Training, Qualification, and Oversight for Safety-Related Railroad Employees, 6412-6461 [2012-2148]

Agencies

• Federal Railroad Administration
• DEPARTMENT OF TRANSPORTATION

[Federal Register Volume 77, Number 25 (Tuesday, February 7, 2012)]
[Proposed Rules]
[Pages 6412-6461]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2012-2148]



[[Page 6411]]

Vol. 77

Tuesday,

No. 25

February 7, 2012

Part IV





Department of Transportation





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Federal Railroad Administration





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49 CFR Parts 214, 232, and 243





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

Federal Register / Vol. 77 , No. 25 / Tuesday, February 7, 2012 / 
Proposed Rules

[[Page 6412]]


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DEPARTMENT OF TRANSPORTATION

Federal Railroad Administration

49 CFR Parts 214, 232, and 243

[Docket No. FRA-2009-0033, Notice No. 1]
RIN 2130-AC06


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

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

ACTION: Notice of proposed rulemaking (NPRM).

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SUMMARY: FRA proposes regulations establishing minimum training 
standards for each category and subcategory of safety-related railroad 
employee, as required by the Rail Safety Improvement Act of 2008. The 
proposed rule would require each railroad or contractor that employs 
one or more safety-related railroad employee to develop and submit a 
training program to FRA for approval and to designate the qualification 
of each such employee. As part of that program, most employers would 
need to conduct periodic oversight of their own employees to determine 
compliance with Federal railroad safety laws, regulations, and orders 
applicable to those employees. The proposal would also require most 
railroads to conduct annual written reviews of their training programs 
to close performance gaps. Furthermore, FRA proposes specific training 
and qualification requirements for operators of roadway maintenance 
machines that can hoist, lower, and horizontally move a suspended load. 
Finally, FRA proposes minor clarifying amendments to the existing 
training requirements for railroad and contractor employees that 
perform brake system inspections, tests, or maintenance.

DATES: Written Comments: Written comments on the proposed rule must be 
received by April 9, 2012. Comments received after that date will be 
considered to the extent possible without incurring additional expense 
or delay. FRA anticipates being able to determine these matters without 
a public hearing. However, if prior to March 8, 2012, FRA receives a 
specific request for a public hearing accompanied by a showing that the 
party is unable to adequately present his or her position by written 
statement, a hearing will be scheduled and FRA will publish a 
supplemental notice in the Federal Register to inform interested 
parties of the date, time, and location of any such hearing.

ADDRESSES: You may submit comments identified by the docket number FRA-
2009-0033 by any one of the following methods:
     Fax: 1-202-493-2251;
     Mail: U.S. Department of Transportation, Docket 
Operations, M-30, West Building Ground Floor, Room W12-140, 1200 New 
Jersey Avenue SE., Washington, DC 20590;
     Hand Delivery: U.S. Department of Transportation, Docket 
Operations, West Building Ground Floor, Room W12-140, 1200 New Jersey 
Avenue SE., Washington, DC 20590, between 9 a.m. and 5 p.m., Monday 
through Friday, except Federal holidays; or
     Electronically through the Federal eRulemaking Portal, 
https://www.regulations.gov. Follow the online instructions for 
submitting comments.
    Instructions: All submissions must include the agency name, docket 
name and docket number or Regulatory Identification Number (RIN) for 
this rulemaking (2130-AC06). Note that all comments received will be 
posted without change to https://www.regulations.gov, including any 
personal information provided. Please see the Privacy Act heading in 
the SUPPLEMENTARY INFORMATION section of this document for Privacy Act 
information related to any submitted comments or materials.
    Docket: For access to the docket to read background documents or 
comments received, go to https://www.regulations.gov at any time or to 
U.S. Department of Transportation, Docket Operations, M-30, West 
Building Ground Floor, Room W12-140, 1200 New Jersey Avenue SE., 
Washington, DC, between 9 a.m. and 5 p.m., Monday through Friday, 
except Federal holidays.

FOR FURTHER INFORMATION CONTACT: Michael Logue, Deputy Associate 
Administrator for Safety Compliance and Program Implementation, U.S. 
Department of Transportation, Federal Railroad Administration, Mail 
Stop 25, West Building 3rd Floor West, Room W38-340, 1200 New Jersey 
Avenue SE., Washington, DC 20590 (telephone: (202) 493-6301); Robert J. 
Castiglione, Staff Director--Technical Training, U.S. Department of 
Transportation, Federal Railroad Administration, 4100 International 
Plaza, Suite 450, Fort Worth, TX 76109-4820 (telephone: (817) 447-
2715); or Alan H. Nagler, Senior Trial Attorney, U.S. Department of 
Transportation, Federal Railroad Administration, Office of Chief 
Counsel, RCC-10, Mail Stop 10, West Building 3rd Floor, Room W31-309, 
1200 New Jersey Avenue SE., Washington, DC 20590 (telephone: (202) 493-
6038).

