different rule, this provision permits the option to reduce redundancy.
This proposed option is based on the statutory provision allowing the
agency to ``exempt railroad carriers and railroad carrier contractors
and subcontractors from submitting training plans for which [FRA] has
issued training regulations before the date of enactment of the Rail
Safety Improvement Act of 2008.'' 49 U.S.C. 20162(c). However, FRA
notes that this proposed exemption does not go as far as the statutory
authority allows. FRA is only exempting an employer from submitting a
program or plan if the existing training regulation requires submission
of that program or plan. For purposes of this proposed requirement, FRA
considers ``submission'' to have the broader meaning of including those
programs or plans that are required to be maintained on an employer's
property for review and inspection by FRA representatives. FRA is
reluctant to consider exempting employers from submitting training
programs or plans required by existing training regulations that lack
some kind of ``submission'' requirement as doing so could compromise
the quality of submissions under this proposed rule. Additionally, some
of those programs or plans that were previously submitted may be
missing an OJT component. If so, this proposal specifies that ``[w]hen
any such similar program or plan did not include the OJT components
specified in paragraph (a)(3) of this section, the employer shall
supplement its program in accordance with this part by providing that
additional information.'' As mentioned earlier, OJT is one of the

weakest parts of most training programs, and FRA will focus its review
of training programs to ensure that the OJT components are well-thought
out and structured. Examples of other FRA training requirements that an
employer may choose not to resubmit are those located in Sec. Sec.
214.307, 217.9, 217.11, 218.95, 236.905, and 240.101.
    Paragraph (c), as proposed, would require that an employer include
a description in the program if it arranges job-related practice and
practice related feedback sessions. These types of practice and
feedback sessions are not as structured or comprehensive as OJT, but
these sessions could provide useful additional experience. Depending on
the job, job-related practice and practice related feedback sessions
may be safely conducted with or without qualified instructors or
mentors to assist the training participant. An employer who utilizes
such practice is required to address the practice in the training
program required under this proposed part.
    Please note that FRA is concerned that some employers may currently
believe that job-related practice and practice related feedback
sessions are the same thing as OJT; for purposes of this proposed rule,
they are not. This rule includes specific requirements for OJT that
puts it in the formal training category, i.e., with a structured and
defined curriculum. Job training that occurs in the workplace without
meeting the specific proposed regulatory requirements for OJT may still
be adequate for some training purposes. This type of informal job
training is what FRA considers job-related practice and practice
related feedback sessions. Although job-related practice and practice
related feedback sessions may have some formality to them and would add
value to the training participant's experience, these informal practice
sessions should not be confused with OJT as defined and required under
this proposed rule.
    Finally, paragraph (d) serves as a reminder to any employer
submitting a program that 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. Generally,
FRA will require hands-on training if the training participants are
expected to learn how to perform a safety-related task. The hands-on
portion of the training could occur in a classroom, on a simulator, in
a laboratory, or as OJT. Arranged practice and feedback is often an
integral part of classroom, laboratory, and simulator training. For
some occupational categories or subcategories, lecture that
incorporates practice and feedback sessions may provide enough training
to consider the person trained. For occupational categories and
subcategories where OJT is required any person submitting a program
that does not contain an OJT component meeting the proposed
requirements is likely to receive feedback from FRA that the program is
inadequate in this regard.
Section 243.105 Optional Model Program Development
    During the RSAC process, FRA expressed that it wanted to encourage
the development of model training programs that could be used by
multiple employers. There are several reasons why model programs are
desirable as an option. Smaller entities may struggle with the costs
and burdens of developing a program independently; thus, a model
program could reduce the costs, especially for smaller businesses. For
instance, in the context of locomotive engineer training and
certification programs required pursuant to 49 CFR part 240, FRA has
worked with ASLRRA in developing model programs for use by short line
and regional railroads. Furthermore, there are economies of scale that
benefit FRA in helping organizations, associations, and other
businesses to develop model programs that may be adopted by other
entities. That is, the more businesses that adopt model programs, the
fewer the number of programs FRA would need to closely scrutinize in
the review process. FRA is willing to provide early and frequent
feedback to any entity producing a model program. In that way, FRA can
ensure that each model program will contain all of the necessary
components to a successful program and can be implemented by multiple
businesses with little fear of rejection during the program submission
and approval process.
    Paragraph (a) proposes an option that would permit any
organization, business, or association to submit one or more model
programs to FRA for later use by multiple employers. In addition to
short line and regional railroads, FRA encourages similar types of
contractors to submit model programs possibly developed by a common
association. In some instances, FRA could foresee that several
employers may hire an organization, such as a training organization or
learning institution, to develop a model program for those multiple
employers to submit to FRA. FRA notes that the model program would be
the program for any employer that chooses to submit it, and it is not a
program submitted on behalf of the training organization, business, or
learning institution that developed the program. Another possibility is
that one railroad or contractor develops a program for its own use that
it later allows other entities to copy. FRA expects that some
organizations, businesses, and associations may take a proprietary
interest in any model program it develops; however, FRA would hope that
the costs imposed on small entities would be reasonable. Although FRA
does not intend to draft and develop programs for employers to use, FRA
intends to provide guidance to any person or entity in the development
of model or individual employer programs.
    Paragraph (a)(1) proposes a requirement that each model program be
submitted with a unique identifier associated with the program. If no
unique identifier is submitted, FRA proposes that it will assign a
unique identifier. FRA proposes this requirement so that it will be
easier for FRA to track which railroads and contractors have adopted
specific model programs. For example, a model program identifier may
include the abbreviation or acronym of the organization, business, or
association that developed it and a number or descriptive phrase that
helps identify it. Examples of unique identifiers could be: ASLRRA-1,
ASLRRA-Part 240, ASLRRA--Conductor, ASLRRA--Short line, ASLRRA--
Regional Railroad, NRC--Signal Maintenance, NRC--Locomotive Repair, or
NRC--Track Maintenance.
    Paragraph (a)(2) proposes to require that each model program
associated with the organization's unique identifier shall include all
information required by Sec.  243.103. This requirement means that each
model program must be able to stand on its own and contain all of the
same training components as required for an employer's program.
    In paragraph (b), FRA proposes that each employer submit the unique
identifier for the model program along with all other information that
is specific to that employer or deviates from the model program. FRA
would prefer that each model program standardize as many of the
components as possible and that each employer that adopts a model
program would try to limit the number of provisions it deviates from
the model program to a minimum. FRA understands that some components of
a model program could be left blank so that each employer may enter
information that individualizes

the program to suit that employer's training regimen. In other
instances, an employer may want to customize a portion of a model
program. FRA would like to encourage an employer that submits a program
based on a model program previously approved by FRA, not to submit the
entire program to FRA; doing so would be duplicative and defeat part of
the purpose of approving model programs.
Section 243.107 Training Program Submission, Introductory Information
Required
    In proposed paragraphs (a) through (c), FRA requests specific
information from each employer submitting a program. The information
requested is intended to give FRA some introductory information that
the agency will need to understand the employer's approach to training.
The information required in these paragraphs is intended to help put
the training components in the program in some context before a
reviewer reads the finer details of each component. For example, FRA
might want to more closely scrutinize a small railroad's training
program if the program states that the employer primarily conducts the
training of its own safety-related railroad employees using its own
resources. The reason that information may raise a concern is that
smaller railroads would not always have qualified instructors to
implement all the different types of training required by the Federal
laws, regulations, and orders.
    The RSAC members will recognize that this section follows their
recommendation and that the rest of the RSAC's recommended Sec.
243.107 has been placed in Sec.  243.109 in order to improve the
organization and readability of these proposed requirements. Because
the RSAC's recommended Sec.  243.107 was split into two sections, FRA
renumbered the remaining RSAC recommended sections found in this
proposed subpart.
Section 243.109 Training Program Submission, Review, and Approval
Process
    As mentioned at the end of the analysis to the previous section,
FRA accepted the intent of the RSAC recommendation that forms the basis
for this section; however, FRA has not accepted the RSAC recommendation
verbatim. There were several undefined terms that a more general
audience than the RSAC membership that helped devise the recommendation
might find ambiguous. For instance, in drafting this proposed rule, FRA
found that it was confusing to understand the difference between what
RSAC and FRA meant by a ``new program'' versus an ``initial program.''
Another example of an undefined term in the RSAC recommendation was
``informational filing;'' there were discussions about what that term
meant, but the RSAC did not define the term in its recommendation.
Thus, FRA has given meaning to the term ``informational filing'' in the
proposed regulatory text and set it apart from other types of revisions
to an existing program.
    Additionally, FRA attempts to improve on the clarity of the RSAC
recommendation by reorganizing the regulatory text. Anyone who has
reviewed the RSAC recommendation will recognize that most of the
language in this proposed section is derived directly from that
recommendation, but that the order of the regulatory text differs. FRA
seeks comment on whether the section is easier to understand and
whether the section adequately addresses each possible scenario for
employers filing initial or revised programs. In the analysis of each
paragraph, FRA describes the relationship of the proposed paragraph to
the RSAC recommendation to help anyone who has reviewed the RSAC
recommendation understand how the proposed section was derived from
that recommendation.
    Paragraph (a) proposes three processes for approving different
types of initial programs. First, paragraph (a)(1) addresses the issue
of how employers must address apprenticeship, or similar intern
programs, that have begun prior to submission of the employer's initial
program filed in accordance with this part. RSAC recommended that FRA
address this situation so that those persons who had already started an
apprenticeship-type training program would know that their training
would not be mooted by this proposed regulation. During the RSAC
deliberations, there were general concerns raised that some long term
training might be initiated prior to a training program submission and
that, when reviewed in the context of the rest of the employer's
initial program, the long term training would not meet the employer's
program requirements. In some instances, it may be possible to revise
an apprenticeship or similar long term intern program that has already
begun; in other instances, changing the apprenticeship program would be
prohibitively expensive or logistically difficult. RSAC recommended and
FRA accepts the premise that as long as the apprenticeship-type
training program is described in the employer's initial program, that
apprenticeship or similar intern program may continue unless FRA
advises the employer of specific deficiencies. FRA also accepts the
RSAC recommendation regarding what action should be taken when specific
deficiencies are found; however, instead of a reference to another
paragraph in this section, FRA proposes that the process be contained
in this paragraph so that it is easier for readers to follow. Thus, the
paragraph includes the provision that the employer must take action to
resubmit the portion of its program that FRA found deficient within 90
days of notification and that a failure to resubmit the program with
the necessary revisions shall be considered a failure to implement a
program under this part. Furthermore, FRA may extend this 90-day period
based on a written request. The purpose of creating a deadline for
action is to ensure that training programs are eventually corrected to
address deficiencies found by FRA. There may be instances when an
employer disagrees with an FRA finding of a deficiency and 90 days will
typically provide sufficient time for the employer to set up a meeting
with FRA to try and resolve any differences. If more than 90 days are
needed, FRA could unilaterally extend the deadline or entertain a
written request from the employer. Paragraph (a)(1) is modeled after
Sec.  243.107(f) and (g) of the RSAC recommendation.
    Paragraph (a)(2) proposes to consider an employer's initial
training program, as required by Sec.  243.101(a), approved immediately
upon submission to the Associate Administrator. The Sec.  243.101(a)
programs will be the first programs submitted by each employer in
operation one year and 120 days after the effective date of this final
rule. Hence, once this type of program is submitted, it is proposed
that the employer may implement the initial program without waiting for
approval. RSAC recommended, and FRA agrees, that there is a legitimate
expectation that there will likely be few programs that will be
completely unacceptable. Instead, the expectation is that some programs
will be missing pieces of information or lacking in some required
components. Those employers who FRA determines will need to improve a
program to address a deficiency will do so through a proposed process
of resubmission with the Associate Administrator. FRA rejected the
option to require implementation only after FRA approval as many RSAC
members explained that it would be economically and logistically
difficult to comply with such a requirement. FRA also does not

