[Federal Register Volume 87, Number 190 (Monday, October 3, 2022)]
[Proposed Rules]
[Pages 59749-59769]
[FR Doc No: 2022-21277]

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DEPARTMENT OF TRANSPORTATION

Federal Railroad Administration

49 CFR Part 243

[Docket No. FRA-2020-0017, Notice No. 1]
RIN 2130-AC87

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

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

ACTION: Notice of proposed rulemaking (NPRM).

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SUMMARY: In response to petitions for rulemaking, FRA proposes amending
its regulation on Training, Qualification, and Oversight for Safety-
Related Railroad Employees (Training Rule) to codify agency guidance
and clarify existing requirements.

DATES: Written comments on the proposed rule must be received by
December 2, 2022. FRA will consider comments received after that date
to the extent practicable.

ADDRESSES:
    Comments: Comments related to Docket No. FRA-2020-0017 may be
submitted by going to https://www.regulations.gov and following the
online instructions for submitting comments.
    Instructions: All submissions must include the agency name, docket
number (FRA-2020-0017), and Regulatory Identification Number (RIN) for
this rulemaking (2130-AC87). All comments received will be posted
without change to https://www.regulations.gov; this includes any
personal information. Please see the Privacy Act Statement heading in
Section IV of this document for Privacy Act information related to any
submitted comments or materials.
    Docket: For access to the docket to read background documents or
comments received, go to https://www.regulations.gov and follow the
online instructions for accessing the docket.

FOR FURTHER INFORMATION CONTACT: Robert J. Castiglione, Staff Director,
Safety Partnerships Division, Office of Railroad Safety, FRA,
telephone:<PHONE_NUMBER>, email: [email protected]; or Alan H.
Nagler, Senior Attorney, Office of the Chief Counsel, FRA, telephone:
202-493-6038, email: [email protected].

SUPPLEMENTARY INFORMATION:

Table of Contents for Supplementary Information

I. Executive Summary
II. Background
    A. Petition Requests FRA Proposes Adopting
    B. Petition Requests FRA Does Not Propose Adopting
    C. Summary of FRA Guidance to the Regulated Community
III. Section-by-Section Analysis
IV. Regulatory Impact and Notices
    A. Executive Order 12866
    B. Regulatory Flexibility Act and Executive Order 13272
    C. Paperwork Reduction Act
    D. Federalism Implications
    E. International Trade Impact Assessment
    F. Environmental Impact
    G. Executive Order 12898 (Environmental Justice)
    H. Unfunded Mandates Reform Act of 1995
    I. Energy Impact

I. Executive Summary

    Purpose of the Regulatory Action and Legal Authority
    In response to the mandate of section 401(a) of the Rail Safety
Improvement Act of 2008 (RSIA),\1\ on November 7, 2014, FRA published a
final rule (2014 Final Rule) establishing minimum training standards
for safety-related railroad employees and requiring railroad carriers,
contractors, and subcontractors to develop and submit certain training
programs to FRA for approval.\2\
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    \1\ Public Law 110-432, 122 Stat. 4883 (Oct. 16, 2008), codified
at 49 U.S.C. 20162. The Secretary of Transportation delegated the
authority to carry out this mandate to the the Federal Railroad
Administrator. 49 CFR 1.89(b).
    \2\ 79 FR 66459.
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    On May 3, 2017, FRA published a final rule which delayed
implementation dates in the 2014 Final Rule by one year.\3\ The delay
was necessary to help model training program developers and other
regulated entities comply with the rule.\4\ On April 27, 2018, FRA
published a final rule in response to a petition for reconsideration of
that May 2017 rule by granting the American Short Line and Regional
Railroad Association's (ASLRRA) request to delay the implementation
dates by an additional year.\5\ FRA determined that the delay was
necessary to improve compliance, reduce significant cost impacts
associated with the rule, and prevent complicating the approval
process.\6\
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    \3\ 82 FR 20549.
    \4\ 82 FR 20550. In December 2016, FRA completed sharing
training documents FRA uses to train the agency's personnel on
Federal rail safety requirements with model program developers and
made those documents available on FRA's website. However, even after
FRA produced those documents and performed significant outreach to
educate the regulated community, one association (considered a major
model program developer) informed FRA it found certain aspects of
the rule confusing to implement and difficult for contractors to
apply in practice.
    \5\ 83 FR 18455.
    \6\ 83 FR 18456.
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    On June 27 and July 31, 2019, FRA received joint petitions for
rulemaking filed by ASLRRA and the National Railroad Construction and
Maintenance Association, Inc. (NRC) (collectively, ``Associations'')
requesting additional implementation delays and other changes to the
2014 Final Rule; these petitions were docketed in DOT's Docket
Management System as FRA-2019-0050. On January 2, 2020, FRA responded
to the Associations' petitions for rulemaking by issuing a final rule
delaying the regulation's implementation dates for all contractors,

and those Class II and III railroads that are not intercity or commuter
passenger railroads with 400,000 total employee work hours annually or
more.\7\ Regarding the Associations' remaining requests in the
petitions for rulemaking, FRA's January 2, 2020, final rule stated that
FRA was considering addressing the Associations' remaining requests in
a separate rulemaking.\8\ This proposed rulemaking would address the
remaining requests in the Associations' 2019 petitions for rulemaking,
clarify current requirements, and remove regulatory provisions that are
obsolete.
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    \7\ 85 FR 10 (Jan. 2, 2020).
    \8\ 85 FR 10 (stating FRA's intent to initiate a separate
rulemaking which would be limited to amending FRA's training
regulation so that the regulatory text includes the latest guidance
intended to help small entities and other users of model programs).
FRA's response to address the Associations' remaining requests in a
separate rulemaking was consistent with its previous statement on
the subject. 84 FR 64447, 64449 (Nov. 22, 2019).
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Costs and Benefits

    FRA has examined the proposed rulemaking and finds that any
associated costs and benefits would be de minimis. It is expected that
the railroad industry and FRA would experience several qualitative
benefits, which are fully discussed in the Regulatory Impact section of
this proposed rule. These benefits include: (1) providing clarity to
the regulated community, thereby facilitating compliance with the
regulatory requirements; (2) making it easier for FRA to administer the
Training Rule's requirements; and (3) removing certain regulatory
provisions that are obsolete.

II. Background

    In the 2014 Final Rule, FRA stated its intention to issue a
compliance guide with a primary emphasis on assisting small entities,
but which could also be used by any employer.\9\ FRA anticipated that
the compliance guide would also help model program developers in
drafting programs to be adopted by small railroads and contractors. FRA
issued an interim compliance guide and made it available for immediate
effectiveness in the 2014 Final Rule docket \10\ on April 21, 2015, but
provided a comment period in anticipation that the regulated community
might have additional comments or concerns.
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    \9\ 79 FR 66474.
    \10\ Document number FRA-2009-0033-0031.
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    On May 25, 2016, FRA responded to the comments and posted its first
version of the final compliance guide.\11\ On November 30, 2016, FRA
posted a second version of the final compliance guide,\12\ largely to
publish FRA's answers to questions received from the regulated
community that broad dissemination would benefit. When FRA amended the
implementation dates by final rules published on May 3, 2017, and April
27, 2018, FRA made conforming changes to the final compliance guide and
posted the revised version on FRA's website at https://railroads.dot.gov/divisions/safety-partnerships/training-standards-rule. The same location on FRA's website contains the following
additional guidance: (1) an ASLRRA Q&A Document, which contains FRA's
answers to 11 questions concerning part 243 posed by ASLRRA; (2) an On
the Job Training (OJT) matrix, which shows the minimum type of training
(i.e., formal training, OJT training, or briefing only) that FRA
expects to see in a program covering each specific rail safety
requirement under most circumstances; (3) OJT templates that serve as
examples of OJT training standards for some types of employees; and (4)
various resource documents to assist employers with training in the
areas of equipment maintenance, passenger equipment requirements, brake
systems, engineering and track maintenance, and signal and train
control requirements.
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    \11\ Document number FRA-2009-0033-0035.
    \12\ Document number FRA-2009-0033-0036.
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    This NPRM proposes addressing two of the Associations' overarching
concerns: first, that FRA provide sufficient certainty as to how the
agency will apply the requirements of part 243 in the future by
converting existing guidance applicable to part 243 into regulatory
text; second, that FRA adopt specific regulatory text changes so as to
facilitate compliance with the Training Rule.\13\ In this Background
section, FRA details the petition requests made by the Associations
that FRA proposes to address and those it does not. Additionally, this
Background section provides a summary of other guidance FRA has
provided to the regulated community that is not addressed by the
petitions for rulemaking.
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    \13\ FRA notes that representatives of the Associations met with
FRA on January 17, 2020, to discuss their requests for greater
clarity pertaining to the requirements for refresher training,
program submission, model program adoption, and periodic oversight.
A follow-up meeting with the Associations was held by phone on
December 4, 2020, so that FRA could express its continuing interest
to respond to the petitions for rulemaking and the Associations
could emphasize concerns of greatest interest to their members.
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A. Petition Requests FRA Proposes Adopting

    Through their petitions for rulemaking and informal discussions
with FRA, the Associations requested that FRA amend part 243 to codify
the guidance, thereby providing certainty to the regulated community as
to how the agency will apply part 243's requirements in the future. In
making this request, the Associations express concern that agency
guidance is subject to change without rulemaking. To the extent
possible, the Associations ask that FRA convert the information in
guidance documents into regulatory text so that the regulated community
only needs to consult the regulatory requirements to understand the
part 243 regulation. FRA agrees with this request and intends this
proposed rule to convert the guidance into regulatory text, to the
extent possible.
Definition of Refresher Training
    FRA is proposing to revise the definition of ``refresher training''
because the Associations' request for clarification in their petitions
for rulemaking express confusion and request clarification. FRA
currently defines ``refresher training'' as meaning periodic retraining
required by an employer for each safety-related railroad employee to
remain qualified. Because refresher training is already required in
other FRA regulations, albeit under different names, FRA believed the
general meaning of the term was understood throughout the regulated
railroad community. However, in reviewing FRA's other refresher
training requirements, and the Associations' and other industry
members'questions about refresher training, FRA recognizes that
clarifying the term would be helpful--especially for small entities.

