[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]
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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.
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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
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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.
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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
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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]
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