 

develop a secure document submission 

site so that confidential materials are 

identified and not shared with the 

general public. However, FRA sought 

comments on the issue because the 

agency questioned whether that extra 

step would be necessary. 

AAR filed the only comment on this 

issue. In the comment, AAR agrees that 

it is unlikely that confidential material 

will be submitted. However, AAR states 

that it is likely that proprietary 

(copyrighted) material will be 

submitted. AAR recommends that FRA 

ensure that in making such material 

public, it includes copyright notices and 

warns the public against copying or 

other unauthorized use of such material. 

FRA’s Response 

In the NPRM, FRA explained that the 

agency did not expect the information 

in a program to be of 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). 

FRA’s expectation is that a railroad 

would remove any information that it 

wished to keep private prior to sharing 

that program material with a labor 

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organization. In the NPRM, FRA 

suggested 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. 

In addition to the suggestions made in 

the NPRM for keeping information 

confidential, FRA notes that the 

agency’s railroad safety enforcement 

procedures address requests for 

confidential treatment at 49 CFR 209.11. 

The procedures in that section place the 

burden on the party requesting 

confidential treatment with respect to a 

document or portion thereof. For 

example, according to paragraph (c) of 

that section, a railroad that wants 

confidential treatment is required to 

provide a statement at the time of filing 

justifying nondisclosure and referring to 

the specific legal authority claimed. 

Paragraph (e) of that section explains 

that FRA retains the right to make its 

own determination with regard to any 

claim of confidentiality. 

FRA is concerned that a party 

requesting confidential treatment of a 

document, or including a copyright 

notice on a portion of a program 

submission, may be asking for treatment 

that could interfere with FRA’s safety 

enforcement program. For this reason, 

in addition to FRA’s procedures in 49 

CFR 209.11, a party requesting 

confidential treatment should provide a 

detailed explanation for how the party 

expects FRA to treat the document. In 

requesting confidential treatment, the 

party should consider several aspects of 

FRA’s safety enforcement program. For 

instance, a party should understand that 

FRA intends to share the program with 

the State agencies that FRA partners 

with in accordance with 49 CFR part 

212. It is typically understood that a 

party has consented to all electronic and 

written dissemination of a submitted 

program for any investigative and 

compliance purposes envisioned 

pursuant to the FRA regulations or 

FRA’s statutory enforcement authority. 

See 49 CFR 209.11(a). Likewise, 

program submissions would normally 

be subject to the mandatory disclosure 

requirements of the Freedom of 

Information Act (FOIA, 5 U.S.C. 552) 

and thus a party that has a copyright 

notice on the program submission will 

need to specify which statutory 

exemption it believes is applicable. 

Again, FRA retains the right to make its 

own determination with regard to any 

claim of confidentiality, including 

whether an exemption to mandatory 

disclosure requirements under FOIA are 

applicable. If FRA decides to deny a 

claim of confidentiality, FRA is required 

to provide notice and an opportunity to 

respond no less than five days prior to 

the public disclosure. 49 CFR 209.11(e). 

Q. Computer and Simulator-Based 

Instruction 

The joint labor comment requests that 

FRA clarify that the use of computer 

and simulator-based instruction be 

deployed for training purposes rather 

than for examination or qualification 

purposes. The comment implies that 

new and unproven training technologies 

could be utilized and could lead to 

disciplinary action when an employee 

fails to pass the training. The 

commenters strongly urge FRA to 

eliminate such practices in the final 

rule. This comment was further 

developed during the Working Group 

meeting in which the comments were 

discussed. BRS clarified that it would 

not want an employee to be qualified 

solely from computer-based training, as 

it is essential to be trained on the actual 

equipment that an employee will be 

required to maintain. UTU stated that 

there are field tests for employees who 

fail simulator tests. 

FRA’s Response 

The final rule defines formal training 

and FRA accepts that formal training 

can be delivered in many different 

ways. In the NPRM, FRA recognized 

that classroom training is preferred by 

some employees over any other type of 

training. However, classroom training is 

not the only type of training that can be 

effective and FRA has no intention of 

severely limiting the methods of 

delivering formal training. 

Although FRA is not changing the 

proposed rule based on this comment, 

the joint labor comment does raise some 

important issues that each employer 

should contemplate when drafting and 

implementing a training program. One 

issue is whether the training is effective 

given the target employee audience. If 

an employee lacks familiarity with 

computers or simulators, an employer 

should consider whether the method of 

delivery is appropriate. An employee 

may be able to do the actual task and 

understand the underlying rules being 

tested without being able to pass a 

computer or simulator-based test. 

Furthermore, nowhere in the 

proposed rule or this final rule does 

FRA require an employer to discipline 

an employee for failing to pass training. 

Likewise, the rule does not prohibit an 

employer from taking disciplinary 

action. FRA encourages employers to 

provide employees with sufficient 

training and testing opportunities, and 

to retrain and retest whenever there is 

a need. If a computer or simulator-based 

training leads to an employee’s failure 

to qualify on a subject, the employer 

should take into account whether any 

technological issues potentially 

contributed to the failure. The final rule 

does not prohibit the employer from 

providing further opportunities for 

training or testing for any reason or no 

reason at all. Further opportunities for 

training or testing may include other 

types of formal training or other types 

of acceptable testing in accordance with 

the training program. An employer 

should consider building in some 

flexibility in its program to address 

exceptions to its normal training 

program. Of course, if FRA learns that 

the technology is contributing to 

training or testing failures, the agency 

will consider whether any enforcement 

action is warranted or whether a 

rulemaking should be initiated to revisit 

the issue. 

R. FRA’s Qualifications To Review 

Training Programs 

One commenter questions whether 

FRA employs individuals with teaching 

credentials to evaluate whether training 

components satisfy the educational 

standards used for effective teaching. 

FRA’s Response 

FRA employs personnel who train 

other FRA employees. Each in-house 

FRA trainer must earn a professional 

certification for trainers at the ‘‘Master 

Trainer’’ level, if not otherwise 

credentialed to teach. Thus, FRA’s inhouse trainers are both qualified in 

teaching methods and in various aspects 

of railroading. These in-house trainers 

have been, and continue to be, 

instrumental in FRA’s development of 

the interim final compliance guide. For 

these reasons, the FRA personnel that 

will be reviewing training programs for 

educational sufficiency have the 

requisite background to effectively 

review each training component, or 

oversee other FRA personnel who can 

assist with program review. 

S. Compliance Guide 

One commenter suggested that FRA 

‘‘issue a compliance guide, specifically 

to railroads that have 15 or less safetyrelated railroad employees, (as 

contemplated in 49 CFR part 209, 

appendix C) and then delay the 

implementation of the proposed rule to 

these smallest railroads for one year 

after the compliance guide is made 

available to these smallest railroads.’’ 

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FRA’s Response 

As FRA is required to prepare a final 

regulatory flexibility analysis (see VII, B. 

of this rule titled ‘‘Regulatory Flexibility 

Act and Executive Order 13272; Final 

Regulatory Flexibility Assessment’’), 

FRA is also required under sec. 212 of 

the Small Business Regulatory 

Enforcement Fairness Act (SBREFA), to 

publish one or more guides to assist 

small entities in complying with the 

final rule. FRA intends to publish an 

interim final compliance guide early in 

2015. By characterizing the guidance as 

‘‘interim final,’’ the guidance will be 

effective immediately, but signal that 

FRA is willing to consider amending the 

guidance based on comments received. 

Consequently, FRA will provide a 60- 

day comment period and intends to 

issue a notice for the final guidance by 

no later than one year from the date of 

issuance of the interim final guidance. 

FRA also amended the proposal so that 

small entities will have at least four 

years from the date of issuance of the 

interim final compliance guide to 

implement a training program under 

§ 243.101(a)(2) and at least four years 

and eight months from the date of 

issuance of the interim final compliance 

guide to designate existing employees 

under § 243.201(a)(2). That schedule for 

publication of a compliance guide 

should also benefit model program 

developers who will want to reference 

the guide in their attempt to meet the 

May 1, 2017 submission deadline in 

§ 243.105(a)(3). 

FRA’s compliance guide is intended 

to aid employers by providing the task 

inventories that provide the foundation 

of the OJT program. The compliance 

guide can be used by all employers, but 

will be written with a primary emphasis 

on assisting small entities. The task 

inventories will be presented in a format 

that is highly respected in the adult 

training community, and will be 

modeled after training formats FRA’s 

master trainers use to train FRA 

personnel. The guide will address each 

major type of safety-related railroad 

employee category. It will explain the 

roles and responsibilities for those 

administering the program, as well as 

the trainees and trainers. Duties will be 

identified by the performance task that 

the employee is supposed to be able to 

do. The guide will help identify the 

preparation that trainers will have to 

take in order to make sure that the 

conditions are conducive for learning. 

For example, trainers will ensure that 

trainees have all the tools, equipment, 

and documents needed to practice the 

task. Furthermore, the guide will help 

establish standards for establishing 

when a trainee has demonstrated 

proficiency. Such standards are 

generally based on repetition, the 

completeness, and the percentage of 

accuracy. These factors for establishing 

standards will be driven by the 

complexity of the related task. 

Thus, FRA has addressed this 

commenter’s concern by agreeing to 

publish a compliance guide and 

delaying implementation for small 

entities so that the small entities will 

have at least four years to consider the 

agency’s guidance prior to the deadline 

for program submission. 

VI. Section-by-Section Analysis 

Part 214 

FRA received three comments 

regarding the proposed amendments to 

this part. Two of the commenters, AAR 

and APTA, support the amendments 

without recommending any changes 

from the proposal. The joint labor 

comment supported the overall 

direction of the amendments, and 

included a recommendation to expand 

this regulation to address the myriad of 

crane safety issues which fall outside 

the scope of roadway worker protection 

and the on-track safety programs 

specified in part 214, subpart C. For this 

reason, the joint labor comment 

requested that the crane operator 

qualification and certification 

requirements be moved to a new subpart 

within part 214. 

In the NPRM, FRA explained that 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) and how it may be 

very difficult or unnecessarily 

burdensome for the railroad industry to 

comply with the crane operator 

certification requirements provided for 

in OSHA’s regulation. In accordance 

with Executive Order 13563, 

‘‘Improving Regulation and Regulatory 

Review,’’ which requires ‘‘[g]reater 

coordination across agencies’’ to 

produce simplification and 

harmonization of rules, FRA has 

coordinated 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. 

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, prior 

to this rule, FRA did not require 

operator certification. See 49 CFR 

214.341 and 214.355. 

As FRA is promulgating a new 

regulation (part 243) in this notice to 

address training standards for all safetyrelated railroad employees, FRA is 

solidly situated to require a viable 

training alternative to OSHA’s 

certification options for certain crane 

operators in the railroad industry. In 

particular, FRA is especially well-suited 

to address the training and qualification 

requirement for operators of roadway 

maintenance machines equipped with a 

crane. This final rule contains various 

requirements for 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, new part 243 is only intended 

to cover training of Federal railroad 

safety laws, regulations, and orders and 

those railroad rules and procedures 

promulgated to implement those 

Federal requirements. Consequently, 

FRA is adding a new § 214.357 to 

existing part 214 which includes 

training and qualification requirements 

for operators of roadway maintenance 

machines equipped with a crane. The 

details of those requirements are 

addressed below in the analysis for that 

particular section. 

Section 214.7 Definitions 

The final rule would add a definition 

for roadway maintenance machines 

equipped with a crane in order to 

address the term’s use in § 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 amending paragraph (b)(2) to 

address two issues. First, FRA is 

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removing the requirement that the 

operator of a roadway maintenance 

machine have ‘‘complete’’ knowledge of 

the safety instructions applicable to that 

machine. Based on 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 change to paragraph (b)(2) 

addresses 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 requires 

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, 

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. 

§ 214.357 Training and Qualification 

for Operators of Roadway Maintenance 

Machines Equipped With a Crane 

As mentioned previously, FRA is 

amending 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. Once this rule is effective, FRA 

regulations would 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 

requires new training requirements in 

addition to the existing requirements 

already contained in this subpart. 

Paragraph (a) also includes 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. The 

requirement in paragraph (a) to ‘‘adopt’’ 

and ‘‘comply’’ with a training and 

qualification program may seem 

redundant; however, the use of these 

terms together 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) requires 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) requires 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) requires 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 of the amendments to 

§ 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 rule 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) requires 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. 

This requirement repeats the 

requirement contained in § 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 

requirement to cause an employer to 

duplicate records kept in accordance 

with proposed part 243. Similarly, 

paragraph (d) requires 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 required in part 243. 

In paragraph (e), FRA permits training 

conducted by an employer in 

accordance with operator qualification 

and certification required by the 

Department of Labor (29 CFR 

1926.1427) to 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 in the 

NPRM, 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 

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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. 

Part 232 

Section 232.203 Training 

Requirements 

FRA modeled some aspects of this 

final rule related to 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. The minor corrections 

were described in the NPRM and FRA 

did not receive any comments regarding 

them or objecting to their adoption. 77 

FR 6420, 6453. As this portion of the 

final rule is identical to the proposed 

version, the analysis provided for in the 

NPRM is not being repeated here. 

Part 243 

Subpart A—General 

Section 243.1 Purpose and Scope 

In response to comments received in 

response to the NPRM, some minor 

edits have been made to paragraph (a) 

and paragraph (e) of this section. FRA 

has not repeated the analysis contained 

in the NPRM for those paragraphs that 

remain the same as in the proposal. 77 

FR 6420–21. The comments received 

regarding this specific section are 

addressed here. 

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 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 final rule. 

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 is required by this part is 

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, 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 rule, 

not every person that works on a 

railroad’s property should expect that 

this 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 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, the person must be trained in 

accordance with all applicable Federal 

requirements. See e.g., §§ 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 final rule 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 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. 

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. 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 taskbased. 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. 

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FRA received one comment 

suggesting that paragraph (a) could be 

improved. AAR suggests that paragraph 

(a) be amended because it could be 

interpreted to mean the opposite of 

what the preamble says is not intended; 

namely, that an employee has to be 

familiar with the actual wording and 

citations for relevant regulations. AAR 

suggests that paragraph (a) be amended 

to read: ‘‘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 to comply with 

any relevant 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.’’ FRA agrees 

with AAR’s recommendation and has 

changed paragraph (a) accordingly. 

REB’s comment recommends 

confirming the scope by stating that 

‘‘This rule does not apply to training 

programs that do not address FRA rules, 

regulations, and orders.’’ FRA believes it 

would be repetitive to restate the scope 

of the rule in the way in which REB’s 

comment suggests and is concerned 

with the ambiguity of the double 

negative in the suggested rewrite. 

Meanwhile, REB’s comment has merit 

and FRA offers the following 

clarification. REB’s comment seems to 

indicate that if another Federal agency, 

or State or local jurisdiction required 

training, that the training required by 

these other authorities would not need 

to be addressed in the training programs 

submitted to FRA for approval. FRA 

agrees. Similarly, an employer may 

require its employees to complete 

company-specific training, such as 

training on an employee’s duties and 

responsibilities, that are unrelated to 

FRA’s requirements. Again, FRA agrees 

with REB that this final rule is not 

intended to require the employer to file 

those types of company-specific training 

programs to FRA. 

No comments were received 

requesting specific changes to proposed 

paragraphs (b) through (d), and these 

paragraphs are identical to those in the 

NPRM. 

Paragraph (e) was not proposed, but 

has been added in order to clarify that 

this rule does not address hazardous 

materials training of ‘‘hazmat 

employees’’ as that term is defined by 

PHMSA. PHMSA already extensively 

regulates the training of hazmat 

employees. This requirement has been 

added to prevent any confusion on the 

matter. 

Section 243.3 Application and 

Responsibility for Compliance 

No comments were received 

concerning this proposed section and 

the rule text is identical to the proposed 

version. See 77 FR 6421. 

As discussed in the NPRM, the extent 

of FRA’s jurisdiction, and the agency’s 

exercise of that jurisdiction, is wellestablished. See 49 CFR part 209, 

appendix A. The application and 

responsibility for compliance section is 

consistent with FRA’s published policy 

for how it will enforce the Federal 

railroad safety laws. This final rule is 

intended to apply to all railroads 

(except those types of railroads that are 

specifically listed as exceptions in 

paragraph (a)), contractors of railroads, 

and training organizations or learning 

institutions that train safety-related 

railroad employees. 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 

The final rule adds a definition for 

‘‘refresher training’’ in response to 

comments and modifies the definition 

of ‘‘formal training’’ so it is clear that 

correspondence training is an 

acceptable type of formal training. The 

final rule also modifies the definition of 

‘‘designated instructor’’ to be clear that 

such a person, where applicable, has the 

necessary experience to effectively 

provide formal training ‘‘of the subject 

matter.’’ Otherwise, the definitions in 

this section are identical to the version 

in the NPRM. The analysis in the NPRM 

can be found at 77 FR 6421–25. 

This section defines a number of 

terms that have specific meaning in this 

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 part. 

FRA raised a question in the NPRM 

regarding the definitions of 

Administrator and Associate 

Administrator, even though these are 

standard definitions used in other parts 

of this 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 prior to the NPRM’s 

publication, the recommendations did 

not address the role of the Associate 

Administrator for Railroad Safety/Chief 

Safety Officer. The NPRM proposed this 

additional definition so that it would be 

clear that some of the proposed program 

review processes would be delegated to 

the Associate Administrator. The 

agency’s expertise in reviewing training 

programs lies within its Office of 

Railroad Safety, and the decisionmaking 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. As FRA did 

not receive comments on this issue and 

believes it is an effective approach for 

agency decision-making, the final rule 

retains the Associate Administrator 

definition. 