SUPPLEMENTARY INFORMATION: 

Table of Contents for Supplementary Information

I. Executive Summary
II. Statutory Background
III. RSAC Overview
IV. RSAC Training Standards and Plans Working Group
V. Employees Charged With Inspection of Track or Railroad Equipment
VI. Incentives for Early Filing of Program
VII. Section-by-Section Analysis
VIII. Regulatory Impact and Notices
    A. Executive Order 12866 and DOT Regulatory Policies and 
Procedures
    B. Regulatory Flexibility Act and Executive Order 13272; Initial 
Regulatory Flexibility Assessment
    C. Paperwork Reduction Act
    D. Federalism Implications
    E. International Trade Impact Assessment
    F. Environmental Impact
    G. Unfunded Mandates Reform Act of 1995
    H. Energy Impact
    I. Privacy Act

I. Executive Summary

    FRA is proposing that FRA's training experts review training 
programs that will be used to train safety-related railroad employees. 
All programs will have to be approved by FRA prior to their 
implementation. FRA's expectation is that the programs submitted for 
approval will reflect the insights of training models that are 
recognized and generally accepted by the academic and training 
communities for formal initial training, on-the-job training, and 
refresher training. Furthermore, FRA expects that these training 
programs will use ``hands-on'' or engaging training methods where 
practicable and appropriate. These programs will include: Initial, 
ongoing, and on-the-job training criteria; testing and skills 
evaluation measures designed to ensure continual compliance with 
Federal standards; and the identification of critical safety defects 
and plans for immediate remedial actions to correct them.
    The scientific literature on training in general and FRA's own 
experience with training in the railroad industry show a clear link 
between the quality of training programs--including whether training is 
engaging or ``hands-on''--and safety. Even though rail transportation 
in the United States is generally an extremely safe mode of 
transportation, and rail safety has been improving, well-designed 
training programs have the potential to further reduce risk in the 
railroad environment. FRA believes that better designed training can 
reduce the number of accidents caused by human factors.
    FRA has estimated the costs of this proposed rule, evaluated over a 
20-year

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period and using discount rates of 3 and 7 percent. The total cost of 
the proposed rule is estimated to be about $81.6 million, discounted at 
a 3 percent rate, and about $64.1 million, discounted at a 7 percent 
rate. Table 1 below lists specific costs elements and each element's 
estimated cost over the first twenty years following promulgation of 
the proposed rule, as well as the total cost estimates.

   Table 1--Costs of the Proposed Rule, Evaluated Over 20-Year Period
------------------------------------------------------------------------
                                            Twenty-year     Twenty-year
              Cost element                   total (3%       total (7%
                                          discount rate)  discount rate)
------------------------------------------------------------------------
Creating and revising training programs       $1,999,728      $1,564,484
 and performing annual reviews, original
 program users..........................
Creating and revising training programs          179,116         129,245
 and performing annual reviews, model
 program users..........................
Creating and revising training programs,       4,751,465       3,428,505
 model program users with <400k annual
 labor hours............................
Customizing model programs..............         910,245         842,919
Designating employees by class or craft.         771,316         709,480
Additional time in initial training.....      16,539,877      12,235,174
Additional time in refresher training...      25,456,709      18,831,293
Periodic oversight tests and inspections      15,242,583      11,275,517
Additional qualification testing........      15,741,416      15,075,836
                                         -------------------------------
    Total...............................      81,592,455      64,092,452
------------------------------------------------------------------------

    Additionally, FRA has performed a breakeven analysis of the 
proposed rule, estimating the reduction in human factors-caused 
accidents that would be required in order for the benefits of the 
proposed rule to at least offset the costs. FRA believes the proposed 
rule would reduce human factors-caused accidents primarily through 
requiring that training programs include ``hand-on'' training 
components. Reductions in human factors-caused accidents will result in 
fatalities avoided, injuries avoided, and property damage avoided. 
Table 2 below shows the total present discounted annual costs of human 
factors accidents that would be incurred over the next 20 years without 
this proposed rule, where injuries and fatalities have been monetized 
according to DOT policies. Table 2 also shows the percent reduction in 
human factors-caused accidents that would be necessary for the 
monetized reduction in fatalities, injuries, and property damages 
caused by these accidents to justify implementation of the proposal. 
This calculation takes into account various recent and concurrent 
initiatives to address human factor-caused accidents, including 
implementation of positive train control systems, revisions to hours of 
service regulations, development of conductor certification standards, 
and implementation of programs to address fatigue and electronic device 
distraction among others.

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

    FRA estimates that this proposed rule will break even if it results 
in a twenty-year total reduction in human factors-caused accidents of 
7.3 percent using a 3 percent discount rate, and a reduction of 7.1 
percent using a 7 percent discount rate. Given the role and prevalence 
of human factor-caused accidents in the railroad industry and the 
relationship between quality training and safety, FRA believes it is 
not unreasonable to expect that improvements in training as proposed in 
this rule would yield safety benefits that will exceed the costs.

II. Statutory Background

    Pursuant to the Rail Safety Improvement Act of 2008 Sec.  401(a), 
Public Law 110-432, 122 Stat. 4883, (Oct. 16, 2008) (codified at 49 
U.S.C. 20162) (hereinafter ``RSIA'') Congress required the Secretary of 
Transportation (Secretary) to establish minimum training standards for 
safety-related railroad employees and the submission of training plans 
from railroad carriers, contractors, and subcontractors for the 
Secretary's approval. The Secretary delegated this authority to the 
Federal Railroad Administrator. 49 CFR 1.49(oo).
    Section 20162 of 49 U.S.C. (Section 401(a) of the RSIA) provides 
that:

