[Federal Register Volume 85, Number 1 (Thursday, January 2, 2020)]
[Rules and Regulations]
[Pages 10-14]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2019-28301]


=======================================================================
-----------------------------------------------------------------------

DEPARTMENT OF TRANSPORTATION

Federal Railroad Administration

49 CFR Part 243

[Docket No. FRA-2019-0095, Notice No. 2]
RIN 2130-AC86


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

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

ACTION: Final rule.

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

SUMMARY: In response to a petition for rulemaking, FRA is amending its 
regulation on Training, Qualification, and Oversight for Safety-Related 
Railroad Employees by delaying the regulation's implementation dates 
for all contractors, and those Class II and III railroads that are not 
intercity or commuter passenger railroads with 400,000 total employee 
work hours annually or more.

DATES: This regulation is effective December 30, 2019.

ADDRESSES: For access to the docket to read background documents or 
submissions received, go to http://www.regulations.gov at any time or 
to Room W12-140 on the Ground level of the West Building, 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: Robert J. Castiglione, Staff 
Director--Human Performance Division, Federal Railroad Administration, 
4100 International Plaza, Suite 450, Fort Worth, TX 76109-4820 
(telephone: 817-447-2715); or Alan H. Nagler, Senior Attorney, Federal 
Railroad Administration, Office of Chief Counsel, 1200 New Jersey 
Avenue SE, Washington, DC 20590 (telephone: 202-493-6038).

SUPPLEMENTARY INFORMATION:

I. Executive Summary

    On November 7, 2014, FRA published a final rule (2014 Final Rule) 
that established minimum training standards for each category and 
subcategory of safety-related railroad employees and required railroad 
carriers, contractors, and subcontractors to submit training programs 
to FRA for approval. See 79 FR 66459. The 2014 Final Rule was required 
by section 401(a) of the Rail Safety Improvement Act of 2008 (RSIA), 
Public Law 110-432, 122 Stat. 4883 (Oct. 16, 2008), codified at 49 
U.S.C. 20162. The Secretary of Transportation delegated the authority 
to conduct this rulemaking and implement the rule to the Federal 
Railroad Administrator. 49 CFR 1.89(b).
    On May 3, 2017, FRA delayed implementation dates in the 2014 Final 
Rule by one year. On April 27, 2018, FRA responded to a petition for 
reconsideration of that May 2017 rule by granting the American Short 
Line and Regional Railroad Association's (ASLRRA) request to delay the 
implementation dates by an additional year.
    On June 27 and July 12, 2019, ASLRRA and the National Railroad 
Construction and Maintenance Association, Inc. (NRC) (collectively 
Associations) filed petitions for rulemaking that were docketed in 
DOT's Docket Management System as FRA-2019-0050. The Associations' 
petitions request that FRA delay implementation and make several 
substantive changes to the part 243 regulation.
    On November 22, 2019, FRA published a notice of proposed rulemaking 
(NPRM) describing the Associations' petitions and responding to the 
request to delay implementation. 84 FR 64447. FRA proposed to delay the 
implementation dates in the rule for all contractors, and those Class 
II and III railroads that are not intercity or commuter passenger 
railroads with 400,000 total employee work hours annually or more. In 
the NPRM, FRA explained how its response is specifically targeted to 
equalize the implementation dates for those employers most likely to 
adopt model programs rather than develop their own programs. FRA also 
announced that it is considering whether to initiate a separate 
rulemaking which would be limited to amending FRA's training regulation 
so that the regulatory text includes the latest guidance that is 
intended to help small entities and other users of model training 
programs. Although these two rulemakings would be separate, FRA 
explained in the NPRM that they would be complementary in that, without 
any changes to the implementation dates, the targeted employers might 
not understand that the regulation contains more flexibility than is 
commonly understood or they may not feel comfortable following the 
guidance believing there is regulatory uncertainty.

II. Discussion of Comments and Conclusions

    FRA received six written comments in response to the NPRM. FRA did 
not receive a request for a public hearing and none was provided.
    A comment was filed jointly by ASLRRA and NRC in support of

[[Page 11]]

finalizing the proposed rule. The Associations believe the extension 
and date alignment for Class II and III railroads and contractors will 
reduce confusion, especially for those companies with multiple 
operations. Additionally, the Associations express support for FRA to 
take up other aspects of their petitions for rulemaking and propose 
additional revisions to part 243 in future rulemakings.
    Several comments from interested citizens were submitted. The most 
specific of these comments was against delaying the rule's 
implementation dates for refresher training citing the importance of 
the training. Other comments were more general in nature. A few 
commenters supported the NPRM, or did not express an opinion about the 
NPRM, while expressing a positive opinion about the part 243 training 
regulation generally. Another commenter supported the rulemaking, 
expressing that FRA should provide the flexibility necessary to best 
accommodate railroad workers.

