One of Brian’s Favorite Quotes
Failure is not an option- it’s a lifestyle.”
Training, Qualification, and Oversight for Safety-Related Railroad Employees
FRA received three comments regarding the proposed amendments to this part. Two of the commenters, AAR and APTA, support the amendments without recommending any changes from the proposal. The joint labor comment supported the overall direction of the amendments, and included a recommendation to expand this regulation to address the myriad of crane safety issues which fall outside the scope of roadway worker protection and the on-track safety programs specified in part 214, subpart C. For this reason, the joint labor comment requested that the crane operator qualification and certification requirements be moved to a new subpart within part 214.
In the NPRM, FRA explained that on August 9, 2010, the U.S. Department of Labor, Occupational Safety and Health Administration (OSHA) published a final rule regarding “Cranes and Derricks in Construction” (Final Crane Rule, 75 FR 47906) and how it may be very difficult or unnecessarily burdensome for the railroad industry to comply with the crane operator certification requirements provided for in OSHA’s regulation. In accordance with Executive Order 13563, “Improving Regulation and Regulatory Review,” which requires “[g]reater coordination across agencies” to produce simplification and harmonization of rules, FRA has coordinated with OSHA to maintain an equivalent level of safety in replacing OSHA’s training and certification requirements for operators of roadway maintenance machines equipped with a crane who work in the railroad environment.
Although the railroad industry uses many different types of cranes, nearly all of the cranes utilized by railroads are used to support railroad operations and would fall within what FRA refers to as “roadway maintenance machines.” FRA’s “Railroad Workplace Safety” regulation, found at 49 CFR part 214, defines roadway maintenance machine as “a device powered by any means of energy other than hand power which is being used on or near railroad track for maintenance, repair, construction or inspection of track, bridges, roadway, signal, communications, or electric traction systems. Roadway maintenance machines may have road or rail wheels or may be stationary.” 49 CFR 214.7. FRA already requires some training for crane operators that is related to roadway worker safety, although, prior to this rule, FRA did not require operator certification. See 49 CFR 214.341 and 214.355.
As FRA is promulgating a new regulation (part 243) in this notice to address training standards for all safety-related railroad employees, FRA is solidly situated to require a viable training alternative to OSHA’s certification options for certain crane operators in the railroad industry. In particular, FRA is especially well-suited to address the training and qualification requirement for operators of roadway maintenance machines equipped with a crane. This final rule contains various requirements for each employer of a safety-related railroad employee, which would include employers of one or more operators of roadway maintenance machines that are equipped with a crane, to submit a training program that explains in detail how each type of employee will be trained and qualified. However, new part 243 is only intended to cover training of Federal railroad safety laws, regulations, and orders and those railroad rules and procedures promulgated to implement those Federal requirements. Consequently, FRA is adding a new § 214.357 to existing part 214 which includes training and qualification requirements for operators of roadway maintenance machines equipped with a crane. The details of those requirements are addressed below in the analysis for that particular section.
The final rule would add a definition for roadway maintenance machines equipped with a crane in order to address the term’s use in § 214.357. The definition of this term would mean any roadway maintenance machine equipped with a crane or boom that can hoist, lower, and horizontally move a suspended load.
Section 214.341Roadway Maintenance Machines
FRA is amending paragraph (b)(2) to address two issues. First, FRA is removing the requirement that the operator of a roadway maintenance machine have “complete” knowledge of the safety instructions applicable to that machine. Based on feedback received from the regulated community, FRA has been informed that requiring that the knowledge be “complete” suggests that a roadway worker operator have instant recall of every instruction contained in the manual. This reading of the rule is not FRA’s intention. FRA intends each operator to have sufficient knowledge of the safety instructions so that the operator would be able to safely operate the machine without reference to the manual under routine conditions, and know where in the manual to look for guidance when operation of the machine is not routine.
The second change to paragraph (b)(2) addresses what is meant by “knowledge of the safety instructions applicable to that machine.” FRA’s intent is that this term means the manufacturer’s instruction manual for that machine. However, it has come to FRA’s attention that some portion(s) of a manufacturer’s instruction manual may not be applicable to a particular machine if the machine has been adapted for a specific railroad use. In that case, FRA requires that the employer have a duty to ensure that such instructions be amended or supplemented so that they shall address all aspects of the safe operation of the crane and be as comprehensive as the manufacturer’s safety instructions they replace. The purpose of this requirement is to ensure that the safety instructions provided address all known safety concerns related to the operation of the machine. If some type of functionality is added to the machine through adaption, the safety instructions would need to address the known safety concerns and proper operation of that additional function. On the other hand, if the adaption removes an operational functionality, the safety instructions would no longer need to address the function that was removed, although it could be possible that the removal of a device could create other safety hazards that may need to be addressed in the safety instructions in order to be considered comprehensive. In order to ensure that the safety instructions for a machine are comprehensive, some employers may choose to provide a completely new safety instruction manual for adapted equipment; however, other employers may choose to simply void certain pages or chapters of the manufacturer’s manual, and provide a supplemental manual to address the safety instructions related to the adapted functions of the equipment.
§ 214.357Training and Qualification for Operators of Roadway Maintenance Machines Equipped With a Crane
As mentioned previously, FRA is amending this section in order to ensure that each railroad or contractor (or subcontractor) to a railroad ensures that operators of roadway maintenance machines equipped with a crane are adequately trained to ensure their vehicles are safely operated. The training requirements are intended to address both safe movement of the vehicles and safe operation of the cranes. Once this rule is effective, FRA regulations would apply to operators of roadway maintenance machines equipped with a crane, rather than OSHA’s regulation related to crane operator qualification and certification found at 29 CFR 1926.1427.
Paragraph (a) clarifies that this section requires new training requirements in addition to the existing requirements already contained in this subpart. Paragraph (a) also includes a requirement that each employer adopt and comply with a training and qualification program for operators of roadway maintenance machines equipped with a crane to ensure the safe operation of such machines. The requirement in paragraph (a) to “adopt” and “comply” with a training and qualification program may seem redundant; however, the use of these terms together are intended to remind each employer that it will need to both “adopt” such a program and “comply” with its own program. Failure to adopt or comply with a program required by this section will be considered a failure to comply with this section.
Paragraph (b) requires that each employer’s training and qualification program address initial and periodic qualification for each operator of a roadway maintenance machine equipped with a crane. Both initial training and periodic refresher training must, at a minimum, include certain procedures for addressing critical safety areas. Paragraph (b)(1) requires that each employer develop procedures for determining that the operator has the skills to safely operate each machine the person is authorized to operate. FRA would expect that those procedures would include demonstrated proficiency as observed by a qualified instructor or supervisor. Paragraph (b)(2) requires that each employer develop procedures for determining that the operator has the knowledge to safely operate each machine the person is authorized to operate. As explained in the analysis of the amendments to § 214.341(b)(2), an operator must have knowledge of the safety instructions applicable to that machine, regardless of whether the machine has been adapted for a particular railroad use. Implicit in this rule is the requirement that the employer must supply the safety instructions for the crane. If the crane has been adapted for a specific use, the employer must ensure that the safety instructions are also adapted. FRA would expect the employer to employ or contract out for a qualified person to adapt the safety instructions, but in any case the employer is responsible for ensuring that the instructions address all aspects of the safe operation of the crane. When equipment has been adapted, the employer has a duty to provide revised safety instructions that comprehensively address each adapted feature as well as any feature supplied by the manufacturer that was not removed during the adaptation.
Paragraph (c) requires that each employer maintain records that form the basis of the training and qualification determinations of each operator of roadway maintenance machines equipped with a crane that it employs. This requirement repeats the requirement contained in § 243.203 to maintain records. However, it is useful to repeat the requirement as a reminder to employers. In repeating this requirement, FRA does not intend the requirement to cause an employer to duplicate records kept in accordance with proposed part 243. Similarly, paragraph (d) requires that each employer is required to make all records available for inspection and copying/photocopying to representatives of FRA, upon request during normal business hours, as is also required in part 243.
In paragraph (e), FRA permits training conducted by an employer in accordance with operator qualification and certification required by the Department of Labor (29 CFR 1926.1427) to be used to satisfy the training and qualification requirements of this section. The purpose of this paragraph is to allow an employer to choose to train and certify an employee in accordance with OSHA’s Final Crane Rule and opt out of the other proposed requirements of this section for that employee. As explained in the introductory analysis to part 214 in the NPRM, if the crane equipment is modified for railroad operations there may not be an accredited crane operator testing organization that could certify the operator in accordance with OSHA’s Final Crane Rule. 29 CFR 1926.1427(b). However, there are some roadway maintenance machines equipped with a crane that are considered standard construction equipment and thus it would be possible to certify operators of that equipment through such an accredited organization. For this reason, FRA does not want to preclude the option for a person to be trained by the accredited organization and meet OSHA’s requirements in lieu of FRA’s requirements. Similarly, FRA envisions that some railroads or employers may employ some operators on roadway maintenance machines equipped with a crane who could be used exclusively within State or local jurisdictions in which the operators are licensed. Under those circumstances, the operator would be in compliance with OSHA’s fourth option for certifying crane operators as it permits the licensing of such operators by a government entity. 29 CFR 1926.1427(e). FRA has no objection to the use of crane operators who meet OSHA’s requirements and does not intend, by the addition of this section, to impose any additional regulatory requirements on such operators. Although the purpose of this section is to provide an alternative method of training and qualification that is tailored to the unique circumstances faced by most operators of roadway maintenance machines equipped with a crane working for the railroad industry, the purpose of paragraph (e) is to permit an employer to opt out of the alternative FRA requirements as long as the operator has met OSHA’s training and certification requirements.