    Accordingly, FRA proposes to revise the definition of the term
``refresher training'' in part 243 to, among other things: (1)
acknowledge that FRA refers to refresher training in its other
regulations with a variety of terms (e.g., ``recurrent training,''
``re-training,'' ``periodic training,'' ``training that occurs
periodically,'' or ``training that is required within defined
intervals''); and (2) state that those refresher training programs or
plans required by FRA's other regulations need not be submitted to FRA
for review under Sec.  243.103(b).\14\
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    \14\ FRA published a chart identifying those already-maintained
training programs that FRA expects will not be submitted as initial
or refresher training under part 243. Although FRA does not intend
to maintain this chart, as FRA is perpetually removing, revising, or
adding regulatory requirements, the chart published on May 1, 2019,
in the compliance guide can be found at https://railroads.dot.gov/divisions/safety-partnerships/training-standards-rule.
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    FRA's proposed definition of refresher training explains that the
purpose of this type of training is to improve the job performance of
existing employees by acquainting them with any problematic issues or
new skills, methods, and processes. In conjunction with the proposed
revisions to the definition of ``refresher training,'' FRA is also
proposing revisions to the refresher training requirements and options
in Sec.  243.201(e) to clarify what employers need to include, at a
minimum, to complete acceptable refresher training.
Definition of Training Organizations or Learning Institutions
    FRA is proposing to add a definition of ``training organizations or
learning institutions'' to address an issue FRA is currently answering
through guidance. FRA has been asked several times whether certain
small- and medium-sized businesses that provide training to employers
are ``training organizations or learning institutions'' for purposes of
part 243. Because part 243 currently lacks a definition, some
businesses were confused about their need to comply with the rule. To
provide clarity, and as explained in more detail in the section-by-
section analysis, FRA is proposing a definition that identifies four
characteristics of a training organization or learning institution.
Model Program Developer or Employer With an Approved Program Wants To
Be Treated as a Training Organization or Learning Institution
    FRA has received inquiries from entities with FRA-approved programs
(either model programs under Sec.  243.105 or employer programs under
Sec.  243.101) asking whether they need additional FRA-approval to
provide training services to employers as a training organization or
learning institution. In conformance with verbal guidance that FRA has
previously provided, this NPRM would clarify that such entities need
not resubmit an approved model or employer program to be recognized
under part 243 as a training organization or learning institution.
Rather, such entities would only need to submit an informational filing
for FRA-approval containing the information required Sec.  243.111(c).
Section 243.101 Employer Program Required
    FRA is proposing to revise this section to remove requirements that
are obsolete and to clarify and incorporate guidance. Among other
things, FRA is proposing to delete the effective date of January 1,
2020, as that implementation deadline has already passed and is now
unnecessary.
    In addition, this NPRM would incorporate guidance that FRA has
previously provided in response to industry stakeholders' questions
regarding the ability of employers to classify their safety-related
railroad employees based on the FRA regulations the employees are
required to comply with for their work, rather than traditional craft
terminology. Specifically, this NPRM would clarify that it is
permissible for an employer to classify its safety-related railroad
employees by listing the Federal railroad safety laws, regulations, and
orders that the employee is required to comply with to complete the
employee's assignments and duties.
    Further, the NPRM would incorporate FRA guidance to employers on
how training is required to be structured, developed, and delivered.
Specifically, OJT is required when tasks require neuromuscular
coordination to learn, unless FRA approves alternative, formal training
that addresses the need to practice safety-related tasks, with the
ability to objectively measure task completion proficiency. Examples of
alternative, formal training could include: training facilities that
permit students to practice tasks that require neuromuscular
coordination to learn in a controlled environment with minimal or no
risk of personal injury; classroom practical exercises; role play; lab
simulation; or virtual reality (VR) and other emerging technologies.
    In addition, this NPRM would incorporate FRA guidance regarding
contractor employers. Currently, Sec.  243.101(e) requires a contractor
that chooses to train its own safety-related railroad employees to
provide each railroad that utilizes its services with a document
indicating that the contractor's program of training was approved by
FRA. However, the existing paragraph does not consider that some
similar training programs or plans, pursuant to other regulatory
requirements contained elsewhere in this chapter, are not required to
be submitted in accordance with this part and, therefore, the
contractor would not have a document that it could show a railroad
validating FRA's approval of its program. For this reason, FRA is
proposing to clarify that the requirement does not apply when the
contractor is not required to submit a training program to FRA or
retain a document indicating FRA's approval of the program.
Section 243.103 Training Components Identified in Program
    FRA is proposing three clarifying revisions to the requirements of
Sec.  243.103. First, existing paragraph (a)(1) requires each
employer's program to include a unique name and identifier for each
formal course of study. The proposed revision to this requirement
clarifies that the types of formal courses needing a unique name and
identifier include both initial and refresher training. An initial or
refresher training course that FRA has previously approved would not
need a new unique name and identifier each time it is revised.
    Second, existing paragraph (a)(2)(v) requires each employer's
program to include a course outline, and the outline to include the
anticipated course duration. However, the existing requirement does not
specify whether the anticipated course duration includes OJT. To
address that gap, FRA proposes to revise the requirement to state that
the employer's course outline for each course must include the
anticipated course duration for all formal training combined, apart
from OJT. Because OJT is rarely scheduled for a specific time duration,
FRA proposes that any estimate of OJT duration be excluded from the
formal training duration estimate.
    Third, as discussed in the definition of Refresher Training section
above, this NPRM would clarify that similar training programs or plans,
currently required by other FRA regulations, do not have to be
submitted to FRA under part 243. As noted in footnote 13 above, FRA has
published a chart identifying those already-maintained training
programs that FRA expects will not be submitted as initial or refresher
training under part 243.

Additional Changes to Miscellaneous Sections
    As described in the section-by-section analysis below, FRA has
identified a number of additional requirements that can be eliminated
as obsolete or revised to add regulatory certainty and clarity. Those
changes that can be found in the proposed requirements for Training
Components Identified in Program (Sec.  243.103), Optional Model
Program Development (Sec.  243.105), Training Program Submission,
Introductory Information Required (Sec.  243.107), Approval of Programs
Filed by Training Organizations or Learning Institutions (Sec.
243.111), Records (Sec.  243.203), and Periodic Oversight (Sec.
243.205).
    In addition, the Associations' petitions requested that FRA revise
Sec.  243.113 to allow any employer, not just small employers with less
than 400,000 total employee work hours annually, to have the option to
submit a training program by a method other than electronic submission.
However, during subsequent communications, the Associations retracted
that request and told FRA that they would not object to FRA proposing
mandatory submission electronically for all employers through FRA's
part 243 web portal. Accordingly, this NPRM proposes that change in
Sec.  243.113, Electronic and Written Program Submission Requirements.

B. Petition Requests FRA Does Not Propose Adopting

    Although FRA is proposing to adopt many of the recommendations the
Associations suggested in their petitions for rulemaking, there are
several items that FRA is not.
    FRA is not proposing any additional implementation date delays. The
implementation dates in the existing rule have come due with the
exception of those for implementing the refresher training requirements
(December 31, 2024, for each Class I railroad and each intercity or
commuter passenger railroad conducting operations subject to this part
with 400,000 total employee work hours annually or more, or December
31, 2025, for each employer conducting operations subject to this part
that is not covered by the earlier implementation date). Thus, the need
for implementation date delays appears to have passed or is not yet
ripe for review.
    Neither is FRA proposing a different set of training requirements
for the Class II and III freight railroads and contractors compared to
the Class I railroads. Because the work of each safety-related railroad
employee must comply with the same Federal railroad safety laws,
regulations, and orders, and the consequences for failing to comply
with those laws can be just as dangerous regardless of the size or type
of operation of the employer, it is FRA's position that safety-related
railroad employees should not be held to different training standards
based on the size or type of their employer. Instead, FRA's existing
regulation and the proposed changes in this rulemaking provide for
differences in employer size or type by allowing employers to draft
their own programs or use model programs to develop training in ways
that are tailored to smaller entities, or contract for training
services from one or more training organizations or learning
institutions.
    Additionally, for the same reasons, FRA is not proposing relief for
Class II and III freight railroads and contractors to have a different
set of qualification requirements versus Class I railroads when an
employee is qualified by an entity other than the employee's current
employer and the previous qualification records are unavailable under
Sec.  243.201(d)(1). Likewise, FRA is not proposing relief for Class II
and III freight railroads and contractors to have a different refresher
training period than the three-year period in the existing regulation.
    FRA is also declining the Associations' suggestions to add a
definition of ``program'' that would mean the written and electronic
instructional and testing materials, and add a definition of
``template'' that would mean an outline of the training program, and
then allow employers to submit either one. However, FRA's approach to a
training program goes more to the employer describing the methodology
of determining how safety-related railroad employees are to be trained
and how the employer can determine that the training is effective.
Because the Associations' proposed definitions would impair that
approach, FRA is declining to propose adding these two terms to the
definitions section of this NPRM.
    The Associations petitioned FRA to propose removing the burden on
an employer to affirmatively state that it has chosen to use an FRA-
approved model program, contending that the burden is unnecessary. FRA
declines to propose this revision. Although the Associations
acknowledge the burden is relatively small on each employer, they state
that the cumulative burden on small employers is relatively large.
FRA's decision to decline adopting this revision is based on the
statutory requirement for the submission of ``training and
qualification plans to the Secretary for approval, including training
programs and information deemed necessary by the Secretary to ensure
that all safety-related railroad employees receive appropriate training
in a timely manner.'' \15\ It would be difficult for FRA to ensure that
an employer's safety-related railroad employees were being trained as
statutorily required without an affirmative submission from the
employer. Meanwhile, FRA is proposing revisions to Sec.  243.105(b) to
help employers conceptualize the steps necessary to learn about what
model programs are available and how they can obtain the model programs
they need. Thus, this proposed rulemaking is targeted to easing the
burden raised by the Associations in their petitions for rulemaking,
even if it does not remove the burden.
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    \15\ 49 U.S.C. 20162(a)(2).
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    The Associations' petitions suggest that FRA propose revising the
records requirement in Sec.  243.203 to eliminate the specific
requirements and allow their members to keep whatever records the Class
II and III railroads and contractors believe are necessary to
demonstrate compliance with part 243. FRA declines to propose this
suggestion because it would eliminate objective recordkeeping
requirements in exchange for an unknown, subjective, and variable
response.
    The Associations' petitions suggest that FRA propose revising the
periodic oversight requirements in Sec.  243.205 to require a
contractor that employs supervisory safety-related railroad employees
to perform oversight only when those supervisory employees are
available to perform it. FRA is not proposing this suggestion because
the Associations' recommendation regarding a contractor's supervisory
employees would likely render that requirement unenforceable as FRA
would expect any employer could make a reasonable argument that its
supervisors were too busy to perform the oversight required.
    Finally, the Associations' petitions suggest that FRA propose to
exclude Class II and III railroads from the requirement to conduct
annual reviews. This would be an expansion of the existing exclusion
which covers a railroad with less than 400,000 total employee work
hours annually. FRA is not proposing this revision because the
exclusion was purposely designed to exclude only the smallest Class III
railroads. A railroad with at least 400,000 total employee work hours
annually is large enough that it should be expected to have the
resources to

effectively evaluate its training programs on a regular basis. Annual
reviews help ensure that a railroad is updating the program as needed
and addressing rising systemic safety concerns through targeted
training program changes.