want to hold up the implementation of an entire training program for
problems that may only affect some occupational categories of safety-
related railroad employees, or may be a minor issue that can be
addressed and corrected at a later date. Paragraph (a)(2) is modeled
after Sec.  243.107(d) and (g) of the RSAC recommendation.
    Paragraph (a)(3) proposes to consider an employer's initial
training program, as required by Sec.  243.101(b), differently than
those initial programs filed under Sec.  243.101(a). The differences
between these two types of initial programs are that Sec.  243.101(b)
employers are those that commence operations one year and 120 days
after the effective date of this final rule (instead of before that
date) and Sec.  243.101(b) requires submission of the program at least
90 days prior to commencing operations (while Sec.  243.101(a) applies
to employers already in operation). Paragraph (a)(3), which is modeled
after Sec.  243.107(e)(2) and (h) of the RSAC recommendation, proposes
a precautionary approach with employers commencing operation
significantly after the effective date of this rule to ensure each
training program meets the regulatory requirements prior to
implementation. As the employer will be required to file the program at
least 90 days prior to commencing operations, FRA should have
sufficient time to review the program before the employer would have a
great need to implement its training program. Employers who need FRA to
expedite review of a training program may contact FRA and alert the
agency to the employer's reasons for requesting that FRA's review be
completed by a certain date. Although FRA is under no proposed
requirement to complete its review by any deadline, FRA has no
intention of delaying the employer's anticipated date of commencing
operations and will attempt to meet all reasonable requests for
expedited review.
    Paragraph (b) introduces the proposed concept of an annual
informational filing requirement. The concept is modeled after Sec.
243.107(i) of the RSAC recommendation. FRA accepts this RSAC
recommendation over the alternative option which would require programs
to be constantly revised, resubmitted, and reviewed for approval on
many routine matters. For instance, FRA expects that nearly every year
there will be new safety-related Federal railroad laws, regulations, or
orders issued, or new safety-related technologies, procedures, or
equipment that are introduced into the workplace. Each of these
circumstances would create new knowledge requirements or safety-related
tasks that would need to be addressed by amending a previously approved
program. FRA proposes that an employer that modifies its training
program for these reasons shall submit an informational filing to the
Associate Administrator not later than 30 days after the end of the
calendar year in which the modification occurred, unless FRA advises
otherwise either to individual employers, one or more group of
employers, or the general public. Depending on the situation, FRA may
decide that an information filing is unnecessary and may advise
individual employers or groups of employers through an association of
that decision when contacted by the employer or association. At other
times, FRA may want to publish a statement on its Web site, or as a
safety advisory or other guidance document in the Federal Register.
Informational filings will be considered approved upon modifying the
program and may be implemented immediately without explicit FRA
approval. However, FRA expects to audit programs occasionally and
proposed paragraph (b) puts employers on notice that FRA may disapprove
an informational filing in the same manner as specified in paragraph
(a)(2) of this section. Although this annual requirement would have
costs of its own, it is expected that this option would save employer
and agency resources over the alternative option.
    Furthermore, paragraph (b) proposes requirements for what
information must be included in an informational filing. In addition to
including any substantive changes, which may include pages to be
substituted in the previously approved program, FRA proposes a
requirement that the filing contain a summary description of sufficient
detail that FRA can associate the changes with the employer's
previously approved program. The summary description should be
considered the equivalent of an executive summary or roadmap to the
changes made to the program.
    Proposed paragraph (b)(4) is intended to address the circumstances
where a previously approved model program is revised through an
information filing. The RSAC agreed to FRA's recommendation that a
process be required to revise a model program without causing each user
of that model program to submit a similar filing. FRA is not looking to
take enforcement action against developers of model programs; e.g., FRA
does not intend to impose a liability on an organization, business, or
association that has an approved model program on file with FRA but
fails to inform each employer who requested the right to use the
affected training program of the changes and the need for the employer
to comply with those changes that apply to its operation. However, FRA
would like the developers of model programs to describe how they
informed their clients or constituents of the informational filing so
that FRA can gauge whether the notification was adequate under the
circumstances. Without adequate notification, compliance cannot be
expected, and individual employers may not have sufficient opportunity
to inform FRA of a different approach.
    FRA seeks comment on whether the regulation should address any
issues arising from model program developers that are no longer
actively updating their programs. For instance, an organization,
business, or association that has an approved model program on file may
voluntarily decide that it is too great a burden to continue updating
the program, or may go out of business or disband. Each employer that
has relied on the model program for its submission is ultimately
responsible for its program and will need to ensure that any required
updates are made. In some instances, the employers relying on the model
program may band together and find an alternative way to continue
updating the model program.
    Paragraph (c) proposes how an employer can revise a training
program that has been previously approved. The proposed requirement
would allow substantial additions or revisions to a previously approved
program to be considered approved and implemented immediately upon
submission. For example, a program is considered revised if the
employer adds any occupational categories or subcategories of safety-
related railroad employees to the training program. Most other changes
to an existing program would not be considered a substantial addition
or revision but instead would likely require only an ``informational
filing'' under proposed paragraph (b). FRA has adopted the RSAC's
recommendation that there is no reason to hold up implementation of new
portions or revisions to an approved program as FRA can require
problems to be fixed after submission. The process for review following
submission is the same process for initial programs filed under
paragraph (a)(2) of this section. Paragraph (c) is modeled after Sec.
243.107(e) and (e)(1) of the RSAC recommendation.
    In several paragraphs in this section, FRA proposes a process for
review that allows immediate implementation upon submission but
explains that FRA will inform the employer as to whether the program or
program revisions conform

to this regulation. Once specific deficiencies are identified by FRA,
it is proposed that the employer will be required to take action to
correct the deficiencies within 90 days. As some training that has
already been initiated may have deficiencies, FRA accepts the RSAC's
recommendation not to nullify that training. Thus, the proposed process
would permit the deficient portions of the non-conforming program to
remain in effect until approval of the revised program, unless FRA
provides notification otherwise. Presumably, FRA may take exception to
large gaps or deficiencies in training and require the nullification of
such seriously deficient training. However, in most instances, FRA
would expect the deficiencies to be more minor in nature such that
nullification of training would be too severe a reaction. Where the
deficiencies are more minor in nature, FRA may ask that an employer
simply plug any gaps in training identified rather than nullify the
training already conducted.
    Another issue involving the review process that is proposed in
several paragraphs in this section is that a failure of an employer to
resubmit a program with the necessary revisions shall be considered a
failure to implement a program under this part. FRA would consider this
to be a serious issue of non-compliance if the employer is continuing
to train safety-related railroad employees using the rejected
portion(s) of the program. The process FRA is proposing allows for a
90-day period for an employer to respond with a program resubmission if
FRA receives a written request. FRA will liberally exercise discretion
in granting reasonable requests for an extension. FRA would expect
reasonable extension requests to include any basis for requesting the
extension and a new deadline by which the employer expects to be able
to resubmit. FRA is requiring that the extension be in writing so that
the parties can establish when the request was made.
    Proposed paragraph (d) is modeled after Sec.  243.107(j) and (k) of
the RSAC recommendation and flows from the intention to include
representatives of railroad labor organizations involved in the program
approval process. The proposed requirement is for railroads only, not
contractors. By requiring that the president of each labor organization
that represents the railroad's employees be simultaneously served with
a copy of any submission, resubmission, or informational filing, the
regulation is ensuring that employee representatives will have a timely
opportunity to participate in FRA's review and approval process. To
ensure that this requirement is met, FRA has proposed that the railroad
include a statement affirming that service has been completed and the
details of who was served. Commenters may wish to address whether this
requirement is necessary or should be expanded to include contractors.
    Proposed paragraph (d)(2) requires that each railroad labor
organization has up to 90 days to file a comment. The reason for the 90
day deadline is that FRA would like to send approval notification to
railroads in a timely fashion. Without a deadline for comments, the
approval process would seem open ended. However, FRA realizes that,
from time-to-time, a labor organization may find something
objectionable in a previously approved program, and FRA encourages
those types of comments as they are discovered. When a labor
organization discovers an objectionable issue outside of the required
90 day window, FRA would still accept the comment and review the issue
to see whether a revision to the training program is warranted.
Depending on when the comment is raised outside of the 90 day review
cycle, FRA could consider whether to grant the employer some leeway in
revising and implementing any necessary conforming change to the
program. For example, if training is well under way for that year, it
may be suitable to allow the employer to accommodate the late comment
in its training for the next year, if any accommodations are required.
Section 243.111 Approval of Programs Filed by Training Organizations or
Learning Institutions
    Although the statutory mandate in 49 U.S.C. 20162 does not mention
how to treat training organizations or learning institutions that train
safety-related railroad employees, FRA accepts the RSAC's
recommendation in proposing requirements for FRA to review and approve
programs from such organizations or institutions. As proposed,
employers will always have the obligation to submit training programs
to FRA for approval and will not be relieved of that obligation just
because the employer uses a training organization or learning
institution with an approved program. Some of those employers may
choose to have one or more training organization or learning
institution train one or more type of occupational category or
subcategory of employee. Other employers may use such outside trainers
only for particular training courses while providing other courses
``in-house,'' i.e., training by designated instructors directly
employed by the employer. Additionally, other employers may
intermittently or regularly hire safety-related railroad employees who
have been previously trained by training organizations or learning
institutions and view such hiring as a cost-effective or efficient way
to avoid the burden of providing initial training. Furthermore, some
individuals may wish to pay their own way to get trained in a
particular occupational category or subcategory of safety-related
railroad employee--most likely with the hope that the training will
boost the person's chances of gaining employment.
    FRA's purpose in proposing this section is to facilitate the option
of using training organizations or learning institutions. An employer
that intends to implement any training programs conducted by some other
entity [such as a training organization or learning institution], or
intends to qualify safety-related railroad employees previously trained
by training organizations or learning institutions, has a proposed
obligation to inform FRA of that fact in the employer's submission. If
FRA has already approved the training organization or learning
institution's program, an employer could reference the approved program
in its submission, avoid lengthy duplication, and likely expect a quick
review and approval by FRA.
    Individuals or employers that use training provided by training
organizations or learning institutions need assurances that the
training will meet or exceed FRA's requirements prior to incurring any
training expense. Without such assurances, an individual or employer
may determine that paying for such training is not worth the risk.
Meanwhile, FRA would benefit from approving this type of training
program as it will lead to greater efficiencies in FRA's review and
approval process. Thus, proposed paragraph (a) requires that a training
organization or learning institution that provides training services
for safety-related railroad employees, including providing such
training services to independent students who enroll with such training
organization or learning institution and who will rely on the training
services provided to qualify to become safety-related railroad
employees, must submit its program for review and approval.
    Although paragraph (b) proposes a one year grace period for an
existing training organization or learning institution, FRA deems it
essential that each training organization and learning institution
obtain FRA approval prior to the expiration of that grace period. FRA