The final 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 

definition explains that ‘‘[i]n the context 

of this part, formal training may 

include, but is not limited to, classroom, 

computer-based, correspondence, onthe-job, simulator, or laboratory 

training.’’ The only change to this 

definition from the proposed rule is that 

FRA included correspondence training 

as a listed type of formal training. 

Although the list of formal types of 

training is specifically identified as not 

being comprehensive, FRA added 

correspondence to the list to address a 

commenter’s concern. In a sense, 

correspondence training is not that 

much different than computer-based 

training. Computer-based training could 

certainly be web-based so that a learner 

could access training from anywhere 

with an electronic device capable of 

accessing the internet. Similarly, 

software could be given to a person to 

install on a business-owned or 

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personally-owned computer, and 

training could be accomplished 

anywhere the person used the 

computer. Consequently, FRA is adding 

correspondence training to the list of 

types of formal training. 

During the RSAC process prior to the 

NPRM’s publication, 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. The final 

rule addresses this concern by requiring 

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 providers may give training 

participants an email address to send 

questions and promise to respond 

within five business days. Certainly, 

there are a wide-variety of reasonable 

procedures that could be established by 

course providers that could include 

registering a question by telephone, 

written form made available at the time 

of the training, or even instantmessaging (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. 

The term refresher training refers to 

the periodic retraining an employer 

determines is necessary to keep a safetyrelated railroad employee qualified. 

This is the training required for 

previously qualified employees, not 

employees who are completely new to 

the subject matter. Refresher training is 

required pursuant to paragraph (e) of 

§ 243.201. The term was used in the 

proposed rule, but was not defined in 

the NPRM. In consideration of a 

comment received, FRA has added this 

definition. Additional information about 

the comment and what is meant by 

refresher training is addressed in the 

Discussion of Specific Comments and 

Conclusions section. 

Section 243.7 Penalties and 

Consequences for Non-Compliance 

This section was formerly proposed as 

§ 243.9, but was renumbered because 

proposed § 243.7 (addressing the issue 

of waivers) was not retained in this final 

rule. 

No comments were directly received 

with regard to proposed § 243.9 and it 

is identical substantively to the 

proposed version; thus, the analysis 

provided for in the NPRM is merely 

summarized here. See 77 FR 6425. Some 

commenters did raise questions 

regarding what civil penalty amounts 

would be reasonable if FRA were to take 

enforcement action, and those 

comments are addressed with regard to 

the analysis for appendix A, the 

schedule of civil penalties. 

This final rule 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. 

Subpart B—Program Components and 

Approval Process 

Section 243.101 Employer Program 

Required 

Compared to the NPRM, this section 

only contains a few changes. In 

paragraphs (a) and (b), FRA extends the 

actual implementation dates 

significantly from the NPRM’s proposed 

dates. The broad issue of 

implementation dates is addressed in 

the Discussion of Specific Comments 

and Conclusions section of this 

document. Also in paragraph (b), FRA is 

making some substantive changes which 

are addressed below. Finally, this 

analysis includes a discussion of 

comments received with regard to 

paragraph (d)(3) of this section, to 

explain why FRA decided to reject an 

alternative to the proposed rule that 

FRA suggested in the NPRM’s sectionby-section analysis. 

Paragraph (a) differs from the NPRM 

as it was split into two paragraphs so 

that small entity employers could be 

provided with one year longer to 

comply with the training program 

submission requirement as compared to 

those employers subject to this part with 

400,000 total employee work hours or 

more annually. Paragraphs (a)(1) and 

(a)(2) contain the general requirement 

for each ‘‘employer’’ to submit, adopt, 

and comply with a training program for 

its safety-related railroad employees. 

Both paragraphs (a)(1) and (a)(2) provide 

a significantly more generous deadline 

for compliance than what was proposed. 

An employer’s program must be 

submitted and approved by FRA in 

accordance with the process set forth in 

§§ 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 requiring each employer to 

accept its training program as its own. 

Furthermore, an employer is obligated 

to comply with its program by 

implementing it. Thus, when adopted 

and complied with, FRA would expect 

the employer’s safety-related railroad 

employees to receive training in 

accordance with the employer’s 

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, appendix A. 

NRC and ASLRRA recommend 

amending paragraph (b) of this proposed 

section so that an employer 

commencing operations subject to this 

part after the rule is implemented shall 

submit a training program within one 

year after commencing operations, 

instead of the proposed 90 days in 

advance of commencing operations. The 

commenters take the position that to do 

otherwise would stifle the 

entrepreneurial spirit of small business 

job creators. The commenters also state 

that many small business owners would 

not even know for certain that they 

would be starting a new business 90 

days prior to commencing operations, 

much less be prepared to file an 

extensive training program with FRA. 

FRA agrees that the commenters have 

identified an issue, but disagrees on the 

approach to resolving the perceived 

conflict. 

Paragraph (b) differs from the 

proposal in order to provide equal 

treatment of program review and 

implementation regardless of whether 

an employer commences operations 

after the appropriate deadline under 

paragraph (b) or submits a training 

program as an existing employer under 

paragraphs (a)(1) or (a)(2). FRA decided 

not to retain paragraph (b) as proposed 

in order to address the concerns FRA 

received regarding the difficulties of 

compliance that start-ups and joint 

ventures could face. The change will 

still require an employer under 

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paragraph (b) to submit its training 

program prior to commencing 

operations, but will no longer contain 

the proposed requirement that the 

program be submitted at least 90 days 

prior to commencing operations. In 

addition, FRA has removed the 

proposed requirement that the employer 

wait for FRA to approve the program 

prior to adopting and complying with it. 

Instead, the final rule requires that the 

employer adopt and comply with its 

submitted training program no later 

than upon the commencement of 

operations. FRA does not agree with the 

comments suggesting that start-ups and 

joint ventures should be allowed to use 

employees for up to one year to perform 

safety-related duties without 

designating those employees in 

accordance with a training program 

filed with FRA. If FRA were to do so, 

FRA believes it would be creating a 

large loophole for many new businesses 

to use untrained or unqualified 

individuals in positions that endanger 

the lives of railroad employees and the 

general public. FRA notes that there is 

nothing in the regulation preventing an 

employer from implementing a training 

program prior to commencing 

operations so that its safety-related 

railroad employees are ready to work 

independently on its first day of 

operations. The employer is required to 

adopt and comply with the training 

program for the same reasons as 

explained in the analysis for paragraph 

(a). 

As no comments were received 

regarding paragraphs (c) through (f), and 

those paragraphs are identical to the 

proposed versions, we are merely 

summarizing the rest of the 

requirements in this section. 

Paragraph (c) requires a list of overarching organizational requirements for 

each employer’s training program. 

Paragraph (d) contains OJT training 

requirements that are essential to 

ensuring that OJT successfully 

concludes in a transfer of knowledge 

from the instructor to the employee 

(learning transfer), but only applies if a 

training program has OJT. 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 handson experience. OJT should be a positive 

experience for the learner, as well as the 

mentor, with sufficient opportunity for 

practice and feedback. 

In the NPRM, FRA explained that a 

manual and a checklist may serve 

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 requirement is less 

burdensome. However, FRA requested 

comments in the section-by-section 

analysis of the NPRM with regard to 

paragraph (d)(3). FRA wanted 

commenters to consider the distinctions 

between these types of documents, and 

whether FRA should promulgate this 

final rule with a requirement for both a 

manual and a checklist. 77 FR 6426–27. 

In response, a number of railroads and 

railroad association commenters 

unanimously voiced strong opposition 

to the suggestion that a manual and a 

checklist should be required. The 

commenters argued primarily that a 

requirement for both a checklist and a 

manual would be micromanaging that 

would reduce an employer’s flexibility 

to comply. AAR stated that ‘‘railroads 

might use different methods for 

different types of employees and 

different types of training [and thus] 

. . . [u]niform . . . requirements for the 

documentation of tasks are neither 

necessary nor desirable.’’ Although FRA 

strongly urges each employer to 

consider making both detailed manuals 

and the generally less detailed 

checklists available to all employees 

involved in OJT exercises, FRA has 

decided to provide each employer with 

the flexibility to choose which type of 

reference document must be made to 

employees involved in OJT exercises. 

In concluding the analysis of this 

section, FRA responds to a comment by 

APTA requesting that FRA simplify the 

OJT requirements further. APTA 

suggests that the OJT does not have to 

be ‘‘a formalized program, replete with 

specific steps, tasks and methods that 

must be followed and documented in 

exacting detail.’’ FRA does not agree 

with APTA that the OJT requirements 

are too complicated and unnecessary. 

Without formalizing OJT, FRA will be 

unable to break the cycle of 

unstructured OJT practices by some 

employers that permit shadowing an 

experienced person without any 

confirmation of learning transfer on any 

particular safety-related tasks. If the rule 

failed to contain this requirement, the 

rule would likely fail to substantially 

improve safety. Certainly, each 

employer will need to review whether a 

previously imposed OJT program is too 

informal, and may not be able to 

maintain the status quo without adding 

structure or a defined curriculum as this 

rule requires for formal training. 

Section 243.103 Training Components 

Identified in Program 

No comments were received that 

suggested specific changes with regard 

to this section and the final rule is 

identical to the proposed rule; thus, the 

analysis provided in the NPRM is 

merely summarized here. See 77 FR 

6427–29. 

Unlike § 243.101, which focuses on 

the general requirements for an 

employer’s training program, this 

section details the component 

requirements for each program. The 

main purpose for this 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 

§ 243.111, FRA also requires that 

training organizations and learning 

institutions 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 in this section 

is addressed. 

Although the analysis for paragraph 

(b) of this section remains the same as 

that in the NPRM, FRA wants to 

emphasize that it 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 

part. In the NPRM, FRA listed the 

examples of FRA training programs that 

an employer may choose not to resubmit 

as located in §§ 214.307, 217.9, 217.11, 

218.95, 236.905, and 240.101. After 

publication of the NPRM, FRA 

published a final rule regarding 

conductor certification at 49 CFR part 

242. Certainly, the training program 

required by §§ 242.101 and 242.103 is 

another example of a program that may 

be referenced in the program required 

by this part without being submitted 

again. 

During the Working Group meeting to 

discuss comments, AAR asked whether 

FRA will contact a railroad when a 

previously submitted program does not 

meet the training program criteria of this 

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rule. FRA explained that paragraph (b) 

requires the employer to state in the 

training program filed under this rule 

that it has previously filed a training 

program in accordance with another 

FRA regulation. Once an employer has 

put FRA on notice of the previously 

filed program under a different 

regulation, it will be FRA’s burden to 

contact the railroad to address any 

perceived inadequacies. 

Section 243.105 Optional Model 

Program Development 

This section of the final rule is 

identical to the proposed rule except for 

the addition of paragraph (a)(3). See 77 

FR 6429–30. The addition of this 

paragraph was made to address FRA’s 

concerns raised in the NPRM that 

incentives should be offered to 

submitters of model programs so that 

they are encouraged to seek FRA’s 

approval of such programs at an early 

stage. Early approval of model programs 

would make it more likely that an 

employer could choose to adopt and 

comply with the model program. If a 

model program is not approved prior to 

the deadlines set forth in § 243.101(a)(1) 

and (a)(2) for each employer to submit 

a program, the model program is not 

likely to be of much use to employers. 

To encourage early submission of 

model programs, FRA is guaranteeing 

that, as long as the submission is made 

prior to May 1, 2017, the program may 

be considered implicitly approved and 

implemented 180 days after the program 

is submitted unless FRA explicitly 

disapproves of the program. Although 

FRA encourages model program 

submitters to submit much earlier than 

this optional deadline, the deadline will 

permit programs submitted on April 30, 

2017 to be implicitly approved on 

October 27, 2017—which is 65 days 

prior to the employer’s deadline, for 

those employers with 400,000 total 

employee work hours annually or more, 

under § 243.101(a)(1), and at least one 

year and 65 days prior to the small 

entity employer’s deadline under 

§ 243.101(a)(2), as the small entity 

deadline may be extended depending on 

the date of issuance of FRA’s Interim 

Final Compliance Guide. Of course, 

FRA may explicitly approve the 

program in less than 180 days, which 

would also benefit the early model 

program submitter and the employers 

that intend to use the model program. 

FRA also received one comment 

regarding this section that pertained to 

the use of unique identifiers for each 

model program, but has decided not to 

amend this section based on the 

comment. The commenter recommends 

that FRA assign a unique identification 

number to all training developers— 

whether they are employers or thirdparty developers. In the NPRM, FRA 

proposed that each entity submitting an 

optional model program should submit 

a unique identifier associated with the 

program, or FRA will assign a unique 

identifier. The proposal and final rule 

provide a training developer with the 

maximum flexibility to create its own 

unique identifier. If one submitter 

duplicates another entity’s identifier, 

FRA intends to notify the training 

developer so that entity has an 

opportunity to create another identifier. 

There does not appear to be any basis 

for supporting FRA’s creation of unique 

identification numbers for training 

developers versus the developers 

creating their own unique identifier. 

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 of a successful 

program and can be implemented by 

multiple businesses with little fear of 

rejection during the program submission 

and approval process. 

Paragraph (a) contains 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. As FRA 

explained in the preamble under the 

heading ‘‘Compliance Guide,’’ FRA will 

be publishing an interim final 

compliance guide in early 2015. 

Additionally, FRA has amended the 

proposal so that small entities will have 

at least four years to review FRA’s 

guidance prior to the requirement in 

§ 243.101(a)(2) that a small employer 

file a training program. That schedule 

for publication of a compliance guide 

should also benefit model program 

developers who will want to reference 

the guide in their attempt to meet the 

May 1, 2017 submission deadline in 

§ 243.105(a)(3). 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, it is foreseeable 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. 

To aid users, model program 

developers may use a modular approach 

in the design phase. For example, a 

model program designed for Track 

Safety Standards (49 CFR part 213), will 

likely incorporate all subparts (A–G) of 

the regulation. A modular approach will 

enable small railroad that may have all 

‘‘excepted track’’ to essentially only use 

the training materials associated with 

subparts A and F, since the regulation 

for excepted track only requires a 

weekly inspection and a record of the 

inspection. Similarly, any railroad that 

only operates trains for distances of 20 

miles or less are not required to train to 

the full requirements of the Brake 

System Safety Standards for Freight (49 

CFR part 232). Once again, a modular 

approach in the design phase will 

enable users to easily customize a model 

program to fit their operational needs. 

Section 243.107 Training Program 

Submission, Introductory Information 

Required 

No comments were received 

recommending specific changes with 

regard to this section and the final rule 

is identical to the proposed rule; thus, 

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the analysis provided in the NPRM is 

merely summarized here. See 77 FR 

6430. 

In this section, FRA requires specific 

information from each employer 

submitting a program. The required 

information will provide FRA with 

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 may 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. 

Section 243.109 Training Program 

Submission, Review, and Approval 

Process 

Several comments were received with 

regard to this section, but most of those 

comments did not persuade FRA to 

deviate from the provisions proposed in 

the NPRM. As the comments raised 

fairly narrow issues, the comments have 

been addressed in this analysis. As most 

of the final rule is identical to the 

proposed rule, the analysis provided in 

the NPRM is merely summarized here. 

Interested parties are directed to the 

NPRM for a more detailed discussion. 

The analysis in the NPRM can be found 

at 77 FR 6430–32. However, the 

following analysis explains the 

differences between the proposed rule 

and this final rule. 

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 final rule. During 

the RSAC deliberations, there were 

general concerns raised that some longterm 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 longterm intern program that has already 

begun; in other instances, changing the 

apprenticeship program would be 

prohibitively expensive or logistically 

difficult. RSAC recommended and FRA 

accepted 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. 

As FRA explained previously in the 

section-by-section analysis to § 243.101, 

the agency chose to provide equal 

treatment to an employer whether it is 

submitting a training program as an 

existing employer (as of January 1, 2018 

under § 243.101(a)(1) or as of January 1, 

2019 under § 243.101(a)(2)) or as an 

employer commencing operations after 

January 1, 2018 under § 243.101(b). FRA 

decided to provide this equal treatment 

in order to address concerns FRA 

received regarding the difficulties of 

compliance that start-ups and joint 

ventures could face. In order to carry 

that equal treatment throughout the 

rule, FRA is requiring the same initial 

program submission requirements for 

both § 243.101(a) and (b) employers in 

paragraph (a)(2) of this section, and has 

removed proposed paragraph (a)(3) of 

this section. This will allow all 

employers to consider their initial 

program submissions to be approved 

and ready for immediate 

implementation. Railroads are already 

required to ensure proper training 

techniques prior to commencing their 

operations. Therefore, this rule should 

not create barriers to entry nor delays in 

starting new operations. More so, new 

railroads would have access to model 

training programs and best-in-class 

training practices. Therefore, they 

should be able to use their own human 

resources more efficiently for training 

purposes and possibly expedite entry 

into market. 

FRA did not receive comments 

suggesting that allowing an employer to 

immediately implement a training 

program without explicit FRA-approval 

might prove problematic; however, FRA 

considered whether the final rule could 

be problematic in that regard. FRA starts 

with the premise that even before this 

final rule is effective, all safety-related 

railroad employees are required to 

comply with the applicable Federal 

railroad safety laws, regulations and 

orders. An employer is responsible for 

its employees, and thus FRA could hold 

an employer accountable for any 

violations committed by an employee. 