FRA's Response

    FRA initiated this rulemaking in response to ASLRRA and NRC's 
petitions for rulemaking, and the comment from the Associations, along 
with other commenters, expresses support for the NPRM. Moreover, none 
of the other comments raise significant safety concerns which would 
dictate against finalizing the proposed rule. Thus, FRA is amending 
part 243 as proposed.
    As discussed further below, FRA is revising the part 243 regulation 
to reclassify those employers that FRA anticipates will likely adopt a 
model program so that they have the same implementation deadlines as 
the small entities subject to the regulation. In this regard, the Class 
II and III railroads and the contractors who will get relief provide 
training and operations in a manner more similar to that of a small 
entity than a Class I railroad. Treating this remainder group of 
employers in the same manner as the small entities would therefore 
reflect a more consistent approach to those employers adopting model 
programs, thereby justifying the delay in the implementation schedule.
    The final rule's implementation date delays will not impact Class I 
railroads, and those commuter and intercity passenger railroads with 
400,000 total employee work hours annually or more. Because the first 
implementation submission deadline for the entities affected by this 
rule is January 1, 2020, it is imperative for this final rule to become 
effective immediately, before that deadline is reached, to ensure the 
intended regulatory relief is provided.

III. Section-by-Section Analysis

Subpart B--Program Components and Approval Process

Section 243.101 Employer Program Required
    FRA is amending the implementation date in Sec.  243.101(a)(1) so 
that it is limited to Class I railroads, and those intercity or 
commuter passenger railroads with 400,000 total employee work hours 
annually or more. Also, FRA is amending this section so that all 
employers not covered by Sec.  243.101(a)(1) will now be covered by 
Sec.  243.101(a)(2), unless the employer is commencing operations after 
January 1, 2020, and will be covered by Sec.  243.101(b). In other 
words, Sec.  243.101(a)(1) will specifically except all contractors, 
and those Class II and III railroads that are not intercity or commuter 
passenger railroads with 400,000 total employee work hours annually or 
more, from complying with the January 1, 2020, training program 
submission implementation deadline. Instead, under Sec.  243.101(a)(2), 
all contractors, and those Class II and III railroads that are not 
intercity or commuter passenger railroads with 400,000 total employee 
work hours annually or more, will be required to comply with a training 
program submission deadline of May 1, 2021; these entities will thus 
have an additional 16 months to submit a training program for their 
safety-related railroad employees.
    Nonetheless, FRA understands that many regulated entities are on 
schedule to meet the earlier, January 1, 2020, deadline, or submit 
training programs well within the additional 16 months granted by this 
final rule. For those regulated entities that are prepared to move 
forward in advance of any deadline in part 243, there is certainly no 
prohibition against doing so. FRA recognizes that implementing a 
compliant training program earlier than required should benefit the 
overall safety of those employers' operations.

Subpart C--Program Implementation and Oversight Requirements

Section 243.201 Employee Qualification Requirements
    FRA is amending the implementation dates in Sec.  243.101(a)(1) and 
(e)(1) so that they are limited to Class I railroads, and those 
intercity or commuter passenger railroads with 400,000 total employee 
work hours annually or more. Also, FRA is amending this section so that 
all employers not covered by Sec.  243.201(a)(1) and (e)(1) will now be 
covered by Sec.  243.201(a)(2) and (e)(2). Please note that an employer 
commencing operations after January 1, 2020, will still be covered by 
Sec.  243.201(b) and will be expected to implement a refresher training 
program upon commencing operations.