hopes that extensions of this grace period will not be necessary, but
it has proposed an explicit process for granting such an extension
rather than merely relying on the waiver process proposed in Sec.
243.7. It is proposed that entities that intend to request extensions
do so in writing and include an explanation of any factors that the
entity wants FRA to consider before deciding whether to approve the
request.
    FRA has had significant interaction with some of the largest
training organizations and learning institutions that currently train
safety-related railroad employees. These large organizations are mainly
training facilities found within an accredited college or run by a
major railroad. In FRA's experience, the training provided at these
types of large organizations is of a high caliber. Although FRA can
foresee some minor deficiencies with the approval of individual
components within the training programs that would be filed by some of
these large organizations, FRA does not anticipate significant
deficiencies because these programs are currently well-developed and
comprehensive.
    In contrast, FRA has less experience and greater concern with
smaller organizations or new businesses that may start-up in response
to any demand for training services as a result of promulgation of this
rule. Prior to approval, FRA may want to tour an organization's
facilities and discuss the details of program implementation with the
organization to ensure that compliance with the program can be
reasonably accomplished. A smaller organization will have a greater
chance of program approval if it accurately characterizes its ability
to offer training services.
    Paragraph (c) proposes that a program submitted by a training
organization or learning institution must include all information
required for an employer's program in accordance with this part, unless
the requirement could only apply to an employer's program. This
sentence mainly refers to the requirements found in Sec. Sec.  243.101
and 243.103. In addition, this paragraph contains a list of proposed
requirements that only pertain to a training organization or learning
institution's program. The list of proposed requirements is intended to
ensure that FRA can: contact and audit the organization; review the
names and resumes of any designated instructors; gauge the training
organization's or learning institution's experience in the training
field by contacting references of previous or current employer
customers; and understand the methodologies the training organization
or learning institution used during development of the training
courses. Without this additional information, it would be difficult for
FRA to evaluate whether the organization could effectively implement
its training program.
    Paragraph (d) proposes that, except for the grace period allowed in
paragraph (b), FRA will not consider training by a training
organization or learning institution to satisfy the requirements of
this part until FRA has approved the training organization's or
learning institution's program. With the grace period provided, each of
these organizations should have sufficient time to submit a training
program and have it reviewed by FRA without disrupting its training
business. Because these organizations may train employees for multiple
employers, there could be a substantial negative impact on the industry
if these organizations were allowed to train employees prior to FRA
completing its review and approval process. That is, many employees
could be trained ineffectively, or without covering all the Federal
requirements, if FRA were to allow program implementation immediately
upon submission; once such initial defective training occurred, it
would take years to correct through refresher training and could
potentially lead to unsafe actions. Furthermore, once each of these
organizations have had a training program approved, employers that rely
on any of these organizations' training will greatly benefit from being
able to rely on the approved program in the employer's own program
submission.
    In accordance with paragraph (b) and (d), a training organization
or learning institution that offers one or more apprenticeship or
similar intern programs to individuals not associated with an employer
will need to assess the viability of those programs in progress as of
the effective date of this rule. The paragraph (b) exception proposes
to allow apprenticeship or similar intern programs to continue, prior
to acceptance by FRA, for a period not to exceed one year. It is
expected that any such apprenticeship or similar intern programs would
be described in the training organization's or learning institution's
program submission so that it could be explicitly approved and
continued. If an apprenticeship or similar intern program that began
prior to the effective date of the rule is scheduled to continue for a
period to exceed one year after the effective date of the rule, the
proposed rule would require the training organization or learning
institution to address any deficiencies raised by the Associate
Administrator prior to concluding completion of such an apprenticeship
or similar intern program. FRA would appreciate comments on this
proposal and whether other approaches may offer better alternatives.
For example, FRA is willing to consider an option similar to the one
offered in in Sec.  243.109(a). Paragraphs (e) and (f) propose
requirements for each training organization or learning institution
that has an existing training program approved by FRA but wants to
modify, revise, or add to it. The procedures in paragraph (e) propose
criteria for when an informational filing is required and provide
procedures that mirror the procedures required for employers under
similar circumstances as found in Sec.  243.109(b). Thus, the many
listed reasons to update existing training courses and program
information will only require an annual information filing and will not
require that each training organization or learning institution file a
modification to a program each time it makes one of these types of
modifications to its program. The RSAC recommended that FRA allow each
training organization or learning institution to use this type of
informational filing concept, but the wording differs from the
recommendation in order to conform to the applicable language required
of each employer.
    Paragraph (f) is largely based on a recitation of paragraph (d) of
this section. The concept behind paragraph (f) is that when a training
organization or learning institution makes one or more substantial
revisions to a program of the type that cannot be considered an
informational filing, the revision should be treated in the same manner
as an unapproved program. FRA believes that the RSAC recommendation
unintentionally neglected to distinguish between informational filings
and non-informational filing modifications. For example, if a training
organization or learning institution with an approved plan decided to
train a category of employee not previously covered in its program,
that modification would be considered the equivalent of an employer
submitting a ``new or revised'' program. FRA does not want to consider
such substantial modifications to be deemed automatically approved upon
filing as it does for informational filings. Without such additional
scrutiny, a training organization or learning institution could file a
program for initial FRA approval covering training for a single
occupational category or subcategory of safety-related railroad
employee and add an infinite number of training courses for any number
of other

categories of employee without having to acquire specific FRA approval.
FRA never intended to provide that much discretion to each training
organization or learning institution because FRA is concerned that some
of these organizations and institutions are unfamiliar to FRA and would
demand greater scrutiny to ensure these businesses have the capability
to achieve their stated goals.
    In paragraph (g), FRA adopts an RSAC recommendation to require each
training organization and learning institution subject to this part to
maintain records for each safety-related railroad employee that attends
the training, in accordance with the recordkeeping requirements of this
part. This requirement means that these organizations must keep the
same information required in Sec.  243.203. The information should be
shared directly with the employer, so that the employer can maintain
its own records adequately. However, in the event of an FRA audit, FRA
would be able to ensure that the employer's records matched with the
training organization's or learning institution's records.
    Paragraph (h) proposes that each training organization and learning
institution subject to this part must provide a student's training
transcript or training record to any employer upon request by the
student. This provision would mainly apply to situations in which a
person directly pays an organization for training outside of a normal
employer/employee work relationship. In that type of situation, it is
imperative that the organization cooperate with the [former] student so
that the person can prove to prospective employers that he or she was
trained. In the case of safety-related railroad employees currently
employed by employers with approved programs, the employer is required
pursuant to proposed Sec.  243.203(d)(2) to make an employee's records
available during normal business hours for inspection and copying/
photocopying to that employee, former employee, or such person's
representative upon written authorization by such employee.
Section 243.113 Option to File Program Electronically
    This section proposes the option for any employer, training
organization, or learning institution to which this part applies to
file any program submissions electronically. FRA intends to create a
secure document submission site and will need basic information from
each company before setting up the user's account. The points of
contact information in proposed paragraph (b) are necessary in order to
provide secure access.
    Proposed paragraphs (c), (e), and (f) are intended to allow FRA to
make the greatest use of an electronic database. It is anticipated that
FRA may be able to approve or disapprove all or part of a program and
generate automated notifications by email to an entity's points of
contact. Thus, FRA wants each point of contact to understand that by
providing any email addresses, the entity is consenting to receive
approval and disapproval notices from FRA by email. Entities that allow
notice from FRA by email would gain the benefit of receiving such
notices quickly and efficiently.
    Proposed paragraph (d) is necessary to provide FRA's mailing
address for those entities that need to submit something in writing to
FRA. For those entities requesting electronic submission, the list of
information specified in proposed paragraph (b) is required. Otherwise,
those entities that choose to submit printed materials to FRA must
deliver them directly to the specified address. Some entities may
choose to deliver a CD, DVD, or other electronic storage format to FRA
rather than requesting access to upload the documents directly to the
secure electronic database; although this will be an acceptable method
of submission, FRA would encourage each entity to utilize the
electronic submission capabilities of the system. Of course, if FRA
does not have the capability to read the type of electronic storage
format sent, FRA can reject the submission.
    FRA requests comments on whether this section should address the
submission of proprietary materials or other materials that an entity
wishes to keep confidential. FRA expects that it could develop its
secure document submission site so that confidential materials are
identified and not shared with the general public. However, FRA seeks
comments on whether that extra step is truly necessary. FRA does not
expect the information in a program to be of such a confidential or
proprietary nature. For instance, each railroad is expected to share
the program submission, resubmission, or informational filing with the
president of each labor organization that represents the railroad's
employees subject to this part. See 243.109(d). It would be expected
that information that needed to be kept private would need to be
removed prior to sharing that programmatic material with the labor
organization. FRA suggests that entities consider this concern when
drafting any programmatic material to be submitted to FRA and that each
entity takes its own steps not to share such private material with FRA.
In that way, FRA may make such programmatic material available to the
general public upon request.
    Finally, FRA is considering whether to mandate electronic
submission and only permit filing in writing based on a waiver request.
FRA is strongly leaning toward finalizing this option because the
agency will be devoting significant resources to develop the electronic
submission process. It will be more costly for the agency to develop
the electronic submission process and have to upload written
submissions into the electronic database itself. FRA expects that there
are few, if any, employers who do not have Internet access and an email
address, or who cannot otherwise meet the minimum requirements for
electronic submission. FRA requests comments on whether mandatory
electronic submission is objectionable to any person or employer.

Subpart C--Program Implementation and Oversight Requirements

    Once a program has been approved by FRA, it is proposed that each
employer will have to comply with the requirements of this subpart. The
subpart includes both implementation and oversight requirements. Some
requirements apply only to railroads, and others to both railroads and
contractors. Additionally, it is proposed that each training
organization and learning institution will be required to maintain
records as evidence of completed training.
Section 243.201 Employee Qualification Requirements
    This proposed section includes an exemption for existing employees
to be designated for a particular occupational category or subcategory
without further training, provides procedures for qualifying those
employees that are not exempted by the employer for a particular
occupational category or subcategory, and requires each employer to
deliver refresher training. Prior to the RSAC Working Group reaching
the recommendation on which this proposed section is based, the Working
Group had extensive discussions about other options. For example, FRA
initially proposed to the Working Group that existing employees should
not be exempted, i.e., designated, without records proving the employee
is trained or without checking that the employee is actually qualified
to do the safety-related tasks. This option faced resistance from RSAC
members representing both labor and management. Labor representatives