    ``(a) In general.--The Secretary of Transportation shall * * * 
establish--
    (1) minimum training standards for each class and craft of 
safety-related railroad employee (as defined in section 20102) and 
equivalent railroad carrier contractor and subcontractor employees, 
which shall require railroad carriers, contractors, and 
subcontractors to qualify or otherwise document the proficiency of 
such employees in each such class and craft regarding their 
knowledge of, and ability to comply with, Federal railroad safety 
laws and regulations and railroad carrier rules and procedures 
promulgated to implement those Federal railroad safety laws and 
regulations;
    (2) a requirement that railroad carriers, contractors, and 
subcontractors develop and submit training and qualification plans 
to the Secretary for approval, including training programs and 
information deemed necessary by the Secretary to ensure that all 
safety-related railroad employees receive appropriate training in a 
timely manner; and
    (3) a minimum training curriculum, and ongoing training 
criteria, testing, and skills evaluation measures to ensure that 
safety-related railroad employees, and contractor and subcontractor 
employees, charged with the inspection of track or railroad 
equipment are qualified to assess railroad compliance with Federal 
standards to identify defective conditions and initiate immediate 
remedial action to correct critical safety defects that are known to 
contribute to derailments, accidents, incidents, or injuries, and, 
in implementing the requirements of this paragraph, take into 
consideration existing training programs of railroad carriers.
    (b) Approval.--The Secretary shall review and approve the plans 
required under subsection (a)(2) utilizing an approval process 
required for programs to certify the

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qualification of locomotive engineers pursuant to part 240 of title 
49, Code of Federal Regulations.
    (c) Exemption.--The Secretary may exempt railroad carriers and 
railroad carrier contractors and subcontractors from submitting 
training plans for which the Secretary has issued training 
regulations before the date of enactment of the Rail Safety 
Improvement Act of 2008.''

    Section 20162(a)(1) contains a citation to the statutory definition 
of ``safety-related railroad employee.'' That definition, found in 
section 20102 of 49 U.S.C. provides that:

    (4) ``safety-related railroad employee'' means--
    (A) a railroad employee who is subject to chapter 211;
    (B) another operating railroad employee who is not subject to 
chapter 211;
    (C) an employee who maintains the right of way of a railroad;
    (D) an employee of a railroad carrier who is a hazmat employee 
as defined in section 5102(3) of this title;
    (E) an employee who inspects, repairs, or maintains locomotives, 
passenger cars, or freight cars; and
    (F) any other employee of a railroad carrier who directly 
affects railroad safety, as determined by the Secretary.

III. RSAC Overview

    In March 1996, FRA established the Railroad Safety Advisory 
Committee (RSAC), which provides a forum for collaborative rulemaking 
and program development. RSAC includes representatives from all of the 
agency's major stakeholder groups, including railroads, labor 
organizations, suppliers and manufacturers, and other interested 
parties. A list of RSAC members follows:

American Association of Private Railroad Car Owners (AARPCO);
American Association of State Highway & Transportation Officials 
(AASHTO);
American Chemistry Council;
American Petroleum Institute;
American Public Transportation Association (APTA);
American Short Line and Regional Railroad Association (ASLRRA);
American Train Dispatchers Association (ATDA);
Association of American Railroads (AAR);
Association of Railway Museums (ARM);
Association of State Rail Safety Managers (ASRSM);
Brotherhood of Locomotive Engineers and Trainmen (BLET);
Brotherhood of Maintenance of Way Employes Division (BMWED);
Brotherhood of Railroad Signalmen (BRS);
Chlorine Institute;
Federal Transit Administration (FTA); *
Fertilizer Institute;
High Speed Ground Transportation Association (HSGTA);
Institute of Makers of Explosives;
International Association of Machinists and Aerospace Workers;
International Brotherhood of Electrical Workers (IBEW);
Labor Council for Latin American Advancement (LCLAA);*
League of Railway Industry Women;*
National Association of Railroad Passengers (NARP);
National Association of Railway Business Women;*
National Conference of Firemen & Oilers;
National Railroad Construction and Maintenance Association (NRC);
National Railroad Passenger Corporation (Amtrak);
National Transportation Safety Board (NTSB);*
Railway Supply Institute (RSI);
Safe Travel America (STA);
Secretaria de Comunicaciones y Transporte;*
Sheet Metal Workers International Association (SMWIA);
Tourist Railway Association Inc.;
Transport Canada;*
Transport Workers Union of America (TWU);
Transportation Communications International Union/BRC (TCIU/BRC);
Transportation Security Administration (TSA); and
United Transportation Union (UTU).
*Indicates associate, non-voting membership.

    When appropriate, FRA assigns a task to RSAC, and after 
consideration and debate, RSAC may accept or reject the task. If 
accepted, RSAC establishes a working group that possesses the 
appropriate expertise and representation of interests to develop 
recommendations to FRA for action on the task. These recommendations 
are developed by consensus. The working group may establish one or more 
task forces or other subgroups to develop facts and options on a 
particular aspect of a given task. The task force, or other subgroup, 
reports to the working group. If a working group comes to consensus on 
recommendations for action, the package is presented to RSAC for a 
vote. If the proposal is accepted by a simple majority of RSAC, the 
proposal is formally recommended to FRA. FRA then determines what 
action to take on the recommendation. Because FRA staff play an active 
role at the working group level in discussing the issues and options 
and in drafting the language of the consensus proposal, and because the 
RSAC recommendation constitutes the consensus of some of the industry's 
leading experts on a given subject, FRA is often favorably inclined 
toward the RSAC recommendation. However, FRA is in no way bound to 
follow the recommendation and the agency exercises its independent 
judgment on whether the recommended rule achieves the agency's 
regulatory goals, is soundly supported, and is in accordance with 
applicable policy and legal requirements. Often, FRA varies in some 
respects from the RSAC recommendation in developing the actual 
regulatory proposal or final rule. Any such variations would be noted 
and explained in the rulemaking document issued by FRA. If the working 
group or RSAC is unable to reach consensus on recommendations for 
action, FRA resolves the issue(s) through traditional rulemaking 
proceedings or other action.