Section 232.203Training Requirements
FRA modeled some aspects of this final rule related to part 243 after the training requirements found in this section. Meanwhile, when reviewing this section, FRA discovered that several minor corrections to the section are necessary. The minor corrections were described in the NPRM and FRA did not receive any comments regarding them or objecting to their adoption. 77 FR 6420, 6453. As this portion of the final rule is identical to the proposed version, the analysis provided for in the NPRM is not being repeated here.
Section 243.1Purpose and Scope
In response to comments received in response to the NPRM, some minor edits have been made to paragraph (a) and paragraph (e) of this section. FRA has not repeated the analysis contained in the NPRM for those paragraphs that remain the same as in the proposal. 77 FR 6420-21. The comments received regarding this specific section are addressed here.
As previously explained in the supplementary information, FRA is required by RSIA to address minimum training standards for safety-related railroad employees. Paragraph (a) is consistent with the specific statutory language and captures Congress’ intent to ensure that any person doing work covered by the Federal railroad safety laws, regulations, and orders, regardless of whether the person is employed by a railroad or a contractor, is properly trained and qualified. This regulation meets the statutory requirement as it intends to cover each employee that does work required by a Federal mandate, regardless of the employer.
Paragraph (a) provides the scope of the training required by this final rule. FRA is only requiring training for an employee to the extent that the employee is required to comply with a Federal mandate. Furthermore, the training that is required by this part is limited to any training necessary to ensure that the employee is qualified to comply with all Federal railroad safety laws, regulations, and orders that would be applicable to the work the employee would be expected to perform. Thus, an employer that chooses to train employees on issues other than those covered by Federal railroad safety laws, regulations, and orders would not need to submit such training to FRA for review and approval in accordance with this part.
Given the limited scope of this rule, not every person that works on a railroad’s property should expect that this rule will require that an employer provide that person with training. Some employees of a railroad or a contractor of a railroad may do work that has a safety nexus but is not required by any Federal railroad safety laws, regulations, or orders. For example, a person may be hired to clean passenger rail cars by a railroad’s maintenance division for other than safety purposes. However, as there are no Federal requirements related to the cleaning of passenger rail cars, this rule would not require an employer to ensure that this person is trained to clean passenger rail cars. On the other hand, if the person is expected to perform any of the inspections, tests, or maintenance required by 49 CFR part 238, the person must be trained in accordance with all applicable Federal requirements. See e.g.,§§ 238.107 and 238.109.
If the employer’s rules mirror the Federal requirements, or are even more restrictive than the Federal requirements, the employer may train to the employer’s own rules and would not be required to provide separate training on the Federal requirements. During the RSAC process, some employers raised the concern that it would be confusing for employees if FRA required that training be made directly on the Federal requirements as that would pose potential conflicts whenever an employer’s rule was stricter than the Federal requirement. FRA agrees with this concern, and this final rule does not require that employers provide separate training on both the Federal requirements and on employer’s rules. As long as the employer’s rules satisfy the minimum Federal requirements, an employer’s training on its own rules will suffice.
Although FRA does not want to confuse employees, FRA encourages employers to emphasize when compliance with the employer’s rules is based on a Federal requirement so that employees can learn which duties are being imposed by the Federal government. When an employee is put on notice that an employer’s rule is based on a Federal requirement, the notice that the Federal government deems the issue important enough to regulate may provide further incentive for the employee to comply with the rule at every opportunity. Additionally, in response to concerns raised by RSAC members during the Working Group meetings, FRA wants to be clear that the requirements in this part would not require an employee to be able to cite the volume, chapter, and section of each Federal railroad safety law, regulation, or order that is relevant to the employee’s qualification.
Often, a railroad or contractor will train employees on the employer’s own safety-related rules, without referencing any particular Federal requirement. There may also be instances where the Federal requirement is generally stated with the expectation that the employer will create procedures or plans that will implement the conceptual requirement of the Federal requirement. Paragraph (a) makes clear that this part covers both types of training; i.e., training that either directly or indirectly is used to qualify safety-related railroad employees on the Federal railroad safety laws, regulations, and orders the person is required to comply with to do his or her job. As an introductory matter, FRA also wishes to make clear that not all training is task-based. Some Federal requirements include prohibitions and the relevant training must impart that information so that employees know how they can comply. For example, employees need to know when they may use cell phones and when they are prohibited from using them.
FRA received one comment suggesting that paragraph (a) could be improved. AAR suggests that paragraph (a) be amended because it could be interpreted to mean the opposite of what the preamble says is not intended; namely, that an employee has to be familiar with the actual wording and citations for relevant regulations. AAR suggests that paragraph (a) be amended to read: “The purpose of this part is to ensure that any person employed by a railroad or a contractor of a railroad as a safety-related railroad employee is trained and qualified to comply with any relevant Federal railroad safety laws, regulations, and orders, as well as any relevant railroad rules and procedures promulgated to implement those Federal railroad safety laws, regulations, and orders.” FRA agrees with AAR’s recommendation and has changed paragraph (a) accordingly.
REB’s comment recommends confirming the scope by stating that “This rule does not apply to training programs that do not address FRA rules, regulations, and orders.” FRA believes it would be repetitive to restate the scope of the rule in the way in which REB’s comment suggests and is concerned with the ambiguity of the double negative in the suggested rewrite. Meanwhile, REB’s comment has merit and FRA offers the following clarification. REB’s comment seems to indicate that if another Federal agency, or State or local jurisdiction required training, that the training required by these other authorities would not need to be addressed in the training programs submitted to FRA for approval. FRA agrees. Similarly, an employer may require its employees to complete company-specific training, such as training on an employee’s duties and responsibilities, that are unrelated to FRA’s requirements. Again, FRA agrees with REB that this final rule is not intended to require the employer to file those types of company-specific training programs to FRA.
No comments were received requesting specific changes to proposed paragraphs (b) through (d), and these paragraphs are identical to those in the NPRM.
Paragraph (e) was not proposed, but has been added in order to clarify that this rule does not address hazardous materials training of “hazmat employees” as that term is defined by PHMSA. PHMSA already extensively regulates the training of hazmat employees. This requirement has been added to prevent any confusion on the matter.
Section 243.3Application and Responsibility for Compliance
No comments were received concerning this proposed section and the rule text is identical to the proposed version. See 77 FR 6421.
As discussed in the NPRM, the extent of FRA’s jurisdiction, and the agency’s exercise of that jurisdiction, is well-established. See 49 CFR part 209, appendix A. The application and responsibility for compliance section is consistent with FRA’s published policy for how it will enforce the Federal railroad safety laws. This final rule is intended to apply to all railroads (except those types of railroads that are specifically listed as exceptions in paragraph (a)), contractors of railroads, and training organizations or learning institutions that train safety-related railroad employees. Paragraph (b) contains a statement clarifying that each person who performs the duties of this part is responsible for compliance, even if that duty is expressed in terms of the duty of a railroad.
The final rule adds a definition for “refresher training” in response to comments and modifies the definition of “formal training” so it is clear that correspondence training is an acceptable type of formal training. The final rule also modifies the definition of “designated instructor” to be clear that such a person, where applicable, has the necessary experience to effectively provide formal training “of the subject matter.” Otherwise, the definitions in this section are identical to the version in the NPRM. The analysis in the NPRM can be found at 77 FR 6421-25.
This section defines a number of terms that have specific meaning in this part. A few of these terms have definitions that are similar to, but may not exactly mirror, definitions used elsewhere in this chapter. Definitions may differ from other parts of this chapter because a particular word or phrase used in the definition in another chapter does not have context within this part.
FRA raised a question in the NPRM regarding the definitions of Administrator and Associate Administrator, even though these are standard definitions used in other parts of this chapter. In this part, the term Associate Administrator means the Associate Administrator for Railroad Safety/Chief Safety Officer. When the RSAC Committee voted for certain recommendations prior to the NPRM’s publication, the recommendations did not address the role of the Associate Administrator for Railroad Safety/Chief Safety Officer. The NPRM proposed this additional definition so that it would be clear that some of the proposed program review processes would be delegated to the Associate Administrator. The agency’s expertise in reviewing training programs lies within its Office of Railroad Safety, and the decision-making on these issues will routinely be decided by the Associate Administrator. If a person were to have a material dispute with a decision of the Associate Administrator, it would be expected that the person could bring that dispute to the Administrator’s attention and request final agency action. As FRA did not receive comments on this issue and believes it is an effective approach for agency decision-making, the final rule retains the Associate Administrator definition.
The final rule defines the term formal training mainly to distinguish it from informal, less structured training that may be offered by employers. Generally, a briefing during a “safety blitz,” in which an employer quickly tries to raise awareness of a safety issue following an accident or close call incident, would not be considered formal training. Formal training would typically be more structured than a safety blitz briefing and be planned on a periodic basis so that all eligible employees would continuously get opportunities to take the training. Formal training should contain a defined curriculum, as it is not the type of training that can be hastily prepared and improvised.
Formal training may be delivered in several different ways. Many people first think of classroom training as synonymous with formal training, and certainly that is one acceptable way of delivering formal training. However, the definition explains that “[i]n the context of this part, formal training may include, but is not limited to, classroom, computer-based, correspondence, on-the-job, simulator, or laboratory training.” The only change to this definition from the proposed rule is that FRA included correspondence training as a listed type of formal training. Although the list of formal types of training is specifically identified as not being comprehensive, FRA added correspondence to the list to address a commenter’s concern. In a sense, correspondence training is not that much different than computer-based training. Computer-based training could certainly be web-based so that a learner could access training from anywhere with an electronic device capable of accessing the internet. Similarly, software could be given to a person to install on a business-owned or personally-owned computer, and training could be accomplished anywhere the person used the computer. Consequently, FRA is adding correspondence training to the list of types of formal training.