asked that FRA consider a straightforward exemption because the statute
called for training regulations, not a certification rule that could be
used by employers to disqualify those employees who are currently
qualified. It was argued that, by requiring the passing of tests or
observed compliance with certain safety-related tasks, FRA would be
providing unscrupulous supervisors with a federally endorsed method of
firing perfectly capable employees. The management representatives
thought that, without a straightforward exemption, the designation
requirements would be overly burdensome. The employers generally
believed that they would not have training records for many employees
that would be detailed enough to satisfy FRA's concerns, and they
collectively believed that setting up knowledge and field tests to
confirm each employee's qualification for each task would be an
extensive undertaking.
    In proposing this section, FRA agrees with the criticism leveled at
the options discussed in the RSAC meetings. FRA's intention is to
ensure that all safety-related railroad employees receive proper
initial training if previously unqualified, and that all previously
qualified employees receive refresher training at regular intervals to
ensure continued compliance. FRA encourages each employer to find ways
to provide remedial training and retesting of any employee that fails
to successfully pass any training or testing. Under this proposed part,
a failure of any test or training does not bar the person from
successfully completing the training or testing at a later date. Of
course, FRA does not regulate employment issues and will leave those
issues to be settled in accordance with any applicable collective
bargaining agreement or employment and labor law.
    Paragraphs (a) and (b) propose requirements for each employer to
declare the designation of each of its existing safety-related railroad
employees by occupational category or subcategory, and only permit
designated employees to perform safety-related service in that category
or subcategory. The main difference between the two paragraphs is that
(a) applies to each employer in operation as of one year and 120 days
after the effective date of this rule and (b) applies to each employer
commencing operations after that date. In the case of employers in
operation pursuant to paragraph (a), the deadline for designation is
two years after the effective date of this rule. In the case of
employers commencing operations in accordance with paragraph (b), the
deadline for designation of employees existing at the time of
commencing operations is prior to the commencement of those operations.
Paragraph (a), proposes that FRA may specifically grant an extension
for employers in operation to comply with the designation requirements
as long as that request is in writing.
    In order to close a potential loophole, a slight modification was
made to paragraph (a) from the RSAC's recommendation. That is, the
proposed rule adds language in paragraph (a) that makes this
requirement applicable to each employer, in operation ``as of [DATE ONE
YEAR AND 120 DAYS AFTER EFFECTIVE DATE OF THIS RULE].'' Without the
addition of that language, if an employer began operations after the
effective date of the rule but before 1 year and 120 days after the
effective date of the rule, the employer would not have to comply with
either paragraph (a) or (b). During the RSAC meetings, no member ever
expressed the intention to create such a loophole and FRA would not
have supported the recommendation if it had identified it during the
RSAC process.
    Paragraph (c) proposes two conditions for qualifying a safety-
related railroad employee who, after the employer's designation in
accordance with paragraphs (a) and (b), is newly hired or is to engage
in a safety-related task not associated with the employee's previous
training. The first condition can be summarized as successful
completion of all training and examinations required to do the work. As
each employer's program must identify the training components pursuant
to 243.103, including course information and the kind of assessment,
paragraph (c)(1) reinforces that compliance with the program is
necessary for each safety-related railroad employee who is not
previously trained. Similarly, paragraph (c)(2) reinforces that
compliance with the OJT portion of the program is necessary for each
safety-related railroad employee who is not previously trained, if the
training curriculum for that occupational category or subcategory of
employee includes OJT. This paragraph also proposes that not all tasks
required by OJT need to be performed under the direct onsite
observation of a qualified instructor. Instead, FRA proposes to accept
the RSAC recommendation that OJT may generally be provided under the
observation of a ``qualified person,'' who obviously could be an
instructor but does not have to be an instructor. In such instances,
the qualified person must be advised of the circumstances and be
capable of intervening if an unsafe act or non-compliance with Federal
railroad safety laws, regulations, or orders is observed. Without this
flexibility, some employers might find it difficult to get employees a
sufficient amount of OJT practice sessions as there may be a shortage
of instructors available for all the direct observations necessary.
However, it should be noted that the employee must demonstrate, to the
satisfaction of a designated instructor, that OJT proficiency has been
achieved before the employee is qualified. That demonstration cannot be
performed by just any qualified person. Thus, this proposed requirement
adds a significant safeguard to ensuring that OJT is completed to a
measurably high level.
    Unlike paragraph (c) which addresses employees not previously
trained, paragraph (d) proposes methods for employer's to avoid
retraining an employee who has received relevant qualification or
training for a particular occupational category or subcategory through
participation in a FRA-approved training program submitted by an entity
other than the employee's current employer. The RSAC recommended that
the regulation address situations where the current record of training
from some other entity is obtainable and when that record is
unavailable. Read in its entirety, if the employee has performed the
relevant safety-related duties in the previous 180 days and has a
current record of training obtained from another entity, retraining
will not be required. Similarly, if the employee has previously
received initial or periodic training from another entity, it is
proposed that the previous training will satisfy the requirements of
this part as long as the previous training occurred within the previous
180 days and the record of that training is obtained from that other
entity. When records of previous training from another entity are
unavailable or it has been more than 180 days since the employee was
either last trained or performed the relevant safety-related duties,
the current employer shall perform testing to ensure the employee has
retained the knowledge necessary to remain a member of that
occupational category or subcategory of safety-related railroad
employee. Paragraph (d)(2) clarifies situations where an employee's
records are unavailable and the employee is tested to determine that
the employee has the knowledge necessary to be a member of a particular
occupational category or subcategory of safety-related railroad
employee under paragraph (d)(1)(ii) of this section. In such cases,
there is no additional testing

requirement if more than 180 days have passed since the employee either
performed the safety-related duties or received initial or periodic
training for an occupational category or subcategory.
    Paragraph (e) proposes that beginning on January 1, two years after
the effective date of this rule (which would likely be January 1,
2015), each employer will be required to deliver refresher training at
an interval not to exceed 3 calendar years from the date of an
employee's last training event, except where refresher training is
specifically required more frequently in accordance with this chapter.
FRA suggested to the RSAC that it could go through FRA's regulations
and standardize the 3 calendar year refresher training requirement, but
some RSAC members disagreed with this option. It was argued that there
are some instances where the refresher training is so important that
refresher training should be required more often than a 3 year cycle.
    Refresher training may not always be a repeat of initial training.
Employees participating in refresher training are expected to have had
both initial training and significant experience applying the knowledge
and skills previously acquired. Refresher training may include
background materials that cover all the essential safety requirements,
but place greater emphasis on more advanced areas or subjects that more
often lead to accidents, injuries, or non-compliance. The proposed rule
requires that each employer ensure that, as part of each employee's
refresher training, the employee is trained and qualified on the
application of any Federal railroad safety laws, regulations, and
orders the person is required to comply with, as well as any relevant
railroad rules and procedures promulgated to implement those Federal
railroad safety laws, regulations, and orders. This requirement
emphasizes that, while the refresher training does not have to mirror
the initial training, it still needs to be comprehensive.
    Paragraph (f) proposes a requirement that an employee designated to
provide formal training to other employees must be qualified on the
safety-related topics or tasks as specified in accordance with the
employer's training program and the requirements of this part. The
purpose of this section is to ensure that unqualified employees are not
tasked by their employers to conduct formal training. The term ``formal
training'' is defined in proposed Sec.  243.5 and includes OJT
instruction; in order to eliminate redundancy, FRA did not include a
reference to OJT instruction as was recommended by RSAC. In addition,
FRA does not believe RSAC intended to preclude an employer from using a
``designated instructor'' who, by definition, has ``an adequate
knowledge of the subject matter under instruction and, where
applicable, has the necessary experience to effectively provide formal
training.'' Consequently, the proposed requirement contains an
exception for designated instructors. FRA also kept the intent of the
RSAC recommendation that, in order to be qualified, an employee must
meet the requirements found in the employer's training program as well
as any requirements of this part; thus, FRA addressed this issue by
adding corresponding language and did not accept the more vague
language in the RSAC recommendation that only referred to ``this
section.''
    FRA seeks comments on paragraph (f) and whether it should continue
to stand alone or should be combined with proposed paragraph (c)(2) of
this section. That is, the proposed paragraph (f) requirement appears
to relate directly to situations in which ``as part of the OJT process
and prior to completing such training and passing the field evaluation,
a person may perform such tasks under the direct onsite observation of
any qualified person, provided the qualified person has been advised of
the circumstances and is capable of intervening if an unsafe act or
non-compliance with Federal railroad safety laws, regulations, or
orders is observed.'' In other words, paragraph (f) provides the
context of what is a ``qualified person'' under paragraph (c)(2) of
this section.
Section 243.203 Records
    An essential requirement of any training program is the maintenance
of adequate records to support that the training was completed. In
paragraph (a) of this section, FRA sets forth the general requirements
for each safety-related railroad employee's qualification status
records and the accessibility of those records. First, in paragraph
(a), FRA proposes that each employer maintain records to demonstrate
the qualification status of each safety-related railroad employee that
it employs. The proposed rule does not specify how many years back the
records must go as the requirement is only to keep those records
necessary to prove the employee is currently qualified. In fact, some
electronic recordkeeping systems may only permit the most recent date
entered to be kept. Thus, the requirement does not include keeping all
training records for each employee in perpetuity.
    Paragraph (a)(1), proposes to require that each employer keep
records for former safety-related railroad employees for a 6-year
period after the employment relationship ends. Those records must be
accessible at the employer's system headquarters. By requiring
employers to keep former employee records, FRA will have adequate time
to obtain records even when an audit and investigation takes places
several years after the employment relationship has terminated. This
recordkeeping requirement is also intended to aid former employees who
want to access their records to prove to a prospective employer that
they received prior training. This proposed record retention
requirement may be especially helpful to any former employees that may
leave the railroading industry for several years, but want to return to
safety-related railroad work within the 6-year time frame.
    Paragraph (a)(2), proposes to require that the records of current
employees be accessible at the ``employer's system headquarters.'' By
using this term, FRA means the main headquarters for any employer,
whether the employer is a railroad or a contractor. A railroad's system
headquarters is defined elsewhere in this chapter as ``the location
designated by the railroad as the general office for the railroad
system.'' 49 CFR 217.4. Railroads may choose to keep those records at
the division headquarters where the employee is currently working, but
it is not proposed as a requirement. For contractors, the records must
also be accessible at the employer's headquarters, but each contractor
may also choose to keep such records accessible at field or branch
offices that have jurisdiction over a portion of the company for easy
accessibility. FRA is requiring that an international employer that has
its main headquarters located in a foreign country must maintain the
records for its employees at whatever location the employer identifies
as its ``main headquarters'' in the U.S. FRA anticipates that most
employers that are not small entities will want to maintain these
records electronically so that the records are accessible everywhere
with a company computer loaded with the appropriate software and an
Internet connection. FRA notes that this proposed section contains
specific requirements for electronic recordkeeping in paragraph (e).
    In paragraph (b), FRA proposes that certain core information be
kept in the records for each current or former safety-related railroad
employee. FRA requests comments regarding proposed paragraph (b)(5),
which requires that the