In FRA’s experience with program 

approval requirements, employers 

express the greatest anxiety over 

whether they can immediately 

implement a program versus having to 

wait for FRA’s explicit approval. By 

allowing employers to immediately 

implement a program, FRA believes it 

has relieved most anxiety that 

employers are likely to have. In FRA’s 

experience, it often takes several years 

before a latent problem in a training 

program is discovered. The open ended 

approval process permits FRA to go 

back years after initial approval and 

raise newly identified alleged instances 

of non-compliance. Although FRA will 

use enforcement when necessary, the 

agency’s primary goal is to improve 

training for safety-related railroad 

employees and FRA expects that its 

focus will be on employers taking 

effective remedial measures. 

If an employer’s training program 

failed to meet the requirements of this 

final rule, there are two potential 

concerns. One concern is that the 

employer will incur additional training 

costs beyond what it would have 

incurred if FRA had rendered explicit 

approval prior to implementation and 

the second is that the employees will 

not be adequately trained. With regard 

to the first concern, FRA expects that 

most shortline railroads and contractors 

will use model programs previously 

FRA-approved in accordance with 

§ 243.105. Because the model program 

would have received prior approval, 

FRA expects that any problems 

encountered will likely be with the 

implementation of the programs and not 

the programs themselves. Problems with 

implementation are likely to be 

discovered during investigations and 

audits, not during program reviews. If 

an employer is implementing its own 

individualized program. FRA expects 

that the worst case scenario is that the 

program would reflect the current state 

of the employer’s training program 

without formalizing OJT or other 

aspects of its training. Under these 

scenarios, FRA intends to instruct the 

employer on the requirements of the 

rule and request a plan to get the 

training program in compliance with the 

final rule. Enforcement action will be 

considered on a case-by-case basis, but 

certainly would not be warranted in 

every instance if swift remedial action 

can be accomplished. An employer 

filing an individualized training 

program might be able to avoid these 

issues by submitting its program much 

earlier than the applicable 

implementation deadline and thereby 

getting FRA-approval prior to 

implementation. With regard to the 

second concern that employees will not 

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be properly trained, again, FRA does not 

see the problem as an employer failing 

to discuss a subject as an employer is 

responsible for an employee’s noncompliance even prior to the effective 

date of this rule. FRA believes the 

problems will be that the training is not 

sufficiently formalized to capture that 

an employee can complete each 

assigned task; as this is an essential 

element of this final rule, it seems that 

it would be a blatant disregard of the 

requirements of the rule for an employer 

to leave it out of its program. In those 

cases, enforcement action is likely 

appropriate and, depending on the 

circumstances, an employer will have to 

plan a fix for the next training cycle or 

immediate remedial measures. 

In paragraph (b), FRA implements a 

requirement for an annual informational 

filing. This filing is intended to ease an 

employer’s regulatory burden by 

reducing the number of times an entire 

training program would need to be 

revised, resubmitted, and reviewed for 

approval on routine matters. An 

employer is required to submit a single 

informational filing no later than 

January 30 each calendar year that 

addresses any new safety-related 

Federal railroad laws, regulations, or 

orders issued, or new safety-related 

technologies, procedures, or equipment 

that were introduced into the workplace 

during the previous calendar year. The 

rule explains how FRA may advise 

individual employers, one or more 

group of employers, or the general 

public that an informational filing is not 

required for a particular issue. 

APTA’s comment requests that each 

railroad be provided the discretion to 

file an information filing anytime it 

wants rather than within 30 days of the 

end of the calendar year. However, FRA 

notes that APTA has misinterpreted the 

requirement. Under paragraph (b) of this 

section, an employer must file an 

informational filing ‘‘not later than 30 

days after the end of the calendar year 

in which the modification occurred, 

unless FRA advises otherwise.’’ There is 

no prohibition against an employer 

filing earlier than 30 days after the end 

of the calendar year in which the 

modification occurred. FRA has simply 

set a deadline for filing the 

informational filings, not a requirement 

that the filings can only be made within 

30 days of the end of the calendar year. 

Paragraph (c) sets forth the 

requirements for an employer that wants 

to revise a training program that has 

been previously approved. The 

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 paragraph (b). 

AAR’s comment reiterated a concern 

raised during RSAC Working Group 

meetings that the final rule should 

contain the flexibility to implement 

modifications in a manner consistent 

with each railroad’s normal training 

schedule. After discussing the issue at 

the Working Group meeting to discuss 

the comments, it is FRA’s belief that the 

final rule contains the flexibility that 

AAR seeks. For example, under 

paragraph (b), ‘‘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.’’ Pursuant 

to paragraph (b), FRA expects that new 

legal requirements will contain their 

own implementation deadlines and that 

any employer implementing a new legal 

requirement will comply with that new 

legal requirement’s deadline. Paragraph 

(b) also requires that an employer that 

needs to modify its training program to 

implement a new legal requirement 

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. 

In other words, the rule requires that the 

employer be permitted the flexibility to 

modify the program at any time but the 

employer is not required to notify FRA 

of the modification until January 30 in 

the year after the modification occurred. 

The informational filing is the 

employer’s notice to the FRA that the 

modification to the training program 

was made the previous year. As AAR’s 

members will have completed new 

training curriculums by January 1 of 

each year, summarizing the 

modifications and filing the changes in 

an informational filing to FRA by 

January 30 should not pose an obstacle 

for any railroad that wishes to continue 

its normal training schedule. 

Similarly, there is no requirement in 

paragraph (c) that could possibly deter 

a railroad or contractor from having the 

maximum flexibility to implement 

modifications in a manner consistent 

with the employer’s training schedules. 

Paragraph (c) permits substantial 

additions or revisions to a previously 

approved program, that are not 

described as informational filings in 

accordance with paragraph (b) of this 

section, to be considered approved and 

ready for immediate implementation 

upon submission. Of course, if an 

employer chooses to submit the 

addition or revision during the early 

part of a newly started training cycle 

(e.g., January through March for a major 

railroad) and FRA finds the addition or 

revision does not conform to this part, 

the employer will potentially have 

trained and be continuing to train 

employees based on a non-conforming 

program. Thus, an employer that begins 

new training in January should make 

every effort to get FRA’s approval of an 

addition or revision prior to January. 

FRA disagrees with APTA’s concerns 

regarding the training program 

submission, review, and approval 

process. APTA states that the approval 

process ‘‘stifles the development of 

innovative and progressive techniques 

in training methodologies which could 

provide better employee understanding 

and adherence.’’ APTA suggests that 

FRA add a provision to the final rule for 

a provisional status, such as 

‘‘Conditional Acceptance’’ to allow for 

piloting or testing of new training 

approaches outside of misusing the 

waiver application for such a purpose. 

APTA is concerned that FRA will reject 

new training concepts or that an 

employer cannot utilize new training 

concepts until FRA approves a program. 

In response, FRA notes that under the 

rule, an employer could, at any time, 

submit substantial additions or 

revisions to a previously approved 

program and that the submission would 

be considered approved and may be 

implemented immediately upon 

submission. See § 243.109(c). Thus, as 

an employer could change the method 

of course delivery (see § 243.103 

Training components identified in 

program) at any time after a program has 

been approved; a provision for 

conditional acceptance is unnecessary. 

The change will be considered accepted 

unless FRA determines that the new 

portion or revision to an approved 

program does not conform to this part; 

however, even then an employer will 

have 90 days to resubmit the program in 

accordance with the instructions 

provided by FRA. 

APTA further comments that the 

disqualification procedure for the 

program was not well-defined in the 

NPRM and that due process should be 

provided. APTA is concerned about 

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employers having to pay civil penalties 

for failing to resubmit conforming 

programs. FRA does not believe that 

additional procedures are warranted. 

The procedures are sufficiently defined 

and give FRA the discretion to address 

each type of non-conformance through 

enforcement. FRA believes it needs the 

discretion to decide the appropriate 

method of addressing non-conforming 

training programs. FRA does not expect 

civil penalties to be assessed for 

program deficiencies that are correctable 

and corrected within the time allotted to 

the employer. FRA envisions taking 

enforcement action when an employer 

has a deficient program that is not 

corrected within the 90 days provided, 

and the deficiency is likely to have an 

impact on the quality of the training or 

the non-conforming aspect of the 

program makes it difficult for FRA to 

properly assess the quality of the 

program. Whenever possible, FRA 

would consider the potential disruption 

in requiring an immediate fix to a 

deficient program and extend this 90- 

day period upon written request in 

accordance with paragraph (a)(2). 

Instead of requiring the deficiencies to 

be fixed within 90 days, FRA could 

allow changes in the program to be 

made during during the employer’s 

normal program review and 

implemented during the employer’s 

normal training cycle. Furthermore, 

FRA is not obligated to assess civil 

penalties or take other enforcement 

action, and does not anticipate doing so 

unless the agency deems that such 

action is warranted. 

FRA also expects that, in some 

instances, FRA representatives will be 

meeting with the entity that submits the 

non-conforming program and discussing 

the issues FRA identifies as 

problematic. These types of meetings 

are expected to lead to a better 

understanding of FRA’s concerns, 

which FRA hopes would alleviate any 

anxiety that the agency is acting without 

understanding the submitter’s concerns. 

Finally, once a submitter has exhausted 

its requests for FRA to accept its 

program, the submitter may have a legal 

cause of action based on the agency’s 

final decision. Thus, the submitter will 

receive due process by appealing to 

Federal court after receiving an adverse 

final agency action. See Administrative 

Procedure Act, 5 U.S.C. 701–706. 

The requirement in paragraph (d), to 

serve and involve labor organizations in 

the review of training programs, is for 

railroads only. One comment requested 

further clarification on what entities 

were obligated to comply with 

paragraph (d). For this reason, FRA 

clarifies that this requirement does not 

apply to any non-railroad entities that 

may have other obligations within this 

part. Thus, paragraph (d) does not apply 

to contractors, training organizations, 

and learning institutions that submit 

training programs. Paragraph (d) also 

does not apply to any model program 

submitters, unless the submitter is a 

railroad that intends to implement the 

model program on its own property 

following FRA approval. 

FRA has also rejected AAR’s 

comments suggesting that the 

requirement for a railroad to maintain 

proof that it has served a labor 

organization president with a training 

submission, resubmission, or 

informational filing is unnecessary 

under paragraph (d)(1)(ii) of this 

section. AAR states that if a railroad 

failed to provide a labor organization 

president with service of the training 

program, the railroad would be subject 

to FRA enforcement. AAR also 

questions the need for the names and 

addresses of the people served, as it is 

anachronistic with the use of electronic 

service and electronic docketing 

systems. FRA notes that it has recently 

promulgated a similar provision in 49 

CFR part 242, Conductor Certification, 

and that the agency’s concern is 

ensuring that the relevant labor 

organizations have sufficient time to 

review and provide FRA with feedback 

on the training submissions. When FRA 

reviews the program, if the agency 

notices that a certificate of service 

contains out-of-date or incorrect 

information then the agency can notify 

the railroad and relevant labor 

representatives of the error quickly. 

Certainly, if the labor organizations are 

amenable to being served by email or 

some other electronic means, the 

railroad would be required to capture 

that electronic address in addition to the 

name of the labor organization president 

served. FRA is less concerned with 

catching a railroad out of compliance 

than with ensuring that labor 

organizations have a full 90 days to 

comment on any program submission 

and not otherwise delaying the approval 

process because of improper service. 

Without a certificate of service, there is 

a greater likelihood that a railroad could 

intentionally or negligently fail to 

properly serve a labor organization. The 

certificate of service provides FRA with 

a relatively simple way to verify that the 

correct persons have been served. 

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 timeto-time, a labor organization may find 

something objectionable in a previously 

approved program, and FRA encourages 

those types of comments to be filed 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. 

Section 243.111 Approval of Programs 

Filed by Training Organizations or 

Learning Institutions 

Only one comment was received with 

regard to this section and it is addressed 

in this analysis without a need to 

change the proposal. FRA made a slight 

change to paragraph (b) in order to align 

the implementation deadline for 

training organizations and learning 

institutions with that of the other 

implementation deadlines in the final 

rule. Otherwise, the final rule is 

identical substantively to the proposed 

version and the analysis provided for in 

the NPRM is merely summarized here. 

Interested parties are directed to the 

NPRM for a more detailed discussion. 

The analysis in the NPRM can be found 

at 77 FR 6432–34. 

The purpose of 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 an 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. 

Furthermore, 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. 

Paragraph (b) requires that a training 

organization or learning institution that 

has provided training services to 

employers covered by this part prior to 

January 1, 2017 may continue to offer 

such training services without FRA 

approval until January 1, 2018. The final 

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rule is more generous than the NPRM as 

it provides additional time for any 

training organization or learning 

institution to submit a program for FRA 

approval. FRA decided that since the 

final rule does not require any employer 

to submit a program prior to January 1, 

2018, FRA should permit any training 

organization or learning institution to 

continue offering such training services 

without FRA approval until that date. 

Each training organization and learning 

institution should understand that its 

best interests are served by seeking early 

FRA approval of its training program so 

the program can be referenced by the 

employers who are its clients. In 

accordance with paragraph (d) of this 

section, explicit approval of such a 

program is required and the program 

will not be considered approved on 

submission. FRA will need time to 

review each program and it can be 

anticipated that the agency will be busy 

reviewing a large volume of programs 

late in 2017 and throughout 2018. Thus, 

each training organization and learning 

institution should plan to file its 

program as early as possible to avoid 

implementation delays. 

Paragraph (c) requires 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. In the 

section-by-section analysis in the 

NPRM, FRA explained that this 

sentence mainly refers to the 

requirements found in §§ 243.101 and 

243.103. FRA received one comment 

requesting clarification as to whether 

§ 243.103(a)(3) applies to employers 

only. In response to the comment, FRA 

notes that the citation refers to the 

requirement for an employer’s program 

to have a document for each OJT 

program component that includes 

certain information about the OJT 

program. FRA concludes that OJT 

would not be a required part of a 

program filed by a training organization 

or learning institution, but individual 

employers that utilize a training 

organization or learning institution may 

choose to supplement a program with 

OJT. It can be left to each employer to 

clarify that supplemental OJT issue in 

the employer’s program. Please note that 

OJT is not considered a mandatory 

program requirement and, other types of 

hands-on formal training provided by a 

training organization or learning 

institution may be considered an 

adequate substitute for OJT. 

§ 243.113 Electronic and Written 

Program Submission Requirements 

In the NPRM, FRA raised the issue of 

whether the option to file a program 

electronically should be modified to 

mandate electronic filing. An electronic 

submission process would allow the 

agency to more efficiently track and 

review training programs than a written 

paper submission process would permit. 

FRA was also concerned with incurring 

costs in developing and maintaining an 

electronic submission process if many 

submitters opted out. FRA always has 

the option to add paper submissions to 

an electronic database, but FRA would 

have to allocate resources to digitize and 

upload those paper submissions to the 

database. 

FRA received one comment that 

objected to mandatory electronic 

submission. ASLRRA disagreed with 

FRA’s assumption that even the smallest 

Class III railroads should have access to 

the Internet (or reliable access), and 

should therefore be able to file a training 

program electronically. FRA explored 

this issue with ASLRRA and the 

Working Group at the meeting held to 

discuss the comments filed in response 

to the NPRM. 

FRA’s electronic submission mandate 

addresses the ASLRRA’s comment by 

creating an exception for an employer 

with less than 400,000 total employee 

work hours annually in paragraph (a) of 

this section. Typically, when FRA has 

created an exception for small entities 

(especially railroads), it has defined 

small entities as those having less than 

400,000 total employee work hours 

annually. FRA’s exception is an 

accommodation that will spare small 

companies from requesting a waiver 

from the otherwise mandatory 

electronic submission process. Of 

course, nothing in this final rule 

precludes an employer with less than 

400,000 total employee work hours 

annually from submitting its program 

electronically. If an employer does not 

meet the requirements for the exception 

and does not have the capability to file 

electronically, the employer may submit 

a waiver request to FRA, consistent with 

FRA’s general waiver provision found at 

49 CFR part 211. Paragraph (a) also 

requires that all model programs be filed 

electronically in accordance with the 

requirements of this section. 

In addition to the previously 

mentioned considerations, FRA 

considered that it is becoming routine 

for private and public transactions to 

occur electronically. It would currently 

be unusual for an employer to forego 

having a Web site that customers can 

visit. FRA also expects that many 

companies would prefer not to have to 

print out written materials to mail in 

when a paper free electronic submission 

process is available. For these reasons, 

FRA is best served by requiring 

electronic submission. 

This section and section title were 

modified from the NPRM to reflect the 

mandatory nature of the electronic 

program submission and to 

acknowledge that the section also 

contains the requirements for a written 

submission. Other than the comment 

and changes previously discussed, only 

minor edits were made compared to the 

proposed section. Interested parties are 

directed to the NPRM for a more 

detailed discussion. The analysis in the 

NPRM can be found at 77 FR at 6434. 

Paragraph (b)(1) was changed from the 

proposal so that it is clear that 

organizations, businesses, and 

associations may file a program, not just 

employers, training organizations, and 

learning institutions. Throughout the 

section, the term ‘‘person’’ was 

substituted for the term ‘‘entity,’’ which 

was not defined in the NPRM or this 

final rule. 