C. Summary of FRA Guidance to the Regulated Community

    Since the effective date of the 2014 Final Rule, FRA has received
questions from the regulated community regarding the agency's plans for
auditing program implementation and enforcement. The following
background reiterates guidance FRA provided on these subjects in
response to questions received. Please note that these issues are
matters of agency discretion, policy, or rules of agency organization,
procedure, or practice that are exempt from notice and comment
rulemaking.\16\ Nevertheless, FRA will consider any comments on its
procedures or practices filed in response to this proposed rule.
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    \16\ 5 U.S.C. 553(b).
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    One question FRA answered in the compliance guide asked what an FRA
audit will include. FRA understands that each employer, organization,
or business required to comply with part 243 wants this information so
that it can best ensure that FRA will continue to find its program,
records, and activities in compliance. In the compliance guide, FRA
explained that agency personnel will likely engage in the following
audit activities: (1) attend classes and observe different types of
training; (2) review periodic oversight records; (3) review annual
review records; (4) review employee training records; (5) review
training evaluation methods; and (6) confirm that each employer is
complying with its training program. While FRA provided this list of
standard audit activities to inform the regulated community of the
general direction of most part 243 audits, the list was not intended to
be exhaustive, and certainly FRA could conduct additional audit
activities, including conducting interviews of relevant personnel, and
conducting site visits, if applicable.
    Also, in the compliance guide, FRA answered a question regarding
whether the agency would provide a grace period before taking
enforcement action. FRA's answer in the compliance guide reflected the
agency's understanding that, as with all new regulations, it will take
some time for employers to learn how to comply fully with part 243, and
potentially 12 to 18 months after training program implementation for
FRA to begin scheduling routine audits. Consequently, FRA's response in
the compliance guide explained how FRA expects to help employers,
particularly small entities, comply with part 243, albeit without a
grace period. In addition, FRA clarified that it reserves the right to
use its full enforcement authority to ensure compliance, especially in
cases where gross disregard for compliance is observed.
    In reviewing the guidance in the compliance guide regarding FRA
enforcement, FRA adds that regulated entities should expect FRA's
audits will focus on both compliance and performance. If a training
program is not effective, FRA will address those performance objectives
with the regulated entity. After all, the purpose of part 243 is to
ensure safety-related railroad employees are properly trained and
qualified so as to improve rail safety generally. To achieve that
purpose, FRA expects each regulated entity to continuously look for and
consider implementing industry best practices.

III. Section-by-Section Analysis

Subpart A--General

Section 243.1 Purpose and Scope
    Section 243.1 sets forth the purpose and scope of part 243. This
NPRM proposes to add two new paragraphs, paragraphs (f) and (g), to
this section to incorporate existing guidance related to railroad
bridge engineers and non-railroad employees who perform elective audits
or assessments.
    Proposed paragraph (f) codifies guidance in the compliance guide,
which explains that part 243 does not apply when the training required
under FRA's regulations is obtained through earning a college degree or
certification from an accredited training organization or learning
institution.\17\ For example, part 243 does not require railroad bridge
engineers to receive ``in-house'' training when an individual qualifies
as a bridge engineer under 49 CFR 237.51(b). That section provides that
an individual may qualify as a bridge engineer based on a degree in
engineering from an accredited school or organization. Employers are
not required to provide or duplicate the same types of classes a person
might need to earn a college degree or certification from a college or
university. However, if a railroad bridge engineer is conducting a
bridge inspection as required by 49 CFR part 237, an employer is
required to provide training on how to conduct a proper bridge
inspection safely as required by 49 CFR part 214. Not only is it
unlikely that a college engineering course would cover railroad bridge
safety rules for inspections, but each railroad is likely to have its
own unique combination of rules.
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    \17\ Compliance Guide at 49-50 located at https://railroads.dot.gov/elibrary/training-qualification-and-oversight-safety-related-railroad-employees-compliance-guide-0.
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    Proposed paragraph (g) codifies guidance in the compliance guide
clarifying that employers are not required to train non-railroad
employees who perform audits or assessments that are not required by
Federal railroad safety laws, regulations, or orders.\18\ FRA is
proposing this change in response to the Associations' concerns
specifically pertaining to employees of the Short Line Safety Institute
(SLSI) who conduct safety audits and provide recommendations to short
line railroads on ways to improve safety. The Associations assert in
their petitions that SLSI employees are not conducting ``oversight
inspections or testing'' and ``do not train railroad employees in
specific tasks.'' FRA agrees with the Associations' position on this
issue and notes that, although the Associations suggest in their
petitions that FRA amend the definition of ``safety-related railroad
employee'' to exclude these types of non-railroad employees and SLSI
employees specifically, FRA finds that the exclusion is better placed
in Sec.  243.1. FRA also finds that specifically excluding SLSI
employees is unnecessary as SLSI employees clearly fall within the
revised language as proposed.
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    \18\ Id. at 43.
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Section 243.3 Application and Responsibility for Compliance
    Section 243.3 provides that, with certain exceptions, part 243
applies to all railroads, contractors of railroads, and training
organizations or learning institutions that train safety-related
railroad employees. The section further makes clear that any person,
including a railroad or a contractor for a railroad, that performs any
duty covered by part 243 is responsible for performing that duty in
accordance with part 243. In response to industry's request that a
parent or holding company be able to submit a part 243 training program
on behalf of its subsidiaries, FRA has allowed parent and holding
companies to submit training programs on behalf of their subsidiaries
as long as the filing thoroughly describes which companies are covered
by the submission and how each company is covered. The current
regulation, however, is silent on this issue and FRA has not issued
guidance on the issue.

    To address this issue in a clearer, more transparent manner, FRA
proposes adding paragraph (c) to this section to clarify how a parent
or holding company may comply with the requirements of this part on
behalf of one or more subsidiaries. In paragraph (c)(1), FRA proposes a
requirement that the arrangement be specified and submitted as other
programs are required in subpart B. Paragraph (c)(1)(i) proposes that
the arrangement may be used to fulfill all or a portion of a
subsidiary's responsibility for compliance required by part 243. This
proposed provision is intended to allow flexibility for each subsidiary
to opt out of a parent or holding company's program when the
subsidiary's training needs are different.
    Proposed paragraph (c)(1)(ii) would require that a parent or
holding company that submits a training program on behalf of one or
more subsidiaries must initially and continually maintain in its
submission a list of the subsidiaries covered and the extent to which
each subsidiary is adopting a parent or holding company's training
program.
    Recognizing that the efficiencies of a joint filing arrangement
would be lost if a subsidiary were to duplicate a parent or holding
company's filing on its behalf, paragraph (c)(2) proposes to prohibit a
subsidiary from filing a duplicate of any training program a parent or
holding company submitted on its behalf.
    Proposed paragraph (c)(3) would provide that each railroad, even if
it is a subsidiary of a parent or holding company, is responsible for
compliance with the training program submission requirements in subpart
B. A subsidiary should not presume that the parent or holding company
will fulfill the program submission requirements without confirming the
arrangement. FRA reserves the right to take enforcement action against
each ``person,'' as defined in Sec.  243.5, that fails to comply with
the program submission requirements of subpart B.
    Proposed paragraph (c)(4) would require that when a parent or
holding company's training program submission is filed on behalf of the
parent or holding company's subsidiaries, each subsidiary is required
to comply with that training program submission unless the subsidiary
files its own program with FRA. The existing and proposed requirements
in part 243 are predicated on each employer submitting a training
program and complying with that training program submission. This
proposed requirement ensures that a subsidiary understands that it
would have an obligation to comply with the parent or holding company
submission unless it takes the affirmative step to file its own
training program submission.
    FRA's decision to accept programs filed by parent or holding
companies on behalf of their subsidiaries is based on the recognition
that companies that are legally related may often share company rules
or operating practices that make it possible to share a training
program. Meanwhile, there are legal considerations that parent
companies, holding companies, and their subsidiary companies must
consider before filing a program under part 243 and FRA expects that
all companies involved will discuss and agree to the submission as
represented to FRA. For instance, there is a legal difference between a
holding company, which has a passive relationship with its subsidiaries
because, in general, it does not participate in the daily decision
making of the subsidiaries and each subsidiary has its own management
running those day-to-day operations, and a parent company. A parent
company typically has its own business operations and will choose
whether to be actively or directly involved in managing its
subsidiaries. Accordingly, FRA's proposed revisions to this section are
intended to ensure that all companies covered by a submission are
legally bound and accept the submission, and that subsidiaries may opt
out of a parent or holding company's submission, in whole or in part.
Section 243.5 Definitions
    To codify existing guidance and respond to questions from industry,
FRA is proposing to revise two definitions and add one new definition
to part 243. Specifically, FRA proposes to revise the existing
definitions of the terms ``designated instructor'' and ``refresher
training,'' and add a definition for the term ``training organizations
or learning institutions.''
    First, FRA proposes to revise the definition of ``designated
instructor.'' As currently defined, a ``designated instructor'' is ``a
person designated as such by an employer, training organization, or
learning institution, who has demonstrated, pursuant to the
[applicable] training program . . . an adequate knowledge of the
subject matter under instruction, and where applicable, has the
necessary experience to effectively provide formal training.'' FRA
understands that some industry members read this definition to mean
that to be a ``designated instructor'' a person must be: (1) an
employee of the employer; and (2) ``qualified'' as that term is used in
part 243. To clarify these issues, FRA is proposing to add two
sentences to the existing definition. The first proposed sentence would
specify that a ``designated instructor'' is not required to be an
employee of the employer and thus designated instructors can be in-
house employees or outside contractors, such as professional trainers.
The second proposed sentence would explain that employers are required
to ensure that employees and non-employees used as designated
instructors have the necessary knowledge, skills, and abilities to
provide sound coaching, mentoring, and guidance to new learners. FRA
notes, however, that ``designated instructors'' are not required to be
``qualified'' as that term is defined in part 243.
    FRA proposes to revise the definition of ``refresher training'' to
explain that the purpose of this type of training is to improve the job
performance of existing employees by acquainting them with any changed
standards, any relevant problematic issues or new skills, methods, and
processes, and to ensure no important skills or knowledge have been
lost due to lack of use. This proposed explanation is intended to
distinguish refresher training from initial training, which is targeted
to employees who generally are new to the subject matter. FRA also
proposes to revise the definition of ``refresher training'' to
acknowledge that FRA has referred to refresher training in its other
railroad safety regulations with a variety of terms and that those
refresher training programs or plans required in its other railroad
safety regulations need not be submitted for review pursuant to Sec.
243.103(b). This proposed acknowledgment is intended to be read in
conjunction with the proposal in Sec.  243.201(e) that refresher
training be at an interval not to exceed three calendar years from the
date of an employee's last training event, except where refresher
training is specifically required more frequently in accordance with
this chapter. Thus, for example, if FRA requires ``recurrent training''
each calendar year in a different FRA rail safety regulation, then that
more stringent refresher training requirement would not be superseded
by the more relaxed refresher training requirement of three calendar
years in Sec.  243.201(e). In addition, FRA is proposing revisions to
the refresher training requirements and options in Sec.  243.201(e)
that would clarify what employers need to include, at a minimum, to
complete acceptable refresher training.
    FRA also proposes to add a definition of ``training organizations
or learning institutions'' to clarify which businesses

that provide training to employers are ``training organizations or
learning institutions.'' FRA's proposed definition identifies four
characteristics of a training organization or learning institution.
First, a training organization or learning institution is an entity
that provides training services for people who are safety-related
railroad employees or independent students who will rely on the
training services provided to qualify to become safety-related railroad
employees, but not employees of the entity providing the training. This
proposed characteristic is intended to clarify that FRA's training
organization or learning institution definition does not include an
employer providing training to its employees. Second, the proposed
definition identifies the main examples of training organizations and
learning institutions as businesses that provide formal training, and
colleges and universities that provide rail safety courses necessary
for a person to qualify as a safety-related railroad employee. A
business that performs consulting work or some type of training that
does not rise to the level of ``formal training,'' as defined in part
243, would not be considered a training organization or learning
institution. Third, the proposed definition explains that even though
an entity may not maintain a fixed training facility, it could still be
considered a training organization or learning institution as it could
rent or lease meeting space to deliver training, deliver training at an
employer's facility, or deliver virtual training. Thus, the proposed
definition would clarify that a business that goes to an employer's
property to deliver formal training may be considered a ``training
organization or learning institution.'' Fourth, while some railroads
have in-house training for their employees and also train safety-
related railroad employees of other employers, FRA does not consider
these railroads as training organizations or learning institutions, and
therefore proposes to clarify that exclusion.