During the RSAC process prior to the NPRM’s publication, some labor organizations explained that their members expressed a preference for classroom training over computer-based training. One valid concern expressed was that computer-based training is often performed without a qualified instructor present to answer questions. It can be frustrating to a training participant if the person finds a subject confusing and cannot get immediate clarification. Meanwhile, the RSAC members recognized an equally valid concern that there could be circumstances when a qualified instructor cannot immediately answer a substantive question during classroom training—so mandating classroom training is not necessarily the remedy for addressing this problem. The final rule addresses this concern by requiring that formal training include an opportunity for training participants “to have questions timely answered during the training or at a later date.” An employer, or other entity providing training, will need to establish procedures for providing participants the opportunity to have questions timely answered. For example, some course providers may give training participants an email address to send questions and promise to respond within five business days. Certainly, there are a wide-variety of reasonable procedures that could be established by course providers that could include registering a question by telephone, written form made available at the time of the training, or even instant-messaging (IM) during the training itself. However, in all such instances, procedures must be clear and provide the training participant an opportunity to have questions answered in a timely fashion.
The term refresher training refers to the periodic retraining an employer determines is necessary to keep a safety-related railroad employee qualified. This is the training required for previously qualified employees, not employees who are completely new to the subject matter. Refresher training is required pursuant to paragraph (e) of § 243.201. The term was used in the proposed rule, but was not defined in the NPRM. In consideration of a comment received, FRA has added this definition. Additional information about the comment and what is meant by refresher training is addressed in the Discussion of Specific Comments and Conclusions section.
Section 243.7Penalties and Consequences for Non-Compliance
This section was formerly proposed as § 243.9, but was renumbered because proposed § 243.7 (addressing the issue of waivers) was not retained in this final rule.
No comments were directly received with regard to proposed § 243.9 and it is identical substantively to the proposed version; thus, the analysis provided for in the NPRM is merely summarized here. See 77 FR 6425. Some commenters did raise questions regarding what civil penalty amounts would be reasonable if FRA were to take enforcement action, and those comments are addressed with regard to the analysis for appendix A, the schedule of civil penalties.
This final rule section provides minimum and maximum civil penalty amounts determined in accordance with the Federal Civil Penalties Inflation Adjustment Act of 1990, 101 Stat. 890, 28 U.S.C. 2461 note, as amended by the Debt Collection Improvement Act of 1996 Public Law 104-134, April 26, 1996, and the RSIA.
Subpart B—Program Components and Approval Process
Section 243.101Employer Program Required
Compared to the NPRM, this section only contains a few changes. In paragraphs (a) and (b), FRA extends the actual implementation dates significantly from the NPRM’s proposed dates. The broad issue of implementation dates is addressed in the Discussion of Specific Comments and Conclusions section of this document. Also in paragraph (b), FRA is making some substantive changes which are addressed below. Finally, this analysis includes a discussion of comments received with regard to paragraph (d)(3) of this section, to explain why FRA decided to reject an alternative to the proposed rule that FRA suggested in the NPRM’s section-by-section analysis.
Paragraph (a) differs from the NPRM as it was split into two paragraphs so that small entity employers could be provided with one year longer to comply with the training program submission requirement as compared to those employers subject to this part with 400,000 total employee work hours or more annually. Paragraphs (a)(1) and (a)(2) contain the general requirement for each “employer” to submit, adopt, and comply with a training program for its safety-related railroad employees. Both paragraphs (a)(1) and (a)(2) provide a significantly more generous deadline for compliance than what was proposed.
An employer’s program must be submitted and approved by FRA in accordance with the process set forth in §§ 243.107, 243.109, and 243.113. However, an employer’s duty is not complete upon submission of a program to FRA. The employer will also be required to adopt and comply with its program. By using the term “adopt,” FRA is requiring each employer to accept its training program as its own. Furthermore, an employer is obligated to comply with its program by implementing it. Thus, when adopted and complied with, FRA would expect the employer’s safety-related railroad employees to receive training in accordance with the employer’s program. Potentially, FRA could take enforcement action if an employer failed to comply with its approved training program. As with any potential enforcement action, FRA will use its discretion regarding whether to issue a warning, a civil monetary penalty, or other enforcement action. See 49 CFR part 209, appendix A.
NRC and ASLRRA recommend amending paragraph (b) of this proposed section so that an employer commencing operations subject to this part after the rule is implemented shall submit a training program within one year after commencing operations, instead of the proposed 90 days in advance of commencing operations. The commenters take the position that to do otherwise would stifle the entrepreneurial spirit of small business job creators. The commenters also state that many small business owners would not even know for certain that they would be starting a new business 90 days prior to commencing operations, much less be prepared to file an extensive training program with FRA. FRA agrees that the commenters have identified an issue, but disagrees on the approach to resolving the perceived conflict.
Paragraph (b) differs from the proposal in order to provide equal treatment of program review and implementation regardless of whether an employer commences operations after the appropriate deadline under paragraph (b) or submits a training program as an existing employer under paragraphs (a)(1) or (a)(2). FRA decided not to retain paragraph (b) as proposed in order to address the concerns FRA received regarding the difficulties of compliance that start-ups and joint ventures could face. The change will still require an employer under paragraph (b) to submit its training program prior to commencing operations, but will no longer contain the proposed requirement that the program be submitted at least 90 days prior to commencing operations. In addition, FRA has removed the proposed requirement that the employer wait for FRA to approve the program prior to adopting and complying with it. Instead, the final rule requires that the employer adopt and comply with its submitted training program no later than upon the commencement of operations. FRA does not agree with the comments suggesting that start-ups and joint ventures should be allowed to use employees for up to one year to perform safety-related duties without designating those employees in accordance with a training program filed with FRA. If FRA were to do so, FRA believes it would be creating a large loophole for many new businesses to use untrained or unqualified individuals in positions that endanger the lives of railroad employees and the general public. FRA notes that there is nothing in the regulation preventing an employer from implementing a training program prior to commencing operations so that its safety-related railroad employees are ready to work independently on its first day of operations. The employer is required to adopt and comply with the training program for the same reasons as explained in the analysis for paragraph (a).
As no comments were received regarding paragraphs (c) through (f), and those paragraphs are identical to the proposed versions, we are merely summarizing the rest of the requirements in this section.
Paragraph (c) requires a list of over-arching organizational requirements for each employer’s training program.
Paragraph (d) contains OJT training requirements that are essential to ensuring that OJT successfully concludes in a transfer of knowledge from the instructor to the employee (learning transfer), but only applies if a training program has OJT. As FRA alluded to in the analysis for the definition of OJT, too much OJT is currently unstructured and does not lead to learning transfer. OJT should not vary so much that one person can have a good mentor who is able to give the employee all the hands-on instruction the employee will need while another mentor makes the person simply watch the mentor do the job without any feedback, instruction, or quality hands-on experience. OJT should be a positive experience for the learner, as well as the mentor, with sufficient opportunity for practice and feedback.
In the NPRM, FRA explained that a manual and a checklist may serve similar, but not identical purposes. RSAC recommended that FRA only require one or the other, or another similar document. By requiring only one document, the requirement is less burdensome. However, FRA requested comments in the section-by-section analysis of the NPRM with regard to paragraph (d)(3). FRA wanted commenters to consider the distinctions between these types of documents, and whether FRA should promulgate this final rule with a requirement for both a manual and a checklist. 77 FR 6426-27. In response, a number of railroads and railroad association commenters unanimously voiced strong opposition to the suggestion that a manual and a checklist should be required. The commenters argued primarily that a requirement for both a checklist and a manual would be micromanaging that would reduce an employer’s flexibility to comply. AAR stated that “railroads might use different methods for different types of employees and different types of training [and thus] . . . [u]niform . . . requirements for the documentation of tasks are neither necessary nor desirable.” Although FRA strongly urges each employer to consider making both detailed manuals and the generally less detailed checklists available to all employees involved in OJT exercises, FRA has decided to provide each employer with the flexibility to choose which type of reference document must be made to employees involved in OJT exercises.
In concluding the analysis of this section, FRA responds to a comment by APTA requesting that FRA simplify the OJT requirements further. APTA suggests that the OJT does not have to be “a formalized program, replete with specific steps, tasks and methods that must be followed and documented in exacting detail.” FRA does not agree with APTA that the OJT requirements are too complicated and unnecessary. Without formalizing OJT, FRA will be unable to break the cycle of unstructured OJT practices by some employers that permit shadowing an experienced person without any confirmation of learning transfer on any particular safety-related tasks. If the rule failed to contain this requirement, the rule would likely fail to substantially improve safety. Certainly, each employer will need to review whether a previously imposed OJT program is too informal, and may not be able to maintain the status quo without adding structure or a defined curriculum as this rule requires for formal training.
Section 243.103Training Components Identified in Program
No comments were received that suggested specific changes with regard to this section and the final rule is identical to the proposed rule; thus, the analysis provided in the NPRM is merely summarized here. See 77 FR 6427-29.
Unlike § 243.101, which focuses on the general requirements for an employer’s training program, this section details the component requirements for each program. The main purpose for this section is to ensure that an employer provides sufficient detail so that FRA would be able to understand how the program works when the agency reviews the program for approval. It is expected that a failure to include one or more component requirements would result in disapproval of the program. In § 243.111, FRA also requires that training organizations and learning institutions include all information required for an employer’s program in accordance with this part, and this mainly means the information required in this section. Thus, each program submitter should ensure that each component requirement in this section is addressed.
Although the analysis for paragraph (b) of this section remains the same as that in the NPRM, FRA wants to emphasize that it provides an option for an employer to avoid submitting one or more similar training programs or plans when the employer has a separate requirement, found elsewhere in this chapter, to submit that similar program or plan to FRA. In order to take advantage of this option, an employer must choose to cross-reference any program or plan that it wishes not to submit in the program required by this part. In the NPRM, FRA listed the examples of FRA training programs that an employer may choose not to resubmit as located in §§ 214.307, 217.9, 217.11, 218.95, 236.905, and 240.101. After publication of the NPRM, FRA published a final rule regarding conductor certification at 49 CFR part 242. Certainly, the training program required by §§ 242.101 and 242.103 is another example of a program that may be referenced in the program required by this part without being submitted again.