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 

paragraph (b) are necessary in order to 

provide secure access. FRA has already 

developed a prototype of the document 

submission site and has offered a variety 

of likely users that represent the gamut 

of the regulated community an 

opportunity to test the site. Based on 

feedback received from test users, FRA 

received valuable insight into the pros 

and cons of the prototype. If necessary, 

the secure site should be able to start 

accepting electronic submissions by the 

effective date of the rule, although FRA 

expects to make additional functionality 

improvements up to the date of 

publication of FRA’s compliance guide. 

FRA encourages every regulated 

organization and employer to obtain 

access to FRA’s secure document 

submission site early in the program 

drafting process in order to become 

familiar with what can be accomplished 

on the site and potentially to enter basic 

user or program information so that the 

contact for the organization or employer 

will only need to upload the relevant 

written program submissions as they are 

completed. By developing the electronic 

submission process years in advance 

before the first programs are required for 

submission, FRA intends to create an 

electronic submission process that is 

easy to use and provides benefits to both 

the user and the agency. 

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The requirements in paragraphs (c), 

(e), and (f) will allow FRA to make 

efficient use of this electronic database. 

It is anticipated that FRA will 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. 

Paragraph (d) is necessary to provide 

FRA’s mailing address for those entities 

that need to submit a program 

submission in writing to FRA. 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 if the exception in 

paragraph (a) applies or the entity is 

granted a waiver, FRA would encourage 

each entity to utilize the electronic 

submission capabilities of the system. 

Please be advised that FRA will reject 

any submission if FRA does not have 

the capability to read it in the type of 

electronic storage format sent. 

In the NPRM, FRA requested 

comments on whether this section 

should address the submission of 

proprietary materials or other materials 

that an entity wishes to keep 

confidential. This issue has been 

addressed previously under the 

Discussion of Specific Comments and 

Conclusions section of this document. 

Subpart C—Program Implementation 

and Oversight Requirements 

Once a program has been approved by 

FRA, 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, 

each training organization and learning 

institution will be required to maintain 

records as evidence of completed 

training. 

Section 243.201 Employee 

Qualification Requirements 

Except for comments received 

regarding implementation dates, no 

comments were received requesting 

specific changes to this proposed 

section. FRA made some minor changes 

and clarifications to this section which 

are explained in the following analysis. 

This analysis summarizes all the 

requirements, but interested parties 

should reference the NPRM (77 FR 

6434–36) for additional analysis on 

those requirements that are the same as 

the proposal. 

The implementation dates in 

paragraphs (a), (b), and (e) have been 

extended from the proposal to address 

concerns raised in the comments. 

Paragraph (a), which requires each 

employer to designate existing 

employees, was split into two 

paragraphs so that smaller employers 

will have an extra year to comply with 

that requirement; this change from the 

proposal mirrors the change made to 

§ 243.101(a) that provides smaller 

employers with an extra year to submit 

a training program. The implementation 

date issues are discussed in greater 

detail in the Discussion of Specific 

Comments and Conclusions section of 

this document, but FRA complied with 

the spirit of the agreement reached by 

the Working Group to delay the start of 

refresher training so that it does not 

interrupt the normal three year training 

cycle instituted by many employers. 

Paragraph (b) contains a conforming 

change to reflect the new 

implementation dates in paragraph (a) 

of this section. Paragraph (e) was also 

split into two paragraphs so that smaller 

employers will have an extra year to 

comply with the refresher training 

requirements. In addition, in order to 

explain FRA’s intent regarding when 

refresher training is due when the last 

training event occurs prior to FRA’s 

approval of the employer’s training 

program, some clarifying language has 

been added to paragraphs (e)(1) and 

(e)(2). This clarification is explained in 

more detail later in this analysis. 

In the NPRM, FRA raised the issue of 

whether proposed paragraph (f) should 

stand alone or be combined with 

proposed paragraph (c)(2) of this 

section. That is, the proposed paragraph 

(f) requirement related 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 noncompliance with Federal railroad safety 

laws, regulations, or orders is 

observed.’’ Because proposed paragraph 

(f) provided the context of what is a 

‘‘qualified person’’ under paragraph 

(c)(2) of this section, FRA has decided 

that the proposed paragraph (f) 

requirement should be incorporated into 

the final paragraph (c)(2). This 

information explains why FRA deleted 

proposed paragraph (f) of this section. 

This 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. 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 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. 

Paragraph (e) of this section requires 

that each employer shall deliver 

refresher training at an interval not to 

exceed three 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. 

Comments were raised at the Working 

Group meeting regarding how to treat 

employees who are already receiving 

refresher training in a three year cycle. 

The commenters wanted to clarify that 

FRA would not be requiring every 

existing employee to receive refresher 

training in the same year, which would 

disrupt the current refresher training 

cycle as well as be expensive and 

logistically difficult. The commenters 

correctly stated FRA’s position, 

although FRA determined that the 

proposal could be improved to 

articulate that position more clearly. 

The regulatory language indicates that 

the employer is required to conduct 

refresher training at an interval based on 

‘‘an employee’s last training event.’’ 

Based on the comments, FRA has added 

clarification in the rule to further bolster 

the agency’s intent that if the last 

training event occurs prior to FRA’s 

approval of the employer’s training 

program, the employer shall provide 

refresher training either within 3 

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calendar years from that prior training 

event or no later than December 31, 

2022 or December 31, 2023, depending 

on the size of the employer. The 

changes from the proposal do not 

prevent an employer from initiating and 

completing its first round of refresher 

training all within the year of the 

applicable deadline established by 

paragraphs (e)(1) or (e)(2). However, the 

final rule allows for any employer to 

begin or continue implementing 

refresher training on a three calendar 

year cycle for one-third of its workforce 

each year without creating any logistical 

issues. 

Section 243.203 Records 

Several comments were received with 

regard to this section and they are 

addressed in this analysis. Compared to 

the NPRM, this section is substantially 

the same except that proposed 

paragraph (b)(5) was deleted, resulting 

in the renumbering of the remaining 

numbered paragraphs in paragraph (b); 

paragraph (c) was amended to address 

comments suggesting that certain types 

of records should only be required to be 

kept at one of the employer’s 

headquarters location within the United 

States; and, the electronic recordkeeping 

requirements were revised to more 

closely resemble FRA’s latest approach 

in this chapter. As most of the final rule 

is identical to the proposed rule, the 

analysis provided in the NPRM is 

merely summarized here. Interested 

parties are directed to the NPRM for a 

more detailed discussion. See 77 FR 

6436–38. 

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 safetyrelated railroad employee’s qualification 

status records and the accessibility of 

those records. One commenter asks 

whether a railroad will be required to 

maintain records for its contractors. The 

answer to the question is found in 

paragraph (a) which requires that each 

employer is responsible for keeping 

records of each of its own safety-related 

railroad employees. Thus, a railroad is 

not required to maintain records for any 

contractor’s safety-related railroad 

employees. It is the contractor that is 

responsible for keeping records of its 

own employees. 

In paragraph (b), FRA requires that 

certain core information be kept in the 

records for each current or former 

safety-related railroad employee. As 

mentioned previously in this analysis, 

proposed paragraph (b)(5) was deleted. 

In the NPRM, FRA questioned whether 

proposed paragraph (b)(5) was necessary 

as it would have required that the 

records for each current or former 

safety-related railroad employee 

indicate whether the person passed or 

failed any tests associated with training 

even though paragraph (b)(4) requires 

that the employer indicate in the 

records that the person successfully 

completed a specified formal training 

course. FRA received four comments 

supporting removal of proposed 

paragraph (b)(5) as unnecessary and 

none in support of retaining the 

provision. 

Paragraph (c) contains a three-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 

(§ 243.205) and the annual review 

(§ 243.207). The proposed three-year 

window for retention would actually be 

a bit longer than 3 years because it 

would be measured as three calendar 

years after the end of the calendar year 

to which the event relates. Thus, if a test 

occurred on March 1, 2018, the record 

would need to be maintained through 

December 31, 2021. 

Paragraph (c) also requires that any 

records that are not individual 

employee records must be accessible at 

one headquarters location within the 

United States. This paragraph lists 

different types of acceptable 

headquarters locations, but this is not an 

all-inclusive list and certainly other 

locations may be suitable. However, 

FRA has specifically rejected the idea 

that a multi-national corporation could 

maintain these records exclusively in a 

foreign location as doing so could 

hamper FRA’s enforcement activities. 

FRA eliminated the proposed 

requirement that these records also be 

kept at each division headquarters 

where the test, inspection, annual 

review, or other event is conducted after 

considering the overwhelming negative 

comments received. Thus, the revisions 

to this paragraph provide the flexibility 

sought by employers to choose where to 

maintain records, as well as eliminating 

the proposed requirement that the 

records also be maintained at certain 

division headquarters. 

Paragraph (d) contains the 

requirements for each employer, 

training organization, or learning 

institution to make available any record 

that it is required to maintain under this 

part. 

Paragraph (e) contains the 

requirements that apply for each 

employer, training organization, or 

learning institution that chooses to 

retain the information prescribed in this 

section by maintaining an electronic 

recordkeeping system. FRA decided not 

to retain the same provisions that were 

in the NPRM because the agency 

recently promulgated electronic 

recordkeeping provisions in the 

conductor certification final rule that 

provide a more up-to-date version of 

such requirements. See 49 CFR 

242.203(g). NRC recommends deleting 

paragraphs (e)(1) through (e)(3) from 

this proposed section arguing that small 

contractors would find the requirements 

too prescriptive to comply with. In 

response, FRA disagrees with the 

comment that a small business would 

have difficulty complying with 

proposed paragraph (e)(3) or paragraph 

(e)(2) of the final rule, which requires 

limiting access and identifying 

individuals with access. Off-the-shelf 

software should be available to small 

businesses that would provide the 

appropriate security necessary to 

comply with these requirements. FRA is 

concerned that if these electronic 

recordkeeping system requirements are 

relaxed for small businesses that the 

integrity of the records would be 

susceptible to inadvertent changes or 

outright falsification. Individual 

employers may file a waiver request, 

using FRA’s standard procedures in 49 

CFR part 211, and provide alternative 

assurances to the integrity of an 

electronic system to bolster such a 

request. 

Paragraph (f) contains a transfer of 

records requirement with the goal of 

preserving training records that might 

otherwise be lost when an employer 

ceases to do business. 

Section 243.205 Periodic Oversight 

FRA had requested comments on 

whether to expand periodic oversight 

beyond what was proposed in the 

NPRM, but the only comment FRA 

received with regard to this section 

requested that FRA not consider any 

additional oversight necessary. 

Considering the comment and the 

RSAC’s recommendation, FRA has 

decided to keep this section of the final 

rule identical to the proposed version 

except for one non-substantive change 

discussed in this analysis. Thus, the 

analysis provided for in the NPRM is 

still applicable and merely summarized 

here. Interested parties are directed to 

the NPRM for a more detailed 

discussion. The analysis in the NPRM 

can be found at 77 FR 6438–41. 

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 

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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 in § 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. 

Paragraph (a) contains the general 

periodic oversight provision and 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. 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). 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 

have employers more closely monitor 

the activities of largely maintenance-ofway, signal, and operations personnel 

(who are not conductors or locomotive 

engineers, see § 243.205(b)) that are 

required to abide by the listed 

regulations related to FRA-regulated 

personal and work group safety. Thus, 

this section does not impose periodic 

oversight requirements for each and 

every Federal railroad safety law, 

regulation, and order that the training 

program required by § 243.101 covers. 

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. 

Paragraph (b) exempts railroads from 

conducting periodic oversight under 

this part on certified locomotive 

engineers and conductors as those 

safety-related railroad employees are 

already covered by similar requirements 

found elsewhere in this chapter. 

Although only paragraph (c) contains 

the heading ‘‘[r]ailroad oversight,’’ 

paragraphs (c) through (f) need to be 

read together in order to fully 

understand the responsibilities for each 

railroad as it performs oversight. 

Generally, a railroad is required to 

provide periodic oversight tests and 

inspections for the safety-related 

railroad employees that it authorizes to 

perform safety-related duties on its 

property. Paragraph (c) lists several 

exceptions to this general rule. 

Paragraph (d) 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, a railroad would not be 

required to perform operational tests of 

safety-related railroad employees 

employed by a contractor. Please note 

that although paragraph (d) does not 

require a railroad to conduct operational 

tests of safety-related railroad 

employees employed by a contractor, 

this provision does not prohibit it 

either. 

Paragraph (e) provides each railroad 

with significant discretion to conduct 

oversight of a contractor’s safety-related 

railroad employees when it is 

convenient for the railroad. Each 

railroad has the discretion to choose 

when it is convenient to conduct 

oversight of contractors. Paragraphs 

(e)(1) and (e)(2) suggest that a railroad 

may choose to require supervisory 

employees to perform oversight under 

certain conditions. 

Paragraph (f) requires that when a 

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. The 

final rule substitutes ‘‘a railroad’’ for 

‘‘any railroad,’’ but the meaning is the 

same as the requirement applies to each 

and every railroad that finds such 

evidence of a contractor employee’s 

non-compliance. 

Paragraph (g) requires each contractor 

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. 

Paragraph (h) 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. 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) contains the 

requirements for retaining oversight 

records and paragraph (j) contains the 

statement that the records required 

under this section are subject to the 

requirements of § 243.203, which is the 

section containing the recordkeeping 

requirements of this part. In the NPRM, 

FRA requested comments on whether 

paragraph (j) is necessary given that the 

requirements of § 243.203 would apply 

to any records of period oversight 

required under this part even if 

paragraph (j) was deleted. Although 

FRA has not received any comments on 

this issue, FRA is retaining paragraph (j) 

as a 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 also sought comments 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 requirements of this 

section. As FRA did not receive any 

comments raising concerns with this 

scope issue, FRA has decided to finalize 

its proposal for the reasons 

acknowledged in the NPRM. Of course, 

if FRA receives information that 

supports addressing this issue, FRA can 

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initiate a rulemaking to amend the rule 

accordingly. 

Section 243.207 Annual Review 

FRA has decided to keep this section 

of the final rule identical to the 

proposed version, except for a nonsubstantive change to paragraph (b) to 

clarify that this section does not apply 

to a railroad with less than 400,000 total 

employee work hours annually. Thus, 

the analysis provided for in the NPRM 

is still applicable and merely 

summarized here. Interested parties are 

directed to the NPRM for a more 

detailed discussion. The analysis in the 

NPRM can be found at 77 FR 6441–43. 

The comments received with regard to 

this section have been addressed in this 

analysis. 

Paragraph (a) of this section requires 

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 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. In order to address a comment 

suggesting proposed paragraph (b) 

seemed to include railroads with less 

than 400,000 total employee work hours 

per year despite the exclusion in 

paragraph (a), FRA has added a 

reference to this exception in an 

introductory phrase to paragraph (b). 

FRA anticipates that this nonsubstantive change will prevent further 

misunderstandings of the agency’s 

intent. 

It is likely that most annual reviews 

will reveal 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 

could place more 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 noncompliance is detected in a safetyrelated task, adding an OJT or hands-on 

component, or adding more repetitions 

within the OJT or hands-on component, 

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 delivered 

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. The rule does 

not mandate that the designated person 

in paragraph (c) have any specific 

knowledge requirements; although the 

NPRM requested comments on whether 

there should be any such requirements, 

FRA did not receive any comments on 

this issue. Consequently, FRA is 

maintaining the position it took in the 

proposal 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. Again, 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 the NPRM, FRA explained that 

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. FRA solicited comments 

regarding this paragraph because FRA 

was concerned that it failed to address 

a situation in which a contractor 

disagrees with the railroad’s information 

that a modification to a training program 

is necessary. FRA received three 

comments on this issue and all three 

comments took the position that FRA 

should not address such potential 

conflicts between a railroad and a 

contractor. The NRC, ASLRRA, and 

AAR were unified in their position that 

such conflicts should be handled 

without Federal intervention and during 

the normal course of business. As FRA 

does not have a strong rationale for 

addressing these potential conflicts 

between a railroad and a contractor, 

FRA has decided not to change the rule 

from the proposal. 

Section 243.209 Railroad Maintained 

List of Contractors Utilized 

FRA has decided to keep this section 

of the final rule identical to the 

proposed version. Thus, the analysis 

provided for in the NPRM is still 

applicable and merely summarized 

here. See 77 FR 6443–44. 

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 

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. 

With this basic information, FRA 

should be able to track down a 

contractor to follow-up during any audit 

or investigation. 

Appendix A 

FRA did not publish a proposed 

penalty schedule because such penalty 

schedules are statements of policy, and 

thus notice and comment are not 

required prior to their issuance. See 5 

U.S.C. 553(b)(3)(A). FRA has published 

similar penalty schedules in each of its 

existing rules and this practice is 

described in 49 CFR part 209, appendix 

A, under the heading ‘‘Penalty 

Schedules: Assessment of Maximum 

Penalties.’’ The schedule is intended to 

set penalty levels commensurate with 

the severity of the violation for typical 

violations, whether willful or nonwillful. Of course, the penalty schedule 

does not constrict the agency’s authority 

to issue a penalty anywhere in the range 

from the statutory minimum amount to 

the statutory maximum amount. 

In the NPRM, FRA reminded 

interested parties that they were 

welcome to submit their views on what 

penalties may be appropriate. FRA 

received three comments requesting that 

FRA adopt a penalty schedule at the 

lowest or lower range of possible 

penalties. Each commenter expressed a 

different reason why low penalties in 

the schedule are warranted. 