records indicate whether the person passed or failed any tests
associated with the training. Although this was an RSAC recommendation,
FRA questions whether a person can be deemed to successfully complete a
course as would be indicated in paragraph (b)(4) without passing the
associated tests. If so, then the (b)(5) requirement may be
unnecessary. There is also a question of how useful it is to keep
information regarding test failures, especially after a person has
eventually passed the associated test. FRA is also interested to
receive comments on whether it would be burdensome to keep electronic
records for test failures.
    Paragraph (b)(6) proposes that when the employer accepts training
not provided by the employer, it must keep a copy of the transcript or
appropriate record. The training accepted must be from a business, a
training organization, or a learning institution with an FRA-approved
program. It is not enough to keep a record showing that the training
was done by some other entity; a copy of the transcript or other
appropriate record must be retained by the employer to ensure that the
employer has reviewed the transcript or record, and determined that the
employee took the appropriate courses and successfully completed them.
The RSAC version of this paragraph did not include the reference to
businesses that are not a training organization or a learning
institution. FRA added this reference to other businesses mainly so it
was clear that the obligation is on the employer to obtain and maintain
each employee's training records. In the RSAC recommendation under the
section titled ``railroad maintained list of contractors utilized,''
RSAC had suggested that each railroad that trains some or all safety-
related employees of a contractor must maintain a listing that includes
a listing of all contractor employees trained and the courses taken.
After further consideration, FRA has decided not to adopt that
recommendation in Sec.  243.209 and instead has placed the burden on
the employer (e.g. the contractor in the previous sentence) to maintain
the relevant records. FRA's reasoning is that the RSAC recommendation
would have created a redundant recordkeeping requirement.
    Proposed paragraph (b)(7) contains the requirements for recording
OJT for each employee. Just as each course requires a unique name and
identifier, when each OJT program component is recorded, it must
include either a unique name or a unique identifier so that it is clear
exactly which OJT program component was successfully completed.
Although the RSAC did not suggest it, FRA is adding the proposed
requirement that the record include the date the OJT program component
was successfully completed. Without the date requirement, questions
could arise about whether OJT was held contemporaneously with other
related course work. The RSAC agreed that a record should be kept
identifying which trainers, instructors, or supervisors determined that
the employee successfully completed all OJT training necessary to be
considered qualified to perform the safety-related tasks identified
with the occupational categories or subcategories for which the
employee is designated in accordance with the program required by this
part. During audits and investigations, FRA will want this information
to verify that the person making the determination was qualified to do
so.
    Paragraph (b)(8) proposes a separate requirement for the employer
to record the date that the employee's status is determined to be
qualified and the employee is designated to perform the safety-related
duties identified with any particular occupational categories or
subcategories, in accordance with the program required by this part.
Sometimes, this date will be the same date that the formal training
course is successfully completed. In other instances, it will be the
same date as the date that OJT or testing is completed. Whatever date
it happens to be, each employer will need to decide when the person is
qualified to do the work and record that date.
    Paragraph (b)(9) proposes that if an employee's qualification
status was transferred from another entity with an approved program,
the employer must maintain a copy of the training record from that
other entity. The RSAC proposed the same requirement, but mentioned
each type of other entity such as ``another employer or FRA-approved
training organization or learning institution.'' The term ``entity'' is
intended to include all these other types of businesses without
creating a list that could potentially be under-inclusive.
    Finally, paragraph (b)(10) proposes the catchall phrase that if any
additional information is required by this part, the employer needs to
keep that information in its records for each employee.
    Paragraph (c) proposes a 3 year record retention requirement for
any records that are not individual employee records. The records
referred to here would mainly be those kept in accordance with periodic
oversight (Sec.  243.205) and the annual review (Sec.  243.207). The
proposed 3 year window for retention would actually be a bit longer
than 3 years because it would be measured as 3 calendar years after the
end of the calendar year to which the event relates. Thus, if a test
occurred on March 1, 2012, the record would need to be maintained
through December 31, 2015.
    Paragraph (c) also proposes a requirement that any records that are
not individual employee records must be accessible at the system
headquarters and at each division headquarters where the test,
inspection, annual review, or other event is conducted. Although the
language ``system headquarters and at each division headquarters'' may
seem to refer to railroads, the intent is for paragraph (c) to apply to
each employer, regardless of whether the employer is a railroad or a
contractor. As described previously in the analysis to paragraph (a)(2)
of this section, FRA intends the term ``system headquarters'' to have
the same meaning for railroads as in the definition of that term in
Sec.  217.4, and for contractors the term is intended to mean an
employer's main headquarters in the U.S. Regarding the term ``division
headquarters,'' the term should have the same meaning for railroads as
in the definition of that term in Sec.  217.4. In that regulation,
``division headquarters means the location designated by the railroad
where a high-level operating manager (e.g., a superintendent, division
manager, or equivalent), who has jurisdiction over a portion of the
railroad, has an office.'' For contractors, the term ``division
headquarters'' is intended to have a similar meaning to that of a
railroad, but FRA will provide more discretion to each contractor to
identify its division headquarters. Generally speaking, if a contractor
divides its U.S. operations into regional areas that are managed on a
day-to-day basis by one or more high-level managers at a field or
branch office (as opposed to the system or main headquarters), then the
intent of the regulation is to require those regional offices to
maintain accessible records in addition to the maintenance of those
records at the system headquarters.
    FRA seeks comment on whether this language would cause confusion or
should be modified to exempt railroads or contractors from maintaining
such records at division headquarters. As previously discussed in the
analysis to paragraph (a)(2), FRA anticipates that most employers that
are not small entities will want to maintain these records
electronically so that the records are accessible everywhere with a
company computer loaded with the appropriate software and an internet
connection. The electronic accessibility

of records would appear to alleviate the need to require that these
records be kept at each division headquarters. Again, it is worth
noting that this proposed section contains specific requirements for
electronic recordkeeping in paragraph (e).
    Paragraph (d) contains the requirements for each employer, training
organization, or learning institution to make available those records
that it is required to maintain under this part. All such records must
be made available to FRA. Also, an employee's records must be made
available to the employee (whether or not the person is a current
employee or former employee) or any person the employee chooses as long
as the employee provides such authorization in writing. The records
must be made accessible upon request during normal business hours.
Thus, requests made near the close of business on Friday may reasonably
not be retrieved until early the following week, unless the employer
has normal business hours on weekends.
    As with any request for one or more records, the retrieval should
be completed contemporaneously with the request, but with the
understanding that a reasonable amount of time should be afforded the
employer that maintains the record. When the employer maintains the
records electronically, expectations for quick retrieval will be
higher. Although not specified by this proposed rule, it is reasonable
to expect that most records can be made available for inspection and
copying/photocopying during the same day that the request is made. In
some instances, for example, when the person is a former employee who
has not worked at the employer for a few years, it would be
understandable if the record were kept off-site in a warehouse and it
might take a week or more to retrieve the original file. However,
employers are encouraged to scan and electronically maintain records of
former employees (in accordance with proposed paragraph (e) of this
section) to avoid lengthy retrieval delays. Furthermore, the rule is
silent on whether employers and employees may agree to ``copy''
electronic files by sending copies as attachments to an email or saving
the electronic file to some other standardized storage disk or device,
but FRA believes that it should be an acceptable copying practice.
    Paragraph (e) proposes requirements for each employer that chooses
to retain the information prescribed in this section by maintaining an
electronic recordkeeping system. These requirements were adopted by the
RSAC without much debate as they are based on requirements promulgated
in other FRA regulations. FRA notes that the conductor certification
NPRM published slightly different requirements for electronic
recordkeeping on November 10, 2010, and that FRA may want to amend the
requirements in this final training rule to conform to the final
conductor certification standards. 75 FR 69166. FRA invites comment on
these procedures.
    Paragraph (f) proposes a transfer of records requirement with the
goal of preserving training records that might otherwise be lost when
an employer ceases to do business. When an employer ceases to do
business and its assets will be transferred to a successor employer,
there may be a question of whether the successor employer has any
obligation to maintain the records for the employer company it has
acquired. The answer is an emphatic yes. FRA has accepted the RSAC
recommendation that the successor employer shall retain all records
required to be maintained under this part for the remainder of the
period prescribed in this part. As most successor employers would want
to retain at least some portion of the acquired employer's safety-
related railroad employees, it is expected that successor employers
would have an interest in maintaining these records even if there was
no specific regulatory requirement.
Section 243.205 Periodic Oversight
    There are two central purposes to conducting periodic oversight
under a training rulemaking. One central purpose is to take notice of
individual employees who are in non-compliance and to take corrective
action to ensure that those specific employees know how to do the work
properly. In some instances, the employee might need coaching or
retraining, especially if the person has not had much experience doing
the work. In other instances, training may not be an issue and other
remedial action may be appropriate. A second central purpose in
conducting periodic oversight is to look at all of the oversight data
as a whole to detect patterns of non-compliance. The annual review
proposed in Sec.  243.207 is intended to spur such a global review of
training and trigger adjustments that improve the effectiveness of
training courses. Taken together, these oversight and review actions
should lead to significant improvements in compliance and the overall
quality of training programs. The recording of oversight, and the
identification of problem areas, is intended to compel each employer to
focus on how a training course can be improved to place greater
emphasis on the causes of such non-compliance.
    During the RSAC process, FRA initially took the position that each
employer should be required to conduct annual task proficiency
oversight over each safety-related railroad employee. After significant
deliberations, FRA agreed that such extensive oversight would be
costly, burdensome, and potentially overreaching given the statutory
mandate for this rulemaking. This proposed rule contains a compromise
that, while adding costs and burdens, is intended to be narrowly
focused on closely monitoring compliance with the Federal railroad
safety laws, regulations, and orders particular to FRA-regulated
personal and work group safety. These particular compliance issues are
not currently required to be as closely monitored as train movements
and other railroad operations. For that reason, FRA would like to close
that gap and require each employer to conduct periodic oversight
covering compliance with the Federal railroad safety laws, regulations,
and orders particular to FRA-regulated personal and work group safety.
    Paragraph (a) proposes the general periodic oversight provision
and, as explained in the previous paragraph, limits the required
testing and inspection oversight to the Federal railroad safety laws,
regulations, and orders particular to FRA-regulated personal and work
group safety. When FRA discussed this recommended provision with the
RSAC, FRA clarified that the Federal railroad safety laws, regulations,
and orders particular to FRA-regulated personal and work group safety
that FRA is referring to are currently limited to 49 CFR part 214
(Railroad Workplace Safety), part 218 (Railroad Operating Practices),
and part 220 (Railroad Communications). Periodic oversight means
regularly conducting both tests and inspections. In this context, a
test is conducted by a qualified supervisor who changes the work
environment so that one or more employees would need to act to prevent
non-compliance. An inspection involves a qualified supervisor observing
one or more employees at a job site and determining whether the
employees are in compliance. FRA clarifies the RSAC recommendation to
ensure that this provision requires that each employer must ``adopt and
comply with a program'' to conduct the periodic oversight tests and
inspections. FRA does not want to give the impression that the
regulation would only require conducting the periodic oversight without
adopting a written strategy explained in the training program filed