During the Working Group meeting to discuss comments, AAR asked whether FRA will contact a railroad when a previously submitted program does not meet the training program criteria of this rule. FRA explained that paragraph (b) requires the employer to state in the training program filed under this rule that it has previously filed a training program in accordance with another FRA regulation. Once an employer has put FRA on notice of the previously filed program under a different regulation, it will be FRA’s burden to contact the railroad to address any perceived inadequacies.
Section 243.105Optional Model Program Development
This section of the final rule is identical to the proposed rule except for the addition of paragraph (a)(3). See 77 FR 6429-30. The addition of this paragraph was made to address FRA’s concerns raised in the NPRM that incentives should be offered to submitters of model programs so that they are encouraged to seek FRA’s approval of such programs at an early stage. Early approval of model programs would make it more likely that an employer could choose to adopt and comply with the model program. If a model program is not approved prior to the deadlines set forth in § 243.101(a)(1) and (a)(2) for each employer to submit a program, the model program is not likely to be of much use to employers.
To encourage early submission of model programs, FRA is guaranteeing that, as long as the submission is made prior to May 1, 2017, the program may be considered implicitly approved and implemented 180 days after the program is submitted unless FRA explicitly disapproves of the program. Although FRA encourages model program submitters to submit much earlier than this optional deadline, the deadline will permit programs submitted on April 30, 2017 to be implicitly approved on October 27, 2017—which is 65 days prior to the employer’s deadline, for those employers with 400,000 total employee work hours annually or more, under § 243.101(a)(1), and at least one year and 65 days prior to the small entity employer’s deadline under § 243.101(a)(2), as the small entity deadline may be extended depending on the date of issuance of FRA’s Interim Final Compliance Guide. Of course, FRA may explicitly approve the program in less than 180 days, which would also benefit the early model program submitter and the employers that intend to use the model program.
FRA also received one comment regarding this section that pertained to the use of unique identifiers for each model program, but has decided not to amend this section based on the comment. The commenter recommends that FRA assign a unique identification number to all training developers—whether they are employers or third-party developers. In the NPRM, FRA proposed that each entity submitting an optional model program should submit a unique identifier associated with the program, or FRA will assign a unique identifier. The proposal and final rule provide a training developer with the maximum flexibility to create its own unique identifier. If one submitter duplicates another entity’s identifier, FRA intends to notify the training developer so that entity has an opportunity to create another identifier. There does not appear to be any basis for supporting FRA’s creation of unique identification numbers for training developers versus the developers creating their own unique identifier.
During the RSAC process, FRA expressed that it wanted to encourage the development of model training programs that could be used by multiple employers. There are several reasons why model programs are desirable as an option. Smaller entities may struggle with the costs and burdens of developing a program independently; thus, a model program could reduce the costs, especially for smaller businesses. For instance, in the context of locomotive engineer training and certification programs required pursuant to 49 CFR part 240, FRA has worked with ASLRRA in developing model programs for use by short line and regional railroads. Furthermore, there are economies of scale that benefit FRA in helping organizations, associations, and other businesses to develop model programs that may be adopted by other entities. That is, the more businesses that adopt model programs, the fewer the number of programs FRA would need to closely scrutinize in the review process. FRA is willing to provide early and frequent feedback to any entity producing a model program. In that way, FRA can ensure that each model program will contain all of the necessary components of a successful program and can be implemented by multiple businesses with little fear of rejection during the program submission and approval process.
Paragraph (a) contains an option that would permit any organization, business, or association to submit one or more model programs to FRA for later use by multiple employers. As FRA explained in the preamble under the heading “Compliance Guide,” FRA will be publishing an interim final compliance guide in early 2015. Additionally, FRA has amended the proposal so that small entities will have at least four years to review FRA’s guidance prior to the requirement in § 243.101(a)(2) that a small employer file a training program. That schedule for publication of a compliance guide should also benefit model program developers who will want to reference the guide in their attempt to meet the May 1, 2017 submission deadline in § 243.105(a)(3). In addition to short line and regional railroads, FRA encourages similar types of contractors to submit model programs possibly developed by a common association. In some instances, it is foreseeable that several employers may hire an organization, such as a training organization or learning institution, to develop a model program for those multiple employers to submit to FRA. FRA notes that the model program would be the program for any employer that chooses to submit it, and it is not a program submitted on behalf of the training organization, business, or learning institution that developed the program. Another possibility is that one railroad or contractor develops a program for its own use that it later allows other entities to copy. FRA expects that some organizations, businesses, and associations may take a proprietary interest in any model program it develops; however, FRA would hope that the costs imposed on small entities would be reasonable. Although FRA does not intend to draft and develop programs for employers to use, FRA intends to provide guidance to any person or entity in the development of model or individual employer programs.
To aid users, model program developers may use a modular approach in the design phase. For example, a model program designed for Track Safety Standards (49 CFR part 213), will likely incorporate all subparts (A-G) of the regulation. A modular approach will enable small railroad that may have all “excepted track” to essentially only use the training materials associated with subparts A and F, since the regulation for excepted track only requires a weekly inspection and a record of the inspection. Similarly, any railroad that only operates trains for distances of 20 miles or less are not required to train to the full requirements of the Brake System Safety Standards for Freight (49 CFR part 232). Once again, a modular approach in the design phase will enable users to easily customize a model program to fit their operational needs.
Section 243.107Training Program Submission, Introductory Information Required
No comments were received recommending specific changes with regard to this section and the final rule is identical to the proposed rule; thus, the analysis provided in the NPRM is merely summarized here. See 77 FR 6430.
In this section, FRA requires specific information from each employer submitting a program. The required information will provide FRA with some introductory information that the agency will need to understand the employer’s approach to training. The information required in these paragraphs is intended to help put the training components in the program in some context before a reviewer reads the finer details of each component. For example, FRA may closely scrutinize a small railroad’s training program if the program states that the employer primarily conducts the training of its own safety-related railroad employees using its own resources. The reason that information may raise a concern is that smaller railroads would not always have qualified instructors to implement all the different types of training required by the Federal laws, regulations, and orders.
Section 243.109Training Program Submission, Review, and Approval Process
Several comments were received with regard to this section, but most of those comments did not persuade FRA to deviate from the provisions proposed in the NPRM. As the comments raised fairly narrow issues, the comments have been addressed in this analysis. As most of the final rule is identical to the proposed rule, the analysis provided in the NPRM is merely summarized here. Interested parties are directed to the NPRM for a more detailed discussion. The analysis in the NPRM can be found at 77 FR 6430-32. However, the following analysis explains the differences between the proposed rule and this final rule.
Paragraph (a)(1) addresses the issue of how employers must address apprenticeship, or similar intern programs, that have begun prior to submission of the employer’s initial program filed in accordance with this part. RSAC recommended that FRA address this situation so that those persons who had already started an apprenticeship-type training program would know that their training would not be mooted by this final rule. During the RSAC deliberations, there were general concerns raised that some 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 accepted the premise that as long as the apprenticeship-type training program is described in the employer’s initial program, that apprenticeship or similar intern program may continue unless FRA advises the employer of specific deficiencies.
As FRA explained previously in the section-by-section analysis to § 243.101, the agency chose to provide equal treatment to an employer whether it is submitting a training program as an existing employer (as of January 1, 2018 under § 243.101(a)(1) or as of January 1, 2019 under § 243.101(a)(2)) or as an employer commencing operations after January 1, 2018 under § 243.101(b). FRA decided to provide this equal treatment in order to address concerns FRA received regarding the difficulties of compliance that start-ups and joint ventures could face. In order to carry that equal treatment throughout the rule, FRA is requiring the same initial program submission requirements for both § 243.101(a) and (b) employers in paragraph (a)(2) of this section, and has removed proposed paragraph (a)(3) of this section. This will allow all employers to consider their initial program submissions to be approved and ready for immediate implementation. Railroads are already required to ensure proper training techniques prior to commencing their operations. Therefore, this rule should not create barriers to entry nor delays in starting new operations. More so, new railroads would have access to model training programs and best-in-class training practices. Therefore, they should be able to use their own human resources more efficiently for training purposes and possibly expedite entry into market.
FRA did not receive comments suggesting that allowing an employer to immediately implement a training program without explicit FRA-approval might prove problematic; however, FRA considered whether the final rule could be problematic in that regard. FRA starts with the premise that even before this final rule is effective, all safety-related railroad employees are required to comply with the applicable Federal railroad safety laws, regulations and orders. An employer is responsible for its employees, and thus FRA could hold an employer accountable for any violations committed by an employee. In FRA’s experience with program approval requirements, employers express the greatest anxiety over whether they can immediately implement a program versus having to wait for FRA’s explicit approval. By allowing employers to immediately implement a program, FRA believes it has relieved most anxiety that employers are likely to have. In FRA’s experience, it often takes several years before a latent problem in a training program is discovered. The open ended approval process permits FRA to go back years after initial approval and raise newly identified alleged instances of non-compliance. Although FRA will use enforcement when necessary, the agency’s primary goal is to improve training for safety-related railroad employees and FRA expects that its focus will be on employers taking effective remedial measures.