ASLRRA asked that FRA adopt a 

penalty schedule at the lowest range of 

possible penalties which reflects the 

low threat to safety which training rule 

infractions represent. ASLRRA is 

concerned that onerous penalties 

against small railroads for 

recordkeeping and procedural errors 

will waste resources when few of those 

types of non-complying conditions are 

likely to have a direct, adverse, or 

serious consequence on the immediate 

safety to employees or the public. In 

response, it should be noted that 

regardless of recommended standard 

penalties in a schedule, FRA is always 

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6Hands-on training is generally used by 

instructors/trainers to re-enforce new skills to the 

learner. Hands-on can be a simulated exercise in a 

laboratory, classroom, or it can be used in the actual 

work environment similar to OJT. Hands-on activity 

enables the trainer/instructor to objectively assess 

learning transfer based on successful completion of 

the task to be performed. 

7For a review and citation information of this 

scientific literature, please see the Regulatory 

Impact Analysis that accompanies this final rule 

and that has been placed in the docket. 

free to adjust penalties for small entities 

based on ability to pay and a variety of 

mitigating factors. See 49 CFR part 209, 

appendix C. 

AAR urged FRA to adopt a penalty 

schedule with the potential penalties at 

the lower end of the penalty ranges 

normally found in FRA’s penalty 

schedules. AAR argues that it is 

extremely unlikely that violations of the 

training requirements would lead 

directly to accidents. Furthermore, AAR 

stated that the railroads already have a 

record of providing sufficient training to 

their employees. In response, FRA 

acknowledges AAR’s position and 

believes it has been taken into account 

in the penalty schedule. Of course, there 

are many other factors to consider in 

creating this penalty schedule. For 

example, some penalties may be geared 

towards one-time violations when 

others are for systemic issues; in that 

case, it may be appropriate to propose 

higher penalties on average for systemic 

non-compliance than a violation 

involving a single occurrence. FRA has 

also considered that gaps in training or 

ineffective training are often found to be 

contributing causes to accidents/

incidents. 

NRC urges FRA to adopt a penalty 

schedule with the potential penalties on 

the lowest end of the penalty ranges 

normally found in FRA’s penalty 

schedules in order to consider the 

‘‘unprecedented level of direct 

interaction between the FRA and 

hundreds of rail contractors that have 

little previous experience being directly 

regulated by a federal agency.’’ Again, 

FRA appreciates the comment and can 

make adjustments to assessed penalties 

on a case-by-case basis depending on 

the totality of the legal and factual 

circumstances. Contractors unfamiliar 

with FRA’s civil penalty process should 

consult 49 CFR part 209, appendix A for 

a description of that process and the 

factors FRA considers when deciding 

the amount or the appropriateness of 

any penalty. FRA also understands that 

NRC’s comment refers to the fact that 

FRA is an active enforcement agency 

that conducts inspections and audits of 

regulated entities on a continual basis, 

not just when an accident/incident 

occurs. Some rail contractors may be 

more familiar with other Federal 

agencies that rarely are quite as active 

as FRA in that regard. Despite the truth 

to NRC’s comment that some contractors 

may not have experience with an active 

Federal enforcement agency, FRA does 

not agree that the penalty schedule 

amounts should be adjusted lower to 

account for employers that lack that 

experience. 

VII. Regulatory Impact and Notices 

A. Executive Order 12866, Executive 

Order 13563, and DOT Regulatory 

Policies and Procedures 

This final 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 final 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 relevant railroad accidents 

and incidents that will be necessary for 

the final rule to breakeven in the same 

timeframe. Informed by its analysis of 

the economic effects of this final rule, 

FRA believes that this final rule will 

result in positive net benefits. FRA 

believes the final rule will achieve 

positive net benefits primarily through 

requiring that training programs include 

‘‘hands-on’’ training components, such 

as OJT, simulation, and lab training,6

which scientific literature has shown to 

be much more effective at reducing 

railroad accidents and incidents than 

traditional training.7 The costs that will 

be induced by this final 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. (FRA has 

accounted for additional costs that were 

not addressed in the NPRM including: 

hiring new trainers and indoctrinating 

them into the railroad training 

programs; filing documentation on 

programs to FRA; and hosting visits of 

FRA officials to review training 

programs.) 

In analyzing the final rule, FRA has 

applied updated ‘‘Guidance on the 

Economic Value of a Statistical Life in 

US Department of Transportation 

Analyses,’’ March 2013. This policy 

updates the Value of a Statistical Life 

(VSL) from $6.2 million to $9.1 million 

and revises guidance used to compute 

benefits based on injury and fatality 

avoidance in each year of the analysis 

based on forecasts from the 

Congressional Budget Office of a 1.07% 

annual growth rate in median real wages 

over the next 30 years (2013–2043). FRA 

also adjusted wage based labor costs in 

each year of the analysis accordingly. 

Real wages represent the purchasing 

power of nominal wages. Non-wage 

inputs are not impacted. The primary 

cost and benefit drivers for this RIA are 

labor costs and avoided injuries and 

fatalities, both of which in turn depend 

on wage rates. 

Based on the 2013 VSL DOT guidance 

and CBO wage forecast, the total nondiscounted cost of the final rule over the 

20-year period analyzed is 

approximately $389.9 million. Present 

discounted costs evaluated over the first 

20 years of the final rule total about 

$290.9 million at a 3% discount rate 

and about $207.1 million at a 7% 

discount rate. 

The annualized costs are $26,201,913 

at a 3% discount rate and $36,796,090 

at a 7% discount rate. 

FRA has performed a break-even 

analysis for this final rule. FRA expects 

that improving training primarily by 

requiring the inclusion and 

implementation of ‘‘hands-on’’ elements 

where appropriate will reduce the 

number of relevant railroad accidents 

and incidents. Rather than assume any 

specific reduction will be achieved, 

FRA has calculated the percentage of 

relevant railroad accidents that will 

need to be prevented by this final rule 

to at least offset the total costs of the 

final rule. Reductions in railroad 

accidents will result in fatalities 

avoided, injuries avoided, and property 

damage avoided, all of which can be 

monetized and quantified using FRA 

safety data. 

The table below presents the average 

yearly number of accidents, fatalities, 

injuries, and property damage from 

relevant railroad accidents between 

2001 and 2010. 

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Average yearly number of accidents/incidents Average yearly 

number of fatalities 

Average yearly 

number of injuries 

Average yearly 

property damage 

Average monetized 

economic damages 

from all relevant 

accidents 

(using VSL of $9.1 

million) 

9,723 ................................................................ 43 7,545 $273,896,902 $1,566,480,194 

The accident/incident pool that FRA 

used for its analysis includes a wide 

range of events. These range from very 

minor and less expensive incidents to 

major accidents with multiple fatalities. 

An incident that was a result of an 

employee not wearing proper fall 

protection is an example of an incident 

that might be impacted by this rule. The 

more rigorous training (emphasized by 

this rule) not only focuses on specific 

safety hazards and safety behavior, it 

also enhances the overall safety culture 

which will affect both work safety 

performance and the quality of the 

safety training provided. On the higher 

end of the range, for example, are 

derailments and collisions between on 

track equipment. 

FRA believes that additional hands-on 

and refresher training will reduce the 

frequency and severity of some future 

accidents and incidents. Expected safety 

benefits were calculated using full 

accident costs, which are based on past 

accident history, the values of 

preventing future fatalities and injuries 

sustained, and the cost of property 

damage. (Full accident costs are 

determined by the number of fatalities 

and injuries multiplied by their 

respective prevention valuations, and 

the cost of property damage.) 

In addition to fatalities, injuries, and 

property damage, railroad accidents can 

result in train delay, environmental 

damages, evacuations and emergency 

response costs, but FRA does not have 

sufficient data with which to estimate 

those potential costs savings related to 

implementation of the enhanced 

training requirements due to this final 

rule. Human factors can 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 the subject of 

reducing human factor caused accidents 

and this final rule has the potential to 

result in improvements in this area as 

well. 

Using the 2013 VSL guidance, FRA 

estimates that this final rule will break 

even if it results in a 20-year total 

reduction in relevant railroad accidents 

and incidents of 4.59% using a 3% 

discount rate, and 4.59% using a 7% 

discount rate. These are the official 

break-even percentages. Safety 

regulations have already achieved 

significant results, while the industry 

has increased freight and passenger 

traffic, total number of trains, and 

employee hours worked. However, all of 

these statistics are on an upward trend 

with very little increase in track miles 

(i.e., density ever increasing, creating an 

environment where the probability of an 

accident is higher). FRA believes that 

this comprehensive rule that improves 

the safety behavior of safety-related 

employees in the industry should 

achieve the results as stated above. The 

table below shows the total present 

discounted annual costs of relevant 

railroad accidents and incidents that 

would likely be incurred over the next 

20 years without this final rule, as well 

as the percent reduction in relevant 

railroad accidents and incidents that 

will be necessary for the accident 

reduction benefits to justify 

implementation of the final rule. This 

corresponds to approximately 118 

accidents and incidents per year on 

average over the 20-year period that 

would have to be avoided for this rule 

to break even. This potential reduction 

of 118 accidents and incidents would 

likely involve relatively more employee 

fatality or injury incidents resulting 

while carrying out work duties (as 

compared to train accidents). Another 

way this final rule would break even is 

by preventing 1 fatality and 86 injuries 

per year. These injuries would likely be 

comprised of a few severe injuries and 

many minor injuries. These calculations 

take into account various other recent 

and concurrent initiatives to address 

railroad accidents and incidents 

including implementation of positive 

train control systems, revisions to hours 

of service regulations, development of 

conductor certification standards and a 

roadway worker protection rule, and 

implementation of programs to address 

fatigue and electronic device 

distraction, among others. 

The following table summarizes 

estimates using the revised DOT 

guidance and CBO real wage rate 

forecasts. 

Present value of 

potential annual 

benefits 

(3% discount rate) 

Total present 

discounted costs 

(3% discount rate) 

Percent reduction for 

breakeven 

(3% discount rate) 

Present value of 

potential annual 

benefits 

(7% discount rate) 

Total present 

discounted costs 

(7% discount rate) 

Percent reduction for 

breakeven 

(7% discount rate) 

$6,333,998,623 $290,932,418 4.59% $4,507,378,459 $207,068,184 4.59% 

With the 2013 VSL policy, DOT also 

recommended a sensitivity analysis be 

considered using VSL of $5.2 million 

and $12.9 million. Using a VSL of $5.2 

million, FRA estimates that this final 

rule will break even if it results in a 20- 

year total reduction in relevant railroad 

accidents and incidents of 7.18% using 

a 3% discount rate, and 7.18% using a 

7% discount rate. Using a VSL of $12.9 

million, FRA estimates that this final 

rule will break even if it results in a 20- 

year total reduction in relevant railroad 

accidents and incidents of 3.41% using 

a 3% discount rate, and 3.41% using a 

7% discount rate. 

For comparability purposes, FRA has 

also provided below the costs and 

benefits, as calculated and using the 

same real wage and VSL assumptions 

used in the NPRM—assuming no 

changes in real wage rates for the period 

of the analysis, using a VSL of $6.2 

million, which reflected DOT guidance 

at the time, and in 2010 dollars. 

Using this methodology, the total cost 

of the final rule is estimated to be about 

$261 million, discounted at a 3% rate, 

and about $186.9 million, discounted at 

a 7% rate. The Table below lists specific 

cost elements and each element’s 

estimated cost over the first 20 years 

following promulgation of the final rule, 

as well as the total cost estimates. 

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8Cost components that were varied for the 

sensitivity analysis were: number of employers 

creating/revising their own programs, number of 

employers customizing programs, costs for 1.5 days 

of initial training, and the amount of additional 

refresher training required per employee. 

9For the sensitivity analysis, four alternate 

projections of future economic damages from 

relevant railroad accidents were presented, given 

alternate future reductions from other initiatives. 

10To further indicate the reasonableness of this 

analysis, FRA has removed other regulatory impact 

results so no double-counting of accident/incident 

reductions from other regulations are represented 

here. These benefits solely reflect training standards 

results. 

Cost element Twenty-year total 

(3% discount rate) 

Twenty-year total 

(7% discount rate) 

Creating and revising training programs ..................................................................................................... $31,796,815 $26,599,026 

Revising programs for model program users: 

400,000 or more total labor hours annually ......................................................................................... 166,976 117,558 

Less than 400,000 total labor hours annually ...................................................................................... 7,654,491 5,870,184 

Customizing model programs ...................................................................................................................... 839,572 727,798 

Designating current and future employees ................................................................................................. 995,974 804,215 

Additional initial training ............................................................................................................................... 91,195,393 62,663,586 

Additional refresher training ......................................................................................................................... 74,701,853 48,936,721 

Additional periodic tests and inspections .................................................................................................... 24,689,109 16,964,762 

Qualification testing ..................................................................................................................................... 14,136,417 12,185,273 

Hiring and indoctrinating additional trainers ................................................................................................ 12,209,461 9,991,110 

Other Costs (Filing, hosting FRA) ............................................................................................................... 2,656,263 2,012,102 

Total ...................................................................................................................................................... 261,042,324 186,872,334 

Using the former methodology with a 

VSL of $6.2 million and no annual 

growth rate in real wages, FRA estimates 

that this final rule will break even if it 

results in a twenty-year total reduction 

in relevant railroad accidents and 

incidents of 6.07% using a 3% discount 

rate, and a 6.06% reduction using a 7% 

discount rate. The table below details 

the total present discounted annual 

costs of the final rule. 

Present value of potential annual benefits 

(3% discount rate) 

Total present 

discounted costs 

(3% discount rate) 

Percent reduction for 

breakeven 

(3% discount rate) 

Present value of potential annual benefits 

(7% discount rate) 

Total present 

discounted costs 

(7% discount rate) 

Percent reduction for 

breakeven 

(7% discount rate) 

$4,301,939,374 $261,042,324 6.07% $3,081,262,864 $186,872,334 6.06% 

In the RIA, FRA presented a 

sensitivity analysis using the $6.2 

million VSL. By presenting a low and 

high end of four main cost 

components,8 and varying the accident 

benefit reduction potential from other 

FRA regulations,9 a break-even range 

was presented. Using all possible 

combinations of the cost component 

options and accident benefit options, 

the lowest break-even point (at 3 

percent discount rate) was 1.87% and 

the highest was 15.91%. Using a 7 

percent discount rate, the lowest breakeven point was 1.96% and the highest 

was 17.03%. 

Given the prevalence of accidents and 

incidents in the railroad industry and 

the relationship between quality 

training and safety, FRA believes it is 

reasonable to expect that improvements 

in training as required in this final rule 

will yield safety benefits that will 

exceed the costs.10 As stated above, 

accident/incident reductions due to 

safety regulations have occurred even 

while the industry has been growing at 

a fast rate for the most part of the last 

decade (infrastructure assets, business, 

and people). This training standards 

final rule will improve the safety 

behavior of all safety-related employees 

in the industry and should achieve the 

results as concluded. The improvements 

to training programs is expected to 

produce employees who are more 

highly qualified, and therefore better 

able to avoid or prevent accidents and 

incidents, even in an environment that 

has more employees, passengers, work 

activities, and assets operated. 

B. Regulatory Flexibility Act and 

Executive Order 13272; Final Regulatory 

Flexibility Assessment 

The Regulatory Flexibility Act (5 

U.S.C. 601 et seq.) and Executive Order 

13272 require a review of proposed and 

final rules to assess their impacts on 

small entities. An agency must prepare 

an initial regulatory flexibility analysis 

(IRFA) unless it determines and certifies 

that a rule, if promulgated, would not 

have a significant impact on a 

substantial number of small entities. 

During the Notice of Proposed 

Rulemaking (NPRM) stage, FRA had not 

determined whether the proposed rule 

would have a significant economic 

impact on a substantial number of small 

entities. Therefore, FRA published an 

IRFA to aid the public in commenting 

on the potential small business impacts 

of the proposals in the NPRM. All 

interested parties were invited to submit 

data and information regarding the 

potential economic impact that would 

result from adoption of the proposals in 

the NPRM. 

The Regulatory Flexibility Act also 

requires an agency to conduct a final 

regulatory flexibility assessment (FRFA) 

unless it determines and certifies that a 

rule is not expected to have a significant 

impact on a substantial number of small 

entities. FRA is not able to certify that 

the final rule will not have a significant 

economic impact on a substantial 

number of small entities. FRA received 

comments and data from several 

commenters on the IRFA, and that 

information was used to make this 

determination. Therefore, FRA will 

publish this FRFA and issue a guidance 

document that includes small entities. 

FRA estimates that approximately 

10% of the total cost of this rulemaking 

(see the regulatory impact analysis 

(RIA)) will be borne by small entities. 

This burden is because more small 

railroads will have to enhance, upgrade, 

or modify their current training 

programs. It is important to note that, in 

general, the typical small railroad is a 

less complex operation and has an 

average of only 21 employees. Small 

railroads do not have as many layers of 

supervision; therefore, revising or 

implementing programs can be done 

more quickly and efficiently than in 

larger railroads. 

This final rule also mandates that 

each railroad have an approved training 

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program, but the training program is 

only applicable to federally mandated 

training requirements. Therefore, the 

training program, its requirements, and 

implications do not cover other training 

that a railroad provides or initiates for 

other purposes. 

FRA provides the rationale the agency 

used for assessing what impacts will be 

borne by small entities. FRA considered 

comments received in the public 

comment process when making a 

determination in the FRFA. 

