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

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

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

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

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

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

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

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

C. Paperwork Reduction Act

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

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

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

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

D. Federalism Implications

    Executive Order 13132, ``Federalism'' (64 FR 43255, Aug. 10, 1999),
requires FRA to develop an accountable process to ensure ``meaningful
and timely input by State and local officials in the development of
regulatory policies that have federalism implications.'' ``Policies
that have federalism implications'' are defined in the Executive Order
to include regulations that have ``substantial direct effects on the
States, on the relationship between the national government and the
States, or on the distribution of power and responsibilities among the
various levels of government.'' Under Executive Order 13132, the agency
may not issue a regulation with federalism implications that imposes
substantial direct compliance costs and that is not required by
statute, unless the Federal government provides the funds necessary to
pay the direct compliance costs incurred by State and local
governments, the agency consults with State and local governments, or
the agency consults with State and local government officials early in
the process of developing the regulation. Where a regulation has
federalism implications and preempts State law, the agency seeks to
consult with State and local officials in the process of developing the
regulation.
    This NPRM has been analyzed in accordance with the principles and
criteria contained in Executive Order 13132. This proposed rule would
not have a substantial effect on the States or their political
subdivisions; it would not impose any compliance costs; and it would
not affect the relationships between the Federal government and the
States or their political subdivisions, or the distribution of power
and responsibilities among the various levels of government. Therefore,
the consultation and funding requirements of Executive Order 13132 do
not apply.
    However, this proposed rule could have preemptive effect by
operation of law under certain provisions of the Federal railroad
safety statutes, specifically the former Federal Railroad Safety Act of
1970, repealed and recodified at 49 U.S.C. 20106. Section 20106
provides that States may not adopt or continue in effect any law,
regulation, or order related to railroad safety or security that covers
the subject matter of a regulation prescribed or order issued by the
Secretary of Transportation (with respect to railroad safety matters)
or the Secretary of Homeland Security (with respect to railroad
security matters), except when the State law, regulation, or order
qualifies under the ``essentially local safety or security hazard''
exception to section 20106.
    In sum, FRA has analyzed this proposed rule in accordance with the
principles and criteria contained in Executive Order 13132. As
explained above, FRA has determined that this proposed rule has no
federalism implications, other than the possible preemption of State
laws under Federal railroad safety statutes, specifically 49 U.S.C.
20106. Accordingly, FRA has determined that preparation of a federalism
summary impact statement for this proposed rule is not required.

E. International Trade Impact Assessment

    The Trade Agreement Act of 1979 prohibits Federal agencies from
engaging in any standards or related activities that create unnecessary
obstacles to the foreign commerce of the United States. Legitimate
domestic objectives, such as safety, are not considered unnecessary
obstacles. The statute also requires consideration of international
standards and where appropriate, that they be the basis for U.S.
standards.
    This proposed rulemaking is purely domestic in nature and is not
expected to affect trade opportunities for U.S. firms doing business
overseas or for foreign firms doing business in the United States.

F. Environmental Impact

    FRA has evaluated this rule in accordance with its ``Procedures for
Considering Environmental Impacts'' (FRA's Procedures) (64 FR 28545,
May 26, 1999) as required by the National Environmental Policy Act (42
U.S.C. 4321 et seq.), other environmental statutes, Executive Orders,
and related regulatory requirements. FRA has determined that this
proposed rule is not a major FRA action (requiring the preparation of
an environmental impact statement or environmental assessment) because
it is categorically excluded from detailed environmental review
pursuant to section 4(c)(20) of FRA's Procedures. See 64 FR 28547 (May
26, 1999).
    In accordance with section 4(c) and (e) of FRA's Procedures, the
agency has further concluded that no extraordinary circumstances exist
with respect to this regulation that might trigger the need for a more
detailed environmental review. As a result, FRA finds that this
proposed rule is not a major Federal action significantly affecting the
quality of the human environment.