If an employer’s training program failed to meet the requirements of this final rule, there are two potential concerns. One concern is that the employer will incur additional training costs beyond what it would have incurred if FRA had rendered explicit approval prior to implementation and the second is that the employees will not be adequately trained. With regard to the first concern, FRA expects that most shortline railroads and contractors will use model programs previously FRA-approved in accordance with § 243.105. Because the model program would have received prior approval, FRA expects that any problems encountered will likely be with the implementation of the programs and not the programs themselves. Problems with implementation are likely to be discovered during investigations and audits, not during program reviews. If an employer is implementing its own individualized program. FRA expects that the worst case scenario is that the program would reflect the current state of the employer’s training program without formalizing OJT or other aspects of its training. Under these scenarios, FRA intends to instruct the employer on the requirements of the rule and request a plan to get the training program in compliance with the final rule. Enforcement action will be considered on a case-by-case basis, but certainly would not be warranted in every instance if swift remedial action can be accomplished. An employer filing an individualized training program might be able to avoid these issues by submitting its program much earlier than the applicable implementation deadline and thereby getting FRA-approval prior to implementation. With regard to the second concern that employees will not be properly trained, again, FRA does not see the problem as an employer failing to discuss a subject as an employer is responsible for an employee’s non-compliance even prior to the effective date of this rule. FRA believes the problems will be that the training is not sufficiently formalized to capture that an employee can complete each assigned task; as this is an essential element of this final rule, it seems that it would be a blatant disregard of the requirements of the rule for an employer to leave it out of its program. In those cases, enforcement action is likely appropriate and, depending on the circumstances, an employer will have to plan a fix for the next training cycle or immediate remedial measures.
In paragraph (b), FRA implements a requirement for an annual informational filing. This filing is intended to ease an employer’s regulatory burden by reducing the number of times an entire training program would need to be revised, resubmitted, and reviewed for approval on routine matters. An employer is required to submit a single informational filing no later than January 30 each calendar year that addresses any new safety-related Federal railroad laws, regulations, or orders issued, or new safety-related technologies, procedures, or equipment that were introduced into the workplace during the previous calendar year. The rule explains how FRA may advise individual employers, one or more group of employers, or the general public that an informational filing is not required for a particular issue.
APTA’s comment requests that each railroad be provided the discretion to file an information filing anytime it wants rather than within 30 days of the end of the calendar year. However, FRA notes that APTA has misinterpreted the requirement. Under paragraph (b) of this section, an employer must file an informational filing “not later than 30 days after the end of the calendar year in which the modification occurred, unless FRA advises otherwise.” There is no prohibition against an employer filing earlier than 30 days after the end of the calendar year in which the modification occurred. FRA has simply set a deadline for filing the informational filings, not a requirement that the filings can only be made within 30 days of the end of the calendar year.
Paragraph (c) sets forth the requirements for an employer that wants to revise a training program that has been previously approved. The requirement would allow substantial additions or revisions to a previously approved program to be considered approved and implemented immediately upon submission. For example, a program is considered revised if the employer adds any occupational categories or subcategories of safety-related railroad employees to the training program. Most other changes to an existing program would not be considered a substantial addition or revision but instead would likely require only an “informational filing” under paragraph (b).
AAR’s comment reiterated a concern raised during RSAC Working Group meetings that the final rule should contain the flexibility to implement modifications in a manner consistent with each railroad’s normal training schedule. After discussing the issue at the Working Group meeting to discuss the comments, it is FRA’s belief that the final rule contains the flexibility that AAR seeks. For example, under paragraph (b), “the employer must review its previously approved training program and modify it accordingly when new safety-related Federal railroad laws, regulations, or orders are issued, or new safety-related technologies, procedures, or equipment are introduced into the workplace and result in new knowledge requirements, safety-related tasks, or modification of existing safety-related duties.” Pursuant to paragraph (b), FRA expects that new legal requirements will contain their own implementation deadlines and that any employer implementing a new legal requirement will comply with that new legal requirement’s deadline. Paragraph (b) also requires that an employer that needs to modify its training program to implement a new legal requirement shall submit an informational filing to the Associate Administrator not later than 30 days after the end of the calendar year in which the modification occurred, unless FRA advises otherwise. In other words, the rule requires that the employer be permitted the flexibility to modify the program at any time but the employer is not required to notify FRA of the modification until January 30 in the year after the modification occurred. The informational filing is the employer’s notice to the FRA that the modification to the training program was made the previous year. As AAR’s members will have completed new training curriculums by January 1 of each year, summarizing the modifications and filing the changes in an informational filing to FRA by January 30 should not pose an obstacle for any railroad that wishes to continue its normal training schedule.
Similarly, there is no requirement in paragraph (c) that could possibly deter a railroad or contractor from having the maximum flexibility to implement modifications in a manner consistent with the employer’s training schedules. Paragraph (c) permits substantial additions or revisions to a previously approved program, that are not described as informational filings in accordance with paragraph (b) of this section, to be considered approved and ready for immediate implementation upon submission. Of course, if an employer chooses to submit the addition or revision during the early part of a newly started training cycle (e.g., January through March for a major railroad) and FRA finds the addition or revision does not conform to this part, the employer will potentially have trained and be continuing to train employees based on a non-conforming program. Thus, an employer that begins new training in January should make every effort to get FRA’s approval of an addition or revision prior to January.
FRA disagrees with APTA’s concerns regarding the training program submission, review, and approval process. APTA states that the approval process “stifles the development of innovative and progressive techniques in training methodologies which could provide better employee understanding and adherence.” APTA suggests that FRA add a provision to the final rule for a provisional status, such as “Conditional Acceptance” to allow for piloting or testing of new training approaches outside of misusing the waiver application for such a purpose. APTA is concerned that FRA will reject new training concepts or that an employer cannot utilize new training concepts until FRA approves a program. In response, FRA notes that under the rule, an employer could, at any time, submit substantial additions or revisions to a previously approved program and that the submission would be considered approved and may be implemented immediately upon submission. See§ 243.109(c). Thus, as an employer could change the method of course delivery (see§ 243.103 Training components identified in program) at any time after a program has been approved; a provision for conditional acceptance is unnecessary. The change will be considered accepted unless FRA determines that the new portion or revision to an approved program does not conform to this part; however, even then an employer will have 90 days to resubmit the program in accordance with the instructions provided by FRA.
APTA further comments that the disqualification procedure for the program was not well-defined in the NPRM and that due process should be provided. APTA is concerned about employers having to pay civil penalties for failing to resubmit conforming programs. FRA does not believe that additional procedures are warranted. The procedures are sufficiently defined and give FRA the discretion to address each type of non-conformance through enforcement. FRA believes it needs the discretion to decide the appropriate method of addressing non-conforming training programs. FRA does not expect civil penalties to be assessed for program deficiencies that are correctable and corrected within the time allotted to the employer. FRA envisions taking enforcement action when an employer has a deficient program that is not corrected within the 90 days provided, and the deficiency is likely to have an impact on the quality of the training or the non-conforming aspect of the program makes it difficult for FRA to properly assess the quality of the program. Whenever possible, FRA would consider the potential disruption in requiring an immediate fix to a deficient program and extend this 90-day period upon written request in accordance with paragraph (a)(2). Instead of requiring the deficiencies to be fixed within 90 days, FRA could allow changes in the program to be made during during the employer’s normal program review and implemented during the employer’s normal training cycle. Furthermore, FRA is not obligated to assess civil penalties or take other enforcement action, and does not anticipate doing so unless the agency deems that such action is warranted.
FRA also expects that, in some instances, FRA representatives will be meeting with the entity that submits the non-conforming program and discussing the issues FRA identifies as problematic. These types of meetings are expected to lead to a better understanding of FRA’s concerns, which FRA hopes would alleviate any anxiety that the agency is acting without understanding the submitter’s concerns. Finally, once a submitter has exhausted its requests for FRA to accept its program, the submitter may have a legal cause of action based on the agency’s final decision. Thus, the submitter will receive due process by appealing to Federal court after receiving an adverse final agency action. See Administrative Procedure Act, 5 U.S.C. 701-706.
The requirement in paragraph (d), to serve and involve labor organizations in the review of training programs, is for railroads only. One comment requested further clarification on what entities were obligated to comply with paragraph (d). For this reason, FRA clarifies that this requirement does not apply to any non-railroad entities that may have other obligations within this part. Thus, paragraph (d) does not apply to contractors, training organizations, and learning institutions that submit training programs. Paragraph (d) also does not apply to any model program submitters, unless the submitter is a railroad that intends to implement the model program on its own property following FRA approval.
FRA has also rejected AAR’s comments suggesting that the requirement for a railroad to maintain proof that it has served a labor organization president with a training submission, resubmission, or informational filing is unnecessary under paragraph (d)(1)(ii) of this section. AAR states that if a railroad failed to provide a labor organization president with service of the training program, the railroad would be subject to FRA enforcement. AAR also questions the need for the names and addresses of the people served, as it is anachronistic with the use of electronic service and electronic docketing systems. FRA notes that it has recently promulgated a similar provision in 49 CFR part 242, Conductor Certification, and that the agency’s concern is ensuring that the relevant labor organizations have sufficient time to review and provide FRA with feedback on the training submissions. When FRA reviews the program, if the agency notices that a certificate of service contains out-of-date or incorrect information then the agency can notify the railroad and relevant labor representatives of the error quickly. Certainly, if the labor organizations are amenable to being served by email or some other electronic means, the railroad would be required to capture that electronic address in addition to the name of the labor organization president served. FRA is less concerned with catching a railroad out of compliance than with ensuring that labor organizations have a full 90 days to comment on any program submission and not otherwise delaying the approval process because of improper service. Without a certificate of service, there is a greater likelihood that a railroad could intentionally or negligently fail to properly serve a labor organization. The certificate of service provides FRA with a relatively simple way to verify that the correct persons have been served.
Paragraph (d)(2) requires that each railroad labor organization has up to 90 days to file a comment. The reason for the 90-day deadline is that FRA would like to send approval notification to railroads in a timely fashion. Without a deadline for comments, the approval process would seem open ended. However, FRA realizes that, from time-to-time, a labor organization may find something objectionable in a previously approved program, and FRA encourages those types of comments to be filed as they are discovered. When a labor organization discovers an objectionable issue outside of the required 90-day window, FRA would still accept the comment and review the issue to see whether a revision to the training program is warranted.