Subpart B--Program Components and Approval Process

Section 243.101 Employer Program Required
    FRA is proposing to delete paragraphs (a)(1) and (2) and state the
employer requirement to submit, adopt, and comply with a training
program for its safety-related railroad employees in paragraph (a)
without implementation dates. Paragraphs (a)(1) and (2) are no longer
needed as the implementation deadlines specified in those existing
requirements have already passed and all employers currently must
comply.
    Paragraph (b) requires that employers commencing operations after
January 1, 2020, submit, adopt, and comply with a training program
before commencing operations. As above, paragraph (b) would also be
revised to remove the implementation date that has passed. Thus, the
proposed rule would apply any time an employer commences operations.
    In response to the Assocations' request, proposed revisions to
paragraph (c) clarify that employers may create programs based on
applicable CFR parts, United States Code sections, or citations to
orders. Accordingly, FRA is proposing to revise paragraph (c)(1) to
clarify what it means for an employer to classify its safety-related
railroad employees by ``other suitable terminology,'' which includes
references to the applicable part of the CFR, section of the United
States Code, or citation to an order. Also, FRA proposes to revise
paragraphs (c)(2) and (3) to exclude an employer that classifies its
safety-related railroad employees by direct reference to Federal
railroad safety laws, regulations, and orders because the existing
requirement would be redundant for an employer who classifies in that
way.
    FRA proposes to revise paragraph (c)(5) to codify guidance that OJT
is required when tasks require neuromuscular coordination to learn
unless FRA approves alternative, formal training that addresses the
need to practice safety-related tasks with the ability to objectively
measure task completion proficiency.\19\ As background, some employers
or training organizations may have access to state-of-the-art indoor/
outdoor training facilities that permit students to practice tasks that
require neuromuscular coordination to learn in a controlled environment
with minimal or no risk of personal injury. Other approaches may
include classroom practical exercises, role play, lab simulation, VR,
and other emerging technologies. FRA's proposal recognizes that some
safety-related tasks that require neuromuscular coordination can be
taught effectively through formal training other than traditional OJT.
---------------------------------------------------------------------------

    \19\ Id. at 15.
---------------------------------------------------------------------------

    Paragraph (e) requires a contractor that chooses to train its own
safety-related railroad employees to provide each railroad that
utilizes its services with a document indicating that the contractor's
training program was approved by FRA. However, paragraph (e) does not
account for the fact that some similar training programs or plans,
pursuant to other regulatory requirements contained elsewhere in this
chapter, are not required to be submitted in accordance with part 243
and, therefore, the contractor would not have a document that it could
show a railroad validating FRA's approval of that program. For this
reason, FRA is proposing to change this requirement. To the extent that
a contractor chooses to train its own safety-related railroad employees
with an FRA-approved program under part 243, FRA proposes that the
contractor provide each railroad utilizing the program with a document
declaring or proving that its training program was approved by FRA.
However, as proposed, if a contractor is not required to submit the
training program or plan as permitted by Sec.  243.103(b), but is
maintaining the similar training program or plan pursuant to other
regulatory requirements contained elsewhere in this chapter, then the
contractor's requirement to provide the railroad with a document is
limited to declaring or proving that information. For this proposed
requirement, any FRA approval document will be considered sufficient
proof and, when that proof is unavailable, a contractor may simply
declare that the statement in the document is true. FRA is also
proposing revisions to paragraph (f) that would similarly change the
type of document a railroad is responsible to retain based on the
proposed corresponding changes in paragraph (e).
Section 243.103 Training Components Identified in Program
    FRA is proposing four revisions to the requirements in this
existing section.
    Paragraph (a)(1) requires each employer's program to include a
unique name and identifier for each formal course of study. The
proposed revision to this requirement clarifies that the types of
formal courses needing a unique name and identifier include both
initial and refresher training courses. An initial or refresher
training course that FRA has previously approved would not need a new
unique name and identifier each time it is revised.
    Paragraph (a)(2)(v) requires each employer's program to include a
course outline, and the outline to include the anticipated course
duration. However, the existing requirement does not specify whether
the anticipated course duration includes OJT. Accordingly, FRA proposes
revising this paragraph to provide that the employer's course outline
for each course include the anticipated course duration for all

formal training combined, apart from OJT.
    The proposed revisions to paragraph (b) would clarify which
``similar training programs or plans'' that FRA requires in its other
rail safety regulations do not have to be submitted to FRA under part
243. Additionally, proposed paragraph (b) would clarify that if an
employer needs to amend any such similar program or plan required by an
FRA railroad safety regulation, other than part 243, the employer is
required to amend its program but not submit it to FRA under Sec.
243.109.
    FRA is proposing to amend paragraph (d) to clarify that an employer
is not required to submit courseware (i.e., lesson plans, instructor
guides, participant guides, job aids, practical exercises, tests/
assessments, and other materials used in the delivery of any course) as
part of a training program submission, although FRA may require an
employer to provide FRA with such program courseware upon request.
Section 243.105 Optional Model Program Development
    FRA is proposing several revisions to this existing section, which
permits the optional development of model programs that can be adopted
by multiple employers. The proposed changes would remove a requirement
no longer necessary and add information to the regulatory text that was
previously issued as guidance.
    FRA proposes to remove paragraph (a)(3) as it is no longer needed.
The existing paragraph provided model program developers with the
option to file model training programs by May 1, 2019, to guarantee an
FRA review process of no more than 180 days. The existing requirement
is no longer needed because the deadline for early filing passed.
    The proposed revisions to paragraph (b) would add information
intended to help an employer that is planning to use a model program.
Existing paragraph (b) already specifies that an employer that chooses
to use an FRA-approved model program must submit only the unique
identifier associated with the program, and all other information that
is specific to that employer or deviates from the model program.
However, proposed paragraph (b) would contain information about how an
employer can go to FRA's part 243 web portal, obtain contact
information from a model program developer, and contact that developer
to access the courseware associated with the model program. Further,
FRA is proposing to revise paragraph (b) to confirm that an employer
that submits, adopts, and implements an FRA-approved model program,
consistent with the operations of that employer, will be considered in
compliance with the employer program requirements of Sec.  243.101.
    FRA proposes adding paragraph (c) to address how model program
developers are required to provide notice of any FRA-approved changes
to authorized users. FRA proposes that sufficient notice of any FRA-
approved changes may depend on whether the model program developer
loosely allows adoption of the model program by anyone with access to
the developer's website or more stringently requires an employer to
obtain explicit authorization to use a model program. In short, FRA
proposes that the model program developer disseminate its FRA-approved
updates in at least the same (and no less stringent) manner as it made
the model program available to employer users.
Section 243.107 Training Program Submission, Introductory Information
Required
    FRA proposes amending paragraph (a) to remove the requirement that
an employer that does not provide, but is responsible for, training for
its safety-related railroad employees must submit a training program.
FRA also proposes adding a sentence to paragraph (a) notifying
employers using FRA's part 243 web portal that the web portal will
prompt the employers to provide the information required in this
section. Thus, an employer using FRA's part 243 web portal would not
need to provide this information elsewhere in its submission as the web
portal itself will prompt the employer to provide the information.
    FRA also proposes amending paragraph (a) to reduce the types of
information required at the time of filing. The types of information
paragraphs (a)(4) and (5) require do not directly apply to employers
that must submit training programs and thus the requirements are
unnecessary. Accordingly, FRA proposes deleting both requirements, and
redesignating and revising paragraph (a)(6) as (a)(4).
    Similarly, paragraphs (b) and (c) require a level of detail that is
unnecessary for FRA to evaluate an employer's training program
submission. Paragraph (b) requires an employer to provide FRA with
information about the different methods it will utilize to train its
various categories of safety-related railroad employees. Paragraph (c)
requires an employer to provide FRA with information about the training
organizations or learning institutions it elects to use to train all or
some of its safety-related railroad employees. FRA recognizes that the
agency can determine this information during an audit or investigation.
For this reason, FRA proposes to remove paragraphs (b) and (c) in their
entirety and would reserve paragraph (b).
Section 243.109 Initial and Refresher Training Program Submission,
Review, and Approval Process
    FRA is proposing revisions to this section clarifying that
refresher training programs must be submitted to FRA for review and
approval in the same manner as an employer's initial training program.
This proposal includes revising the heading of this section to make
clear that it addresses the submission, review, and approval process
for both initial and refresher training programs. Similarly, FRA
proposes revising the introductory heading in paragraph (a), which
refers only to initial programs, so that it refers to both initial and
refresher training programs. Finally, FRA is proposing to revise
paragraph (a)(2) to reference both initial and refresher programs.
Section 243.111 Approval of Programs Filed by Training Organizations or
Learning Institutions
    FRA proposes several revisions to this section to remove
unnecessary requirements and eliminate regulatory ambiguity.
    Paragraph (a) currently requires a training organization or
learning institution to submit its program to FRA for review and
approval. Because FRA received inquiries from the Associations, and
some employers, requesting guidance on whether they would need to
resubmit a previously approved employer program so they could also be
recognized under part 243 as a training organization or learning
institution, FRA proposes new requirements to address the issue.
Accordingly, when an entity has previously received FRA approval of a
model program under Sec.  243.105 or an employer program under Sec.
243.101, under proposed paragraph (a)(1) the program does not need to
be submitted a second time for FRA's approval. Meanwhile, FRA proposes
requiring in paragraph (a)(2) that an entity with such a previously
approved program must submit an informational filing to its previously
approved program containing the information required in paragraph (c)
of this section for a training organization or learning institution
program.
    The proposed revisions to paragraph (c) would remove paragraphs (5)