IV. RSAC Training Standards and Plans Working Group

    On February 11, 2010, the RSAC accepted a task (No. 10-01) entitled 
``Minimum Training Standards and Plans.'' The purpose of this task was 
defined as follows: ``To establish minimum training standards for each 
class and craft of safety-related railroad employee and their railroad 
contractor and subcontractor equivalents, as required by the Rail 
Safety Improvement Act of 2008 (Act).'' The task called for the RSAC 
Training Standards and Plans Working Group (Working Group) to perform 
the following:
     Assist FRA in developing regulations responsive to the 
legislative mandate.
     Determine a reasonable method for submission and FRA 
review of training plans.
     Establish reasonable oversight criteria to ensure training 
plans are effective.

The task also listed issues requiring specific report:

     What criteria should be used to determine which, if any, 
FRA-required training programs may be exempted from the new minimum 
standards?
     What training methodologies should be employed to ensure 
that current employees understand which tasks are covered by Federal 
laws, regulations, and orders, as well as the railroad rules and 
procedures which implement them?
     What criteria can be developed for the regulated community 
to determine whether there are safety-related tasks that require 
training for new employees?
     Should annual proficiency checks be established for all 
safety-related railroad employees, similar to those required for 
locomotive engineers and conductors? Should periodic training intervals 
be extended if such checks were used?
     Which employees should be covered by this regulation?
    The Working Group was formed from interested organizations that are 
members of the RSAC. In addition to FRA, the following organizations 
contributed members:

AAR, including members from BNSF Railway Company (BNSF), Canadian

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National Railway (CN), Canadian Pacific Railway (CP), CSX 
Transportation, Inc. (CSX), Kansas City Southern Railway (KCS), 
National Railroad Passenger Corporation (Amtrak), Northeast Illinois 
Regional Commuter Railroad Corporation (METRA), Norfolk Southern 
Railway Company (NS), Rail America, Inc. and Union Pacific Railroad 
(UP);
APTA, including members from Bombardier Transportation, Greater 
Cleveland Regional Transit Authority (GCRTA), Long Island Rail Road 
(LIRR), Maryland Transit Administration (MTA), Metro-North Railroad 
(MNCW), Mid-Region Council of Governments/New Mexico Rail Runner 
Express (MRCOG), Northern Indiana Commuter Transportation District 
(NICTD), Port Authority Transit Corporation (PATCO), Southeastern 
Pennsylvania Transportation Authority (SEPTA), and Southern 
California Regional Rail Authority (Metrolink);
ASLRRA, including members from Anacostia Rail Holdings (ARH), 
Genesee & Wyoming Inc. (GNWR), Omnitrax Inc.(Omnitrax), Rio Grande 
Pacific Corporation (RGP), and WATCO Companies, Inc. (WATCO);
ASRSM, including members from California Public Utilities Commission 
(CPUC) and Public Utilities Commission of Ohio (PUCO);
ATDA;
BLET;
BMWED;
BRS;
IBEW;
NRC, including members from Balfour Beatty Rail Inc. (BBRI), Delta 
Railroad Construction Inc., Herzog Transit Services (Herzog), 
RailWorks Track Systems, and Track Guy Consultants;
RSI, including members from GE Transportation;
SMWIA;
Tourist Railway Association Inc.;
TWU; and
UTU.

    In addition to the Working Group members, visitors to the meetings 
included The Railway Education Bureau and The Transportation Learning 
Center.
    The Working Group convened 6 times on the following dates and 
locations:
     April 13-14, 2010 in Philadelphia, PA;
     June 2-3, 2010 in Savannah, GA;
     August 17-18, 2010 in Baltimore, MD;
     September 21-22, 2010 in Baltimore, MD;
     October 19-20, 2010 in Atlanta, GA; and
     November 15-16, and 23, 2010 in Washington, DC and via 
conference call.
    To aid the Working Group in its development of recommendations for 
minimum training standards and plans, FRA prepared draft regulatory 
text, which it distributed prior to the April meeting. Portions of the 
draft text were modeled after existing regulations. For example, the 
training requirements closely followed 49 CFR Sec.  232.203, which are 
the general training requirements for railroad and contractor personnel 
used to perform freight and passenger train brake inspections and 
tests. As statutorily mandated in 49 U.S.C. 20162(b), the program 
filing requirements followed the review and approval process required 
under the qualification and certification of locomotive engineers 
regulation (49 CFR part 240), but with suggested improvements from the 
conductor certification RSAC working group. Similarly, the oversight 
and recordkeeping requirements were modeled after the programs of 
operational tests and inspections found in 49 CFR 217.9 of the railroad 
operating rules regulation.
    During each meeting, Working Group members made recommendations 
regarding changes and additions to the draft text. Following each 
meeting, FRA considered all of the recommendations and revised the 
draft text accordingly. Minutes of each of these meetings are part of 
the docket in this proceeding and are available for public inspection.
    Having worked closely with the RSAC in developing its 
recommendations, FRA believes that the RSAC has effectively addressed 
concerns with regard to requiring minimum training standards and plans. 
FRA has greatly benefited from the open, informed exchange of 
information during the meetings. The Working Group reached consensus on 
all of its recommended regulatory provisions. On December 14, 2010, the 
Working Group presented its recommendations to the full RSAC for 
concurrence. All of the members of the full RSAC in attendance at the 
December meeting accepted the regulatory recommendations submitted by 
the Working Group. Thus, the Working Group's recommendations became the 
full RSAC's recommendations to FRA.