Section 243.111Approval of Programs Filed by Training Organizations or Learning Institutions
Only one comment was received with regard to this section and it is addressed in this analysis without a need to change the proposal. FRA made a slight change to paragraph (b) in order to align the implementation deadline for training organizations and learning institutions with that of the other implementation deadlines in the final rule. Otherwise, the final rule is identical substantively to the proposed version and the analysis provided for in the NPRM is merely summarized here. Interested parties are directed to the NPRM for a more detailed discussion. The analysis in the NPRM can be found at 77 FR 6432-34.
The purpose of this section is to facilitate the option of using training organizations or learning institutions. An employer that intends to implement any training programs conducted by some other entity (such as a training organization or learning institution), or intends to qualify safety-related railroad employees previously trained by training organizations or learning institutions, has an obligation to inform FRA of that fact in the employer’s submission. If FRA has already approved the training organization or learning institution’s program, an employer could reference the approved program in its submission, avoid lengthy duplication, and likely expect a quick review and approval by FRA. Furthermore, individuals or employers that use training provided by training organizations or learning institutions need assurances that the training will meet or exceed FRA’s requirements prior to incurring any training expense. Without such assurances, an individual or employer may determine that paying for such training is not worth the risk.
Paragraph (b) requires that a training organization or learning institution that has provided training services to employers covered by this part prior to January 1, 2017 may continue to offer such training services without FRA approval until January 1, 2018. The final rule is more generous than the NPRM as it provides additional time for any training organization or learning institution to submit a program for FRA approval. FRA decided that since the final rule does not require any employer to submit a program prior to January 1, 2018, FRA should permit any training organization or learning institution to continue offering such training services without FRA approval until that date. Each training organization and learning institution should understand that its best interests are served by seeking early FRA approval of its training program so the program can be referenced by the employers who are its clients. In accordance with paragraph (d) of this section, explicit approval of such a program is required and the program will not be considered approved on submission. FRA will need time to review each program and it can be anticipated that the agency will be busy reviewing a large volume of programs late in 2017 and throughout 2018. Thus, each training organization and learning institution should plan to file its program as early as possible to avoid implementation delays.
Paragraph (c) requires that a program submitted by a training organization or learning institution must include all information required for an employer’s program in accordance with this part, unless the requirement could only apply to an employer’s program. In the section-by-section analysis in the NPRM, FRA explained that this sentence mainly refers to the requirements found in §§ 243.101 and 243.103. FRA received one comment requesting clarification as to whether § 243.103(a)(3) applies to employers only. In response to the comment, FRA notes that the citation refers to the requirement for an employer’s program to have a document for each OJT program component that includes certain information about the OJT program. FRA concludes that OJT would not be a required part of a program filed by a training organization or learning institution, but individual employers that utilize a training organization or learning institution may choose to supplement a program with OJT. It can be left to each employer to clarify that supplemental OJT issue in the employer’s program. Please note that OJT is not considered a mandatory program requirement and, other types of hands-on formal training provided by a training organization or learning institution may be considered an adequate substitute for OJT.
§ 243.113Electronic and Written Program Submission Requirements
In the NPRM, FRA raised the issue of whether the option to file a program electronically should be modified to mandate electronic filing. An electronic submission process would allow the agency to more efficiently track and review training programs than a written paper submission process would permit. FRA was also concerned with incurring costs in developing and maintaining an electronic submission process if many submitters opted out. FRA always has the option to add paper submissions to an electronic database, but FRA would have to allocate resources to digitize and upload those paper submissions to the database.
FRA received one comment that objected to mandatory electronic submission. ASLRRA disagreed with FRA’s assumption that even the smallest Class III railroads should have access to the Internet (or reliable access), and should therefore be able to file a training program electronically. FRA explored this issue with ASLRRA and the Working Group at the meeting held to discuss the comments filed in response to the NPRM.
FRA’s electronic submission mandate addresses the ASLRRA’s comment by creating an exception for an employer with less than 400,000 total employee work hours annually in paragraph (a) of this section. Typically, when FRA has created an exception for small entities (especially railroads), it has defined small entities as those having less than 400,000 total employee work hours annually. FRA’s exception is an accommodation that will spare small companies from requesting a waiver from the otherwise mandatory electronic submission process. Of course, nothing in this final rule precludes an employer with less than 400,000 total employee work hours annually from submitting its program electronically. If an employer does not meet the requirements for the exception and does not have the capability to file electronically, the employer may submit a waiver request to FRA, consistent with FRA’s general waiver provision found at 49 CFR part 211. Paragraph (a) also requires that all model programs be filed electronically in accordance with the requirements of this section.
In addition to the previously mentioned considerations, FRA considered that it is becoming routine for private and public transactions to occur electronically. It would currently be unusual for an employer to forego having a Web site that customers can visit. FRA also expects that many companies would prefer not to have to print out written materials to mail in when a paper free electronic submission process is available. For these reasons, FRA is best served by requiring electronic submission.
This section and section title were modified from the NPRM to reflect the mandatory nature of the electronic program submission and to acknowledge that the section also contains the requirements for a written submission. Other than the comment and changes previously discussed, only minor edits were made compared to the proposed section. Interested parties are directed to the NPRM for a more detailed discussion. The analysis in the NPRM can be found at 77 FR at 6434.
Paragraph (b)(1) was changed from the proposal so that it is clear that organizations, businesses, and associations may file a program, not just employers, training organizations, and learning institutions. Throughout the section, the term “person” was substituted for the term “entity,” which was not defined in the NPRM or this final rule.
FRA intends to create a secure document submission site and will need basic information from each company before setting up the user’s account. The points of contact information in paragraph (b) are necessary in order to provide secure access. FRA has already developed a prototype of the document submission site and has offered a variety of likely users that represent the gamut of the regulated community an opportunity to test the site. Based on feedback received from test users, FRA received valuable insight into the pros and cons of the prototype. If necessary, the secure site should be able to start accepting electronic submissions by the effective date of the rule, although FRA expects to make additional functionality improvements up to the date of publication of FRA’s compliance guide. FRA encourages every regulated organization and employer to obtain access to FRA’s secure document submission site early in the program drafting process in order to become familiar with what can be accomplished on the site and potentially to enter basic user or program information so that the contact for the organization or employer will only need to upload the relevant written program submissions as they are completed. By developing the electronic submission process years in advance before the first programs are required for submission, FRA intends to create an electronic submission process that is easy to use and provides benefits to both the user and the agency.
The requirements in paragraphs (c), (e), and (f) will allow FRA to make efficient use of this electronic database. It is anticipated that FRA will be able to approve or disapprove all or part of a program and generate automated notifications by email to an entity’s points of contact. Thus, FRA wants each point of contact to understand that by providing any email addresses, the entity is consenting to receive approval and disapproval notices from FRA by email. Entities that allow notice from FRA by email would gain the benefit of receiving such notices quickly and efficiently.
Paragraph (d) is necessary to provide FRA’s mailing address for those entities that need to submit a program submission in writing to FRA. Those entities that choose to submit printed materials to FRA must deliver them directly to the specified address. Some entities may choose to deliver a CD, DVD, or other electronic storage format to FRA rather than requesting access to upload the documents directly to the secure electronic database; although this will be an acceptable method of submission if the exception in paragraph (a) applies or the entity is granted a waiver, FRA would encourage each entity to utilize the electronic submission capabilities of the system. Please be advised that FRA will reject any submission if FRA does not have the capability to read it in the type of electronic storage format sent.
In the NPRM, FRA requested comments on whether this section should address the submission of proprietary materials or other materials that an entity wishes to keep confidential. This issue has been addressed previously under the Discussion of Specific Comments and Conclusions section of this document.
Subpart C—Program Implementation and Oversight Requirements
Once a program has been approved by FRA, each employer will have to comply with the requirements of this subpart. The subpart includes both implementation and oversight requirements. Some requirements apply only to railroads, and others to both railroads and contractors. Additionally, each training organization and learning institution will be required to maintain records as evidence of completed training.
Section 243.201Employee Qualification Requirements
Except for comments received regarding implementation dates, no comments were received requesting specific changes to this proposed section. FRA made some minor changes and clarifications to this section which are explained in the following analysis. This analysis summarizes all the requirements, but interested parties should reference the NPRM (77 FR 6434-36) for additional analysis on those requirements that are the same as the proposal.
The implementation dates in paragraphs (a), (b), and (e) have been extended from the proposal to address concerns raised in the comments. Paragraph (a), which requires each employer to designate existing employees, was split into two paragraphs so that smaller employers will have an extra year to comply with that requirement; this change from the proposal mirrors the change made to § 243.101(a) that provides smaller employers with an extra year to submit a training program. The implementation date issues are discussed in greater detail in the Discussion of Specific Comments and Conclusions section of this document, but FRA complied with the spirit of the agreement reached by the Working Group to delay the start of refresher training so that it does not interrupt the normal three year training cycle instituted by many employers. Paragraph (b) contains a conforming change to reflect the new implementation dates in paragraph (a) of this section. Paragraph (e) was also split into two paragraphs so that smaller employers will have an extra year to comply with the refresher training requirements. In addition, in order to explain FRA’s intent regarding when refresher training is due when the last training event occurs prior to FRA’s approval of the employer’s training program, some clarifying language has been added to paragraphs (e)(1) and (e)(2). This clarification is explained in more detail later in this analysis.
In the NPRM, FRA raised the issue of whether proposed paragraph (f) should stand alone or be combined with proposed paragraph (c)(2) of this section. That is, the proposed paragraph (f) requirement related directly to situations in which “as part of the OJT process and prior to completing such training and passing the field evaluation, a person may perform such tasks under the direct onsite observation of any qualified person, provided the qualified person has been advised of the circumstances and is capable of intervening if an unsafe act or non-compliance with Federal railroad safety laws, regulations, or orders is observed.” Because proposed paragraph (f) provided the context of what is a “qualified person” under paragraph (c)(2) of this section, FRA has decided that the proposed paragraph (f) requirement should be incorporated into the final paragraph (c)(2). This information explains why FRA deleted proposed paragraph (f) of this section.