through (7), which require programs submitted by training organizations
and learning institutions to include designated instructors' resumes, a
list of employer customers, and a summary showing the methodology used
to develop training programs. FRA proposes deleting these three
requirements because FRA is not an educational accrediting agency and
finds that the existing requirements may wrongly suggest FRA would be
deciding whether each training organization or learning institution is
suitable to provide such training when that is a decision for each
employer to make. By deleting these three existing requirements, the
regulation would make clear that FRA approves training programs and not
any particular training organization or learning institution. In other
words, no training organization or learning institution should refer to
itself as ``FRA-approved'' but it may say that its training program is
``FRA-approved.''
    FRA proposes revising paragraph (e) to clarify that a training
organization or learning institution may transfer an approved program
to another training organization or learning institution, or an
employer. As proposed, the acquiring entity need only submit an
informational filing with FRA noting the transfer unless the acquiring
entity is making substantial additions or revisions to the previously
approved program. If the acquiring entity is making substantial
additions or revisions to the previously approved program, then the
acquiring entity must obtain FRA's approval of those changes pursuant
to paragraph (f) of this section. FRA is considering an alternative
requirement that the acquiring entity will need to submit the entire
previously approved program under the acquiring entity's web portal
account for administrative reasons.
243.113 Electronic and Written Program Submission Requirements
    FRA proposes several revisions to this section to clarify that when
FRA refers to electronic program or informational filings submission
requirements, FRA means submission through FRA's part 243 web portal.
For example, paragraph (a) would be revised to specifically reference
FRA's part 243 web portal and to inform electronic submitters that the
web portal will prompt them to submit all required training program
information.
    FRA proposes the elimination of the written program submission
option for an employer with less than 400,000 total employee work hours
annually. For this reason, FRA proposes deleting that option from
paragraph (a) and removing existing paragraphs (d) through (f). The
cost in time and resources to print and mail a submission is likely the
equivalent to the time and resources needed for a person to go to FRA's
part 243 web portal, fill out the information required, and upload the
submission documents. For these reasons, this proposed requirement is
not expected to increase the costs on an employer with less than
400,000 total employee work hours annually, while reducing
administrative and cost burdens for FRA personnel that would need to
receive the written program, scan it, and upload it to FRA's part 243
web portal.
    In paragraph (b), FRA proposes to clarify that a submitter will
need to register for access to the part 243 web portal through a
website before being granted web portal access.
    In paragraph (c), FRA proposes to clarify that the electronic
submitters providing consent are the users of FRA's part 243 web
portal. FRA also proposes adding for clarity the existing paragraph (e)
requirement that a person that electronically submits documents to FRA
shall be considered to have provided their consent for FRA to
electronically store those materials required by this part.

Subpart C--Program Implementation and Oversight Requirements

Section 243.201 Employee Qualification Requirements
    FRA proposes revising this section to provide more direction on
what must be included in refresher training, and how refresher training
is distinguished from initial training.
    FRA proposes several revisions and additions to paragraph (a). The
revisions include the removal of implementation dates that have passed.
Proposed paragraph (a)(1) includes the existing requirement that each
employer must only permit employees appropriately trained and qualified
to perform safety-related service. Proposed paragraph (a)(2) addresses
the Associations' petitions by permitting an employer to limit a
safety-related railroad employee's training to only the relevant
Federal requirements that apply to the safety-related tasks that the
employer authorizes the employee to perform, in addition to any
knowledge-based training that is required. FRA proposes to move the
requirement for designating existing employees by occupational category
or subcategory in current paragraph (a)(1) to proposed paragraph
(a)(3)(i).
    FRA also proposes adding paragraph (a)(3)(ii) to address an issue,
like the one addressed in proposed Sec.  243.101(c), concerning
employers that prefer to categorize their employees by CFR parts or
other legal requirements, rather than by occupational category or
subcategory. Proposed paragraph (a)(3)(ii) addresses employers that do
not designate employees by department, occupational category, or
subcategory. For those employers who do not designate employees,
paragraph (a)(3)(ii) proposes that the employer must retain a record
for each employee identifying the list of Federal railroad safety laws,
regulations, and orders that cover the work the person is designated as
qualified to perform.
    In response to the Assocations' request, FRA proposes to revise
paragraph (c)(2) to allow an employee, who is not yet qualified, to
perform tasks during OJT under the direct onsite observation of a
qualified person and in accordance with certain conditions for the
qualified person, before the employee has completed all of the formal
training, including classroom training and OJT. The existing rule
requires the employee to complete classroom or other formal training,
before the employer may allow an employee, who is not yet qualified, to
perform tasks during OJT under the direct onsite observation of a
qualified person, and under the same specified conditions for the
qualified person. The proposed change would not be expected to impact
safety detrimentally as the employee would still be required to perform
the OJT tasks under the direct onsite observation of a 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.
    FRA proposes to amend paragraph (d), which addresses how an
employer can avoid training an employee that was previously trained or
qualified by an entity other than the current employer. FRA is not
proposing to amend the existing options in paragraphs (d)(1) and (2).
Instead, FRA proposes changing ``FRA-approved'' to ``FRA-required,''
and ``submitted'' to ``completed'' to coincide with other changes in
this proposed rule. The rule currently requires that, in order to
exercise one of the options, the employee's training or qualification
must have been provided previously ``through participation in a FRA-
approved training program'' that was submitted by an entity other than
the employee's current employer. Through the proposed changes to Sec.
243.103(b), FRA is recognizing that an employee could have been
previously trained or qualified by an entity other

than the current employer using a similar training program or plan,
pursuant to other regulatory requirements contained elsewhere in this
chapter that do not require submission to FRA or FRA-approval.
    In conjunction with the proposed definition of ``refresher
training,'' FRA proposes revisions to the requirements for refresher
training in paragraph (e). Specifically, proposed paragraph (e)(3)(i)
would require as a baseline that the employer ensure that each
employee's refresher training include notification of changes to any
rule, practice, or procedure relevant to the employee's assigned
duties. Proposed paragraph (e)(3)(ii) would clarify that each employer
must ensure that an employee is not allowed to test out of refresher
training. Proposed paragraph (e)(3)(iii) would include the sentence in
existing paragraphs (e)(1) and (2) which is intended to capture that,
ultimately, the employer is required to ensure that 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.
That existing requirement is for ensuring that refresher training is
used to fill any gaps in an employee's knowledge base. FRA recognizes
that proposed paragraphs (e)(1) and (2) contain ``beginning''
implementation dates that may no longer be relevant when a final rule
is published and will make changes to these paragraphs to remove the
unnecessary implementation dates that have passed.
    Proposed paragraph (e)(3)(iii) also describes the options available
to employers for refresher training. For instance, rather than
repeating initial training, refresher training may be limited and
carefully tailored to review: (1) all the required steps of a
complicated safety-related task; (2) existing rules or procedures that
were initially learned but rarely used; and (3) safety-related tasks
that address skill gaps that the employer identified in the workforce
through efficiency testing, periodic oversight, annual reviews,
accident/incident data, FRA inspection data, or other performance
measuring metrics.
    FRA is proposing to add paragraph (f) to require an employer to
consider ways to provide remedial training and retesting of any
employee who fails to successfully pass any training or testing.
Additionally, proposed paragraph (f) would make clear that a failure of
any test or training does not bar the person from successfully
completing the training or testing later.
Section 243.203 Records
    FRA proposes revisions to paragraph (b)(2) of this section to
clarify that an employer that designates its employees by ``other
suitable terminology,'' i.e., other than occupational category or
subcategory, is required to keep a record of that designation for each
qualification of each qualified employee. This proposed revision is
intended to work in tandem with the other proposed requirements,
Sec. Sec.  243.101(c) and 243.201(a)(2)(ii), which would permit an
employer to categorize its employees by CFR parts or other Federal
railroad safety legal requirements, rather than by occupational
category or subcategory.
    In addition, FRA proposes revising paragraph (b)(6)'s recordkeeping
information requirement to clarify that the person determining that the
employee successfully completed all OJT training necessary to be
considered qualified to perform certain safety-related tasks must be a
designated instructor. The existing rule does not specify that the
person making this determination must be a designated instructor, but
instead only requires that the record identify the person. Proposed
revisions to paragraph (b)(6) would also add ``other suitable
terminology'' to the phrase ``occupational categories or
subcategories.''
    FRA is proposing to revise the recordkeeping requirement for
records other than individual employee records and annual review
records, for consistency with part 217 of this chapter. The existing
requirement in Sec.  243.203(c) requires each employer to maintain
test, inspection, and other event records that do not demonstrate the
qualification status of a safety-related railroad employee, for a
period of three calendar years after the end of the calendar year to
which the event relates. FRA received feedback from the Associations
that this recordkeeping requirement is more stringent than FRA's
requirement for operational tests and inspections under 49 CFR
217.9(d)(1). As the test and inspection records in the two regulations
are similar and are required to be kept for similar reasons, FRA
proposes this change. No change is proposed for the existing annual
review recordkeeping requirement in Sec.  243.203(c), as 49 CFR
217.9(f) also has a similar annual review recordkeeping requirement of
the same length and likewise is required to be retained for similar
reasons.
Section 243.205 Periodic Oversight
    FRA is generally proposing two changes to Sec.  243.205. Changes to
proposed paragraphs (a), (c), (d), (e)(1), (g), and (i) would, as
requested in the Associations' petitions, allow periodic oversight to
be limited to tests ``or'' inspections, rather than require both tests
``and'' inspections. In the context of periodic oversight, a ``test''
is conducted by a qualified supervisor who changes the work environment
so that one or more employees would need to act to prevent non-
compliance, while an ``inspection'' involves a qualified supervisor
observing one or more employees at a job site and determining whether
the employees are in compliance.\20\ In revisiting the current
requirement for both tests and inspections, FRA recognizes that tests
are more difficult to design and execute, while inspections can be
completed through routine observations. By revisiting this section, FRA
recognizes that the goal of periodic inspection may be achieved by
tests or inspections, and that both tests and inspections may have set
a higher bar than a minimum requirement.
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    \20\ 79 FR 66487.
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    FRA also proposes to revise Sec.  243.205(h) to provide railroads
and contractors the flexibility to decide which entity would be
responsible for conducting periodic oversight. This proposed revision
to the periodic oversight requirements would address an issue raised in
the Associations' petitions, which asked that FRA allow a railroad and
a contractor to agree to any division of the periodic oversight
responsibility requirements that the parties desire, rather than be
bound by the required assigned responsibilities in the regulation. From
a safety perspective, it does not make a difference whether periodic
oversight is conducted by a railroad or a contractor. Thus, FRA
proposes to revise Sec.  243.205(h)(2) to state that, regardless of the
requirements in Sec.  243.205 that assign specific periodic oversight
responsibilities to a railroad or contractor, these parties may agree
to a different periodic oversight responsibility arrangement. This
proposed revision will allow the regulated entities to decide which
entity is in the best position to conduct the oversight and to make any
necessary arrangements to comply with the periodic oversight
requirements.