This FRFA was developed in 

accordance with the Regulatory 

Flexibility Act. 

(1) A succinct statement of the need 

for and objectives of the 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. 

FRA is requiring 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 final rule 

also requires that the training program 

developed by each employer be 

submitted to FRA for approval. 

The scientific literature on training in 

general and FRA’s 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. Please see the RIA for a more 

detailed discussion and references for 

the scientific literature. 

Even though rail transportation in the 

United States is generally an extremely 

safe mode of transportation and rail 

safety has improved over the years, 

well-designed training programs have 

the potential to further reduce risk in 

the railroad environment. All of the 

positive impacts noted above would 

apply to expected results from enhanced 

training in the railroad industry, and the 

work force performing job tasks more 

efficiently, skillfully, and more safely. 

The main goal of this rulemaking 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. 

(2) A summary of the significant 

issues raised by the public comments in 

response to the IRFA, a summary of the 

assessment of the agency of such issues, 

and a statement of any changes made to 

the proposed rule as a result of such 

comments. 

Several comments were received that 

directly addressed the IRFA or the 

impacts on small entities. One 

commenter (ASLRRA) disagreed with 

FRA’s RIA for the NPRM. ASLRRA also 

believed that this rulemaking would 

have a significant economic impact on 

the small railroad industry. 

(a) Training Program Approval 

ASLRRA noted that ‘‘further 

aggravating the potential cost 

disadvantage for small railroads is the 

threat by FRA in the proposed rule to 

scrutinize more intensely the training 

programs of small railroads that 

primarily conduct their own training. 

(77 FR 6430). Railroads that otherwise 

might have perfectly adequate in-house 

safety programs may turn to more costly 

alternatives out of fear of being subject 

to extensive and distracting audits from 

FRA just because they are small. There 

are many reasons that small railroads 

may evaluate in deciding whether or not 

to conduct their own training programs 

or use outside resources . . . . FRA 

should allow the railroads to make the 

most rational economic and operating 

decision according to their individual 

circumstances and not intimidate them 

into choosing a more costly option if 

they would not otherwise do so.’’ FRA 

believes that the level of scrutiny that 

any railroad’s training program will 

receive will be based on a number of 

risk factors. The comment did not 

include FRA’s explanation in the 

proposed rule that the reason to more 

closely scrutinize a small railroad that 

chooses to conduct all of its own 

training is because a small railroad 

‘‘would not always have qualified 

instructors to implement all the 

different types of training required by 

the Federal laws, regulations, and 

orders.’’ Thus, FRA’s example in the 

proposed rule focused on the situation 

where a shortline’s training program 

appears legally sufficient at first glance, 

but unless the shortline has taken 

affirmative steps to train or hire 

qualified instructors, the shortline is 

unlikely to be able to fully implement 

its program. FRA recognizes that this 

issue could still potentially be a concern 

that it considers in its review of 

programs, as we want to put all 

railroads on notice that they must both 

adopt and comply with the training 

program submitted to FRA. However, 

when it comes to the amount of scrutiny 

FRA gives each program, FRA will 

certainly be looking at other factors that 

are more directly related to safety 

concerns and a greater level of scrutiny 

will be placed on the particular risks 

inherent in a particular employer’s 

operation. For example, a small railroad 

operation that is relatively segregated 

from major railroad operations and only 

operates in rural areas may pose less 

risk than those that routinely 

interchange with major railroads or 

operate through more populated 

suburbs and urban neighborhoods. If a 

simple railroad operation with low risk 

has a good history complying with 

FRA’s regulations, FRA may view inhouse training more favorably, as long 

as the railroad’s program meets the 

minimum requirements of the final rule. 

Meanwhile, if a small railroad has a 

relatively complicated operation that 

poses significant risks to employees and 

the general public, FRA would certainly 

be justified to more closely scrutinize 

the in-house training for that operation; 

especially if the railroad does not have 

a good history of railroad safety law 

compliance. Other risk factors FRA may 

consider including, but are certainly not 

limited to, are the employer’s accident 

history, the condition of the railroad’s 

track and equipment, the types of 

commodities hauled, and the number of 

train miles operated annually. 

Although each employer may be 

better suited than FRA to identify the 

weaknesses in its existing training 

program and to seek ways to strengthen 

those components, FRA has the 

expertise to also make such judgments. 

FRA understands that changing a 

training program will have costs 

associated with it, and the agency 

intends to only request training 

adjustments that will positively impact 

safety. FRA will not require training 

program changes that would force an 

entity to exceed the minimum 

requirements for compliance. Finally, 

small entities should expect that FRA 

will consult with the entity in order to 

receive constructive input prior to 

ordering any programmatic changes. 

Therefore, the process FRA envisions is 

expected to engage any size entity in a 

discussion of any FRA-perceived 

weaknesses in a training program before 

FRA issues a decision that the entity’s 

program is inadequate and must be 

upgraded. 

FRA also notes that each employer’s 

training program will not be reviewed 

by an FRA field inspector. FRA will 

have a specific group of safety 

specialists designated, trained, and 

responsible for reviewing and approving 

the training programs. Local or regional 

FRA personnel will not be authorized to 

conduct random audits without the 

involvement of FRA’s specialized 

training staff, which should lead to a 

uniform approach to enforcement of this 

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rule. Small railroads will generally not 

be subject to intrusive or distracting 

audits as some might be concerned, 

unless one of three events occur: (1) A 

major accident or fatality occurs on that 

railroad’s property; (2) a complaint is 

filed with FRA from an employee or 

other entity alleging noncompliance 

with respect to the mandates of this 

part; or (3) a pattern of incidents 

industry wide raises a training concern 

attributable to multiple small railroads 

with certain similar characteristics. In 

summary, FRA is unlikely to initiate 

enforcement activities to find 

weaknesses in a small entity’s training 

program unless there is some basis that 

raises a specific concern. 

FRA does not agree with ASLRRA’s 

comment suggesting that small railroads 

will be intimidated into providing 

unneeded costly training. FRA fully 

intends to offer to enter into a 

constructive dialog with any employer 

whose training program is found to be 

deficient. In each instance, FRA fully 

expects that there will be more than one 

option to correct a training deficiency 

and that it will be up to the employer 

to choose those options. Because FRA 

will review all the training programs, 

FRA may have some recommended 

options for addressing any training 

program deficiency. Meanwhile, just 

like any other business decision, there 

will be pros and cons to every option. 

For example, some options may be 

proven effective, but cost more than a 

lesser-used option. Although FRA will 

have the authority to reject unsuitable 

options that fail to meet the minimum 

requirements of this part, FRA will not 

otherwise reject less expensive options 

and impose additional costs on any 

employer. 

(b) Annual Review Exemption 

ASLRRA also noted ‘‘Section 

243.207(a) expressly grants an 

exemption from the annual review 

requirement for a railroad with fewer 

than 400,000 total employee work hours 

annually. Paragraph (b) then states that 

any railroad required to conduct 

periodic oversight under section 

243.205 is also required to conduct an 

annual review.’’ ASLRRA requested 

clarification of who is exempt from the 

annual review requirement. 

FRA addressed this issue by adding 

the exemption language as an 

introductory phrase to 49 CFR 

243.207(b). Paragraph (b) now reads: 

‘‘[e]xcept as provided for in paragraph 

(a) of this section, each railroad that is 

required to conduct periodic oversight 

in accordance with § 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’’ 

(italicized emphasis added). As noted in 

the preamble above, FRA did not change 

the intent of paragraph (b) of this 

section but, by adding the exception 

language, it did clarify that this section 

does not apply to railroads with less 

than 400,000 total employee work hours 

annually. FRA anticipates that this nonsubstantive change will prevent further 

misunderstandings of the agency’s 

intent. 

FRA also notes that the final rule 

requires all railroads and most 

contractors to conduct periodic 

oversight, per § 243.205. A contractor 

would be exempt from the periodic 

oversight requirements if it (1) employs 

15 or fewer employees; (2) does not rely 

on training it directly provides to its 

own employees as the basis for 

qualifying those employees to perform 

safety-related duties on a railroad; or (3) 

does not employ supervisory safetyrelated railroad employees capable of 

performing oversight. Periodic oversight 

is limited to Federal regulations 

associated with FRA-regulated personal 

and work group safety currently in parts 

214, 218, and 220. Periodic oversight 

does not apply to employees covered by 

parts 240 and 242, but information 

gained (performance gaps) from those 

assessments must be used when 

appropriate in training programs to 

close performance gaps. 

(c) Impact on Railroads That Have Less 

Than 16 Employees 

One commenter was concerned ‘‘that 

this proposed rule will adversely affect 

the smallest railroads, in particular 

railroads that have less than 16 

employees, these railroads do not have 

the resources for training like a Class I 

or even larger Class III railroads that 

typically send a new hire to a central 

location for 6 weeks of initial training. 

The smallest railroads initial training is 

almost always a one-on-one, on-the-job 

training with the person who does the 

hiring. Ongoing training is most often 

addressed at an annual rules class or 

frequently provided to an employee 

with an impromptu training session 

when incorrect behavior/technique is 

observed. How these smallest railroads 

document the training they do to the 

satisfaction of the FRA will be 

problematic.’’ The commenter indicated 

that it believed small railroads should 

be allowed to continue the status quo 

with a training program centered on an 

annual rules class and informal on-thejob training (OJT) that is completed 

without any recordkeeping of what 

safety-related tasks and information 

were learned. 

This final rule is being promulgated to 

satisfy statutory requirements in the 

RSIA to establish minimum training 

standards for safety-related railroad 

employees. The statute does not 

explicitly exempt small entities from the 

requirements, nor does it suggest that 

FRA could permit a small entity 

exemption. Therefore, FRA believes it 

was Congress’s intent to include small 

entities as that statute focuses on the 

training of each employee, not each 

employee that works only for a major 

railroad or large contractor. 

FRA agrees with the commenter that 

the rule will require more than what 

most small railroads were doing prior to 

the promulgation of this rule. The final 

rule will require that a small railroad 

submit a formal training program where 

none likely existed before; however, 

FRA expects that most small railroads 

will adopt and comply with a model 

training program that is largely written 

by an association that understands the 

Federal requirements and can devise a 

broad program suitable for the flexibility 

needed by most small railroads. Many 

small railroads may continue to train 

employees largely in the same manner 

by periodically providing a rules class 

and training through OJT. However, the 

OJT will need to meet the standards of 

‘‘formal training,’’ as that term is 

defined in the rule, and it is that 

formality that will raise the standards 

from one in which a supervisor believes 

the employee should know how to do 

the safety-related task to one in which 

the supervisor knows and has a record 

to support that the employee has 

demonstrated the knowledge and ability 

to perform the task. The extra time 

necessary for a qualified supervisor or 

instructor to record what training the 

employee has accomplished and to 

retain that record should not add 

significantly to the cost of the 

previously unrecorded OJT. Some 

instructors may spend more time 

instructing and observing employees 

conduct federally mandated tasks than 

what was being performed prior to the 

promulgation of this rule, but FRA 

views that alleged additional burden as 

a flaw in the execution of current 

training programs that should not be 

tolerated by the employer. An employer 

should not be permitted to claim that 

this final rule adds costs for training if 

the employer is currently not meeting 

the minimum requirements for the 

pertinent federally mandated employee 

training. It is for this very reason that 

formalized training programs and 

records are necessary—that is, to 

compel all employers of safety-related 

railroad employees to provide 

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appropriate training that can be 

measured as having been successfully 

administered. 

(d) Compliance Guide 

One commenter suggested that FRA 

‘‘issue a compliance guide, specifically 

to railroads that have 15 or less safetyrelated railroad employees, (as 

contemplated in 49 CFR part 209, 

appendix C).’’ As noted previously, FRA 

intends to publish an interim final 

compliance guide early in 2015. By 

characterizing the guidance as ‘‘interim 

final,’’ the guidance will be effective 

immediately, but signal that FRA is 

willing to consider amending the 

guidance based on comments received. 

Consequently, FRA will provide a 60- 

day comment period and intends to 

issue a notice for the final guidance by 

no later than one year from the date of 

issuance of the interim final guidance. 

FRA also amended the proposal so that 

small entities will have at least four 

years from the date of issuance of the 

interim final compliance guide to 

implement a training program under 

§ 243.101(a)(2) and at least four years 

and eight months from the date of 

issuance of the interim final compliance 

guide to designate existing employees 

under § 243.201(a)(2). 

FRA’s compliance guide is intended 

to aid employers by providing the task 

inventories that provide the foundation 

of the OJT program. The compliance 

guide can be used by all employers, but 

will be written with a primary emphasis 

on assisting small entities. The task 

inventories will be presented in a format 

that is highly respected in the adult 

training community, and will be 

modeled after training formats FRA’s 

master trainers use to train FRA 

personnel. The guide will address each 

major type of safety-related railroad 

employee category. It will explain the 

roles and responsibilities for those 

administering the program, as well as 

the trainees and trainers. Duties will be 

identified by the performance task that 

the employee is supposed to be able to 

do. The guide will help identify the 

preparation that trainers will have to 

take in order to make sure that the 

conditions are conducive for learning. 

For example, trainers will ensure that 

trainees have all the tools, equipment, 

and documents needed to practice the 

task. Furthermore, the guide will help 

establish standards for establishing 

when a trainee has demonstrated 

proficiency. Such standards are 

generally based on repetition, the 

completeness, and the percentage of 

accuracy. These factors for establishing 

standards will be driven by the 

complexity of the related task. 

(e) Implementation and Program 

Submission Date for Small Railroads 

One commenter thought that FRA 

should push back the ‘‘deadline for an 

employer submission by at least one 

year after the submission deadline for 

an organization that allows other 

entities to copy its program to at a 

reasonable cost.’’ FRA agrees that the 

comment has validity and would make 

the implementation of the rule much 

smoother. Therefore, FRA addressed 

this comment by extending the 

implementation deadline schedule in 

multiple ways. A summary of the 

changes made in response to this 

comment and similar comments can be 

found in the preamble under the 

heading ‘‘Implementation Dates and 

Incentives for Early Filing of Programs.’’ 

(f) Number of Contractors Considered 

To Be Small Entities 

One commenter responded to FRA’s 

request for comment on the number of 

small contractors impacted by this rule. 

The National Railroad Construction and 

Maintenance Association (NRC) 

responded that FRA’s estimates appear 

reasonable. This commenter further 

noted that it was their understanding 

that ‘‘the 600+ other contractors 

generally consist of extremely small 

companies, some of which may be more 

accurately thought of as ‘two guys and 

a pickup truck,’ however the NRC is not 

aware of any comprehensive listing of 

these small companies.’’ 

(g) Impact on Commuter Operations 

APTA noted in its comment that most 

‘‘of the public agencies providing 

commuter rail services are small entities 

and contract all or a significant amount 

of the operations to one or more 

specialized rail service contractors. The 

contracts typically specify that any 

training or qualifications, for example to 

meet FRA regulations, is the 

responsibility of the contractor. These 

types of public agencies would not be 

knowledgeable on training costs or in a 

position to estimate their cost to 

develop and implement a training 

program of this type. Contracting out the 

entire training program or adopting a 

model program with input from their 

contractors would likely be a solution 

for the small operators. For most, 

contracting out the entire training 

program would be prohibitively 

expensive for a small entity.’’ 

By FRA’s definition of a small entity, 

only two commuter railroads would be 

considered to be small entities, which 

represent approximately 8% of the total 

number of commuter railroads. (See 

FRA policy on small entities at 68 FR 

24891 (May 9, 2003)). These two entities 

are very different from all of the other 

commuter railroads. They are primarily 

event- or seasonal destination-based 

passenger rail transportation (e.g., 

scheduled service to sporting events). 

One of the two entities is primarily 

contracted by a university to operate 

trains to football games. Therefore, all of 

the train and engine crew training 

would be conducted by a Class III 

railroad, which should currently be 

compliant with all federally mandated 

training. The function of the conductors 

is carried out by volunteers who should 

also be compliant with part 242. The 

additional burden from this final rule 

should only be from the adoption of a 

model training program and not 

significant. The second small entity that 

is classified as a commuter operation is 

owned by a larger holding company. 

This entity began operation in 2011, 

running trains Friday through Monday 

primarily for racetrack attendees. The 

entity does operate year round with 

activities that include seasonal ski 

trains. From site visits, FRA believes 

this second small entity is also 

compliant with all federally mandated 

training requirements. This railroad is 

an expanding operation that had made 

all necessary efforts to be compliant 

with FRA regulations. The additional 

burden for this entity should also only 

be from the adoption of a model training 

program and any necessary 

modifications. 

(3) A Description and an Estimate of the 

Number of Small Entities to Which the 

Rule Will Apply or an Explanation of 

Why No Such Estimate is Available 

‘‘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 

dominant in its field of operation. 

Section 601(4) 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 

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11See 68 FR 24891 (May 9, 2003); 49 CFR part 

209, appendix C. 

12For further information on the calculation of 

the specific dollar limit, please see 49 CFR part 

1201. 

13See 68 FR 24891 (May 9, 2003). 

14Note: a company that has 400,000 or more total 

employee work hours annually would have more 

than 190 employees. 