V. Employees Charged With Inspection of Track or Railroad Equipment

    The ``Statutory Background'' section of this preamble cited 49 
U.S.C. 20162(a)(3), which requires that the regulation establishing 
minimum training standards and plans ensure that those employees 
charged with the inspection of track or railroad equipment are 
qualified to assess railroad compliance with Federal standards to 
identify defective conditions and initiate immediate remedial action to 
correct critical safety defects that are known to contribute to 
derailments, accidents, incidents, or injuries.
    FRA is addressing this statutory mandate in this rulemaking by 
proposing that each employer of one or more safety-related railroad 
employee, whether the employer is a railroad, contractor, or 
subcontractor, be required to train and qualify each such employee on 
the Federal railroad safety laws, regulations, and orders that the 
employee is required to comply with, as well as any relevant railroad 
rules and procedures promulgated to implement those Federal railroad 
safety laws, regulations, and orders. See proposed Sec. Sec.  243.1(a) 
and 243.201. Employees charged with the inspection of track or railroad 
equipment are considered safety-related railroad employees that each 
employer must train and qualify. Proposed Sec.  243.5 defines safety-
related railroad employee to specifically include an individual who is 
engaged or compensated by an employer to ``(3) In the application of 
parts 213 and 214 of this chapter, inspect * * * track; (4) Inspect * * 
* locomotives, passenger cars or freight cars; (5) Inspect * * * other 
railroad on-track equipment when such equipment is in a service that 
constitutes a train movement under part 232 of this chapter; [and] (6) 
Determine that an on-track roadway maintenance machine or hi-rail 
vehicle may be used in accordance with part 214, subpart D of this 
chapter, without repair of a non-complying condition.''
    The proposal would also require that the training program developed 
by each employer be submitted to FRA for approval. Sec.  243.109. Thus, 
the proposal places the burden on each employer to address in its 
program how it will train those employees charged with the inspection 
of track or railroad equipment to identify defective conditions and 
initiate immediate remedial action to correct critical safety defects 
that are known to contribute to derailments, accidents, incidents, or 
injuries. Furthermore, FRA would reject a program that fails to 
adequately address training for those employees charged with the 
inspection of track or railroad equipment.
    The proposed formal training for employees responsible for 
inspecting track and railroad equipment is expected to cover all 
aspects of their duties related to complying with the Federal 
standards. FRA would expect that the training programs and courses for 
such employees would include techniques for identifying defective 
conditions and would address what sort of immediate remedial actions 
need to be initiated to correct critical safety defects that are known 
to contribute to derailments, accidents, incidents, or injuries. FRA 
would also expect that the

[[Page 6416]]

proposed required refresher training address these issues and 
satisfactorily address Congress's concern for ``ongoing training.'' 
Because this is a specific statutory requirement, FRA would expect that 
each employer would pay particular attention to address this issue in 
its training program.
    Although FRA believes this proposed rule adequately covers the 
specific statutory requirement related to employees charged with the 
inspection of track or railroad equipment found at 49 U.S.C. 
20162(a)(3), FRA seeks comments from interested parties as to whether 
the proposed regulatory text needs to be more explicit in the final 
rule. For instance, FRA is considering whether language that mirrors 
the statutory requirement related to employees charged with the 
inspection of track or railroad equipment should be added as paragraph 
(c)(6) to proposed Sec.  243.101 so that it would be one of the 
specific requirements necessary for each employer's training program. 
Separately, FRA is also considering whether the proposed regulatory 
language requiring periodic oversight and annual review should be 
expanded to directly address those employees inspecting track and 
railroad equipment. Currently, the oversight and review provisions are 
only applicable to determine if safety-related railroad employees are 
complying with Federal railroad safety laws, regulations, and orders 
particular to FRA-regulated personal and work group safety. FRA invites 
comments on these two specific items under consideration. We also 
invite comments regarding other options to consider in addressing the 
specific statutory requirement related to employees charged with the 
inspection of track or railroad equipment, or any other concern a 
commenter may have over whether the proposed regulation adequately 
covers each of the statutory requirements.