with FRA. FRA proposes that the program of periodic oversight must
commence on the day the employer files its program with FRA; however,
if the employer has not yet commenced operations when the program is
filed, the employer would begin its oversight program on the same day
that it commences operations. Paragraph (a) also reiterates that the
purpose of gathering the data is to determine whether systemic
performance gaps exist, and to determine if modifications to the
training component of the program are appropriate to close those gaps.
    Paragraph (b) proposes to exempt railroads from conducting periodic
oversight under this part on certified locomotive engineers and
conductors as those safety-related railroad employees are already
covered (or will soon be covered) by similar requirements found
elsewhere in this chapter. The intent of the exemption is not to
eliminate locomotive engineers and conductors from tests and
inspections of Federal railroad safety laws, regulations, and orders
particular to FRA-regulated personal and work group safety; instead,
the intent is not to require a duplication of efforts already being
made by railroads under other Federal requirements. Meanwhile, the
results of the assessments required by parts 240 and 242 are required
to be considered in determining if changes in a railroad's training
programs are necessary to close any proficiency gaps found during those
assessments. For example, inspections and tests might reveal that many
locomotive engineers and conductors could have used a railroad-supplied
cell phone during an operation in which the railroad supplied radio was
not working; meanwhile, the employees claimed that they did not use the
railroad-supplied cell phone because they were confused about when it
was sanctioned for use versus when it was prohibited. Considering that
example, an employer should review its part 220, subpart C training on
electronic devices and decide whether there are ways to improve
conveying the legal uses of the cell phone. The review and action are
required by this part even though the periodic oversight was done to
comply with one or more other parts of this chapter.
    Although only proposed paragraph (c) contains the heading
``[r]ailroad oversight,'' proposed paragraphs (c) through (f) need to
be read together in order to fully understand the proposed
responsibilities for each railroad as it performs oversight. Paragraph
(c) begins by proposing a requirement that each railroad identify
supervisory employees, by category or subcategory, responsible for
conducting periodic oversight tests and inspections for the safety-
related railroad employees that the railroad authorizes to perform
safety-related duties on its property. This requirement includes
contractors that may be working on the railroad's property, but there
are a number of caveats to that portion of the requirement that are
addressed by the exceptions in paragraph (c) and the subsequent
paragraphs in this proposed section. For example, paragraph (c)(1)
qualifies the requirement in paragraph (c) by stating that a railroad
is not required to provide oversight for a contractor's safety-related
railroad employees if that contractor is required to conduct its own
periodic oversight because it meets the criteria specified in paragraph
(g) of this section. The wording of paragraph (c)(1) differs slightly
from the RSAC recommendation but the intent is the same and commenters
should find the clarity of the proposed exception an improvement. The
RSAC recommended language suggested that a railroad would have to
figure out whether the contractor was performing the oversight in
addition to meeting the paragraph (g) requirements of this section; in
the RSAC recommendation, an undue burden would be placed on a railroad
to determine if a contractor was actually performing the oversight.
Paragraph (c)(2) provides an exception to a railroad providing periodic
oversight to a contractor's employees when the railroad does not employ
supervisory employees who are qualified as safety-related railroad
employees in those categories or subcategories. For example, this
second exception would apply when a railroad contracts out for all its
signal system installation and maintenance work and does not employ any
supervisory employees who are qualified to install or maintain signal
systems. Paragraph (c)(3) provides that a railroad does not have to
conduct oversight for any supervisory employee identified by the
railroad as responsible for conducting oversight in accordance with
this section. This third exception is based on an RSAC recommendation
and the concern that it is often logistically difficult to arrange
periodic oversight of supervisors who are the ones generally tasked
with conducting oversight for non-supervisory employees. FRA agrees
that periodic oversight can be meaningful without requiring oversight
of those supervisory employees identified by the railroad as
responsible for conducting oversight.
    Proposed paragraph (d) further limits a railroad's requirement to
conduct periodic oversight of a contractor's employees. In situations
where a railroad is obligated to conduct oversight of a contractor's
employees, it is proposed that a railroad would not be required to
perform operational tests of safety-related railroad employees employed
by a contractor. As explained in the analysis to paragraph (a) of this
section, a test is conducted by a qualified supervisor that changes the
work environment so that one or more employees would need to act to
prevent non-compliance. FRA accepted the RSAC recommendation that
conducting operational tests, sometimes known as efficiency tests, on
contractor employees who may be working on projects of varying
duration, would put an undue burden on railroads. That is, it could be
difficult to find opportunities to set up operational tests when
contractors are doing a wide-variety of projects that may not be
suitable for creating a test and for which there may be insufficient
time to set up a test given other supervisory responsibilities.
    Although paragraph (d) does not require a railroad to conduct
operational tests, this proposed provision does not prohibit it either.
Additionally, paragraph (d) would still leave a railroad with the
responsibility to conduct inspections of a contractor's employees if no
exceptions applied. FRA accepts this RSAC recommendation because the
inspection requirement should not be overly burdensome on railroads and
yet still provide opportunities for effective oversight.
    A railroad's obligations to conduct oversight are further qualified
by proposed paragraph (e). In order to relieve a railroad's burden, FRA
accepts the RSAC recommendations that provide each railroad great
latitude to conduct oversight when it is convenient for the railroad.
Thus, in paragraph (e)(1), FRA proposes that a railroad may choose to
require supervisory employees to perform oversight test and inspection
sessions when these sessions are scheduled specifically to determine if
safety-related employees are in compliance with Federal railroad safety
laws, regulations, and orders particular to FRA-regulated personal and
work group safety. For example, some maintenance-of-way worksites may
have a mix of railroad employees and employees from multiple
contractors. It may often be difficult to distinguish a railroad
employee from a contractor. As long as the supervisory employee is
qualified to conduct the oversight, the supervisory employee would have
the discretion to test or inspect any of the safety-related railroad
employees at the

worksite--regardless of what company employed the person.
    In paragraph (e)(2), FRA proposes that a railroad may choose to
require supervisory employees to perform oversight of safety-related
railroad employees employed by a contractor when a qualified railroad
supervisory employee's duties place him or her in the vicinity of one
or more safety-related railroad employees employed by a contractor and
performing the oversight would result in minimal disruption of this
supervisory employee's other assigned duties. Unlike the paragraph
(e)(1) situation where the supervisor is at the worksite with the
intention to perform oversight, paragraph (e)(2) addresses the
situation where the supervisor is at the worksite and either observes
non-compliance in his or her normal duties or finds him or herself with
the time and opportunity to conduct the oversight.
    Paragraph (f) proposes that when any railroad finds evidence of
contractor employee non-compliance during the periodic oversight it
shall provide that employee and that employee's employer with details
of the non-compliance. This proposed requirement is based on an RSAC
recommendation and it reinforces the central purposes of periodic
oversight. Those central purposes were elaborated on in the
introductory paragraph for the analysis to this proposed section. In
summary, the two central purposes of periodic oversight are to (1) take
corrective action to ensure that specific employees know how to do the
work properly and (2) review the oversight data as a whole to detect
weaknesses that can be addressed by improvements to the training
program. This proposed requirement is not referring to non-compliance
with any type of employer rule; instead, the concern addressed by
proposed paragraph (f) is intended to only require a railroad to notify
a contractor of non-compliance with Federal railroad safety laws,
regulations, and orders particular to FRA-regulated personal and work
group safety. Although some Working Group members thought it would be
sufficient if FRA addressed this issue in the preamble or this
analysis, FRA has decided to make an affirmative change to the RSAC
recommended regulatory text so that there would be no possible chance
of confusion.
    Paragraph (g) proposes that each contractor be required to conduct
periodic oversight tests and inspections of its safety-related railroad
employees provided that certain conditions are met. If any condition is
not met, the contractor is exempt from being required to perform the
oversight. For instance, in paragraph (g)(1) there is a small business
exemption for any contractor that employs 15 or fewer safety-related
railroad employees. FRA accepts the RSAC recommendation in paragraph
(g)(2) that a contractor should typically be responsible for periodic
oversight of its own employees if it trains its own employees directly.
If a contractor uses a railroad, a training organization, or a learning
institution to train a category or subcategory of employees, then the
contractor probably does not have the ``in-house'' expertise needed to
conduct periodic oversight. Finally, paragraph (g)(3), proposes that a
contractor would not be required to perform periodic oversight if the
contractor does not employ supervisory safety-related railroad
employees capable of performing the oversight. In the application of
this proposed requirement, a contractor will need to determine whether
it is exempt based on each occupational category or subcategory of
safety-related railroad employees that the contractor employs. For
example, a contractor would be required to perform oversight of its
operators of roadway maintenance machines equipped with a crane if the
contractor employs 16 or more safety-related railroad employees, trains
its operators of roadway maintenance machines equipped with a crane by
using one or more designated instructors it employs, and employs one or
more supervisors capable of performing the oversight of those operators
of roadway maintenance machines equipped with a crane. If the same
contractor also employs only one employee capable of inspecting and
maintaining wayside signal systems, then the contractor would not be
required to conduct periodic oversight of that signal employee because
the employer cannot meet the conditions in proposed paragraphs (g)(2)
and (g)(3).
    Paragraph (h) proposes a requirement that would allow a railroad
and a contractor to agree that the contractor will provide the periodic
oversight, notwithstanding the requirements of this section that impose
the requirements on either the railroad or the contractor. During the
RSAC deliberations, FRA heard discussions that contracts between
railroads and contractors will often specify which party is responsible
for complying with certain laws, regulations, or orders where either
party could potentially be held responsible. FRA recognizes that there
may be some instances where a contractor would not be required under
paragraph (g) to conduct periodic oversight but that it is willing to
accept the oversight responsibility in order to secure a contract with
a railroad. When devising this proposed option, the RSAC considered
that this situation would otherwise be handled by the railroad
providing the oversight and that the railroad would be expected to have
supervisory employees qualified to do the oversight. With that
understanding, the RSAC proposed that in order to accept this oversight
responsibility, the contractor would need to address in its program
that the railroad has trained the contractor employees responsible for
training and oversight. In other words, the contractor may accept
responsibility for the oversight, but not until the railroad trains the
contractor's supervisory employee and qualifies that person to do the
oversight; thus, the railroad has some obligation to ensure that the
contractor's supervisory employees are capable of conducting the
oversight before abdicating what would otherwise be the railroad's
responsibility.
    Paragraph (i) proposes the requirements for retaining oversight
records. At a minimum, it proposes that each employer that conducts
periodic oversight in accordance with this section must keep a record
of the date, time, place, and result of each test or inspection.
Without such basic records, it would be impossible to audit an
oversight program and detect whether it has been implemented. The
records shall specify each person administering tests or inspections
and each person tested so that audits can confirm that the people
administering the oversight are qualified to perform the oversight. The
record shall also provide a method to note whether the employee
complied with the monitored duties, and any interventions used to
remediate non-compliance; in keeping such records, audits can confirm
that employers are using oversight to achieve the central purposes of
oversight correcting individual behavior and improving training.
Finally, FRA does not want to require duplication of oversight
programs; thus, where periodic operational oversight is required in
accordance with Sec.  217.9 of this chapter, a railroad may specify
this overlap in its program submitted in accordance with part and is
not required to duplicate that oversight.
    Paragraph (j) contains the statement that the records required
under this section are subject to the requirements of Sec.  243.203,
which is the section containing the recordkeeping requirements of this
part. The RSAC recommended this paragraph and FRA agrees that it should
be a requirement. However, FRA would appreciate