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 

that meet the line haulage revenue 

requirements of a Class III railroad.11

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) 12 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.13 FRA estimates that 720 

railroads will be affected by this final 

rule. This number equals the number of 

railroads that reported to FRA in 2011, 

minus those railroads that are tourist, 

scenic, excursion, or historic railroads 

and are not part of the general system 

(these railroads are exempt from the 

rule). Of those railroads, 44 are Class I, 

Class II, commuter, and intercity 

passenger railroads. The remaining 676 

railroads are therefore assumed to be 

small railroads for the purpose of this 

assessment. It is important to note that 

in the RIA for the final rule, FRA has 

not revised the number of railroads used 

in these analyses to provide better 

transparency in the comparison of the 

analyses for the NPRM and the final 

rule. The final rule will 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 companies) 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 

the purpose 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 requested 

comments on this assumption and any 

information regarding the number of 

small contractors affected by this 

proposal. As noted above, FRA did 

receive one comment on this estimate 

and is using it for the purpose of this 

analysis. 

Therefore, the total estimate of the 

number of small entities that the rule 

may affect equals 676 Class III railroads 

plus approximately 785 contractors, 

totaling approximately 1,459 entities. 

All but 6 of the 676 Class III railroads 

have less than 400,000 annual employee 

hours. Most contractors are businesses 

with less than 400,000 hours as well. 

(4) A Description of the Projected 

Reporting, Recordkeeping, and Other 

Compliance Requirements of the 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 final rule will include several 

recordkeeping requirements that may 

pertain to small entities. Each employer 

will 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 will be 

required to maintain records to 

demonstrate the qualification status of 

each safety-related railroad employee. 

Each employer that conducts periodic 

oversight in accordance with the final 

rule will be required to keep a record of 

the date, time, place, and result of each 

test or inspection. Each railroad using 

contractors to supply the railroad with 

safety-related railroad employees will be 

required to maintain a list at its system 

headquarters with information regarding 

each contractor used unless: 

(1) The railroad qualifies each of the 

contractor’s safety-related railroad 

employees used. 

(2) The railroad maintains the training 

records for each of the contractor’s 

safety-related railroad employees used. 

The burden of maintaining a list of 

contractors is certainly significantly less 

than the burden of training each 

contractor employee and maintaining 

records for each contractor employee. 

Given the propensity for shortline 

railroads to hire smaller contractors to 

handle segments of the railroad’s safetyrelated work (for example, signal or 

track maintenance), keeping up-to-date 

information regarding the contractors 

recently used is a reasonable, and not 

overly taxing, burden on small entities. 

FRA believes that a professional or 

administrative employee will be capable 

of maintaining these records. 

The final rule will 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 onthe-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 will customize the 

model program, if necessary. 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 will be 

required to revise the training programs, 

if necessary. The decision on whether to 

revise a training program would be 

required annually and will 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 final rule that some 

annual revision of training programs 

will be required every year for all 

employers of safety-related railroad 

employees. Furthermore, these annual 

revisions will be required to reflect the 

results of annual reviews of safety data 

for all entities with 400,000 or more 

total employee work hours annually. 

For purposes of this analysis, FRA 

assumes that four Class III railroads and 

three small contractors will surpass this 

threshold. One comment was received 

relative to it from the NRC, which only 

noted that they estimated 10 contractors 

had 80 or more employees.14

Specifically, as in the RIA, FRA 

assumes that two Class III railroads will 

choose to develop their own programs, 

while the remaining 657 Class III 

railroads adopt model programs. FRA 

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66496 Federal Register / Vol. 79, No. 216 / Friday, November 7, 2014 / Rules and Regulations 

15For 2011, the wage rate is $59.34 per hour. 

16FRA initially estimated 40 hours per railroad 

for modifying training programs. In its comments to 

the NPRM, AAR suggested 800 hours per railroad 

for this purpose. FRA revised its estimate 

substantially to 432 hours per railroad. This 

estimate was developed by using a like proportion 

that it had increased the time allotted to create 

training programs (now 6,480 hours per railroad 

over 3 years). The details and explanation for this 

revised estimate can be found in the RIA. 

also believes that all 785 small 

contractors will adopt model programs. 

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 STB, 

multiplied by 1.75 to cover overhead.15

The IRFA provided a table of the cost 

of compliance for small entities. The 

RIA for the final rule has been revised 

and some of these cost estimates have 

also been revised. The revised estimates 

include small entities. In the NPRM, 

FRA estimated that the average railroad 

would take 160 hours to create and 

submit an initial program. Based on 

comments received, the RIA for the final 

rule now estimates that it would take 

2,160 hours. However, that cost is an 

average cost estimate. It is estimated 

that Class III railroads will create their 

own training programs and FRA 

believes that these two small entities 

will spend much less than the average 

railroad. The NPRM’s RIA also 

estimated that the annual revisions 

would take 40 hours per railroad to 

complete. The final rule’s RIA now 

estimates that cost at 432 hours.16

Again, these two small entities will 

likely spend significantly less than the 

average railroad. FRA is retaining the 

NPRM’s estimate of 8 hours for the 

average small entity to customize the 

model program. 

This final rule also did not change the 

NPRM’s estimate of 30 hours for the 

average entity with 400,000 or more 

total employee work hours annually to 

perform annual review and annual 

revisions in subsequent years. FRA 

estimates that only four Class III 

railroads and three contractors will be 

affected by this requirement. For entities 

that have less than 400,000 total 

employee work hours annually, the RIA 

for the final rule estimates that it will 

take 4 hours per year to perform annual 

revisions in subsequent years past the 

implementation. 

While the final 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 OJT to training programs. 

Since small railroads usually have less 

formal training programs for their 

employees, this may be the case. In the 

RIA for the NPRM, FRA assumed that 

new hires would require 1 extra day of 

initial training as a result of the final 

rule, and that 1 additional hour of 

refresher training would be required on 

average for each employee. In the IRFA, 

FRA noted that it was 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. For the final 

rule, FRA has revised this estimate to 

1.5 days (12 hours) of additional 

training for initial training for new 

hires. For the refresher training, FRA 

has also revised the estimate to half a 

day (4 hours). Small entities will likely 

have to incur the cost of additional 

refresher training to whatever extent 

that will be required. 

(5) A Description of the Steps the 

Agency Has Taken To Minimize the 

Significant Adverse Economic Impact 

on Small Entities Consistent With the 

Objectives of Applicable Statutes, 

Including a Statement of Factual, Policy, 

and Legal Reasons for Selecting the 

Alternative Adopted in the Final Rule, 

and Why Each of the Other Significant 

Alternatives to the Rule Considered by 

the Agency Was Rejected 

FRA is unaware of any significant 

alternatives that would meet the intent 

of the RSIA and that would further 

reduce the economic impact on small 

entities. FRA is exercising its discretion 

to provide the greatest flexibility for 

small entities available under the RSIA. 

The process by which this final 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 RSAC’s 

recommendation for this rule, FRA 

received input that focused discussions 

on issues specific to shortline and 

regional railroads and contractors. The 

discussions yielded insight into their 

concerns and this rule takes into 

account those concerns expressed by 

small railroads during the deliberations. 

Several alternatives were considered in 

the creation of this final rule in order to 

attempt to minimize the impact on 

small entities. FRA and the RSAC 

Working Group recognized very early on 

in the rulemaking recommendation 

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 has a 

provision in the final rule to formalize 

a process for entities (including and 

especially small entities) to adopt a 

‘‘model program.’’ FRA envisions a 

model program designed with modular 

characteristics reflecting best practices 

in training program development. 

Model programs designed in modular 

format will allow small entities to easily 

customize the training for their 

operational needs. 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 final rule for small 

entities. 

The final rule’s requirements with 

respect to periodic oversight also 

contain alternatives that were designed 

by FRA and the Working Group to limit 

the final rule’s impact on small entities. 

Periodic oversight operational tests and 

inspections will be required by the final 

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. 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 

rule is to determine if changes in 

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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 is also the entity that 

performs the periodic oversight tests 

and inspections. 

As an alternate 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 final 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 

railroad property. Railroads will not be 

required to perform operational tests of 

contractor employees, but railroads will 

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) will be required to perform 

periodic oversight on its own 

employees. Contractors who meet those 

criteria may not be small entities, and 

contractors will only perform periodic 

oversight if the contractor 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 the impact on small 

railroads. First, if a contractor conducts 

its own periodic oversight, then the 

railroad will not be required to also do 

so. Second, railroads will not be 

required to perform operational tests of 

contractor employees in any case, as 

mentioned above. Third, a railroad will 

not be required to perform oversight 

tests 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 safetyrelated duties. Those small railroads 

that do not have supervisory employees 

on staff who are capable of performing 

oversight of contractor employees will 

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 final rule requiring 

annual reviews of safety data. Railroads 

will be required, under the final 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 less than 400,000 total 

employee work hours annually will be 

exempt from this annual review 

requirement. FRA stated in the NPRM 

that it is likely that all but six Class III 

freight railroads would fall below this 

threshold and no comments were 

received challenging this assumption. In 

§ 243.113(a) of this final rule, FRA 

provided another alternative to decrease 

the impact on small entities. The final 

rule exempts any employer 

(approximately 653 Class III railroads 

and most contractors) with less than 

400,000 total employee work hours 

annually from the requirement to file 

written program submission 

requirements electronically. 

In § 243.101(a)(2), FRA has provided 

each employer with less than 400,000 

total employee work hours annually an 

additional year to implement its training 

program. Therefore, instead of having to 

implement the programs by January 1, 

2018, most small entities will not have 

to implement the programs until 

January 1, 2019, or four years from the 

date of issuance of FRA’s Interim Final 

Compliance Guide, whichever is later. 

There should be cost savings from this 

delayed implementation. In addition, 

the small railroads will benefit from 

being able to observe the 

implementation of the larger railroads in 

the industry. The additional time will 

permit these small entities to spread out 

the cost of revising or modifying a 

model program too. 

FRA has identified no additional 

significant alternative to this final rule 

that satisfies the mandate of the RSIA or 

meets the agency’s objective in 

promulgating this rule, and that would 

further reduce the economic impact of 

the rulemaking on small entities. 

C. Paperwork Reduction Act 

The information collection 

requirements in this final rule are being 

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 new 

information collection requirements, 

and the estimated time to fulfill each 

requirement are as follows: 

49 CFR section or statutory provision Respondent 

universe 

Total annual 

responses 

Average time per 

response 

Total annual 

burden 

hours 

214.357—Training and Qualification Program for Operators 

of Roadway Maintenance Machines (RMM) Equipped 

with a Crane.

535 railroads/contractors.535 revised programs.4 hours ................... 2,140 

—Initial Training/Qualification of RMM Operators 

(Cranes).

17,396 roadway 

workers.

1,750 tr. worker 

+15,646 tr. wrkr.

24 hours + 4 hours 104,584 

—Periodic Training/Qualification of RMM Operators 

(Cranes).

17,396 roadway 

workers.

17,396 trained workers.1 hour .................... 17,396 

—Records of Training/Qualification ............................... 17,396 roadway 

workers.

17,396 records ........ 15 minutes ............. 4,349 

243.101—Training Programs Submissions by Employers 

subject to this Part with 400,000 total annual employee 

work hours or more by Jan. 1, 2018.

56 railroads/contractors/etc.16 programs ............ 6,480 hours ............ 103,680 

—Submissions by Employers subject to this Part with 

less than 400,000 total annual work hours by Jan. 1, 

2019.

1,459 railroads/contractors/etc.486 programs .......... 20 hours ................. 9,720 

—Submission by New Employers Commencing Operations after Jan. 1, 2018.5 New Railroads .... 5 programs .............. 40 hours ................. 200 

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66498 Federal Register / Vol. 79, No. 216 / Friday, November 7, 2014 / Rules and Regulations 

49 CFR section or statutory provision Respondent 

universe 

Total annual 

responses 

Average time per 

response 

Total annual 

burden 

hours 

—Validation documents sent from contractors that train 

their own safety-related employees to railroads that 

are using their training programs.

795 railroad contractors/subcontractors.50 documents .......... 15 minutes ............. 13 

—Copies of contractor validation documents kept by 

railroads.

720 railroads ......... 50 copies ................. 10 minutes ............. 8 

243.103—Training Programs required to be modified by 

FRA due to essential missing/inadequate components.

1,459 railroads/contractors/etc.73 programs ............ 10 hours ................. 730 

243.105—Optional Model Program Development—Customized Training Program Submissions.1,459 railroads/contractors/etc.4 model training programs.8 hours ................... 32 

243.109—Initial Training Programs Found Non-Conforming 

to this Part by FRA—Revisions to Programs.

56 railroads/contractors/etc.7 programs .............. 10 hours ................. 70 

—Written Request to Extend Revision/Resubmission 

Deadline.

56 railroads/contractors/etc.1 request ................. 15 minutes ............. .25 

—Previously Approved Programs Requiring an Informational Filing When Modified.56 railroads/contractors/etc.8 informational filings 432 hours ............... 3,456 

—New Portions or Substantial Revisions to an approved Training Program.56 railroads ........... 25 revised programs 16 hours ................. 400 

—Training Programs found Deficient ............................. 56 railroads ........... 12 rev. program ....... 16 hours ................. 192 

—Copy of Additional Submissions, Resubmissions, 

and Informational Filings to Labor (Union) Presidents.

56 railroads ........... 225 copies ............... 15 minutes ............. 56 

—Railroad Statement Affirming that a copy of Submissions, Resubmissions, or Informational Filings has 

been served to Labor (Union) Presidents.

56 railroads ........... 25 affirming statements.60 minutes ............. 25 

—Labor comments on Railroad Training Program Submissions, Resubmissions, or Informational Filings.5 RR labor Organizations.3 comments ............. 4 hours ................... 12 

243.111—Written Request by Training Organization/Learning Institution Previously Providing Training Services to 

Railroads Prior to Jan. 1, 2017, to Provide Such Services 

after Jan. 1, 2018.

11 tr. organizations/ 

Learning Institutions.

3 requests ................ 60 minutes ............. 3 

—Revised/Resubmitted Training Program by Training 

Organization/Learning Institution after found Deficient by FRA.

11 tr. organizations/

Learning Inst.

2 programs .............. 20 hours ................. 40 

—Informational Filing by Training Organization/Learning Institution due to New Federal Laws/Regulations/

Order or New Technologies/Procedures/Equipment.

11 tr. organizations/ 

Learning Inst.

1 filing ...................... 432 hours ............... 432 

—New Portions or Revisions to Training Organization/

Learning Institution Training Program Found Deficient.

11 tr. organizations/ 

Learning Inst.

2 programs .............. 20 hours ................. 40 

—Safety Related Employees Instructed by Training Organizations/Records.11 tr. organizations/ 

Learning Inst.

1,600 employees + 

1,600 records.

8 hours + 5 minutes 12,933 

—Request to Training Organization/Learning Institution 

by Student to Provide Transcript or Record.

11 tr. organizations 

/Learning Inst ........

200 requests + 200 

records.

5 minutes + 5 minutes.34 

243.113—Required Employer Information Sent to FRA 

Prior to First Electronic Submission (Employers with 

400,000 Annual Work Hours or More).

56 RRs/contractors/

learning institution.

/associations ..........

16 letters .................. 15 minutes ............. 4 

243.201—Designation of Existing Safety-related Employees 

by Job Category—Lists (Employer with 400,000 Annual 

Work Hours or More).

56 railroads/contractors.13 lists ..................... 15 minutes ............. 5 

—Written Request to Extend Deadline for Designation 

List by These Employers.

56 railroads/contractors.3 requests ................ 60 minutes ............. 3 

—Designation of Existing Safety-related Employees by 

Job Category—Lists (Employer with Less than 

400,000 Annual Work Hours).

1,459 railroads/contractors/etc.486 lists ................... 15 minutes ............. 122 

—Training of Newly Hired Employees or Those Assigned New Safety-related Duties and Records.56 railroads/contractors.114 trained employees + 114 records.8 hours + 15 minutes.941 

—Requests for Relevant Qualification or Training 

Record from an Entity Other Than Current Employer.

56 railroads/contractors.11 requests + 11 

records.

5 minutes + 5 minutes.2 

—Testing of Employees When Current Record of 

Training is Unavailable.

56 railroads/contractors.68 tests + 68 

records.

8 hours + 30 minutes.578 

—Testing of Employees Who Have Not Received Initial/Periodic Training or Who Have Not Performed 

the Necessary Safety-Related Duties for An Occupational Category or Subcategory in the Previous 180 

Days.

56 railroads/contractors.68 tests + 68 

records.

8 hours + ...............

30 minutes .............

578 

243.203—Electronic Recordkeeping—Systems Set Up to 

Meet FRA Requirements.

56 RRs/contractors 20 systems .............. 120 hours ............... 2,400 

—Transfer of Records to Successor Employer ............. 56 RRs/contractors 20 records ............... 15 minutes ............. 5 

243.205—Modified Training Resulting from Periodic Oversight Tests and Inspections.56 railroads/contractors.1 modified programs 40 hours ................. 40 

—Periodic Tests and Inspections .................................. 56 railroads/contractors.8,600 tests/ 

Insections.

10 minutes ............. 1,433 

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Federal Register / Vol. 79, No. 216 / Friday, November 7, 2014 / Rules and Regulations 66499 

49 CFR section or statutory provision Respondent 

universe 

Total annual 

responses 

Average time per 

response 

Total annual 

burden 

hours 

—RR Identification of Supervisory Employees Who 

Conduct Periodic Oversight Tests by Category/Subcategory.

56 railroads/contractors.10 identification ....... 5 minutes ............... 1 

—Contractor Periodic Tests/Inspections Conducted by 

RR Supervisory Employees.