VI. Incentives for Early Filing of Program

    Throughout the RSAC process, FRA expressed its concern that the 
agency's program review process could be time consuming and resource 
intensive. As the proposed submission and approval process is 
statutorily mandated (see 49 U.S.C. 20162(a)(2)), FRA views the program 
filing requirements as necessary to ensure that all safety-related 
railroad employees receive appropriate training in a timely manner. 
However, FRA is willing to consider methods or approaches for meeting 
the statutory review and approval obligations that would lead to a 
quicker and more efficient review process.
    The proposed rule contains two provisions that are expected to 
reduce FRA's review process burden. In Sec.  243.105, FRA proposes an 
option for any organization, business, or association to develop one or 
more model training programs that can be used by multiple employers. 
Under this approach, once FRA has reviewed and approved a model 
training program, FRA would only need to look at the aspects of an 
employer's submission that differ from the model program. For example, 
if most short line railroads were to use the same, previously approved 
model program, FRA would likely conserve agency resources and would be 
able to approve most of those programs in a relatively short period of 
time. Likewise, in Sec.  243.111, FRA proposes an option for programs 
to be filed by training organizations and learning institutions. Under 
this approach, once FRA approves a training organization's or learning 
institution's training program, FRA would be able to more quickly 
approve any employer's training program that explained that the 
employer's training would be provided in accordance with a training 
organization's or learning institution's previously approved program.
    For these reasons, FRA encourages early filing of model programs 
and programs that could be referenced by multiple employers. FRA is 
also interested in receiving comments from interested parties on 
potential ideas for adding other incentives in the final rule to 
encourage the early filing of these types of programs. One option FRA 
is considering is pushing back the deadline for an employer submission 
by at least one year after the submission deadline for an existing 
training organization or learning institution under Sec.  243.111(b). 
This potential option would provide associations and other 
organizations that may be drafting or developing model programs with 
the incentive to get their optional submissions into and approved by 
FRA before employers wishing to use those model programs are rushed to 
file a required employer program.
    Another approach FRA is considering is to include an optional 
deadline for model programs and programs that could be referenced by 
multiple employers that would include a condition that FRA will issue 
its approval or disapproval of the program within 180 days, or other 
date certain, of the date of submission. This condition could also 
include a provision that if FRA fails to explicitly approve or 
disapprove the program within that time frame, the program will be 
deemed approved. FRA believes that an association or organization with 
multiple members will have an incentive to produce one or more model 
programs in order to provide a meaningful product to its members. 
Likewise, a training organization or learning institution that has 
developed a training program may garner more clients, and thus have an 
incentive to file early, if it knows that FRA will expedite its review 
of the program. Early filing would provide FRA with the benefit of a 
significant amount of time to dedicate to the review of model programs 
and programs that could be referenced by multiple employers. It could 
also give those entities producing such programs sufficient time to 
market those programs to potential clients or current members/users.
    FRA is also considering the approach it followed when requiring 
training and testing of employees that perform brake system 
inspections, tests, or maintenance under part 232. In that regulation, 
FRA provided employers with an extra year to complete refresher 
training as long as the initial training was completed by a specified 
date. FRA would similarly consider granting some form of leniency on 
refresher training, periodic oversight, or the annual review if an 
employer's program is submitted by an early submission deadline.
    Another option might be to extend the date for designating existing 
employees in accordance with Sec.  243.201(a) as long as the employer's 
program is submitted by an early submission deadline.
    FRA seeks comments on any or all of these proposals and is willing 
to consider other incentives or approaches that are intended to 
encourage early submission and improve the efficiency and effectiveness 
of the review process.

VII. Section-by-Section Analysis

Part 214--[Amended]

    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. The Final Crane Rule sets forth requirements that are 
designed to improve safety for employees who work with or around cranes 
and derricks in the construction industry. In issuing this Final Crane 
Rule, one of OSHA's provisions established qualification and 
certification requirements for operators of ``power-operated equipment, 
when used in construction, that can hoist, lower and horizontally move 
a suspended load.'' See 29 CFR 1926.1400 and 1926.1427. The 
qualification and certification requirements for crane

[[Page 6417]]

operators are applicable to cranes used in the railroad industry, and 
would include operators of both on-track and off-track equipment.
    Historically, FRA and OSHA have coordinated with each other to 
ensure that each agency's rules are not in conflict, as there is some 
potential for overlap of each agency's jurisdiction. In 1978, FRA 
explained how both agencies have jurisdiction to promulgate rules 
concerned with assuring safe working conditions for railroad employees 
in a policy statement titled ``Railroad Occupational Safety and Health 
Standards'' (Policy Statement). 43 FR 10583. The Policy Statement 
recognized the ``potential [for] dual regulation'' and set out FRA's 
rationale for terminating a rulemaking addressing railroad occupational 
safety and health standards. Id. at 10584. In terminating that 
rulemaking, FRA recognized that ``it would not be in the best interests 
of the public and of railroad safety for [FRA] to become involved 
extensively in the promulgation and enforcement of a complex regulatory 
scheme covering in minute detail, as do the OSHA standards, working 
conditions which, although located within the railroad industry, are in 
fact similar to those of any industrial workplace.'' Id. at 10585. As 
part of this rule, FRA is proposing crane operator training and 
qualification requirements that are tailored to the unique aspects of 
crane operations in a railroad environment. FRA is not proposing 
similar requirements to those of the OSHA standards, as many of the 
concerns of working in a railroad environment are dissimilar to those 
of most industrial workplaces.
    Although the Policy Statement clarifies that FRA ``is vested with 
broad authority in all areas of railroad safety, including those of an 
occupational nature,'' the agency's policy is to limit itself to 
involvement in those areas where it could be most effective in 
providing a ``coherent overall railroad safety program.'' Id. at 10584. 
Because FRA's strengths are found in its developed expertise 
``assur[ing] safe employment and places of employment for railroad 
employees engaged in activities related to railroad operations,'' FRA 
has generally limited itself to regulating those issues that are of an 
occupational nature and that have a significant impact on railroad 
operations. Id. at 10585. The term ``railroad operations'' is not 
limited to revenue train operations or even on-track operations; 
instead, it also includes ``the conditions and procedures necessary to 
achieve the safe movement of equipment over the rails.'' Id. For 
example, roadway workers affect the safety of railroad operations when 
they are engaged in laying or repairing rail as they are required to 
observe certain procedures that impact the final condition of the track 
and to assure that geometric and other standards are met. Id. Likewise, 
roadway worker protection is also part of the safety of railroad 
operations as it is used to prevent an employee who is fouling a track 
from being struck by trains and any other on-track equipment, including 
cranes. Id.
    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 FRA does not currently 
require operator certification. See 49 CFR 214.341 and 214.355.
    The railroad industry's use of cranes is unique compared to general 
construction use, and therefore it may be very difficult or 
unnecessarily burdensome for the railroad industry to meet any of the 
four certification options provided for in OSHA's regulation. For 
example, OSHA's first option for crane operator certification would 
permit an operator to be certified by an accredited crane operator 
testing organization. 29 CFR 1926.1427(b). As many types of cranes used 
by railroads in roadway maintenance work are adapted specifically for 
railroad use, there may not be any accredited crane operator testing 
organization suitable for certification of operators on every type of 
machine. OSHA's second option is also premised on using written or 
practical tests developed or approved by either an accredited crane 
operator testing organization or an auditor who has been certified by 
an accredited crane operator testing organization, among other 
conditions. 29 CFR 1926.1427(c). Obviously, this second option poses 
some of the same obstacles as the first option for the railroad 
industry. OSHA's third option is only available to an operator who is 
an employee of the U.S. military and is thus not available to private 
companies. 29 CFR 1926.1427(d). Finally, OSHA's fourth option for crane 
operator certification is not especially useful to employees of 
railroads or contractors to railroads as it permits the licensing of 
such operators by a government entity. 29 CFR 1926.1427(e). A 
government entity, such as a State or local government, would only have 
the authority to license an operator for work within the entity's 
jurisdiction. As crane operators in the railroad industry that are 
engaged in roadway maintenance work may be dispatched to work on and 
off-track for hundreds of miles that cross through multiple states and 
jurisdictions, it would be logistically difficult to ensure that each 
crane operator is certified to operate in each jurisdiction along the 
railroad right-of-way. Consequently, OSHA's certification options are 
not viable options for the vast majority of the railroad industry's 
crane operators. The lack of logistically feasible options for many 
crane operators in the railroad industry to become certified under 
OSHA's Final Crane Rule could cause a shortage in the availability of 
such operators to conduct vital roadway maintenance work, which could 
have a significant detrimental effect on the safety of rail operations.
    As FRA is proposing the creation of a new part 243 in this notice 
to address training standards for all safety-related railroad 
employees, FRA is solidly situated to propose a viable training 
alternative to OSHA's certification options for certain crane operators 
in the railroad industry. In particular, FRA believes it is especially 
well-suited to address the training and qualification requirement for 
operators of roadway maintenance machines equipped with a crane. FRA is 
proposing various requirements in part 243 that would require each 
employer of a safety-related railroad employee, which would include 
employers of one or more operators of roadway maintenance machines that 
are equipped with a crane, to submit a training program that explains 
in detail how each type of employee will be trained and qualified. 
However, part 243 is only intended to cover training of Federal 
standards and those railroad rules and procedures promulgated to 
implement the Federal standards. Consequently, FRA is proposing the 
addition of Sec.  214.357 to those Federal standards which will include 
training and qualification requirements for operators of roadway 
maintenance machines equipped with a crane. The details of those 
proposed requirements are addressed below in the analysis for that 
particular section.