IV. Regulatory Impact and Notices

A. Executive Order 12866 and DOT Regulatory Policies and Procedures

    This final rule is a non-significant regulatory action within the 
meaning of Executive Order 12866 and DOT policies and procedures. See 
https://www.transportation.gov/regulations/2018-dot-rulemaking-order. 
This rulemaking is a deregulatory action under Executive Order 13771, 
``Reducing Regulation and Controlling Regulatory Costs.'' See 82 FR 
9339, Jan. 30, 2017.
    As explained in the Supplementary Information section, FRA 
published the 2014 Final Rule to fulfill a statutory mandate. On May 3, 
2017, FRA delayed implementation dates in the 2014 Final Rule by one 
year. On April 27, 2018, FRA responded to a petition for 
reconsideration of that May 2017 rule by granting the ASLRRA's request 
to delay the implementation dates an additional year. FRA is issuing a 
final rule targeted to equalize the implementation dates for Class II 
railroads, Class III railroads, and contractors regardless of their 
annual employee work hours, with the exception of those intercity or 
commuter passenger railroads with 400,000 total employee work hours 
annually or more. With adoption of this final rule, these employers 
will have until May 1, 2021, to submit a training program to FRA 
instead of the previous January 1, 2020, deadline that was applicable 
to railroads (regardless of whether they were Class II or III 
railroads), and contractors with 400,000 annual employee work hours or 
more.
    FRA believes that the final rule will reduce the regulatory burden 
on the railroad industry by delaying the rule's implementation dates. 
This final rule will extend the implementation deadlines for some 
regulated entities by a total of 16 months. This final rule will be 
beneficial for regulated entities by adding time for some railroads and 
contractors to comply.
    FRA is amending the training rule in part 243 to reclassify those 
employers that FRA anticipated in the 2014 Final Rule's Regulatory 
Impact Analysis would likely adopt a model program so that the 
regulation will reflect a more consistent approach to those employers

[[Page 12]]

adopting model programs. Until the petitions for rulemaking were filed, 
FRA did not appreciate that the Class II and III railroads and the 
contractors who were not identified as small entities could be expected 
to encounter the same types of obstacles to training program 
implementation as that of a small entity. The final rule's 
implementation date delay will not impact Class I railroads, and those 
commuter and intercity passenger railroads with 400,000 total employee 
work hours annually or more. However, this final rule will provide all 
contractors, and those Class II and III railroads that are not 
currently identified as small entities in part 243, or are not commuter 
or intercity passenger railroads with 400,000 total employee work hours 
annually or more, with an additional 16 months to submit a training 
program for their safety-related railroad employees. FRA is also 
amending part 243 so that those same employers get an additional 16 
months to designate each of their existing safety-related railroad 
employees by occupational category or subcategory, and only permit 
designated employees to perform safety-related service in that 
occupational category or subcategory. In addition, the final rule will 
provide those same employers with one additional year to complete 
refresher training for each of their safety-related railroad employees. 
With this final rule, the training program submission date for Class II 
railroads, Class III railroads, and contractors regardless of their 
annual employee work hours, with the exception of those intercity or 
commuter passenger railroads with 400,000 total employee work hours 
annually or more, will be delayed from January 1, 2020, to a new 
implementation date of May 1, 2021; the designation of employee date 
will be delayed from September 1, 2020, to a new implementation date of 
January 1, 2022; and, the deadline for the first refresher training 
cycle will be delayed from December 31, 2024, to a new deadline of 
December 31, 2025.
    By delaying the implementation dates, all contractors, and those 
Class II and III railroads that are not intercity or commuter passenger 
railroads with 400,000 total employee work hours annually or more, will 
realize a cost savings. All contractors, and those Class II and III 
railroads that are not intercity or commuter passenger railroads with 
400,000 total employee work hours annually or more, will not incur 
costs during the first 16 months of this analysis. Also, costs incurred 
in future years will be discounted an extra 16 months, which will 
decrease the present value burden. The present value of costs will be 
less than if the original implementation dates were maintained. FRA has 
estimated this cost savings to be approximately $3.0 million, at a 7% 
discount rate, for impacted railroads and contractors that will 
experience relief as a result of this final rule.