comments on whether this paragraph is necessary given that the
requirements of Sec.  243.203 would apply to any records of period
oversight required under this part even if paragraph (j) was deleted.
FRA is willing to consider retaining paragraph (j) if commenters
suggest that it provides a useful reminder that records of periodic
oversight must be retained and that without the paragraph some
employers might not grasp that the recordkeeping requirements apply
under these circumstances.
    FRA acknowledges that it made several word and phrase changes in
this section as compared to the RSAC recommendation. FRA believes that
the intent of the proposed requirements has not changed and the changes
are intended to address word choices that, when the words or phrases
were used in RSAC meetings, were thought to be interchangeable. For
example, in paragraph (b), FRA changed the term ``task proficiency
oversight'' to simply ``periodic oversight.'' During the early RSAC
deliberations, FRA proposed that each employee be observed to determine
that each employee was proficient in performing safety-related tasks;
as that requirement dropped out, the language needs to be standardized.
Similarly, in paragraphs (e) and (e)(1), FRA changes the term
``oversight inspection'' to simply ``oversight.'' As FRA has drafted
this notice, it realized that we meant the term oversight to mean both
tests and inspections, so the term oversight inspection would be too
limiting. Paragraph (f) of the RSAC recommended language explained that
a requirement would be the ``minimum'' action required under certain
particular circumstances. FRA deletes this qualifier as this rule is
intended to contain ``general minimum training and qualification
requirements'' (see Sec.  243.1(b)) and thus it is unnecessary to
restate this qualifier elsewhere in this proposed part. Also, in
paragraph (i), FRA changed the RSAC suggested term ``periodic oversight
and inspections'' to ``periodic oversight.'' Again, if the term
periodic oversight refers to both tests and inspections, there is no
reason to add the qualifier of ``and inspections.''
    FRA seeks comment on a potential scope issue that would allow some
situations where safety-related railroad employees would not be subject
to any oversight. Those situations would likely occur when a short line
railroad hires a contractor with 15 or fewer safety-related railroad
employees. It is possible that the short line railroad would not have
the supervisors with the expertise necessary to conduct the oversight
and the contractor would be too small to be required to do it
themselves per the proposed requirements. During the RSAC
deliberations, FRA acknowledged that the recommendation included a
narrow number of employers that would not be covered. FRA expressed
concern that including every employer would place a debilitating burden
on the smallest employers.
Section 243.207 Annual Review
    In the analysis to the previous section, the opening paragraph
mentions that one of the central purposes in conducting periodic
oversight is to look at all of the oversight data as a whole to detect
patterns of non-compliance. Additionally, if other relevant data is
analyzed on a regular basis, that data could also be used to detect
non-compliance trends. The purpose of detecting these trends is so that
employers can determine if knowledge or performance gaps exist in the
current training and use that information to plot ways to fill in those
gaps. For this reason, FRA is proposing in paragraph (a) of this
section that each railroad with at least 400,000 total employee work
hours per year must conduct an annual review in accordance with the
requirements of this section. This proposed section only applies to
railroads except that, in accordance with paragraphs (a) and (f),
contractors must use any information provided by railroads to adjust
training specific to the Federal railroad safety laws, regulations, and
orders particular to FRA-regulated personal and work group safety.
    It is likely that in most instances, it would be determined that
the current method of formal training covers the subject matter, but
some aspect of the training could be improved. For example, it might be
determined that the training does not place enough emphasis on
compliance with one or more specific tasks. Greater emphasis could be
placed on the task by increasing the amount of time covering how to
perform the task and the problems that could be encountered when
conducting the task. The course materials should be reviewed to see if
they could be improved for clarity. In other instances, especially when
the pattern of non-compliance is detected in a safety-related task,
adding an OJT component or adding more repetitions within the OJT may
increase an employee's proficiency and lead to more lasting compliance.
In still other instances, adding opportunities for individualized
instruction and feedback could cut down on non-compliance. It could
also be determined that a particular instructor is ineffective, or some
other aspect of the way the course is taught is not conducive to
learning.
    There are certainly a number of ways to improve training and that
is why it is important that each person a railroad designates to
conduct the annual review should be familiar with the training program
filed with FRA. FRA does not propose any knowledge requirements on the
designated person requirement in paragraph (c) and invites comment on
whether there should be any requirements. Instead, the proposal
considers that the person designated to conduct the review will need to
have extensive information about the training program and individual
course material, as well as direct access to shape the methods of
delivery. As previously explained, the annual review is intended to
effect change in how training is delivered to improve performance and
should not be viewed as the end itself. In other words, if the annual
report identifies gaps, the report itself has little value unless it is
used to change the training program in order to improve knowledge
acquisition and safety performance.
    Although proposed paragraph (a) would eliminate the annual review
requirement for those short line railroads with less than 400,000 total
employee work hours per year, paragraph (b) contains the proposed
requirement that each railroad that is required to conduct periodic
oversight in accordance with Sec.  243.205 of this part shall also be
required to conduct an annual review, as provided in this section, and
shall retain, at its system headquarters, one copy of the written
annual review. This proposed paragraph is based on an RSAC
recommendation. The intention is that, except for the smallest
railroads, any railroad that conducts periodic oversight must also
conduct an annual review.
    The analysis necessary to do the annual review must be put in
writing to prove that it was conducted. It would be expected that the
document would speak for itself in that it would describe what data the
review is based on and how the conclusions are reached. As with other
written records required by this proposed part, it would be permissible
for the annual review to be kept electronically pursuant to the
recordkeeping requirements found in Sec.  243.203(e) of this proposed
part. Please note that the written annual review and the records
supporting the analysis in the annual review would need to be
maintained for 3 calendar years after the end of the calendar year to
which the annual review relates and made available to FRA pursuant to

Sec.  243.203(c) and (d) of this proposed part.
    FRA accepts the RSAC recommendation that a system-wide annual
review should be sufficient, even for those railroads large enough to
have divisions. Some railroads with divisions may choose to conduct
division-wide annual reviews in addition to system-wide reviews. It is
possible that a knowledge or performance gap could be identified in one
division but not system-wide. Railroads large enough to have divisions
may want to target modifications to training for safety-related
railroad employees in certain divisions that face particular hazards or
trend toward non-compliance, without unnecessarily incurring additional
training expenses system-wide. However, requiring that each railroad
address gaps on a division level would introduce a level of complexity
that would likely go beyond what is necessary to implement an effective
annual review. After all, each training program is based on training
provided system-wide, not by division.
    Paragraph (c) proposes a requirement that each railroad designate
one or more person to conduct the written annual review. Although the
proposed rule does not specify who that person must be, FRA envisions
that each railroad would choose one or more managers at the system-wide
level with significant knowledge of the railroad's training and
oversight programs. For some railroads, a high level manager
representing each discipline (e.g., track, mechanical, signal,
operations, etc.) might participate. However, FRA only proposes
requiring that at least one person be designated because the agency
wants to be able to address any questions related to the annual review
with the person that the railroad designates as responsible for
conducting the written review.
    Proposed paragraph (c) also contains a list of types of data that
must be analyzed in accordance with the annual review. Given prior
analysis discussion regarding the purpose of periodic oversight, it
should come as no surprise that paragraph (c)(1) proposes that periodic
oversight data required by Sec.  243.205 must be analyzed for purposes
of the annual review.
    Paragraph (c)(2) proposes a requirement that reportable accident/
incident data, as defined in part 225 of this chapter, must also be
analyzed for purposes of the annual review. The inclusion of accident/
incident data generated some discussion at the RSAC Working Group
meetings. During those meetings, FRA suggested that railroads also
consider ``accountable'' injuries, illnesses, and rail equipment
accidents. Accountable incidents may be attributable to work exposure
or events, but are not required to be reported to FRA; consequently,
accountable incidents may generally be categorized as those incidents
that pose a lesser safety hazard than those incidents resulting in
reportable accidents. Railroads also argued that information
attributable to the causes of reportable accidents are less likely to
be controversial compared to the causes of accountable incidents.
Although FRA would encourage each railroad to consider accountable
incident data when conducting an annual review, FRA accepts the RSAC
recommendation to limit the requirements for accident data analysis to
reportable incidents. Overall, FRA's purpose in requiring analysis of
these types of data is to improve training in ways that reduce the
number of reportable accidents/incidents. Thus, by addressing the
reportable incidents in the annual review, it is proposed that each
railroad will focus on this goal.
    Paragraph (c)(3) proposes that each railroad consider FRA
inspection report data in its annual review. Each year, FRA conducts
thousands of audits and inspections of railroad safety compliance. Many
of those inspections find instances of non-compliance, although not all
of those non-complying instances result in FRA taking enforcement
action as FRA may exercise enforcement discretion. See 49 CFR part 209,
app. A. Whether or not FRA took enforcement action should be irrelevant
to the analysis necessary for detecting knowledge or performance gaps
for a railroad's annual review. The thrust of FRA's argument is that,
as a safety agency, we often find safety problems--either reaffirming
that the railroad has a compliance problem or uncovering a concern
previously undetected by the railroad's compliance officers. FRA
recognizes that each railroad will often take remedial action to
immediately correct non-compliance, whether or not FRA requires that
the remedial action be taken. See 49 CFR part 209, subpart E. In the
context of this proposed rule, FRA wants to require that each railroad
take the additional step of looking for trends of non-compliance and
how training courses or programs can be adjusted to stop those trends
from getting worse. FRA heard some complaints during the RSAC Working
Group meetings that not every railroad currently has an electronic
database or other method to track non-compliance detected by FRA
inspections. For those railroads that may have difficulty detecting
such trends with FRA inspection data, FRA suggests that those railroads
contact FRA for help as FRA anticipates that it could readily provide
meaningful inspection data for analysis.
    Paragraph (c)(4) proposes that the annual review include analysis
of employee training feedback received though a course evaluation
process, but only if such feedback is available. It is anticipated that
most training courses and programs have built in mechanisms for
obtaining employee feedback. For example, it is common for a survey to
be handed out at the end of a training course and for participants to
rank the quality of the course instructor, the training materials, and
the training generally. There is also typically an opportunity for
participants to comment about any aspect of the training by writing in
a comment. The proposed rulemaking is not intended to require employee
participant feedback where none existed previously; instead, the
proposal is to use that information, when it is being gathered, and to
use it productively to further identify gaps in knowledge or
performance. FRA would expect that this information would be used for
similar purposes now if it is already being gathered. By including the
analysis of the employee feedback in the annual review, the feedback
may be used to strengthen or weaken the argument for a modification to
a training course or program.
    Paragraph (c)(5) proposes that the annual review include analysis
of feedback received from labor representatives, but only if such
feedback is available. Like the employee training feedback through a
course evaluation, the feedback received from labor representatives may
be subjective but of significant value. Labor representatives may be
able to act as a conduit for comments for an employee that is concerned
about raising the issue directly to the railroad. In addition, labor
representatives may detect non-compliance trends or learning
difficulties among a union's members through conversations or surveys.
Furthermore, where a union represents employees on more than one
railroad, the labor representatives may have knowledge about best
practices on other railroads that may be transferrable to the training
program of another railroad. For all these reasons, the RSAC Working
Group recommended, and FRA accepted, this proposed requirement.
    Paragraph (d) proposes a requirement for the railroad's designated
person to coordinate any necessary adjustments to the initial and
refresher training programs based upon the results of the annual
review. This proposed

