Tuesday, February 7, 2012

FRA Publishes Safety Training NPRM

Today the Federal Railroad Administration published a notice of proposed rulemaking (NPRM) in the Federal Register (77 FR 6412-6461) concerning safety training of railroad employees. This rule would establish minimum training standards for each category and subcategory of safety-related railroad employee. It would also require each railroad to develop and submit a training program to FRA for approval. Each railroad would also be required to evaluate and designate the qualification of each such employee.

No, I don’t intend to expand the coverage of this blog to railroad safety matters (except, as always, where it may specifically address chemical safety or security matters). I’m looking at this NPRM today because it could have a significant impact on another long-awaited railroad training rule (this rule was statutorily required to have been completed by October 2009), the TSA railroad security training rule that was to have been completed by February 2008.

Public-Private Partnership

As a person who has spent much time in the military and in industry preparing and conducting training, I am very surprised (and pleased) to see such detailed training management requirements being proposed in a Federal Regulation. This is especially true since industry had a very major part in developing these regulations. The Railroad Safety Advisory Committee worked closely with the FRA in their development. This partnership between government, industry and labor should be a model for regulatory development across the government.

This partnership allowed for a reasonable process for dealing with the extensive training requirements for existing employees. It allows employers to designate current employees as ‘trained’ but still requires them to undergo refresher training within three years. It also provides for the development of a formal on-the-job training program as a reasonable alternative to hiring outside trainers.

Chemical Safety Training

Nothing in this rule directly addresses the training requirements for the OSHA HAZCOM program or the PHMSA HAZMAT training program. The rule does provide that other training plan submission requirements ‘found elsewhere in this chapter’ (Chapter II of 49 CFR) may simply be referred to in the safety training program required in this rule, but neither of those training requirements fall within this chapter. Of course neither of those training programs requires approval of the training program by their respective oversight agencies.

Since the FRA has no control over the requirements of those programs they really can’t review a railroads implementation of those requirements. There could, however, be a requirement to document that those training requirements have been met as part of the safety training program for railroad employees.

TSA Security Training

While safety certainly does affect security (and security should be a positive reinforcer of safety) the requirements of the two training programs are going to be significantly different. For one thing, since they will be regulated (sooner or later) by different agencies in different departments of the Federal government, one would expect to see certain philosophical differences in the training and documentation regimes required. For example I would be very surprised if TSA requires the railroads to submit their security training program for approval.

Another area where there will almost certainly be a difference in the two programs is the intensity of the training required. The crane operation safety training outlined in this NPRM will be much more intensive, and thus expensive, than the security training that will be required in the TSA NPRM when it is published.

One area where there will be an inevitable overlap in the two programs is in training management. Each railroad is going to have to fit both of these programs into their training management systems. Since §243.203 of this proposed rule sets out a rather detailed set of requirements for training records, one would like to think that any subsequent training program requirements for the same personnel would take those records requirements into consideration.

Of course if the TSA comes out with their security training program in May as currently planned (and based upon past history, I have my doubts), the requirements of this section will not actually be established in a final rule. One way TSA could deal with that would be to refer to any records management requirements to be broadly in accordance with §243.203 in their NPRM and then modify that as necessary when they go to publish their final rule (which presumably will come out after the FRA final rule).

Public Comments

As with any rulemaking effort, the FRA invites public comments on this proposed rule. Such comments should be submitted by April 9th, 2012 and may be submitted via the Federal eRulemaking Portal (www.Regulations.gov; Docket # FRA-2009-0033).

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