IV. Regulatory Impact and Notices

A. Executive Order 12866

    This proposed rule is a non-significant regulatory action within
the meaning of Executive Order (E.O.) 12866. FRA made this
determination by finding that this proposed regulatory action did not
meet the definition of ``significant regulatory action'' in Section
3(f) of E.O. 12866.
    FRA is issuing the proposed rulemaking to address issues raised in
the Associations' petitions for rulemaking, provide clarity to current
requirements, and remove requirements that are no longer necessary. For
example, FRA proposes removing certain requirements from Sec.  243.111
because FRA found some of the information submitted by training
organizations and learning institutions to be unnecessary. FRA also
proposes removing implementation dates that have passed. Overall, most
changes would codify existing regulatory guidance that FRA has issued.
    The proposed rule would provide regulatory clarity and promote
regulatory compliance by the regulated industry through, among other
things: (1) clarifying that FRA will accept a training program that
categorizes employees by legal requirement references rather than
occupational categories; (2) eliminating certain submissions such as
similar training programs or plans; (3) requiring that each employer
under Sec.  243.103(a)(2)(v) exclude the course duration of OJT for an
employer's estimate of the anticipated course duration for all formal
training combined; (4) clarifying the use of model programs without
requiring an entity to refer to guidance or asking FRA for assistance;
(5) amending requirements for training program submissions and the
introductory information required in Sec.  243.107 due to FRA's part
243 web portal; (6) revising Sec.  243.109 to clarify refresher
training program submission requirements; (7) requiring each training
organization and learning institution provide less information in its
submission than required currently by Sec.  243.111; (8) revising the
refresher training requirements and options, clarifying what employers
need to include to complete minimum acceptable refresher training; and
(9) allowing each railroad and contractor the flexibility to decide
which entity would be responsible for conducting periodic oversight.
    FRA expects the proposed rule would result in several, non-
quantifiable benefits for the regulated industry and FRA, such as:
permitting training programs that categorize employees by referencing
the applicable part of the CFR, a statute, or an order, rather than
occupational categories associated by craft; clarifying that an
employer need not submit courseware unless FRA requests that additional
documentation is needed to conduct an adequate review; and clarifying
what employers need to include to complete minimum acceptable refresher
training, as well as allow for tests or inspections, instead of
requiring both. FRA expects these clarifications would provide
employers an easier means of complying with this regulation, as well as
save time understanding what needs to be submitted and preparing
submissions to FRA. By codifying existing regulatory guidance, FRA
expects that the railroads would have greater regulatory certainty for
future submissions while complying with training program requirements.
FRA estimates that there will be no costs associated with this proposed
rulemaking. FRA requests comments on the benefits and costs related to
this proposed rule.

B. Regulatory Flexibility Act and Executive Order 13272

    The Regulatory Flexibility Act of 1980 \21\ and E.O. 13272 \22\
require agency review of proposed and final rules to assess their
impacts on small entities. An agency must prepare an Initial Regulatory
Flexibility Analysis (IRFA) unless it determines and certifies that a
rule, if promulgated, would not have a significant economic impact on a
substantial number of small entities.
---------------------------------------------------------------------------

    \21\ 5 U.S.C. 601 et seq.
    \22\ 67 FR 53461 (Aug. 16, 2002).
---------------------------------------------------------------------------

    This proposed rule directly affects all railroads, of which there
are approximately 754. FRA estimates that approximately 93 percent of
these railroads are small entities. This proposed rule also affects
approximately 300 contractors of railroads and approximately 109
training organizations or learning institutions, most of which, by
definition, are considered small entities. Therefore, FRA has
determined that this proposed rule will have an impact on a substantial
number of small entities.
    The requirements of this proposed rule would apply to employers of
safety-related railroad employees, whether the employers are railroads,
contractors, or subcontractors. Although a substantial number of small
entities would be subject to this proposed rule, the proposed rule
would codify agency guidance, reduce submissions to FRA, and clarify
existing requirements. Accordingly, the FRA Administrator hereby
certifies that this proposed rule will not have a significant economic
impact on a substantial number of small entities. FRA invites comment
from members of the public who believe there will be a significant
impact on small railroads.

C. Paperwork Reduction Act

    The information collection requirements in this proposed rule are
being submitted for approval to the Office of Management and Budget
(OMB) under the Paperwork Reduction Act of 1995.\23\ The sections that
contain the proposed and current information collection requirements
and the estimated time to fulfill each requirement are as follows:
---------------------------------------------------------------------------

    \23\ 44 U.S.C. 3501 et seq.

--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                Average time per       Total annual       Total cost
           CFR section \24\                Respondent universe      Total annual responses           responses          burden hours    equivalent \25\
--------------------------------------------------------------------------------------------------------------------------------------------------------
243.3(c)--Application and               The estimated paperwork burden for this requirement is covered under 49 CFR 243.101(b).
 responsibility for compliance--A
 parent or holding company that
 submits a training program on behalf
 of one or more subsidiaries must
 initially and continually maintain in
 its written submission a list of the
 legal name of each subsidiary (New
 requirements).
--------------------------------------------------------------------------------------------------------------------------------------------------------

243.101(a)(2)--Training program         1,046 railroads/           60 training programs....  250 hours...............          15,000         $1,155,000
 required for each employer not          contractors.
 covered by (a)(1) and subject to this
 part by May 1, 2021 (includes burden
 associated with the usage of FRA's
 part 243 web portal and compliance
 guide.).
--------------------------------------------------------------------------------------------------------------------------------------------------------
--(b) Submission by new employers       10 new railroads/          10 training programs....  20 hours................             200             24,000
 commencing operations after Jan. 1,     contractors.
 2020, not covered by (a)(2).
--------------------------------------------------------------------------------------------------------------------------------------------------------
--(c) and (d) Employer's                The burden for this requirement is included under Sec.   243.101.
 classification of its safety-related
 railroad employees and on-the-job
 (OJT) training requirements.
--------------------------------------------------------------------------------------------------------------------------------------------------------
--(e) Contractor's duty to validate     400 railroads/contractors  50 documents............  15 minutes..............            12.5                963
 approved program to a railroad
 (Revised requirement text, no impact
 on burden).
--------------------------------------------------------------------------------------------------------------------------------------------------------
--(f) Railroad's duty to retain copies  10 new railroads.........  10 copies...............  2 minutes...............              .3                 23
 of contractor's validation document
 (Revised requirement text, no impact
 on burden).
--------------------------------------------------------------------------------------------------------------------------------------------------------
243.103(a) and (c)--Training            The burden requirements for paragraphs (a) and (c) are included under Sec.   243.101(a) and (b). Regarding the
 components identified in program        burden for paragraph (b), FRA estimates that it will receive zero (0) supplementary document.
 (Revised requirement text, no impact
 on burden).
--------------------------------------------------------------------------------------------------------------------------------------------------------
--(d) Training components identified    1,155 railroads/           70 modified training      5 hours.................             350             26,950
 in program; modifications to            contractors.               programs.
 components of the training programs
 (Revised requirement text, no impact
 on burden).
--------------------------------------------------------------------------------------------------------------------------------------------------------
243.105(a) and (b)--Optional model      The burden requirement for paragraph (a) has been fulfilled. The burden for paragraph (b) is included under Sec.
 program development (Revised              243.101(a)-(b).
 requirement text, no impact on
 burden).
--------------------------------------------------------------------------------------------------------------------------------------------------------
--(c) Optional model program            30 model programs........  10 notifications........  10 minutes..............               2                154
 development; model program revisions:
 notice of FRA-approved changes to
 authorized users (New requirement).
--------------------------------------------------------------------------------------------------------------------------------------------------------
243.107(a)--Training program            The burden for this requirement has been fulfilled.
 submission, introductory information
 required (Revised requirement text,
 no impact on burden).
--------------------------------------------------------------------------------------------------------------------------------------------------------
243.109(b)--Previously approved         1,155 railroads/           10 informational filings  8 hours.................              80              6,160
 programs requiring an informational     contractors/learning
 filing when modified (Revised           institutions.
 requirement text, no impact on
 burden).
--------------------------------------------------------------------------------------------------------------------------------------------------------
--(c) New portions or substantial       10 railroads/contractors.  10 revised training       16 hours................             160             12,320
 revisions to an approved training                                  programs.
 program.
--------------------------------------------------------------------------------------------------------------------------------------------------------
--(c) New portions or substantial       5 railroads/contractors..  5 revised training        8 hours.................              40              3,080
 revisions to an approved training                                  programs.
 program found non-conforming to this
 part by FRA--revisions required.
--------------------------------------------------------------------------------------------------------------------------------------------------------
--(d)(1)(i) Copy of additional          10 railroads/contractors.  25 copies...............  10 minutes..............             4.2                323
 submissions, resubmissions, and
 informational filings to labor
 organization presidents.
--------------------------------------------------------------------------------------------------------------------------------------------------------
--(d)(1)(ii) Railroad statement         228 railroads/contractors  76 affirming statements.  10 minutes..............            12.7                978
 affirming that a copy of submissions,
 resubmissions, or informational
 filings has been served to labor
 organization presidents.
--------------------------------------------------------------------------------------------------------------------------------------------------------
--(d)(2) Labor comments on railroad     228 railroads' labor       1 comment...............  30 minutes..............             0.5                 39
 training program submissions,           organizations.
 resubmissions, or informational
 filings.
--------------------------------------------------------------------------------------------------------------------------------------------------------

243.111(a) through (f)--Approval of     The burden requirements for paragraphs (a) and (c) are included under Sec.   243.101(a) and (b). The burden
 programs filed by training              requirement for paragraphs (b) and (d) are covered under Sec.   243.103(d). The burden requirement for
 organizations or learning               paragraphs (e) and (f) are covered under Sec.   243.109(b).
 institutions (TO/LI) (Revised
 requirement text, no impact on
 burden).
--------------------------------------------------------------------------------------------------------------------------------------------------------
--(g) Safety-related railroad           109 TO/LI................  5,450 records...........  5 minutes...............           454.2             34,973
 employees instructed by TO/LI --
 Recordkeeping.
--------------------------------------------------------------------------------------------------------------------------------------------------------
--(h) TO/LI to provide student's        109 TO/LI................  545 records.............  5 minutes...............            45.4              3,496
 training transcript or training
 record to any employer upon request
 by the student.
--------------------------------------------------------------------------------------------------------------------------------------------------------
243.113--Electronic and written         The burden requirement for paragraph (a) has been fulfilled. The burden for paragraph (b) is included under Sec.
 program submission requirements           243.101(a)-(b).
 (Revised requirement text, no impact
 on burden).
--------------------------------------------------------------------------------------------------------------------------------------------------------
243.201(a)(2)--Designation of existing  1,039 railroads/           346 designation lists...  15 minutes..............            86.5              6,661
 safety-related railroad employees by    contractors.
 job category (for employers not
 covered by (a)(1) and subject to this
 part by January 1, 2022) (Revised
 requirement text, no impact on
 burden).
--------------------------------------------------------------------------------------------------------------------------------------------------------
--(b) New employers operating after     10 new railroads/          10 designation lists....  15 minutes..............             2.5                193
 January 1, 2020, not covered by         contractors.
 (a)(2), designation of safety-related
 employees by job category--Lists.
--------------------------------------------------------------------------------------------------------------------------------------------------------
--(c) Training records of newly hired   4,800 employees..........  4,800 records...........  15 minutes..............           1,200             92,400
 employees or those assigned new
 safety-related duties (Revised
 requirement text, no impact on
 burden).
--------------------------------------------------------------------------------------------------------------------------------------------------------
--(d)(1)(i) Requests for relevant       4,800 employees..........  960 record requests.....  5 minutes...............              80              6,160
 qualification or training record from
 an entity other than current employer
 (Revised requirement text, no impact
 on burden).
--------------------------------------------------------------------------------------------------------------------------------------------------------
243.203(a) through (e) Recordkeeping--  1,155 railroads/           1,046 recordkeeping       30 minutes..............             523             40,271
 Systems set up to meet FRA              contractors/TOLI.          systems.
 requirements (Revised requirement
 text, no impact on burden).
--------------------------------------------------------------------------------------------------------------------------------------------------------
--(f) Transfer of records to successor  1,155 railroads/           3 records...............  30 minutes..............             1.5                116
 employer.                               contractors/TOLI.
--------------------------------------------------------------------------------------------------------------------------------------------------------
243.205(a), (b), (e) and (g)--Periodic  The burden for adopting and complying with a program of periodic oversight under paragraph (a) is included above
 oversight (Revised requirement text,    under the training program requirements in Sec.  Sec.   243.101(a)(2) and 243.109. Furthermore, FRA estimates
 no impact on burden).                   that zero (0) training programs will be changed as the result of the assessments under parts 240 and 242.
--------------------------------------------------------------------------------------------------------------------------------------------------------
--(c) Railroad identification of        300 contractors..........  100 identifications.....  5 minutes...............             8.3                639
 supervisory employees who conduct
 periodic oversight tests by category/
 subcategory (Revised requirement
 text, no impact on burden).
--------------------------------------------------------------------------------------------------------------------------------------------------------
--(f) Notification by RR of contractor  300 contractors..........  90 employee notices.....  10 minutes..............              15              1,155
 employee non-compliance with Federal
 laws/regulations/orders to employee
 and employee's employer.
--------------------------------------------------------------------------------------------------------------------------------------------------------
--(f) Notification by RR of contractor  300 contractors..........  270 employer notices....  10 minutes..............              45              3,465
 employee non-compliance with Federal
 laws/regulations/orders to employee
 and employee's employer.
--------------------------------------------------------------------------------------------------------------------------------------------------------
--(i) and (j) Employer records of       1,046 railroads/           150,000 records.........  5 minutes...............          12,500            962,500
 periodic oversight (Revised             contractors.
 requirement text under paragraph (i),
 no impact on burden).
--------------------------------------------------------------------------------------------------------------------------------------------------------