This section includes an exemption for existing employees to be designated for a particular occupational category or subcategory without further training, provides procedures for qualifying those employees that are not exempted by the employer for a particular occupational category or subcategory, and requires each employer to deliver refresher training. FRA’s intention is to ensure that all safety-related railroad employees receive proper initial training if previously unqualified, and that all previously qualified employees receive refresher training at regular intervals to ensure continued compliance. FRA encourages each employer to find ways to provide remedial training and retesting of any employee that fails to successfully pass any training or testing. Under this part, a failure of any test or training does not bar the person from successfully completing the training or testing at a later date. Of course, FRA does not regulate employment issues and will leave those issues to be settled in accordance with any applicable collective bargaining agreement or employment and labor law.
Paragraph (e) of this section requires that each employer shall deliver refresher training at an interval not to exceed three calendar years from the date of an employee’s last training event, except where refresher training is specifically required more frequently in accordance with this chapter. Comments were raised at the Working Group meeting regarding how to treat employees who are already receiving refresher training in a three year cycle. The commenters wanted to clarify that FRA would not be requiring every existing employee to receive refresher training in the same year, which would disrupt the current refresher training cycle as well as be expensive and logistically difficult. The commenters correctly stated FRA’s position, although FRA determined that the proposal could be improved to articulate that position more clearly. The regulatory language indicates that the employer is required to conduct refresher training at an interval based on “an employee’s last training event.” Based on the comments, FRA has added clarification in the rule to further bolster the agency’s intent that if the last training event occurs prior to FRA’s approval of the employer’s training program, the employer shall provide refresher training either within 3 calendar years from that prior training event or no later than December 31, 2022 or December 31, 2023, depending on the size of the employer. The changes from the proposal do not prevent an employer from initiating and completing its first round of refresher training all within the year of the applicable deadline established by paragraphs (e)(1) or (e)(2). However, the final rule allows for any employer to begin or continue implementing refresher training on a three calendar year cycle for one-third of its workforce each year without creating any logistical issues.
Several comments were received with regard to this section and they are addressed in this analysis. Compared to the NPRM, this section is substantially the same except that proposed paragraph (b)(5) was deleted, resulting in the renumbering of the remaining numbered paragraphs in paragraph (b); paragraph (c) was amended to address comments suggesting that certain types of records should only be required to be kept at one of the employer’s headquarters location within the United States; and, the electronic recordkeeping requirements were revised to more closely resemble FRA’s latest approach in this chapter. As most of the final rule is identical to the proposed rule, the analysis provided in the NPRM is merely summarized here. Interested parties are directed to the NPRM for a more detailed discussion. See 77 FR 6436-38.
An essential requirement of any training program is the maintenance of adequate records to support that the training was completed. In paragraph (a) of this section, FRA sets forth the general requirements for each safety-related railroad employee’s qualification status records and the accessibility of those records. One commenter asks whether a railroad will be required to maintain records for its contractors. The answer to the question is found in paragraph (a) which requires that each employer is responsible for keeping records of each of its own safety-related railroad employees. Thus, a railroad is not required to maintain records for any contractor’s safety-related railroad employees. It is the contractor that is responsible for keeping records of its own employees.
In paragraph (b), FRA requires that certain core information be kept in the records for each current or former safety-related railroad employee. As mentioned previously in this analysis, proposed paragraph (b)(5) was deleted. In the NPRM, FRA questioned whether proposed paragraph (b)(5) was necessary as it would have required that the records for each current or former safety-related railroad employee indicate whether the person passed or failed any tests associated with training even though paragraph (b)(4) requires that the employer indicate in the records that the person successfully completed a specified formal training course. FRA received four comments supporting removal of proposed paragraph (b)(5) as unnecessary and none in support of retaining the provision.
Paragraph (c) contains a three-year record retention requirement for any records that are not individual employee records. The records referred to here would mainly be those kept in accordance with periodic oversight (§ 243.205) and the annual review (§ 243.207). The proposed three-year window for retention would actually be a bit longer than 3 years because it would be measured as three calendar years after the end of the calendar year to which the event relates. Thus, if a test occurred on March 1, 2018, the record would need to be maintained through December 31, 2021.
Paragraph (c) also requires that any records that are not individual employee records must be accessible at one headquarters location within the United States. This paragraph lists different types of acceptable headquarters locations, but this is not an all-inclusive list and certainly other locations may be suitable. However, FRA has specifically rejected the idea that a multi-national corporation could maintain these records exclusively in a foreign location as doing so could hamper FRA’s enforcement activities. FRA eliminated the proposed requirement that these records also be kept at each division headquarters where the test, inspection, annual review, or other event is conducted after considering the overwhelming negative comments received. Thus, the revisions to this paragraph provide the flexibility sought by employers to choose where to maintain records, as well as eliminating the proposed requirement that the records also be maintained at certain division headquarters.
Paragraph (d) contains the requirements for each employer, training organization, or learning institution to make available any record that it is required to maintain under this part.
Paragraph (e) contains the requirements that apply for each employer, training organization, or learning institution that chooses to retain the information prescribed in this section by maintaining an electronic recordkeeping system. FRA decided not to retain the same provisions that were in the NPRM because the agency recently promulgated electronic recordkeeping provisions in the conductor certification final rule that provide a more up-to-date version of such requirements. See 49 CFR 242.203(g). NRC recommends deleting paragraphs (e)(1) through (e)(3) from this proposed section arguing that small contractors would find the requirements too prescriptive to comply with. In response, FRA disagrees with the comment that a small business would have difficulty complying with proposed paragraph (e)(3) or paragraph (e)(2) of the final rule, which requires limiting access and identifying individuals with access. Off-the-shelf software should be available to small businesses that would provide the appropriate security necessary to comply with these requirements. FRA is concerned that if these electronic recordkeeping system requirements are relaxed for small businesses that the integrity of the records would be susceptible to inadvertent changes or outright falsification. Individual employers may file a waiver request, using FRA’s standard procedures in 49 CFR part 211, and provide alternative assurances to the integrity of an electronic system to bolster such a request.
Paragraph (f) contains a transfer of records requirement with the goal of preserving training records that might otherwise be lost when an employer ceases to do business.
Section 243.205Periodic Oversight
FRA had requested comments on whether to expand periodic oversight beyond what was proposed in the NPRM, but the only comment FRA received with regard to this section requested that FRA not consider any additional oversight necessary. Considering the comment and the RSAC’s recommendation, FRA has decided to keep this section of the final rule identical to the proposed version except for one non-substantive change discussed in this analysis. Thus, the analysis provided for in the NPRM is still applicable and merely summarized here. Interested parties are directed to the NPRM for a more detailed discussion. The analysis in the NPRM can be found at 77 FR 6438-41.
There are two central purposes to conducting periodic oversight under a training rulemaking. One central purpose is to take notice of individual employees who are in non-compliance and to take corrective action to ensure that those specific employees know how to do the work properly. In some instances, the employee might need coaching or retraining, especially if the person has not had much experience doing the work. In other instances, training may not be an issue and other remedial action may be appropriate. A second central purpose in conducting periodic oversight is to look at all of the oversight data as a whole to detect patterns of non-compliance. The annual review in § 243.207 is intended to spur such a global review of training and trigger adjustments that improve the effectiveness of training courses. Taken together, these oversight and review actions should lead to significant improvements in compliance and the overall quality of training programs. The recording of oversight, and the identification of problem areas, is intended to compel each employer to focus on how a training course can be improved to place greater emphasis on the causes of such non-compliance.
Paragraph (a) contains the general periodic oversight provision and limits the required testing and inspection oversight to the Federal railroad safety laws, regulations, and orders particular to FRA-regulated personal and work group safety. The Federal railroad safety laws, regulations, and orders particular to FRA-regulated personal and work group safety that FRA is referring to are currently limited to 49 CFR part 214 (Railroad Workplace Safety), part 218 (Railroad Operating Practices), and part 220 (Railroad Communications). These particular compliance issues are not currently required to be as closely monitored as train movements and other railroad operations. For that reason, FRA would like to close that gap and have employers more closely monitor the activities of largely maintenance-of-way, signal, and operations personnel (who are not conductors or locomotive engineers, see§ 243.205(b)) that are required to abide by the listed regulations related to FRA-regulated personal and work group safety. Thus, this section does not impose periodic oversight requirements for each and every Federal railroad safety law, regulation, and order that the training program required by § 243.101 covers.
Periodic oversight means regularly conducting both tests and inspections. In this context, a test is conducted by a qualified supervisor who changes the work environment so that one or more employees would need to act to prevent non-compliance. An inspection involves a qualified supervisor observing one or more employees at a job site and determining whether the employees are in compliance.
Paragraph (b) exempts railroads from conducting periodic oversight under this part on certified locomotive engineers and conductors as those safety-related railroad employees are already covered by similar requirements found elsewhere in this chapter.
Although only paragraph (c) contains the heading “[r]ailroad oversight,” paragraphs (c) through (f) need to be read together in order to fully understand the responsibilities for each railroad as it performs oversight. Generally, a railroad is required to provide periodic oversight tests and inspections for the safety-related railroad employees that it authorizes to perform safety-related duties on its property. Paragraph (c) lists several exceptions to this general rule.
Paragraph (d) limits a railroad’s requirement to conduct periodic oversight of a contractor’s employees. In situations where a railroad is obligated to conduct oversight of a contractor’s employees, a railroad would not be required to perform operational tests of safety-related railroad employees employed by a contractor. Please note that although paragraph (d) does not require a railroad to conduct operational tests of safety-related railroad employees employed by a contractor, this provision does not prohibit it either.