56 railroads/contractors.4,695 tests/inspections.20 minutes ............. 1,565 

—Notification by RR of Contractor Employee NonCompliance with Federal Laws/Regulations/Orders 

to Employee and Employee’s Employer.

56 railroads/contractors.175 notices + 175 

notices.

5 minutes ............... 30 

—Contractor conduct of Periodic Oversight Tests/Inspections of Its Safety-related Employees.11 contractors ....... 795 tests/inspections 10 minutes ............. 133 

—Contractor Direct Training of Its Employees for 

Qualifying Those Employees to Perform Safety-related Duties.

11 contractors ....... 45 trained employees.8 hours ................... 360 

—Employer Records of Periodic Oversight ................... 56 railroads/contractors.5,490 records .......... 5 minutes ............... 458 

243.207—Written Annual Review of Safety Data (RRs with 

400,000 Annual Employee Work Hours or More).

18 railroads ........... 4 reviews ................. 20 hours ................. 80 

—RR Copy of Written Annual Review at System Headquarters.18 railroads ........... 4 review copies ....... 20 minutes ............. 1 

—RR Designation of Person(s) to Conduct Written Annual Review.18 railroads ........... 48 designations ....... 15 minutes ............. 12 

—Adjustments to Initial/Refresher Training Based 

Upon Results of Written Annual Review.

18 railroads ........... 1 adjusted program 1 hour .................... 1 

—RR Notification to Contractor of Relevant Training 

Program Adjustments.

18 railroads ........... 2 notifications .......... 15 minutes ............. 1 

—Contractor Adjustment of Its Training Program 

Based on RR Information.

38 contractors ....... 1 adjusted program 20 hours ................. 20 

243.209—Railroad Maintained List of Contractors Utilized .. 56 railroads ........... 11 lists ..................... 30 minutes ............. 6 

—Updated Lists of Contractors ...................................... 56 railroads ........... 1 list ......................... 15 minutes ............. .25 

All estimates include the time for 

reviewing instructions; searching 

existing data sources; gathering or 

maintaining the needed data; and 

reviewing the information. For 

information or a copy of the paperwork 

package submitted to OMB, contact Mr. 

Robert Brogan at 202–493–6292 or Ms. 

Kimberly Toone at 202–493–6132 or via 

email at the following addresses: 

Robert.Brogan@dot.gov; 

Kimberly.Toone@dot.gov. 

Organizations and individuals 

desiring to submit comments on the 

collection of information requirements 

should direct them to the Office of 

Management and Budget, Office of 

Information and Regulatory Affairs, 

Washington, DC 20503, Attention: FRA 

Desk Officer. Comments may also be 

sent via email to the Office of 

Management and Budget at the 

following address: oira_submissions@

omb.eop.gov. 

OMB is required to make a decision 

concerning the collection of information 

requirements contained in this final 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. 

FRA cannot 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 this 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 final rule has been analyzed in 

accordance with the principles and 

criteria contained in Executive Order 

13132. This final 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 final 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 

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66500 Federal Register / Vol. 79, No. 216 / Friday, November 7, 2014 / Rules and Regulations 

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 sec. 20106. 

In sum, FRA has analyzed this final 

rule in accordance with the principles 

and criteria contained in Executive 

Order 13132. As explained above, FRA 

has determined that this final 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 final 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 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. 

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 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 

regulation 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. 

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, 

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. For the year 2010, this monetary 

amount of $100,000,000 has been 

adjusted to $143,100,000 to account for 

inflation. This final rule would not 

result in the expenditure of more than 

$143,100,000 by the public sector 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 final rule in accordance 

with Executive Order 13211. FRA has 

determined that this final rule is not 

likely to have a significant adverse effect 

on the supply, distribution, or use of 

energy. Consequently, FRA has 

determined that this final rule is not a 

‘‘significant energy action’’ within the 

meaning of Executive Order 13211. 

I. Privacy Act 

Anyone is able to search the 

electronic form of any written 

communications and comments 

received into any of our dockets by the 

name of the individual submitting the 

comment (or signing the document, if 

submitted on behalf of an association, 

business, labor union, etc.). See http:// 

www.regulations.gov/#!privacyNotice 

for the privacy notice of regulations.gov 

or interested parties may review DOT’s 

complete Privacy Act Statement in the 

Federal Register published on April 11, 

2000 (65 FR 19477). 

List of Subjects 

49 CFR Part 214 

Bridges, Occupational safety and 

health, Penalties, Railroad safety, 

Reporting and recordkeeping 

requirements. 

49 CFR Part 232 

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 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 214—[AMENDED] 

■ 1. The authority citation for part 214 

is revised to read as follows: 

Authority: 49 U.S.C. 20103, 20107, 21301, 

31304, 28 U.S.C. 2461, note; and 49 CFR 

1.89. 

Subpart A—General 

■ 2. Section 214.7 is amended by adding 

a definition in alphabetical order for 

roadway maintenance machines 

equipped with a crane to read as 

follows: 

§ 214.7 Definitions. 

* * * * * 

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. 

* * * * * 

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Federal Register / Vol. 79, No. 216 / Friday, November 7, 2014 / Rules and Regulations 66501 

Subpart C—Roadway Worker 

Protections 

■ 3. Section 214.341 is amended by 

revising paragraph (b)(2) to read as 

follows: 

§ 214.341 Roadway maintenance 

machines. 

* * * * * 

(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. 

* * * * * 

■ 4. Section 214.357 is added to read as 

follows: 

§ 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 §§ 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 

training and qualification requirements 

of this section. 

PART 232—[AMENDED] 

■ 5. The authority citation for part 232 

is revised to read as follows: 

Authority: 49 U.S.C. 20102–20103, 20107, 

20133, 20141, 20301–20303, 20306, 21301– 

21302, 31304, 28 U.S.C. 2461, note; and 49 

CFR 1.89. 

Subpart C—Inspection and Testing 

Requirements 

■ 6. Section 232.203 is amended by 

revising paragraphs (b)(6)(iv) and (e)(6) 

through (8) to read as follows: 

§ 232.203 Training requirements. 

* * * * * 

(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. 

* * * * * 

■ 7. Add part 243 to read as follows: 

PART 243—TRAINING, 

QUALIFICATION, AND OVERSIGHT 

FOR SAFETY-RELATED RAILROAD 

EMPLOYEES 

Subpart A—General 

Sec. 

243.1 Purpose and scope. 

243.3 Application and responsibility for 

compliance. 

243.5 Definitions. 

243.7 Penalties and consequences for 

noncompliance. 

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 Electronic and written program 

submission requirements. 

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 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 1.89. 

Subpart A—General 

§ 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 to comply with 

any relevant 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. 

(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 

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66502 Federal Register / Vol. 79, No. 216 / Friday, November 7, 2014 / Rules and Regulations 

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. 

(e) The requirements in this part do 

not address hazardous materials training 

of ‘‘hazmat employees’’ as defined in 49 

CFR 171.8 as such training is required 

pursuant to 49 CFR part 172, subpart H. 

§ 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 § 243.5); 

(2) Tourist, scenic, historic, or 

excursion operations that are not part of 

the general railroad system of 

transportation as defined in § 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. 

§ 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 of 

the subject matter. 

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, correspondence, onthe-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; 

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. 

Refresher training means periodic 

retraining required by an employer for 

each safety-related railroad employee to 

remain qualified. 

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 § 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 § 243.205. 

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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). 

§ 243.7 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. 

Subpart B—Program Components and 

Approval Process 

§ 243.101 Employer program required. 

(a)(1) Effective January 1, 2018, 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 January 1, 2019 or four 

years from the date of issuance of FRA’s 

Interim Final Compliance Guide, 

whichever is later, 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, 2018 shall submit a training 

program for its safety-related railroad 

employees prior to commencing 

operations. Upon commencing 

operations, 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; 

(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 (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) If a training program has OJT, 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 safetyrelated 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 safetyrelated duties and relies on contractorprovided 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. 

§ 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; 

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(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, on-thejob, 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. 

§ 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 

§ 243.103. 

(3) Each model training program 

submitted to FRA prior to May 1, 2017 

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. 

(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. 

§ 243.107 Training program submission, 

introductory information required. 

(a) An employer who provides or is 

responsible for the training of safetyrelated 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 (5) of this section. 

(b) An employer who utilizes any of 

the options specified in paragraphs 

(a)(2) through (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. 

§ 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. 

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(2) An employer’s initial program, as 

required by § 243.101(a) or (b), 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 nonconforming 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. 

(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; 

(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 affected 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. 

§ 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 safetyrelated 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 January 1, 2017 may 

continue to offer such training services 

without FRA approval until January 1, 

2018. 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; 

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(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 safetyrelated 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 

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. 

§ 243.113 Electronic and written program 

submission requirements. 

(a) Except for an employer with less 

than 400,000 total employee work hours 

annually, each employer, training 

organization, or learning institution to 

which this part applies is required to 

file by electronic means any program 

submissions required under this part in 

accordance with the requirements of 

this section. Each organization, 

business, or association that develops an 

optional model program in accordance 

with § 243.105 of this part is required to 

electronically file the program in 

accordance with the requirements of 

this section. 

(b) Prior to any person’s first program 

submission electronically, the person 

shall provide the Associate 

Administrator with the following 

information in writing: 

(1) The name of the employer, 

organization, learning institution, 

business, or association; 

(2) The names of two individuals, 

including job titles, who will be the 

person’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 

person’s points of contact; 

(4) The person’s system or main 

headquarters address located in the 

United States; 

(5) The email addresses for the 

person’s points of contact; and 

(6) The daytime telephone numbers 

for the person’s points of contact. 

(c) A person 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 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 person that 

submits the materials does so by 

delivering the written materials to the 

Associate Administrator and opts not to 

submit the materials electronically. 

(f) A person 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 consent 

to receive approval or disapproval 

notices from FRA by email or mail. 

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Subpart C—Program Implementation 

and Oversight Requirements 

§ 243.201 Employee qualification 

requirements. 

(a) Designating existing employees: 

(1) By no later than September 1, 

2018, each employer with 400,000 total 

employee work hours annually or more 

in operation as of January 1, 2018, 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 September 1, 2019 

or four years and eight months from the 

date of issuance of FRA’s Interim Final 

Compliance Guide, whichever is later, 

each employer with less than 400,000 

total employee work hours annually 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. 

(b) Except for an employer subject to 

the requirement in paragraph (a)(2) of 

this section, an employer commencing 

operations after January 1, 2018 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 safetyrelated duties in accordance with 

paragraph (c) of this section. 

(c) Newly hired employees or those 

assigned new safety-related duty:. 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 

instructor, OJT proficiency by 

successfully completing the safetyrelated 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. 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. 

(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: 

(1) Beginning January 1, 2020, 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 prior to 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, 

2022. 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 January 1, 2021 or six 

years from the date of issuance of FRA’s 

Interim Final Compliance Guide, 

whichever is later, 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 prior to 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. 

§ 243.203 Records. 

(a) General requirements for 

qualification status records; 

accessibility. Each employer shall 

maintain records to demonstrate the 

qualification status of each safetyrelated railroad employee that it 

employs. 

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(1) The records for former safetyrelated 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) Employee information. 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) 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; 

(6) The employee’s OJT performance, 

which shall include the unique name or 

identifier of the OJT program 

component in accordance with 

§ 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; 

(7) 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; 

(8) 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 

(9) 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 test, inspection, annual 

review, or other event record required 

by this part shall be accessible for 3 

calendar years after the end of the 

calendar year to which the event relates. 

Each employer shall make these records 

accessible at one headquarters location 

within the United States, including, but 

not limited to, a railroad’s system 

headquarters, a holding company’s 

headquarters, a joint venture’s 

headquarters, a contractor’s principal 

place of business or other headquarters 

located where the contractor is 

incorporated. This requirement does not 

prohibit an employer with divisions 

from also maintaining any of these 

records at any division headquarters. 

(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. Nothing 

in this section precludes an employer, a 

training organization, or a learning 

institution from maintaining the 

information required to be retained 

under this part in an electronic format 

provided that: 

(1) The employer, training 

organization, or learning institution 

maintains an information technology 

security program adequate to ensure the 

integrity of the electronic data storage 

system, including the prevention of 

unauthorized access to the program 

logic or individual records; 

(2) The program and data storage 

system must be protected by a security 

system that utilizes an employee 

identification number and password, or 

a comparable method, to establish 

appropriate levels of program access 

meeting all of the following standards: 

(i) No two individuals have the same 

electronic identity; and 

(ii) A record cannot be deleted or 

altered by any individual after the 

record is certified by the employee who 

created the record; 

(3) Any amendment to a record is 

either: 

(i) Electronically stored apart from the 

record that it amends; or 

(ii) Electronically attached to the 

record as information without changing 

the original record; 

(4) Each amendment to a record 

uniquely identifies the person making 

the amendment; 

(5) The system employed by the 

employer, training organization, or 

learning institution for data storage 

permits reasonable access and retrieval 

of the information in usable format 

when requested to furnish data by FRA 

representatives; and 

(6) Information retrieved from the 

system can be easily produced in a 

printed format which can be readily 

provided to FRA representatives in a 

timely manner and authenticated by a 

designated representative of the railroad 

as a true and accurate copy of the 

railroad’s records if requested to do so 

by FRA representatives. 

(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. 

§ 243.205 Periodic oversight. 

(a) General. 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 § 243.101(a) or on 

the day the employer commences 

operations pursuant to § 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) Locomotive engineer and 

conductor oversight exception. 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 

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Federal Register / Vol. 79, No. 216 / Friday, November 7, 2014 / Rules and Regulations 66509 

the criteria specified in paragraph (g) of 

this section; 

(2) Provide oversight for categories or 

subcategories of a contractor’s safetyrelated railroad employees if the 

railroad does not employ supervisory 

employees who are qualified as safetyrelated 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) Operational test exception for a 

railroad. A railroad is not required to 

perform operational tests of safetyrelated railroad employees employed by 

a contractor. 

(e) Railroad oversight for contractors. 

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 safetyrelated 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) Railroad’s duty to notify contractor 

of non-compliance. A railroad that finds 

evidence of contractor employee noncompliance 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) Oversight divided by agreement. 

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) Detailed records required. 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 noncompliance. Modifications of the 

program required by § 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) Additional records requirement. 

Records required under this section are 

subject to the requirements of § 243.203. 

§ 243.207 Annual review. 

(a) 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. This 

section does not apply to employers 

other than railroads except as specified 

in paragraph (f) of this section. 

(b) Except as provided for in 

paragraph (a) of this section, each 

railroad that is required to conduct 

periodic oversight in accordance with 

§ 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 

§ 243.205; 

(2) Reportable accident/incident data 

as defined in part 225 of this chapter; 

(3) FRA inspection report data; 

(4) Employee training feedback 

received through 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. 

§ 243.209 Railroad maintained list of 

contractors utilized. 

(a) Each railroad utilizing contractors 

to supply the railroad with safetyrelated 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 to Part 243—Schedule of 

Civil Penalties 

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66510 Federal Register / Vol. 79, No. 216 / Friday, November 7, 2014 / Rules and Regulations 

APPENDIX TO PART 243—SCHEDULE OF CIVIL PENALTIES 1

Section Violation Willful violation 

Subpart B—Program Components and Approval Process 

243.101—Employer program required: 

(a–c) Complete failure to submit, adopt, or comply with program ............................................................. $7,500–12,500 $11,000-$16,000 

(a–c) Partial failure to submit, adopt, or comply with program; or failure to correct deficiencies upon 

FRA’s request.

4,500–9,500 6,500–13,000 

(d) OJT program requirements or failure to make reference materials available ..................................... 2,000–4,500 4,000–6,500 

(e–f) Program validation ............................................................................................................................. 2,000 4,000 

243.105 Claiming optional model program is FRA-approved, when it is not: ................................................ 2,000–4,500 4,000–6,500 

243.109 Training program submission, review, and approval process: 

(a) Failure to timely resubmit program ....................................................................................................... 2,000–4,500 4,000–6,500 

(b) Failure to timely submit informational filing .......................................................................................... 2,000–4,500 4,000–6,500 

(c) Failure to submit new portions or revisions .......................................................................................... 4,500 6,500 

(d) Railroad failure to serve program ......................................................................................................... 1,000 2,000 

243.111 Approval of programs filed by training organizations or learning institutions: 

(a–b) Claiming training is FRA-approved, when it is not ........................................................................... 2,000–4,500 4,000–6,500 

(c–f) FRA approved some training, but all conditions not met .................................................................. 2,000–4,500 4,000–6,500 

(g–h) Records ............................................................................................................................................. 1,000 2,000 

Subpart C—Program Implementation and Oversight Requirements 

243.201 Employee qualification requirements: 

(a–b) Failure to designate an employee .................................................................................................... 1,000 2,000 

(c–f) Other failures and refresher training (per employee) ........................................................................ 1,000 2,000 

243.203 Records: 

(a–f) Failure to maintain records (per employee) ...................................................................................... 1,000 2,000 

243.205 Periodic oversight .............................................................................................................................. 4,500–9,500 6,500–13,000 

243.207 Annual review .................................................................................................................................... 4,500 6,500 

243.209 Railroad maintained list of contractors utilized ................................................................................. 4,500 6,500 

1A 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. 

Issued in Washington, DC, on October 31, 

2014. 

Melissa L. Porter, 

Chief Counsel. 

[FR Doc. 2014–26290 Filed 11–6–14; 8:45 am] 

BILLING CODE 4910–06–P 

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