requirement is a call for action when the results of the annual review
strongly suggest changes are necessary in the interests of improving
the program. FRA does not expect that every course or program will
require an adjustment every year. It is expected that some trends or
data may be inconclusive. In other instances, a trend or gap may be
identified but an effective way to address the problem through a
modification to the training program or a particular course is not
found. Although FRA would prefer that each railroad take some
affirmative action to address knowledge or performance gaps, FRA does
not intend to take enforcement action against a railroad that
acknowledges a trend but decides to defer modifications to training in
order to take the time to properly assess the causes of the underlying
non-compliance and determine the best options available to improve
compliance.
    Paragraph (d) also contains the railroad's option to allow the
annual review required under this section to be conducted in
conjunction with any periodic review required under part 217 of this
chapter. FRA is not looking for railroads to duplicate reviews already
required under other Federal regulations. See 49 CFR 217.9(e) and (f).
It is expected that the part 217 reviews could be incorporated into the
proposed reviews required by this section. However, compliance with
part 217 of this chapter does not automatically ensure complete
compliance with this section as it mainly would be used only to comply
with paragraph (c)(1) of this section.
    Proposed paragraph (e) contains a requirement for a railroad to
notify any contractor it utilizes about the contractor amending its
training program if the railroad's annual review of its own program
reveals information that would also improve the contractor's program.
The railroad must determine whether the safety-related railroad
employees supplied by each contractor it utilizes are trained by the
contractor or some other entity. If a contractor trains its own safety-
related railroad employees, the railroad will have a duty to provide
the contractor with the information needed to make the same adjustments
in the contractor's program that was made in the railroad's program.
    Likewise, paragraph (f) requires that contractors have a duty to
use any information provided by railroads to adjust training specific
to the Federal railroad safety laws, regulations, and orders particular
to FRA-regulated personal and work group safety. If the information the
contractor receives from a railroad is not so narrowly focused, the
contractor may choose to ignore the information. FRA does not want
contractors to receive information and not act. When RSAC made this
recommendation, it did not consider that there could a situation where
a contractor believes that making the modification requested by the
railroad is contrary to safety or is otherwise not beneficial. FRA
seeks comment regarding whether this proposed section should contain a
provision explaining what a contractor should do if it disagrees with
the railroad's information that a modification to the training program
is necessary.
    Paragraph (g) proposes a deadline of September 1 of each calendar
year for each railroad, to which this section applies, to complete its
annual review for the previous calendar year. FRA initially suggested a
March 1 deadline, but during the RSAC Working Group meetings some
railroads suggested September 1 would work better based on their
current training schedules. That is, the major railroads conduct all
regularly scheduled training during the first half of each year.
Consequently, it would be difficult to conduct annual reviews during
the first half of each year as the people likely designated to help
with the review would be busy implementing the training. Also, it would
be difficult for each railroad to immediately implement any
modifications to a training program that is already underway. By
requiring the annual review to be completed no later than September 1,
each railroad should have several months to implement any modifications
in the training programs prior to January 1 of each calendar year.
Section 243.209 Railroad Maintained List of Contractors Utilized
    One issue that was repeatedly raised during the RSAC meetings was
that employees of contractors routinely work alongside employees of
railroads. From an enforcement viewpoint, it is essential that FRA be
able to identify which employees work for railroads and which for
contractors. When an employee works for a contractor, FRA can sometimes
find it an additional burden to figure out basic contact information
for the contractor employer. This proposed section is intended to
require each railroad to maintain a list of the contractors it uses and
some basic contact information about each of those contractors.
    Paragraph (a) proposes that each railroad utilizing contractors to
supply the railroad with safety-related railroad employees shall
maintain a list, at its system headquarters, with information regarding
each contractor utilized. FRA provides for an exception to this
requirement when two conditions are met. The first condition for the
exception to apply is that the railroad must qualify each of the
contractor's safety-related railroad employees that it uses, and the
second condition requires that the railroad maintain the training
records for each of the contractor's safety-related railroad employees
utilized. FRA is willing to permit this exception because a railroad
that is both qualifying and keeping training records for the
contractor's employees is, in effect, responsible for the contractor's
training under this part. Thus, if there is a training issue that
arises, FRA may be able to address its concern directly with the
railroad.
    Paragraph (b) proposes the three items that must be contained in a
railroad's listing of contractors. It is proposed that the listing
include (1) the full corporate or business name of the contractor, (2)
the contractor's primary business and email address, and (3) the
contractor's primary telephone number. With this basic information, FRA
should be able to track down a contractor to follow-up during any audit
or investigation.
    Paragraph (c) proposes that the information contained in the
listing be continuously updated as additional contractors are utilized,
and no contractor information shall be deleted from the list unless the
contractor has not been utilized for 3 years from the end of the
calendar year the contractor was last utilized. The proposed
requirements are intended to keep information on the list for a
reasonable length of time but allow removal when the information
becomes stale. This information should likely not be necessary 3 years
from the end of the calendar year the contractor was last utilized as
most audits or investigations would take place inside that time frame.
    FRA acknowledges to its RSAC members that the wording of this
section was changed from the RSAC recommendation; however, the intent
of the changes was to improve clarity and not change the intent. For
example, some language in the RSAC recommendation was worded in the
negative; this proposed rule switches the wording so it reads in the
positive and is easier to understand. Also, as FRA acknowledged earlier
in this analysis, FRA deleted the RSAC's recommended paragraph (c) and
edited Sec.  243.203(b)(6) to capture the same concept; the provision
contained a good idea, but seemed out of place. The removed
recommendation would have required that if a railroad elects to train
some or all of a contractor's safety-

related railroad employees, the listing should also include the course
name and unique identifier for each course so designated and a listing
of all contractor employees trained. FRA deletes that recommended
requirement because the burden for maintaining records should fall on
the employer, not the railroad. FRA improved on the RSAC recommendation
by proposing that the contractor will need to maintain training records
of its employees whether those records are received from another
business (which could be a railroad), a training organization, or a
learning institution. Railroads that are in the business of training
safety-related railroad employees from other railroads or contractors
would need to maintain those records in order to retain such training
business from other employers.
Appendix A
    In the final rule, Appendix A will contain a penalty schedule
similar to that FRA has issued for all of its existing rules. Because
such penalty schedules are statements of policy, notice and comment are
not required prior to their issuance. See 5 U.S.C. 553(b)(3)(A).
Nevertheless interested parties are welcome to submit their views on
what penalties may be appropriate.

VIII. Regulatory Impact and Notices

A. Executive Order 12866, Executive Order 13563, and DOT Regulatory
Policies and Procedures

    This proposed rule is a significant regulatory action within the
meaning of Executive Order 12866, Executive Order 13563, and the U.S.
Department of Transportation's regulatory policies and procedures (DOT
Order 2100.5 dated May 22, 1980; 44 FR 11034, Feb. 26, 1979). FRA has
prepared and placed in the docket a regulatory impact analysis (RIA)
addressing the economic impact of this proposed rule.
    The RIA details estimates of the costs likely to occur over the
first twenty years after its effective date and a breakeven analysis
that details the reductions in human factor-caused accidents that would
be necessary for the proposed rule to breakeven in the same timeframe.
Informed by its analysis of the economic effects of this proposed rule,
FRA concludes that this proposed rule would likely result in positive
net benefits. FRA believes the proposed rule would achieve positive net
benefits primarily through requiring that training programs include
``hands-on'' training components, which scientific literature has shown
to be much more effective at reducing human factor-caused accidents
than traditional training.\1\ The costs that may be induced by this
proposed rule over the twenty-year period considered include: the costs
of revising training programs to include ``hands-on'' training where
appropriate, as well as the costs of creating entirely new training
programs for any employer that does not have one already; the costs of
customizing model training programs for those employers that choose to
adopt a model program rather than create a new program; the costs of
annual data review and analysis required in order to constantly improve
training programs; the costs of revising programs in later years; the
costs of additional time new employees may have to spend in initial
training; the costs of additional periodic oversight tests and
inspections; the costs of additional qualification tests; and the costs
of additional time all safety-related railroad employees may have to
spend in refresher training. The summed total of the estimated costs
over the first twenty years of this proposed rule equals about $81.6
million, discounted at a 3 percent discount rate, and about $64.1
million, discounted at a 7 percent discount rate (in 2010 dollars).
---------------------------------------------------------------------------

    \1\ For a review and citation information of this scientific
literature, please see the Regulatory Impact Analysis that
accompanies this NPRM and that has been placed in the docket.
---------------------------------------------------------------------------

    The table below summarizes the costs considered in the RIA, summed
over the twenty-year period analyzed and discounted to present value
using 3 percent and 7 percent discount rates.

------------------------------------------------------------------------
                                            Twenty-year     Twenty-year
              Cost element                   total (3%       total (7%
                                          discount rate)  discount rate)
------------------------------------------------------------------------
Creating and revising training programs       $1,999,728      $1,564,484
 and performing annual reviews, original
 program users..........................
Creating and revising training programs          179,116         129,245
 and performing annual reviews, model
 program users..........................
Creating and revising training programs,       4,751,465       3,428,505
 model program users with <400k annual
 labor hours............................
Customizing model programs..............         910,245         842,919
Designating employees by class or craft.         771,316         709,480
Additional time in initial training.....      16,539,877      12,235,174
Additional time in refresher training...      25,456,709      18,831,293
Periodic oversight tests and inspections      15,242,583      11,275,517
Additional qualification testing........      15,741,416      15,075,836
                                         -------------------------------
    Total...............................      81,592,455      64,092,452
------------------------------------------------------------------------

    FRA has performed a breakeven analysis for this proposed rule. FRA
expects that improving training primarily by requiring the inclusion of
``hands-on'' elements where appropriate will reduce the number of human
factor-caused railroad accidents. Rather than assume any specific
reduction will be achieved, FRA has calculated the percentage of human
factors accidents that would need to be prevented by this proposed rule
to at least offset the total costs of the proposed rule. Reductions in
human factors accidents would result in fatalities avoided, injuries
avoided, and property damage avoided, all of which can be monetized and
quantified using FRA safety data.

------------------------------------------------------------------------
       List of benefits of reducing human factor-caused accidents
-------------------------------------------------------------------------
Fatalities avoided
Injuries avoided
Property damage avoided
------------------------------------------------------------------------

In addition, human factor-caused railroad accidents can result in train
delay and environmental damages, emergency response, but FRA does not
have data with which to estimate those costs. Human factors also play a
role in limiting the consequences of accidents--in other words reducing
the severity of their outcomes. Some FRA regulations are focused on
this and thus this proposed rule has the potential to result in
improvements in this area as well.
    Evaluated at either the three or seven percent discount rate, FRA
estimates that this proposed rule will break even if it results in a
twenty-year total

reduction in human factors accidents of 7.3 percent using a 3 percent
discount rate, and a reduction of 7.1 percent using a 7 percent
discount rate. The table below details the total present discounted
annual costs of the proposed rule. The table also shows the total
present discounted annual costs of human factors accidents that would
be incurred over the next 20 years without this proposed rule, as well
as the percent reduction in human factors accidents that would be
necessary for the accident reduction benefits to justify implementation
of the proposal. This calculation takes into account various recent and
concurrent initiatives to address human factor-caused accidents
including implementation of positive train control systems, revisions
to hours of service regulations, development of proposed conductor
certification standards and a proposed roadway worker protection rule,
and implementation of programs to address fatigue and electronic device
distraction among others.

--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                 Percent                                                                     Percent
  Total present discounted      Total present discounted      reduction for     Total present discounted      Total present discounted    reduction for
  cost of HF accidents (3%      costs (3% discount rate)      breakeven (3%     cost of HF accidents (7%      costs (7% discount rate)    breakeven (7%
       discount rate)                                        discount rate)          discount rate)                                       discount rate)
--------------------------------------------------------------------------------------------------------------------------------------------------------
           $1,246,926,928                   $81,592,455               7.3                $1,020,012,541                   $64,092,452              7.1
--------------------------------------------------------------------------------------------------------------------------------------------------------

    Given the role and prevalence of human factor-caused accidents in
the railroad industry and the relationship between quality training and
safety, FRA believes it is not unreasonable to expect that improvements
in training as proposed in this rule would yield safety benefits that
will exceed the costs. FRA requests comments, including any relevant
data and information, on all aspects of the RIA.

B. Regulatory Flexibility Act and Executive Order 13272; Initial
Regulatory Flexibility Assessment

    To ensure that the potential impact of this rulemaking on small
entities is properly considered, FRA developed this rule in accordance
with Executive Order 13272 (``Proper Consideration of Small Entities in
Agency Rulemaking'') and DOT's policies and procedures to promote
compliance with the Regulatory Flexibility Act (5 U.S.C. 601 et seq.).
The Regulatory Flexibility Act requires an agency to review regulations
to assess their impact on small entities. An agency must conduct an
initial regulatory flexibility analysis unless it determines and
certifies that a rule is not expected to have a significant economic
impact on a substantial number of small entities. FRA has not
determined whether this proposed rule would have a significant economic
impact on a substantial number of small entities. Therefore, FRA is
publishing this initial regulatory flexibility analysis to aid the
public in commenting on the potential small business impacts of the
proposals in this NPRM. We invite all interested parties to submit data
and information regarding the potential economic impact that would