243.207(a)--Written annual review of    22 railroads.............  22 reviews..............  16 hours................             352             27,104
 safety data (Railroads with 400,000
 annual employee work hours or more).
--------------------------------------------------------------------------------------------------------------------------------------------------------
--(b) Railroad copy of written annual   22 railroads.............  22 review copies........  5 minutes...............             1.8                139
 review at system headquarters.
--------------------------------------------------------------------------------------------------------------------------------------------------------
--(e) Railroad notification to          22 railroads.............  2 notifications.........  15 minutes..............              .5                 39
 contractor of relevant training
 program adjustments.
--------------------------------------------------------------------------------------------------------------------------------------------------------
243.209(a) and (b)--Railroad            754 railroads............  754 lists...............  30 minutes..............             377             29,029
 maintained list of contractors
 utilized.
--------------------------------------------------------------------------------------------------------------------------------------------------------
--(c) Railroad duty to update list of   754 railroads............  75 updated lists........  15 minutes..............            18.8              1,444
 contractors utilized and retain
 record for at least 3 years showing
 if a contractor was utilized in last
 3 years.
--------------------------------------------------------------------------------------------------------------------------------------------------------
    Total.............................  1,155 railroads/           164,832 responses.......  N/A.....................          31,574          2,439,774
                                         contractors/training
                                         organizations/learning
                                         institutions.
--------------------------------------------------------------------------------------------------------------------------------------------------------

---------------------------------------------------------------------------

    \24\ FRA will be requesting to revise the previously approved
OMB control number (OMB No. 2130-0597) corresponding to existing
part 243.
    \25\ The dollar equivalent cost is derived from the Surface
Transportation Board's Full Year Wage A&B data series using the
appropriate employee group hourly wage rate that includes a 75-
percent overhead charge.
---------------------------------------------------------------------------

    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 Ms. Hodan Wells,
Information Collection Clearance Officer, at<PHONE_NUMBER>.
    Organizations and individuals desiring to submit comments on the
collection of information requirements should direct them to Ms. Hodan
Wells via email at [email protected].
    OMB is required to make a decision concerning the collection of
information requirements contained in this proposed rule between 30 and
60 days after publication of this document in the Federal Register.
Therefore, a comment to OMB is best assured of having its full effect
if OMB receives it within 30 days of publication. The final rule will
respond to any OMB or public comments on the information collection
requirements contained in this proposal.
    FRA is not authorized to impose a penalty on persons for violating
information collection requirements that 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,'' \26\ 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 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.
---------------------------------------------------------------------------

    \26\ 64 FR 43255 (Aug. 10, 1999).
---------------------------------------------------------------------------

    FRA has analyzed the proposed rule under the principles and
criteria contained in Executive Order 13132. This proposed rule would
not 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.
In addition, FRA has determined that the proposed rule would not impose
substantial direct compliance costs on State and local governments.
Therefore, the consultation and funding requirements of Executive Order
13132 would 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 under the principles
and criteria in Executive Order 13132. As explained above, FRA has
determined 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. Therefore, preparation
of a federalism summary impact statement for this proposed rule is not
required.

E. International Trade Impact Assessment

    The Trade Agreements Act of 1979 \27\ 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 rule is purely domestic in nature and
is not expected to affect trade opportunities for U.S. firms doing
business overseas or for foreign firms doing business in the United
States.
---------------------------------------------------------------------------

    \27\ 19 U.S.C. Ch. 13.
---------------------------------------------------------------------------

F. Environmental Impact

    FRA has evaluated this proposed rule consistent with the National
Environmental Policy Act (NEPA),\28\ the Council on Environmental
Quality's NEPA implementing regulations,\29\ and FRA's NEPA
implementing regulations \30\ and determined that it is categorically
excluded from environmental review and therefore does not require the
preparation of an environmental assessment (EA) or environmental impact
statement (EIS). Categorical exclusions (CEs) are actions identified in
an agency's NEPA implementing regulations that do not normally have a
significant impact on the environment and therefore do not require
either an EA or EIS.\31\ Specifically, FRA has determined that this
proposed rule is categorically excluded from detailed environmental
review.\32\
---------------------------------------------------------------------------

    \28\ 42 U.S.C. 4321 et seq.
    \29\ 40 CFR parts 1500 through 1508.
    \30\ 23 CFR part 771
    \31\ 40 CFR 1508.4.
    \32\ See 23 CFR 771.116(c)(15) (categorically excluding
``[p]romulgation of rules, the issuance of policy statements, the
waiver or modification of existing regulatory requirements, or
discretionary approvals that do not result in significantly
increased emissions of air or water pollutants or noise'').
---------------------------------------------------------------------------

    The purpose of this rulemaking is to codify agency guidance and
clarify existing requirements for complying with FRA's regulation on
the training, qualification, and oversight of safety-related railroad
employees. This proposed rule does not directly or indirectly impact
any environmental resources and would not result in significantly
increased emissions of air or water pollutants or noise. In analyzing
the applicability of a CE, FRA must also consider whether unusual
circumstances are present that would warrant a more detailed
environmental review.\33\ FRA has concluded that no such unusual
circumstances exist with respect to this proposed regulation and the
proposal meets the requirements for categorical exclusion.\34\
---------------------------------------------------------------------------

    \33\ 23 CFR 771.116(b).
    \34\ 23 CFR 771.116(c)(15).
---------------------------------------------------------------------------

    Pursuant to Section 106 of the National Historic Preservation Act
and its implementing regulations, FRA has determined this undertaking
has no potential to affect historic properties.\35\ FRA has also
determined that this rulemaking would not approve a project resulting
in a use of a resource protected by Section 4(f).\36\
---------------------------------------------------------------------------

    \35\ 54 U.S.C. 306108.
    \36\ Department of Transportation Act of 1966, as amended (Pub.
L. 89-670, 80 Stat. 931); 49 U.S.C. 303.
---------------------------------------------------------------------------

G. Executive Order 12898 (Environmental Justice)

    Executive Order 12898, ``Federal Actions to Address Environmental
Justice in Minority Populations and Low-Income Populations,'' and DOT
Order 5610.2C \37\ require DOT agencies to achieve environmental
justice as part of their mission by identifying and addressing, as
appropriate, disproportionately high and adverse human health or
environmental effects, including interrelated social and economic
effects, of their programs, policies, and activities on minority
populations and low-income populations. The DOT Order instructs DOT
agencies to address compliance with Executive Order 12898 and
requirements within the DOT Order in rulemaking activities, as
appropriate, and also requires consideration of the benefits of
transportation programs, policies, and other activities where minority
populations and low-income populations benefit, at a minimum, to the
same level as the general population as a whole when determining
impacts on minority and low-income populations. FRA has evaluated this
proposed rule under Executive Order 12898 and the DOT Order and has
determined it would not cause disproportionately high and adverse human
health and environmental effects on minority populations or low-income
populations.
---------------------------------------------------------------------------

    \37\ Available at: https://www.transportation.gov/sites/dot.gov/files/Final-for-OST-C-210312-003-signed.pdf.
---------------------------------------------------------------------------

H. Unfunded Mandates Reform Act of 1995

    Under section 201 of the Unfunded Mandates Reform Act of 1995 \38\
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 \39\ further requires that before promulgating
any general notice of proposed rulemaking that is likely to result in
the promulgation of any rule that includes any Federal mandate that may
result in expenditure by State, local, and tribal governments, in the
aggregate, or by the private sector, of $100,000,000 or more (adjusted
annually for inflation) in any one year, and before promulgating any
final rule for which a general notice of proposed rulemaking was
published, the agency shall prepare a statement detailing the effect on
State, local, and tribal governments and the private sector. This
proposed rule would not result in such an expenditure, and thus
preparation of such a statement is not required.
---------------------------------------------------------------------------

    \38\ Public Law 104-4, 2 U.S.C. 1531.
    \39\ 2 U.S.C. 1532.
---------------------------------------------------------------------------

I. Energy Impact

    Executive Order 13211, ``Actions Concerning Regulations That
Significantly Affect Energy Supply, Distribution, or Use,'' requires
Federal agencies to prepare a Statement of Energy Effects for any
``significant energy action.'' \40\ FRA evaluated this proposed rule
under Executive Order 13211 and determined that this regulatory action
is not a ``significant energy action'' within the meaning of Executive
Order 13211.
---------------------------------------------------------------------------

    \40\ 66 FR 28355 (May 22, 2001).
---------------------------------------------------------------------------

J. Privacy Act Statement

    In accordance with 5 U.S.C. 553(c), DOT solicits comments from the
public

to better inform its rulemaking process. DOT posts these comments,
without edit, to www.regulations.gov, as described in the system of
records notice, DOT/ALL-14 FDMS, accessible through https://www.transportation.gov/privacy. To facilitate comment tracking and
response, we encourage commenters to provide their name, or the name of
their organization; however, submission of names is completely
optional. Whether or not commenters identify themselves, all timely
comments will be fully considered. If you wish to provide comments
containing proprietary or confidential information, please contact the
agency for alternate submission instructions.

