[Federal Register Volume 79, Number 216 (Friday, November 7, 2014)]
[Rules and Regulations]
[Pages 66459-66510]
[FR Doc No: 2014-26290]

Vol. 79

Friday,

No. 216

November 7, 2014

Part II

 Department of Transportation

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 Federal Railroad Administration

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49 CFR Parts 214, 232, and 243

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

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

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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.

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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:<PHONE_NUMBER>.
     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:<PHONE_NUMBER>); 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:<PHONE_NUMBER>).

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

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.
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    \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 Sec.
243.201(c)(2).
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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 non-
discounted 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 railroad-related 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 rail-
related 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.
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    \2\ Hands-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.
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    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

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 break-
even 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.
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    \3\ Accidents/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.
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    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]
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                                                                                Present value of
   Present value of potential annual benefits (3%        Total present     Percent reduction   potential annual      Total present     Percent reduction
                   discount rate)                      discounted costs    for breakeven (3%     benefits (7%      discounted costs    for breakeven (7%
                                                      (3% discount rate)    discount rate)      discount rate)    (7% discount rate)    discount rate)
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$6,333,998,623......................................       $290,932,418                4.59      $4,507,378,459        $207,068,184                4.59
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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

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

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 Sec.  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 Sec.  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 Sec.  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 Sec.  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 Sec.  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

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
Sec.  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 Sec.
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 Sec.  243.101(a)(2).\5\
---------------------------------------------------------------------------

    \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
Sec.  243.101(a)(1).
---------------------------------------------------------------------------

    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 Sec.
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 Sec.  243.101(a)(1). A similar
deadline change is being made by creating a separate requirement in
Sec.  243.201(a)(2), for small entity employers, so that it corresponds
with the, deadline contained in Sec.  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.

    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 Sec.  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 Sec.  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 Sec.  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 section-by-section analysis to Sec.  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 Sec.
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

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 Sec.  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
non-railroad 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

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 self-propelled 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

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 Sec.  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 non-compliance. 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 Sec.  243.205 and the annual review in Sec.
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 Sec. Sec.  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,

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 Sec.  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 Sec.  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 Sec.  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 Sec.
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 Sec. Sec.
243.1(a) and 243.201. Employees charged with the inspection of track or
railroad equipment are considered safety-related railroad employees
that each employer must train and qualify. The rule at Sec.  243.5
defines safety-related railroad employee to specifically include an
individual who is engaged or compensated by an employer to ``(3) In the
application of parts 213 and 214 of this chapter, inspect . . . track;
(4) Inspect . . . locomotives, passenger cars or freight cars; (5)
Inspect . . . other railroad on-track equipment when such equipment is
in a service that constitutes a train movement under part 232 of this
chapter; [and] (6) Determine that an on-track roadway maintenance
machine or hi-rail vehicle may be used in accordance with part 214,
subpart D of this chapter, without repair of a non-complying
condition.''
    The final rule also requires that the training program developed by
each employer be submitted to FRA for approval. See Sec.  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. Safety-related
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.,
Sec.  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

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
safety-related 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
Sec.  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 non-complying 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 Sec.  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 Sec.  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 Sec.  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
companies begin operations with safety-

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 Sec.  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 Sec.
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-by-section 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
Sec.  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 Sec.  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 Sec.  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 Sec.  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

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 in-house 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 safety-related 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.''

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 Sec.  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 Sec.  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 Sec.  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 safety-related 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 Sec.  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
Sec.  214.357. The definition of this term would mean any roadway
maintenance machine equipped with a crane or boom that can hoist,
lower, and horizontally move a suspended load.

Section 214.341 Roadway Maintenance Machines

    FRA is amending paragraph (b)(2) to address two issues. First, FRA
is

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.

Sec.  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 Sec.
214.341(b)(2), an operator must have knowledge of the safety
instructions applicable to that machine, regardless of whether the
machine has been adapted for a particular railroad use. Implicit in
this 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 Sec.
243.203 to maintain records. However, it is useful to repeat the
requirement as a reminder to employers. In repeating this requirement,
FRA does not intend the 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

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., Sec. Sec.  238.107 and 238.109.
    If the employer's rules mirror the Federal requirements, or are
even more restrictive than the Federal requirements, the employer may
train to the employer's own rules and would not be required to provide
separate training on the Federal requirements. During the RSAC process,
some employers raised the concern that it would be confusing for
employees if FRA required that training be made directly on the Federal
requirements as that would pose potential conflicts whenever an
employer's rule was stricter than the Federal requirement. FRA agrees
with this concern, and this 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