[[Page 6418]]

    Foremost in FRA's decision to propose replacing OSHA's crane 
operator qualification and certification regulation found at 29 CFR 
1926.1427 with respect to operators of roadway maintenance machines 
equipped with a crane is the premise that FRA's regulation must provide 
at least an equivalent level of safety of that provided by OSHA's 
existing requirements. FRA has various personnel that have significant 
experience operating an assortment of cranes for the railroad industry. 
In addition, OSHA has offered to permit FRA personnel to attend joint 
training sessions with OSHA personnel. FRA intends to utilize its 
experienced personnel to review employer training programs. The review 
would focus on ensuring that each employer's program covers the 
subjects necessary to qualify each crane operator. Furthermore, FRA has 
the personnel available to make regular inspections at places of 
railroad or contractor employment to ensure that training records for 
employees are being properly maintained, thereby ensuring that the 
crane operators addressed in FRA's regulations are appropriately 
trained and qualified.
    Prior to November 8, 2010, the date OSHA's Final Crane Rule became 
effective, there were no Federal certification requirements for crane 
operators. FRA has reviewed its reportable injury data for calendar 
years 2001 through 2010. In reviewing the data, it is possible that 
some incidents may not have involved railroad operations; however, it 
would be difficult to make that determination without doing a resource 
intensive investigation of each incident. Certainly, the data shows a 
significant number of injuries each year and many of those accidents 
would fall into the category of railroad operations that could be 
addressed by this proposed rulemaking. Between 2001 and 2009, the 
number of reportable injuries involving cranes consistently totaled 
between 43 and 60 per year. In 2010, there was a significant drop in 
reportable injuries down to a total of 27. During the last decade, 
there were 7 fatalities attributed to accidents involving cranes; 
however, FRA emphasizes that it is not possible for FRA to determine 
how many of those accidents would fall into the category of railroad 
operations that could be addressed by this proposed rulemaking. FRA 
believes that the number of reportable injuries and fatalities could be 
reduced even further by implementing the proposed changes to parts 214 
and 243. The proposed changes would institute more structure and 
accountability to those employers' programs that are merely based on 
unstructured on-the-job training. FRA also believes that while OSHA's 
rule will work well for the general construction industry, FRA's 
proposal will have a greater impact on the railroad industry because it 
can be implemented by railroads on a system-wide basis.
    FRA identified a fatality that occurred in 2003 that potentially 
could have been avoided with better training as required under OSHA's 
Final Crane Rule or as proposed for part 243. On January 14, 2003, a 
bridge mechanic had his hand crushed when he and other maintenance-of-
way (MOW) workers were attempting to dismantle a crane's rear counter 
weight and boom. The crane operator working with that bridge mechanic 
could not recall the proper procedure for removing the crane's counter 
weight. Although the bridge mechanic had successful hand surgery, he 
died after being taken from the operating room. FRA produced a summary 
of this incident, which is available on FRA's Web site in a document 
summarizing fatalities that occurred in 2003. https://www.fra.dot.gov/rrs/pages/fp_1662.shtml; (summarizing FE-01-03). In the report, FRA 
identified three possible contributing factors: (1) The MOW crew failed 
to use proper procedures for the safe dismantling of the crane's rear 
counter weight and boom; (2) crane manuals, which were available to the 
crew, lacked instructions on the proper removal of the crane's counter 
weight; and (3) the crew received inadequate training in the 
maintenance and safe operation of the crane. Adequate training and 
appropriate training manuals are both subjects of this proposed rule 
and would directly address the possible contributing factors of this 
incident.
    In reviewing the available alternatives, FRA has been mindful of 
the recent Executive Order (EO) 13563, ``Improving Regulation and 
Regulatory Review,'' which requires ``[g]reater coordination across 
agencies'' to produce simplification and harmonization of rules so as 
to reduce burdens, redundancy, and conflict, whenever possible, while 
promoting predictability, certainty, and innovation. To that end, EO 
13563 demands better coordination among agencies to reduce regulatory 
requirements that are redundant, inconsistent, or overlapping. In 
accordance with this EO, FRA is coordinating 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. 
OSHA has been supportive of FRA's actions.
Section 214.7 Definitions
    The proposed rule would add a definition for roadway maintenance 
machines equipped with a crane in order to address a term used in 
proposed Sec.  214.357. The definition of this term would mean any 
roadway maintenance machine equipped with a crane or boom that can 
hoist, lower, and horizontally move a suspended load.
Section 214.341 Roadway Maintenance Machines
    FRA is proposing to amend paragraph (b)(2) to address two issues. 
First, FRA proposes to delete the requirement that the operator of a 
roadway maintenance machine have ``complete'' knowledge of the safety 
instructions applicable to that machine. Based on informal 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 proposed change to paragraph (b)(2) is intended to 
address 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 
proposes 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,