B. Regulatory Flexibility Determination

    The Regulatory Flexibility Act of 1980, 5 U.S.C. 601 et seq., and 
Executive Order 13272, 67 FR 53461 (Aug. 16, 2002), require agency 
review of proposed and final rules to assess their impact on small 
entities. An agency must prepare an initial regulatory flexibility 
analysis (IRFA) unless it determines and certifies that a rule, if 
promulgated, would not have a significant impact on a substantial 
number of small entities. Pursuant to the Regulatory Flexibility Act of 
1980, 5 U.S.C. 605(b), the FRA Administrator certifies that this final 
rule will not have a significant economic impact on a substantial 
number of small entities.
    ``Small entity'' is defined in 5 U.S.C. 601 as including a small 
business concern that is independently owned and operated, and is not 
dominant in its field of operation. The U.S. Small Business 
Administration (SBA) has authority to regulate issues related to small 
businesses, and stipulates in its size standards that a ``small 
entity'' in the railroad industry is a for profit ``linehaul railroad'' 
that has fewer than 1,500 employees, a ``short line railroad'' with 
fewer than 500 employees, or a ``commuter rail system'' with annual 
receipts of less than 15 million dollars. See ``Size Eligibility 
Provisions and Standards,'' 13 CFR part 121, subpart A. Additionally, 5 
U.S.C. 601(5) defines as ``small entities'' governments of cities, 
counties, towns, townships, villages, school districts, or special 
districts with populations less than 50,000. Federal agencies may adopt 
their own size standards for small entities, in consultation with SBA 
and in conjunction with public comment. Pursuant to that authority, FRA 
has published a final statement of agency policy that formally 
establishes ``small entities'' or ``small businesses'' as being 
railroads, contractors, and hazardous materials shippers that meet the 
revenue requirements of a Class III railroad as set forth in 49 CFR 
1201.1-1, which is $20 million or less in inflation-adjusted annual 
revenues, and commuter railroads or small governmental jurisdictions 
that serve populations of 50,000 or less. See 68 FR 24891 (May 9, 
2003), codified at appendix C to 49 CFR part 209. The $20-million limit 
is based on the Surface Transportation Board's revenue threshold for a 
Class III railroad. Railroad revenue is adjusted for inflation by 
applying a revenue deflator formula in accordance with 49 CFR 1201.1-1. 
FRA is using this definition for this rulemaking.
    The requirements of this final rule will apply to employers of 
safety-related railroad employees that FRA previously determined were 
not small entities. This final rule will have no direct impact on small 
units of government, businesses, or other organizations. State rail 
agencies are not required to participate in this program. State owned 
railroads that are subject to the relief provided by this final rule 
will receive a positive impact, if any impact. Therefore, the final 
rule will not impact any small entities. Pursuant to the Regulatory 
Flexibility Act, 5 U.S.C. 601(b), the FRA Administrator hereby 
certifies that this final rule will not have a significant impact on a 
substantial number of small entities.

C. Paperwork Reduction Act

    There are no new collection of information requirements contained 
in this final rule and, in accordance with the Paperwork Reduction Act 
of 1995, 44 U.S.C. 3501 et seq., the recordkeeping and reporting 
requirements already contained in the 2014 Final Rule have been 
approved by OMB. The OMB approval number is OMB No. 2130-0597. Thus, 
FRA is not required to seek additional OMB approval under the Paperwork 
Reduction Act.

D. Federalism Implications

    This final rule will not have a substantial effect on the States, 
on the relationship between the national government and the States, or 
on the distribution of power and responsibilities among the various 
levels of government. Thus, in accordance with Executive Order 13132, 
``Federalism'' (64 FR 43255, Aug. 10, 1999), preparation of a 
Federalism Assessment is not warranted.

E. International Trade Impact Assessment

    The Trade Agreement Act of 1979 prohibits Federal agencies from 
engaging in any standards or related activities that create unnecessary 
obstacles to the foreign commerce of the United States. Legitimate 
domestic objectives, such as safety, are not considered unnecessary 
obstacles. The statute also requires consideration of international 
standards and where appropriate, that they be the basis for U.S. 
standards.

[[Page 13]]

    This final rule is purely domestic in nature and is not expected to 
affect trade opportunities for U.S. firms doing business overseas or 
for foreign firms doing business in the United States.

F. Environmental Impact

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

G. Unfunded Mandates Reform Act of 1995

    Pursuant to section 201 of the Unfunded Mandates Reform Act of 1995 
(Pub. L. 104-4, 2 U.S.C. 1531), each Federal agency shall, unless 
otherwise prohibited by law, assess the effects of Federal regulatory 
actions on State, local, and tribal governments, and the private sector 
(other than to the extent that such regulations incorporate 
requirements specifically set forth in law). Section 202 of the Act (2 
U.S.C. 1532) further requires that before promulgating any general 
notice of proposed rulemaking that is likely to result in the 
promulgation of any rule that includes any Federal mandate that may 
result in expenditure by State, local, and tribal governments, in the 
aggregate, or by the private sector, of $100,000,000 or more (adjusted 
annually for inflation) in any 1 year, and before promulgating any 
final rule for which a general notice of proposed rulemaking was 
published, the agency shall prepare a written statement detailing the 
effect on State, local, and tribal governments and the private sector. 
This final rule will not result in such an expenditure, and thus 
preparation of such a statement is not required.