G. Unfunded Mandates Reform Act of 1995

    Pursuant to Section 201 of the Unfunded Mandates Reform Act of 1995
(Pub. L. 104-4, 2 U.S.C. 1531), each Federal agency ``shall, unless
otherwise prohibited by law, assess the effects of Federal regulatory
actions on State,

local, and tribal governments, and the private sector (other than to
the extent that such regulations incorporate requirements specifically
set forth in law).'' Section 202 of the Act (2 U.S.C. 1532) further
requires that ``before promulgating any general notice of proposed
rulemaking that is likely to result in the promulgation of any rule
that includes any Federal mandate that may result in expenditure by
State, local, and tribal governments, in the aggregate, or by the
private sector, of $140,800,000 or more (adjusted annually for
inflation) in any 1 year, and before promulgating any final rule for
which a general notice of proposed rulemaking was published, the agency
shall prepare a written statement'' detailing the effect on State,
local, and tribal governments and the private sector. The proposed rule
will not result in the expenditure, in the aggregate, of $140,800,000
or more (as adjusted annually for inflation) in any one year, and thus
preparation of such a statement is not required.

H. Energy Impact

    Executive Order 13211 requires Federal agencies to prepare a
Statement of Energy Effects for any ``significant energy action.'' 66
FR 28355 (May 22, 2001). Under the Executive Order, a ``significant
energy action'' is defined as any action by an agency (normally
published in the Federal Register) that promulgates or is expected to
lead to the promulgation of a final rule or regulation, including
notices of inquiry, advance notices of proposed rulemaking, and notices
of proposed rulemaking: (1)(i) That is a significant regulatory action
under Executive Order 12866 or any successor order, and (ii) is likely
to have a significant adverse effect on the supply, distribution, or
use of energy; or (2) that is designated by the Administrator of the
Office of Information and Regulatory Affairs as a significant energy
action. FRA has evaluated this NPRM in accordance with Executive Order
13211. FRA has determined that this NPRM is not likely to have a
significant adverse effect on the supply, distribution, or use of
energy. Consequently, FRA has determined that this NPRM is not a
``significant energy action'' within the meaning of Executive Order
13211.

I. Privacy Act

    FRA wishes to inform all potential commenters that anyone is able
to search the electronic form of all comments received into any agency
docket by the name of the individual submitting the comment (or signing
the comment, if submitted on behalf of an association, business, labor
union, etc.). You may review DOT's complete Privacy Act Statement in
the Federal Register published on April 11, 2000 (65 FR 19477-78) or
you may visit http://www.regulations.gov/#!privacyNotice.

List of Subjects

49 CFR Part 214

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

49 CFR Part 232

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

49 CFR Part 243

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

The Proposed Rule

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

PART 214--[AMENDED]

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

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

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

training and qualification requirements of this section.

PART 232--[AMENDED]

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

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

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

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

Subpart A--General

Sec.  243.1  Purpose and scope.

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

Sec.  243.3  Application and responsibility for compliance.

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

Sec.  243.5  Definitions.

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

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

Sec.  243.7  Waivers.

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

Sec.  243.9  Penalties and consequences for noncompliance.

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

Sec.  243.11  Information collection requirements.

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

Subpart B--Program Components and Approval Process

Sec.  243.101  Employer program required.

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

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

Sec.  243.103  Training components identified in program.

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

Sec.  243.105  Optional model program development.

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

Sec.  243.107  Training program submission, introductory information
required.

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

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

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

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

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

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

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

Sec.  243.113  Option to file program electronically.

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

Subpart C--Program Implementation and Oversight Requirements

Sec.  243.201  Employee qualification requirements.

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

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

Sec.  243.203  Records.

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

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

Sec.  243.205  Periodic oversight.

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

Sec.  243.207  Annual review.

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

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

Sec.  243.209  Railroad maintained list of contractors utilized.

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

APPENDIX A TO PART 243--SCHEDULE OF CIVIL PENALTIES

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

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

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