[[Page 6419]]

if the adaption removes an operational functionality, the safety 
instructions would no longer need to address the function that was 
removed, although it could be possible that the removal of a device 
could create other safety hazards that may need to be addressed in the 
safety instructions in order to be considered comprehensive. In order 
to ensure that the safety instructions for a machine are comprehensive, 
some employers may choose to provide a completely new safety 
instruction manual for adapted equipment; however, other employers may 
choose to simply void certain pages or chapters of the manufacturer's 
manual, and provide a supplemental manual to address the safety 
instructions related to the adapted functions of the equipment.
Sec.  214.357 Training and Qualification for Operators of Roadway 
Maintenance Machines Equipped With a Crane
    As mentioned in the introductory discussion of this proposed part, 
FRA is proposing the addition of 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. If this section is 
adopted in a final rule, FRA regulations would then 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 proposes new training 
requirements in addition to the existing requirements already contained 
in this subpart. Paragraph (a) also proposes 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. If proposed part 243 is 
finalized, the requirement in proposed paragraph (a) to ``adopt'' and 
``comply'' with a training and qualification program may seem 
redundant; however, these requirements 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) proposes 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) proposes 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) proposes 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 to the proposed amendments to 
Sec.  214.341(b)(2), an operator must have knowledge of the safety 
instructions applicable to that machine, regardless of whether the 
machine has been adapted for a particular railroad use. Implicit in 
this proposal 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) proposes 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. If proposed part 243 is finalized, this requirement would 
repeat the requirement in Sec.  243.203 to maintain records. However, 
it is useful to repeat the requirement as a reminder to employers. In 
repeating this requirement, FRA does not intend the proposed 
requirement to cause an employer to duplicate records kept in 
accordance with proposed part 243. Similarly, paragraph (d) proposes 
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 proposed in part 243.
    In paragraph (e), FRA proposes that training conducted by an 
employer in accordance with operator qualification and certification 
required by the Department of Labor (29 CFR 1926.1427) may be used to 
satisfy the training and qualification requirements of this section. 
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, 
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.

[[Page 6420]]

Part 232--[Amended]

Section 232.203 Training Requirements
    FRA modeled some aspects of proposed 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.
    It is proposed that existing paragraph (b)(6)(iv) be revised to 
provide some context to the paragraph and to reiterate FRA's intent. 
The proposed revision would add a phrase to the end of the current 
provision. The proposed phrase explains that any combination of the 
training or testing contained in paragraphs (b)(6)(i) through 
(b)(6)(iii) of this section and paragraphs (b)(3) through (b)(5) of 
this section ``may be used to satisfy the training and testing 
requirements for an employee in accordance with this paragraph.'' 
Without the addition of the proposed quoted language, the requirement 
appears incomplete.
    FRA proposes clarifying amendments to paragraphs (e)(6) through 
(e)(8). The proposed revisions relocate a misplaced ``and'' at the end 
of paragraph (e)(6) to the end of paragraph (e)(7), and correct two 
incorrect citations to paragraph (e)(7) when the correct citations 
should be to paragraph (e)(6).

Part 243--[Proposed]

Subpart A--General
Section 243.1 Purpose and Scope
    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 
proposed 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 
proposed regulation. 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 would be required by this 
proposed part would be 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, it is proposed that 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 proposed rule, not every person 
that works on a railroad's property should expect that this proposed 
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 
proposed 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, it is proposed that the person 
would be required to be trained in accordance with all applicable 
Federal requirements. See e.g., Sec. Sec.  238.107 and 238.109.
    If the employer's rules mirror the Federal requirements, or are 
even more restrictive than the Federal requirements, the employer may 
train to the employer's own rules and would not be required to provide 
separate training on the Federal requirements. During the RSAC process, 
some employers raised the concern that it would be confusing for 
employees if FRA required that training be made directly on the Federal 
requirements as that would pose potential conflicts whenever an 
employer's rule was stricter than the Federal requirement. FRA agrees 
with this concern, and this NPRM 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 rul