Paragraph (e) provides each railroad with significant discretion to conduct oversight of a contractor’s safety-related railroad employees when it is convenient for the railroad. Each railroad has the discretion to choose when it is convenient to conduct oversight of contractors. Paragraphs (e)(1) and (e)(2) suggest that a railroad may choose to require supervisory employees to perform oversight under certain conditions.
Paragraph (f) requires that when a railroad finds evidence of contractor employee non-compliance during the periodic oversight it shall provide that employee and that employee’s employer with details of the non-compliance. The final rule substitutes “a railroad” for “any railroad,” but the meaning is the same as the requirement applies to each and every railroad that finds such evidence of a contractor employee’s non-compliance.
Paragraph (g) requires each contractor to conduct periodic oversight tests and inspections of its safety-related railroad employees provided that certain conditions are met. If any condition is not met, the contractor is exempt from being required to perform the oversight. For instance, in paragraph (g)(1) there is a small business exemption for any contractor that employs 15 or fewer safety-related railroad employees.
Paragraph (h) would allow a railroad and a contractor to agree that the contractor will provide the periodic oversight, notwithstanding the requirements of this section that impose the requirements on either the railroad or the contractor. With that understanding, the RSAC proposed that in order to accept this oversight responsibility, the contractor would need to address in its program that the railroad has trained the contractor employees responsible for training and oversight. In other words, the contractor may accept responsibility for the oversight, but not until the railroad trains the contractor’s supervisory employee and qualifies that person to do the oversight; thus, the railroad has some obligation to ensure that the contractor’s supervisory employees are capable of conducting the oversight before abdicating what would otherwise be the railroad’s responsibility.
Paragraph (i) contains the requirements for retaining oversight records and paragraph (j) contains the statement that the records required under this section are subject to the requirements of § 243.203, which is the section containing the recordkeeping requirements of this part. In the NPRM, FRA requested comments on whether paragraph (j) is necessary given that the requirements of § 243.203 would apply to any records of period oversight required under this part even if paragraph (j) was deleted. Although FRA has not received any comments on this issue, FRA is retaining paragraph (j) as a reminder that records of periodic oversight must be retained and that without the paragraph some employers might not grasp that the recordkeeping requirements apply under these circumstances.
FRA also sought comments on a potential scope issue that would allow some situations where safety-related railroad employees would not be subject to any oversight. Those situations would likely occur when a short line railroad hires a contractor with 15 or fewer safety-related railroad employees. It is possible that the short line railroad would not have the supervisors with the expertise necessary to conduct the oversight and the contractor would be too small to be required to do it themselves per the requirements of this section. As FRA did not receive any comments raising concerns with this scope issue, FRA has decided to finalize its proposal for the reasons acknowledged in the NPRM. Of course, if FRA receives information that supports addressing this issue, FRA can initiate a rulemaking to amend the rule accordingly.
Section 243.207Annual Review
FRA has decided to keep this section of the final rule identical to the proposed version, except for a non-substantive change to paragraph (b) to clarify that this section does not apply to a railroad with less than 400,000 total employee work hours annually. Thus, the analysis provided for in the NPRM is still applicable and merely summarized here. Interested parties are directed to the NPRM for a more detailed discussion. The analysis in the NPRM can be found at 77 FR 6441-43. The comments received with regard to this section have been addressed in this analysis.
Paragraph (a) of this section requires that each railroad with at least 400,000 total employee work hours per year must conduct an annual review in accordance with the requirements of this section. This section only applies to railroads except that, in accordance with paragraphs (a) and (f), contractors must use any information provided by railroads to adjust training specific to the Federal railroad safety laws, regulations, and orders particular to FRA-regulated personal and work group safety. In order to address a comment suggesting proposed paragraph (b) seemed to include railroads with less than 400,000 total employee work hours per year despite the exclusion in paragraph (a), FRA has added a reference to this exception in an introductory phrase to paragraph (b). FRA anticipates that this non-substantive change will prevent further misunderstandings of the agency’s intent.
It is likely that most annual reviews will reveal that the current method of formal training covers the subject matter, but some aspect of the training could be improved. For example, it might be determined that the training could place more emphasis on compliance with one or more specific tasks. Greater emphasis could be placed on the task by increasing the amount of time covering how to perform the task and the problems that could be encountered when conducting the task. The course materials should be reviewed to see if they could be improved for clarity. In other instances, especially when the pattern of non-compliance is detected in a safety-related task, adding an OJT or hands-on component, or adding more repetitions within the OJT or hands-on component, may increase an employee’s proficiency and lead to more lasting compliance. In still other instances, adding opportunities for individualized instruction and feedback could cut down on non-compliance. It could also be determined that a particular instructor is ineffective, or some other aspect of the way the course is delivered is not conducive to learning.
There are certainly a number of ways to improve training and that is why it is important that each person a railroad designates to conduct the annual review should be familiar with the training program filed with FRA. The rule does not mandate that the designated person in paragraph (c) have any specific knowledge requirements; although the NPRM requested comments on whether there should be any such requirements, FRA did not receive any comments on this issue. Consequently, FRA is maintaining the position it took in the proposal that the person designated to conduct the review will need to have extensive information about the training program and individual course material, as well as direct access to shape the methods of delivery. Again, the annual review is intended to effect change in how training is delivered to improve performance and should not be viewed as the end itself.
In the NPRM, FRA explained that paragraph (f) requires that contractors have a duty to use any information provided by railroads to adjust training specific to the Federal railroad safety laws, regulations, and orders particular to FRA-regulated personal and work group safety. FRA solicited comments regarding this paragraph because FRA was concerned that it failed to address a situation in which a contractor disagrees with the railroad’s information that a modification to a training program is necessary. FRA received three comments on this issue and all three comments took the position that FRA should not address such potential conflicts between a railroad and a contractor. The NRC, ASLRRA, and AAR were unified in their position that such conflicts should be handled without Federal intervention and during the normal course of business. As FRA does not have a strong rationale for addressing these potential conflicts between a railroad and a contractor, FRA has decided not to change the rule from the proposal.
Section 243.209Railroad Maintained List of Contractors Utilized
FRA has decided to keep this section of the final rule identical to the proposed version. Thus, the analysis provided for in the NPRM is still applicable and merely summarized here. See 77 FR 6443-44.
One issue that was repeatedly raised during the RSAC meetings was that employees of contractors routinely work alongside employees of railroads. From an enforcement viewpoint, it is essential that FRA be able to identify which employees work for railroads and which for contractors. When an employee works for a contractor, FRA can sometimes find it an additional burden to figure out basic contact information for the contractor employer. This section is intended to require each railroad to maintain a list of the contractors it uses and some basic contact information about each of those contractors.
With this basic information, FRA should be able to track down a contractor to follow-up during any audit or investigation.
FRA did not publish a proposed penalty schedule because such penalty schedules are statements of policy, and thus notice and comment are not required prior to their issuance. See 5 U.S.C. 553(b)(3)(A). FRA has published similar penalty schedules in each of its existing rules and this practice is described in 49 CFR part 209, appendix A, under the heading “Penalty Schedules: Assessment of Maximum Penalties.” The schedule is intended to set penalty levels commensurate with the severity of the violation for typical violations, whether willful or non-willful. Of course, the penalty schedule does not constrict the agency’s authority to issue a penalty anywhere in the range from the statutory minimum amount to the statutory maximum amount.
In the NPRM, FRA reminded interested parties that they were welcome to submit their views on what penalties may be appropriate. FRA received three comments requesting that FRA adopt a penalty schedule at the lowest or lower range of possible penalties. Each commenter expressed a different reason why low penalties in the schedule are warranted.
ASLRRA asked that FRA adopt a penalty schedule at the lowest range of possible penalties which reflects the low threat to safety which training rule infractions represent. ASLRRA is concerned that onerous penalties against small railroads for recordkeeping and procedural errors will waste resources when few of those types of non-complying conditions are likely to have a direct, adverse, or serious consequence on the immediate safety to employees or the public. In response, it should be noted that regardless of recommended standard penalties in a schedule, FRA is always free to adjust penalties for small entities based on ability to pay and a variety of mitigating factors. See 49 CFR part 209, appendix C.
AAR urged FRA to adopt a penalty schedule with the potential penalties at the lower end of the penalty ranges normally found in FRA’s penalty schedules. AAR argues that it is extremely unlikely that violations of the training requirements would lead directly to accidents. Furthermore, AAR stated that the railroads already have a record of providing sufficient training to their employees. In response, FRA acknowledges AAR’s position and believes it has been taken into account in the penalty schedule. Of course, there are many other factors to consider in creating this penalty schedule. For example, some penalties may be geared towards one-time violations when others are for systemic issues; in that case, it may be appropriate to propose higher penalties on average for systemic non-compliance than a violation involving a single occurrence. FRA has also considered that gaps in training or ineffective training are often found to be contributing causes to accidents/incidents.
NRC urges FRA to adopt a penalty schedule with the potential penalties on the lowest end of the penalty ranges normally found in FRA’s penalty schedules in order to consider the “unprecedented level of direct interaction between the FRA and hundreds of rail contractors that have little previous experience being directly regulated by a federal agency.” Again, FRA appreciates the comment and can make adjustments to assessed penalties on a case-by-case basis depending on the totality of the legal and factual circumstances. Contractors unfamiliar with FRA’s civil penalty process should consult 49 CFR part 209, appendix A for a description of that process and the factors FRA considers when deciding the amount or the appropriateness of any penalty. FRA also understands that NRC’s comment refers to the fact that FRA is an active enforcement agency that conducts inspections and audits of regulated entities on a continual basis, not just when an accident/incident occurs. Some rail contractors may be more familiar with other Federal agencies that rarely are quite as active as FRA in that regard. Despite the truth to NRC’s comment that some contractors may not have experience with an active Federal enforcement agency, FRA does not agree that the penalty schedule amounts should be adjusted lower to account for employers that lack that experience.