List of Subjects in 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
part 243 of chapter II, subtitle B of title 49 of the Code of Federal
Regulations as follows:

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

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

    Authority: 49 U.S.C. 20103, 20107, 20131-20155, 20162, 20301-
20306, 20701-20702, 21301-21304, 21311; 28 U.S.C. 2461, note; and 49
CFR 1.89.

Subpart A--General

0
2. Section 243.1 is amended by adding paragraphs (f) and (g) to read as
follows:

Sec.  243.1  Purpose and scope.

* * * * *
    (f) The requirements in this part do not require an employer to
adopt and comply with a training program when the training required for
a qualified person is obtained through earning a college degree or
certification from an accredited training organization or learning
institution. For example, the requirements in this part do not require
the training program of an engineering firm that conducts bridge
inspections to include training of railroad bridge engineers on the
subjects taught as part of a professional engineering curriculum
covered by 49 CFR 237.51(b).
    (g) The requirements in this part do not require an employer to
train contractors who are hired to perform elective audits or
assessments that are not required by Federal railroad safety laws,
regulations, or orders.
0
3. Section 243.3 is amended by adding paragraph (c) to read as follows:

Sec.  243.3   Application and responsibility for compliance.

* * * * *
    (c)(1) A parent or holding company may comply with the requirements
of this part on behalf of one or more subsidiaries if the arrangement
is specified and submitted with the relevant training program(s) under
subpart B of this part.
    (i) The arrangement may be used to fulfill all or a portion of a
subsidiary's responsibility for compliance with this part.
    (ii) A parent or holding company that submits a training program on
behalf of one or more subsidiaries must initially and continually
maintain in its submission a list of the legal name of each subsidiary.
The submission must reflect which courses each subsidiary is adopting
if a subsidiary is not adopting the parent or holding company's
training program in its entirety. The submission must reflect whether
each subsidiary is adopting all of a parent or holding company's
training programs or identify which courses each subsidiary is
adopting.
    (2) A subsidiary must not duplicate a training program submission a
parent or holding company has made on its behalf.
    (3) A subsidiary must file a training program submission, in
accordance with the requirements of subpart B of this part, if a parent
or holding company does not submit one or more training programs on
behalf of the subsidiary that is intended to fulfill all of the
subsidiary's responsibilities under this part.
    (4) A subsidiary must comply with a parent or holding company's
training program submission that is filed on behalf of the parent or
holding company's subsidiaries unless the subsidiary files its own
submission, in accordance with the requirements of subpart B of this
part.
0
4. Section 243.5 is amended by revising the definitions for
``Designated instructor'' and ``Refresher training'' and adding a
definition for ``Training organizations or learning institutions,'' to
read as follows:

Sec.  243.5   Definitions.

* * * * *
    Designated instructor means a person designated as such by an
employer, training organization, or learning institution, who has
demonstrated an adequate knowledge of the subject matter under
instruction and, where applicable, has the necessary experience to
effectively provide formal training on the subject matter. The
designated instructor is not required to be an employee of the
employer. Employers are required to ensure that employees and non-
employees used as designated instructors have the necessary knowledge,
skills, and abilities to provide sound coaching, mentoring, and
guidance to new learners.
* * * * *
    Refresher training means periodic retraining required for each
safety-related railroad employee that is designed to maintain, improve,
and update the skills and knowledge of existing employees to ensure
they are sufficiently acquainted with any changed standards, or any
relevant problematic issues or new skills, methods, and processes, and
to ensure no important skills or knowledge have been lost due to lack
of use. Similar training programs or plans required elsewhere in this
chapter but identified by a term other than refresher training such as
``recurrent training,'' ``re-training,'' ``periodic training,''
``training that occurs periodically,'' or ``training that is required
within defined intervals,'' are considered refresher training for
purposes of this subpart although they need not be submitted for review
pursuant to Sec.  243.103(b).
* * * * *
    Training organizations or learning institutions mean entities that
provide training services for people who are safety-related railroad
employees or independent students who will rely on the training
services provided to qualify to become safety-related railroad
employees, but not employees of the entities providing the training.
Training organizations and learning institutions include businesses
that provide formal training, and colleges and universities that
provide rail safety courses, necessary for a person to qualify as a
safety-related railroad employee. Training organizations and learning
institutions also include entities that do not maintain fixed
facilities (i.e., do not have a physical location), as they may rent or
lease meeting space to deliver formal training, deliver formal training
at an employer's facility, or deliver computer-based training
virtually. A railroad that trains its own employees and also trains
safety-related railroad employees of other employers is not a training
organization or learning institution.

Subpart B--Program Components and Approval Process

0
5. Section 243.101 is amended by revising paragraphs (a), (b), (c)(1)
through (3), (c)(5), (e), and (f) to read as follows:

Sec.  243.101   Employer program required.

    (a) Each employer conducting operations subject to this part shall
submit, adopt, and comply with a training program for its safety-
related railroad employees.
    (b) Each employer that has not yet commenced operations subject to
this part shall submit a training program for its safety-related
railroad employees before commencing operations. Upon commencing
operations, the employer shall adopt and comply with the training
program.
    (c) * * *
    (1) Classify its safety-related railroad employees in occupational
categories or subcategories by craft, class, task, or other suitable
terminology. Other suitable terminology for classifying safety-related
railroad employees may include references to the applicable part of the
Code of Federal Regulations, section of the United States Code, or
citation to an order as described in paragraph (c)(2) of this section;
    (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. An employer that classifies its safety-
related railroad employees by direct reference to the applicable part
of the Code of Federal Regulations, section of the United States Code,
or citation to an order as permitted in paragraph (c)(1) of this
section, is not required to define the occupational categories or
subcategories of its safety-related railroad employees;
    (3) Create tables or utilize other suitable formats which summarize
the information required in paragraphs (c)(1) and (2) of this section,
separated 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. An employer that does not have major railroad
departments and classifies its safety-related railroad employees by
direct reference to the applicable part of the Code of Federal
Regulations, section of the United States Code, or citation to an
order, as permitted in paragraph (c)(1) of this section, is not
required to summarize the information required in paragraphs (c)(1) and
(2) of this section;
* * * * *
    (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. OJT is required when tasks
require neuromuscular coordination to learn, unless FRA approves
alternative, formal training that addresses the need to practice
safety-related tasks, with the ability to objectively measure task
completion proficiency.
* * * * *
    (e) Contractor's responsibility to validate approved program to a
railroad: 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. A contractor
that chooses to train its own safety-related railroad employees shall
provide each railroad that utilizes it with a document proving or
stating that:
    (1) The contractor's training program was approved by FRA; or
    (2) The contractor is not required to submit the similar training
program or plan as required in Sec.  243.103(b) but is maintaining the
similar training program or plan, pursuant to other regulatory
requirements contained elsewhere in this chapter.
    (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 declaring or
proving that the contractor's program was approved by FRA, or the
contractor is not required to submit the similar training program or
plan as required in Sec.  243.103(b) but is maintaining the similar
training program or plan, pursuant to other regulatory requirements
contained elsewhere in this chapter. A copy of the document required in
paragraph (e) of this section satisfies this requirement.
0
6. Section 243.103 is amended by revising paragraphs (a)(1) and (2)(v),
(b), and (d) to read as follows:

Sec.  243.103   Training components identified in program.

    (a) * * *
    (1) A unique name and identifier for each formal initial and
refresher training course of study;
    (2) * * *
    (v) The anticipated course duration for all formal training
combined, excluding the course duration of OJT;
* * * * *
    (b) An employer that is required to adopt and comply with similar
training programs or plans, pursuant to other regulatory requirements
contained elsewhere in this chapter, is not required to submit those
similar training programs or plans in accordance with this part. When
any such similar program or plan, pursuant to other regulatory
requirements contained elsewhere in this chapter, includes OJT but does
not include the OJT components specified in paragraph (a)(3) of this
section and in Sec.  243.101(d), the employer shall supplement its
program to include the OJT components in accordance with this part.
Additionally, when any such similar program or plan, pursuant to other
regulatory requirements contained elsewhere in this chapter, is amended
for any reason, the employer shall amend its program without submission
to FRA under Sec.  243.109.
* * * * *
    (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. Unless requested by FRA, an
employer is not required to submit courseware (i.e., lesson plans,
instructor guides, participant guides, job aids, practical exercises,
tests/assessments, and other materials used in the delivery of any
course) as part of a training program submission.
0
7. Section 243.105 is amended by removing paragraph (a)(3), revising
paragraph (b), and adding paragraph (c) to read as follows:

Sec.  243.105   Optional model program development.

* * * * *
    (b)(1) 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 associated with the
program, and all other information that is specific to that employer or
deviates from the model program.
    (2) An employer that chooses to adopt a model program at FRA's part
243 web portal (https://safetydata.fra.dot.gov/Part243/) will be
prompted for the required information and find each model program
developer's contact information if the developer has an FRA-approved
training program.
    (3) An employer that chooses to adopt and implement a model program
must contact the model program developer and obtain the associated
course/training materials necessary for training safety-related
railroad employees. FRA does not prohibit a model program developer
from charging an employer a fee for the right to use a model training
program it developed or requiring each employer obtain its explicit
authorization before the employer adopts one of its model programs.
    (4) An employer that submits, adopts, and implements an FRA-
approved model program, consistent with the operations of that
employer, will be considered in compliance with the employer program
requirements of Sec.  243.101.
    (c)(1) Once a model program is approved by FRA, the developer must
consider when it is necessary to make revisions in accordance with
Sec.  243.109. A developer that revises its model program is required
to provide notice of the FRA-approved changes to its authorized users.
A model program developer is required to provide notice of any model
program revisions by engaging in any form of communication that
positively affirms the developer provided notice to employers likely to
be impacted by the changes to the program, including posting the
information at the organization's website, writing letters to the
employers, and including information in periodic newsletters. Such
notice must be at least as effective as the notice the developer
provided to employers when it developed the model program. For example,
if the developer makes its model program available to anyone with
access to the developer's website, then posting a notice of any
revisions to the program on its website will be sufficient. In
contrast, if a model program developer requires explicit authorization
to use its model programs, the developer must provide adequate notice
to those entities that it has specifically authorized in a manner
consistent with its authorization practices.
    (2) Once notified, an employer that is adopting and complying with
a model program must:
    (i) Adopt and comply with the revisions to the model program made
by the developer; or
    (ii) Submit information explaining how the employer's training
program will deviate from the model program in accordance with Sec.
243.109.
0
8. Section 243.107 is amended by:
0
a. Revising paragraph (a) introductory text and paragraph (a)(4);
0
b. Removing paragraphs (a)(5) and (6);
0
c. Removing and reserving paragraph (b); and
0
d. Removing paragraph (c).

    The revisions read as follows:

Sec.  243.107  Training program submission, introductory information
required.

    (a) An employer who provides training of safety-related railroad
employees shall submit its training program to FRA for review and