H. Energy Impact

    Executive Order 13211 requires Federal agencies to prepare a 
Statement of Energy Effects for any ``significant energy action.'' 66 
FR 28355 (May 22, 2001). FRA evaluated this final rule in accordance 
with Executive Order 13211, and determined that this regulatory action 
is not a ``significant energy action'' within the meaning of the 
Executive Order.
    Executive Order 13783, ``Promoting Energy Independence and Economic 
Growth,'' requires Federal agencies to review regulations to determine 
whether they potentially burden the development or use of domestically 
produced energy resources, with particular attention to oil, natural 
gas, coal, and nuclear energy resources. 82 FR 16093 (Mar. 31, 2017). 
FRA determined this final rule will not burden the development or use 
of domestically produced energy resources.

I. Congressional Review Act

    Pursuant to the Congressional Review Act (5 U.S.C. 801 et seq.), 
the Office of Information and Regulatory Affairs designated this rule 
as not a ``major rule,'' as defined by 5 U.S.C. 804(2).

List of Subjects in 49 CFR Part 243

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

The Final Rule

    For the reasons discussed in the preamble, FRA amends part 243 of 
chapter II, subtitle B of title 49 of the Code of Federal Regulations 
as follows:

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

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

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

Subpart B--Program Components and Approval Process

0
2. In Sec.  243.101 revise paragraph (a) to read as follows:


Sec.  243.101  Employer program required.

    (a)(1) Effective January 1, 2020, each Class I railroad, and each 
intercity or commuter passenger railroad conducting operations subject 
to this part with 400,000 total employee work hours annually or more, 
shall submit, adopt, and comply with a training program for its safety-
related railroad employees.
    (2) Effective May 1, 2021, each employer conducting operations 
subject to this part not covered by paragraph (a)(1) of this section 
shall submit, adopt, and comply with a training program for its safety-
related railroad employees.
* * * * *

Subpart C--Program Implementation and Oversight Requirements

0
3. In Sec.  243.201, revise paragraphs (a)(1) and (2) and (e)(1) and 
(2) to read as follows:


Sec.  243.201  Employee qualification requirements.

    (a) * * *
    (1) By no later than September 1, 2020, each Class I railroad, and 
each intercity or commuter passenger railroad conducting operations 
subject to this part with 400,000 total employee work hours annually or 
more in operation as of January 1, 2020, shall declare the designation 
of each of its existing safety-related railroad employees by 
occupational category or subcategory, and only permit designated 
employees to perform safety-related service in that occupational 
category or subcategory. The Associate Administrator may extend this 
period based on a written request.
    (2) By no later than January 1, 2022, each employer conducting 
operations subject to this part not covered by paragraph (a)(1) of this 
section in operation as of January 1, 2021, shall declare the 
designation of each of its existing safety-related railroad employees 
by occupational category or subcategory, and only permit designated 
employees to perform safety-related service in that occupational 
category or subcategory. The Associate Administrator may extend this 
period based on a written request.
* * * * *
    (e) * * *
    (1) Beginning January 1, 2022, each Class I railroad, and each 
intercity or commuter passenger railroad conducting operations subject 
to this part with 400,000 total employee work hours annually or more, 
shall deliver refresher training at an interval not to exceed 3 
calendar years from the date of an employee's last training event, 
except where refresher training is specifically required more 
frequently in accordance with this chapter. If the last training event 
occurs before FRA's approval of the employer's training program, the 
employer shall provide refresher training either within 3 calendar 
years

[[Page 14]]

from that prior training event or no later than December 31, 2024. Each 
employer shall ensure that, as part of each employee's refresher 
training, the employee is trained and qualified on the application of 
any Federal railroad safety laws, regulations, and orders the person is 
required to comply with, as well as any relevant railroad rules and 
procedures promulgated to implement those Federal railroad safety laws, 
regulations, and orders.
    (2) Beginning May 1, 2023, each employer conducting operations 
subject to this part not covered by paragraph (e)(1) of this section 
shall deliver refresher training at an interval not to exceed 3 
calendar years from the date of an employee's last training event, 
except where refresher training is specifically required more 
frequently in accordance with this chapter. If the last training event 
occurs before 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, 
2025. Each employer shall ensure that, as part of each employee's 
refresher training, the employee is trained and qualified on the 
application of any Federal railroad safety laws, regulations, and 
orders the person is required to comply with, as well as any relevant 
railroad rules and procedures promulgated to implement those Federal 
railroad safety laws, regulations, and orders.

    Issued in Washington, DC, on December 27, 2019.
Brett A. Jortland,
Acting Chief Counsel, Federal Railroad Administration.
[FR Doc. 2019-28301 Filed 12-30-19; 11:15 am]
BILLING CODE 4910-06-P


